The Worker v. The City and another, 2025 BCHRT 26
Date Issued: February 4, 2025 File: CS-006679
Indexed as: The Worker v. The City and another, 2025 BCHRT 26
IN THE MATTER OF THE HUMAN RIGHTS CODE
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
The Worker
COMPLAINANT
AND:
The City and the Manager
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On his own behalf: The Worker
Counsel for the Respondent: James D. Kondopulos and Jaime H. Hoopes
I INTRODUCTION
[1] On April 11, 2022, the Worker filed a complaint alleging the City and the Manager discriminated in employment based on mental disability, contrary to s. 13 of the Human Rights Code [ Code ]. On May 25, 2022, he filed a second complaint alleging the Manager retaliated contrary to s. 43 of the Code for filing the initial complaint. On August 12, 2022, the Worker filed a complaint amendment setting out further details of the initial complaint.
[2] On November 3, 2023, the Tribunal accepted the consolidated complaint [the Complaint ] for filing. However, on February 13, 2024, the Tribunal reconsidered that decision and referred the matter back for a decision under s. 22(2) and s. 22(3) after concluding the Complaint contained allegations that were outside the one-year time limit for filing.
[3] For the reasons that follow, I find that the Complaint can proceed for timely allegations after November 2021. However, it is not a continuing contravention of the Code, and it is not in the public interest to accept the late filed complaint allegations from 2003 to 2020 for filing .
II ORDER LIMITING PUBLICATION
[4] In rendering this decision, it is necessary to discuss the Worker’s mental disability in some detail as it relates to his complaint. As such, I have decided to order a limitation on the publication of the names of the parties to protect the Worker’s privacy regarding this sensitive information.
[5] In making this order, I recognize there is a strong public interest in the Tribunal maintaining open and public processes to promote the awareness of the Code , education about its application, and access to its processes. However, there are exceptions to an open process where strong grounds for limiting publication of personal information exist: A v. University and Dr. B and C and D and E , 2014 BCHRT 235, at para. 5. In this case, I am persuaded that public knowledge of the parties’ names, when the decision must identify the Worker’s mental disabilities could negatively affect his employment prospects and possibly stigmatize him within the community where he resides. These are compelling grounds for limiting publication for the purposes of preliminary decisions on this complaint.
III BACKGROUND
[6] The Worker is bi-polar. He is a long-term employee of the City.
[7] The Worker’s allegations date back many years to 2003. To determine whether a continuing contravention of the Code exists, it will be necessary for me to set out these allegations in some detail below.
[8] In 2003, the Worker alleges that he suffered a mental breakdown while working as a network analyst for the City. At that time, he reports being diagnosed as bi-polar and having an obsessive-compulsive personality disorder. The Worker alleges that he lost three months of salary and was inappropriately placed on light duties for several years until 2007. He says that the light duties placement occurred for reasons related to a faulty opinion by the mental health professional who assessed him at that time. The Worker alleges he suffered the indignity of having to explain his situation to hundreds of City staff during this period and says he was in constant fear of being terminated from his job. At one point, The Worker alleges a management person working in his area called him a “paranoid schizophrenic” in front of others.
[9] In 2007, the Worker alleges that he suffered a second mental breakdown and lost another three months salary. He says the interruption receiving wages forced him to sell his home. The Worker alleges that the City prematurely filled his position thinking he would not return, but when he did this created a lack of work in the department that caused issues amongst the staff.
[10] In 2013, The Worker alleges he applied for a job reclassification to become a senior network analyst. He claims approval was delayed for months due to misperceptions about his mental disability disqualifying him from a promotion. It appears that the Worker further alleges around this time that various conclusions were being made about his lack of competence in preventing cyber attacks due to misperceptions about his mental disability.
[11] Some time after 2016, the Worker alleges staff and contractors working in his department were told that they could ignore him. In addition, he alleges that misinformation was spread to these colleagues suggesting that he did not know what he was doing in relation to the use of fiber optics.
[12] In 2020, the Worker alleges losing several months of salary due to an episode of excessive alcohol consumption. He alleges reporting human rights violations to his union but says they did not bring them to the City’s attention and no complaint to the Tribunal was initiated.
[13] Some time after being off in 2020, the Worker alleges another employee put up photos of beer as their virtual background, despite knowing about his problem with alcohol.
[14] Some time after being off in 2020, the Worker alleges the City would not reclassify his position due to his perceived mental illness.
[15] In November 2021, the Worker alleges a psychologist wrote a report indicating he was unfit to return to the position of network analyst for reasons related to his mental disabilities. The Worker alleges this opinion was unreliable because the psychologist was unaware of the nature of his work and relied on information from a single session the Worker had with a psychiatrist. The Worker alleges the psychologist’s negative opinion about his fitness to work was kept from him by the Manager. Without knowing about this information being relied on by the City, the Worker alleges that he unsuccessfully applied for three different jobs with the City in the months leading up to him filing the April 2022 complaint form.
[16] In April 2022, The Worker alleges he met with the City and the Manager to discuss possible positions. He alleges the Respondents failed to consider the option of training staff in his former department about how to integrate him. Instead, he alleges being offered either a janitorial or roadside litter collection position. The Worker alleges the Respondents inappropriately decided he was a security risk in his systems analyst position and were attempting to post him into other positions that were demeaning. He claims that his abilities, such as his instances of visual pareidolia, were mistaken for being disabilities.
[17] At a second meeting with the Respondents in April 2022, after the Worker filed his first complaint form with the Tribunal, he says an agreement was reached for him to attend an independent medical examination to determine his fitness to return to work. However, he alleges that further assessment was withdrawn after the union agreed to place him in a lower paid position as a litter collector.
[18] On April 30, 2022, the Worker alleges the Manager accelerated his demotion to the litter collection position in retaliation for him filing a complaint with the Tribunal on April 11, 2022.
IV ANALYSIS AND DECISION
[19] Section 22 of the Code provides:
(1) A complaint must be filed within one year of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within one year of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that:
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
[20] 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
[21] The Complaint was filed on April 11, 2022. 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 April 11, 2021.
[22] After reviewing the Complaint information, I am satisfied the Worker has set out timely allegations with respect to being denied positions with City during the period after the November 2021 psychologist’s opinion indicated he was unfit to return to a network analyst position. I am further satisfied that his timely allegations continue with the Respondents’ decision to place him in an unsuitable litter collection position, and to do so rapidly in retaliation for him filing a complaint with the Tribunal.
[23] However, there are multiple out of time allegations dating back to 2003, 2007, 2013, and 2020 in this Complaint. Given my conclusions below regarding these allegations not being part of a continuing contravention and my decision not to allow them to proceed in the public interest, I did not find it necessary to provide any in-depth analysis as to why each allegation is an arguable contravention of the Code .
[24] I now turn to the question of whether the 2003 to 2020 allegations form part of a continuing contravention of the Code . 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.
[25] 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.
[26] I have first considered whether the timely allegations from November 2021 to April 2022 are of the same character as the other allegations of discrimination from 2003 to 2022. In my view, the allegations are all a similar nature in that the Worker is alleging poor treatment at work for reasons related to his mental disability. While appreciating some of the allegations are related to a lack of promotion and others are related to inappropriate placements, in my view they all have to do with the level of work the City was prepared to provide him, which was negatively affected by his mental disabilities. As such, I find all the allegations are of a similar nature for the purposes of s. 22(2) of the Code .
[27] The more difficult question in this case related to a finding of a continuing contravention is whether a succession of allegations exists. It is necessary to look at whether any gaps exist between the allegations of discrimination and, if gaps are found, whether they can be explained. The Worker argues that there were multiple instances of linked events going back more than twenty years. He believes all these allegations should be brought in with the timely allegations as part of a continuing contravention of the Code . The Worker claims the Respondents’ negative treatment of him over the years was an accumulation of prior events.
[28] While appreciating the Worker’s view that the Respondents had an ongoing negative view of him shaped by their misperceptions of his mental abilities accumulating over many years, my review of the allegations indicates the existence of significant gaps between them that are not explainable. First, a gap of several years exists between the 2003 inappropriate light duties placement and the 2007 premature filling of his job. Second, there is a multiple year gap between the Worker’s 2007 allegations and his 2013 allegations involving seeking a job reclassification. Third, there is a multiple year gap between the 2013 allegations and the after 2016 allegations about being ignored by colleagues. Fourth, a multiple year gap occurred between the after 2016 allegations and the 2020 allegations where City failed to reclassify his position for reasons related to his mental disability. Finally, there is approximately one year between the 2020 allegations and the November 2021 allegations concerning him being unfit to work in his prior position. In my view, the numerous gaps between allegations over the course of approximately two decades fails to indicate a succession of allegations occurred for the purposes of s. 22(2) of the Code . Further, the Worker has not provided any significant explanation as to why these significant gaps between the allegations occurred. In the end, I find no continuing contravention exists in this case as the gaps between the allegations, where no explanation for them was provided, are too lengthy to indicate a succession of allegations necessary to form a continuing contravention of the Code .
[29] I find the Worker’s complaint allegations from 2003 to 2020 are not a continuing contravention of the Code . As such, these allegations were late filed and I now proceed to an analysis of whether the Tribunal should exercise its discretion to accept them 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
[30] Whether it is in the public interest to accept late-filed allegations from 2003 to 2020 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.
[31] I have first considered the length of delay in filing. As noted above, the latest out of time allegation in this case occurred in 2003 and the earliest was 2020. As such, the late allegations range from approximately 18 years late to over one year late, which 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 at para. 13.
[32] The Worker provided several reasons for his delay in filing. First, he reports not understanding the process without providing much else in support of this reason. 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, the evidence indicates the Worker was capable of pursuing other avenues of redress in relation to issues he faced at work, including the union grievance process, a WorkSafeBC claim and a complaint to the College of Psychologists of BC. The Worker has also not indicated any lengthy period of disability from filing a complaint apart from noting three multiple month absences from work in the past 18 years. In my view, there is nothing in this case that takes the Worker’s situation out of the generally accepted principle that ignorance of the Code , or the time required to become aware of one’s rights, is not an acceptable reason for late filing.
[33] Second, the Worker states he late filed the Complaint as he thought others had filed on his behalf. Once again, he has not provided any clear details related to this reason for late filing. In response to the notion that the Worker’s union should have filed a complaint on his behalf, he appears to acknowledge that it was not the union’s role to do so. As such, the Worker states that he was withdrawing this argument.
[34] Third, the Worker appears to list delays in other processes he was pursuing at WorkSafeBC and the College of Psychologists of BC as a reason for allowing his late filed complaint to proceed. While appreciating the Worker may have embarked on other avenues of redress related to the City’s placement of him in a lower paying position outside his areas of expertise, the Tribunal has repeatedly said that pursuing another process does not suspend the time limit under the Code and that exhausting internal avenues and resources is not sufficient, on its own, to relieve against the time limit: Sones v. District of Squamish , 2016 BCHRT 99, at para. 44 and Devitt and Hargrove obo others v. School District No. 43 and another , 2011 BCHRT 218, paras. 20-21. In this case, the Worker demonstrated that he could initiate other actions to resolve his workplace issues, and he has not provided any compelling reason for him thinking he needed to wait before filing a complaint with the Tribunal.
[35] 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.
[36] As noted above, the Worker’s complaint is proceeding for the timely allegations from November 2021 onwards. In this sense, he will be provided an opportunity to receive justice in this matter. I appreciate that the Worker believes that for his complaint to be fully heard, the Tribunal should allow all the allegations from 2003 onwards to be considered. This is because he feels that negative attitudes regarding his mental capabilities were formed long ago and drove the Respondents’ responses in later events.
[37] In the circumstances of this case, however, I am not persuaded by the argument that the nature of the Worker’s human rights complaint is strong enough to tip the balance in favour of accepting the out of time portions of the Complaint in the public interest. The Tribunal routinely addresses complaints involving mental disability under s. 13 of the Code . In this case, the Worker has provided no additional information, and there is nothing in the materials to suggest, that there is anything particularly unique, novel, or unusual about this complaint that has not already been addressed in other complaints before the Tribunal or that will fill a gap in the Tribunal’s jurisprudence.
V CONCLUSION
[38] For these reasons, the Complaint will proceed for timely allegations from November 2021 to April 2022 pursuant to Code s. 22(1). However, the Complaint is not a continuing contravention of the Code s.22(2), and it is not in the public interest to accept the late filed complaint allegations from 2003 to 2020 for filing under Code s. 22(3).
Steven Adamson
Tribunal Member