Tarbuck v. E-Comm Emergency Communications for British Columbia Incorporated and others, 2025 BCHRT 58
Date Issued: March 5, 2025
File: CS-008112
Indexed as: Tarbuck v. E-Comm Emergency Communications for British Columbia Incorporated and others, 2025 BCHRT 58
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:
Daniel Tarbuck
COMPLAINANT
AND:
Emergency Communications for British Columbia Incorporated, Jeff Johnson, and Matt Hamlin-Douglas
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO AMEND A COMPLAINT
Rule 24
Tribunal Member: Devyn Cousineau
On his own behalf: Daniel Tarbuck
Counsel for the Respondent: Jessica S. Fairburn and Ellen Ferguson
I INTRODUCTION
[1] This is a decision about Daniel Tarbuck’s application to amend his human rights complaint.
[2] Mr. Tarbuck was employed with Emergency Communications for British Columbia Incorporated [ E-Comm ] from June 2021 until his termination in October 2022. During his employment, the individual respondent Jeff Johnson was a Senior Manager who managed Mr. Tarbuck and his team. The individual respondent Matt Hamlin-Douglas was the Manager, Employee Relations and Wellness. In his human rights complaint, Mr. Tarbuck alleges that he faced disability-related barriers in his employment because of an unreasonable workload and inadequate resources, and that the Respondents failed to accommodate his disability-related needs. He also alleges that he was terminated for behaviour that was caused or contributed to by his disabilities. He alleges that the Respondents discriminated against him in his employment, based on mental and physical disabilities, in violation of s. 13 of the Human Rights Code.
[3] Mr. Tarbuck filed an application to amend his complaint to add new allegations about events after the termination of his employment. The Respondents oppose the application, on the basis that the amendment contains untimely allegations from before, during, and after his employment.
[4] For the reasons that follow, I have determined that Mr. Tarbuck’s amendment contains two new allegations of discrimination, relating to events in 2022. Only one of those events may be untimely, and I exercise my discretion to accept it under s. 22(3) of the Code. The rest of the amendment simply adds details and background to the complaint and does not require an application: Tribunal Rules of Practice and Procedure, Rule 24(1). The amendment is allowed.
[5] At the outset, I note that, in Mr. Tarbuck’s reply argument, he referred to retaliation and discrimination based on family status. These are new allegations that were not set out in his Form 3-Amendment. As such, I have not considered them in this decision.
II DECISION
[6] The first issue I must decide is whether Mr. Tarbuck’s amendment requires an application. A complainant may amend their complaint to add details to their allegations at any time: Rule 24(1). They may also amend their complaint to add new allegations: Rule 24(2). The Rules provide that an application is required to add new allegations where:
a. the amendment adds an allegation that occurred outside of the time limit for filing the complaint under section 22 of the Code ;
b. there is an outstanding application to dismiss the complaint; or
c. the hearing date is less than four months from the date the amendment is filed: Rule 24(4).
In this case, there is no hearing date and no outstanding application to dismiss. Mr. Tarbuck is only required to file an application if he is seeking to add an allegation that occurred outside the Code’s time limit: s. 22. The parties dispute whether the amendment contains new, late-filed allegations.
[7] Given my conclusion below that one of Mr. Tarbuck’s new allegations may be late-filed, I go on to consider whether to exercise my discretion to accept it under s. 22(3) of the Code.
[8] I begin with a brief background.
A. Background
[9] Mr. Tarbuck filed his complaint on November 18, 2022. He alleges that the Respondents discriminated against him in employment based on his physical and mental disabilities when:
a. Mr. Johnson failed to reduce his workload or provide additional resources when Mr. Tarbuck reported feeling exhausted from disability-related symptoms. Mr. Tarbuck alleges this was “constant from September 2021 to October 2022”.
b. Mr. Hamlin-Douglas failed to investigate or implement an accommodation for Mr. Tarbuck’s disability-related fatigue and feeling of being “constantly overwhelmed by work”, in January 2022. Mr. Tarbuck alleges that Mr. Hamlin-Douglas did not take steps to support him because of a negative interaction they had in the fall of 2021.
c. The Respondents terminated his employment on October 5, 2022, for reasons Mr. Tarbuck alleges are connected to his physical and mental disabilities.
[10] Due to systemic backlogs at the Tribunal, the Tribunal did not give the Respondents notice of Mr. Tarbuck’s complaint until June 17, 2024.
[11] The Respondents filed their response on September 9, 2024. Their response addressed events during Mr. Tarbuck’s employment, including discussions they say they had “over the course of the Complainant’s employment” about workload management.
[12] On September 12, 2024, the parties attended a Tribunal-assisted mediation, which did not resolve the complaint.
[13] On October 29, 2024, Mr. Tarbuck filed this application to amend his complaint. In his application, he identifies two allegations of discrimination that he wants to add:
a. Between October 8-25, 2022, Mr. Hamlin-Douglas delayed asking the benefits provider to reinstate Mr. Tarbuck’s benefits, allegedly to coerce Mr. Tarbuck into signing a release after his allegedly discriminatory termination; and
b. In December 2022, Mr. Johnson gave Mr. Tarbuck a negative job reference, related to his disabilities, which caused him to lose an opportunity for a new job.
[together, the 2022 Allegations ]
Mr. Tarbuck’s proposed amendment also contains information about events that he says happened leading up to and during his employment, between April 2021 and October 2022, when he was terminated. Mr. Tarbuck says that these are not new allegations, but rather background and particulars about the allegations in his original complaint.
[14] The Respondents oppose the amendment on the basis that it seeks to add untimely allegations to the complaint. They argue that the amendment contains untimely allegations that:
a. In April and May 2021, Mr. Tarbuck was induced into a position at E-Comm with false promises;
b. At the beginning of his employment, Mr. Tarbuck was required to work overtime without compensation;
c. Between June and October 2021, there were “signs of inadequate staffing levels” and employee departures that resulted in an increased workload.
[together, the 2021 Events ]
[15] The Respondents also argue that the 2022 Allegations are late filed.
[16] I begin with the 2021 Events.
B. 2021 Events
[17] Mr. Tarbuck clarified in his reply submission that the 2021 Events are not intended to be new allegations of discrimination, but rather “provide additional details regarding the Respondents’ conduct leading up to the acts described in the original and amended complaint”. He says that the issue of overtime has been resolved in another forum.
[18] I accept that explanation and agree that the 2021 Events simply add details and background to the allegations in Mr. Tarbuck’s complaint. Specifically, Mr. Tarbuck does not allege that his protected characteristics were a factor in the 2021 Events. This is a necessary element of an allegation of discrimination: Moore v. BC (Education), 2012 SCC 61 at para. 33.
[19] Information about inadequate staffing and employee departures add detail and context to Mr. Tarbuck’s allegation that his workload was unmanageable because of his disabilities, and the Respondents failed to accommodate him. In his original complaint, Mr. Tarbuck alleged that this was an ongoing issue between “September 2021 to October 2022”. Adding details or particulars to these allegations from the original complaint does not amount to a new allegation of discrimination.
[20] The 2021 Events described in Mr. Tarbuck’s amendment are not new allegations of discrimination. They are details to give context to Mr. Tarbuck’s complaint, and do not require an application.
C. 2022 Allegations
[21] Mr. Tarbuck seeks to add the 2022 Allegations as new allegations in his complaint. As a preliminary matter, these new allegations must set out facts that, if proven, could establish a contravention of the Code. This means that they must set out facts that could prove Mr. Tarbuck’s disabilities were a factor in adverse employment-related impacts: Moore at para. 33. If they do, then I must determine whether they are in time, in which case no application is required, and they are accepted for filing. If they are out of time, I must decide whether to accept them under s. 22(3) of the Code.
1. Allegation about benefits
[22] I am satisfied that this allegation contains facts that, if proven, could violate the Code.
[23] Mr. Tarbuck alleges that he was terminated for reasons connected to his disabilities, including an “abrasive personality” and his requests for accommodation. In his amendment, he alleges that he spoke to Mr. Hamlin-Douglas on October 7, 2022, two days after the termination of his employment. He alleges that Mr. Hamlin-Douglas made negative comments about his requests for accommodation and his personality, and asked him to sign a release of claims. On October 8, he realized his benefits had been prematurely terminated. He alleges that Mr. Hamlin-Douglas told him that he would ask the benefits company to fix this immediately, but in fact delayed the request until October 25, causing him to lose access to critical benefits. He alleges that Mr. Hamlin-Douglas did this to coerce him into signing the release. In the full context of this complaint, I am satisfied that these facts, if proven, could establish that he was adversely impacted in his employment (benefits suspended) in connection with his disabilities (which were allegedly a factor in his termination and the employer’s consequent request that Mr. Tarbuck sign a release).
[24] I am also satisfied that this allegation is in time. This is because it happened before Mr. Tarbuck filed his complaint on November 18, 2022. The Tribunal has consistently held that the timeliness of new allegations is based on the date when the original complaint was filed, rather than the amendment: Kruger v. Xerox (No. 3), 2003 BCHRT 284 at paras. 21-22.
[25] In short, this allegation sets out facts that could contravene the Code and is within the Code’s time limit. An application is not required. The new allegation is accepted.
2. Allegation about job reference
[26] I am satisfied that Mr. Tarbuck’s allegation about the job reference sets out facts that could contravene the Code. He alleges that he was negatively impacted in a job competition by a negative reference given by Mr. Johnson to the prospective employer. He alleges that the negative reference was connected to his disabilities. He alleges that the negative reference referred to his conduct or behaviour at E-Comm that was caused or contributed to by his disabilities, and described disability-related challenges he says he faced at E-Comm. I am satisfied that this is enough to surpass the low bar of Rule 24(3), which requires only an arguable contravention of the Code .
[27] The timeliness of this allegation is more complicated. Mr. Tarbuck says that it happened in December 2022, after the complaint was filed. On that basis, he argues that it is in time. He also says that he relied on information on the Tribunal’s website. The Respondents argue that the allegation is late, and the Tribunal should not exercise its discretion to accept it after the time-limit.
[28] Kruger does not address the timeliness of allegations which arise after the filing of the complaint. There may be a principled reason to draw a distinction: Oostlander v. The Owners, Strata Plan LMS2891 and others , 2024 BCHRT 141 at para. 36. However, in this case the parties have not made submissions on this issue, and so I do not find it either necessary or appropriate to address it directly. Rather, I will proceed on an assumption that the allegation about the job reference is late. Accepting it is or may be late, I exercise my discretion under s. 22(3) to accept it.
[29] Section 22(3) gives the Tribunal discretion to accept a late-filed allegation if (a) it is in the public interest to do so, and (b) no substantial prejudice will result to any person because of the delay. The burden is on the complainant to persuade the Tribunal to accept the complaint.
[30] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code . These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like 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 at para. 53 and 63. 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.
[31] Accepting, without deciding, that the time limit runs from the date when Mr. Tarbuck filed his amendment, the allegation about the negative job reference is about 13 months late. Mr. Tarbuck has not explained this delay related to the job reference, though he does point out that the complaint process was significantly delayed by the fact that it took the Tribunal 17 months to screen the complaint and give the Respondents notice of the complaint. Arguably, he says, but for this institutional delay, his amendment would have been filed much sooner. While not determinative, I accept this as a partial explanation for Mr. Tarbuck’s delay in filing the job reference allegation, at least until the Tribunal notified Mr. Tarbuck that it had accepted the complaint for filing.
[32] The factor that I find most compelling in the public interest is the likelihood that the Tribunal would have to hear evidence about the job reference regardless of whether I accept the amendment or not. This is because Mr. Tarbuck’s efforts to seek alternative employment will be relevant to his claim for wage loss. The allegation is close in time to Mr. Tarbuck’s termination, and involves Mr. Johnson – a named respondent. In this situation, there is little efficiency to be gained in denying Mr. Tarbuck the opportunity to advance this allegation. On the other hand, if I denied the amendment, there is a risk that the hearing could become “bogged down” in arguments about the relevance of evidence relating to the job reference: see eg. Graham v. West Coast Family Support Institute, 2010 BCHRT 11 at para. 58.
[33] I turn now to the issue of substantial prejudice. While Mr. Tarbuck bears the burden under s. 22(3) of the Code , the respondent is more likely to have information about substantial prejudice: Ferguson v. Ausenco Engineering Canada and another , 2015 BCHRT 28 at para. 87; Shields v. Source Interlink Canada , 2007 BCHRT 164 , para. 14 . It is not enough to just say there is prejudice. A respondent must give facts and details about what the prejudice is, and why it is substantial: Rezaei v. University of Northern British Columbia and another , 2009 BCHRT 406 , para. 80 .
[34] Here, the Respondents say that the Tribunal should infer prejudice from delay: Muir v. London Drugs, 2014 BCHRT 101. This argument primarily relates to the 2021 Events, which I have found are not allegations of discrimination.
[35] Respectfully, I cannot conclude that the Respondents would be substantially prejudiced by adding the job reference allegation to the complaint in circumstances where it occurred very shortly after the termination which is the subject of this complaint, and where the Tribunal is likely to hear evidence about it anyway in relation to wage loss.
[36] In sum, I am satisfied that it is in the public interest and does not substantially prejudice the Respondents to accept Mr. Tarbuck’s allegation about the 2022 job reference for filing.
III CONCLUSION
[37] Mr. Tarbuck’s amendment is accepted for filing.
Devyn Cousineau
Vice Chair