Sircelj v. Coast Mountain Bus Company Ltd., 2025 BCHRT 82
Date Issued: April 2, 2025
File: CS-004392
Indexed as: Sircelj v. Coast Mountain Bus Company Ltd., 2025 BCHRT 82
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:
Josef Sircelj
COMPLAINANT
AND:
Coast Mountain Bus Company Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Kathleen Smith
Advocate for the Complainant: Aleena Sharma
Counsel for the Respondent: Paige Ainslie
I INTRODUCTION
[1] In this decision, I explain my reasons for dismissing the complaint based on timeliness.
[2] Josef Sircelj worked as a Commercial Transport Mechanic at Coast Mountain Bus Company Ltd. [the Company ]. After being injured in a workplace accident, Mr. Sircelj took medical leave then started a graduated return-to-work [ GRTW ] program. Six months after starting the GRTW, the Company told Mr. Sircelj that it could no longer accommodate the GRTW plan and removed him from the workplace.
[3] In his complaint, Mr. Sircelj alleges that (1) the Company did not follow the terms of the GRTW plan which negatively impacted his ability to recover from the injury, and (2) wrongfully removed him from the workplace. He says this conduct amounts to discrimination based on physical disability contrary to s. 13 of the Human Rights Code .
[4] Mr. Sircelj acknowledges that he filed his complaint outside the Tribunal’s one-year time limit. He explains that he waited for the outcome of his Prohibited Action Complaint [ PAC ] at WorkSafeBC, as he was concerned about filing a complaint in two venues.
[5] The Company’s response to the complaint denies discrimination and asserts that the complaint is untimely and ought to be dismissed on that basis.
[6] The Company filed a dismissal application under s. 27(1)(g) of the Code . It argues that the complaint was filed sixteen months after the last alleged incident and four months outside the one-year time limit. It further says there is no continuing contravention, it is not in the public interest to accept the late-filed complaint, and that the Company would experience real and substantial prejudice if the late-filed allegations are allowed to proceed.
[7] Mr. Sircelj objects to the application and asks the Tribunal to allow his complaint to proceed for several reasons, including the public interest in the issues raised by the complaint. In his response to this application, he also says his complaint was not late filed because it alleges a continuing contravention.
[8] In this decision, I must decide the following issues:
a. Whether the complaint was filed in time because it alleges a continuing contravention.
b. If there is no continuing contravention,
c. whether it is in the public interest to allow the late-filed complaint to proceed, and
d. whether substantial prejudice will result to any person because of the delay.
[9] For the following reasons, I do not find a continuing contravention and am not persuaded that it is in the public interest to allow the late-filed complaint. 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. I make no findings on the merits of the complaint.
II BACKGROUND
[10] I provide this procedural background to put this decision in context.
[11] Mr. Sircelj filed his complaint on June 29, 2021. In the complaint he alleges that the Company discriminated against him consistently during the period of his GRTW (August 22, 2019, to February 27, 2020). He says that he waited to file his human rights complaint until the PAC process at WorkSafeBC was complete on June 10, 2021.
[12] In the usual course, the Company filed its response, and the Tribunal set dates for the parties to complete document disclosure.
[13] The Tribunal then reviewed the complaint and response under the Case Path Pilot and allowed the Company to bring a dismissal application under s. 27(1)(g). The Tribunal set a submission schedule for any application filed.
[14] The parties subsequently filed their submissions.
[15] At the same time as filing his response to the dismissal application, Mr. Sircelj brought an application to amend his complaint. He asked the Tribunal to suspend the dismissal application process until the application to amend was decided.
[16] On August 23, 2024, the Tribunal issued a letter decision denying the amendment application. The Tribunal held that “allowing Mr. Sircelj to amend his complaint at this stage would be contrary to the principles of procedural fairness and prejudicial to Coast Mountain because it would effectively create a moving target.”
[17] Because the Tribunal denied the application to amend, I have not reviewed or considered the proposed amendment in reaching my decision on this dismissal application. It also means that I have not considered those parts of Mr. Sircelj’s response submission that refer to and rely on the proposed amendment.
III DECISION
[18] 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.
[19] Section 27(1)(g) permits the Tribunal to dismiss a late-filed complaint.
[20] The Company argues that all the allegations in this complaint are late filed and should therefore be dismissed under s. 27(1)(g). Mr. Sircelj disagrees.
[21] I must decide whether the complaint is timely, and if not, whether to exercise my discretion to allow it to proceed 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(3) , School District v. Parent obo the Child , 2018 BCCA 136 [ School District ] at para. 68 .
A. Is the complaint timely?
[22] Mr. Sircelj filed his complaint on June 29, 2021. Therefore, to be timely there must be at least one allegation that occurred on or after June 29, 2020. According to the complaint, the date of the most recent conduct was February 27, 2020, which I understand to be the end of the GRTW. By my calculation, the complaint is late filed by four months.
[23] In his response to the dismissal allegation, Mr. Sircelj argues for the first time that the allegations in the complaint should be considered a continuing contravention. He bases this argument on a statement in the section of his complaint form that addresses remedies. Mr. Sircelj states that he seeks a return to work that complies with the terms of the GRTW agreement as a remedy to his complaint. Mr. Sircelj argues that this statement demonstrates that the Company’s failure to accommodate him was a continuous and ongoing state of affairs when the complaint was filed.
[24] The Company argues that the fact Mr. Sircelj continued to be removed from his pre-injury job after February 27, 2020, is not in itself a continuing contravention. The Company characterizes this as the continuing effect of an earlier alleged contravention and therefore not a continuing contravention, relying on Sarao v. Surrey Memorial Hospital , 2017 BCHRT 3 at para. 24. I agree.
[25] Mr. Sircelj has not convinced me that the complaint alleges a continuing contravention. 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.
[26] Here, Mr. Sircelj relies on his statement that he wants to return to work in compliance with the terms of the GRTW agreement if his complaint succeeds. I am not satisfied that this statement is indicative of a continuing contravention. Rather, I share the view that this statement is indicative of the continuing effects or consequences of the alleged act of discrimination.
[27] Since there is no continuing contravention, I conclude this complaint is late filed by four months.
[28] Because the complaint is late-filed, I now consider whether to accept all or part of the complaint under s. 22(3). The burden is on the complainant to persuade the Tribunal to accept the complaint. I must consider two factors: public interest and substantial prejudice.
B. Is it in the public interest to proceed with the complaint?
[29] 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. The Tribunal 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 [ 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.
[30] Mr. Sircelj argues that it is in the public interest to allow his complaint to proceed for the following reasons.
a. The issues arising in the complaint are serious and important.
b. He is a vulnerable worker and allowing the complaint to proceed would provide him with a means of redress.
c. He was under the impression that WorkSafeBC could address his allegations of discrimination.
d. He was not aware at the time that he could file a complaint with the Tribunal while the WorkSafeBC complaint was in progress.
e. The Company and others in this industry need jurisprudential guidance on the extent to which they must go to fulfill their duty to accommodate.
[31] The Company disputes that it would be in the public interest to proceed with the complaint. It advances the following arguments.
a. The length of the delay is excessive and weighs against the public interest.
b. Mr. Sircelj has not provided adequate or compelling reasons for the delay in filing the complaint.
c. A complainant’s pursuit of an alternate avenue of redress does not suspend the time limit for filing a complaint.
d. In its June 2020 response to Mr. Sircelj’s PAC, the Company stated that the allegations regarding accommodation were outside the jurisdiction of WorkSafeBC and instead captured by human rights legislation. Despite raising the jurisdiction issue at that time, the Company says Mr. Sircelj waited a year for WorkSafeBC to dismiss the PAC before filing this one.
e. There is nothing unique, novel, or unusual about the complaint.
[32] On the whole of the materials before me, I am not persuaded that proceeding with this late-filed complaint is in the public’s interest. In reaching this conclusion, I have given the following factors considerable weight.
[33] Ignorance of the Code , or the time required to become aware of one’s rights, is generally not an acceptable reason, on its own, for the delay in filing: Rashead v. Vereschagin (No. 2) , 2006 BCHRT 74 at para. 12; Ferrier v. BCAA , 2009 BCHRT 412 at para. 31.
[34] Further, it is well established that having another related proceeding does not serve to extend the time limit in s. 22 of the Code . Therefore, the fact that Mr. Sircelj had another proceeding does not, on its own, support allowing the late complaint. Mr. Sircelj filed his PAC in April 2020. He says that he was not aware he could file a complaint at the Tribunal while it was in progress. However, he does not say he was unaware that he could file a complaint under the Code at the Tribunal. He also does not address the Company’s argument that it had alerted him to the possibility that he had brought his allegations regarding the duty to accommodate in the wrong venue in June 2020, a year before he filed the complaint at the Tribunal.
[35] I agree that the complaint does not raise a particularly unique, novel, or unusual issue. On the contrary, this Tribunal routinely deals with allegations related to the duty to accommodate and employment-based discrimination faced by employees with disabilities. For the same reason, I am not persuaded that there is a lack of jurisprudence at the Tribunal regarding the extent to which employers must go to fulfill their duty to accommodate. I also do not accept Mr. Sircelj’s argument that the Company’s size and level of resources makes this case novel or unique. The Tribunal routinely hears complaints brought against employers large and small.
[36] There is no doubt that the duty to accommodate is an important issue and not permitting the complaint to proceed has the potential to deprive Mr. Sircelj of a means of redress. However, this does not outweigh the other factors relevant to the public interest. When I consider the length of the delay, his reasons, and the novelty of the complaint, I am not persuaded to exercise my discretion to allow the late-filed complaint.
[37] Where I do not find it in the public interest to proceed, it is not necessary for me to consider whether accepting the late-filed complaint would give rise to substantial prejudice.
IV CONCLUSION
[38] I grant the application and dismiss the complaint under s. 27(1)(g).
Kathleen Smith
Tribunal Member