The Care Aide v. Vancouver Island Health Authority and another, 2025 BCHRT 125
Date Issued: May 23, 2025 File: CS-008396
Indexed as: The Care Aide v. Vancouver Island Health Authority and another, 2025 BCHRT 125
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 Care Aide
COMPLAINANT
AND:
Vancouver Island Health Authority and The Manager
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On her own behalf: The Care Aide
Counsel for the Respondents: Annie Olson
I Introduction
[1] On December 2, 2022, the Care Aide filed a complaint alleging Vancouver Island Health Authority [ VIHA ] and her Manager [together the Respondents ] discriminated in employment based on mental disability, sex and family status, contrary to s. 13 of the Human Rights Code [ Code ].
[2] The issue before me is whether to accept the complaint for filing against the Respondents given that it appears to have been filed outside the one-year time limit established under s. 22(1) of the Code . I make no findings of fact regarding the merits of this complaint.
[3] As an alternative to arguing timeliness, the Manager sought to have the complaint against him dismissed under s. 27(1)(c) and (d) of the Code and because it does not further the purposes of the Code to pursue an induvial compliant against him. The request is premature as the focus of the issue before me is on the time limits issue. The Tribunal may provide an opportunity for such an application by the Manager when the case is reviewed to determine an appropriate case path later in the process.
[4] For the reasons that follow, I find that it is in public interest to accept the late filed complaint for filing.
II ORDER LIMITING PUBLICATION
[5] Making this decision requires a detailed discussion of the Care Aide’s mental health disabilities and past sexual assaults. As such, I have decided to order a limitation on the publication of the names of the Care Aide and the Manager to protect the Care Aide’s privacy regarding this sensitive information.
[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 limited publication of personal information exist: A v. University and Dr. B and C and D and E , 2014 BCHRT 235, at para. 5.
[7] In this case, I am persuaded that strong grounds exist to limit public knowledge of the Care Aide’s identity. I am satisfied that making this decision requires consideration of the Care Aide’s mental health issues and prior sexual assaults, which could harm her reputation and negatively affect her ability to find future employment. Naming the Care Aide in the decision may also exacerbate her mental health disability symptoms and subject her to stigmatization in the community where she lives. In protecting the privacy of the Care Aide, it is necessary in my view to also limit the publication of the name of the Manager.
[8] In making this decision, I am satisfied that publishing this decision without any individual names allows the public to access the Tribunal’s proceedings while preserving the Care Aide’s privacy. In this way, the public can scrutinize the Tribunal’s preliminary decisions in this matter without the risk of harm to the Care Aide.
III Background
[9] The Care Aide is employed in a VIHA long-term care facility.
[10] In her youth, the Care Aide reports being violently raped by a family member. She says that others told her she had to protect the rapist because he was a Catholic. The Care Aide further reports that when she later chose to raise what happened she was called a liar, bullied, tormented and intimidated until she gave up trying to discuss it. She says that she never again talked about what happened until events occurred at work.
[11] From approximately November 2020 to November 2021, the Care Aide alleges a resident in the long-term care home where she worked sexually harassed her. During that year, the Care Aide alleges making many complaints, verbally and in writing, to the team members. The Care Aide alleges that no solutions were offered to her in response to her complaints and no steps were taken to protect her in the workplace.
[12] The Care Aide alleges the ongoing sexual harassment by the resident resulted in a variety of symptoms that included night terrors, anxiety attacks with freezing in stressful situations and irritable bowel syndrome. She was eventually diagnosed and treated for post-traumatic stress disorder [ PTSD ].
[13] On November 10, 2021, the Care Aide alleges meeting with the Manager to talk about what was happening with the resident and the debilitating effects not addressing the problem was having on her health. She says that the situation was so dire that she decided to tell the Manager about her prior sexual assaults in an effort to explain why she was so horribly affected. The Care Aide alleges the Manager told her that nothing could be done because accommodating her would result in other employees proceeding to make up stories like hers in order not to avoid dealing with this difficult resident.
[14] The Care Aide alleges her symptoms worsened after not being supported by the Manager. She says that she left the meeting feeling like she was the one who did something wrong and was making something out of nothing. The Care Aide alleges that her subsequent night terrors were so severe that on one occasion she scarred her ankle trying to cut off her foot. The Care Aide alleges her other symptoms included flash backs with images playing over and over in her head. She says that when she told her husband what had happened, they decided to confront the rapist because her thoughts had become so erratic. This allegedly did not go well, as it resulted in her receiving death threats and losing most of her family.
[15] The Care Aide reports going off work as of mid November 2021 due to her PTSD related disabilities. She has not returned.
[16] From November 17 to 23, 2021, the Care Aide alleges her Manager called her several times asking for a medical note and return to work date. She alleges this contact only stopped when she emailed a copy of a medical note to the Manager on November 23, 2021.
[17] The Care Aide alleges making a WorkSafeBC claim after going off work. She says that because the Manager initially denied what had happened, she had to wait months without pay and medical insurance until her claim was finally investigated and approved.
[18] At time her complaint at the Tribunal was filed, the Care Aide states it took approximately one year for her to get into WorkSafeBC’s PTSD treatment program. After attending many mental health sessions, she alleges that she began to realize that just because she had not been raped again at work, she had nevertheless been violated by the Respondents for not taking any actions in her defence.
IV ANALYSIS AND DECISION
[19] Section 22 of the Code provides that a complaint must be filed within one year of the alleged contravention. If a complaint is filed after the expiration of this time limit the Tribunal may accept all or part of the complaint if it determines that it is in the public interest to accept the complaint, and no substantial prejudice will result to any person because of the delay.
[20] The time limit set out in s. 22 is 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
[21] The Complaint was filed on December 2, 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 December 2, 2021.
[22] The Care Aide’s allegations occurred during her employment with the Respondents for approximately one year ending on November 10, 2021. As such, the Complaint was late filed.
[23] Having found all of 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: Code s. 22(3). I begin with the public interest determination.
B. Public Interest
[24] Whether it is in the public interest to accept late-filed allegations with respect to the Corporate Respondents 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; Mzite at para. 55.
[25] I have first considered the length of delay in filing. The latest out of time allegation in this case occurred when the Care Aide met with the Manager on November 10, 2021, to request an accommodation for her mental disability. The length of the delay in this case is over three weeks, which is short, but not trivial: Panditaratne v. TransLink and Lownsbrough , 2009 BCHRT 172, para. 10 . In Panditaratne, a three-week late complaint 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, para. 13 , the Tribunal refused to accept a complaint with only three weeks’ 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 at para. 7. With this in mind, I agree with the Respondents’ assessment of the delay in this case as significant to the extent that some other indication must be found that it would be in the public interest to allow the complaint to proceed late filed apart from the short delay.
[26] The Care Aide’s main reason for late filing is related to her mental disability. In particular, she alleges that she did not initially think that her rights had been violated by the Respondents because no rape had occurred in the workplace. However, after many sessions in the PTSD program the Care Aide says that she realized that wrongs had taken place with respect to the Respondents’ behaviour.
[27] The Respondents argue that the Care Aide admits that she spoke to many professionals about her ability to file a complaint but chose not to follow their advice. Further, she demonstrated the ability to file a WorkSafeBC claim, and perhaps a grievance, which indicate her ability to proceed with a legal action at the Tribunal.
[28] While appreciating the Care Aide demonstrated the ability to pursue other avenues of redress despite her various disabilities, in the circumstances of this case I find that she was precluded from filing due to her PTSD symptoms. The evidence in this case indicates the Care Aide’s view of whether her rights had been violated by the Respondents was skewed by her PTSD symptoms. Although able to pursue avenues of redress, the Care Aide states that she was not aware of being wronged by the Respondents until she underwent many therapy sessions in the WorkSafeBC PTSD treatment program. With this in mind, it follows that the Care Aide would reject her treating professional’s recommendation that she file a complaint with the Tribunal until such time as she was able to recognize her rights were violated even though she had not been raped. Having accepted much of the Care Aide’s delay in filing was associated with her need to process events at work while attending PTSD treatment, I find the public interested attracts to this reason for allowing her late filed complaint to proceed.
[29] I also note the Care Aide states her complaint was delayed due to attending the PSTD treatment program in another city. She alleges being alone and scared five days a week at the program feeling that everyone around her was out to cause her harm. Without getting into an assessment of whether the Care Aide could have filed a complaint while away in the program because she was occupied with attending, in my view this evidence is an indication of the severity of the Care Aide’s PTSD symptoms and necessity for her to undergo extensive treatment before being able to pursue a complaint at the Tribunal.
[30] After weighing all the factors, I have decided it is in the public interest to accept this late-filed complaint. The delay in this case is brief and the Care Aide’s reason for late filing related to her PTSD symptoms attracts the public interest in allowing the complaint to proceed. It is now necessary to address the issue of whether any substantial prejudice would result.
C. Substantial Prejudice
[31] The Care Aide did not provide any submission on substantial prejudice as she admits not understanding the question on the complaint form.
[32] The Respondents asked the Tribunal to consider whether documents from 2020 continue to exist without providing any evidence to the contrary. They further argue that the passage of time in this case could infer that memories of events which gave rise to complaints or concerns of discrimination may have faded and created prejudice.
[33] In my view, no substantial prejudice would result to the Respondents because of the delay. The Tribunal has not been prepared to give effect to mere allegations of substantial prejudice, without a specific factual foundation: Rezaei v. University of Northern British Columbia and another , 2009 BCHRT 406 at para. 80 . In this case the Respondents did not provide the Tribunal with any basis to consider the potential of prejudice to them. The brief three-week delay in filing, without more, is not a sufficient basis on which to infer sufficient prejudice in these circumstances. Further, the evidence indicates the existence of other proceedings where documentary evidence will have been preserved which can be used to refresh memories.
[34] While it is true that the Care Aide bears the burden of establishing both elements under s. 22(3) of the Code , the circumstances which could give rise to substantial prejudice are far more likely to be within the Respondents’ knowledge as the employer than her: Shields v. Source Interlink Canada , 2007 BCHRT 164 at para. 14. In these circumstances, I am satisfied that the Care Aide has met her onus under s. 22(3).
V Conclusion
[35] For these reasons, the Complaint is accepted for filing.
Steven Adamson
Tribunal Member