Blasman v. SeaLegacy and others, 2024 BCHRT 230
Date Issued: August 2, 2024
File: CS-008962Indexed as: Blasman v. SeaLegacy and others, 2024 BCHRT 230
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:
Joshua Blasman
COMPLAINANT
AND:
SeaLegacy and Only One Inc. and Kara McCarthy
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On his own behalf: Joshua Blasman
Counsel for SeaLegacy: Jennifer D. Trotti
Counsel for Only One Inc. and Kara McCarthy: Samantha Stepney
I INTRODUCTION
[1] On February 14, 2023, Joshua Blasman filed a complaint based on physical disability contrary to s. 13 of the Human Rights Code [Code], against SeaLegacy, Only One Inc. and Kara McCarthy [together the Respondents].
[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, it is not in the public interest to allow the Complaint to proceed late filed: s. 22(3).
II BACKGROUND
[4] Mr. Blasman was previously employed by the Respondents’ non-profit organization that conducts fundraising challenges and offers membership plans in support of its climate and ocean advocacy projects and campaigns. At the relevant time, he held the position of video editor.
[5] Mr. Blasman suffers from recurring shingles virus.
[6] In October 2021, the Respondents implemented a mandatory COVID-19 vaccination policy for all in-office employees requiring them to be fully vaccinated by December 31, 2021.
[7] Mr. Blasman alleges he was suffering from a shingles outbreak during the timeframe for obtaining the mandatory COVID-19 vaccination.
[8] On December 22, 2021, Mr. Blasman reports attending his family physician to discuss his ongoing shingles outbreak with resulting rash and pain. A doctor’s note for this visit states that due to a medical reason affecting Mr. Blasman’s immune system he is strongly advised to not receive any vaccination until further assessment.
[9] On February 14, 2022, Mr. Blasman alleges the Respondents terminated his employment for failure to comply with the employer’s mandatory COVID-19 vaccination policy. He alleges the Respondents fired him for non-compliance rather than helping him to find a solution, such as permitting him to work full-time remotely.
III ANALYSIS AND DECISION
[10] 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.
[11] 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.
[12] The issue in this decision is whether it is in the public interest to allow Mr. Blasman’s late-filed allegations to proceed: s. 22(3).
A. Time Limit
[13] The Complaint was filed on February 17, 2023. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination would have to have occurred on or after February 17, 2022.
[14] Mr. Blasman’s employment was terminated on February 14, 2022. As noted above, Codesection 22(1) states a complaint must be filed within one year of the alleged contravention. Rule 10 of the Tribunal’s Rules of Practice and Procedure defines filing a communication with the Tribunal as occurring when effective delivery of the communication occurs at the Tribunal. While recognizing Mr. Blasman alleges that he mailed his paper complaint form to the Tribunal on the due date for filing, February 14, 2023, the Complaint was late filed because the Tribunal did not receive the form in the mail until three days later on February 17, 2023.
[15] Given the late filing of the Complaint in this case, 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).
B. Public Interest
[16] 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.
[17] I have first considered the length of delay in filing. The most recent allegations in this case occurred when Mr. Blasman was terminated on February 14, 2022. This makes his complaint three days late, which is brief and supports the overall conclusion that it is in the public interest to allow it to proceed where other public interest factors are present: Andrus v. First Canada ULC and another, 2011 BCHRT 120 at para. 43. However, a short delay, without more, is insufficient to justify the acceptance of a late-filed complaint. It is merely one of the factors to be considered: Adolphs v. Boucher Institute of Naturopathic Medicine, 2014 BCSC 298 at para. 49.
[18] Mr. Blasman provided several reasons for his delay in filing. First, for some amount of time during the one-year time limit, Mr. Blasman states that he did not know filing a human rights complaint was an option. I consider that ignorance of the Code, or the time required to become aware of one’s rights, are generally not acceptable reasons, on their own, for a delay in filing: Rashead v. Vereschagin (No. 2), 2006 BCHRT 74 at para. 12; Ferrier v. BCAA, 2009 BCHRT 412 at para. 31. In this case, Mr. Blasman has not provided any information suggesting he should be exempt from the application of this general rule. Mr. Blasman’s submissions indicate he does not have any significant barriers related to accessing information about the Tribunal and its processes. In fact, he admits that he came to the realization that the possibility of filing a complaint existed at some point prior to making the Complaint without explaining how this occurred. In these circumstances, the public interest does not attract to Mr. Blasman not knowing about his ability to file a complaint with the Tribunal.
[19] Second, Mr. Blasman submits that once he realized filing a complaint was an option, his fear of filing held him back from doing so for some portion of the one-year timeframe. He explains that this fear initially stemmed from the need to protect his reputation in the digital media industry. If he spoke out about the Respondents, such an act would ruin his ability to obtain work in this small industry where he resides. He asks the Tribunal to consider the effects of his livelihood being stripped away in a place where he had no other options for work. At some point, however, Mr. Blasman decided to file. He states the act of doing so made him feel much better about it as he realized that it was the right thing to do.
[20] Section 43 of the Codeprotects 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. In the circumstances of this case, I am not persuaded that it is in the public interest to accept this late-filed complaint because of Mr. Blasman’s fear of the consequences of filing it. During the one year timeframe, Mr. Blasman had already severed his ties with the Respondent employer. While accepting his evidence that the industry he worked in was small in the region where he lived, he has not provided any details regarding specific threats the Respondents posed to him securing further employment. Added to this, Mr. Blasman has not explained what changed his mind when he made his decision to file a complaint and how that was related to the possibility of retaliation by the Respondents.
[21] Third, Mr. Blasman attributes the late filing of his complaint to the Tribunal’s online complaint form not functioning. While admitting he left filing the Complaint to the “last minute” for the reasons discussed above, he states that he tried to file online a couple of days in a row and realized this method was not going to work. When the online filing method failed, he states that he mailed his complaint to the Tribunal on February 14, 2023, and the Tribunal received it three days later February 17, 2023. He argues that if he had been able to submit his complaint online or via email, it would have arrived on time. Mr. Blasman asked the Tribunal to review its records of its online complaint form portal to determine if it was working on February 14, 2023 [written 2022 in error].
[22] The Tribunal’s website provides several methods for filing a complaint form with the Tribunal. The first involves filling out an online form and submitting the complaint electronically. The online form can be accessed by those wanting to set up an account, which allows them to save the form for later use. It also allows use of the online form as a “guest”, which the website describes as the easiest option. However, guests cannot leave their draft form unattended for more than 30 minutes and receive up to 8 hours to complete it or they will lose their work as it is not saved online. The other complaint form filing method involves using a print version of the form that can be filled out by hand and mailed to the Tribunal or scanned and emailed to the Tribunal.
[23] After reviewing the Tribunal’s records, I confirm the Tribunal’s online form accessed by creating an account was not working from some time before February 7, 2023, until February 16, 2023. However, access to the online form as a guest continued to function properly without any interruptions. Notices appeared on the Tribunal’s website informing potential complainants to use the guest option to create an online form as of 9:00 AM on February 9, 2023. Even without these additional notices being posted, users were always informed about the guest method for creating an online complaint form existing and being the easiest method. While appreciating the use of the Tribunal’s online form by way of an account was not likely working during the period Mr. Blasman attempted to file a complaint online, in my view this barrier does not attract the public interest when the other method for accessing the online form was available and the Tribunal’s information clearly directed users to the guest option. Added to this, if Mr. Blasman decided to fill out a printed form by hand and had any concerns that his complaint could end up late filed if he sent it by mail, he could have scanned and emailed the printed document to ensure it arrived in time. In the circumstances of this case, including the fact that Mr. Blasman has worked in the field of video editing, I am not satisfied that the unavailability of one option for filing a complaint with the Tribunal online attracts the public interest when other methods ensuring it could be filed in time existed and could have easily been discovered by him.
[24] 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.
[25] Mr. Blasman is seeking justice for his termination. He believes his case will benefit the public as a positive outcome will assure workers that it is okay to listen to their health care providers without having an employer tell them what to do with their bodies. Mr. Blasman believes this aspect of his case makes it unique. While appreciating Mr. Blasman wants accountability for how the Respondents treated him in relation to their mandatory vaccination policy and seeks to protect others in similar situations, I am unable to conclude his complaint is unique for the purposes of attracting the public interest in allowing it to proceed. The Tribunal routinely deals with cases involving discrimination in employment and physical disability, and the jurisprudence in this area is fairly settled. In addition, the Tribunal has received numerous complaints involving mandatory COVID-19 mandatory vaccination policies involving workers who did not get vaccinated alleging discrimination based on physical disability. These cases are currently making their way through the Tribunal’s processes.
[26] On balance, I do not find this Complaint attracts the public interest in allowing it to proceed late filed. While appreciating the Complaint was only filed three days late, Mr. Blasman has not adequately explained 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.
IV CONCLUSION
[27] For these reasons, the Complaint is not accepted for filing.
Steven Adamson
Tribunal Member