The Worker v. Provincial Health Services Authority, 2025 BCHRT 36
Date Issued: February 20, 2025 File: CS-010395
Indexed as: The Worker v. Provincial Health Services Authority, 2025 BCHRT 36
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:
Provincial Health Services Authority
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
Counsel for the Complainant: Amrita Gill
Counsel for the Respondents: Karen Orr and Annie E. Olson
I Introduction
[1] On September 12, 2023, the Worker filed a complaint against her former employer, the Provincial Health Services Authority [ PHSA ] based on physical disability contrary to s. 13 of the Human Rights Code [ Code ].
[2] The issue before me is whether it is in the public interest to accept the late-filed Complaint under s. 22(3) of the Code . I make no findings of fact regarding the merits of this complaint.
[3] For the reasons that follow, I do not find that it is in the public interest to allow the late-filed Complaint to proceed under Code s. 22(3).
II Order limiting publication
[4] In rendering this decision, it is necessary to discuss the Worker’s physical disabilities in some detail as it relates to her ability to file the complaint in a timely manner. As such, I have decided to order a limitation on the publication of the Worker’s name to protect her 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 in order 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 Worker’s name, when the decision must identify her physical disabilities and related treatment, may have a negative effect on her livelihood and could possibly stigmatize her within her profession and the community where she lives. This is a compelling ground for limiting publication for the purposes of preliminary decisions on this complaint.
III Background
[6] The Worker was a long-term PHSA employee.
[7] From September 2021 to January 2022, the Worker was on a medical leave after undergoing a hysterectomy. While the anticipated recovery was six weeks, her treating physician advised her to take three months of rest from working as a result of complications following the procedure.
[8] The Worker also has Crohn’s disease and was taking a prescribed medication to manage this illness in 2021. She reports the disease was in remission during this time.
[9] In September 2021, the PHSA announced that all its employees working in the health sector were required to be vaccinated against COVID-19.
[10] The Worker alleges the PHSA contacted her on her medical leave to advise her of the vaccination requirement. She says that she told the PHSA that her doctor advised against receiving the COVID-19 vaccination because of the medication she was taking to manage her Crohn’s disease.
[11] On December 31, 2021, the Worker alleges the PHSA placed her on unpaid leave for failing to receive the COVID-19 vaccination. She alleges this decision occurred without the PHSA considering her doctor’s opinion that she should be exempted because of her Crohn’s disease medication use.
[12] On January 17, 2022, the Worker alleges being informed by the PHSA that her employment was terminated because she had not been vaccinated against COVID-19. She alleges not receiving any severance or other payments in lieu of notice, despite having almost two decades of service.
[13] In January 2022, the Worker secured a new job with a different employer working long hours in a remote location [the new job ]. No longer able to afford the Crohn’s disease management drug, she discontinued it and went on another drug she could afford. This resulted in her experiencing some increased pain symptoms related to her Crohn’s disease.
[14] In April 2023, the Worker alleges going off work at her new job for reasons related to other Crohn’s disease symptoms. She says she has since applied for short-term disability and long-term disability benefits from her new position.
IV ANALYSIS AND DECISION
[15] Section 22 of the Code provides that a complaint must be filed within one year of the alleged contravention. If filed after this time limit expires, the Tribunal can accept the complaint if it is in the public interest to do so and no substantial prejudice will result to any person because of the delay.
[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.
[17] The complaint was filed on September 12, 2023. 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 September 12, 2022.
[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 the delay in this case. The evidence indicates the latest allegation occurred on January 17, 2022, when the Worker was terminated from her job at the PHSA. As such, the Complaint is almost eight months late, which is significant and weighs heavily against accepting the complaint: A v. X. and others , 2013 BCHRT 46 at para. 32.
[20] The Worker provided several reasons for her delay in filing. First, she notes that she filed a grievance with the assistance of her union in early 2022. However, the union representative informed her that other healthcare workers had failed in similar grievances at the arbitration stage of their proceedings. In a call with the union representative, the Worker states that she agreed to drop the grievance based on the union’s negative assessment of her prospects of success. The Worker admits that she was unaware of the Tribunal’s process and did not know she could pursue it on her own with a lawyer of her choosing. She appears to argue that the union representative should have told her about the possibility of accessing the Tribunal’s process as an alternative to her filing a grievance.
[21] While appreciating the Worker’s honesty as to why she late filed the complaint, 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. The Worker appears to argue that her case should not be included within this general rule because she was involved with a union representative, who failed to apprise her of the opportunity to file a complaint with the Tribunal separate from the grievance process. I respectfully disagree with the Worker that her involvement with her union is sufficient to provide a further explanation as to why her lack of awareness attracts the public interest in allowing the late-filed complaint to proceed.
[22] The Worker does not claim that the union held itself out as the only avenue for redress related to her termination by the PHSA. Further, the Worker has not indicated that the union somehow led her to believe that it would tell her about every avenue open to her to challenge the PHSA’s decision to fire her for not receiving the COVID-19 vaccination. In this case, the evidence indicates that the union appropriately focused its advice on the merits of the Worker’s termination grievance. When this advice indicated her chances of success in the grievance were not favourable, the Worker made the decision to no longer pursue the grievance. This is also not a case involving a complainant clearly unable to explore her rights on her own or seek assistance to do so from others. Silence on the part of the union about the existence of an external avenue for redress regarding allegations of discrimination does not in my view take this case outside the general rule that ignorance of the Code is not an acceptable reason for a delay in filing.
[23] The Worker also appears to attribute some of her delay to her disabilities. First, I note her evidence that she experienced some delay in filing her grievance at the start of 2022 for reasons related to recovering from her hysterectomy. It is significant, however, to note that the Worker states she nonetheless did not miss the deadline for filing her grievance despite her disability. The Worker also alleges disability related to her Crohn’s disease for the period after April 2023. Prior to that she reports increased pain associated with her Crohn’s disease while working throughout 2022 and up to April 2023.
[24] 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 v. Providence Health Care and another , 2014 BCHRT 170, at para. 21.
[25] Without doubting the existence of the Worker’s post hysterectomy disability in early 2022 and her Crohn’s disease disability throughout 2022 and 2023, there is a lack of evidence indicating that her disabilities precluded her from filing sufficiently to attract the public interest. As noted above, the Worker was able to file a grievance in mid January 2022, despite her post hysterectomy symptoms. Further, the Worker states that she went to work full-time in a new job as of mid January 2022 and continued working there until going off for a Crohn’s disease related disability in April 2023. For much of the period of delay in question, therefore, the Worker’s disabilities do not appear to have precluded her from filing in any significant way. I appreciate the Worker was disabled from working in her new job with the new employer as of April 2023, however, she demonstrated her ability to contact and retain a lawyer after being laid off in what appears to have been an effort to protect her interests with respect to the new job. In my view, this indicates the Worker’s ability to similarly initiate a complaint with the Tribunal if she had decided to focus on pursuing a complaint with the Tribunal.
[26] The Worker also states her delay in filing can be attributed to the demands of the new job which she took in a new field in a remote location. She reports working twelve hour shifts six or seven days a week in the new job starting January 2022. The Worker also reports that her free time apart from work was taken up by helping care for her father who was diagnosed with Alzheimer’s. While appreciating how much of the Worker’s time was taken up with the new job and the demands placed on her in caring for a parent with Alzheimer’s, I am not convinced these demands precluded her from filing a complaint sufficient to attract the public interest. The Worker must have had some time away from her job in the many months she worked in the new position. In addition, I find it difficult to conclude that the Worker did not have any time to file a complaint as not all of her time off work could have been taken up with caring for her father. In reaching this conclusion, I have no doubt the Worker faced significant time management challenges during the relevant period in question, however, I am not convinced that she was precluded from finding the time to file a complaint if she had decided to do so.
[27] 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.
[28] The Worker argues her case is unique as it involves the wide application of the COVID-19 vaccination mandate during a global pandemic. She believes her case should be heard, despite the delay in filing, because of the significant power imbalance that existed between her and the PHSA. She argues this power imbalance was only exacerbated by the pandemic. The Worker is seeking justice for the dramatic repercussions she suffered for not being able to receive a vaccination.
[29] While appreciating the seriousness of the Worker’s allegations and the uniqueness of the COVID-19 pandemic events, I am not convinced that this case includes a sufficiently novel issue to attract the public interest in allowing the late-filed complaint to proceed. The Tribunal is currently in the process of hearing numerous cases involving termination of employment for reasons related to a worker not receiving the mandatory COVID-19 vaccination. As such, I am confident this issue will be fully canvassed by the Tribunal in the coming months and years.
[30] Considering all the circumstances, I am not persuaded that it is in the public interest to accept the late-filed complaint. Given this conclusion, it is not necessary to address the issue of whether there would be any substantial prejudice.
V Conclusion
[31] For these reasons, the Complaint is not accepted for filing as it is not in the public interest to allow it to proceed late filed: s. 22(3) of the Code .
Steven Adamson
Tribunal Member