Marchfelder v. The University of British Columbia, 2025 BCHRT 161
Date Issued: July 8, 2025
File: CS-006226
Indexed as: Marchfelder v. The University of British Columbia, 2025 BCHRT 161
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:
Bruce Marchfelder
COMPLAINANT
AND:
The University of British Columbia
RESPONDENT
REASONS FOR DECISION
APPLICATION TO AMEND A COMPLAINT
Rule 24
Tribunal Member: Ijeamaka Anika
Counsel for the Complainant: Lia Moody
Counsel for the Respondent: Danielle Temple
I INTRODUCTION
[1] Bruce Marchfelder applies to amend his complaint against the University of British Columbia [UBC] under Rules 24(1) and Rule 24(4) of the Tribunal’s Rules of Practice and Procedure.
[2] Mr. Marchfelder filed his complaint on February 15, 2022, alleging discrimination in employment based on disability, contrary to s. 13 of the Human Rights Code. He alleges that after he disclosed his mental disability (Attention Deficit Hyperactivity Disorder or ADHD) to UBC and requested accommodation in the workplace, UBC rejected his requests and did not provide or propose any accommodation. Rather, UBC provided unwarranted criticism of his work performance, demoted, reprimanded, and placed him on an unpaid leave.
[3] On June 2, 2022, Mr. Marchfelder was notified that his employment had been terminated.
[4] On November 18, 2024, Mr. Marchfelder filed an application to amend his complaint to add new allegations that UBC discriminated against him when it terminated his employment [the termination allegation], and that the termination of his employment was retaliation by UBC contrary to s. 43 of the Code [the retaliation allegation].
[5] UBC opposes the amendment. UBC argues, among other things, that it would be unfair to permit Mr. Marchfelder to amend his complaint at this stage in the proceeding, and it would experience substantial prejudice if it were to be accepted. UBC also emphasize Mr. Marchfelder’s delay in filing the amendment application and argues that it should not be accepted under s. 22 of the Code. Finally, UBC argues that the termination and retaliation allegations create a “moving target” that prejudices UBC by expanding the scope of the complaint after it has submitted its dismissal application.
[6] For the reasons that follow, I grant Mr. Marchfelder’s application to amend his complaint to add the termination and retaliation allegations. As I explain below, I exercise my discretion to accept them under s. 22(3) of the Code. I am satisfied it is in the public interest to allow the amendments and that no substantial prejudice will result in the circumstances. More specifically, while I acknowledge the significant delay in filing the amendment, I am satisfied that any potential impact on the application to dismiss process can be addressed, and I make orders to address that issue.
II BACKGROUND
[7] As noted above, in his original complaint, Mr. Marchfelder alleged that UBC discriminated against him in employment based on his mental disabilities.
[8] In May 2019, Mr. Marchfelder was hired as Director, Knowledge and Exchange in the Faculty of Applied Science at UBC, reporting to the Associate Dean of Research and Industry Partnerships for the Faculty [the Associate Dean].
[9] Mr. Marchfelder says that around the time he disclosed his disability in February 2021, he was demoted from the position of Director to the position of Associate Director reporting to a different Director. UBC says that on February 16, 2021, it restructured the Faculty. The Associate Dean told Mr. Marchfelder of the restructuring in the department on February 16, 2021. Mr. Marchfelder’s compensation and job duties remained the same. On February 22, 2021, Mr. Marchfelder disclosed his disability to UBC. He provided a letter to the human resources department in the Faculty of Applied Science stating that he had ADHD and requested accommodations in the workplace. The medical note stated that Mr. Marchfelder required accommodation to address “unique challenges with attention regulation, emotional dysregulation and time management.”
[10] In April 2021, Mr. Marchfelder provided UBC with his physician’s responses to a Workplace Accommodation form. The physician identified, among other things, that emotional dysregulation, particularly, Rejection Sensitivity Dysphoria (RSD) were an “extremely common presentation” of Mr. Marchfelder’s condition.
[11] Mr. Marchfelder says he specifically requested the following accommodations: use of an ADHD friendly “dashboard” to organize and prioritize multiple production schedules; someone to accompany him to meetings with his supervisor to help him understand key takeaways and priorities; a “buddy system” which involved having the ability to work alongside a colleague via Zoom during critical deadlines; adjusted methods of supervisions; and an ADHD informed management approach by his direct supervisor.
[12] Mr. Marchfelder says that during the first virtual accommodation meeting in May 2021, UBC declined all accommodations he suggested and did not propose any alternatives. Rather, UBC provided unwarranted criticism of his performance. UBC has a different account of this meeting. It says that at the first accommodation meeting, it explored various accommodation options with Mr. Marchfelder. It says the meeting ran out of time and a second accommodation meeting was set for June 2021 to continue the accommodation discussion.
[13] The parties held a second virtual accommodation meeting in June 2021. Mr. Marchfelder’s account of the meeting is that he experienced significant pushback from UBC on his requested accommodations. Mr. Marchfelder says that the animosity he felt from UBC during this meeting triggered his disability and resulted in him pleading in a raised voice: “I’m trying to get accommodations. You know my disability, don’t take advantage of it!” He says that at the same time, he dropped his laptop and the lost connection to the meeting.
[14] UBC has a different account of the second accommodation meeting. It says that the meeting was scheduled to continue where the parties left off in the first meeting in exploring how to accommodate Mr. Marchfelder. It says that after discussing accommodation options, the meeting moved on to discuss concerns regarding Mr. Marchfelder’s performance. UBC says Mr. Marchfelder did not agree with the concerns and started yelling at his supervisor. It says Mr. Marchfelder left the meeting abruptly and the meeting ended shortly after due to Mr. Marchfelder’s “aggressive outburst.”
[15] Three days after the second accommodation meeting, UBC placed Mr. Marchfelder on a paid leave of absence, effective immediately and asked him to provide medical information on whether or not his conduct during the second accommodation meeting was caused by or contributed to by a medical condition. In August 2021, Mr. Marchfelder’s physician provided a letter stating “I am not able to meaningfully, or helpfully, respond to this request. I would expect that the reasons for this would be obvious.” The physician referred to their February 2021 medical note which diagnosed Mr. Marchfelder with ADHD. UBC says the doctor’s letter did not address its questions.
[16] In September 2021, Mr. Marchfelder emailed the Associate Dean. He referred UBC to the physician’s responses to the Workplace Accommodation in April 2021, in which the physician had identified that emotional dysregulation, particularly, Rejection Sensitivity Dysphoria (RSD) was a common presentation of his disability. Mr. Marchfelder pointed to his own comments during the accommodation meetings that certain behaviours trigger his disability and led to his emotional response. In his letter, Mr. Marchfelder stated that his medical physician could not provide an opinion on conduct that the physician did not personally experience and questioned how the information already provided to UBC could be insufficient. Mr. Marchfelder then expressed his dissatisfaction with UBC’s handling of the accommodation process and investigation.
[17] In October 2021, the Associate Dean responded that Mr. Marchfelder’s actions at the second accommodation meeting were “extreme, violent and volatile” and the medical information provided had not linked a medical condition to the behaviour. He stated that UBC could not allow the situation that occurred during the second accommodation meeting to be repeated and the need to protect other employees’ rights to be respected and feel safe in the workplace. The Associate Dean, again, requested medical information and stated that if he did not provide this information, UBC would proceed with investigating his conduct as potentially culpable misconduct.
[18] In October 2021, Mr. Marchfelder emailed the Associate Dean stating that he disagreed with the Associate Director’s description of his actions at the second accommodation meeting and could not ask his doctor to provide an explanation for behaviour he did not exhibit. He did not provide any medical information from his physician. He stated that that he wanted to return to work and asked for accommodation. He also stated that his request to return to work should be separate from any investigation. The Associate Dean responded that UBC would be proceeding with the investigation into Mr. Marchfelder’s conduct at the second accommodation meeting.
[19] At a meeting on October 19, 2021, Mr. Marchfelder’s union representative told UBC that the meeting could not proceed because Mr. Marchfelder did not know it was an investigation meeting and Mr. Marchfelder needed to undergo a medical assessment regarding his fitness to participate in the investigation meeting.
[20] On November 4, 2021, Mr. Marchfelder’s physician, again, wrote to UBC stating that they could not provide an assessment of what contributed to Mr. Marchfelder’s actions at the meeting because they were not present at that meeting and could not comment on it.
[21] The parties corresponded about the status of Mr. Marchfelder’s medical assessment between October and November 2021. On November 7, 2021, Mr. Marchfelder emailed UBC a letter from his behavioural therapist stating that engaging in a disciplinary hearing would negatively impact his mental health, among other things. On the same day, Mr. Marchfelder’s clinical counsellor emailed UBC a letter outlining accommodations for Mr. Marchfelder which included that Mr. Marchfelder could not participate in a disciplinary meeting at that time. Both letters stated that Mr. Marchfelder could return to work if his disability was accommodated.
[22] UBC says it paused the investigation in light of the letters from Mr. Marchfelder’s medical team and told Mr. Marchfelder in an email on November 25, 2021, that the investigation would continue as soon as his medical team cleared him to attend an investigation meeting.
[23] On January 18, 2022, UBC emailed Mr. Marchfelder that he would be moved to unpaid leave effective February 1, 2022. Mr. Marchfelder’s union representative told UBC that moving Mr. Marchfelder to unpaid leave would be contrary to the Code. The union representative asked if UBC would allow Mr. Marchfelder to participate in the investigation by submitting written answers to its questions as it would be less likely to exacerbate his health condition.
[24] UBC also says it agreed to temporarily restore Mr. Marchfelder to paid leave status pending when it received his answers to the questions. UBC says that although the Associate Dean told Mr. Marchfelder on February 10, 2022, that UBC would temporarily restore his paid administrative leave pending receipt of his responses to the interview questions, the Associate Dean subsequently learned from human resources that there had been no disruption to Mr. Marchfeld’s paid leave.
[25] On February 15, 2022, Mr. Marchfelder filed his complaint with the Tribunal.
[26] Mr. Marchfelder responded to the investigation questions by email. On February 25, 2022, Mr. Marchfelder’s union representative provided UBC with Mr. Marchfelder’s written responses to the interview questions. UBC says it reviewed his responses and determined that it would not proceed with any discipline with regard to Mr. Marchfelder’s conduct at the second accommodation meeting.
[27] Mr. Marchfelder says he was diagnosed with Autism Spectrum Disorder (ASD) in May 2022. His medical report stated that he required workplace accommodations. Mr. Marchfelder does not say whether he gave this report to UBC.
[28] Mr. Marchfelder says that in May 2022, he also learned from his union representative that UBC was eliminating his position. On May 11, 2022, Mr. Marchfelder wrote to the Associate Dean regarding the termination of his employment and questioned UBC’s decision to restructure and eliminate his position. He questioned why he was asked to undergo a disciplinary hearing if UBC had long decided to restructure the department and eliminate his position. He noted that this was the second restructuring that impacted his position; the first coinciding with disclosure of his disability and the second after he filed a human rights complaint.
[29] On June 2, 2022, UBC wrote to Mr. Marchfelder terminating his employment due to a restructure in his work unit.
[30] Due to systemic backlogs at the Tribunal, the Tribunal did not give UBC notice of Mr. Marchfelder’s complaint until August 2, 2023.
[31] UBC filed its response on September 27, 2023. It denied discriminating against Mr. Marchfelder. Its response addressed events during Mr. Marchfelder’s employment including Mr. Marchfelder’s leave of absence.
[32] In March 2024, the parties completed disclosure and filed their list of documents with the Tribunal. Mr. Marchfelder included his termination letter in his document disclosure.
[33] On August 29, 2024, the Tribunal assigned the complaint to the submissions path under the Tribunal’s Case Path Pilot stage: see, Case Path Pilot Practice Direction. The Tribunal invited UBC to apply to dismiss the complaint without a hearing under s. 27(1)(c) of the Code only and set a submissions schedule.
[34] On October 25, 2024, UBC filed an application to dismiss the complaint under s. 27(1)(c) of the Code.
[35] On November 18, 2024, during the course of submissions on the dismissal application, Mr. Marchfelder filed the amendment application.
[36] On November 25, 2024, Mr. Marchfelder filed his response to the dismissal application.
[37] On January 6, 2025, UBC advised the Tribunal that it opposed Mr. Marchfelder’s application to amend the complaint. Submissions for the dismissal application are on hold pending the outcome of the amendment application. On this basis, UBC has not provided its reply on the dismissal application.
III Decision
A. Application to amend the complaint
[38] UBC argues that the termination allegation is out of time because the amendment application was filed on November 18, 2024, over two years after Mr. Marchfelder filed the original complaint.
[39] Rule 24(1) provides generally that a complainant may add details to the allegations made in a complaint at any time by filing an application, while Rule 24(2) provides that a complainant may add an allegation to a complaint by filing an amendment. Rule 24(3) provides that for a new allegation to be accepted, it must allege facts that, if proven, could establish a contravention of the Code. I consider this next.
1. Do the amendments set out an arguable contravention of the Code?
[40] Mr. Marchfelder seeks to add new allegations to his complaint. As a preliminary matter the new allegations must set out facts that, if proven, could establish a contravention of the Code. This means that they must set out facts that could prove Mr. Marchfelder’s disability was a factor in adverse employment-related impacts: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33; Tarbuck v. E-Comm Emergency Communications for British Columbia Incorporated and others, 2025 BCHRT 58, at para 21. The complaint must also set out an arguable contravention of s. 43 the Code with respect to the retaliation allegation. If they do, then I must determine whether they are in time, in which case no application is required, and they are accepted for filing. If they are out of time, I must decide whether to accept them under s. 22(3) of the Code.
a. The termination allegation
[41] On the materials before me, I am satisfied that the amendments set out an arguable contravention of the Code with respect to the termination allegation.
[42] First, I am satisfied that Mr. Marchfelder has set out an alleged disability. He states in the amendment application that he has been diagnosed with ADHD.
[43] Regarding adverse impact, the Tribunal has accepted that termination of a person’s employment is, in itself, an adverse impact regarding their employment: Rabinovich v. Chemainus Inn Management Services Inc. (No. 2), 2024 BCHRT 302 (CanLII), at para 34; Eva obo others v. Spruce Hill Resort and another, 2018 BCHRT 238 at para. 92; Suen v. Envirocon Environmental Services (No. 2), 2017 BCHRT 226 at para. 35.
[44] Finally, I find that Mr. Marchfelder alleges that the termination of his employment was connected to his disability. He says he was placed on a leave of absence for a reason connected to his disability and this alleged discrimination continued until his employment was terminated.
[45] On this step, I find that the amendment sets out an arguable contravention of the Code.
b. Does the amendment set out an allegation of retaliation?
[46] Mr. Marchfelder also makes an allegation of retaliation under s. 43 of the Code. Section 43 of the Code is a unique type of discrimination under the Code: Gao v. BC Hydro and others, 2025 BCHRT 40, at para 39. The criteria to show retaliation are different from other types of discrimination prohibited by Code: Dzafic v. Edmonds Place Housing Co-operative and others, 2018 BCHRT 142, para. 72.
[47] To prove retaliation, Mr. Marchfelder would have to show (1) UBC was aware that he made or might make a complaint under the Code; (2) UBC engaged in or threatened to engage in discriminatory conduct encompassed by s. 43 of the Code; and (3) there is a sufficient connection between the two: The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5, paras. 150-166; The CFO v. The Organization (No. 3), 2022 BCHRT 33, para. 9. I will address these criteria in turn.
[48] Mr. Marchfelder makes the retaliation allegation on the same facts as the termination allegation. He alleges that UBC’s termination of his employment was an act of retaliation because he filed a human rights complaint.
[49] First, I understand from Mr. Marchfelder’s submissions that he alleges UBC decided to terminate his employment weeks after he filed his human rights complaint. This allegation, if proven, could establish that UBC was aware that Mr. Marchfelder had filed a human rights complaint. In his letter to UBC on May 11, 2022, Mr. Marchfelder pointed to the timing between the filing of his human rights complaint and termination of his employment. Mr. Marchfelder does not say if he had told UBC that he filed the complaint and the Tribunal did not notify UBC of the complaint until August 2, 2023. However, I am satisfied that, at the very least, UBC became aware that Mr. Marchfelder had filed or intended to file a human rights complaint by his letter on May 11, 2022, when Mr. Marchfelder disclosed the filing of the complaint, and prior to terminating Mr. Marchfelder’s employment on June 2, 2022. This is enough to meet the first criterion of an arguable retaliation contravention : Sales Associate, para. 158; Cooper v. The Buck & Ear Bar & Grill and others, 2016 BCHRT 180, paras. 54-56.
[50] Second, Mr. Marchfelder alleges his employment was terminated after he filed his human rights complaint. Terminating an employee’s employment, is conduct encompassed by s. 43: Gao at para 43. It amounts to conduct imposing penalty. If proven, the termination alleged by Mr. Marchfelder meets the second criterion.
[51] Third, I have considered whether Mr. Marchfelder has alleged a sufficient connection between his termination and the complaint to establish an arguable retaliation contravention of the Code. Mr. Marchfelder alleges that when he learned from his union representative that UBC was terminating his position, he wrote to UBC on May 11, 2022, that he filed a complaint and then his employment was terminated on June 2, 2022. If proven, there may be a reasonable basis for the Tribunal to draw that inference given the temporal link between his letter to UBC and the timing of the termination of his employment
[52] For these reasons, and on a low screening threshold, I find that Mr. Marchfelder has alleged an arguable contravention under s. 43 of the Code.
[53] I make no comment as to whether the allegations and evidence before me would be sufficient to survive the application to dismiss under s. 27(1)(c). That issue is not before me. All I am required to determine is whether the allegation in the amendment satisfies the low bar required under s. 27(1)(b) of the Code, and I am satisfied that it does.
[54] Next, I consider whether the new allegations of discrimination are timely.
2. Was the termination allegation filed out of time?
[55] The amendment application was filed on November 18, 2024, more than two years after Mr. Marchfelder filed his complaint on February 15, 2022, and also more than two years after UBC terminated his employment on June 2, 2022. UBC objected to the proposed amendment under Rule 24(4)(a) and 24(4)(b) because it says the amendment was filed outside the time limit for filing the complaint under s. 22 of the Code and because it was filed after UBC submitted its application to dismiss the complaint.
[56] Mr. Marchfelder argues that the Tribunal should accept the proposed amendments regarding the termination of his employment because it includes new allegations that occurred after he filed his original complaint in February 2022. He further argues that he included the letter terminating his employment on June 2, 2022, in his disclosure. I understand Mr. Marchfelder’s argument here to be that UBC had notice of the termination allegation.
[57] Section 22 of the Code addresses the time limit for filing a complaint. It reads in relevant part as follows:
22(1) A complaint must be filed within one year of the alleged 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.
[58] The Tribunal has consistently held that the timeliness of new allegations in an amendment application is based on the date when the original complaint was filed, rather than the amendment: Tarbuck at para 24; Oostlander v. The Owners, Strata Plan LMS2891 and others, 2024 BCHRT 141, at para 34; Kruger v. Xerox (No. 3), 2005 BCHRT 284 at paras. 21-22. Kruger does not address the timeliness of allegations which arise after the filing of the complaint. It may be that there is a principled basis upon which to draw a distinction between how the Tribunal assesses timeliness for new allegations in an amendment which pre-date the date the original complaint was filed, and those which post-date the date the original complaint was filed: Oostlander at para. 36. This exercise is often backwards looking and involves the assessment of whether the new allegations set out in the amendment occurred within the one-year time period preceding the date the original complaint was filed: Oostlander at para. 34.
[59] In the present case, the proposed amendment contains allegations that post-date February 15, 2022, when the original complaint was filed. The parties disagree about how timeliness should be calculated in this case.
[60] For the purposes of this application, I assume, without deciding, that the amendment was filed out of time and allow the amendment under s. 22(3) of the Code. Under s. 22(3), I first consider whether it is in the public interest to accept the amendment. Because I find that it is, I must also consider whether substantial prejudice will result to any person because of the delay.
B. Is it in the public interest to allow the amendment of the complaint?
[61] I am satisfied that it is in the public interest to accept the late-filed amendment.
[62] I accept that the length of the delay is significant and is a factor that weighs against accepting the amendment. UBC says the amendment was filed at least two years and five months after the termination of Mr. Marchfelder’s employment, and I agree that this is a significant delay.
[63] I also agree with UBC that Mr. Marchfelder’s reasons for the delay in the circumstances are not compelling. Mr. Marchfelder argues that owing to his loss of wages and ongoing medical recovery, he decided, at the time his employment was terminated, to wait until the complaint was being meaningfully processed through the Tribunal and a hearing date had been set. UBC argues that in essence, Mr. Marchfelder had all the relevant information at the time of the events underlying the amendments and intentionally chose not to file an amendment. UBC also emphasized that Mr. Marchfelder has been represented by counsel throughout the proceeding.
[64] I agree with UBC that Mr. Marchfelder’s explanation in these circumstances does not weigh in favour of acceptance. I also agree with UBC that section 22 of the Code is intended to ensure complainants diligently pursue their human rights remedies: Chartier v. School District No. 62, 2003 BCHRT 39; The Parent obo the Child v. The School District (No. 2), 2018 BCHRT 89, at para 7.
[65] I am also mindful, as UBC argues, that to permit the amendment at this stage could create a precedent in which complainants can intentionally and deliberately sit on their proposed amendments to a point and time convenient to them and otherwise ignore the substantive and important time limits in section 22 of the Code, which is explicitly referenced in Rule 24(4)(a). This is especially so because of Mr. Marchfelder’s lack of meaningful explanation for the delay.
[66] However, I disagree with UBC regarding whether the length of the delay and the reason for the delay are determinative. While they are relevant factors to consider, they are not determinative in every case: Tarbuck at para 30; Mzite at para. 55; Goddard v. Dixon, 2012 BCSC 161 at para 152.
[67] What persuades me otherwise is the nature of the allegations in the amendments and their relationship to the allegations in the original complaint.
[68] I note that the amendment involves both an allegation of retaliation in the termination of Mr. Marchfelder’s employment and an allegation that the termination of his employment was connected to his disability and a continuation of UBC’s failure to accommodate him.
[69] In situations involving alleged retaliation, it is understandable that complaint amendments might contain allegations which are materially different from allegations in the original complaint. Retaliation is a different kind of complaint, brought under a separate section of the Code, and may well involve different conduct than the conduct which gave rise to the original discrimination complaint. In this case, the events underlining the allegations of discrimination and retaliation in the amendment application are the same. Whereas a complaint of discrimination concerns the connection between a complainant’s protected characteristics and adverse impacts they say they experienced, a retaliation complaint concerns the connection between the alleged retaliatory conduct and the fact that a complainant filed (or may file) a human rights complaint: Oostlander, at para 51.
[70] Mr. Marchfelder says he seeks to add the allegations regarding the termination of his employment so that his existing complaint can be addressed in its entirety. He argues that the fact of the termination of his employment is a continuation of the allegations already made with respect to the reprisal and adverse actions taken against him under the guise of restructuring. Mr. Marchfelder also argues that the termination letter was produced as part of his document disclosure and accordingly, the amendments do not provide UBC with a “moving target.”
[71] Mr. Marchfelder argues further that there is no prejudice to UBC because it can defend against the termination allegation. He says that UBC has known about the termination of employment, and he listed the termination letter in his document disclosure. I do not accept Mr. Marchfelder’s reasoning here. This is because, disclosing the termination letter as part of document production is not a substitute for formally amending a complaint.
[72] On my review, the proposed amendment can be categorized as an amendment which sets out new allegations that post-date the filing of the original complaint, and which involve negative conduct by UBC towards Mr. Marchfelder: Oostlander at para 41.
[73] Unlike in Oostlander I do not find that the allegations in the amendment would create a “moving target” for UBC if they were accepted. The termination of employment occurred on June 2, 2022, four months after Mr. Marchfelder filed his complaint in February 2022. The substance of the new allegations, in my view, do not materially change the nature of the complaint. Further, I am not satisfied that there will be actual prejudice to UBC because the events in the complaint and amendment occurred during a specific period, UBC does not argue that it has lost access to the relevant documents, or that the relevant witnesses are no longer available. From my review of the documents, the individuals who are involved in the allegations already provided affidavits in the filing of the dismissal application and there is no suggestion that they would be unable to provide testimony, should the complaint reach the hearing stage.
[74] I pause to note that, in the application to dismiss context, the Tribunal is mindful about whether dismissing part of a claim “could also later prove embarrassing, in the sense of prompting inconsistent adjudicative decisions or foreclosing otherwise appropriate findings due to past rules”: Byelkova v. Fraser Health Authority, 2021 BCSC 1312, at para. 115. Similarly, I am mindful here that removing the termination allegations could foreclose appropriate findings or remedies at a hearing on the merits.
[75] A factor that I find compelling in the public interest is the likelihood that the Tribunal would have to hear evidence about the termination of Mr. Marchfelder’s employment regardless of whether I accept the amendment or not. This is because the termination was close in time to the leave of absence and will be relevant to the remedies Mr. Marchfelder set out in his original complaint: wage loss and the reinstatement of his employment with previous job title. UBC denies that Mr. Marchfelder experienced an immediate loss of wages as a result of his termination because he was given a generous severance package. This means that the issue of wage loss remains disputed between the parties. In this situation, there is little to no efficiency to be gained in excluding the termination allegation. On the other hand, if I denied the amendment, there is a risk that the hearing could become “bogged down” in arguments about the relevance of evidence relating to the termination of Mr. Marchfelder’s employment, whether he could be reinstated to his previous position, and loss of wages: see e.g. Graham v. West Coast Family Support and another, 2010 BCHRT 11 at para. 58; Tarbuck at para 32.
[76] For these reasons I am satisfied that it is in the interest of the public to accept the amendment to add the termination and retaliation allegations.
[77] Next, I turn to the issue of whether UBC will suffer substantial prejudice.
C. Will UBC experience substantial prejudice if the amendment is allowed?
[78] UBC argues that it will suffer substantial prejudice if the amendment application is granted. It advances several arguments on this point, and I have considered them all. As I explain next, I am not satisfied on the materials before me that UBC will suffer substantial prejudice. Further, I am satisfied that any concerns UBC has raised can be addressed in the Tribunal’s process.
[79] First, UBC argues that prejudice can be inferred from the delay of over two years in bringing the amendment application: July v. P.G. Sort Yard and others, 2007 BCHRT 413 at para 23. I agree that there may be some prejudice if UBC no longer has access to the relevant documents or evidence to argue its case. The Tribunal has said that it is not sufficient for some prejudice to be present; what the Code requires is substantial prejudice: July, at para. 23 quoting Read v. Century Holdings Ltd. dba Best Western Tsawwassen Inn, 2003 BCHRT 52, at para. 78. The Tribunal in July was satisfied that the respondent would suffer substantial prejudice as a result of the delay in the filing because the primary person involved in the alleged discriminatory events had not worked for the respondent for close to three years and the respondent did not know where they were. On the materials and submissions before me in this complaint, I cannot find that substantial prejudice will result to UBC as a result of the delay. UBC does not argue that any of the relevant documents to the termination are no longer available. UBC does not also argue that the relevant individuals will not be in a position to give evidence or that their memories of the termination may have faded. I note again that UBC already provided affidavits by the relevant individuals including the Associate Dean and Mr. Marchfelder’s former Director. I decline to assume that these individuals will not be in a position to give evidence at the hearing stage. Although not ideal, it is common for the Tribunal to hear evidence about allegations of discrimination years after the events occurred. This is the reality of the Tribunal’s process. I am not satisfied that substantial prejudice to UBC will result by amending the complaint at this stage.
[80] Second, UBC argues that it will experience substantial prejudice from having to revise its response to the complaint, its application to dismiss, and adduce evidence in relation to the new allegations in the amendments at considerable cost and time. While I acknowledge the inconvenience to UBC here, I am not satisfied that this results in substantial prejudice. This is because there is no evidence before me that UBC will experience great difficulty in obtaining the relevant documents relating to the termination of employment or that it will require substantial resources on UBC’s part. Regarding UBC’s view that Mr. Marchfelder’s conduct in filing the amendments late gives rise to additional costs, I am sympathetic to its submission about redrafting and reimagining its approach to this complaint. I acknowledge it would be a more efficient use of the parties’ and the Tribunal’s limited resources for the amendment to have been brought before the Tribunal granted the request to file an application to dismiss. Generally, complainants should file amendments at the earliest possible opportunity. In the circumstances, however, I am satisfied that any fairness issues can be addressed.
[81] Ultimately, I am not satisfied that UBC will suffer substantial prejudice as a result of the amendment.
IV Conclusion
[82] The application to amend the complaint is granted. UBC may amend their response to the complaint and their application to dismiss the complaint within 21 days of receiving this decision: Rule 24(5).
Ijeamaka Anika
Tribunal Member