BC Human Rights Tribunal

I INTRODUCTION

[1] On June 14, 2021, Allan Clark filed a complaint of discrimination in services based on race, mental and physical disability, gender identity or expression and sexual orientation contrary to s. 8 of the Human Rights Code[Code], against the Vancouver Coastal Health o/a Vancouver General Hospital [the Health Authority].

[2] The issue before me with respect to timeliness is whether to accept the complaint against the Health Authority. I make no findings regarding the merits of this complaint.

[3] For the reasons that follow, I find that it is not in the public interest to accept the late filed complaint for filing.

II BACKGROUND TO COMPLAINT

[4] Mr. Clark’s complaint form states he is a gay First Nations Indigenous male with anxiety, post-traumatic stress disorder [PTSD] and mobility issues.

[5] In 2008, Mr. Clark alleges he encountered racism at Vancouver General Hospital [VGH] while at the emergency department for a broken shoulder. He says that after x-rays were taken staff told him there was no break. Mr. Clark states he knew something more was wrong with his shoulder, and for this reason he demanded a further examination by medical staff. At this point, he alleges a hospital nurse told him that if he did not leave on his own accord, they would have him removed. Mr. Clark states he left and went to another hospital where the same x-rays were read by other health professionals who were able to identify a break that was later repaired by surgery. Mr. Clark states he did not understand why the nurse who ordered him to leave VGH was so hostile towards him until he received his hospital records, which included a note in large print that he was a “drug seeker”. Mr. Clark denies being a drug seeker. He alleges the nurse and other health care workers at VGH behaved badly towards him and were negligent in their duties for reasons related to discrimination and systemic racism.

[6] Mr. Clark does not report any other incidents involving the Health Authority and left the province in December 2012.

III ANALYSIS AND DECISION

[7] 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.

[8] The time limit set out in s. 22 of the Codeis a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62 , 2003 BCHRT 39.

A. Time Limit

[9] The complaint was filed on June 14, 2021. 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 June 14, 2020.

[10] The latest allegations of discrimination in this case occurred in 2008. As such, the complaint is late-filed and 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.

B. Public Interest

[11] 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.

[12] I have first considered the length of delay in filing. As noted above, the allegations of discrimination in this case occurred in 2008. As such, the complaint allegations were over 12 years late filed, which is an extreme delay, and absent truly extraordinary circumstances, a respondent should not be expected to answer allegations of discrimination so long after the fact: Prasad v. The College of Physicians and Surgeons of British Columbia , 2004 BCHRT 21, at para. 15.

[13] Mr. Clark provided several reasons for his delay in filing. First, he believes his complaint can continue because there are no statutes of limitations on First Nations human rights.

[14] I appreciate Mr. Clark’s view that his human rights in relation to alleged allegations of discrimination are not subject to BC’s Code, as an Indigenous person. I acknowledge that the Expanding Our Vision: Cultural Equality & Indigenous Peoples’ Human Rights [EOV Report] at page 14 found that for a human rights framework and process to have legitimacy with Indigenous Peoples, it cannot further the denial and exclusion of Indigenous laws. Article 40 of the United Nations Declaration of the Rights of Indigenous Peoples [UNDRIP] calls for “effective remedies for all infringements of their individual and collective rights” with consideration of “the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.” However, Mr. Clark has not pointed to any specific Indigenous custom, tradition, rule or legal system for me to consider in relation to the timeliness of his complaint.

[15] I am also aware that the EOV Report observed at page 39 that Indigenous people surveyed often cited the time limit for bringing complaints before the Tribunal as an issue. In some cases, people reported that they experienced trauma (linked to intergenerational Indian Residential School or child welfare issues) which prevented them from filing on time. The EOV Report’s recommendation 15.2 states the Tribunal should assess time extension requests with a trauma-informed lens and consider any circumstances Indigenous applicants raise tied to Indigenous traditions or ways of approaching conflict (such as attempts at relationship repair or restoration).

[16] While my time limit decision in this case is subject to the authority found in the Code, I have tried to render it with a trauma-informed lens. Here, Mr. Clark has not raised any circumstances tied to Indigenous tradition or ways of approaching conflict that explain his delay in filing.

[17] Second, Mr. Clark has argued his delay in filing is related to trauma. He states his ongoing mental disability played a role in the late filing and provides a detailed account of traumas suffered during his upbringing and other tragedies he has endured. Mr. Clark alleges that he developed ongoing mental health issues, including PTSD and anxiety, because of his previous traumas. At the time of his complaint, he reports being on disability, which appears to indicate that he is receiving some form of disability benefits related to his various disabilities. He notes applying for further disability benefits, such as funds for improving his diet, only to be repeatedly denied. Mr. Clark alleges that any contact with a police officer triggers his PTSD and anxiety symptoms. He reports making successful claims in both the Alberta Child Welfare Settlement and the Sixties Scoop Settlement. Mr. Clark believes that paying his property taxes to a government that has not paid its dues to Indigenous Peoples is racist.

[18] 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 v. Providence Health Care and another , 2014 BCHRT 170 at para. 21.

[19] I accept that Mr. Clark experienced a great deal of trauma in his life starting at a young age with the abuse he suffered at home and in foster care. Without doubting the existence of Mr. Clark’s various disabilities related to past traumas, however, he has not provided evidence of ongoing disability from filing a complaint over the many years since the events at VGH in 2008. Mr. Clark’s complaint form information indicates that despite his ongoing mental disabilities he engaged in day-to-day activities, such as maintaining a residence, owning and operating a motor vehicle, paying property taxes and participating in social activities. Further, at some point prior to making this complaint Mr. Clark was able to apply for and obtain disability benefits and seek increases in his benefits allowance on numerous occasions. He was also able to make successful settlement claims in two class actions related to his childhood traumas prior to filing this complaint. In my view, the added difficulties in filing Mr. Clark experienced because of his ongoing mental disabilities did not preclude him from filing this complaint over the more than a dozen years since the events in question occurred sufficient to attract the public interest.

[20] 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.

[21] Mr. Clark is seeking justice to prevent further systemic racism and discrimination against Indigenous persons accessing the health care system in the province. In this case, I find his complaint is novel and unique such that it attracts some public interest in allowing it to proceed late filed. While various Tribunal decisions have dealt with this issue at the preliminary stages, the Tribunal has yet to make any merits decisions on discrimination concerning Indigenous people navigating the healthcare system. If such a case proceeded to a decision after a hearing the potential remedies could have a systemic impact on behalf of Indigenous Peoples: Mr. C. v. Vancouver Coastal Health Authority and another , 2021 BCHRT 22, at para. 96.

[22] Ultimately, the filing delay in this case is extreme, and that strongly weighs against the public interest: Mohammed v. BC Ministry of Children and Family Development (No. 2) , 2017 BCHRT 159, at para. 33. The reasons Mr. Clark has provided for the delay are not sufficient to overcome the strong weight against such a dated complaint. Finally, Mr. Clark’s complaint is not so novel and unique as to warrant an extraordinary extension of the Tribunal’s time limit for filing a complaint: LeMoine v. B. C. (Ministry of Public Safety and Solicitor General) , 2009 BCHRT 163, at para. 32.

[23] For these reasons, I do not find that it is in the public interest to accept the late-filed complaint, and I need not address the issue of whether substantial prejudice would result. However, in the circumstances of this case, where the delay is excessive, I am prepared to presume there would be substantial prejudice to the Health Authority: LeMoine , at para. 34.

IV Conclusion

[24] For these reasons, the complaint is not accepted for filing.

Steven Adamson

Tribunal Member