Oram v. South Okanagan Similkameen Mental Wellness Society, 2025 BCHRT 63
Date Issued: March 7, 2025
File(s): CS-005321
Indexed as: Oram v. South Okanagan Similkameen Mental Wellness Society, 2025 BCHRT 63
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:
Rebecca Oram
COMPLAINANT
AND:
South Okanagan Similkameen Mental Wellness Society
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS PART OF A COMPLAINT
Section 27(1)(g)
Tribunal Member: Jonathan Chapnick
Advocate for Complainant: Sohrab Rezaei
Counsel for Respondent: Madison Thulien (Law Student)
I INTRODUCTION
[1] On March 23, 2021, Rebecca Oram filed a human rights complaint against South Okanagan Similkameen Mental Wellness Society [ Society ]. Ms. Oram alleges discrimination in employment based on physical disability and mental disability in contravention of s. 13 of the Human Rights Code . This decision is about whether a part of the complaint was filed late and should be dismissed without a hearing.
[2] Ms. Oram was employed by the Society as a peer support worker. She says she had post-concussion symptoms that affected her ability to perform work tasks, and alleges that the Society failed to accommodate her over a period of several months and then terminated her employment. In addition, her complaint alleges certain instances of discriminatory conduct related to her mental health, dating back to December 2019.
[3] The Society disputes most of Ms. Oram’s factual allegations, denies discriminating, and applies to dismiss part of the complaint without a hearing. It argues that the part of the complaint alleging discrimination before March 23, 2020 should be dismissed under s. 27(1)(g) of the Code because it was filed late and does not form part of a continuing contravention. The Society argues that it is not in the public interest for the Tribunal to accept Ms. Oram’s late-filed allegations under s. 22(3)(a) of the Code . Further, it says that, if the late-filed allegations were accepted, substantial prejudice would result because of the delay: Code , s. 22(3)(b).
[4] In response to the dismissal application, Ms. Oram confirms that her allegations before March 23, 2020 relate to: (1) a denied work opportunity; (2) a request for accommodation related to post-concussion symptoms in January 2020, and (3) a request for support related to vicarious trauma. She says all her allegations before and after March 23, 2020 share a common character and amount to a continuing contravention of the Code . Further, she says that, even if part of her complaint is untimely, it is in the public interest for the Tribunal to accept the complaint in its entirety under s. 22(3) and no substantial prejudice will result to any person because of the delay.
[5] For the reasons set out below, the Society’s dismissal application is granted in part. Ms. Oram’s allegations regarding a denied work opportunity and a request for support related to vicarious trauma were filed late. I have decided not to exercise my discretion under s. 22(3) to accept those late-filed allegations. They are therefore dismissed under s. 27(1)(g). On the other hand, I am satisfied that Ms. Oram’s allegation regarding a request for accommodation related to post-concussion symptoms in January 2020 was not filed late. It forms part of an alleged continuing contravention with allegations after March 23, 2020, and will therefore proceed forward to a hearing.
[6] To make my decision, I have considered all the information filed by the parties. In my reasons I only refer to what is necessary to explain what I decided. I make no findings of fact related to the merits of the complaint.
II BACKGROUND
[7] The following information is drawn from the materials before me and is set out here as background, not findings of fact. It is not meant to be an exhaustive summary of the information filed by the parties.
[8] Ms. Oram has a mental health condition. She says she also experiences post-concussion symptoms related to a car accident in 2018. She completed peer support training and began volunteering with the Society in 2013. In 2016, she transitioned to a paid, part-time peer support worker position. All peer support workers at the Society were required to have a mental health diagnosis as a condition of hire. Ms. Oram’s responsibilities as a peer support worker included conducting one-on-one sessions with clients, facilitating programs, assisting with youth activities, and maintaining client files.
[9] In her complaint, Ms. Oram makes various allegations related to her mental health and post-concussion symptoms. The following is a summary of some of those allegations.
A. Denied opportunity to facilitate Program
[10] Ms. Oram was hospitalized due to mental health issues in October 2019. In December 2019, she learned she would not be facilitating an upcoming program for the Society in the new year [ Program ]. She alleges that this was contrary to earlier assurances from management that she would facilitate the Program with a colleague. She says the chosen facilitators were less qualified and had less seniority than her. Ms. Oram alleges that her supervisor cited her recent hospitalization as one of the reasons for choosing other facilitators. She alleges that she provided a medical note in January 2020, which confirmed her fitness to work. However, the Society did not reverse its decision.
[11] For convenience, I will refer to this as the Program Allegation .
B. Unsupportive regarding vicarious trauma
[12] Ms. Oram says she was experiencing vicarious trauma in January 2020 after watching an upsetting video involving a client in October 2019. She alleges that she asked the Society for support, but the Society was unsupportive. I will refer to this as the Trauma Allegation .
C. Banned from communicating with board of directors
[13] On March 23, 2020, Ms. Oram sent an email to Society staff and members of the board of directors. She says the email contained information about certain services offered during the COVID-19 pandemic. She alleges that, later that day, the executive director of the Society banned her from contacting the board, saying she was being “alarmist” while raising concerns about Ms. Oram’s mental health. I will refer to this as the Ban Allegation .
D. Failed to accommodate in relation to post-concussion symptoms
[14] Ms. Oram says that, from January to May 2020, she experienced post-concussion symptoms affecting her cognition and vision. She says she experienced: issues with reading comprehension, memory, and concentration; difficulty following written instructions; fatigue; poor reading ability; sensitivity to light; and difficulty distinguishing between lines and grids on paper. She alleges that she told her supervisor about these issues and her related problems doing paperwork. She says the Society knew she needed more time to prepare notes and emails. She alleges that, in January 2020 and on other occasions, she requested accommodation related to paperwork tasks (e.g., maintaining client files), but the Society did not provide the requested support. Instead, she says she was told to wait for new computer software [ Software ], which would be used by the peer support program for client files. The Society acknowledges that “Ms. Oram raised concerns about managing digital client files” in January 2020, but says “it is unclear what accommodation Ms. Oram believes was refused to her.”
[15] Ms. Oram alleges that, in May 2020, her supervisors instructed her to update her client files, giving her only a week to do so despite her ongoing struggles with post-concussion symptoms. She alleges that, during this time, she requested accommodation in relation to new COVID-19-related procedures regarding cleaning and other things, such as time sheets, logs, filing, and client files. She says a supervisor “showed [her] the logs but couldn’t assist with the other things.”
E. Dismissed for neglecting to update client files
[16] On May 14, 2020, Ms. Oram told her supervisor that she intended to take a medical leave related to vision problems and other health issues. She alleges that the executive director immediately placed her on leave the next day, despite her request for more time to prepare the handover and transition of her client files.
[17] The Society terminated Ms. Oram’s employment on September 2, 2020. Ms. Oram says that “neglecting to update client files” was one of the reasons given for her dismissal. The Society says it advised Ms. Oram “of the necessity to maintain client files and [she] agreed to this condition at the time of her hire.” It says that, beginning in January 2020, staff were told that their client files would be reviewed to ensure the Society was meeting its obligations to the health authority. The Society says that all employees, including Ms. Oram, were given several reminders of a May 15, 2020 deadline “for client file completions.” It says Ms. Oram’s files were found to be “severely lacking and had not been updated in months.” The Society claims that Ms. Oram “never asked for any accommodation for the completion of client files.”
III DECISION
[18] There is a one-year time limit for filing a human rights complaint: Code , s. 22. In her complaint, Ms. Oram acknowledges that some of her allegations fall outside the time limit. Through the Tribunal’s review of the complaint and response under the Case Path Pilot Practice Direction , the Tribunal determined that the timeliness issue could potentially be more efficiently resolved before a hearing through an application under s. 27(1)(g).
[19] In its dismissal application, the Society asks the Tribunal to dismiss the allegations in Ms. Oram’s complaint “that fall outside the one-year time limit for filing a complaint (i.e., that occurred before March 23, 2020).” The issue before me, then, is whether that part of the complaint was filed late and, if so, whether it should be dismissed.
[20] Under the Code , allegations falling outside the one-year time limit are late unless they form part of a continuing contravention with an allegation falling within it: s. 22(2). To allege a continuing contravention is to allege discrimination that is ongoing, successive, or repetitive: Rush v. Fraser Health Authority (No. 2) , 2024 BCHRT 13 at para. 32; see generally School District v. Parent obo the Child , 2018 BCCA 136.
[21] The Society argues that Ms. Oram’s allegations regarding events before March 23, 2020 should be dismissed because they were filed late and should not be accepted under s. 22(3). Specifically, it argues for the dismissal of: (1) the Program Allegation; (2) the Trauma Allegation; and (3) the allegation that the Society failed to accommodate Ms. Oram in relation to her post-concussion symptoms in January 2020.
[22] Ms. Oram disagrees that these allegations were filed late. She says all of her allegations, including those before March 23, 2020, share a common character and amount to a continuing contravention of the Code . Alternatively, she says that, even if certain allegations were filed late, the Tribunal should accept them under s. 22(3).
A. Were Ms. Oram’s allegations before March 23, 2020 filed late?
[23] To answer this question, I must first look at Ms. Oram’s allegations after March 23, 2020.
1. Has Ms. Oram put forward an allegation of discrimination within the time limit?
[24] A complaint alleging a continuing contravention must be anchored in a timely allegation of discrimination: Code , s. 22(2); see School District at para. 44. This means that, to determine whether a complaint alleges a continuing contravention, the Tribunal must first assess whether the complaint alleges acts or omissions, falling within the one-year time limit, which pass the “arguable contravention test,” meaning they could, if proven, contravene the Code: see Chen v. Surrey (City) , 2015 BCCA 57 at para. 23. In Ms. Oram’s case, the assessment is whether her complaint puts forward an arguable contravention on or after March 23, 2020. Neither party made direct submissions in this regard, and the Society did not dispute that the complaint alleges an arguable contravention within the time limit. On my assessment of the complaint, I am satisfied that several of Ms. Oram’s allegations on or after March 23, 2020 pass the arguable contravention test.
[25] The threshold for passing the arguable contravention test is low: Gichuru v. Vancouver Swing Society , 2021 BCCA 103 at para. 56. Ms. Oram must only allege facts that could establish a disability-related adverse impact in her employment with the Society. I note that the Society agrees that Ms. Oram has a mental disability, and it has not disputed that she experienced disabling post-concussion symptoms (which I will refer to as a Concussion Disability ). Her alleged disabilities under the Code are therefore not contested for the purposes of the present application. With this in mind, I am satisfied that certain alleged events on or after March 23, 2020 meet the low threshold for establishing an arguable contravention.
[26] First, there is the Ban Allegation. Ms. Oram alleges that, on March 23, the executive director banned her from contacting the board of directors, citing concerns about her mental health. I appreciate that the Society’s description of this event is different than Ms. Oram’s. However, arguable contravention determinations are made without reference to alternative versions of events or explanations advanced by the respondent: Lesnikov v. Anglo American Exploration (Canada) Ltd. , 2024 BCHRT 245 at para. 35; see generally Myles v. Foot Solutions Vancouver and another , 2019 BCHRT 149 at para. 4; Bailey v. BC (Attorney General) , 2006 BCHRT 120 at para. 12; Francescutti v. Vancouver (City) , 2017 BCCA 242 at para. 49. Ms. Oram’s allegation is that the Society raised concerns about her mental health “as a means to hinder her involvement in work-related functions.” In my view, Ms. Oram has alleged facts that could support a reasonable inference of a connection between the alleged ban and her mental disability. The Ban Allegation passes the arguable contravention test.
[27] Second, Ms. Oram alleges that, in May 2020, she was given only one week to update her client files, despite her ongoing Concussion Disability. She says the Society knew about her Concussion Disability and associated functional issues related to paperwork. She alleges that, during this time, she requested accommodation in relation to new procedures for certain paperwork tasks, such as time sheets, logs, and client files. She says a supervisor assisted her with the logs, but otherwise the Society failed to accommodate her. Further, she alleges that her failure to update her client files was later cited as one of the reasons for her dismissal in September 2020. While I appreciate that Ms. Oram’s version of events is highly contested, the alleged facts she puts forward could, if proven, contravene the Code .
2. Do the allegations falling outside the time limit form part of a continuing contravention?
[28] The continuing contravention concept is not meant to arbitrarily sweep any and all untimely allegations into a complaint that is properly before the Tribunal: see Van Baranaigien v. BC Ferry Services Inc. , 2016 BCHRT 33 at para. 44. Rather, the purpose of s. 22(2) of the Code is to allow complainants to seek redress for alleged discrimination falling outside the Code ’s time limits if, and only if, “the complaint that is properly before the Tribunal represents a continuation of the earlier discrimination”: School District at para. 43.
[29] In every case, the continuing contravention analysis must be grounded in the individual circumstances of the complaint. The assessment of whether allegations of discrimination form part of a continuing contravention is contextual and fact-specific: Dickson v. Vancouver Island Human Rights Coalition , 2005 BCHRT 209 at para. 17. Various factors may be relevant to this assessment, including the character of the allegations and whether they are separated by gaps in time: see generally School District ; Rai v. Annacis Auto , 2003 BCHRT 31; Callaghan v. University of Victoria , 2005 BCHRT 589; Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204.
[30] For allegations falling outside the time limit to form part of a continuing contravention with an allegation falling within it, the earlier allegations must be of the same or similar character as the later allegation: Rush at para. 51; see generally Dove v. GVRD and others (No. 3) , 2006 BCHRT 374 at paras. 11-33 and School District at paras. 46-65. Even if allegations of discrimination are similar, however, a significant gap in time between them will weigh against a finding of a continuing contravention: Reynolds v. Overwaitea Food Group , 2013 BCHRT 67 at para. 26. The significance of a time gap is assessed contextually, considering facts such as the length of the gap and the explanation for it: Reynolds at para. 28.
[31] The burden is on Ms. Oram to establish that her complaint alleges a continuing contravention: Dove at para. 38. For the following reasons, I am persuaded that she has met this burden in relation to one of her allegations before March 23, 2020, but not the two others.
[32] I will address the allegations in turn, beginning with Ms. Oram’s claim that the Society failed to accommodate her in relation to her Concussion Disability in January 2020.
a. Failed to accommodate in relation to Concussion Disability in January 2020
[33] The Society says Ms. Oram’s allegation that it failed to accommodate her in relation to her Concussion Disability in January 2020 “is out of time and not similar to any of the in-time allegations.” The Society describes the January 2020 allegation as having been related to the Software, while characterizing Ms. Oram’s claim that it failed to accommodate her in May 2020 as relating to COVID-19 cleaning procedures. The Society argues that “computer software management and cleaning procedures are not sufficiently similar to be a continuing contravention,” and it says there was a four-month gap between these alleged events.
[34] Ms. Oram, on the other hand, characterizes the Society’s alleged failure to accommodate her as ongoing from January to May, 2020, and as culminating in her dismissal in September 2020. She alleges that she repeatedly asked for accommodation related to paperwork tasks during this time period – including making specific requests related to paperwork tasks in both January 2020 and May 2020 – but the Society did not provide the requested support, instead telling her to wait for the Software. She alleges “a pattern of the [Society’s] failure to accommodate [her] medical condition, despite knowing she was suffering from post-concussion symptoms.” Further, she alleges that her dismissal “related to the same issue for which she had been requesting support throughout January to May 2020.” She says her dismissal was “not only a continuation but also a culmination of the discriminatory conduct exhibited by the [Society] during this period.” Ms. Oram argues that her request for support in May 2020, the Society’s alleged failure to accommodate, and her subsequent termination were all connected to the same disability-related issues for which she had sought accommodation and support since January 2020, “thus establishing a clear pattern of discrimination of the same character, anchored by timely events.” I am persuaded by this argument.
[35] On the information before me, I prefer Ms. Oram’s characterization of her allegations over the Society’s. I am satisfied that her allegation that the Society failed to accommodate her with respect to paperwork tasks in January 2020 shares a common character with her allegations that: the Society’s failure to accommodate regarding her Concussion Disability was ongoing between January and May, 2020; the Society failed to accommodate her with respect to paperwork tasks related to updating her client files in May 2020; and her inability to update her client files was one of the reasons for her dismissal in September 2020.
[36] In my view, Ms. Oram’s allegation of an ongoing pattern of the Society’s failure to accommodate raises the question of whether the time “gap” between her allegations of discrete acts and omissions in January 2020 and May 2020 truly reflects a period during which she does not allege discrimination. Under the circumstances, I am satisfied that this gap is not “significant” in the sense of being so weighty as to defeat her continuing contravention claim. In addition, I am satisfied that the gap between her failure-to-accommodate allegation in May and her dismissal allegation in September is explained by her medical leave during that time.
b. Trauma Allegation
[37] The Society says Ms. Oram’s allegation that it was unsupportive regarding her experience of vicarious trauma in January 2020 is not similar in character to any of her allegations on or after March 23, 2020. I agree, and Ms. Oram makes no specific arguments in her response to persuade me otherwise.
[38] In her submissions, Ms. Oram characterizes the Trauma Allegation as an alleged failure, by the Society, to accommodate her. On the materials before me, I do not accept this characterization. In the workplace, accommodation is about removing barriers to safe and productive employment and full participation. Ms. Oram has not alleged any workplace barriers in relation to the trauma she says she was experiencing in January 2020.
c. Program Allegation
[39] Ms. Oram alleges that the Society denied her the opportunity to facilitate the Program, cited her hospitalization for mental health issues as one of the reasons for choosing other facilitators, and refused to reverse its decision when she provided a medical note confirming her fitness to work. The Society says this allegation does not form part of a continuing contravention with allegations on or after March 23, 2020. Ms. Oram disagrees.
[40] Ms. Oram argues that the Program Allegation shares a common character with the Ban Allegation. She argues that the Ban Allegation anchors the Program Allegation for the purposes of the continuing contravention analysis. She says both allegations “involve the [Society] making unfair assumptions about [her] mental health and limiting her ability to perform work-related tasks.” She argues that, like the Ban Allegation, the Program Allegation involves the Society raising concerns about her mental health in order to hinder her participation in the workplace. Further, she argues that all of her allegations before and after March 23, while not precisely mirroring one another, “nonetheless exhibit the same character by involving concerns about [her] mental health and the [Society’s] failure to provide accommodation.”
[41] I agree that the Ban Allegation and the Program Allegation share a common thread, in that they both involve alleged references to Ms. Oram’s mental health. However, I do not agree that together they form an alleged continuing contravention under the Code . In the circumstances of this complaint, based on the materials before me, I view the Ban Allegation and Program Allegation as: two discrete, alleged acts; separated by several months; relating to very different work situations. Despite their alleged connection to Ms. Oram’s mental disability, I am not satisfied that these two alleged acts, if proven, would amount to discrimination that was ongoing, successive, or repetitive.
[42] Nor am I satisfied that the Ban Allegation and Program Allegation share a common character with Ms. Oram’s allegations that the Society failed to accommodate her and terminated her employment in relation to her Concussion Disability. The latter allegations are about cognitive- and vision-related barriers to performing paperwork-type tasks and the Society’s alleged ongoing failure to accommodate. In contrast, Ms. Oram describes the Ban Allegation and Program Allegation as being about the Society making assumptions regarding her mental health and preventing her from performing work functions. Even on a nuanced and flexible analysis, I am unable to see a common character between the Ban Allegation and Program Allegation, on one hand, and the failure-to-accommodate allegations, on the other. This is not to suggest that allegations regarding different protected grounds cannot form part of the same continuing contravention. On the contrary, under certain circumstances, perhaps they can: Brewers’ Distributor Ltd. v. Kenworthy , 2015 BCSC 1670 at para. 18. However, in the present case, on the information before me, I am not satisfied that the Program Allegation forms part of any continuing contravention.
[43] In sum, then, I have determined that the allegation that the Society failed to accommodate Ms. Oram in relation to her Concussion Disability in January 2020 was filed on time. It forms part of a timely alleged continuing contravention. I have determined the opposite regarding the Trauma Allegation and the Program Allegation. Those allegations were filed late because they do not form part of a continuing contravention. As a result, they must be dismissed under s. 27(1)(g), unless I exercise my discretion to accept them under s. 22(3).
B. Should the Tribunal accept the late-filed allegations?
[44] The burden is on Ms. Oram to persuade me to accept the Trauma Allegation and the Program Allegation. She must show me that it is in the public interest to accept these late-filed allegations and no substantial prejudice will result to any person because of the delay: Code , s. 22(3).
[45] The Tribunal assesses the public interest in accepting late-filed allegations in light of the purposes of the Code , which include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: Code , s. 3. In making its assessment, the Tribunal considers relevant factors, which may vary from case to case, such as the extent of and reasons for the lateness, the complainant’s interest in accessing the Tribunal, the respondents’ interest in finality, 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; 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.
[46] The Society argues that there is no public interest reason to accept the late-filed allegations. It says the late-filed allegations do not relate to novel issues and the complaint does not allege systemic discrimination or seek systemic remedies. Further, the Society argues that the complaint is not connected to a broader pattern of disability-related discrimination within its organization. It says that it typically “has had positive experiences employing and accommodating employees with mental disabilities.”
[47] Ms. Oram argues that it is in the public interest for the Tribunal to accept her complaint in its entirety. She submits that accepting the entire complaint would further the Code ’s purposes because of the unique nature of her former employment relationship with the Society. Ms. Oram says her peer support worker job at the Society was “recognized as a form of therapeutic employment, where all peer support staff … have a mental health diagnosis.” She says that, in “such an environment, there should be an inherent expectation that peer support workers will have a robust support network to bolster their effectiveness and help them overcome barriers related to their disabilities.” She says that, unfortunately, support and oversight was severely lacking at the Society from fall 2019 to when she went on medical leave in May 2020. Ms. Oram says that both the Society’s employees and its clients are “vulnerable due to mental disabilities,” therefore the Society “must be held to a high standard to consider and address the disability-related needs of its staff.” In this regard, she argues that it “is crucial for the Tribunal to establish jurisprudence for non-profits and similar employers that support and employ vulnerable populations, offering them guidance on the extent to which they must go to fulfill their duty to accommodate.”
[48] I find these arguments to be thoughtful and compelling. I agree that exploring these types of issues at a hearing would further the Code ’s purposes. However, I am not satisfied that I must accept Ms. Oram’s late-filed allegations for such an exploration to take place.
[49] Ms. Oram’s access to the Tribunal is not an issue here. Her complaint is going to a hearing, where she can seek redress for the alleged discrimination by the Society. The Ban Allegation is proceeding forward, as are her allegations about cognitive- and vision-related barriers to performing paperwork-type tasks and the Society’s alleged ongoing failure to accommodate, culminating in her dismissal. Her other timely allegations include claims that the Society: demanded a copy of her COVID-19 test results to verify illness in April 2020; asked her to provide a doctor’s note and to return her office keys while she was on medical leave; and contacted her to discuss employment issues during her medical leave. There is nothing preventing Ms. Oram from making arguments at the hearing about the unique nature of her former employment relationship in the context of these timely allegations.
[50] For these reasons, Ms. Oram’s arguments under s. 22(3) do not persuade me that it is in the public interest to accept her late-filed allegations. As a result, it is not necessary for me to consider the issue of substantial prejudice. I decline to exercise my discretion to accept the Trauma Allegation and Program Allegation under s. 22(3). Those allegations are dismissed under s. 27(1)(g).
IV CONCLUSION
[51] The Society’s application to dismiss under s. 27(1)(g) is granted in part. The Trauma Allegation and the Program Allegation are dismissed.
[52] The complaint alleges a timely continuing contravention dating back to the allegation that the Society failed to accommodate Ms. Oram in relation to her Concussion Disability in January 2020. The Society’s application to dismiss this allegation under s. 27(1)(g) is denied.
[53] The complaint – minus the Trauma Allegation and the Program Allegation – will now proceed to a hearing. In the meantime, I encourage the parties to make efforts to settle this matter, including by making use of the Tribunal’s mediation services.
Jonathan Chapnick
Tribunal Member