Ms. C v. Halton Recycling Ltd. and another, 2023 BCHRT 154
Date Issued: October 11, 2023 File: CS-006751
Indexed as: Ms. C v. Halton Recycling Ltd. and another, 2023 BCHRT 154
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:
Ms. C
COMPLAINANT
AND:
Halton Recycling Ltd. and Vince Cotton
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
Legal Counsel (Articled Student) for the Complainant: Catherine Blanchet
On behalf of the Respondents: Jennifer Malcolmson
I Introduction
[1] On April 26, 2022, Ms. C filed a complaint of discrimination in employment based on sex contrary to s. 13 of the Human Rights Code [Code], against Halton Recycling Ltd. [Halton] and its manager, Vince Cotton.
[2] Since the complaint appears to have been filed outside the one-year limitation period under s. 22 of the Code, the Tribunal sought submissions from the parties.
[3] The time limit response from the Respondents’ representative, received January 19, 2023, did not include pages 2 and 4 of the form. On March 3, 2023, the Tribunal notified the parties that the Respondents could provide a completed copy of the form. While the Complainant’s advocate informed the Tribunal that it received a completed form on March 13, 2023, the Respondents do not appear to have sent a copy of the revised form to the Tribunal. In these circumstances, I did not find it necessary to reach out to the Respondents to submit a revised copy and rendered my decision without it. I note the complainant’s advocate refers to the contents of the revised form in the reply addendum, dated March 13, 2023, for the sole purpose of highlighting the Respondents’ lack of consideration for the Tribuanal’s process.
[4] The issue before me is whether to accept the complaint for filing against Halton and Mr. Cotton given it appears to have been filed outside the one-year time limit established under s. 22(1) of the Code. I make no findings regarding the merits of this complaint.
[5] For the reasons that follow, I find it is in the public interest to accept the late-filed complaint for filing.
II Background to complaint
[6] In May 2017, Ms. C, started working as a driver for Halton. She reports being the first female working in this role at the recycling company.
[7] In May and June 2017, Ms. C reports being called “Band-Aid” by her coworkers. She states the term was used to denote her being “temporary and garbage”. During this period Ms. C further reports being supplied with extra large sized work clothing that did not fit. She says her requests for smaller sizes were denied and she was told the properly fitting coveralls she purchased for herself were inappropriate.
[8] In October 2017, Ms. C alleges a co-worker, named Devon or Devin, walked up to her in proximity of her face, sniffed her, and pronounced in front of many other co-workers in the breakroom that she “smelled like a French whore”.
[9] In November 2017, Ms. C reports being injured at work after hitting her head on a steel pin. She alleges another co-worker, Warren, caught her as she fell and proceeded to brag to co-workers that he had “caught a feel”.
[10] In January and February 2018, Ms. C reports trying to return to work full time from her injury but was denied in doing so by Mr. Cotton as he said she needed to prove she could work five days a week. Ms. C states this return-to-work barrier was not the normal practice for other in the workplace and her return to 10 hour shifts never occurred.
[11] Some time during her employment, Ms. C states a co-worker, Mike, purposefully brushed against her body on multiple occasions until she finally stood up for herself to have this conduct stopped.
[12] On March 16, 2018, Ms. C alleges another driver swung a bin in her face and told her “Get your fucking face out of my truck”. Feeling unsafe, she asked her manager if she could be picked up, but no one helped.
[13] In May 2018, Ms. C states she reported the ongoing harassment to Phil Rose, operational manager at Halton, who later left the organization before responding. She states the person replacing Mr. Rose similarly did not act on her reports of harassment.
[14] In the Summer of 2018, Ms. C reports that another driver, Wade, repeatedly asked her to have sex with him. She alleges that at one point Wade walked in front of her in the breakroom and unzipped his pants within inches of her face.
[15] On two occasions, September 2017 and August 2018, Ms. C reports finding pornography in trucks at work. On the first occasion she reports going to Mr. Rose to report the incident, however, he allegedly dismissed her complaint stating, “boys will be boys” and Halton did nothing in response. On the second occasion she states that she ripped up the pornography after discovering it as she did not think anything would be done about it by Halton if she complained.
[16] In relation to her supervisor, Mr. Cotton, Ms. C alleges he treated her differently from other workers by changing her work hours without notice or approval, changing her duties without notice, demoting her to sort recycling on the floor instead of driving the routes she was assigned to, and requiring her to stay in the facility to clean pieces of equipment and organize tools. As the only driver subjected to this conduct, she states that she felt embarrassed and belittled by Mr. Cotton. Further, Ms. C reports that when she came forward to report the harassment from her co-workers to Mr. Cotton, he failed to address her issues, despite his duty to provide a safe work environment free of bullying and harassment.
[17] In October 2018, Ms. C’s physician states the excessive bullying and harassment she was experiencing at work caused her to stop working and she has not since returned. Ms. C reports severe ongoing post-traumatic stress syndrome [PTSD], anxiety and stress from the gender and sexual harassment experienced while working at Halton. She further reports ongoing “brain fog” since the time of her head injury at work in 2017.
III ANALYSIS AND DECISION
[18] Section 22 of the Code provides:
(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.
[19] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently and to allow respondents the comfort of performing their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
A. Time limit
[20] The complaint was filed on April 26, 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 April 26, 2021.
[21] The events in question occurred during Ms. C’s employment with Halton between May 2017 and October 2018. As such, her complaint was late filed.
[22] 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
[23] 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; Mzite at para. 55.
[24] I have first considered the length of delay in filing. The latest date for allegations in this case occurred in October 2018, when Ms. C laid off work. As such, the complaint allegations were late filed over two-and one-half years, which is a significant delay and a significant consideration for the purposes of the decision: Montesi v. Vezina, 2009 BCHRT 119 at para.3; Ngo v. Vancouver Vietnamese Alliance Church, 2011 BCHRT 267 at para. 21.
[25] Ms. C provided several reasons for her delay in filing related to her mental disabilities and circumstances that exacerbated them. First, she describes the ongoing effects of her November 2017 head injury as leaving her in a perpetual state of brain fog. Second, she reports that since her time at Halton, she has had ongoing PTSD, anxiety and stress, in addition to her brain fog, which rendered it impossible for her to take on the task of filing a human rights complaint with the Tribunal.
[26] Ms. C further reports that Halton’s ongoing weekly pick ups of recycling at the building where she resides consistently triggered her fears of retaliation such that her recovery was made more difficult. She says that she was afraid to leave her home for fear she would encounter someone at Halton.
[27] Ms. C also reports her involvement with the WorkSafeBC claims process took all her capacity and strength to navigate to the extent that she was unable to file a concurrent complaint with the Tribunal. She alleges the WorkSafeBC process worsened her mental health disabilities by leaving her in a state of limbo where her benefits were constantly being cut off, her diagnoses were challenged, and she was forced to appeal compensation entitlement decisions. Ms. C described the claims process as a constant state of reporting and involvement in vocational rehabilitation programs.
[28] The April 24, 2022, report from Ms. C’s family physician, provided details of her head injury in November 2017 and the effects of excessive bullying and harassment from co-workers that resulted in her leaving work in October 2018. The doctor opined that “Over that period of time she had a lot of anxiety, stress and pain associated with the injuries and harassment she endured.” The doctor described her ongoing condition as being PTSD with anxiety. With respect to her WorkSafeBC claims process, the physician noted it took a lot of time to adjudicate her claim, which created financial instability and caused stress related to travelling to Vancouver from Vancouver Island for assessment and treatment. The physician noted WorkSafeBC’s attempt to make Ms. C go back to work at Halton caused “excessive stress and anxiety” such that she was unable to return to this type of occupation.
[29] At the time her complaint was filed in April 2022, Mr. C reports that she did not have the capacity to retrain for any new occupation under her WorkSafeBC claim due to her mental disabilities. In these circumstances, WorkSafeBC’s assessment of her potential loss of earnings was on hold until she was capable of retraining.
[30] Before September 2021, Ms. C confirmed that she was unaware of her ability to file a human rights complaint. She had thought, in error, that her human rights issues could have been addressed by WorkSafeBC. However, as of September 2021 a counsellor at the Sexual Assault Centre informed Ms. C about the Tribunal’s process. She noted that during her first three sessions with the counsellor, all she did was cry. Ms. C reported that her sessions were extended because she did not have any supports to fall back on.
[31] With the information about the Tribunal in hand, Ms. C reports visiting the Law Centre at University of Victoria for advice. There she learned about the one-year timeline for filing a compliant with the Tribunal. Ms. C states that by this time, after extensive counselling, she had come to a place where she had the emotional capacity to file this complaint. This capacity was limited to being able to direct her legal advocate to draft and file the complaint on her behalf as she could not do this task on her own.
[32] Finally, Ms. C reports the barriers created during the COVID-19 pandemic state of emergency from March 2020 until June 2021 negatively impacted her mental health, which contributed to her inability to file a complaint with the Tribunal.
[33] The Respondents did not provide any comments of significance in response to Ms. C’s reasons for late filing being attributed to her ongoing mental disabilities.
[34] Where the 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 difficulty coping with even the basic daily tasks of life: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 21
[35] In the circumstances of this case, I conclude Ms. C’s mental disabilities precluded her from filing this complaint sufficient to attract the public interest in allowing it to proceed late filed. In making this finding, I accept her evidence, as supported by her treating physician, that during the relevant time she suffered from significant debilitating mental disabilities that were triggered by thoughts of having to interact with Halton. While Ms. C demonstrated she was able to participate in the WorkSafeBC claims process, including appeals of decisions, I further accept her evidence that this participation caused her to reach the limits of her capacity to pursue legal processes, such that she could not additionally have started a complaint with the Tribunal. I agree with Ms. C that it is in the public interest to allow her a chance to be heard once she could file her compliant. I further accept that it took a reasonable amount of time between learning about the Tribunal’s process in September 2021 and filing the complaint in April 2022 for Ms. C to access advocacy resources at the Law Centre necessary to assist her in filing the complaint.
[36] After weighing all the factors, I have decided it is in the public interest to accept this late-filed complaint. While appreciating a significant delay in filing occurred, this factor is outweighed by the reasons for the delay associated with Ms. C’s mental disabilities. It is now necessary to address the issue of whether any substantial prejudice would result.
B. Substantial Prejudice
[37] The Respondents submit they will be put at a significant disadvantage and unable to defend their position should this complaint be allowed to proceed several years late filed. They argue that since both Ms. C and Mr. Cotton are no longer employed with Halton, and no complaint documentation from Ms. C to the employer exists from the relevant timeframe, they will be substantially prejudiced by this matter proceeding.
[38] Ms. C submits the Respondents will not be prejudiced in this case where Halton participated in the WorkSafeBC claim process and numerous documents exist related to this case. She notes that WorkSafeBC investigated the incidents in question, including contacting the employer, and made factual findings that Ms. C was subjected to sexual harassment and bullying in the course of her employment.
[39] While recognizing many months have passed since the events in question, I do not find a sufficient basis on which to infer sufficient prejudice in the circumstances of this case. I am satisfied that even if Halton does not have any records of the events in question, significant documentary evidence can be found in the WorkSafeBC claim record. This evidence should be enough to assist witnesses in recalling the incidents during the Tribunal’s process. I am also not convinced that substantial prejudice results from key witnesses are no longer employed with Halton. While appreciating that it might be more work to ensure such witnesses participate in the Tribunal’s process, the Respondents have not provided any information indicating any witnesses will not be available.
[40] As such, I have determined Ms. C has satisfied the burden of establishing both elements under s. 22(3) of the Code and I cannot conclude that the Respondents would suffer substantial prejudice.
IV CONCLUSION
[41] For these reasons, the complaint is accepted for filing.
___________________________________
Steven Adamson, Tribunal Member
This version of the reasons for decision has been amended in accordance with the amendment of August 13, 2025:
[1] This amendment removed the Complainant’s personal information and replaced it with the alias “Ms. C.”
___________________________________
Theressa Etmanski, Tribunal Member