BC Human Rights Tribunal

Allan v. Columbus Charities Association and others, 2025 BCHRT 38

Date Issued: February 20, 2025
File: CS-001962

Indexed as: Allan v. Columbus Charities Association and others, 2025 BCHRT 38

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:

Patricia Allan
COMPLAINANT

AND:

Columbus Charities Association and Piotr Budzynski and Florence Berglund
RESPONDENTS

REASONS FOR DECISION
APPLICATION TO STAY A COMPLAINT

Tribunal Member: Devyn Cousineau

On their own behalf: Patricia Allan

Counsel for Columbus Charities Assn and Florence Berglund: Megan MacNeil

I INTRODUCTION

[1] This is a decision about whether to end Patricia Allan’s human rights complaint because of the Human Rights Tribunal’s delay in giving the Respondents notice of the complaint.

[2] Ms. Allan was a tenant at Columbus Manor, a building that provides affordable senior housing. Columbus Housing is owned and operated by the respondent Columbus Charities Association [the Association ]. At the material time, the respondent Florence Berglund was the manager of Columbus Manor. The respondent Piotr Budzynski was the building’s superintendent. On December 31, 2019, the Association served Ms. Allan with a notice to end her tenancy. Ms. Allan disputed the eviction at the Residential Tenancy Branch, but later vacated her unit around July 2020, after the Branch awarded the Association an Order of Possession.

[3] Ms. Allan filed her human rights complaint on June 11, 2020, and amended it to add the Association on December 4, 2020. She alleges that, during her tenancy, the Respondents harassed her, entered her apartment illegally, alienated her from other tenants, tampered with important documents, lied to the Residential Tenancy Branch, and illegally evicted her during the COVID-19 pandemic. She alleges that this was discrimination against her based on her mental disability, in violation of s. 10 of the Human Rights Code. [1]

[4] Due to systemic institutional delays, the Tribunal did not give the Respondents notice of the complaint until four years later – on June 26, 2024. The Association and Florence Berglund [together, Respondents ] argue that this delay has compromised the fairness of the proceeding and amounts to an abuse of process. They ask the Tribunal to stay the complaint.

[5] I agree that a four-year 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.

[6] 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.

[7] Finally, I note that the Tribunal has not been able to give notice of the complaint to Piotr Budzynski. It has asked Ms. Allan to provide an address for service, and she has not done so. The Tribunal is unable to give Mr. Budzynski notice of the complaint against him, and therefore the complaint against him cannot proceed.

II Decision

[8] 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: Hitch v. Nanaimo (Regional District) and others, 2025 BCHRT 11 at para. 7.

[9] The Tribunal has a duty to act fairly. Where the Tribunal cannot provide a fair process because of delay, it has the power to stay a complaint to prevent an abuse of process: Law Society of Saskatchewan v. Abrametz , 2022 SCC 29 [ Abrametz ] at paras. 33 and 38.

[10] 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.

[11] 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.

[12] 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; Chow v. Save-On-Foods, 2024 BCHRT 95 at para. 33. The Respondents argue that both circumstances apply here. I consider each in turn.

A. Has the delay compromised hearing fairness?

[13] 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.

[14] The Respondents argue that the delay in giving them notice of the complaint has compromised the fairness of the hearing. The allegations in the complaint concern events during Ms. Allan’s tenancy between July 2019 and July 2020. Ms. Berglund was the manager of Columbus Manor during the material time and was involved in some of the events of the complaint. However, she retired in 2021 and is now 84 years old. She says that she recalls keeping a record of issues that arose through Ms. Allan’s tenancy, but she does not have those record books anymore and does not know where they are. The current President of the Association, who has never met Ms. Allan and was not involved in her tenancy, says that the current manager has been unable to locate Ms. Berglund’s record books. The Respondents argue that memories have faded, and essential witnesses including Mr. Budzynski have not been located. They say that the Tribunal’s delay has “deprived them of being able to gather reliable testimony and relevant records required to defend the Complaint”.

[15] I accept that the Respondents have been prejudiced by the delay, including because it appears they may have lost the opportunity to collect and preserve important records. However, I am not persuaded, at this stage, that the Tribunal cannot provide the parties with a fair hearing. The complaint is at an early stage. The Respondents have filed their response, but the parties have not yet exchanged disclosure. It appears, from the Response Form, that there are still some relevant documents available from the proceedings before the Residential Tenancy Branch. The evidence before me does not support that the Respondents have exhausted efforts to locate and talk to witnesses, including Mr. Budzynski. 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.

[16] The Respondents rely on cases where the Tribunal has declined to accept late-filed complaints on the basis that it is “reasonable to infer that memories of events which gave rise to complaints or concerns of discrimination may have faded and created prejudice”: Muir v. London Drugs, 2014 BCHRT 101 at para. 23; Morey v. Fraser Health Authority, 2004 BCHRT 224: para. 28.

[17] I accept that memories have likely faded, and that may create prejudice. However, this alone is not evidence that hearing fairness has been compromised. In Muir and Morey, the Tribunal was considering whether to exercise its discretion to accept a late-filed complaint under s. 22(3) on the bases that (a) it is in the public interest, and (b) no substantial prejudice will result to any person because of the delay in filing. In Muir, the Tribunal considered prejudice as one of several factors weighing against accepting the complaint late. It found it was reasonable to infer that memories “may have faded and created prejudice”: para. 23. In Morey, the complainant made no submissions under s. 22(3) and did not address the issue of prejudice at all. In the absence of any submissions from the complainant, the Tribunal inferred prejudice from prospect of fading memories and difficulty locating witnesses: para. 28. In neither case did the Tribunal find that the hearing could not proceed fairly because of an inference of faded memories. That was not the issue before them.

[18] In fact, the Tribunal has held that an inference of faded memories is not enough to conclude that the Tribunal cannot provide a fair hearing: 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]

In light of these principles, it is not open to me to infer the hearing will be unfair simply because of the passage of time.

[19] The Respondents argue that purposes underlying the time limit in s. 22 of the Code apply here. They cite the well-established principle that “the limitation period contained in s. 22 is a substantive provision which is intended to ensure that complainants pursue their human rights remedies with some speed and to allow respondents the comfort of performing their activities without the possibility of dated complaints”: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12. They argue that “[t]his objective ought to be reflected in the Tribunal’s screening process in order to avoid respondents being put in the difficult and unfair position of defending dated complaints”.

[20] I agree with this principle and the important purpose of the time limit in s. 22. As I will explain further below, I also agree that a four-year delay in giving notice of a complaint is inordinate and undermines the objectives articulated in Chartier . However, that is not the issue. The issue is whether the Tribunal’s delay has compromised the fairness of the hearing. At this early stage, I am not persuaded that it has.

[21] In any event, I observe that the Code does contemplate and allow complaints to proceed where respondents receive notice of allegations years after they occurred. Under s. 22(2), 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 short, s. 22 of the Code does not assume that hearing fairness is compromised simply by the passage of time.

[22] At this stage, 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. It is open to the Respondents to raise the issue again later in the Tribunal’s process, after they have exhausted efforts to locate witnesses and relevant records.

[23] I turn now to the second type of prejudice at issue.

B. Has inordinate delay caused significant prejudice?

[24] 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?

[25] 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.

[26] This is a human rights complaint. The aim of human rights legislation is to “identify and eliminate discrimination”: Robichaud v. Canada (Treasury Board) , [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.

[27] As an administrative decision maker, the Human Rights Tribunal has an important role to “render decisions promptly, flexibly and efficiently”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 29; Chow at para. 48. Delay in resolving a human rights complaint 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.

[28] In this case, I am considering a four-year delay between Ms. Allan 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 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.

[29] Rather, the delay in this case was caused by unprecedented case volumes and insufficient resources at the Tribunal, especially during the COVID-19 pandemic. All complaints were affected, to some extent, by delay. 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. I reviewed this context in Hitch at paras. 31-32.

[30] As in Hitch, 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: Nulla Bona Holdings Ltd. v. Britihs Columbia Human Rights Commission et al, 2000 BCSC 502 at para. 22. Tribunals, in turn, are obliged to use those resources effectively to ensure the integrity of their process: Abrametz at para. 64. The four-year delay to give notice of Ms. Allan’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.

[31] 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

[32] 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.

[33] The Respondents acknowledge that the examples of prejudice identified in Abrametz do not apply here. Rather, they say the prejudice here is that they are now required “to defend a complaint about alleged events that occurred from July 2019 to July 2020, without having any idea that a human rights complaint had been filed against them until June 2024”. They rely again on their arguments that memories have faded and relevant records have been lost.

[34] I have addressed these arguments above. Accepting that the delay likely did prejudice the Respondents to some extent, I am not persuaded at this stage that the prejudice is so significant as to give rise to an abuse of process. As I have said, it may be remedied as documents are disclosed, witnesses are located, and memories are refreshed. The complaint could be expedited or dismissed.

[35] The Respondents’ objection here is a fair one. A four-year delay in giving notice of a complaint is inordinate and entirely inconsistent with the just and timely resolution of a human rights complaint. However, more is required to establish significant prejudice, and I am not persuaded that the Respondents have met their burden here.

[36] 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. Allan’s complaint will proceed.

III CONCLUSION

[37] I accept that the delay in giving notice of Ms. Allan’s complaint was inordinate, but I am not persuaded at this stage that it has compromised hearing fairness or amounts to an abuse of process. I deny the application to stay this human rights complaint. It is open to the Respondents to raise the issue again later in the Tribunal’s process, after they have exhausted efforts to locate witnesses and relevant records. In the meantime, the Tribunal’s process will continue.

Devyn Cousineau

Vice Chair