Ms. H v. Water Tower Production Services, Inc. and others, 2023 BCHRT 110 – CORRECTED
Date Issued: August 22, 2023
File: CS-006920
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:
Ms. H
COMPLAINANT
AND:
Water Tower Production Services, Inc. and IATSE 669 / ICG and Mr. X
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On her own behalf: Ms. H
Counsel for IATSE 669 / ICG and Mr. X: Sandra Banister, KC and Jeremy Bryant
Counsel for Water Tower Production Services, Inc.: Kacey Krenn and Madeline Lusk
I Introduction
[1] On April 4, 2022, Ms. H filed a complaint of discrimination based on sex and political belief contrary to s. 13 of the Human Rights Code [Code], against Water Tower Production Services, Inc. [Water Tower], the International Cinematographers Guild [ICG] / International Alliance of Theatrical Stage Employees [IATSE] [together the Union], and Mr. X.
[2] In its March 6, 2023, decision, the Tribunal allowed the complaint against the Union to proceed contrary to s. 14 of the Code.
[3] Since the complaint against Water Tower and Mr. X appeared to have been filed outside the one-year limit under s. 22 of the Code, the Tribunal sought submissions from the parties on these allegations.
[4] The issue before me is whether to accept the complaint for filing against Water Tower and Mr. X given it appears to have been filed outside the one-year time limit established under s. 22(1) of the Code. I make no findings regarding the merits of this complaint or the timeliness of the complaint against the Union.
[5] For the reasons that follow, I find it is not in the public interest to accept the late-filed complaint against Water Tower and Mr. X for filing.
II Background to complaint
[6] From August 2019 to March 2020, and October 13 to 15, 2020, Ms. H was employed as a second assistant camera person in a “call in” position on Water Tower’s film production.
[7] Ms. H alleges Mr. X engaged in a pattern of sexual harassment behaviour while working on set together. Some of these incidents are detailed as follows:
· From August 2019 to October 2020, Mr. X displayed inappropriate female pornographic images in the camera truck, despite Ms. H making numerous calls to the Union to have them removed.
· From August 2019 to October 2020, if anyone asked if a person was “known” in any context, Mr. X asked “you mean in the biblical sense?” in front of Ms. H.
· From August 2019 to March 2020, Mr. X referred to his belief that “Women on set must think all the boys want to date me” completely unsolicited and out of context. On October 13, 2020, for example, he said that “Women must get hit on all the time on set. That’s probably like, their whole life.” When Ms. H corrected Mr. X by telling him women were there to do the jobs and be taken seriously, he said “I thought it would be just the opposite.”
· On October 21, 2019, Ms. H alleges Mr. X referred to a female politician as a “bitch” while the two employees were waiting between setups.
· On January 29, 2020, Ms. H alleges Mr. X repeatedly referenced a Seinfeld episode where a female character has the name “rhyming with a female body part”.
· On October 10, 2020, Ms. H alleges Mr. X inappropriately asked her for information about how to engage in sex tourism in Niagara Falls after she commented about this aspect of her home town not being a good thing.
· On October 14, 2020, Ms. H alleges Mr. X responded inappropriately to her briefing about blocking a scene by asking if the two women in the scene kissed. When Ms. H asked him what prompted him to say this, he said “As soon as you said “Two chicks, it was all over.”
[8] On October 14, 2020, Ms. H reports that one of the pornographic pictures displayed by Mr. X at work was removed after she sent copies of some of the images to the Union.
[9] On October 16, 2020, Ms. H alleges that Water Tower cancelled her work week and stopped booking her for any further production work on the show. She believes that she was fired for reporting pornography in the workplace and lost a great deal of income after working for more than a year successfully on this production.
[10] On November 9, 2020, the Union provided Ms. H with information about filing a retaliation complaint related to asserting her rights to a harassment-free workplace. Once the proper form was sent to the employer the Union stated it would ask Water Tower to provide its reasons for not asking her back to the production. The Union informed Ms. H that both Water Tower and the Union would then conduct separate investigations into the matter. Ms. H was notified that she would be interviewed by phone or in person as part of the investigation process. It then told Ms. H that if the employer did not uphold her complaint, the Union would decide if a grievance was warranted.
[11] On November 9, 2020, Ms. H sent an email to Water Tower’s contact person and the Union setting out her harassment complaint related to Mr. X’s conduct.
[12] In February 2021, Ms. H reports Water Tower completed its internal investigation. She says that the employer acknowledged the photos were inappropriate for the workplace but did not punish Mr. X and failed to reinstate her employment.
III ANALYSIS AND DECISION
[13] 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.
[14] 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.
A. Time limit
[15] The complaint was filed on May 28, 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 May 28, 2021.
[16] The allegations of discrimination in this case occured from August 2019 until October 16, 2020. During that time Ms. H alleges being exposed to sexually degrading images in the workplace and subjected to Mr. X’s various inappropriate comments of a sexualized nature. As the latest event was in mid October 2020, the complaint was late filed.
[17] Before leaving this issue, I note Ms .H argued her complaint should proceed as a continuing contravention of the Code under s. 22(2). I disagree. Given my findings as to when the allegations of discrimination occurred in this case, Ms. H has not provided any allegations filed withing the one-year time limit and, therefore, does not include any timely allegations capable of bringing in the out of time allegations from September 2019 to October 2020 as part of a continuing contravention of the Code.
[18] I also note Ms. H’s argument that a different timeframe for filing applies in this case pursuant to the Emergency Program Act as the events in question occurred during the COVID-19 pandemic. I disagree. This legislation does not apply to proceedings at the Tribunal. As set out below, considerations of the pandemic’s effects on late filing of complaints occur during the Tribunal’s public interest analysis.
[19] Having found the complaint against Water Tower and Ms. X was late filed, I 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: Code, s. 22(3). I begin with the public interest determination.
B. Public Interest
[20] 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.
[21] I have first considered the length of delay in this case. As noted above, the latest discrimination allegation concerning Water Tower and Mr. X was October 16, 2020, when Ms. H alleges Water Tower ended her employment. As such, the length of the delay in this case is over seven months. A seven-month delay weighs against accepting the complaint for filing: Paneswar v. Future Shop and others, 2012 BCHRT 297 at para. 27. This delay is significant, but not insurmountable, if other factors support acceptance: Robertson v. ContainerWest Manufacturing, 2015 BCHRT 173 at para. 27 and Ferrier v. BCAA [Ferrier], 2009 BCHRT 412 at para. 28.
[22] Ms. H provided multiple reasons for her delay. First, she reports pursuing internal avenues of redress as she thought this was the only thing that she could do to seek justice in this matter. Ms. H reports pursuing her complaint by notifying supervisors at Water Tower about the alleged sexual harassment under the employer’s harassment policy and then filing an internal complaint with Water Tower and the Union after no longer being called in to work on the show in mid October 2020. Ms. H candidly states that she did not know of any further action that could be taken by way of the Human Rights Tribunal or the Labour Relations Board once the employer finished its internal investigation in early 2021.
[23] 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 at para. 31. In this case, Ms. H demonstrated the ability inform herself about the Tribunal’s processes. She reports being prompted by a friend to “seek further legal counsel” because her situation was unacceptable to those outside the film industry. Ms. H states it was only after researching other cases in which women had complained about inappropriate images in the workplace and finding the Sexual Harassment Advice and Prevention for Workplaces [SHARP Workplaces] organization, that the concept of filing a human rights complaint occurred to her as a possibility. While appreciating the candour of Ms. H’s explanation for her delay, in my view she demonstrated the capacity to make herself aware of the Tribunal’s process and could have done so within the one-year time limit for filing.
[24] In what appears to have reinforced Ms. H’s failure to look beyond the internal complaints process, she submits that her delay can be attributed to the Union’s alleged statements to her about only being able to deal with the harassment through notifying supervisors and filing an internal complaint. However, in my view the Union’s information was provided in the context of Ms. H’s decision to pursue the internal complaint process and could not have been taken by her as the Union misinforming that she could not file a complaint with the Tribunal. As such, the time it took for Ms. H to learn about the Tribunal’s process does not attract the public interest in allowing the complaint to proceed late filed.
[25] Ms. H also raised the fear of retaliation within the industry if she spoke out and filed a human rights complaint. She states that women in the industry face further retaliation such as their reputations being compromised as freelance technicians for telling the truth.
[26] Section 43 of the Code protects individuals against retaliation for filing a complaint. With this protection in place, I find fear of potential retaliation generally does not militate towards accepting a late-filed complaint as being in the public interest: Mullholland v. City of Vancouver, 2015 BCHRT 170 at para 52; Fehr and another v. Alexander Laidlaw Housing Co-operative, 2012 BCHRT 232 at para 16; and Kafer v. Sleep Country Canada and another, 2013 BCHRT 137 at para 29.
[27] The information on file indicates Ms. H’s fear of retaliation was focused on the repercussions of reporting the alleged discrimination internally to Water Tower and the Union rather than filing a complaint with the Tribunal. While she later identified a fear of telling the truth having repercussions on her ability to work within the industry generally, her information on file initially focused on the negative effects of reporting harassment at work as opposed to the fallout from filing a human rights complaint. While Ms. H believes Water Tower retaliated against her by no longer employing her after she reported sexual harassment at work, her information about being blacklisted in her field after filing a human rights complaint in my view was a general fear that does not attract the public interest in allowing her complaint to proceed late-filed.
[28] Ms. H also refereed to the COVID-19 pandemic as a reason for her delay. After noting the devastating affects that pandemic had on the file industry because of production shutdowns, she states she was busy trying to find re-employment during the height of the Delta variant in 2021. Further, between October 2020 and May 2022, Ms. H reports also being occupied caring for aging friends and family while trying to find employment opportunities. She also states the pandemic had serious detrimental effects on her physical, emotional, and financial health. Ms. H states that during the depth of the pandemic she did not have the time and energy to “enforce her rights” pursuant to the Code as she was required to devote her time to finding a job and caring for immunocompromised family and friends.
[29] Without doubting Ms. H’s information about the toll, the recent COVID-19 pandemic took on her, I do not find the effects described attract the public interest in allowing the complaint to proceed. I accept Ms. H was busier during that time as she looked for work and attended to the needs of friends and relatives, however, her information does not indicate that she could have made time to do the necessary research online to learn about and file a complaint with the Tribunal. In reaching this conclusion, I am mindful of the fact that Ms. H was able to put forward her internal complaint in significant detail to Water Tower and the Union in November 2020 and participate in an internal investigation that concluded in early 2021. I also note from the information on file that Ms. H participated in a separate investigation involving a different matter with Water Tower in early 2021. The evidence on file indicates she participated in a phone discussion on April 7, 2021 concerning this other matter, and wrote and lengthy email to those involved in July 2021 in reaction to a negative decision she received requiring her to take a harassment prevention class.
[30] I have also considered Ms. H’s reason for late filing related to the pandemic as a submission that she suffered from disabilities that precluded her from filing a complaint on time. While Ms. H referenced the pandemic as having serious detrimental effects on her health, she has not provided any information, indicating any mental or physical disability she had which precluded her for filing, sufficient to attract the public interest in allowing her late filed complaint to proceed: MacAlpine v. Office of the Representative for Children and Youth, 2011 BCHR 29 at para. 42; Naziel-Wilson v. Providence Health Care and another,2014 BCHRT 170 at para. 21.
[31] 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 BHCRT 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.
[32] Ms. H submits allowing her case to proceed would deter others employers with male dominated workplaces from allowing sexualized, degrading, inappropriate images and pornography from being displayed in the workplace. While appreciating the seriousness and nuances Ms. H’s sexual harrassment complaint, I am not satisfied that it raises a novel issue that should be heard by the Tribunal to advance the purposes of the Code. Complaints involving sexual harassment in employment are common and the jurisprudence in this area is fairly settled.
IV CONCLUSION
[33] For these reasons, the complaint against Water Tower and Mr. X is not accepted for filing.
__________________________________
Steven Adamson. Tribunal Member
This version of the reasons for decision has been amended in accordance with the Tribunal’s unpublished decision of October 23, 2023, ordering that all references to the individual Respondent be replaced with “Mr. X.”
This version of the Reasons for Decision has been amended in accordance with the Correction of May 19, 2026:
[1] Further to the Tribunal’s order dated May 19, 2026, the name of the Complainant is removed from this decision and replaced with “Ms. H”.
Devyn Cousineau
Vice Chair