Ens v. Ministry of Citizens’ Services (Supply Services – BC Mail Plus), 2025 BCHRT 150
Date Issued: June 24, 2025
File: CS-003681
Indexed as: Ens v. Ministry of Citizens’ Services (Supply Services – BC Mail Plus), 2025 BCHRT 150
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:
Juanita Ens
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Citizens’ Services (Supply Services – BC Mail Plus)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Kathleen Smith
Counsel for the Complainant: Debra Febril
Counsel for the Respondent: Graeme Norton
I INTRODUCTION
[1] In this decision, I explain my reasons for dismissing the complaint based on timeliness.
[2] Juanita Ens is an Indigenous woman from Haida Gwaii. Ms. Ens has been employed by the respondent, BC Mail Plus since April 2015 as a Postal Clerk. The respondent, BC Mail Plus, is a branch of the BC’s Ministry of Citizens’ Services that provides mail distribution and related services to the Provincial Government and broader public sector.
[3] Ms. Ens alleges that she faced repeated and ongoing racism and other forms of discrimination in the workplace since 2017. She brought her human rights complaint in the area of employment based on race, colour, ancestry, place of origin, religion, physical and mental disability, sex, and family status. In the complaint, Ms. Ens acknowledges that the alleged discriminatory conduct occurred outside the Tribunal’s one-year time limit and provides her reasons for filing her complaint late.
[4] BC Mail Plus denies discriminating against Ms. Ens. In the present application, it asks the Tribunal to dismiss the complaint on two bases: (1) the complaint has no reasonable prospect of success at a hearing, and (2) the complaint was filed outside the Tribunal’s one year time-limit and it would not be in the public interest to allow it to proceed: Human Rights Code, s. 27(1)(c) and (g).
[5] I have decided this application under section 27(1)(g) of Code, which permits the Tribunal to dismiss a late-filed complaint. Because I dismiss the complaint for being out of time, it was not necessary to consider the parties’ arguments and evidence regarding its prospects for success under s. 27(1)(c) of the Code.
II Issues
[6] In this decision, I must decide the following issues:
a. Whether the complaint was filed in time because it alleges a continuing contravention: Code, s.22(2);
b. If there is no continuing contravention;
i. whether it is in the public interest to allow the late-filed complaint to proceed; and
ii. whether substantial prejudice will result to any person because of the delay: Code, s. 22(3).
[7] For the following reasons, I do not find a continuing contravention and am not persuaded that it is in the public interest to allow the late-filed complaint.
[8] 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.
III BACKGROUND
[9] The parties provided extensive evidence in the application to dismiss process, including affidavits. I provide this timeline of events to put this decision in context. I make no findings of fact on the merits of the complaint.
[10] Ms. Ens began work at the Coquitlam office of BC Mail Plus in April 2015. She held the position of Postal Clerk. Postal Clerk is a unionized position covered by a collective agreement between the BC Public Service Agency [PSA] and the BC General Employee’s Union [Union].
[11] BC Mail Plus is led by a Senior Director who reports to the Executive Director of Supply Services within the Ministry of Citizen Services. The Coquitlam office has a Manager who reports to the Assistant Director of BC Mail Plus.
[12] Ms. Ens says that she started documenting issues at work in June 2017, including alleged bullying and harassment by a co-worker who would later become her supervisor. In this decision, I refer to that individual as the Supervisor. The Supervisor reported to the Manager of the Coquitlam office.
[13] Ms Ens’ allegations of discrimination begin in October 2018. She alleges that she was subjected to heightened scrutiny of her absences, which I understand were related to her family care responsibilities. BC Mail Plus denies this allegation.
[14] The parties agree that in November 2018, Ms. Ens reported to the Manager that an Indigenous co-worker had been subjected to an anti-Indigenous slur. Neither Ms. Ens nor the Supervisor were involved in the situation. BC Mail Plus says that the Manger addressed the incident with the two involved employees at the time and followed up with Ms. Ens. Ms. Ens alleges that her concerns about it were minimized.
[15] Ms. Ens alleges that on January 25, 2019, the Supervisor made hostile and inappropriate comments and gestures regarding her request for time off, including time off for alternate religious observance days under the collective agreement. The parties also refer to this as cultural leave. Ms. Ens planned to attend a culturally significant naming ceremony and memorial service in Haida Gwaii.
[16] BC Mail Plus says that during this interaction both Ms. Ens and the Supervisor reported feeling frustrated and/or emotional. BC Mail Plus says the situation was the result of confusion and misunderstanding about the approval process since days off for cultural observances were approved through a process separate from the one for vacation.
[17] Ms. Ens alleges that on February 1, 2019, the Supervisor made a sarcastic comment in reference to her family care responsibilities. The Supervisor denies this characterization.
[18] On February 7, 2019, Ms. Ens asked the Supervisor to refrain from wearing scented products in the workplace as it was making her sick. Ms. Ens has asthma that is aggravated by strong scents. Ms. Ens alleges that the Supervisor responded in an angry, aggressive, and rude manner.
[19] BC Mail Plus says it has a scent free workplace policy, which the Supervisor denies breaching. It also says that the Supervisor responded to Ms. Ens’ concerns appropriately.
[20] On February 21, 2019, Ms. Ens emailed the Assistant Director a 72-page document outlining alleged incidents of disrespectful and racist behaviour she faced between June 2017 and February 2019. Based on my reading of the materials, the allegations are similar to those raised in the complaint. Ms. Ens alleges that the Assistant Director agreed to investigate her concerns, then later backtracked. She also alleges that he reached a sexist conclusion when he referred to her concerns as “a conflict between two women who do not get along.”
[21] The Assistant Director investigated the allegations and concluded that the workplace issues raised by Ms. Ens did not constitute bullying, harassment, or racist conduct. He found that the issues were primarily the result of interpersonal conflict between Ms. Ens and the Supervisor. The Assistant Director denies referring to the situation as “a conflict between two women that don’t get along.”
[22] Around the same time as reaching out to the Assistant Director, Ms. Ens reached out to the Union for assistance. As set out below, a grievance was filed a year later, in February 2020.
[23] Ms. Ens alleges that she developed mental health issues as a result of the toxic and hostile work environment and that her doctor advised her to take time off.
[24] On March 5, 2019, Ms. Ens provided BC Mail Plus with a doctor’s certificate for short term illness and injury and started a medical leave. She received short-term illness and injury benefits until October 7, 2019.
[25] On March 10, 2019, Ms. Ens completed a WorkSafeBC application for compensation and reported an injury based on workplace bullying and harassment since 2017. She provided a copy of the form to the Tribunal, but it is not clear whether she submitted it to WorkSafeBC or what the outcome was. The application lists incidents almost identical to those in the complaint: (1) bullying and harassment by the Supervisor since June 2017, (2) the Supervisor’s aggressive conduct on January 25, 2019, and (3) the Supervisor’s inappropriate response to her request not to use scents on February 7, 2019.
[26] On March 26, 2019, while on medical leave, Ms. Ens emailed the Senior Director at BC Mail Plus about her concerns. She expressed the view that her earlier complaints to management were not taken seriously. She referred him to Article 32.15 of the collective agreement relating to the Misuse of Managerial/Supervisory Authority.
[27] The Senior Director forwarded Ms. Ens’ email to the Executive Director who requested PSA to initiate an investigation. PSA appointed two investigators.
[28] In April 2019, Ms. Ens’ doctor cleared her to participate in the workplace investigation.
[29] In August 2019, Ms. Ens applied for long-term disability benefits [LTD]. She received LTD benefits from October 8, 2019, to December 31, 2020. Since January 2021, she has been on an unpaid leave of absence.
[30] BC Mail Plus attached a copy of the final investigation report to the Executive Director’s affidavit. It is dated October 2019. Below I summarize the five allegations investigated by the PSA, and the conclusions as set out in the report.
[31] The PSA investigated the allegation that the Supervisor reacted to Ms. Ens in a disrespectful and racist manner on January 25, 2019. This is Allegation #1 in the report. The PSA concluded that the Supervisor acted aggressively on this date, including by finger pointing but found no evidence that her conduct was based on race or culture.
[32] The PSA investigated the allegation that the Supervisor made an inappropriate comment to Ms. Ens on February 1, 2019. This is Allegation #2 in the report. The PSA concluded that the Supervisor made a disingenuous comment to Ms. Ens regarding going home early. There is nothing in the report about it being connected to a protected characteristic at issue in the complaint.
[33] The PSA investigated the allegation that the Supervisor continued to violate the scent‑free policy despite Ms. Ens citing a medical need for her to stop. This is Allegation #3 in the report. The PSA found no evidence to support the allegation that the Supervisor wore fragrances to work before or after Ms. Ens’ complaint.
[34] The PSA investigated the allegation that the Supervisor retaliated against Ms. Ens after she complained about scents in the workplace. This is Allegation #4 in the report. The investigators deemed this allegation unsubstantiated.
[35] The PSA investigated the allegation that the Assistant Director failed to appropriately act on Ms. Ens’ complaint. This is Allegation #5 in the report. The PSA accepted that the Assistant Director attempted to address Ms. Ens’ complaint including by proposing a mediated conversation. However, the investigators found that his investigation fell short on two points – he neglected to fully investigate the allegation of finger pointing and that an employee repeatedly wore a racist t-shirt in the workplace.
[36] The Executive Director says he received a copy of the report in mid-November 2019 and accepted its conclusions, including the findings about inappropriate or inadequate conduct of the Supervisor and the Assistant Director. He also accepted the conclusion that the impugned conduct was not motivated by discrimination or racism. The Executive Director says that he issued a letter of reprimand to the Supervisor and had a coaching conversation with the Assistant Director.
[37] Ms. Ens alleges that the investigation took too long, and BC Mail Plus did not provide her with a safe environment to return to work in the interim.
[38] BC Mail Plus says that standard procedures were followed while investigating Ms. Ens’ allegations and any delays that may have occurred were unrelated to a protected characteristic. BC Mail Plus also says that Ms. Ens was on an approved long-term disability leave for the duration of the investigation.
[39] BC Mail Plus scheduled a meeting in December 2019 to review the outcome of the investigation with Ms. Ens. That meeting was later cancelled due to the requirement that Ms. Ens provide a medical certificate or doctor’s note clearing her to attend the meeting. Ms. Ens says that the short notice request for medical information caused her harm because she was not provided enough time to make an appointment with her doctor and obtain the necessary paperwork. She says that, as a result of that harm, her doctor did not clear her to attend the meeting. For these reasons, she ultimately requested to receive the investigation outcomes in writing.
[40] On January 10, 2020, the Executive Director emailed Ms. Ens and attached a document entitled “Outcomes Conclusion Letter.” The letter shows the five allegations and states whether they were substantiated, partially substantiated, or unsubstantiated. The letter indicates that appropriate action has been taken, in collaboration with the PSA, in response to the findings. The letter also notes four other issues that were raised during the investigation which the Executive Director reviewed and addressed including: alignment of responsibilities and job profiles; scent-free workplace; inappropriate workplace behaviour; and hiring practices. The Executive Director offered Ms. Ens the opportunity to discuss the findings and his response, when she is medically able to do so, or upon her return to work. The Executive Director says that she never contacted him.
[41] Ms. Ens alleges that the investigation outcomes letter did not address or resolve all of her concerns. She does not provide specific information about what she says is outstanding.
[42] On February 7, 2020, the Union filed a grievance on behalf of Ms. Ens. She does not speak to this in her submission other than to say she contacted the Union and filed a grievance. BC Mail Plus says that the grievance is related to the same workplace issues that Ms. Ens raised with the Assistant Director in February 2019. BC Mail Plus says that the grievance was withdrawn in June 2022. I have no other information about the grievance.
[43] In August 2020, Ms. Ens says that she moved to Ontario temporarily because she had not been offered any return to work. She does not say if and/or when she was medically cleared to return to work.
[44] On December 30, 2020, Ms. Ens filed this complaint with the Tribunal.
IV DECISION
[45] I am able to decide this application under s. 27(1)(g) of the Code. Section 27(1)(g) permits the Tribunal to dismiss a late-filed complaint.
[46] In my below analysis, I must decide whether the complaint is timely, and if not, whether to exercise my discretion to allow it to proceed because 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 [School District] at para. 68.
A. Is the complaint timely?
[47] 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.
[48] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code, s. 22(2); School District at para. 68. 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.
[49] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17.
[50] Ms. Ens filed her complaint on December 30, 2020. Therefore, to be timely there must be at least one allegation that occurred on or after December 30, 2019.
[51] BC Mail Plus argues that all the events related to the alleged discrimination took place well outside the one-year time limit. It further argues that Ms. Ens has not alleged any facts which could establish a continuing contravention under s. 22(2). According to BC Mail Plus, the allegations set out in the complaint are specific, time-limited events and none are ongoing in nature.
[52] In response, Ms. Ens argues that the allegations set out in the complaint amount to a continuing contravention with the last alleged conduct taking place in January 2020. She argues that the alleged discriminatory conduct was repeated and of a similar character over a period of around two years. Ms. Ens also argues that the last act of discrimination occurred when she received the investigation outcome letter on January 10, 2020. She argues that it was the same type of bullying behaviour that she faced by her employer since 2017.
[53] There is no dispute that Ms. Ens received the investigation outcomes letter on January 10, 2020. In the complaint, Ms. Ens says that she filed the complaint within one year of receiving it. She also listed it as the most recent discriminatory conduct without explaining how it contravened the Code.
[54] As I understand it, Ms. Ens’ concern with the investigation outcomes letter is that it took too long, and did not address and/or explain all of the issues raised by her. As set out above, she did not identify specific allegations that she says were not addressed or explained. It is also not apparent to me that Ms. Ens is alleging that her protected characteristic(s) factored into the timing, scope, or results of the investigation that was conducted by the PSA, or the steps that the Executive Director took in response to the findings.
[55] In her response to the dismissal application, Ms. Ens argues that the investigation outcomes can be characterized as similar in character to her other allegations. However, she does not explain what she means beyond stating that she had no opportunity to dispute the findings.
[56] I am not persuaded that the investigation outcomes form a continuing contravention. Ms. Ens appears to be dissatisfied with the scope, timing, and results of the investigation. I do not accept her assertion that this is conduct of a similar character to the alleged bullying. More importantly, it is not apparent to me that Ms. Ens is alleging a contravention of the Code with respect to the investigation outcomes. In reaching this conclusion I considered Ms. Ens’ affidavit where she speculates that there was no consideration for an Indigenous worldview in the investigation process and says that the findings need to be examined to understand who concluded that the allegations were only partially substantiated and on what basis. In my view, the questions that Ms. Ens has about the investigation process do not amount to an alleged contravention of the Code.
[57] In short, I am not satisfied that the receipt of the investigation outcomes letter represents a separate arguable contravention of the Code. In these circumstances, I do not consider it as a timely allegation that could support a continuing contravention.
[58] Having found no continuing contravention, I turn to the late-filed allegations.
[59] In the complaint, Ms. Ens acknowledges that the alleged incidents occurred outside the one-year time limit. Below, I summarize her allegations from oldest to newest.
[60] The oldest allegation is dated October 2018, more than two years before the complaint was filed. This means that the allegation about scrutiny of Ms. En’s absences is more than one year late.
[61] Similarly, the allegation about an anti-Indigenous slur in the workplace in November 2018, is more than one year late.
[62] The next series of allegations occurred in January and February 2019, making them almost one year late (ten and eleven months). These allegations include the Supervisor’s reaction to Ms. En’s request for cultural leave, as well as her comment about leaving early, and response to the request to refrain from wearing scents. They also include the allegation that the Assistant Director did not take Ms. Ens’ concerns seriously and reached a sexist conclusion. I also include the allegation about a BC Mail Plus employee wearing a racist t-shirt in this series of allegations as it occurred in February 2019 and both parties refer to it in their supporting materials on the dismissal application. I note; however, that this allegation is not set out in the complaint.
[63] There is no dispute that Ms. Ens began a medical leave in March 2019 and has not returned to work since then.
[64] Based on the above, all of the allegations are significantly late-filed.
[65] Because I find the complaint is late-filed, I now consider whether to accept all or part of the complaint under s. 22(3). The burden is on the complainant to persuade the Tribunal to accept the complaint. I must consider two factors: public interest and substantial prejudice.
B. Is it in the public interest to proceed with the complaint?
[66] 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. The Tribunal 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.
[67] Ms. Ens argues that it is in the public interest to allow her complaint to proceed for the following reasons.
a. She was involved in ongoing efforts to settle the matter through the Union/Employer process.
b. She did not have the benefit of legal advice or representation at the time of filing the complaint.
c. She was not aware of the time limit and believed the Union grievance was the only avenue for relief.
d. She did not realize until January 10, 2020, that the investigation did not include the remedies that she was seeking, including compensation, and preventative measures.
e. The complaint identifies a persistent pattern of inequality that has not been addressed by this particular public service industry.
f. Her mental health prevented her from completing the forms on time. Ms. Ens provided a letter from a Registered Clinical Social Worker dated December 21, 2020, to support this assertion.
[68] BC Mail Plus argues that Ms. Ens has not met her burden to show that it would be in the public interest to allow her late-filed complaint to proceed. For the following reasons, I agree.
[69] The length of the delay is significant. As discussed above, the allegations are all more or less a year late. This weighs against accepting the complaint under s. 22(3). I turn next to Ms. Ens’ explanation for why she filed her complaint late.
[70] First, I consider her submissions related to the grievance procedure and her knowledge of the Tribunal as a possible forum for relief. I have difficulty accepting Ms. Ens’ submission that she believed the grievance was her only avenue for relief. It is apparent from the complaint, that Ms. Ens knew that she could file a complaint with the Tribunal but initially opted to pursue the grievance because she was “lead to believe this was a more dynamic process than a Human Rights filing.” She also says that she pursued the grievance process because she believed that the incidents could be investigated more broadly and have more of an impact. She further says that the employer’s policies and procedures encompassed more than what was enforceable under the Human Rights Tribunal.
[71] Ms. Ens had the benefit of Union assistance and representation for the grievance process. She does not say that anyone advised her she could not bring a human rights complaint at the same time. Rather, the information in the complaint suggests that Ms. Ens specifically considered filing a human rights complaint at an earlier point in time but ultimately chose to focus on the grievance.
[72] Ms. Ens does not say when or how she became aware of the one-year time limit or how promptly she brought her complaint after learning about it. She also does not address the part of the complaint form where complainants are asked to provide information about any other proceedings about the same events and whether they want the Tribunal to wait to deal with their complaint.
[73] It is well established that ignorance of the Code, or the time required to become aware of one’s rights, is generally not an acceptable reason, on its own, for the delay in filing: Rashead v. Vereschagin (No. 2), 2006 BCHRT 74 at para. 12; Ferrier v. BCAA, 2009 BCHRT 412 at para. 31. Even if I were to accept Ms. Ens statement that she was not aware of the time-limit, her lack of knowledge on its own, does not support allowing the late complaint.
[74] The Tribunal has repeatedly said that pursuing another process does not suspend the time limit under the Code and that exhausting internal avenues and resources is not sufficient, on its own, to relieve against the time limit: Sones v. District of Squamish, 2016 BCHRT 99 at para. 44 and Devitt and Hargrove obo others v. School District No. 43 and another, 2011 BCHRT 218 at paras. 20-21. Therefore, the fact that Ms. Ens had another proceeding does not, on its own, support allowing the late complaint.
[75] Next, I considered the medical reasons for the delay. Ms. Ens provided a December 21, 2020, letter from a Registered Clinical Social Worker. Below I reproduce key statements in the letter.
a. The Social Worker started seeing Ms. Ens on March 14, 2019.
b. Ms. Ens, “decided to file a complaint with the Tribunal when it became clear that the issues would not be resolved by the workplace process.”
c. Ms. Ens, “found that whenever she tried to fill out the forms, she would become overwhelmed with negative emotions including depression, suicidal thoughts and severe anxiety.”
d. Ms. Ens, “has struggled with the decision to file a complaint, because it is so difficult for her emotionally. I believe that her mental health has been negatively impacted by her experiences at this workplace, and that has been the reason for any delay in filing this complaint.”
[76] BC Mail Plus relies on Spalek v. Provincial Health Services Authority, 2021 BCHRT 169 [Spalek], to argue that the Tribunal has established a high evidentiary bar for allowing a late filed complaint to proceed due to medical reasons. BC Mail Plus argues that the evidence adduced by Ms. Ens is markedly different than in Spalek where the complainant produced evidence from three doctors and a counsellor regarding her health issues and ability to file a human rights complaint. In that case, the Tribunal accepted that the complainant had a disabling condition that prevented her from filing her complaint on time. BC Mail Plus argues that in contrast, Ms. Ens has provided a single note from a Registered Clinical Social Worker that does not contain a formal medical diagnosis and is not comparable to the evidence that was before the Tribunal in Spalek.
[77] Based on the totality of the materials before me, I find Ms. Ens’ medical circumstances to be a neutral factor. While it tends to support the delay in filing, I agree the information is limited. It also does not address the evidence before me that in March 2019, Ms. Ens completed an application for WorkSafeBC and emailed the Senior Director about her concerns. She also does not address the fact that a physician cleared her to participate in the workplace investigation in April 2019.
[78] Lastly, I am not persuaded that Ms. Ens’ complaint is unique or novel. Ms. Ens has not explained how her complaint of bullying and harassment is unique or novel. In my view, it is not. The Tribunal routinely receives and decides complaints with allegations of a similar nature. She also does not elaborate on her statement that the Tribunal has not addressed discrimination in the context of this particular public service industry. The BC government is a large employer in the province and the Tribunal routinely receives complaints brought by BC public servants against various ministries. Ms. Ens does not explain what is unique about this particular worksite.
[79] On the whole of the materials before me, I am not persuaded that proceeding with this late-filed complaint is in the public’s interest.
[80] Where I do not find it in the public interest to proceed, it is not necessary for me to consider whether accepting the late-filed complaint would give rise to substantial prejudice.
V CONCLUSION
[81] I grant the application and dismiss the complaint under s. 27(1)(g) of the Code.
Kathleen Smith
Tribunal Member