FitzGerald v. Vancouver Island Health Authority, 2024 BCHRT 326 – CORRECTED
Date Issued: November 19, 2024
File(s): CS-004060
Indexed as: FitzGerald v. Vancouver Island Health Authority, 2024 BCHRT 326
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Deborah FitzGerald
COMPLAINANT
AND:
Vancouver Island Health Authority
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
On her own behalf: Deborah FitzGerald
Counsel for the Respondent: Annie Olson and Karen Orr
I. INTRODUCTION
[1] On January 19, 2021, Ms. FitzGerald filed a complaint of discrimination in employment based on mental disability contrary to s. 13 of the Human Rights Code [ Code ], against her employer, the Vancouver Island Health Authority [ VIHA ].
[2] The Tribunal deferred the processing of this complaint until early 2024, at first pending a grievance, and later pending return to work initiatives. Despite it not being clear as to whether the reasons for deferral had ended, the Tribunal chose to lift the deferral and proceed with the Complaint as the parties made no submissions on the need to continue the deferral.
[3] After lifting the deferral, the Tribunal sought submissions on timeliness. VIHA provided its time limit response submission; however, Ms. FitzGerald did not make any submissions in reply. While acknowledging that Ms. FitzGerald emailed to inform the Tribunal that she was not making a submission on time because she was previously ill and could not afford a lawyer, I am satisfied that she had a reasonable opportunity to make a submission to seek an extension. In circumstances where the Tribunal informed her that she could apply to extend the timeframe for making a submission and gave her free legal advice help information, I am satisfied that she had the opportunity to seek an extension and no unfairness results in proceeding to a decision without her further input.
[4] The issue before me with respect to timeliness is whether to accept the complaint against VIHA. I make no findings regarding the merits of this complaint.
[5] For the reasons that follow, I find that the Complaint is not a continuing contravention of the Code : s. 22(2), and it is not in the public interest to allow it to proceed late filed: s. 22(3).
II. BACKGROUND
[6] Determining which of Ms. FitzGerald’s allegations are arguable contraventions of the Code makes it necessary from me to review them in some detail below.
[7] Ms. FitzGerald began nursing in 1985 and worked for VIHA for many years during her career.
[8] In 2012, Ms. FitzGerald alleges that while working for VIHA one day she encountered an imposing head injury patient who threatened her, was verbally abusive, threw metal trays at her, broke the unit’s metal doors with his wheelchair and tried to attack a security guard until he was physically restrained and arrested. While remaining at work following the incident, Ms. FitzGerald alleges that she began to have Post-Traumatic Stress Disorder [ PTSD ] related issues that she failed to recognize as PTSD.
[9] In 2016, Ms. FitzGerald alleges a patient reported her for an unknown reason. She alleges VIHA subsequently put her on a learning plan that included monitoring her work without explaining to her why this was occurring. Ms. FitzGerald alleges she was unsupported by VIHA during this monitoring. This included VIHA not allowing her to adjust to working day shifts after previously working nights. She further alleges that her manager mocked her for saying that she liked learning.
[10] After the third day of monitoring, Ms. FitzGerald claims her manager fired her without explanation. She further alleges that she was not provided an opportunity to explain herself or have the union intervene on her behalf. Ms. FitzGerald alleges the termination process was unfair, leaving her feeling judged, bullied and unsupported. Despite Ms. FitzGerald’s reference to being terminated by VIHA, it appears her employment was not severed and she continued to be an employee well after the Complaint was file.
[11] In 2016, Ms. FitzGerald alleges the British Columbia College of Nursing Professionals [the College ], investigated a complaint from her manager about the incidents leading to her removal from duty. The College responded by suspending her license to practice.
[12] Ms. FitzGerald appears to have been off work on various benefit entitlements from June 2016 to August 2019.
[13] The June 4, 2019, agreement between Ms. FitzGerald and the College put numerous conditions on reinstatement of her license to practice. These included her having to take a variety of online courses before returning to any form of work, being monitored according to specific guidelines for a year by a College approved supervisor once she returned to work, and by limiting her practice in specific ways during the first and second years after her return. Although she disagreed with the need for the tight restrictions imposed on her by the College, Ms. FitzGerald states she decided not to dispute them after receiving advice from an advocate that any challenge she made would fail.
[14] On August 6, 2019, Ms. FitzGerald says the VIHA’s duty to provide her with an accommodation position started. This dated presumably coincided with the date the College cleared to return to work according to the terms of their agreement. Despite being well and ready to return to the job she loved, Ms. FitzGerald alleges VIHA failed her on multiple occasions in its duty to find her a position. For almost two years from 2019 until she filed her complaint, Ms. FitzGerald alleges VIHA failed to provide her with a lasting or permanent solution. During this period, she says that she attempted to find a solution on her own by applying for more than 10 jobs. Ms. FitzGerald alleges VIHA’s lack of support and neglect, in addition to the College’s restrictions on her license, made her ability to obtain the necessary hours to maintain her license impossible. As a result, Ms. FitzGerald alleges the ordeal negatively affected her health, finances, family life, self worth and self-esteem.
[15] As noted above in the discussion about the complaint being deferred, Ms. FitzGerald and VIHA continued to engage in return-to-work efforts for years after this Complaint was filed.
III. ANALYSIS AND DECISION
[16] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62 , 2003 BCHRT 39.
A. Time Limit and Continuing Contravention
[17] The Complaint was filed on January 19, 2021. To comply with the one-year time limit under s. 22(1) of the Code , the alleged act of discrimination had to occur on or after January 19, 2020.
[18] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District at para. 50.
[19] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204 at para. 14.
[20] Turning then to the first question identified above, I have considered when the last instance of the arguable contravention occurred. At the time the Complaint was filed, Ms. FitzGerald states the discrimination was ongoing. Her complaint form states that since August 6, 2019, she applied for multiple positions that were rejected by VIHA. I acknowledge that Ms. FitzGerald’s assertion that these rejections based on her mental disability may contain the necessary elements of discrimination allegations in terms of having a disability, suffering adverse impact and there being an alleged connection between the disability and the adverse impact. However, I conclude these allegations are not sufficiently particularized where no dates for when the events occurred were provided by Ms. FitzGerald during a period of approximately 18 months. Looked at another way, I see VIHA having little ability to defend itself against such a complaint where no information was provided to put these events in time. Further, if events without dates were allowed to proceed as arguable contraventions of the Code , my ability to determine whether they were late filed, form part of a continuing contravention of the Code or should be allowed to proceed as late filed due to the public interest is essentially frustrated. As a result, I conclude there are no arguable contraventions made out by Ms. FitzGerald concerning job applications for the period August 2019 to January 2021.
[21] The only other allegations made by Ms. FitzGerald concerning harms by VIHA involve events leading to her removal from her nursing position in 2016. In my view, these allegations are sufficiently particularized with dates and allegations to form arguable contraventions of the Code . However, these allegations are all late filed by more than three years and, therefore, are not capable of forming a continuing contravention of the Code because no timely events exist to tether the late filed complaints.
[22] I note Ms. FitzGerald appears to make allegations related to harms perpetrated by the College. These include removing her from practice in 2016 and entering into an overly restrictive return to practice agreement with her in 2019. These allegations, however, are not before me in this Complaint against VIHA which does not name the College as a respondent.
[23] Having concluded the only arguable contraventions of the Code in this case occurred in 2016, it is necessary to determine whether it is in the public interest to accept the late-filed complaint and whether there would be any substantial prejudice.
B. Public Interest
[24] Whether it is in the public interest to accept the late-filed complaint is a multi-faceted analysis. The enquiry is fact and context specific and assessed in accordance with the purposes of the Code : Hoang v. Warnaco and Johns , 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [ Mzite ] at para. 53. These are important factors, but they are not necessarily determinative: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mzite at para. 55.
[25] I have first considered the length of delay in filing. As noted above, the delay associated with the 2016 allegations of discrimination is more than three years. A delay of one year or more is considered by the Tribunal to be excessive and militates strongly against the public interest: Naziel-Wilson v. Providence Health Care and another , 2014 BCHRT 170 [ Naziel-Wilson ] at para. 13.
[26] Ms. FitzGerald did not provide reasons for her delay; however, the Complaint form information indicates she was off work for reasons related to mental disability from mid 2016 until mid 2019. I also note that she reported being very depressed at the time she filed the Complaint at the start of 2021.
[27] Where the delay is due to a disabling condition, the Tribunal has observed that it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth , 2011 BCHRT 29 at para. 42. Disabling conditions can include physical and mental ailments resulting in great difficulty coping with even the basic daily tasks of life: Naziel-Wilson , at para. 21.
[28] Without doubting the existence of Ms. FitzGerald’s mental disabilities during the timeframe for filing and beyond, and her disability from working in her prior nursing job after mid 2016 for some time, there is a lack of information indicating that her disabilities precluded her from filing sufficiently to attract the public interest. When Ms. FitzGerald’s complaint was filed at the start of 2021, she stated that she had been well enough to return to work for close to three years. She further indicated that she had investigated the possibility of challenging the College’s practice restrictions in 2019, but decided against doing that based on the anticipated outcome. As a result, Ms. FitzGerald’s mental disability does not appear to have precluded her from filing for much of the period from some time in 2018 onwards. Given this lengthy unexplained period when she could have filed, I have determined that Ms. FitzGerald’s mental disability does attract the public interest in allowing her late filed complaint to proceed.
[29] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others , 2014 BCHRT 10 at para. 22; Bains v. Advanced Air Supply and others , 2012 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others , 2010 BCHRT 244 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code , this factor may weigh in favour of finding a public interest in accepting the complaint: Mzite at paras. 65-66. The Tribunal has considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mzite at para. 67.
[30] Ms. FitzGerald states that she does not deserve to lose her nursing career because of a workplace injury. She asserts that having a disability related to PTSD caused by events at work does not make her a bad person or responsible for the effects of her illness. Without doubting the seriousness of Ms. FitzGerald’s disability or assigning any blame to her for the effects of her illness, I do not find her case is unique for the purposes of attracting the public interest in allowing the Complaint to proceed late. The Complaint involves allegations of discrimination in the workplace related to mental disability. Such cases are unfortunately quite commonly heard by the Tribunal and the law in this area is fairly settled.
[31] Having not found that it is in the public interest to accept the late-filed complaint, I need not address the issue of whether substantial prejudice would result.
IV. CONCLUSION
[32] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member
This version of the Reasons for Decision has been amended in accordance with the Correction of November 27, 2024
[1] This corrects an error on the title page of the decision.
[2] The name of the Counsel for the Respondent is changed from Annie Olson to Annie Olson and Karen Orr.