Date Issued: July 31, 2024
File: CS-005993
Indexed as: The Worker v. The Union, 2024 BCHRT 218
2024 BCHRT 218 (CanLII)
IN THE MATTER OF THE HUMAN RIGHTS CODE
R. S. B. C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
The Worker
COMPLAINANT
AND:
The Union
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On her own behalf: The Worker
Counsel for the Respondent: Jadine Lannon
I INTRODUCTION
[1] On January 24, 2022, the Worker filed a complaint based on mental disability contrary
to s. 14 of the Human Rights Code [Code], against the Union.
2024 BCHRT 218 (CanLII)
[2] The issue before me is whether it is in the public interest to accept any late-filed
allegations of discrimination under s. 22(3) of the Code. I make no findings regarding the merits
of this complaint.
[3] For the reasons that follow, I do not find it is in the public interest to allow the
complaint to proceed late filed: s. 22(3).
II PRELIMINARY MATTERS
A. Order limiting publication
[4] In rendering this decision, it is necessary to discuss the Worker’s mental disability in
some detail as it relates to her ability to file the complaint in a timely manner. As such, I have
decided to order a limitation on the publication of the names of the parties to protect the
Worker’s privacy regarding this sensitive information.
[5] While I note the Worker did not make an application to limit publication, despite being
invited to do so by the Tribunal’s chair, she did make a number of requests to limit the
publication of her name to protect her privacy in relation to the Tribunal’s recent letter
decisions concerning deadlines for filing her Form 5 – Reply.
[6] In making this order, I recognize there is a strong public interest in the Tribunal
maintaining open and public processes to promote the awareness of the Code, education about
its application, and access to its processes. However, there are exceptions to an open process
where strong grounds for limiting publication of personal information exist: A v. University and
Dr. B and C and D and E, 2014 BCHRT 235, at para. 5. In this case, I am persuaded
that public knowledge of the parties’ names, when the decision must identify the Worker’s
mental disabilities could negatively affect her employment prospects and possibly stigmatize
her within the community where she resides. These are compelling grounds
for limiting publication for the purposes of preliminary decisions on this complaint.
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B. Worker’s opportunity to file a Form 5 – Reply has ended
[7] On October 5, 2022, the Tribunal set a December 21, 2022, deadline for the Worker to
provide her Form 5 – Reply submission in relation to this time limits application.
2024 BCHRT 218 (CanLII)
[8] On February 16, 2023, the Tribunal informed the Worker that her Form 5 deadline was
in abeyance until the Tribunal considered her request to extend the deadline as an
accommodation of her disabilities.
[9] On April 27, 2023, the Tribunal informed the parties that the Worker’s Form 5 deadline
was extended until August 13, 2023, based on medical evidence the Worker submitted in a
request for accommodation under the Tribunal’s accommodation policy. This evidence was not
placed on the Worker’s complaint file pursuant to the accommodation request process and
was, therefore, not reviewed by me in rendering this decision.
[10] On November 24, 2023, the Tribunal set a new Form 5 deadline of January 11, 2024,
after apologizing for not following up on this matter since the expiry of the prior extension in
August 2023.
[11] On January 31, 2024, the Worker emailed the Tribunal to note her intention to seek a
further extension in filing her Form 5 for medical reasons. She stated her further application
would be accompanied by updated medical information. To date, no application has been
received.
[12] Given the January 11, 2024, deadline for the Worker to file a Form 5 has long since
expired without the Tribunal receiving any further accommodation application, I have decided
to proceed with this time limits decision without further input from the Worker. In this case,
the Worker was aware that the general January 11, 2024, deadline had expired and took no
action to make a request for more time to submit a reply, despite assuring the Tribunal she
would do so in her January 31, 2024, email. In these circumstances, I have concluded it is fair to
now proceed without waiting further for the Worker to provide a Form 5 – Reply to the Union’s
Form 4 – Response, which was received on November 8, 2022.
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III BACKGROUND
[13] It is necessary to review the Worker’s interaction with the Union and the Tribunal in
some detail prior to her filing of the January 24, 2022 complaint in order to understand her
2024 BCHRT 218 (CanLII)
level of capability in filing a complaint during the one-year timeframe.
[14] On March 19, 2018, the Worker was terminated from her by-law enforcement position
with a municipality.
[15] On March 27, 2018, the Union grieved the Worker’s termination, and an arbitration
hearing was scheduled for dates in early 2020.
[16] On March 15, 2019, the Worker filed a previous human rights complaint against the
Union [the Prior Complaint]. In that complaint the Worker alleged the Union did not
accommodate her mental disability from the time she went on leave in 2014 through to the
termination of her employment in 2018. She further alleged that the Union did not
accommodate her mental disability during her termination grievance up to the point of filing in
early 2019.
[17] In late 2019, the Worker requested the 2020 arbitration dates be adjourned pending the
outcome of the Prior Complaint. The request was granted, and new dates were scheduled in
January 2021.
[18] On November 18, 2020, the Union’s lawyer assigned to the arbitration emailed the
worker to schedule a meeting to prepare for the arbitration.
[19] On November 24, 2020, the Worker’s spouse and support person, Mr. F, responded to
the Union’s request by recounting the ongoing harms the Worker was experiencing as a result
of the Union’s recent contact and requests. In particular, Mr. F stated the Worker felt
overwhelmed and triggered by communications from the Union and the prospect of the
upcoming arbitration hearing. He further stated the Worker’s condition impacted her ability to
make decisions and manage administrative demands, which delayed her ability to provide him
with instructions to respond to the Union’s request. As such, Mr. F requested several
accommodations based on the Worker’s mental disabilities. These included the Union’s lawyer
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keeping all the information provided by the Worker confidential from the Union and answering
her list of questions about the meeting, which includes asking about the nature of the lawyer’s
preparation and her assessment of the Worker’s grievance.
2024 BCHRT 218 (CanLII)
[20] On November 26, 2020, the Union’s lawyer outlined the Union’s willingness to allow
some accommodations of the Worker’s disability. These included allowing Mr. F to participate
as a support person in the arbitration hearing, the Union agreeing to communicate with the
Worker in writing through Mr. F where possible, and the Union providing the Worker with as
much notice as possible when her participation was necessary. The Union refused to accept the
Worker’s accommodation requests related to its lawyer keeping information from the Union
and answering the Worker’s list of questions after concluding they went beyond its duty to
accommodate her disabilities.
[21] On November 25, 2020, the Tribunal dismissed the Worker’s Prior Complaint against the
Union because she failed to diligently pursue the complaint. While the Tribunal noted the
Worker’s reference to “disabling conditions” and “diagnosed conditions”, which it understood
to be disability-related barriers and challenges, it concluded that the Tribunal was unable to
consider the issue of reasonable accommodation without receiving any specific request,
explanation, or supporting medical information. The Tribunal found that the Worker was given
a meaningful opportunity to participate in the complaint process, however, her repeated
failures to respond to notices and deadlines set by the Tribunal, without sufficient explanation,
impacted the integrity of the proceedings. Despite warnings about the consequences of not
acting, the Tribunal found that she failed to act in breach of her duty to diligently pursue the
Prior Complaint and dismissed it under s. 27.5 of the Code.
[22] On November 27, 2020, with the support of Mr. F, the Worker set out further requests
for the Union to accommodate her in the grievance arbitration process to minimize the
aggravation of her symptoms related to not trusting Union appointees. In particular, she asked
to be granted independent legal representation of her own choosing to represent her on behalf
of the Union for all the remaining labour relations issues.
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[23] On December 1, 2020, the Union denied the Worker’s request to choose her own lawyer
to represent her in the arbitration proceedings since it was the Unions’ responsibility to
determine how it proceeds in an arbitration.
2024 BCHRT 218 (CanLII)
[24] On December 17, 2020, Mr. F emailed the Union to inform that the Worker’s health was
deteriorating as a direct result of the Union’s behaviour. In the email, Mr. F set out a detailed
summary of the Worker’s discrimination allegations concerning the Union from 2014 to mid
December 2020. With respect to the Worker’s symptoms as of the December 2020, Mr. F
stated on her behalf that she was suffering from significant and negative impacts on her ability
to function, even on a daily basis, because of chronic sleep disruption and fatigue, frequent
headaches, severely decreased concentration and focus, significantly impaired memory,
unhealthy social and self-isolation, unpredictable panic attacks, emotional dysregulation,
severely impaired decision-making ability and constant hypervigilance. Mr. F argued the way
the Union was treating the Worker was damaging her ability to participate in the labour
relations matters and was a violation of her human rights. On the Worker’s behalf, Mr. F asked
the Union to immediately suspend the arbitration process and hire an independent mediator to
mediate issues between the Worker, the Union lawyer and the Union.
[25] On December 21, 2020, the Union responded by confirming that it was not reasonable
or feasible to appoint an independent legal counsel to represent the Worker in this matter or
hire an independent mediator to assist with communications. On the issue of postponing the
arbitration hearing scheduled in January 2021, the Union asked the Worker to provide a note
from her attending physician regarding her limitations for the arbitrator’s consideration.
[26] On January 7, 2021, the Union provided the Worker with details for participating in the
arbitration hearing by video. No medical information supporting the Worker’s adjournment
request was received prior to the hearing.
[27] On January 14, 2021, the arbitration hearing proceeded without the Worker in
attendance.
[28] On January 15, 2021, the arbitrator issued a consent order following the parties’
participation in a mediation, which the Worker had not participated in.
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[29] On January 24, 2022, the Worker filed a second discrimination complaint against the
Union for its failure to accommodate her mental disabilities in relation to the January 14, 2021,
arbitration hearing. The Worker’s complaint outlined her allegations against the Union for
failing to accommodate her disabilities by denying her request to have an independent counsel
2024 BCHRT 218 (CanLII)
represent her in the arbitration hearing, denying her request to have an independent mediator
to improve communications between herself and Union, and by failing to bring her
adjournment request to that attention of the arbitrator.
IV ANALYSIS AND DECISION
[30] Section 22 of the Code provides:
(1) A complaint must be filed within one year of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint
must be filed within one year of the last alleged instance of the
contravention.
(3) If a complaint is filed after the expiration of the time limit referred to
in subsection (1) or (2), a member or panel may accept all or part of the
complaint if the member or panel determines that:
a. it is in the public interest to accept the complaint, and
b. no substantial prejudice will result to any person because of the
delay.
[31] 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 and to allow
respondents the comfort of performing their activities without the possibility of a dated
complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[32] The central issue in this decision is whether it is in the public interest to allow the
Worker’s late-filed allegations to proceed: s. 22(3).
C. Time Limit
[33] The complaint was filed on January 24, 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 January 24,
2021.
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[34] The events in question occurred from late 2020 until the arbitration hearing on January
14, 2021. As such, I find her complaint was late filed.
[35] Having found the allegations in this case were late filed, I proceed to an analysis of
whether the Tribunal should exercise its discretion to accept the complaint outside the one-
2024 BCHRT 218 (CanLII)
year time limit because it is in the public interest to do so, and no substantial prejudice will
result to any person because of the delay: Code s. 22(3). I begin with the public interest
determination.
D. Public Interest
[36] 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. I have first considered the length of delay in filing.
[37] The allegations in this case occurred up to January 14, 2021. The length of the delay in
this case is 10 days, which is short, but not trivial: Panditaratne v. TransLink and
Lownsbrough, 2009 BCHRT 172, para. 10. In Panditaratne, a complaint less than a
month late was not accepted because there was no explanation for the delay and no other
indication that it would be in the public interest to accept the late complaint. In Berladyn v.
Omega Nutrition, 2016 BCHRT 105, at para. 13, the Tribunal refused to accept a complaint with
a similarly short delay. In that case, the Tribunal said, “the length of the delay is over two
weeks, which is relatively brief and not substantial. Such a delay often tends to suggest that it
would be in the public interest to accept a complaint, but even short delays can be outweighed
by other factors: Andres v. Hiway Refrigeration, 2009 BCHRT 135.” In this case, a 10-
day delay suggests that it may be in the public interest to accept the Worker’s complaint, but
other factors must be weighed before reaching such a conclusion.
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[38] The Worker’s reasons for late filing focus on her disability from filing, allegedly
aggravated by her interactions with the Union from November 2020 until the January 14, 2021,
arbitration hearing. The Worker submits that when she later tried to start the Complaint, her
ongoing symptoms undermined and prolonged her efforts to complete the form in time. She
2024 BCHRT 218 (CanLII)
further alleges that recalling the bullying behaviours of the Union’s representatives in her
attempts to set out her complaint triggered her such that her functional abilities were
negatively impacted at times. The Worker further submits that her complaint was late filed as
she was stressed by the prospect of losing her family physician at the end of 2021 and did not
want to subject herself to other stressors, such as filing this complaint. In sum, the Worker
submits that she was too physically ill from January 2021 until recently to file her complaint.
[39] Where 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 trouble coping with even the basic daily tasks of life: Naziel-
Wilson at para. 21.
[40] I accept the Worker’s evidence that at the time for filing a complaint she had ongoing
disability that was triggered by focusing on the alleged negative treatment she received from
the Union in a grievance process that is not worker centric. The fullest description of the
Worker’s symptoms at the relevant time is found in Mr. F’s email, dated December 17, 2020,
which describes her as suffering from significant and negative impacts on her ability to function,
even on a daily basis, due to chronic sleep disruption and fatigue, frequent headaches, severely
decreased concentration and focus, significantly impaired memory, unhealthy social and self-
isolation, unpredictable panic attacks, emotional dysregulation, severely impaired decision-
making ability and constant hypervigilance. As such, I have no doubt the worker’s had mental
disabilities that weighed on her ability to file a complaint within the one year permitted to file.
[41] The more difficult question in this case, however, is whether the Worker’s disabilities
precluded her from filing to the extent necessary to attract the public attention in allowing her
late filed complaint to proceed. Here, I am not satisfied such evidence of disability exists. The
Worker is capably represented by her husband, Mr. F, who demonstrated his ability to receive
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instructions from her and author sophisticated submissions setting out her discrimination
allegations during times when her disability had been triggered by the Union in late 2020. Apart
from what appears to be some further triggering related to the Worker thinking about previous
events to set out a complaint with the Tribunal, the Worker has not identified any increased
2024 BCHRT 218 (CanLII)
disability during the one-year timeframe for filing. The Worker has demonstrated she could set
out her discrimination allegations coherently and in detail with the assistance of Mr. F in
advance of the January 2021 arbitration, however, she has not provided any evidence her
disabilities increased throughout the year that followed sufficient to attract the public interest.
In my view, the Worker has not explained why she could not have instructed Mr. F to file a
complaint by simply restating the allegations already expressed in emails to the Union in a
complaint initiating form.
[42] 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.
[43] The Worker is seeking justice for the Union’s alleged failure to accommodate her
disability. She thinks the Tribunal may not have addressed this issue before in its previous
decisions. From my review of the Tribunal’s published decisions, the jurisprudence in this area
is fairly settled: see for example, Byelkova v. British Columbia Nurses’ Union, 2019 BCHRT 119.
[44] In the end, I do not find this Complaint attracts the public interest in allowing it to
proceed late filed. The delay in filing was relatively short, but the Worker’s disability, in
circumstances where her husband had already articulated her complaint allegations in late
2020, does not adequately explain the delay. Further, the Complaint is not sufficiently unique
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or novel to attract the public interest. Having not found it is in the public interest to accept the
late-filed complaint, I need not address the issue of whether substantial prejudice would result.
V Conclusion
2024 BCHRT 218 (CanLII)
[45] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member
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