Grateful Fugar v. Fraser Health Authority (Abbotsford Regional Hospital), 2025 BCHRT 106
Date Issued: May 6, 2025
File: CS-004665
Indexed as: Grateful Fugar v. Fraser Health Authority (Abbotsford Regional Hospital), 2025 BCHRT 106
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:
Grateful Fugar
COMPLAINANT
AND:
Fraser Health Authority operating as Abbotsford Regional Hospital
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Edward Takayanagi
On her own behalf: Grateful Fugar
Counsel for the Respondent: David J. Bell, Jeevan K. Mand
I INTRODUCTION
[1] In this decision, I explain why I dismiss Grateful Fugar’s human rights complaint under s. 27(1)(g) of the Human Rights Code .
[2] Ms. Fugar says Fraser Health Authority operating as Abbotsford Regional Hospital discriminated against her in employment on the basis of her race, colour, and place of origin. She says that in 2016, Fraser Health did not allow her to transfer to a different unit of the hospital when it allowed other employees to do so. She says that in 2018 Fraser Health did not reinstate her previously accrued benefits when she returned to work after she worked for a period of time as a casual employee.
[3] Fraser Health denies discriminating and applies to dismiss the complaint under s. 27(1)(c) and (g) of the Code . Under s. 27(1)(c) it argues that the complaint has no reasonable prospect of success because it is reasonably certain to prove at a hearing that there are non-discriminatory reasons for its conduct. Under s. 27(1)(g) it says the allegations in the complaint are about events that occurred more than one year before the complaint was filed and are untimely.
[4] I find I can consider this application most efficiently under s. 27(1)(g).
[5] For the following reasons, I dismiss the complaint because I am satisfied that the allegations are untimely, and it is not in the public interest to accept them.
[6] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[7] The background facts are taken from the parties’ materials. I make no findings of fact.
[8] Ms. Fugar worked for Fraser Health as a psychiatric nurse in the emergency room [ ER ] department of the hospital since 2008. This is a unionized position where the entitlement to benefits is governed by the terms of a collective agreement.
[9] In or about June 2016, Ms. Fugar and three other nurses requested a transfer to another department. Ms. Fugar says the other nurses were transferred but that her request was denied. Ms. Fugar alleges that she was told by Fraser Health that there was nowhere to move her.
[10] On or about August 1, 2016, Ms. Fugar resigned from her position as a full-time nurse and became a casual employee. She decided to resign until a new permanent position in another department became available. There is no dispute that Ms. Fugar understood that she had no entitlement to benefits as a casual employee but that her benefits would be reinstated if she returned to full-time work.
[11] In or around July 2017, Ms. Fugar obtained a full-time permanent position in the General Psychiatric Unit of the hospital. Ms. Fugar sought to reinstate her benefits including reinstating all of her sick bank and vacation days she had accrued between 2008 and 2016.
[12] On or about January 16, 2018, Fraser Health informed Ms. Fugar that it was not possible to reinstate her vacation and sick days accrued in her former position because she had not obtained her new full-time position within 180 days of resigning from her previous position, as required under the collective agreement.
[13] On or about January 19, 2018, Ms. Fugar filed a grievance through her union seeking to have her previous benefits reinstated.
[14] In a letter dated May 31, 2018, Fraser Health informed the union that Ms. Fugar was not entitled to reinstate her previously accrued benefits because she had not resumed regular full-time employment within 180 days of resignation.
[15] By a letter dated November 8, 2018, Fraser Health said, because the union had not requested arbitration of Fraser Health’s decision not to reinstate Ms. Fugar’s previous benefits or otherwise indicated that it was disputing the decision, it considered the matter abandoned.
[16] Ms. Fugar does not dispute that she received the correspondences from Fraser Health but says she believed her case was ongoing. She says that on or about March 31, 2021, Fraser Health confirmed their position not to reinstate her previously accrued benefits.
[17] Ms. Fugar filed her complaint with the Tribunal on August 11, 2021.
III DECISION
[18] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62 , 2003 BCHRT 39 at para. 12. The Tribunal has the discretion to accept untimely allegations of discrimination if it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3) , School District v. Parent obo the Child , 2018 BCCA 136 at para. 68.
[19] The first issue I must decide is whether Ms. Fugar’s complaint was filed outside the one-year time limit. This turns on whether she has alleged a timely continuing contravention of the Code . Ms. Fugar filed her complaint on August 11, 2021, therefore allegations of events occurring after August 11, 2020, are timely.
[20] A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code , and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23; School District at para. 50.
[21] Fraser Health submits that the complaint was late filed by approximately two years. It says the allegations of discrimination are that in 2016 Fraser Health denied Ms. Fugar’s request to transfer to a different department, and that in 2018 Fraser Health did not reinstate Ms. Fugar’s previously accrued benefits. It acknowledges that Ms. Fugar alleges that on March 31, 2021, Fraser Health reiterated its decision not to allow reinstatement of benefits but argues that a reiteration of a previous allegation or statement of facts does not constitute a new event for the timing of a continuing contravention.
[22] Neither party put the correspondence of March 31, 2021, before the Tribunal. Ms. Fugar, in her submission, says that in the letter Fraser Health “confirmed their position not to port my sick banked hours.” Reading this aspect of her submission in context, I understand that Ms. Fugar is not referring to a new decision by Fraser Health, but rather its confirmation of its previous decision made on January 16, 2018.
[23] I agree with Fraser Health’s submission that the complaint does not allege a fresh contravention of the Code in respect of the March 31, 2021, correspondence. I accept Fraser Health’s submission that the Tribunal’s jurisprudence is clear that a reiteration of a decision is not part of a continuing contravention: Roos v. BC Ministry of Advanced Education and others , 2018 BCHRT 197, at para. 158; A by Parent v. Interior Health Authority and others , 2019 BCHRT 213 at paras. 34-36. In my view, the reiteration of a decision that was made over three years earlier does not form a separate instance of a continuing contravention and s. 22(2) of the Code is not engaged. The allegations from 2016 and 2018 are therefore untimely.
[24] Having found Ms. Fugar’s complaint to be untimely, I now consider whether to accept it under s. 22(3). The burden is on Ms. Fugar to persuade the Tribunal to accept the complaint. I must consider two things: whether it is in the public interest to accept the complaint; and whether substantial prejudice will result to any person because of the delay.
[25] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code . These include identifying and eliminating persistent patterns of inequality and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, 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 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152; Mzite at para. 55. The inquiry is always fact and context specific.
[26] In considering whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly novel, unique, or unusual about the complaint that has not been addressed in other complaints.
[27] Ms. Fugar’s complaint is about incidents occurring in 2016 and 2018. The delay in filing, therefore, is two to four years. This is a significant delay and weighs against the public interest in accepting the complaint.
[28] Ms. Fugar asserts that she was pursuing a remedy through her union and delayed filing until it was clear Fraser Health, and her union would not provide a resolution. She says she believed she was not permitted to file a human rights complaint until she had exhausted her other avenues for a remedy.
[29] Pursuing another process for dispute resolution is not, on its own, sufficient to support a finding of public interest in accepting a late-filed complaint: Sones v. District of Squamish , 2016 BCHRT 99 at paras. 39-52. Similarly, while I appreciate that Ms. Fugar is self-represented, ignorance of the law, in and of itself, is not enough to support a finding of public interest in accepting the complaint: Joubarne v. Great West Life Assurance Co. , 2004 BCHRT 183 at para. 18.
[30] Allegations of workplace discrimination based on race, colour, and place of origin, are unfortunately not unique or novel issues to come before the Tribunal. The Tribunal has routinely addressed complaints of differential treatment in the workplace under s. 13 of the Code . The information before me does not suggest that there is anything particularly novel, unique, or unusual about the complaint that has not been addressed in other complaints before the Tribunal or that will fill a gap in the Tribunal’s jurisprudence.
[31] Considering all of the factors and the circumstances of this case, I am not persuaded that it is in the public interest to accept the complaint.
[32] Having concluded it is not in the public interest to accept the complaint for filing, it is not necessary to consider whether substantial prejudice will result to any person because of the delay.
IV CONCLUSION
[33] I allow the application and dismiss the complaint in its entirety under s. 27(1)(g).
Edward Takayanagi
Tribunal Member