AB v. City (No. 2), 2024 BCHRT 249
Date Issued: August 27, 2024
File: CS-000890
Indexed as: AB v. City (No. 2), 2024 BCHRT 249
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
AB
COMPLAINANT
AND:
City
RESPONDENT
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
Rule 36
Tribunal Member: Christopher J. Foy
Counsel for the Complainant: Johannes H. Schenk
Counsel for the Respondent: No submissions sought
I INTRODUCTION
[1] AB filed a complaint against the City alleging discrimination in his employment based on physical disability contrary to the Human Rights Code. AB alleged that the City failed to accommodate his keratoconus, an eye condition affecting the cornea, and a spinal condition.
[2] The City brought an application to dismiss AB’s complaint. I granted the City’s application to dismiss, in part: AB v. City , 2024 BCHRT 196 [Dismissal Decision]. One of the issues in the Dismissal Decision was whether AB’s complaint that the City failed to accommodate his eye condition was late filed and whether that aspect of the complaint should be dismissed under s.27(1)(g) of the Code.
[3] In the Dismissal Decision, I dismissed AB’s complaint against the City regarding the City’s alleged failure to accommodate AB’s eye condition. I set out my reasoning again from the Dismissal Decision at paras. 36-39 for convenience as follows:
[36] The complaint was filed on April 20, 2020. To comply with the one-year time limit under s. 22(1) or 22(2) of the Code, an alleged instance of discrimination would have to have occurred on or after April 20, 2019. I will deal first with the City’s arguments regarding AB’s eye condition then the reclassification issue.
i. Eye Condition
[37] The City points out, and AB sets out in his complaint, that the City’s alleged failure to accommodate his eye condition occurred approximately 10 years ago. I would not exercise my discretion to accept AB’s complaint regarding a failure to accommodate his eye condition under s. 22(3) of the Code as it is not in the public interest to do so.
[38] The delay is substantial which weighs against accepting of the complaint: Davy v. Northern Health Authority 2019 BCHRT 288 at para. 15. Further, AB has provided no reasons for the delay. There is also nothing particularly unique, novel, or unusual about AB’s complaint that has not been addressed in other complaints before the Tribunal. It is common for the Tribunal to hear many cases concerning discrimination in employment on the basis of physical disability under the Code.
[39] Considering the information before me, and in particular because of the length of the delay, the absence of any persuasive reason for the delay, and the lack of any other factors that would render it in the public interest to accept the complaint regarding the eye condition allegations against the City, I decline to exercise my discretion to accept this aspect of the complaint against the City for filing. I therefore need not consider the issue of substantial prejudice.
[4] AB now applies to have the Tribunal reconsider this aspect of the Dismissal Decision. AB wants me to consider accepting the late filed allegations regarding the City’s failure to accommodate his eye condition as a continuing contravention under s.22(2) of the Code.
[5] I have not found it necessary to seek submissions from the City. For the reasons below, I deny AB’s application for reconsideration.
II DECISION
[6] AB argues in his reconsideration application that his eye condition is inextricably linked to his spinal condition and that the City’s alleged failure to accommodate the eye condition “is a continuing accommodation failure that continued on with his spinal condition that was also not accommodated.”
[7] There is no timely allegation of discrimination regarding AB’s eye condition. Consequently, as I understand it, AB is arguing that the allegation of discrimination regarding the eye condition is part of a continuing contravention, anchored in the timely allegations of discrimination related to the spinal condition.
[8] The power to reconsider a decision, once made, is necessarily very narrow. Among other things, this ensures that the resources of the Tribunal and the parties are not endlessly taken up in re-arguing the same issues, which would be neither efficient nor fair: Grant v. City of Vancouver and others (No. 4) , 2007 BCHRT 206 at para. 10.
[9] The Tribunal’s jurisdiction to reconsider its own decisions is limited to cases where reconsideration is in the interests of fairness and justice: Zutter v. British Columbia (Council of Human Rights) [1995] B.C.J. No. 626 (C.A.); Fraser Health Authority v. Workers’ Compensation Appeal Tribunal , 2014 BCCA 499 at para. 160, upheld on this point in 2016 SCC 25; Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848.
[10] Reconsideration is not an opportunity for parties to “enter new facts that with reasonable diligence were available in the first instance, to make arguments that could have been made in the first instance but were not, or to reargue matters that were argued in the first instance in an attempt to achieve a different result”: Ramadan v. Kwantlen Polytechnic University and another (No. 2) , 2018 BCHRT 56 at para. 13. Here, the burden is on AB to show that reconsideration is in the interests of fairness and justice: Grant at para. 10; Rule 36(1).
[11] AB’s argument is not a basis on which I can reconsider the Dismissal Decision. This is a situation where AB is attempting to argue matters that could have been argued in the first instance in an attempt to achieve a different result. AB has not provided any reasons why this argument was not put before me at first instance.
[12] It would be neither fair nor efficient for me to reconsider the Dismissal Decision on this basis. To the contrary, granting AB’s application for reconsideration would undermine the finality of the Tribunal’s process.
[13] In the alternative, I am not satisfied in any event that AB’s eye condition allegations should be accepted when considered under s. 22(2) of the Code, leading to a reconsideration of my Dismissal Decision.
[14] The burden is on AB to establish that his allegations form part of a continuing contravention.
[15] The continuing contravention concept is not meant to arbitrarily sweep any and all untimely allegations into a complaint that is properly before the Tribunal: Van Baranaigien v. BC Ferry Services Inc. , 2016 BCHRT 33 at para. 44
[16] The assessment of whether earlier allegations of discrimination form part of a continuing contravention is contextual and fact-specific: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17 [Dickson].
[17] Various factors may be relevant to this assessment, including the character of the allegations and whether they are separated by gaps in time: Dicksonat para. 16.
[18] AB alleges that in 2005, he asked the office manager to have the City fix the air conditioning in the room where he was working as the dryness irritated his eye condition leading to a loss of tolerance for wearing contact lenses which were required for his keratoconus. AB says that the City failed to accommodate his eye condition when they did not fix the air conditioning.
[19] According to the materials provided by AB, the City did have a technician come to fix the air conditioning but the technician simply could not fix it. Consequently, the City moved AB and others to a new room which had air conditioning. There is medical evidence in the materials supporting the assertion that a lack of air conditioning can contribute to contact lens intolerance for keratoconus patients and need for corneal transplant.
[20] In 2007, AB underwent a cornea transplant in both eyes followed by several laser eye treatments to correct his vision.
[21] On July 2, 2010, AB’s eye doctor advised the City that due to the cornea’s unique healing response, AB should be excused for one more week of work and “If possible, I believe that he needs a long-term modification of his present position to minimize prolonged hours of computer monitor use.” AB alleges that the City failed to accommodate him.
[22] In a November 2, 2010 email from PJ to HR and others following up on the July 2, 2010 recommendations from AB’s eye doctor, the City noted the following:
There were no recommendations to modify the computer screen. It is not possible to provide a maximum number of hours he can use a computer screen at this time (this may be available after the new year). I have asked [AB] to provide me with a detailed outline of all of his jobs, training, interests etc. which I will forward to [HR].
[23] On July 19, 2011, AB’s computer monitor was being replaced and AB requested the City provide him with a new 24 inch monitor, “as I am doing server monitoring and it is helpful for my vision”. AB alleges that the City failed to accommodate him when it did not provide a larger monitor. AB says this subsequently caused him to lean forward toward the monitor to see properly.
[24] In October 2014, AB suffered a significant spinal disc herniation. The Workers’ Compensation Appeal Tribunal [WCAT] found that AB’s degenerative disc disease and disc herniation was aggravated by his forward-flexed seating position while working for the City and granted him benefits.
[25] AB alleges that the City never accommodated his spinal condition by allowing him to “lie down from Nov 2015 – Feb 2019” during work hours.
[26] The fact that the alleged failure to accommodate the eye condition and spinal condition are both physical disabilities or that WCAT found the spinal condition was aggravated by AB’s forward-flexed seating position is not enough to accept the eye condition allegations as a continuing contravention.
[27] In my view, there are two separate sets of allegations in this case, the eye condition and spinal condition, and they relate to different sets of interactions between AB and the City. Even if I were wrong on assessing the character of the allegations as separate, the significant unexplained gaps in time between AB’s allegations against the City related to a failure to accommodate his eye condition and then AB’s allegations against the City related to a failure to accommodate his spinal condition are too vast to be accepted as a continuing contravention.
[28] A significant, unexplained gap in time between allegations of discrimination will weigh against a finding that they form part of an alleged continuing contravention: Braun v. Avcorp Industries Inc., 2023 BCHRT 167 at para. 39.
[29] At its widest, the gap between AB’s allegations against the City related to a failure to accommodate his eye condition and then AB’s allegations against the City related to a failure to accommodate his spinal condition is 10 years (2005-2015).
[30] The narrowest gap between AB’s allegations against the City related to a failure to accommodate his eye condition by providing him with a larger monitor and then AB’s allegations against the City related to a failure to accommodate his spinal condition is just over four years (2011-2015).
[31] AB has provided no explanation for the significant gaps between allegations. AB has not provided any explanation for failing to bring the eye condition allegations to the Tribunal sooner.
[32] The gap, whether it is 10 years, four years or even one year, is significant and weighs against accepting the complaint.
[33] AB has not met his burden to establish that his allegations form part of a continuing contravention.
[34] My view is that there are two separate sets of allegations in this case and, even if I were wrong in this view, the significant unexplained gaps in time between the allegations of discrimination regarding the eye condition and allegations of discrimination regarding the spinal condition alone leads me to find that the eye condition allegations should not be accepted under s. 22(2) of theCode.
III CONCLUSION
[35] AB’s application for reconsideration is denied.
Christopher J. Foy
Tribunal Member