Açar v. Lester B. Pearson College of the Pacific and United World Colleges (Canada) Inc. and others, 2025 BCHRT 48
Date Issued: February 26, 2025
File(s): CS-004098
Indexed as: Açar v. Lester B. Pearson College of the Pacific and United World Colleges (Canada) Inc. and others, 2025 BCHRT 48
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:
Nazim Açar
COMPLAINANT
AND:
Lester B. Pearson College UWC and Desiree McGraw and Tyrone Pile
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(d)(ii) and 27(1)(g)
Tribunal Member: Ijeamaka Anika
On their own behalf: Nazim Açar
Counsel for the Respondents: David J. Bell and Natasha Wood
I INTRODUCTION
[1] Nazim Açar alleges he was discriminated against during his employment as a teacher at Lester B. Pearson College (UWC) [ Pearson College ]. Mr. Açar describes himself as a Kurd from Turkey and Middle Eastern. He alleges that Pearson College, together with Desiree McGraw and Tyrone Pile [the Respondents ] discriminated against him based on race and place of origin contrary to s. 13 of the Human Rights Code. Mr. Açar specifically alleges that, sometime in 2018, the Respondents denied his request to go open sailing with students and, between September and November 2019, refused his request to moor his boat at the Pearson College docks. Mr. Açar also alleges that the Respondents discriminated against him because of his political beliefs when they failed to follow proper procedure to investigate accusations against him related to his political beliefs and terminating his employment following the investigation. Finally, Mr. Açar alleges that the Respondents engaged an unfair selection process for an internal hiring opportunity.
[2] The Respondents deny discriminating and apply to dismiss part of Mr. Açar’s complaint. They say that Mr. Açar’s allegations regarding mooring his boat at the Pearson College docks, limits on where he could sail with students, and the internal hiring are out of time and apply to dismiss it under s. 27(1)(g) of the Code . Finally, the Respondents apply to dismiss the complaint against Ms. McGraw and Mr. Pile [the Individual Respondents ] on the basis that it does not further the purposes of the Code to continue the complaint against the Individual Respondents: s. 27(1)(d)(ii).
[3] The first issue I have to decide is whether Mr. Açar’s allegations fall within the time limit of s. 22. Mr. Açar filed his complaint on January 21, 2021, and an amendment on June 21, 2021. This means that any allegations before January 21, 2020, are untimely unless they form part of a continuing contravention with a timely allegation: s. 22(2).
[4] I must also decide the following issues:
a. Whether the internal hiring, sailing, and mooring complaints are out of time or are continuing contraventions of the investigation and termination allegations that were filed within the one-year limit. If not, whether it is nevertheless in the public interest to accept them.
b. Whether the complaint should be dismissed against the Individual Respondents because it does not further the purposes of the Code .
[5] My decision is as follows:
a. The internal hiring, sailing, and mooring allegations are dismissed. I find the complaints are not continuing contraventions and are late filed. I am not persuaded that it is in the public interest to accept them.
b. The complaint against the Individual Respondents is dismissed. The allegations of discrimination in the investigation and termination of Mr. Açar’s employment will proceed against Pearson College.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[7] Pearson College is a two-year, pre-university school for students from over 150 countries who live and study together while pursuing the International Baccalaureate and an outdoor-oriented experiential education. Pearson College hired Mr. Açar as a maths instructor in July 2010. Mr. Açar says, and the Respondents do not dispute, that during his employment, he also held the position of House Parent and Sailing instructor. Ms. McGraw was the Head of College at Pearson College from August 2015 to December 31, 2019. Since 2016, Mr. Pile has worked for Pearson College as Vice President Operations and Administration and Deputy Head of College and as Vice President Operations respectively. Between January 01, 2020, and August 01, 2020, Mr. Pile held an interim position as President and Head of College.
1. The internal hiring issue
[8] Mr. Açar says that in 2017, the Respondents carried out an internal hiring process. He says he was not considered for a position [the internal hiring allegation ]. Mr. Açar does not provide any further information regarding this allegation and does not address it in his response to the dismissal application.
2. The sailing issue
[9] Mr. Açar says the Respondents did not approve his request to go on sailing trips with students [the sailing allegation ].
[10] On March 30, 2018, Mr. Açar emailed Mr. Pile and another Pearson College employee to tell them he would be sailing for an overnight trip to Murder Bay on March 31, 2018. He attached a Float Plan. Mr. Pile replied to Mr. Açar, telling Mr. Açar that he needed approval from Ms. McGraw as the Head of the College and the students’ guardians before he could sail with Pearson College students. In the reply, Mr. Pile attached documents including a “Level of Risk Guidance” and an approval matrix for Mr. Açar to complete and told Mr. Açar that he was required to submit the completed documents prior to sailing.
[11] The following day, Mr. Pile emailed Mr. Açar to confirm that Mr. Açar received the documents and ask for further information regarding Mr. Açar’s sailing plan. Mr. Pile ended the email by asking Mr. Açar to contact him the same day.
[12] Mr. Açar did not sail that day. Mr. Açar replied to the email and told Mr. Pile that he would no longer sail that day and would follow-up on the documents. Mr. Pile responded later the same day that he received approval from Ms. McGraw for Mr. Acar’s sailing plan shortly after Mr. Açar indicated that he intended to cancel the sailing trip. He asked Mr. Açar to confirm if he still intended to cancel. He also told Mr. Açar that Pearson College had a risk mitigation process in place which applied to anyone taking students on activities involving a high level of risk and required approval from the Head of the College as well as due diligence from the school.
[13] On April 23, 2018, Mr. Açar emailed Pearson College employees including Mr. Pile and Ms. McGraw about another overnight sailing trip with Pearson College students scheduled for April 27-28, 2018. He stated that he was planning to test the relevant systems in preparation for an end of year sailing trip and attached a float plan.
[14] On April 26, 2018, Mr. Pile replied to Mr. Açar and told him that his request was short notice and did not leave much time for him or Ms. McGraw to consider the sailing plan and respond. Mr. Pile stated again that College permission was required for high-risk activities involving students and Mr. Açar was required to complete a level of risk assessment in accordance with the College Risk Guidelines and an Approval Matrix. Mr. Pile also stated that due to gale force warning and possible postponement which Mr. Açar had mentioned in his own email, Mr. Açar could take the time to get familiar with the risk and approval process including discussing it with another employee with recent expertise with the risk assessment documents and approval matrix process.
[15] It is unclear whether Mr. Açar received approval for or went on this sailing trip.
[16] Mr. Açar says that in May 2018, during a conversation with a Pearson College colleague who had taken a group of students to Barkley Sound in gale season and in open canoes, the colleague told him that the management had no idea of what he was doing and had not caught up yet. Mr. Açar says he told the colleague that he (Mr. Açar) being a sailing instructor was denied approval to take students in an ocean-going sailboat to Murder Cove for an overnight trip. Mr. Açar says he asked the colleague if this was differential treatment and the colleague responded by saying that Mr. Açar was “up to something.”
3. The mooring issue
[17] Mr. Açar says the Respondents did not allow him to moor his boat on the Pearson College docks [the mooring allegation ].
[18] Sometime in or around September 2019, Mr. Açar docked his sailing vessel at the Pearson College docks. The details of this interaction are not in dispute.
[19] Mr. Açar emailed Pearson College employees including Mr. Pile to ask if there was a guideline or policy regarding docking personal boats at the Pearson College docks. Mr. Pile emailed Mr. Açar and told him to remove his boat from the Pearson College docks. He also told Mr. Açar that Pearson College did not have a policy regarding moorage of personal vessels and that mooring personal vessels at the Pearson docks was not permitted due to insurance and liability issues as well as lack of moorage space. Mr. Açar told Mr. Pile he was willing to contribute to writing a policy on mooring boats at Pearson College. After a series of emails, Mr. Açar stated that he would relocate his boat by October 1, 2019, and again offered to contribute to developing a policy on mooring boats at the college.
[20] Mr. Açar says he saw that waterfront personnel had their boats at the dock. The Respondents say the only motorized vessels authorized for mooring at Pearson College docks are vessels owned and insured by the College or vessels under contract, insured vessels that were required at the dock for work or provision of services to Pearson College. They say non-motorized vessels such as kayaks were also permitted for storage (at owners’ risk) not mooring and that Mr. Açar was permitted to keep a small, personal, non-motorized sailing dinghy on the docks. They also say that a dive instructor was permitted to moor his vessel at the Pearson College dock as part of a contractual agreement between the instructor and Pearson college for the provision of diving instruction to students in college-sanctioned diving activities.
[21] Mr. Açar ultimately removed his sailboat from the Pearson College docks around November 14, 2019.
4. The September 2019 incident
[22] In September 2019, a Pearson College student made a complaint to a Pearson College faculty member [ faculty member] about Mr. Açar regarding comments Mr. Açar made in class.
[23] Mr. Açar was placed on administrative leave. Mr. Açar says that after an internal process in October 2019, the complaint was settled. The Respondents say that when they met to inform the student and the faculty member that an appropriate disciplinary action had been taken against Mr. Açar, the student and faculty member indicated that Mr. Açar had engaged in other similarly questionable conduct in 2018/2019. The Respondents say that while they were looking into the 2018/2019 conduct, the faculty member wrote a letter to Ms. McGraw indicating concerns that Mr. Açar was inciting further strife with students due to his Facebook posts criticizing Pearson College, the United World College, Israel, and the handling of the student’s complaint. Mr. Açar says the Respondents then told him in November 2019 that there were “extra allegations” against him, and he was placed on administrative leave.
5. Investigation and termination of Mr. Açar’s employment
[24] Mr. Açar says that the Respondents discriminated against him because of his political beliefs when they failed to follow proper procedure to investigate accusations against him related to his political beliefs [the investigation allegation ]. In November 2019, the Respondents appointed an external investigator to investigate allegations that Mr. Açar had violated the Pearson College Respectful Community Policy [the Policy ]. In December 2019, the external investigator sent a letter to Mr. Açar to inform him of the allegations against him including the additional allegations by the previous student and faculty member and to meet with Mr. Açar regarding the allegations.
[25] On January 24, 2020, the external investigator provided their investigation report to Pearson College. The external investigator’s report stated that some of Mr. Açar’s conduct had violated the Policy.
[26] Mr. Açar says the Respondents did not follow the Policy in the process leading to the termination of his employment [the termination allegation ]. On January 29, 2020, Pearson College terminated Mr. Açar’s employment. Mr. Açar says he wrote to the Respondents for explanations about the process leading to the termination of his employment and the selection of the external investigator, but no explanation was provided.
III DECISION
A. Should the Tribunal dismiss the internal hiring allegation because it is late?
[27] Mr. Açar alleges the Respondents discriminated against him in an internal hiring process in 2017 when he was not considered for a position. Mr. does not provide any particulars regarding this allegation. The Respondents argue that this allegation is vague and lacks sufficient particulars to amount to a contravention of the Code .
[28] Given the lack of particulars in this allegation, I am not satisfied that this allegation is an arguable contravention of the Code . That is because Mr. Açar has not set out facts that support inferences that his protected characteristics were factors in alleged adverse treatment.
[29] I dismiss the allegation of discrimination in the internal hiring allegation on the basis that it is untimely and could not form part of a continuing contravention. I do not need to consider the Respondents arguments under s. 27(1)(g) in relation to this allegation.
[30] I turn next to consider whether the allegations concerning the sailing and mooring allegations should be dismissed because the allegations fall outside the one-year time limit: s. 27(1)(g).
B. Should the Tribunal dismiss the sailing and mooring allegations because they are late?
[31] Based on my review of the materials, the sailing and mooring allegations were filed after the one-year time limit. The events leading to the sailing allegations occurred sometime in March and April 2018 and in the case of the mooring allegation, sometime between September and November 2019.
[32] The Respondents apply to have the sailing and mooring allegations dismissed on the basis that they are out of time: Code, s. 27(1)(g).
[33] Mr. Açar argues that all the allegations in his complaint, considered together, form part of a continuing contravention of the Code . In the alternative, Mr. Açar argues that the Tribunal should exercise its discretion to accept the late filed complaints: s. 22(3).
[34] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62 , 2003 BCHRT 39 at para. 12.
[35] The first step in the analysis is to identify an allegation of discrimination within the one-year limitation period: School District v. Parent obo the Child , 2018 BCCA 136 [ School District ] at para. 51.
[36] Mr. Açar filed his complaint with the Tribunal on January 21, 2021. That means to be timely, there must be at least one allegation of discrimination that occurred on or after January 21, 2020. There is no question that the termination allegation was filed within the one-year time limit. As I understand it, the Respondents do not argue that the investigation complaint is out of time. Based on my review of the complaint and the parties’ submissions, the investigation and termination allegations relate to the steps Pearson College took to address a complaint made against Mr. Açar which culminated in the termination of his employment on January 29, 2020. On this basis, I find that the investigation and termination allegations are timely.
[37] The next step in the analysis is to consider whether the allegations falling outside the time limit form a continuing contravention with the timely allegations.
[38] The question is whether the sailing and mooring allegations are part of a continuing contravention. If not, the next question is whether they should be dismissed under s. 27(1)(g) of the Code or whether I should exercise my discretion to accept them because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code , s. 22(2), School District at para. 68.
[39] 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.
[40] 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.
[41] I find that the sailing and mooring allegations are not part of a continuing contravention with the investigation and termination allegations. I also find it is not in the public interest to accept these allegations, and I dismiss them. My reasons are next.
1. Is the sailing allegation part of a continuing contravention?
[42] Mr. Açar argues that, contrary to the Respondents arguments, listing his allegations separately does not mean sailing or mooring allegations are not part of a continuing contravention and all his allegations of discrimination involve western white colleagues being favoured over visible minorities. He says that the sailing allegation is part of a persistent pattern of differential treatment he experienced throughout his time at Pearson College. Mr. Açar argues that the sailing allegation is also relevant to the mooring allegation and should be considered.
[43] I do not accept Mr. Açar’s argument. The Tribunal has said that a general statement that the discrimination was ongoing is not enough to establish a continuing contravention: Parent on behalf of A v. School Board , 2019 BCHRT 196 at para. 33. Therefore, Mr. Açar must demonstrate how the sailing allegation is anchored to the in-time investigation and termination allegations. Mr. Açar has not done so. Instead, he argues that the sailing allegation is relevant to the mooring allegation. Above I found the mooring allegation to be out of time. Therefore, it is unhelpful to Mr. Açar’s argument that he says the sailing allegation is part of a continuing contravention. On the materials before me, the sailing allegation does not appear to have the same character as either the investigation or termination allegation. While the sailing allegation concerns whether Mr. Açar was discriminated against because he was not permitted to sail with students, the investigation and termination allegations have to do with an allegation that the Respondents did not follow the Policy while investigating allegations of misconduct against him regarding his interactions with Pearson students and faculty. Mr. Açar also alleges that the sailing allegation involves discrimination against him on the basis of his race and place of origin. The investigation and termination, on the other hand, involve allegations of discrimination based on Mr. Açar’s political beliefs. Further, the sailing allegation is separated in time from the investigation and termination by approximately 17-21 months (April 2018 – September 2019 and January 2020) and Mr. Açar does not explain why he did not file his complaint regarding the sailing allegation with the one-year time limit. In my view, this weighs dispositively against finding a continuing contravention of the Code : Dickson at para. 17 .
[44] On this basis, I am not persuaded that the sailing allegation is part of an alleged continued contravention, and it is therefore not timely.
2. Is the mooring allegation part of a continuing contravention?
[45] I also find that the mooring allegation is not part of a continuing contravention. However, my reasons here differ slightly. With this allegation, there are no significant gaps in time. The mooring allegation appears to have emerged on or around the same time that the Respondents’ commenced their misconduct investigation of Mr. Açar. The Respondents hired the external investigator in September 2019, around the time of the issue of mooring his boat at the Pearson College docks arose.
[46] However, the mooring allegation is different in character to the investigation and termination allegations. While Mr. Açar alleges discrimination based on race and place of origin in the mooring allegation, he alleges discrimination on the basis of political belief in the investigation and termination allegations. I note that Mr. Açar seems to also argue that he does not “rule out” the denial of mooring being related to his political beliefs. He says that the fact that communication to a Pearson College Board Member by Mr. Pile at the same time the mooring allegation was ongoing shows a coordination on both the use of the docks and the investigation that was “brewing.” Here, as with the sailing allegation, Mr. Açar argues that the mooring allegation is one issue in a pattern of differential and discriminatory treatment by the Respondents throughout his employment, contrary to the Code.
[47] I do not accept Mr. Açar’s arguments here. To anchor the mooring allegation to the investigation and termination allegations, it is not enough for Mr. Açar to say that the mooring allegation is part of a pattern of ongoing discrimination. As stated above, this general statement is not enough to establish a continuing contravention. While Mr. Açar has demonstrated how the mooring allegation is anchored in time to the investigation and termination allegations, I find that the mooring allegation does not have the same character as the investigation and termination allegations. Similar to my explanations above, the mooring allegation has to do with Mr. Açar’s access to the Pearson College docks. In his complaint form, Mr. Açar alleges that the Respondents discriminated against him by refusing him access to moor his boat at the docks. Further, Mr. Açar makes this allegation on the basis of his race and place of origin. In contrast, Mr. Açar alleges discrimination in the investigation and termination complaints on the grounds of his political views. For this reason, I find that the mooring allegation is not a continuing contravention and therefore late filed.
[48] I now turn to whether it is in the public interest to accept the late-filed complaints: s. 22(3).
3. Should the sailing and mooring complaints be accepted under s. 22(3) of the Code?
[49] The burden is on Mr. Açar to persuade the Tribunal to accept the sailing and mooring allegations despite finding that they are untimely. I must consider whether it is in the public interest to accept the late-filed allegations and whether anyone would suffer substantial prejudice as a result of accepting the late-filed complaints.
[50] The Tribunal’s task under s. 22(3) is to determine whether to accept a late filed complaint. The Tribunal may do so if it is satisfied that it is in the public interest to accept the complaint, and no substantial prejudice will result to any person because of the delay: s. 22(3). In considering the public interest, the Tribunal may consider a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, 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 and 63; Hoang v. Warnaco and Johns , 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mzite at para. 55. The inquiry is always fact and context specific.
[51] I turn to Mr. Açar’s arguments.
[52] First, Mr. Açar argues that in the year leading to the filing of his complaint, he was seeking an appeal of his termination. I do not accept this argument as it goes to Mr. Açar’s attempts to address the termination allegation which I already found to be within the time limit and accepted by the Tribunal. The Tribunal has repeatedly said that pursuing another process does not suspend the time limit under the Code, and is not enough, on its own, to relieve against the time limit: Sones v. District of Squamish, 2016 BCHRT 99 at para. 44-45 This argument does not explain why the sailing or mooring allegations should be accepted.
[53] Second, Mr. Açar also argues at a reason for the delay is that he was pursuing other avenues of resolution. He says he left his application until the last week of allowed time as he wanted to engage in reconciliatory dialogue with Pearson College. The Tribunal has held that pursuing other avenues does not provide an excuse for filing a complaint outside the time limit and parties should be discouraged from waiting to file their human rights complaint in the hopes of achieving a resolution elsewhere: Johar and others v. College of Veterinarians of British Columbia (No. 3) , 2024 BCHRT 342 at para. 185. Rather, the proper course is to file the human rights complaint on time and request the complaint be deferred pending the resolution of the issues elsewhere: George v. Montrose (Village) , 2012 BCHRT 279 at para. 19; Kang v. UBC and another , 2015 BCHRT 10 [ Kang ] at para. 43-45. Further, the materials before me do not show that Mr. Açar was pursuing other avenues of resolution for the sailing and mooring allegations. Rather, he sought to appeal the termination of his employment. Therefore, I am not persuaded by this argument.
[54] Third, Mr. Açar argues that the delay is not substantial. By Mr. Açar’s calculation, the delay in filing the complaint against Ms. McGraw is from December 31, 2019, when Ms. McGraw resigned, until January 29, 2020, and in the case of the mooring allegation, from November 2019 to January 21, 2020. Mr. Açar says the delays in question are 21 days and 2 months respectively. I disagree as Mr. Açar’s calculations are inconsistent with the Code’s requirements. As stated above, a complaint must be filed within one-year of the alleged discriminatory incident. In the case of the sailing allegation, Mr. Açar should have filed his complaint in April 2019 to meet the time-limit for filing his complaint. Rather he filed his complaint in January 2021, approximately 15 months late. A delay of 15 months is significant and weighs against accepting the sailing allegation. With the mooring allegation, the delay of two months is not significant. However, the fact that the delay is short cannot operate on its own to support waiving the time limit. For example, the Tribunal has declined to accept a complaint for filing that was two days late: Adolphs v. Boucher Institute of Naturopathic Medicine , 2014 BCSC 298 at paras. 1 and 6. Any other approach would undermine the substantive benefit of a limitation period: Kang at para. 48. This factor does not weigh in favour of accepting the sailing and mooring allegations.
[55] Fourth, Mr. Açar argues that there is no surprise factor because the Respondents were aware of the “contentious nature of the issues.” Mr. Açar refers to a non-disclosure agreement in this regard. He does not say whether the sailing or mooring allegations were a part of the contentious issues or the subject of the non-disclosure agreement. On the materials before me, this argument refers to settlement discussions regarding Mr. Açar’s termination. Nevertheless, Respondents argue, and I accept, that these communications were made on a without prejudice basis and are not relevant to the issues in this application.
[56] Fifth, Mr. Açar also argues that he is yet to find legal representation. Mr. Açar does not explain how the lack of legal representation caused the delay in filing his complaint. Further, the Tribunal has adopted Rules and procedures to ensure fairness and accessibility for all parties. The fact that Mr. Açar is self-represented is not a basis for extending the time limit without other evidence. The Tribunal website lists a number of organizations that are available to assist self-represented litigants. There is no evidence Mr. Açar attempted to access those resources and was rebuffed. This factor does not weigh in favour of accepting the late filed sailing and mooring allegations.
[57] Sixth, Mr. Açar argues that five of the six allegations against him in the misconduct investigation were more than a year older than the college policy allowed and the Respondents investigated them in violation of the policy. Mr. Açar’s argument here is with respect to the investigation and termination allegations and do not weigh in favour of accepting the late-filed sailing and mooring allegations.
[58] Seventh, Mr. Açar also argues that he filed his complaint within a year of the termination of his employment. Here, again, this argument does not weigh in favour of accepting the sailing and mooring allegations. There is no dispute that Mr. Açar filed his complaint within one year of his employment being terminated and the termination complaint is not the subject of this dismissal application.
[59] Finally, Mr. Açar argues that the sailing and mooring allegations involve white colleagues consistently being favoured over a visible minority faculty member and accepting them is in the public interest. Mr. Açar argues that accepting the sailing and mooring complaints is in the public interest because he was not afforded equal treatment as other colleagues at Pearson College. He says this is contrary to the purpose of the Code in fostering a society where there are no impediments to full and free participation in the economic, social, political, and cultural life of British Columbia.
[60] I recognize the public interest in the Tribunal deciding allegations of a pattern of discriminatory treatment. However, the Tribunal will be able to fulfill this mandate by resolving the substantial timely allegations in the investigation and termination allegations: Johar and others v. College of Veterinarians of British Columbia (No. 3) , 2024 BCHRT 342, at para. 187. It is not necessary to accept Mr. Açar’s sailing and mooring allegations, which would expand the scope of the complaint by years in circumstances that are not warranted (in this instance) by the public interest.
[61] While all the issues raised in the complaint are undoubtedly important to Mr. Açar, the sailing and mooring allegations are neither novel nor matters requiring resolution as a matter of public policy. The allegations involve purported preferential treatment shown to Mr. Açar’s white colleagues. These issues are not unique and would involve applying established jurisprudence to particular facts.
[62] On balance, I am not persuaded that it is in the public interest to accept the sailing and mooring allegations under s. 22(3) of the Code. Given that conclusion, I do not need to go on to consider substantial prejudice or whether they are properly filed against Pearson College.
[63] The sailing and mooring allegations are dismissed under s. 27(1)(g) of the Code.
[64] The Respondents also apply to dismiss the investigation allegation against Ms. McGraw on the basis that it is out of time. I find that I can decide this by deciding whether to dismiss the complaint against Ms. McGraw as an individual respondent and I do so next.
C. Individual respondents
[65] The Respondents apply to have the complaint dismissed against the Individual Respondents on the basis that that it does not further the purposes of the Code to proceed against them: s. 27(1)(d)(ii).
[66] Section 27(1)(d)(ii) of the Code grants the Tribunal discretion to dismiss all or part of a complaint if proceeding with it would not further the purposes of the Code . The purposes of the Code are set out in s. 3. They include general purposes that advance the broad public policy of fostering a society free of discriminatory barriers, as well as the specific purpose of providing a means of redress for people who have been victims of discrimination. Since the aim of human rights legislation is remedial, these purposes must be read harmoniously with s. 37 of the Code , which sets out the remedies available where discrimination occurs: Carter v. Travalex Canada Ltd. , 2009 BCCA 180 at paras. 36-37.
[67] There are strong policy reasons that favour complaints against individual respondents. As the Supreme Court of Canada has acknowledged, “the aspirational purposes of the Code require that individual perpetrators of discrimination be held accountable for their actions”: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 56 . This is especially true for allegations of discrimination with a high degree of personal culpability, like sexual or racial harassment: Daley v. British Columbia (Ministry of Health), 2006 BCHRT 341 at para. 53 .
[68] On the other hand, naming individual respondents can complicate and delay the resolution of complaints, exacerbate feelings of personal animosity, and cause needless personal distress to individuals who are accused of discrimination: Daley at para. 54 . Because employers and institutional respondents are liable for the acts of their agents, they will be responsible for any remedy ordered by the Tribunal: Code , s. 44(2); Robichaud v. Canada , [1987] 2 SCR 84. In those situations, the remedial aims of the Code may be most fairly and efficiently fulfilled without holding individuals liable.
[69] The Tribunal balances all these considerations to decide whether the purposes of the Code are best served by having a complaint proceed against individuals as well as an institutional respondent, or against the institutional respondent only. It has identified the following factors as relevant:
a. whether the complaint names an institutional employer as a respondent and that respondent has the capacity to fulfill any remedies that the Tribunal might order;
b. whether the institutional respondent has acknowledged the acts and omissions of the individual as its own and has irrevocably acknowledged its responsibility to satisfy any remedial orders which the Tribunal might make in respect of that individual’s conduct; and
c. the nature of the conduct alleged against the individual, including whether:
i. their conduct took place within the regular course of their employment;
ii. the person is alleged to have been the directing mind behind the discrimination or to have substantially influenced the course of action taken; and
iii. the conduct alleged against the individual has a measure of individual culpability, such as an allegation of discriminatory harassment.
Daley at paras. 60-62 .
[70] I will address these factors in turn.
[71] Pearson College submits, and I accept, that it has the capacity to fulfill any remedies that the Tribunal might order against the Individual Respondents. It also submits, and I accept, that as the institutional respondent and the Individual Respondents’ employer, it will satisfy any remedial order the Tribunal might make in respect of the Individual Respondents. Therefore, Pearson College adopts the acts and omissions of the Individual Respondents as its own.
[72] The real issue is whether the nature of the conduct alleged against the Individual Respondents is such that it furthers the purposes of the Code to proceed against them directly. In my view, it is not.
[73] Mr. Açar’s argument is that the Individual Respondents have a measure of individual culpability, and they were the directing minds behind the decision to terminate his employment contrary to the provisions of the Policy. Mr. Açar also says that Ms. McGraw was the head of Pearson College and made the decision to hire the external investigator.
[74] I am not persuaded by Mr. Açar’s argument that this is enough for the Individual Respondents to remain respondents in this complaint. The evidence before me supports Pearson College’s assertion that the Individual Respondents were acting in their capacity as heads of Pearson College at the relevant times. In that capacity, they were in management positions at Pearson College and responsible for hiring, employee benefits and perks, and the supervision of external investigation into complaints by students at the school. To some extent, they may have been the directing minds behind the decision to investigate and terminate Mr. Açar’s employment. However, this was their job and nothing in the nature of that conduct is capable of rising to the level of personal culpability that requires individual responsibility.
[75] Further, the termination of Mr. Açar’s employment was supported by the members of the Board of Directors at Pearson College. Mr. Açar argues that the members of the Pearson College Board of Directors are changed frequently and the primary decisionmaker is the Head of the College. This is not enough to demonstrate that Mr. Pile was not acting in the course of his employment when Mr. Açar’s employment was terminated.
[76] To allow the complaint to continue to proceed against the Individual Respondents has the capacity to complicate the resolution of the complaint and exacerbate feelings of personal animosity.
[77] I understand one of the remedies Mr. Açar is seeking is an acknowledgement of wrongdoing by the Individual Respondents, which he says would only have meaning if done by an individual directly. The Tribunal dos not typically award an individual apology as remedy. Elsewhere, the Tribunal has declined to order a respondent to apologize for discrimination as it is not possible to know whether an apology made in compliance with an order is sincere: Hart v. University of British Columbia and others , 2019 BCHRT 225 at para. 59. Therefore, Mr. Açar is unlikely to obtain this remedy following a hearing. If the Individual Respondents’ conduct did indeed violate the Code, this can be addressed by a decision and remedy issued against Pearson College. Any purpose served by proceeding against the Individual Respondents, in my view, outweighs the disadvantages.
[78] In these circumstances, the Code’s purposes would be served by dismissing the complaints against the Individual Respondents and proceeding against Pearson College. I grant the application to dismiss the complaint against the Individual Respondents under s. 27(1)(d)(ii).
IV CONCLUSION
[79] I grant the Respondents’ application. The complaint against the Individual Respondents is dismissed under s. 27(1)(d)(ii) of the Code . I also dismiss the internal hiring allegation, sailing, and mooring allegations pursuant to s. 27(1)(g) of the Code. The investigation and termination complaints will proceed to hearing against Pearson College.
Ijeamaka Anika
Tribunal Member