McKerracher v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2025 BCHRT 5
Date Issued: January 8, 2025
File(s): CS-007083
Indexed as: McKerracher v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2025 BCHRT 5
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:
Michael John McKerracher
COMPLAINANT
AND:
His Majesty the King in right of the Province of British Columbia as represented by the Ministry of Forests, Lands, Natural Resource Operations and Rural Development
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
On his own behalf: Michael John McKerracher
Counsel for the Respondent: Rochelle Pauls
I. INTRODUCTION
[1] On June 17, 2022, Michael John McKerracher filed a complaint of discrimination in services based on mental and physical disability contrary to s. 8 of the Human Rights Code [ Code ], against His Majesty the King in right of the Province of British Columbia as represented by the Ministry of Forests, Lands, Natural Resource Operations and Rural Development [the Ministry ].
[2] The Tribunal initially allowed this complaint to proceed as filed in time. However, it reconsidered that decision after concluding an administrative error had occurred in not referring the matter for a decision on whether the Complaint alleges a timely contravention of the Code and, if not, whether to accept late-filed allegations after allowing the parties to make submissions on timeliness.
[3] The issue before me with respect to timeliness is whether to accept the Complaint against the Ministry. I make no findings of fact regarding the merits of this complaint.
[4] For the reasons that follow, I find that the Complaint is not a continuing contravention of the Code : s. 22(2), and it is not in the public interest to allow it to proceed late filed: s. 22(3).
II. BACKGROUND
[5] Mr. McKerracher suffered a spinal injury that reduces his mobility, causes him chronic pain and requires him to walk with the help of a medical aid. He also reports having a learning disability and adult ADHD.
[6] In 2016 Mr. McKerracher and his family purchased a rural property jointly with another family. The property is surrounded by provincial Crown land and only accessible by a 1.2 km long rough track driveway across Crown land [the Driveway ]. Mr. McKerracher alleges the Driveway is very steep in sections, which makes it inaccessible by standard vehicles in inclement weather. When this occurred, Mr. McKerracher alleges that he and the other co-owners parked their vehicles halfway down the Driveway on a “landing area” located on Crown land and then walked, snowmobiled or took an ATV the rest of the way in to access the property.
[7] It appears that Mr. McKerracher’s family and the other family who co-owned the property had a falling out some time after 2016 resulting in the other family vacating the property. Mr. McKerracher alleges that his family and the other family disputed how to end their co-ownership resulting in the other family reporting him to the Ministry for illegally parking his vehicles on the landing area.
[8] In mid 2018 Mr. McKerracher applied to legalize his use of the Driveway without success. After noting the Driveway was used for many years by the previous owners and the then by himself and the other co-owners, he alleges that a lack of documentation about the existence of the Driveway hindered his application. The Ministry alleges the failure of the other family co-owners to join Mr. McKerracher’s application was the primary reason it failed, which Mr. McKerracher did not dispute. Mr. McKerracher argues the Ministry should have considered accommodating his physical disabilities in deciding whether to accept the application as he was not physically able to park his vehicle in the nearest town and walk to access his residence when the driveway across Crown land was impassable.
[9] On November 7, 2018, Mr. McKerracher alleges the Ministry denied his application to legalize his use of the Driveway. He further alleges the Ministry issued a Notice of Trespass to remove the vehicles parked in the landing area. The Ministry alleges the Notice of Trespass stated that all the vehicles had to be removed by November 30, 2018, which was not disputed by Mr. McKerracher. He alleges that he complied with the Notice of Trespass in the days that followed as he and his family were forced to abandon their property and reside elsewhere with friends.
[10] In December 2020, Mr. McKerracher alleges the property was ordered for sale following a judgment of the BC Supreme Court.
[11] In March 2022, Mr. McKerracher alleges the BC Supreme Court issued a further judgment in relation to other disputes between previous co-owners of the property family members and his family members following a trial held on various dates between May and September 2021.
III. ANALYSIS AND DECISION
[12] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62 , 2003 BCHRT 39.
A. Time Limit and Continuing Contravention
[13] The Complaint was filed on June 17, 2022. To comply with the one-year time limit under s. 22(1) of the Code , the alleged act of discrimination had to occur on or after June 17, 2021.
[14] 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.
[15] Mr. McKerracher argues the Ministry’s November 2018 Notice of Trespass is a continuing contravention of the Code . In his view, the issuing of the Notice of Trespass with no expiry date left him with an ongoing threat of fine or jail time for parking his vehicle in the landing area located on the Crown land leading to his former property.
[16] The Ministry argues there are no timely allegations in this complaint as the only specific allegation set out by Mr. McKerracher occurred on November 7, 2018, when the Notice of Trespass was issued. In its view, the fact that the Notice of Trespass may have a continued effect on Mr. McKerracher is insufficient to ground a continuing contravention of the Code .
[17] In the circumstances of this case, I disagree with Mr. McKerracher that his allegations constitute an ongoing situation, or ongoing state of affairs, resulting in a continuing contravention of the Code . In my view the allegations in question area distinguishable from other ongoing situations the Tribunal has found to be continuing contraventions, such as a public building that remains inaccessible to a wheelchair or a discriminatory policy. Here, Mr. McKerracher alleges the Ministry rendered decisions denying his application to legalize the Driveway and issuing a Notice of Trespass without first considering whether it was necessary to accommodate his disabilities. From the information on file, those decisions had the effect of Mr. McKerracher removing vehicles he parked on the Crown land within the allotted timeframe and no longer residing on the property. Without doubting the serious negative effect that Ministry’s decisions had on Mr. McKerracher, I disagree with him that the possibility of incurring future infractions related to returning to the property and parking in the landing area again can arguably be a succession or repetition of separate acts of discrimination of the same character. In the end, I find the decisions denying the legalization of the Driveway and the issuing of the Notice of Trespass constitute untimely allegations with continuing consequences and effects.
[18] Having concluded the only arguable contraventions of the Code in this case occurred in November 2018, it is necessary to determine whether it is in the public interest to accept the late-filed complaint and whether there would be any substantial prejudice.
B. Public Interest
[19] Whether it is in the public interest to accept the late-filed complaint is a multi-faceted analysis. The enquiry is fact and context specific and assessed in accordance with the purposes of the Code : Hoang v. Warnaco and Johns , 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [ Mzite ] at para. 53. These are important factors, but they are not necessarily determinative: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mzite at para. 55.
[20] I have first considered the length of delay in filing. The delay associated with the November 7, 2018, allegations of discrimination is more than two years. A delay of one year or more is considered by the Tribunal to be excessive and militates strongly against the public interest: Naziel-Wilson v. Providence Health Care and another , 2014 BCHRT 170 [ Naziel-Wilson ] at para. 13.
[21] Mr. McKerracher provided several reasons for his delay. To start, he noted being involved in several court actions with the former co-owners during the timeframe for filing and subsequent period of delay. Pursuing these court actions appears to support two of Mr. McKerracher’s reasons for his delay in filing. First, it appears that he may have focused his attention and efforts on the court matters in the hope that the situation with the co-owners could be resolved without having to pursue redress in other venues such as naming the Ministry in a human rights complaint.
[22] While appreciating that Mr. McKerracher may have decided to wait for the outcome of the BC Supreme Court actions before exploring other possible options, the Tribunal has repeatedly said that pursuing another process does not suspend the time limit under the Code , on its own, to relieve against the time limit: Sones v. District of Squamish , 2016 BCHRT 99 at para. 44 and Devitt and Hargrove obo others v. School District No. 43 and another , 2011 BCHRT 218 at paras. 20-21. In this case, Mr. McKerracher has demonstrated that he is quite capable of finding another avenue for redress related to his use of the rural property and he has not provided any compelling reason for him possibly thinking that he could pursue his options elsewhere before filing a complaint with the Tribunal about the Ministry.
[23] Mr. McKerracher also appears to argue that only through navigating the BC Supreme Court matters and receiving decisions in these matters, did he realize that the essence of his complaint was to name the Ministry as a respondent in this matter. I consider that ignorance of the Code , or the time required to become aware of one’s rights, are generally not acceptable reasons, on their own, for a delay in filing: Rashead v. Vereschagin (No. 2) , 2006 BCHRT 74 at para. 12; Ferrier v. BCAA , 2009 BCHRT 412 at para. 31. Here, Mr. McKerracher has not provided any information suggesting he should be exempt from the application of this general rule. The information on file indicates he could file and participate in several BC Supreme Courts actions in relation to living at the rural property during the relevant timeframe for filing this complaint and beyond. In this case there is no evidence indicating Mr. McKerracher could not have discovered the Tribunal process on his own and filed this complaint within the allotted timeframe.
[24] I have also considered whether Mr. McKerracher’s disabilities precluded him from filing such that the public interest is attracted in allowing the Complaint to proceed late. Where the delay is due to a disabling condition, the Tribunal has observed that it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth , 2011 BCHRT 29 at para. 42. Disabling conditions can include physical and mental ailments resulting in great difficulty coping with even the basic daily tasks of life: Naziel-Wilson , at para. 21.
[25] Without doubting the existence of Mr. McKerracher’s mental and physical disabilities during the timeframe for filing and beyond, there is a lack of information indicating that his disabilities precluded him from filing sufficiently to attract the public interest. I accept Mr. McKerracher’s evidence that his disabilities make it difficult for him to understand the legal process and abide by strict timelines. I also accept his evidence that he previously had more assistance from his wife in navigating the legal process at the BC Supreme Court and filed this complaint by himself. However, Mr. McKerracher’s demonstrated ability to file and participate in the BC Supreme Court matters leaves me with little doubt that he could have discovered and initiated the Tribunal process on time by himself, or with the assistance of others he had the capacity to recruit, if he had chosen to research the Tribunal’s process and file a complaint, rather than focus on pursuing several court actions.
[26] Mr. McKerracher also submits that being forced to move with a large young family, along with having back surgery in January of 2020, combined with issues related to his other disabilities, precluded him from filing in time. I appreciate that Mr. McKerracher was experiencing housing instability at the end of 2018 and was in recovery from back surgery at the start of 2020, both of which have the potential to attract some public interest in allowing his late filed complaint to proceed. However, there remains a lengthy period prior to the filing of this complaint where Mr. McKerracher demonstrated the ability to pursue other avenues of redress despite these pressures, which indicates to me that it is not in the public interest to allow the Complaint to proceed late filed.
[27] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others , 2014 BCHRT 10 at para. 22; Bains v. Advanced Air Supply and others , 2012 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others , 2010 BCHRT 244 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code , this factor may weigh in favour of finding a public interest in accepting the complaint: Mzite at paras. 65-66. The Tribunal has considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mzite at para. 67.
[28] Mr. McKerracher submits that his case is novel because it deals with persons with disabilities accessing their homes and the Ministry’s obligation to provide accommodation in relation to facilitating that access over Crown lands. While appreciating the seriousness of a disabled person being able to access their home, I do not find his case is unique for the purposes of attracting the public interest in allowing the Complaint to proceed late. The Complaint involves allegations of discrimination in the provision of a service by government related to disability. Such cases are unfortunately quite commonly heard by the Tribunal and the law in this area is fairly settled. In my view, the interaction between the legislation related to Crown land and the Code does not make this case unique for the purposes of this decision because cases involving government service providers usually involve reviewing how the Code interacts with the legislative framework governing the provision of the government service.
[29] Having not found that it is in the public interest to accept the late-filed complaint, I need not address the issue of whether substantial prejudice would result.
IV. CONCLUSION
[30] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member