The British Columbia Human Rights Tribunal recently allowed an employee’s discrimination complaint to proceed even though it was filed 18 months after the last instance of discrimination, beyond the one-year limitation period. The Tribunal found that the employee had a good reason to file her claim late, and there was no substantial prejudice from the delay.
Facts of the case
The employer is an employment agency in New Westminster, British Columbia. The employee was employed by the employer starting in October 2019. Shortly after hiring, she was assigned to be a temporary employee on a construction site for the employer’s client.
According to the employee, she experienced discrimination based on her race, ancestry, place of origin, sex and gender identity soon after starting work, around November 2019, stemming from bullying and sexual harassment by employees of both the employer and client.
The employee said the harassing behaviour continued until January 20, 2020, when her employment ended. The employee said she developed anxiety, depression and post-traumatic symptoms for a long time after her employment ended. A medical assessment indicated that the employee’s symptoms affected her ability to meet deadlines, and she has been undergoing counselling and treatment since the end of her employment.
On July 19, 2021, the employee filed a complaint of discrimination in employment based on race, ancestry, place of origin, sex and gender identity, contrary to s. 13 of the British Columbia Human Rights Code, against her employer and other workplace parties. However, the complaint was filed outside the one-year limitation period under s. 22 of the Code. The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure complainants pursue their human rights remedies with some speed to allow respondents the comfort of performing their activities without the possibility of dated complaints.
The Code states that if a complaint is filed after the expiration of the time limit, 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.
The complaint was filed on July 19, 2021. To comply with the one-year time limit, the alleged act of discrimination had to occur on or after July 19, 2020. The allegations of discrimination occurred throughout the employee’s employment, culminating in her termination on January 20, 2020. The Tribunal found the allegations, in this case, were late filed. They had to proceed to an analysis of whether the Tribunal should exercise its discretion to accept the complaint outside the one-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.
It is important to note that the employee filed a claim with WorkSafeBC, but it took her longer to file a human rights complaint because remembering the discrimination triggered her trauma. The employee claimed the delay in the filling was because her mental disability prevented her from doing it earlier.
The Tribunal based its decision by making a public interest and substantial prejudice analysis and determination as required by the Code.
The Tribunal found that it was in the public interest to accept the late-filed complaint, given the legitimate reasons for the delay.
As stated by the Tribunal,
“When considering whether it is in the public interest to accept a late-filed complaint or allegation, the Tribunal considers factors including the length of the delay, the reasons for the delay, and the public interest in the complaint itself. […] The factors are not exhaustive and no one factor is determinative. The Tribunal assesses the totality of factors within the specific facts and context of the case and in accordance with the purposes of the Code.”
The complaint was filed six months after the expiration of the limitation period, which wasn’t an insignificant delay but not long enough to strongly weigh against the public interest, said the Tribunal. The employee’s evidence of her mental disability supported her reason for not filing earlier, as such a complaint requires more in-depth investment, while a WorkSafeBC complaint only required documenting her disability, the Tribunal added.
The Tribunal has found in past cases (referenced in the transcript) that it can be in the public interest to accept late complaints where the delay is due to a disabling condition (for example, Naziel-Wilson v Providence Health Care and another, 2014 BCHRT 170 at para. 21.)
The employer and client argued that the employee was able to file a WorkSafeBC claim in the period after she was fired and before filing the present complaint. They say that action contradicts the employee’s position that she was unable to file her complaint within the time limit. However, the Tribunal did not agree. In the Tribunal’s view, the employee has provided evidence supporting that she was negatively affected by her anxiety, depression and post-traumatic symptoms during the relevant period before she filed her complaint. The medical assessment report submitted to WorkSafeBC indicates her symptoms would prevent her from meeting deadlines and she was undergoing counselling and treatment during the relevant time. The employee distinguishes filing a claim with WorkSafeBC where she simply documents her disability and filing a human rights complaint where she must recall and recount the alleged discrimination which triggered her trauma. The Tribunal was persuaded that the employee’s psychological disability conditions affected her ability to file her complaint while she was undergoing treatment.
The Tribunal stated,
“In the context of the length of delay in filing, I find that the reasons for delay, specifically the evidence that [the employee] was unwell and was undergoing treatment, supports that it is in the public interest to accept the late-filed complaint.”
After their analysis, in the Tribunal’s view, no substantial prejudice would result to the employer and client as a result of the delay. The Tribunal came to the conclusion for the following reasons: “the delay in filing, without more, is not a sufficient basis on which to infer sufficient prejudice in these circumstances..”
In their time-limit response, the employer stated that the delay in filing the complaint will not cause any prejudice. However, the client said they will be substantially prejudiced because of the delay as “the memories of witnesses will have faded considerably.” They say there may be difficulties in locating witnesses due to the high turnover in the industry. They also say some witnesses may be unavailable due to health complications.
The Tribunal found that the concerns regarding the negative effects of the delay are mainly focused on locating witnesses in relation to the allegations. While there may be challenges in locating former employees who are no longer associated with the employer or client, having to put in effort does not amount to the level of substantial prejudice in this case. The potential for the difficulty is not substantial prejudice.
Given that the employer had no concerns, the risk of substantial prejudice was low and not a reason to dismiss the complaint, said the Tribunal.
As a result, the Tribunal determined that it would be in the public interest to allow the employee’s complaint to proceed, despite its late filing. I am looking forward to the decision on the merit of this case.