Sibia v. Ed Bulley Ventures Ltd., 2024 BCHRT 338
Date Issued: December 10, 2024
File(s): CS-005408
Indexed as: Sibia v. Ed Bulley Ventures Ltd., 2024 BCHRT 338
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:
Hardeep Sibia
COMPLAINANT
AND:
Ed Bulley Ventures Ltd.
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
On her own behalf: Hardeep Sibia
Counsel for the Respondent: Gavin Marshall and Andrew Peng
I. INTRODUCTION
[1] On October 26, 2021, Ms. Sibia filed a complaint of discrimination in employment based on race, sex, age and religion contrary to s. 13 of the Human Rights Code [ Code ], against her former employer, Ed Bulley Ventures Ltd. [ Employer ].
[2] The issue before me with respect to timeliness is whether to accept the complaint against the Employer. I make no findings regarding the merits of this complaint.
[3] The Employer raised the issue of disregarding Ms. Sibia’s reply submissions as improper for providing new and additional facts and evidence. Given the outcome of this time limits application and Ms. Sibia’s lack of representation I decided it was reasonable to consider her submissions in making my decision.
[4] For the reasons that follow, I find that it is not in the public interest to accept the late filed complaint for filing.
II. BACKGROUND
[5] Ms. Sibia is an immigrant to Canada who speaks with an accent. It appears that she is a Sikh. At the time she filed her complaint Ms. Sibia was in her 50s.
[6] Ms. Sibia formerly worked long-term as a cook in the Employer’s restaurant.
[7] On July 16, 2018, Ms. Sibia alleges the Employer told her “We found 2 men we don’t need one lady as a Manager”.
[8] On October 10, 2018, Ms. Sibia alleges the Employer told her to go on vacation and “if you don’t have money sit in your bedroom”.
[9] On September 1, 2019, Ms. Sibia alleges the Employer stated “if you can’t lift up to 50 lbs box then stay home”.
[10] On December 1, 2019, Ms. Sibia alleges that she was passed over for receipt of a ten years of service award without the Employer even mentioning her name. She says this left her feeling humiliated.
[11] On August 25, 2020, Ms. Sibia alleges her manager said, “you guys are towel heads” and laughed.
[12] Ms. Sibia states generally, the Employer said she was too old to work in the kitchen because she was over age 50, degraded her because she was a woman, commented that she was from an inferior race, and said things about her religion while forcing her to eat meat contrary to her beliefs. She further alleges the Employer made fun of her accent and gender.
[13] Ms. Sibia’s September 4, 2020, resignation letter states she did not abandon her job but was forced to quit her position as a cook for reasons related to discrimination, bullying and harassment over a two-year period. After noting an absence of approximately 5.5 months when the restaurant was closed during the recent pandemic, Ms. Sibia alleges the harassment, bullying and discrimination continued when she returned to work. She also alleges she was forced to resign because no hours of work were given to her and her wages rate was cut. In these circumstances, she states that she decided to leave the job as it was negatively affecting her physical and mental health.
III. ANALYSIS AND DECISION
[14] Section 22(3) of the Code provides that if a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member may accept all or part of the complaint if the member or panel determines that it is in the public interest to accept the complaint, and no substantial prejudice will result to any person because of the delay.
[15] 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
[16] The Complaint was filed on October 26, 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 October 26, 2020.
[17] The discrimination allegations in question occurred from mid 2018 until late August 2020 when Ms. Sibia alleges a slur was made about her religion. The complaint is, therefore, late-filed, and I proceed to an analysis of whether the Tribunal should exercise its discretion to accept the complaint outside the one-year time limit because it is in the public interest to do so, and no substantial prejudice will result to any person because of the delay: Code s. 22(3). I begin with the public interest determination.
B. Public Interest
[18] 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.
[19] I have first considered the length of delay in filing. It is unclear exactly when the last allegation occurred in this case as several dates were provided towards the end of August 2020. I note, however, that the Employer submitted a copy of Ms. Sibia’s resignation letter, dated September 4, 2020, which provides a clear date for when their relationship ended. Ms. Sibia’s complaint is, therefore, approximately two months late filed, which is a significant delay, but may not be inordinate or beyond consideration, if other factors militate in favour of acceptance: Young v. Home Depot and others , 2018 BCHRT 68 at para. 42.
[20] Ms. Sibia provided several reasons for her delay in filing the Complaint.
[21] First, on October 14, 2020, she states that she filed a complaint with the Employment Standards Branch [ ESB ] as an avenue for redress related to prior events with the Employer [ ESB Complaint ]. However, the processing of the ESB Complaint took a year, she believes for reasons related to the recent pandemic. On October 13, 2021, Ms. Sibia alleges an ESB officer advised her to present her case to this Tribunal. With this advice from the ESB, Ms. Sibia states she promptly filed this Complaint on October 26, 2021.
[22] I consider that ignorance of the Code , or the time required to become aware of one’s rights, are generally not acceptable reasons, on their own, for a delay in filing: Rashead v. Vereschagin (No. 2) , 2006 BCHRT 74 at para. 12; Ferrier v. BCAA , 2009 BCHRT 412 at para. 31. Here, Ms. Sibia has not provided any information suggesting she should be exempt from the application of this general rule. The information on file indicates she could file an internal complaint with the Employer related to an alleged toxic workplace created by the Chef in the restaurant where she worked in December 2018. It appears that Ms. Sibia also participated in a workplace investigation conducted by a third party that reportedly resolved the matter in January 2019. More importantly, Ms. Sibia demonstrated the ability to file an ESB complaint in the weeks after she resigned from her employment in late 2020. While appreciating that the ESB officer assigned to her complaint did not prompt her to file this Complaint for almost a year after filing in that forum, there is no evidence indicating Ms. Sibia could not have discovered the Tribunal process on her own and filed this Complaint within the allotted timeframe. I appreciate that some complainants at the Tribunal are prompted to file their complaints after speaking to staff at the ESB, however, many others learn about the Tribunal on its website or by way of other electronic publications, such as those authored by the BC Human Rights Commission and the Government of BC. Where Ms. Sibia could discover the Tribunal’s process on her own, in my view it was not necessary for her to be prompted by the ESB to file her complaint and any delays in receiving such advice do not attract the public interest in allowing her complaint to proceed late filed.
[23] Second, Ms. Sibia appears to attribute the delay in filing to the recent pandemic generally. She states that the complaint took place during the peak of an unprecedented global scale disruption that impacted access to public services, legal counsel, and public employment programs. She further noted that the restaurant was closed for some time during the pandemic. I accept the COVID-19 pandemic was a major disruption in Ms. Sibia’s life during the timeframe for filing after her resignation for the Employer. However, the Tribunal’s services were not interrupted at this time, and it remained open to Ms. Sibia to research its processes online and file a complaint form electronically, which she eventually did after being prompted to file by the ESB. I further appreciate that accessing in-person legal services related to filing human rights complaints may have been disrupted during the timeframe for filing this complaint, but Ms. Sibia has not provided any evidence related to her reaching out for advice about her situation, apart from waiting to hear about her ESB Complaint, that would attract the public interest in allowing the Complaint to proceed late filed. I note that Ms. Sibia states she experienced added isolation during the pandemic, but she has not set out the necessary details of how this delayed her filing of the Complaint necessary to attract the public interest.
[24] Third, Ms. Sibia states the Complaint was late filed because she faced a family crisis at home because her father-in-law was sick. She appears to submit that this situation left her uncertain as to how to proceed in this matter. I do not doubt that the illness of Ms. Sibia’s family member negatively impacted the amount of free time she had to learn about the Tribunal’s process and file her Complaint within the allotted timeframe. However, from the limited information provided about the circumstances of this illness, I am not prepared to conclude it precluded her from filing in time sufficient to attract the public interest. Where Ms. Sibia was able to learn about the ESB Complaint process and file there within a few weeks of resigning from her position with the Employer, I am unable to conclude that legitimate demands for her time at home due to a family illness precluded her from filing with the Tribunal sufficiently to attract the public interest in this matter.
[25] 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.
[26] Ms. Sibia states that she wants the Tribunal to know that the Employer has a problem with minorities. While appreciating she is seeking justice in this case and is perhaps trying to prevent future harm to others working for the Employer, I am unable to conclude her complaint is unique for the purposes of attracting the public interest in allowing it to proceed. The Tribunal routinely deals with cases involving discrimination in employment based on various personal characteristics, such as race, sex, age, and religion, the jurisprudence in this area is fairly settled. For example, see this complaint that considered many of the same grounds raised in Ms. Sibia’s complaint: Young Worker v. Heirloom and another , 2023 BCHRT 137.
[27] Having reviewed the factors for consideration in this case, on balance I am not satisfied that it is in the public interest for Ms. Sibia’s complaint to proceed late filed. The most recent delay in this case is significant, while the reasons for delay do not attract any significant public interest. In my view, Ms. Sibia could have learned about and filed her complaint in time, despite the challenges of the pandemic and caring for a sick relative.
[28] 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
[29] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member