Hitch v. Nanaimo (Regional District) and others, 2025 BCHRT 11
Date Issued: January 14, 2024
File: CS-006800
Indexed as: Hitch v. Nanaimo (Regional District) and others, 2025 BCHRT 11
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:
Teresa Gaye Hitch
COMPLAINANT
AND:
Regional District of Nanaimo, Michael Chestnut, and Dean Banman
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS OR STAY A COMPLAINT
Section 27(1)(d)(ii)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Jonathan Blair
Counsel for the Respondents: Julie A. Menten and Daniel Hsieh
I INTRODUCTION
[1] This is a decision about whether to end Teresa Hitch’s human rights complaint because of the Human Rights Tribunal’s delay in giving the Respondents notice of the complaint.
[2] Ms. Hitch is a single 70-year-old woman with disabilities. She relies on swimming for exercise to maintain her health. There is one public pool in her community, which is run by the Regional District of Nanaimo. She alleges that, in 2020 and 2021, she was harassed, endangered, and sexually touched by men while swimming at the pool. She alleges that, when she complained about this treatment, the District and the individually named Respondents banned her from the pool – a ban which continues to this day. Ms. Hitch alleges that these incidents amount to discrimination in services, based on her sex, disability, gender identity or expression, family status, and marital status, in violation of s. 8 of the Human Rights Code.
[3] Ms. Hitch filed her human rights complaint on September 13, 2021. Due to systemic institutional delays, the Tribunal did not give the Respondents notice of the complaint until 31 months later – on April 25, 2024. The Respondents argue that this delay has compromised the fairness of the proceeding and amounts to an abuse of process. They ask the Tribunal to dismiss or stay the complaint.
[4] I agree that a 31-month delay in the earliest stage of the Tribunal’s process is inordinate. It is not explained by the requirements of procedural fairness or other aspects of the processing of the specific complaint. Rather, it is an indication that the Tribunal is struggling to fulfil its mandate to resolve human rights complaints in a timely way. The delay occurred in a context where the Tribunal was facing unprecedented case volumes, with insufficient resources, in the shadow of the COVID-19 pandemic. Almost all complaints at the Tribunal have been affected by the resulting backlog and delay. This delay negatively affects parties and the public, who hope and expect to have human rights complaints resolved fairly and promptly.
[5] However, I am not satisfied that this delay alone amounts to an abuse of process. At this stage, I cannot conclude that it has compromised hearing fairness or caused significant prejudice. The Respondents’ application is denied. The Tribunal’s process will continue.
[6] After the close of submissions, counsel for Ms. Hitch sent the Tribunal a letter objecting to new evidence submitted with the Respondents’ reply. The proper way to object to new evidence is through an application for further submissions: Rule 28(5). In the absence of such an application, I have not considered this argument. I have considered all the parties’ materials to make my decision.
II DECISION
[7] Between 2020 and 2023, during a global pandemic, the Human Rights Tribunal received an unprecedented number of new human rights complaints, without a corresponding increase in resources. The result was a large backlog of cases, with delays affecting all complaints at every stage of the Tribunal’s process. One significant point of delay was – and continues to be – at the stage where the Tribunal screens complaints and gives notice of the complaint to respondents.
[8] The Tribunal has a duty to act fairly. Where the Tribunal cannot provide a fair process because of delay, it has the power to dismiss or stay a complaint to prevent an abuse of process. This power is found in two places. First, under s. 27(1)(d)(ii) of the Code, the Tribunal may dismiss a complaint that does not further the purposes of the Code. This includes circumstances where it is “effectively impossible” to conduct a fair hearing: Bell v. BC (Workers’ Compensation Board), 2010 BCHRT 119 at para. 43. Second, the Tribunal has an inherent discretion to prevent abuse of its process, including by staying a complaint: Law Society of Saskatchewan v. Abrametz , 2022 SCC 29 [ Abrametz ] at paras. 33 and 38.
[9] Delay, on its own, is not an abuse of process: Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44 at paras. 101, 117. The Supreme Court of Canada has warned that “staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period”: Blencoe at para. 101. The focus is on the effect of the delay on the fairness of the Tribunal’s process and the administration of justice.
[10] Even where there is abuse of process, remedies other than a dismissal or stay should be explored: Abrametz paras. 44, 89-90. A respondent seeking to end a human rights complaint because of delay bears a “heavy burden”: Blencoe at para. 117. The consequence of granting such a request is to end a person’s human rights complaint, denying them a means of possible redress, and leaving the Code’s purposes unfulfilled: s. 3. For these reasons, the Tribunal exercises this option only in the clearest of cases where it is satisfied that a fair proceeding is simply not possible: Diaz-Rodriguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221 at para. 68.
[11] There are two ways that delay may constitute an abuse of process: where it compromises hearing fairness and where it causes significant prejudice: Blencoe at paras. 122 and 132; Abrametz at para. 41. The Respondents argue that both circumstances apply here. I consider each in turn.
A. Has the delay compromised hearing fairness?
[12] Hearing fairness may be compromised where delay impairs a party’s ability to answer the complaint against them, such as when memories have faded, essential witnesses are unavailable, or evidence has been lost: Blencoe at para. 102; Abrametz at para. 41. It is not enough to make “vague assertions” of prejudice. In Blencoe, for example, the Court was not satisfied that the respondent’s assertion that two witnesses had died and the memories of witnesses might be impaired was sufficient to establish that he could not fairly defend himself in the complaint: paras. 103-104.
[13] The Respondents argue that the Tribunal’s 31-month delay in giving them notice of the complaint inherently causes prejudice: Tanguay v. Brouse, 2010 ONCA 73 at para. 2. The events at issue in the complaint happened in 2020 and 2021, meaning that they learned about some allegations nearly four years after they occurred. They say that the delay has deprived them of the opportunity to gather and preserve evidence. Some important witnesses no longer work for the District, and/or are retired, and the Respondents say they do not know whether they will be able to contact them or whether they will cooperate. The individual Respondents have sworn affidavits in which they say that they have limited recollections of the events at issue in the complaint. To the extent they have any recollection, the Respondents argue that the witnesses’ ability to answer questions in cross-examination will be compromised: ML Bruce Holdings Inc v Ceco Developments Ltd ., 2015 ABQB 604 at para. 50. They rely on Brown v Assn of Professional Engineers, [1994] BCJ No. 2037, where the Court found that an institutional delay of three years prejudiced the petitioner to such an extent that his “right to a fair trial” had been jeopardized: paras. 72-73.
[14] I am not persuaded that the delay in this case means that the Tribunal cannot provide the parties with a fair hearing.
[15] First, it is premature to conclude that the hearing will be unfair. The complaint is at the very initial stage. The Respondents have yet to file their response. The parties have not exchanged disclosure or participated in mediation. To the extent further particulars are necessary to understand and respond to the complaint, the Respondents have not requested or applied for further particulars. They have not exhausted – or in some cases, even begun – efforts to locate and talk to witnesses. A hearing is not scheduled and may not even occur if the complaint is settled or dismissed. No party has applied to expedite the process. This is not a case like Zhang v. Victoria Police Department (No. 5), 2008 BCHRT 227 , where the proceeding had been underway for five years and there was no indication that the complainant would be able to proceed in the foreseeable future. There, the respondent faced the prospect of indeterminate delay. In this case, Ms. Hitch is ready and able to proceed. It would be pure speculation to guess how long the process will ultimately take to resolve.
[16] Second, I agree with Ms. Hitch that the Respondents have not pointed to evidence of actual prejudice arising from the delay. In saying this, I accept that the Respondents may have lost the opportunity to collect and preserve evidence closer in time to the events in question, and that delay at the front end of the process is particularly challenging for Respondents. However, more is required to establish that the Tribunal cannot deliver a fair hearing because of delay.
[17] It is not unusual that respondents or defendants may receive notice of legal allegations years after they occurred. In the human rights context, allegations of a continuing contravention of the Code may date back years: Code, s. 22(2). For example, in Dove v. GVRD and others (No. 3 ), 2006 BCHRT 374 at para. 20, the Tribunal found that allegations dating back five years before the complaint was filed formed a continuing contravention of the Code. The Court of Appeal approved this reasoning in School District v. Parent obo the Child, 2018 BCCA 136 at paras. 54-56. In addition, the Tribunal has discretion to accept late-filed complaints where it is in the public interest to do so and there is no substantial prejudice: Code, s. 22(3). This includes complaints filed months or years after the one-year time limit. For example, in British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220, the Court of Appeal upheld the Tribunal’s decision to accept a human rights complaint for filing 22 months late. In the civil context, the basic limitation period for filing a claim is two years, following which a party has one year to serve the notice of civil claim: Limitation Act, s. 6; BC Supreme Court Civil Rules, Rule 3-2. This means that a defendant may not learn about allegations against them for up to three years. In this context, I cannot accept that the fact that the Respondents learned of Ms. Hitch’s human rights complaint three to four years after her allegations occurred is, alone, evidence that hearing fairness has been compromised.
[18] It is not enough to simply say that memories have faded: Rana v. PB Distribution and others (No. 6), 2008 BCHRT 189 at para. 44. In Walsh v. Mobil Oil Canada, 2004 ABQB 675, the Alberta Court of Queen’s Bench found that a human rights panel had erred in inferring prejudice from a nine-year delay between the filing of a complaint and its referral to a hearing. The Court explained that a respondent is required to produce evidence of prejudice:
… Faded memories may not show actual prejudice. Prior recorded statements can restore those faded memories and improve the reliability of a witness. Faded memories may produce an opaque evidential picture, but that picture is not blank. The evidential picture can be more clearly defined through recollection via prior recorded statements or other evidential aids. Where there is no memory, no witnesses, no documentary evidence due to loss or no prior recorded statements, then actual prejudice or significant prejudice can be found. Mobil produced no such evidence before the Panel. In my view, the Panel erred in merely employing the inference of faded memories and non-reliability of witnesses because of the lengthy passage of time to lead to a conclusion of significant or actual prejudice to Mobil. [para. 50, emphasis added; discussed in Rana at paras. 39-48]
[19] Evidence of prejudice may include evidence that important witnesses are not available because of death or illness, or physical evidence has been destroyed. In Humphreys v. Trebilcock, 2017 ABCA 116, a case relied on by the Respondents, the Alberta Court of Appeal cited circumstances where the passage of time could impact hearing fairness:
There is no doubt that the passage of time may impair a moving party’s ability to defend its interests at the trial of an action. “Delay may compromise the fairness of a trial”. The unavailability of crucial witnesses – death, impairment or disappearance – may diminish the strength of the moving party’s case. The passage of time may also have impaired a prospective witness’ ability to access stored data. A potential witness’ mental health may have declined and place the person in a position where he or she no longer can retrieve material in a memory bank. Or a party may have lost exhibits. This may be attributable to disastrous fires or floods or mistakes made by movers or document managers. [para. 130, citations omitted]
[20] None of these circumstances apply here. There is no evidence before me that crucial witnesses have died, disappeared, or become impaired from giving evidence. There is no evidence before me that a prospective witness cannot access stored data. There is no evidence before me of any reason that evidence was destroyed. There is no evidence (beyond speculation) that any witness is refusing to cooperate because of delay: see eg. Brown at para. 72. Adopting the analysis from Walsh, the evidence before me does not establish that there is no memory, no witnesses, or no documentary evidence.
[21] There is minimal evidence before me about the Respondents’ efforts to locate witnesses and refresh their memories. The Respondents say that some important witnesses are retired or no longer work for the District. In their affidavits, the individual Respondents say that they are retired or retiring and will have “limited ability to participate in the Tribunal’s process”. Respectfully, this is not evidence of hearing unfairness. Parties and witnesses routinely participate in legal proceedings after they have retired or left their previous employment.
[22] In reply, the Respondents submitted an affidavit from a Human Resources Advisor with the District about three former employees who were witness to some of the events in the complaint. The Advisor says she does not know if the contact information they have for these witnesses is current. She says she emailed two of them but has not received a response so far. She says that these ex-employees were terminated by the District and she believes they are unlikely to respond. Respectfully, this is not enough to establish that the Tribunal cannot provide a fair hearing. The Advisor does not say when she emailed the witnesses, what she said in the email, and how long she has been waiting for a response. There is more the Respondents can do to locate and talk to these witnesses before it is reasonable to conclude that this hearing cannot proceed fairly. Further evidence is required before I could find that the Tribunal cannot deliver a fair process because essential witnesses are refusing to co-operate: Brown at para. 57.
[23] A more rigorous consideration of the complaint, including collection of evidence, may refresh memories and provide a basis for the Respondents’ defence. There appears to be no dispute that the Respondents were aware of Ms. Hitch’s allegations at the time they occurred, and many of her concerns were raised in writing. The decision to ban Ms. Hitch was made at a high level between senior managers. It is possible there are documents about this decision, and/or that some of the senior managers involved do recall the events. There was an RCMP investigation into one of Ms. Hitch’s allegations, in which it appears the Respondents may have been involved. Finally, Ms. Hitch says that her ban from the pool remains in effect and argues that the Respondents must have some awareness of the reasons for it. In these circumstances, I am not prepared to rely on delay alone, even at the notice stage, to find that the Tribunal’s process cannot be completed fairly.
[24] Finally, the Respondents argue that the complaint is vague, lacks particulars, and includes pejorative and inflammatory comments. They appear to suggest that the complaint is frivolous, malicious, or vexatious. Respectfully, these arguments are not relevant to the issue before me, which is focused on the impact of delay on the Respondents’ ability to respond to the allegations. There are other procedural mechanisms to address the Respondents’ concerns later in the process. Without attempting to be exhaustive, the Respondents can apply for particulars or disclosure. They can argue that the complaint should be dismissed because Ms. Hitch has not proven discrimination or brought her complaint in bad faith.
[25] The Respondents have not persuaded me that the fairness of the Tribunal’s hearing process is sufficiently compromised to give rise to an abuse of process, or to mean that it does not further the purposes of the Code for the complaint to continue. I turn, then, to the second type of prejudice at issue.
B. Has inordinate delay caused significant prejudice?
[26] Where delay has not compromised hearing fairness, it can still amount to an abuse of process where (1) it is inordinate, (2) it directly causes significant prejudice, and (3) it is manifestly unfair to a party or in some other way brings the administration of justice into disrepute: Abrametz at para. 43; Blencoe at para. 40-41. In Blencoe, the Court cautioned that “few lengthy delays will meet this threshold”: at para. 115. Where there is no hearing prejudice, the “delay must be clearly unacceptable and have directly caused a significant prejudice”: Blencoe at para. 115.
1. Is the delay inordinate?
[27] To decide whether delay is inordinate, the Tribunal must consider it in its full context, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of facts and issues in the case: Abrametz at para. 51. A lengthy process “may be justified on the basis of fairness ”: Abrametz at para. 50, emphasis in original.
[28] This is a human rights complaint. The aim of human rights legislation is to “identify and eliminate discrimination”: Robichaud v. Canada (Treasury Board) v. Robichaud , [1987] 2 S.C.R. 84 at p. 92; Code, s. 3. The Code is “pre-eminent” legislation, whose protections are “fundamental to our society”: Zurich Insurance Co. v. Ontario (Human Rights Comm.), [1992] 2 S.C.R. 321 at para. 18; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 31. It is the “law of the people” and often the “final refuge of the disadvantaged and the disenfranchised”: Tranchemontagne v. Ontario (Dir., Disability Support Program), 2006 SCC 14 at para. 33; Zurich at para. 18. Human rights complaints advance the private interests of a complainant to access important areas of life free of discrimination, as well as the public’s interest in fostering a society free of discrimination.
[29] In a human rights complaint, delay can harm complainants, respondents, and the public. Complainants benefit from having their case proceed promptly, so they can be restored to a discrimination-free environment and achieve a means of redress. For respondents, the uncertainty and stigma from an unresolved human rights complaint can affect their work and personal lives, and cause stress and anxiety. Finally, the public expects that complaints of discrimination will be dealt with effectively, to foster an equitable society: Code, s. 3.
[30] In this case, I am considering a 31-month delay between Ms. Hitch filing her complaint, and the Tribunal giving notice of the complaint to the Respondents. This is far outside what parties and the public would reasonably expect from an administrative tribunal designed to deliver timely services. There is no dispute that the parties played no role in this delay; it was entirely caused by systemic delays at the Human Rights Tribunal. The delay cannot be justified by the nature of the complaint, or aspects of the complaint process, such as procedural decisions intended to promote a fair process.
[31] Rather, the delay in this case was caused by unprecedented case volumes and insufficient resources at the Human Rights Tribunal, especially during the COVID-19 pandemic. All complaints were affected, to some extent, by delay. The Respondents cite the Tribunal’s 2022/2023 Annual Report, where the Chair reported:
As in 2021-22, the 2022-23 fiscal year again saw record numbers of new cases filed at the Tribunal, with service demand continuing to outstrip capacity. When the number of cases in the system exceeds what the Tribunal has capacity to process within service standards, backlog results. With case volume exceeding Tribunal capacity for the third consecutive year, there is a backlog at every stage of the process, and the Tribunal has not been able to consistently meet any of its service standards.
The extent of the backlog, and corresponding delay, were also exacerbated by the challenges faced by many institutions struggling to respond to the COVID-19 pandemic.
[32] Ms. Hitch filed her complaint in September 2021, a year when the Tribunal received three times the number of complaints it was designed and resourced to address. In the Tribunal’s 2021/2022 Annual Report, the Chair explained that, because of unprecedented volumes and insufficient resources, “delays at all stages of the Tribunal’s processes are historically high”. In 2022, the government gave the Tribunal emergency funding and in 2023, the government increased the Tribunal’s funding. In the 2022/23 Annual Report, the Chair cautioned that the increase in funding was “likely not enough to efficiently address the backlog that has accumulated as a result of under-resourcing during the initial volume spikes”. In the 2023/24 Annual Report, the Chair reported that the Tribunal had used the increased resources to onboard new staff and adjudicators and was beginning to make progress in the rate of growth of its backlog. After onboarding new adjudicators in the second half of 2023, the Tribunal undertook a project to address its backlog in the screening stage, where Ms. Hitch’s complaint was waiting. A few months later, in April 2024, the Tribunal screened Ms. Hitch’s complaint and gave notice to the Respondents.
[33] This unique and challenging context explains the delay but does not excuse it. The government has an obligation to ensure that administrative tribunals have sufficient resources to fulfill their mandate. Tribunals, in turn, are obliged to use those resources effectively to ensure the integrity of their process: Abrametz at para. 64. The 31-month delay to give notice of Ms. Hitch’s complaint is inconsistent with the purposes of the Code and the role of this Tribunal and is not justified by the fairness of the process or the needs of the parties. It is inordinate.
[34] This does not end the analysis. To be an abuse of process, inordinate delay must also have caused significant prejudice. In this case, I am not persuaded that it has.
2. Significant prejudice
[35] Prejudice is a question of fact: Abrametz at para. 69. It can include “significant psychological harm, stigma attached to the individual’s reputation, disruption to family life, loss of work or business opportunities, as well as extended and intrusive media attention”: Abrametz at para. 69. In my view, the Respondents have not established significant prejudice arising from the Tribunal’s delay.
[36] The individual Respondents argue that they have experienced reputational harm due to the delay. They say that Ms. Hitch has made disparaging comments about them to members of the community and local government, and they were deprived of the opportunity to defend themselves. The individual Respondents express concerns that Ms. Hitch has damaged their personal and professional reputations.
[37] Respectfully, I cannot accept that this amounts to the type of significant prejudice that will support ending a human rights complaint. These harms flow from the litigation and Ms. Hitch’s conduct (which is not at issue on this application), and not the delay. In that regard, I acknowledge that any respondent facing allegations of discrimination would likely feel upset and may experience stigma or other harms: e.g. Blencoe at para. 96. I also note that any user of the District’s public facilities may complain about the service and staff, to anyone at any time. This is not the type of prejudice that renders this proceeding an abuse of process: Abrametz at para. 68. In any event, I agree with Ms. Hitch that it is difficult to find that the delay in this cause caused reputational harm in circumstances where the Respondents say they were not aware of the complaint. This suggests that their reputation suffered without them knowing about it.
[38] For its part, the District appears to suggest that it experienced reputational harm, citing cases where courts have recognized that businesses can experience a loss of income and business opportunities: Investment Dealers Association of Canada v. MacBain, 2007 SKCA 70 and Financial Consumer Services Commission v. Emond, 2020 NBCA 42. I agree with Ms. Hitch that these cases are not helpful. The District is not a private company, it is municipality. As a public body, it is subject to complaints about services and other issues. There is no evidence that it has lost revenue or other opportunities, whatever those may be. I am not persuaded that the delay has caused the District to suffer reputational harm giving rise to significant prejudice.
[39] The Respondents’ argument rests primarily on an assumption that it is significantly prejudicial to face inordinate delay at the stage of receiving notice of human rights allegations. I cannot accept that presumption. Abrametz and Blencoe are clear that significant prejudice is a question of fact, and not established simply by inordinate delay.
[40] In sum, I am not persuaded that the inordinate delay in this case caused the Respondents significant prejudice. In this circumstance, it is not necessary to go on to the final step of the analysis, which considers whether the delay amounts to an abuse of process: Abrametz at para. 43. Without an abuse of process, it is also unnecessary to consider whether staying all or part of the complaint is an appropriate remedy. I will, however, note that even in cases where delay amounts to an abuse of process, staying the complaint is a last resort, reserved for the “clearest of cases” of “shocking abuse”: Abrametz at paras. 83, 44; Blencoe at para. 155 and 120. In the human rights context, the Tribunal must weigh the strong public interest in ensuring that human rights complaints are resolved on their merits: Abrametz at para. 84. It must ensure all other options are exhausted before concluding that a human rights complaint cannot proceed. In this case, Ms. Hitch’s complaint will proceed.
III CONCLUSION
[41] I accept that the delay in giving notice of Ms. Hitch’s complaint was inordinate but I am not persuaded it has compromised hearing fairness or amounts to an abuse of process. I deny the application to dismiss or stay this human rights complaint. The Tribunal’s process will continue.
Devyn Cousineau
Vice Chair