BC Human Rights Tribunal

Gao v. BC Hydro and others, 2025 BCHRT 40

Date Issued: February 21, 2025
File(s): CS-006820

Indexed as: Gao v. BC Hydro and others, 2025 BCHRT 40

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:

Chang Hong Gao
COMPLAINANT

AND:

BC Hydro and Jovan Ceklic and David Olan
RESPONDENTS

REASONS FOR DECISION
APPLICATIONS TO AMEND A COMPLAINT, FAST-TRACK AND SURREPLY
Section 22 and Rules 17, 24, and 28

Tribunal Member: Amber Prince

On their own behalf: Chang Hong Gao

Counsel for the Respondent: Graeme McFarlane

I INTRODUCTION

[1] Ms. Gao was an engineer at BC Hydro. After BC Hydro terminated her employment on or about November 24, 2021, she filed a complaint against BC Hydro and two of their managers, David Olan and Jovan Ceklic [ the Respondents ]. Ms. Gao alleges that her age and gender as a woman were factors in the termination, in violation of s. 13 of the Human Rights Code .

[2] The issues before me are whether to allow Ms. Gao’s applications to amend and fast-track her complaint. The Respondents oppose Ms. Gao’s applications and seek to make a sur-reply on her application to amend her complaint. I make no findings about the merits of Ms. Gao’s complaint.

[3] I have decided to allow Ms. Gao’s amendment to her complaint. In doing so, it was not necessary for me to consider the Respondents’ sur-reply. While I am allowing Ms. Gao’s amendment, I do not see a basis to fast-track her complaint.

II BACKGROUND

[4] Ms. Gao filed her complaint on May 10, 2022, alleging that:

· On November 1, 2021, a young woman was hired as her Team Lead.

· On November 23 or 24, 2021, she was terminated without cause and despite good work performance.

· In April, 2022, a young man was hired to replace her.

[5] Therefore, the timeframe of Ms. Gao’s complaint allegations is two events in November 2021, and one event in April, 2022.

[6] On October 12, 2023, the Tribunal issued a notice of complaint proceeding to the parties. The notice confirmed that the complaint would proceed in the area of employment based on the grounds of sex and age: Code , s. 13.

[7] The Respondents filed their response to the complaint on December 7, 2023. Within their response, they also applied to defer the complaint. The Respondents applied to defer Ms. Gao’s human rights complaint, pending the outcome on two other complaints she filed, related to her employment at BC Hydro: a WorkSafeBC prohibited action complaint [ PAC Complaint ], and an Engineers and Geoscientists of BC complaint [ EGBC Complaint ].

[8] Ms. Gao opposed the deferral. On March 1, 2024, she filed an amendment to her complaint. On May 14, 2024, she applied to fast-track her complaint.

[9] On June 4, 2024, in a letter decision, I granted the deferral application pending an outcome on the PAC Complaint. In that decision, I said I would address Ms. Gao’s amendment and fast-track application when the deferral expired.

[10] On August 8, 2024, the Tribunal confirmed that the deferral expired because WorkSafeBC made a decision on the PAC Complaint. The Tribunal then set down a submission schedule on Ms. Gao’s amendment and fast-track application. The parties filed their submissions, and the Respondents have applied to make a sur-reply on Ms. Gao’s amendment application. I will now address these applications in turn.

III DECISION

A. Sur-Reply

[11] With respect to Ms. Gao’s amendment, the Respondents have applied to make a sur-reply, also called a further submission: Rule 28(5), Tribunal’s Rules of Practice and Procedure [ Rules ]. When the Tribunal sets a submission schedule on an application, the application process involves three rounds: the application itself, the other party’s response to the application, and the applicant’s reply to the response: Harvey v. ROV Consulting Inc. , 2022 BCHRT 65, para. 77.

[12] In some cases, an applicant’s reply is unnecessary, because nothing new has been raised in the other party’s application response that needs further comment.

[13] In other cases, the applicant files a reply, and the other party argues that they need to be able to make a further submission about that reply: Rule 28(5). This further reply is also called a sur-reply. The Tribunal will only allow a sur-reply if a party raises a new issue in their reply, and it would be unfair if the other party did not have a chance to address that new issue: Tuson v. The Board of Education of School District No. 5 (No. 4) , 2020 BCHRT 195, para. 24; Jorgensen v. Strata Plan No. 1144 , 2020 BCHRT 142, para. 6. If the Tribunal permitted sur-replies for other reasons, it would get bogged down in an endless sea of submissions: Alexander v. District of Saanich and another , 2019 BCHRT 82, para. 15.

[14] In this case, the Respondents apply to file a sur-reply primarily on the basis that Ms. Gao’s reply contained new medical information not raised or detailed in her complaint or amendment. The Respondents also say that aspects of Ms. Gao’s reply are not in reply to their response: sur-reply, para. 10. The Respondents ask me to disregard Ms. Gao’s entire reply as improper, but in particular her medical information: sur-reply, para. 22.

[15] I have decided not to allow the Respondents’ application to file a sur-reply for four reasons. First, I do not agree that Ms. Gao’s reply is unresponsive to their response. Some aspects of Ms. Gao’s reply are properly responsive to arguments made in the application response. For example, she addresses, in her reply, the Respondents’ response argument that there are large unexplained gaps in between her amendment allegations: application response, paras 27-28; reply, paras. 2, 20-21. Those aspects of Ms. Gao’s reply are proper and raise no basis for a sur-reply.

[16] Second, to the extent that Ms. Gao reiterates arguments she already made in her amendment application, I can simply disregard those aspects of her reply rather than parse them: Paige v. HUB International and another , 2010 BCHRT 243, para. 6; Preston v. TRIUMF and others , 2009 BCHRT 388, para. 53. The Respondents do not need an opportunity to sur-reply on aspects of a reply that I am disregarding.

[17] Third, I do not agree with the Respondents that the medical information Ms. Gao provided in her reply was new information. It appears she raised this information in her reply to explain the timing of her amendment allegations. She gave this explanation to address the Respondents’ argument that her amendment allegations were late, and that her explanation for any delay, including mental distress, was inadequate: application response, para. 35. Ms. Gao’s medical information was in furtherance of her explanation for the timing of her amendment, and in direct response to the Respondents’ arguments. There is no unfairness to the Respondents. They put the adequacy of Ms. Gao’s explanation for the timing of her amendment allegations into question in their response. Ms. Gao properly addressed that in reply.

[18] Fourth, and in any event, it was not necessary for me to consider Ms. Gao’s explanation for any untimely allegations – including her medical information. This is because I have decided that her allegations are timely as a continuing contravention of the Code . In turn, it was not necessary to hear a sur-reply from the Respondents on this aspect of Ms. Gao’s reply. The Respondents do not need an opportunity to sur-reply on aspects of a reply that ultimately have no bearing on this decision.

[19] I now move on to consider Ms. Gao’s application to amend her complaint.

B. Ms. Gao’s application to amend her complaint

[20] Rule 24 governs amendments to complaints. Under Rule 24, I consider the following:

· Does the amendment add details to the allegations or make new allegations? A complainant may add details to their complaint allegations at any time: Rule 24(1).

· If the amendment makes new allegations, are they allegations of discrimination under the Code ?: Rule 24(3).

· If the amendment makes new allegations of discrimination, did those alleged events occur more than a year before the original complaint was filed? If so, the Tribunal must apply s. 22 of the Code to allegations, to determine if the new allegations are late-filed: Rule 24(4)(a). If the allegations are late-filed the Tribunal must apply the criteria to assess a late complaint under s. 22(3) of the Code .

· Finally, the Tribunal must consider the timing of the amendment in two circumstances. First, when there is an outstanding application to dismiss the complaint: Rule 24(4)(b). Second, when the hearing date is less than four months from the date the amendment is filed: Rule 24(4)(c).

[21] Next, I apply these considerations to Ms. Gao’s amendment.

1. Does the amendment add details to the allegations or make new allegations?

[22] In her complaint, Ms. Gao alleges that the Respondents terminated her employment despite her good work performance, hired a young woman as her Team Lead, and hired a young man to replace her.

[23] To the extent that Ms. Gao provides further information about these allegations in her amendment, I have decided these are details about her existing complaint allegations. She is permitted to add these details to her complaint: Rule 24(1).

[24] Next, I summarize the new allegations Ms. Gao makes in her amendment that were not set out in her complaint. I have gleaned 16 new allegations from Ms. Gao’s amendment and put them in chronological order below. Of the 16 allegations, three of them are also allegations of retaliation under s. 43 of the Code .

[25] Because Ms. Gao makes new allegations, I must consider if they are allegations of discrimination under the Code , and if so, whether they are timely: Rule 24(3) and (4)(a).

#	Conduct	Y/M/D
1.	Mr. Olan denied her requests to make factory and lab visits, while male engineers were approved for such visits in the same timeframe: Amendment, paras. 11 and p. 13.	2017 11 and 2017 12
2.	Mr. Olan unjustifiably gave her an expectation letter, which resulted in her having to attend meetings for 12 weeks: paras. 13 and p. 13.	2018 04 27
3.	Male engineers were given inspection work she was supposed to do: Amendment, para. 15.	2018 08
4.	Her request to do an inspection was only approved after 1.5 months and her intervention. Male engineers did not have these obstacles: para. 18.	2019 04 26
5.	She raised the discrimination to an Engineering General Manager. Her new Team Lead, GR, accused her of escalating issues and Mr. Olan gave her a lower performance evaluation in reprisal [ the first retaliation allegation ]: Amendment, para. 16. [1]	2019 05
6.	Mr. Olan and GR did not permit her to support an installation project. Her role was delegated to a commissioning engineer instead, without her input: para. 17.	2019 05 20
7.	Mr. Olan and GR delayed approving her request to conduct a failure investigation at a factory. It was only when Division Manager DC intervened that her request was approved: para. 18.	2019 06 06
8.	During a meeting, Mr. Olan denied her request to undertake a factory inspection for a project. Ms. Gao felt demeaned and humiliated to get the denial in a meeting in front of other project team members. Two male engineers went to two factories for the same project: para. 20 and p. 13.	2019 07 29
9.	Mr. Olan issued an unjustified Performance Improvement Plan [ PIP ] for her. He directed GR to have meetings with her for three months, and required Ms. Gao to write a report that could have been delegated to other male engineers. To complete the report, Ms. Gao had to work for free on the Labour Day holiday: paras. 22 and 24.	2019 08 02
10.	Ms. Gao wrote a letter to BC Hydro’s Ethics Officer to report the “discrimination, bullying and harassment.” However, there was no further investigation into these issues, so they continued: para. 25.	2019 09 26
11.	GR exaggerated and escalated a concern a male engineer raised with her, and which had since been resolved. GR unfairly characterized Ms. Gao as being disrespectful at work: para. 26.	2020 02 14
12.	Ms. Gao was not given a salary increase or promotion while other male engineers were: para. 27.	2020 05
13.	Mr. Olan proceeded with a more formal and unjustified PIP for Ms. Gao as retaliation for her September 26, 2019 complaint to the Ethics Officer [ the second retaliation allegation ]: paras. 28-30. As part of the PIP, Mr. Olan required her to have meetings with GR for another four months and provide mentorship on a project. Mr. Olan used Ms. Gao’s mentorship work to promote a male engineer. Ms. Gao’s PIP meetings were open on Mr. Olan’s calendar for all to see, which were stressful for her. Ms. Gao’s PIP process did not follow the usual process, was prolonged, and increased Ms. Gao’s workload. She was stressed and humiliated as a result: paras. 29-32.	2020 06 16
14.	Mr. Olan had Ms. Gao install unsuitable transformers, then relied on her installation as a further basis for the termination of her employment: paras. 39-40.	2020 10 01
15.	In July, 2021 Jovan Ceklic replaced DC as the acting Division Manager. On August 2, 2021, Ms. Gao told Mr. Ceklic that she had been mistreated, discriminated against and given unfair PIPs. She also told him about new equipment issues. After raising her concerns to Mr. Ceklic, her employment was terminated [ the third retaliation allegation ]: para. 45.	2021 08 02
16.	Ms. Gao’s acting team leader, MS unfairly critiqued her work related to a meter installation on September 14, 2021. Ms. Gao raised this issue with a “VP.” After Ms. Gao talked to a VP, Mr. Olan sent Ms. Gao her previous PIP. Ms. Gao understood this as Mr. Olan unjustifiably accusing her of serious performance problems because she raised an issue with a VP. She had a panic attack and took a sick day as a result: para. 46.	2021 09 16

[64] Next, I consider whether Ms. Gao’s new allegations are allegations of discrimination under the Code .

2. Are the new allegations discrimination under s. 13 or 43 of the Code?

[65] A complaint of discrimination must allege facts that, if proven, could violate the Code : Rule 12(2); Code , s. 27(1)(b). The Tribunal screens complaints, including amendments, to ensure that they set out arguable violations of the Code . At the screening stage, the threshold to show an arguable violation of the Code is low: Lesnikov v. Anglo American Exploration (Canada) Ltd ., 2024 BCHRT 245, para. 33.

[66] Ms. Gao makes new allegations of employment discrimination under s. 13 of the Code . She also makes new allegations of retaliation under s. 43 of the Code . I will address the new allegations in turn.

a. Ms. Gao’s allegations of employment discrimination

[67] To show employment discrimination under s. 13, a complainant must allege facts to show that they experienced an adverse impact in their employment, and one of their protected characteristics were a factor in the adverse impact: Lesnikov , para. 33.

[68] I am satisfied that Ms. Gao’s amendment alleges sex discrimination that, if proven, could violate s. 13 of the Code . In coming to this conclusion, I have considered the Respondents’ argument that the sixteenth event on September 16, 2021, does not allege an arguable connection between the event and Ms. Gao’s sex or age: amendment response, paras. 17-18.

[69] Viewing Ms. Gao’s amendment allegations together, she alleges a pattern of sex discrimination. She alleges that:

• the Respondents denied her opportunities, recognition, and advancement at work that male engineers were given;

• the Respondents subjected her to unwarranted obstacles, criticism, and discipline at work that male engineers were not;

• when she reported these issues within her workplace, the Respondents did not address them properly; and

• these events were stressful and humiliating for her and culminated in the termination of her employment.

[70] These are allegations that Ms. Gao was adversely impacted in her employment and that her gender was a factor in those impacts: Lesnikov , paras. 33-34. Though the connection between these events and age discrimination are not entirely clear, Ms. Gao has clearly alleged both sex and age discrimination in her complaint, and both grounds were accepted by the Tribunal.

[71] In her complaint she alleges that she was she discriminated against not only as a woman, but an older woman. The Tribunal takes an intersectional approach to multiple grounds of discrimination to account for a person’s distinct experiences, including any distinct forms of discrimination: Young Worker v. Heirloom and another , 2023 BCHRT 137, para. 49; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) , 2005 BCHRT 302, paras. 463-467.

[72] It is not Ms. Gao’s responsibility to articulate how precisely her protected characteristics intersect: Hale v. University of British Columbia Okanagan (No. 5) , 2023 BCHRT 121, para. 216. Putting this expectation on complainants is a tall order: Lord v Fraser Health Authority , 2021 BCSC 2176, para. 41. Instead, as discussed earlier, Ms. Gao is required to set out facts which could violate the Code on a low threshold. I have found that she has done so.

[73] Analyzing how protected characteristics may intersect is the Tribunal’s responsibility as part of its discrimination analysis: Hale , para. 216. Limiting Ms. Gao’s amendment allegations with respect to age may prematurely foreclose an appropriate finding of discrimination based on Ms. Gao’s intersecting grounds: Radek v. Henderson Development (Canada) Ltd. and others , 2003 BCHRT 67, paras. 48-55; Byelkova v Fraser Health Authority , 2021 BCSC 1312, para. 115; Brezinski v. City of Vancouver , 2020 BCHRT 148, paras. 80-81. For example, the Supreme Court of Canada has recognized that discrimination experienced by women is often amplified as women advance in age: Fraser v. Canada (Attorney General) , [2020] 3 SCR 113, para. 111, citing International Labour Organization, Rights, jobs and social security: New visions for older women and men , Geneva, 2008.

[74] Even if I could, it is not appropriate to parse Ms. Gao’s age from her identity as a woman, with respect to her amendment, especially in the face of her complaint allegations proceeding on both grounds: Brezinski , para. 81.

[75] I also do not see any efficiency gained by attempting to parse Ms. Gao’s age from amendment allegations, because the parties will need to address the allegations in any event: Fraser v. Tolko Industries Ltd. and others , 2021 BCHRT 118, para. 216; Ross v. Interfor Adams Lake Division , 2024 BCHRT 143, para. 50.

[76] For these reasons, I am satisfied that Ms. Gao’s new allegations, summarized above, are allegations of discrimination, and I decline to parse her age from those allegations.

b. Ms. Gao’s allegations of retaliation

[77] Ms. Gao makes three new allegations of retaliation under s. 43 of the Code . Section 43 of the Code is a unique type of discrimination under the Code . The criteria to show retaliation are different from other types of discrimination prohibited by Code : Dzafic v. Edmonds Place Housing Co-operative and others , 2018 BCHRT 142, para. 72.

[78] To prove retaliation, Ms. Gao would have to show (1) the Respondents were aware that she might make a complaint under the Code ; (2) the Respondents engaged in or threatened to engage in discriminatory conduct encompassed by s. 43 of the Code ; and (3) there is a sufficient connection between the two: The Sales Associate v. Aurora Biomed Inc. and others (No. 3) , 2021 BCHRT 5, paras. 150-166; The CFO v. The Organization (No. 3) , 2022 BCHRT 33, para. 9. I will address these criteria in turn.

[79] Ms. Gao alleges that on three occasions (in May 2019; on September 26, 2019; and on August 2, 2021) she reported to her employer that she was experiencing discrimination at work. In my view, these are allegations that, if proven, could establish that the Respondents were aware of Ms. Gao’s reports of discrimination, and that Ms. Gao might pursue legal recourse for discrimination. This is enough to meet the first criteria of retaliation: Sales Associate , para. 158; Cooper v. The Buck & Ear Bar & Grill and others , 2016 BCHRT 180, paras. 54-56.

[80] Second, Ms. Gao alleges that after each instance of reporting the discrimination, a respondent penalized her. After the May 2019 report, she alleges that Mr. Olan gave her a lower performance evaluation. After her September 26, 2019 report, she alleges that Mr. Olan unjustifiably required her to undergo a Performance Improvement Plan. Ms. Gao also alleges that the termination of her employment was not only discriminatory under s. 13 of the Code but was retaliatory. With respect to her allegation of retaliation, Ms. Gao says her employment was terminated after she reported discrimination to Mr. Ceklic.

[81] Giving a poor performance review, or terminating an employee’s employment, is conduct encompassed by s. 43: Cooper , para. 59. In either case it is conduct imposing penalty. The retaliatory conduct alleged by Ms. Gao meets the second criterion to show discrimination.

[82] Third, I have considered the connection between the Respondents’ alleged retaliatory conduct, and the prospect that Ms. Gao might make a complaint. Ms. Gao could prove this connection by showing the Respondents intended to retaliate, or there is a reasonable basis for the Tribunal to draw that conclusion: Sales Associate , para. 150. Given the facts Ms. Gao has alleged, she could prove that there is a reasonable basis to show that the Respondents retaliated against her because she might make a human rights complaint.

[83] For these reasons, and on a low screening threshold, I find that Ms. Gao has alleged enough facts which could prove retaliation under s. 43 of the Code .

[84] Next, I consider whether the new allegations of discrimination are timely as a continuing contravention of the Code.

3. Are the allegations of discrimination timely?

[85] The timeliness of amendment allegations is assessed based on the date the original complaint was filed, not the date the amendment was filed: Oostlander v. The Owners, Strata Plan LMS2891 and others , 2024 BCHRT 141, para. 34; Sun v. Vancouver City Savings Credit Union , 2024 BCHRT 9, para. 14 (reconsidered on other grounds); Ashton v. BC Ministry of Children and Family Development and another , 2017 BCHRT 202, para. 26. Ms. Gao filed her complaint on May 10, 2022. Any allegations that occurred more than one year before May 10, 2021, are untimely, unless they form part of a continuing contravention with a timely allegation.

[86] Two of Ms. Gao’s amendment allegations are timely because they occurred within a year of filing her complaint. These are the alleged events on August 2, 2021 and September 16, 2021. As I have said above, these two events are arguable violations of the Code . Given the timing of Ms. Gao’s amendment in the complaint process, there is no other basis to exclude these two allegations. Accordingly, I accept them as amendments to Ms. Gao’s complaint: Rule 24 (2) and (3).

[87] The other 14 events alleged in Ms. Gao’s amendment span from November 2017 to October 1, 2020. These events occurred more than a year before Ms. Gao filed her complaint. The 14 allegations are late-filed unless they are part of continuing contravention under s. 22(2) of the Code .

[88] To qualify as a continuing contravention, an untimely allegation of discrimination must be anchored by at least one timely allegation of discrimination: Code , s. 22(2). Without a timely allegation of discrimination, any other untimely allegations of discrimination are late-filed, and the Tribunal must assess them as such under s. 22(3) of the Code : School District v. Parent obo the Child , 2018 BCCA 136, paras. 43-44.

[89] But the continuing contravention analysis does not end there: Mohr v. Power Flagging & Traffic Control Inc. (Power Earth) and others, 2024 BCHRT 275, para. 42.

[90] A continuing contravention also requires either:

· allegations of repeated, discrete, discriminatory events, of a similar character and occurring with sufficient frequency; or

· an ongoing state of affairs, where discriminatory structures or conditions continue to exist over time:

Dove v. GVRD and others (No. 3) , 2006 BCHRT 374, paras. 17-19; School District v. Parent obo the Child , 2018 BCCA 136, paras. 68-70; Rush v. Fraser Health Authority (No. 2) , 2024 BCHRT 13, para. 60.

[91] In the case of repeated, discrete discriminatory events, significant and unexplained gaps between the events may weigh against a finding that the allegations form a continuing contravention: Dove , paras. 18-19; Tuson v. The Board of Education of School District No. 5 (No. 4) , 2020 BCHRT 195, paras. 146-147.

[92] Some complaints are a hybrid of both types of continuing contraventions: Kirchmeier obo others v. University of British Columbia , 2017 BCHRT 86, para. 57; Rush , para. 60.

[93] Accounting for these requirements, I conclude that Ms. Gao alleges a continuing contravention. She alleges both repeated instances of discrimination and ongoing discrimination, anchored by timely allegations. In arriving at this conclusion, I have considered the Respondents’ arguments that Ms. Gao’s allegations are dissimilar and did not occur with sufficient frequency. I will address these arguments in turn.

[94] First, I am satisfied that Ms. Gao’s allegations are similar and connected by a common thread: she was repeatedly subject to sex discrimination, she reported the discrimination, but her employer did not address it and penalized her instead. The Tribunal has said that allegations of this kind are of the same character, and I agree with that assessment: Webber v. Alcan Incorporated , 2004 BCHRT 52, para. 39; Moghaddam-Ghadimi v. 0704121 BC Ltd. dba Gandy HVAC and others , 2024 BCHRT 274, para. 28; Mohr , para. 43; Karageorgos v. Giardino Restaurant Ltd. , 2024 BCHRT 190, paras. 56-59.

[95] She alleges not just a repetition of discrete events, but an ongoing state of affairs, where the discriminatory conditions existed from November 2017 until her employment was terminated, and a young male engineer was hired in her stead. Her amendment allegations are anchored by her timely allegations that her employment was terminated because of discrimination based on sex and age; and retaliation.

[96] Second, the Respondents argue that there are significant and unexplained gaps between Ms. Gao’s allegations, and therefore the allegations did not occur with the “sufficient frequency” indicated in Dove .

[97] The shortest gap between Ms. Gao’s amendment allegations is four days – between July 29 and Aug 2, 2019. Most of the other gaps range from a month to five months. The longest gap between allegations is the ten-month gap between October 1, 2020 to August 2, 2021.

[98] Ms. Gao explains that during the gaps between her allegations she was following her employer’s policy to resolve issues internally to try to retain her job: amendment reply, para. 2. She also explained that the 10-month gap was due to an organizational change in September, 2020, when Mr. Olan changed roles and he seemed less focused on Ms. Gao’s situation: amendment reply, para. 21.

[99] Viewing Ms. Gao’s allegations as a whole, and in context, I am not convinced that a gap of days or several months is significant: Reynolds v. Overwaitea Food Group , 2013 BCHRT 67, para. 28. This is not a complaint of one set of discreet allegations, followed by another discrete set of allegations more than a year later: Low v. Registered Nurses’ Association of BC and another , 2004 BCHRT 70, para. 15. It is also not just about discrete discriminatory events – it is also about these discrete events together forming an ongoing pattern of sex discrimination: Karageorgos , para. 64.

[100] When a complainant alleges an ongoing pattern of discrimination, the Tribunal has questioned whether a lack of particularized allegations in between particularized allegations truly reflects a time period where discrimination is not alleged: Karageorgos , para. 64; Braun v. Avcorp Industries Inc ., 2023 BCHRT 167, para. 47. Put another way, is there truly a “significant gap” or a gap at all between allegations if the discrimination is ongoing?

[101] In any event, Ms. Gao has explained the gaps between her allegations, in contrast to the circumstances in Shen v. ToursByLocals Canada Inc. and another , 2024 BCHRT 31, which was relied on by the Respondents.

[102] I accept Ms. Gao’s explanation for the gaps between her allegations. She explains that the gaps arise during periods where she was attempting to resolve her concerns internally with her employer and keep her job. I also accept organizational change, as a reasonable explanation for the largest gap.

[103] There is no evidence before me showing a break in the thread of Ms. Gao’s allegations. I am satisfied that there are no significant, unexplained time gaps that might otherwise weigh against a finding of an alleged continuing contravention.

[104] In sum, I conclude that Ms. Gao’s amendment alleges a timely continuing contravention under s. 22(2) of the Code , and that the alleged continuing contravention goes back to November, 2017. Her amended allegations are not late-filed. Therefore, it is not necessary for me to assess Ms. Gao’s amendment as late-filed under s. 22(3) of the Code .

C. Application to fast-track

[105] Having addressed the scope of Ms. Gao’s complaint allegations proceeding, I now consider her application to fast-track her complaint.

[106] Ms. Gao argues that a faster complaint process will lead to a faster resolution of her complaint, which will “mitigate further harm” on the parties: fast-track application, p. 3. She says that the Tribunal proceeding with her complaint at the usual pace will: delay and harm her return to work at BC Hydro or elsewhere; escalate the parties’ financial burdens; exacerbate her mental distress; and risks to the availability of evidence, including witness availability and memory preservation: fast-track application, p. 5-6.

[107] The Respondents oppose Ms. Gao’s application to fast-track. They argue Ms. Gao has not set out circumstances which justify moving her complaint ahead of others: fast-track response, para. 23.

[108] The Tribunal may fast-track all or part of a complaint process where it is necessary to the just and timely resolution of the complaint: Rule 17. This is a fact-specific assessment. Factors the Tribunal may consider include whether the allegations arise in an ongoing situation or relationship, and whether any potential remedy may be lost with the passage of time: Miller v. British Columbia Housing Management Commission , 2024 BCHRT 149, para. 105. The Tribunal must also consider how fast-tracking one complaint may impact other parties who are also waiting for their complaints to be resolved. The Tribunal has limited resources, so if it fast-tracks one complaint, it delays others: Miller , para. 104.

[109] Ms. Gao’s complaint concerns a relationship and events which are not ongoing. Her relationship with Respondents and the work-related events in question ceased when BC Hydro terminated her employment. This does not weigh in favour of fast-tracking the complaint because there is no ongoing relationship or event which a faster process could salvage.

[110] Ms. Gao also seeks a faster resolution of her complaint to mitigate the harms of proceeding at the regular usual pace. In this regard, I acknowledge that the Tribunal’s process, and the time it takes to unfold, often takes an emotional, mental, and financial toll on parties. This is a usual rather than an extraordinary experience for parties involved in a legal proceeding, which could have ramifications for them. Ms. Gao has not identified extraordinary circumstances that could justify expediting this complaint ahead of others in the queue.

[111] I also acknowledge that a remedy Ms. Gao seeks in her May 10, 2022 complaint is her job back. However, there is no guarantee that the Tribunal will decide the complaint in Ms. Gao’s favour. Even if Ms. Gao succeeds in her complaint, there is no guarantee that the Tribunal would award her the remedies she seeks, including her job back. The reinstatement of employment is not a remedy commonly sought or ordered: Parent v. St. James Community Services Society , 2008 BCHRT 182, para. 28.

[112] In any event, the Tribunal has said that the passage of time does not disentitle a complainant from a remedy – under s. 37(2)(d)(i) of the Code – that reinstates a right, opportunity, or privilege they lost because of discrimination, such as a job: Dunkley v. UBC and another , 2015 BCHRT 100, para. 739. Ms. Gao has not pointed to anything specific about losing this possible remedy due to the process proceeding in the usual course. Ms. Gao’s understandable interest in a swifter remedy is not a basis to fast-track her complaint.

[113] Ms. Gao also indicates that proceeding on Tribunal’s usual timeframe will increase the likelihood of witness unavailability and fading memories. In my view, this is not a sufficient basis to fast track a complaint. In Teacher B v. Board of Education of School District No. 83 , 2024 BCHRT 160, the Tribunal said that witnesses leaving the workplace or memories fading over time are ordinary challenges in the complaint process. These ordinary challenges are not, on their own, a basis to fast-track a complaint: para. 16. Like the circumstances in Teacher B , there is no indication in Ms. Gao’s application that a witness will cease to be available altogether, or that relevant evidence may be lost.

[114] For these reasons, I deny Ms. Gao’s application to fast-track the complaint. In doing so, I note that nothing prevents the parties from agreeing on a resolution to Ms. Gao’s complaint. The parties may be better served by resolving the complaint through mutual agreement. I encourage the parties to take advantage of the Tribunal’s mediation services to explore that possibility.

IV ORDERS

[115] I deny the Respondents’ application for sur-reply.

[116] I allow Ms. Gao to amend her complaint. Accordingly, the Respondents may amend their response to the complaint within 21 days of receiving this decision: Rule 24(5).

[117] I deny Ms. Gao’s application to fast-track her complaint.

Amber Prince

Tribunal Member