BC Human Rights Tribunal

[14] I have first considered the length of the delay in this case. As noted above, the length of the delay in this case is one day, which is an extremely short delay indicating that it is in the public interest to accept this complaint for filing: Moussa v. Ikea , 2007 BCHRT 219, at para.

14. However, even where the length of the delay is very short, the resulting public interest to accept a complaint can be outweighed where there is an inadequate explanation for the delay: Andres v. Hiway Refrigeration and Grehan , 2009 BCHRT 135 at para. 7.

[15] Ms. Brooks-Smith’s reason for late filing her complaint is related to her belief that she filed in time. While her on-line complaint form generated at the Tribunal assigned it as being received on July 6, 2023, the Tribunal’s email confirming receipt of the Complaint to Ms. Brooks-Smith noted that it was received on July 5, 2023. It appears that Ms. Brooks-Smith was aware of the one-year deadline for filing and believed she had satisfied it because she sent the form in prior to midnight on July 5, 2023.

[16] Rule 9 of the Tribunal’s Rules of Practice and Procedure [the Rules ] states that a communication received after the close of business 4:30 PM is deemed to be filed the next business day. In this case, even if Ms. Brooks-Smith filed her complaint form on July 5, 2023, it would still have been deemed filed late on the next business day because it was received after the close of business on the due date.

[17] The VPB argues Ms. Brooks-Smith has not provided any reason to justify the late filing of her complaint. It notes that she has further failed to explain why she waited until just before midnight on the due date to attempt to file her complaint. While she may have lacked awareness of the end of business day deadline, the VPB argues that ignorance of the deadline for filing does not excuse the late filing of the Complaint and does not render it in the public interest to accept a late-filed complaint.

[18] Ignorance of the Code , or the time required to become aware of one’s rights, is generally not an acceptable reason, on its own, for the delay in filing: Rashead v. Vereschagin (No. 2) , 2006 BCHRT 74 at para. 12; Ferrier v. BCAA , 2009 BCHRT 412 at para. 31. In this case, Ms. Brooks-Smith appears to have been ignorant of the Tribunal’s Rule related to a communication being received the next business day if it filed after the close of business. As a self-represented person navigating the Tribunal’s process on her own, in my view it is appropriate to conclude that some public interest attracts in this case. Here, the Rule in question related to the timeliness of filing after the close of business is quite technical and only found in the body of the Rules and not within the Tribunal’s complaint form guidance information. The guidance information tells potential complainants to file their complaints within one year of the discrimination only. In the circumstances of this case, I accept that Ms. Brooks-Smith’s ignorance of the intricacies of calculating when a document is received at the Tribunal is explained and this does attract the public interest. In the end, she thought she filed in time, and I accept that her ignorance was reasonable given the technicality of the Rule at play and it not having any prominence in the complaint filing guidance information.

[19] 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 , 2013 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others , 2010 BCHRT 224 at para. 60. Where a complaint raises a novel issue that may advance the purposes of the Code , this is a factor that may be considered in weighing the 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.

[20] Ms. Brooks-Smith is seeking justice to improve police accountability. She believes her case will increase public safety and trust for such public bodies.

[21] The VPB argues this case is not sufficiently unique or novel to attract the public interest. In its view, the Tribunal frequently addresses allegations of discrimination involving the provision of services, particularly in the context of racial discrimination and sex.

[22] I disagree with the VPB about whether the nature of this case attracts the public interest because of its uniqueness or novelty. In Umolo v. Shoppers Drug Mart, 2021 BCHRT 166 at para. 29, the Tribunal acknowledged that anti-Black racism may share themes with other forms of racism but is distinct and should be assessed within its own context. In that case, the Tribunal considered the allegations of anti-Black racism to be a factor weighing in the public interest of accepting the late-filed complaint. I agree with the reasoning and find it applies to this case. I accept that this factor weighs in favour of finding it is in the public interest to accept the late filed complaint.

[23] Considering all the circumstances, I am ultimately persuaded that it is in the public interest to accept Ms. Brooks-Smith’s late-filed complaint. In circumstances involving an extremely short delay in filing of one day, and Ms. Brooks-Smith’s mistaken belief that she filed in time because she filed on the one-year deadline date without knowing she had to do so by 4:30 PM, I exercise my discretion to find the public interest has been engaged to allow her complaint to proceed. In addition, I find this case is unique because it involves anti-Black racism.

[24] I now proceed with addressing the issue of whether there would be any substantial prejudice.

C. Substantial Prejudice

[25] Ms. Brooks-Smith submits allowing the Complaint to proceed would not harm anyone because it was essentially filed on time.

[26] The VPB submits allowing the Complaint to proceed would result in substantial prejudice to it because the encounter occurred almost two year ago. In the VPB’s view, the passage of time has resulted in the dimming of memories for those involved. The VPB is further concerned that relevant evidence may have been lost or destroyed.

[27] In my view, no substantial prejudice would result to VPB because of the one-day delay. While acknowledging the event in question occurred more than two years ago now, the Tribunal has not been prepared to give effect to mere allegations of substantial prejudice, without a specific factual foundation: Rezaei v. University of Northern British Columbia and another , 2009 BCHRT 406, at para. 80. The one-day delay in filing, without more, is not a sufficient basis on which to infer sufficient prejudice in these circumstances.

[28] The VPB did not provide any submissions on the specific prejudice resulting from the late filing of this complaint. As such, despite having an opportunity to do so, the VPB did not point to any specific witnesses who have become unavailable, or whose memories may have faded, any documents which have been misplaced or destroyed, or anything else which would form the basis of actual prejudice. In the absence of further information, I cannot conclude that VPB would suffer substantial prejudice.

IV Conclusion

[29] For these reasons, the Complaint is accepted for filing.

Steven Adamson Tribunal Member