The Worker v. The Union, 2024 BCHRT 218
Date Issued: July 31, 2024
File: CS-005993Indexed as: The Worker v. The Union, 2024 BCHRT 218
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.
[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.
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.
[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.
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 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 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.
[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.
[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.
[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.
[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 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 Codeprovides:
(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.
[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-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: Codes. 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; Mziteat 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.
[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 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-Wilsonat 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 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 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: Mziteat 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: Mziteat 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 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
[45] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member