Ding v. Technical Safety BC (formerly, British Columbia Safety Authority), 2025 BCHRT 163
Date Issued: July 10, 2025
File: CS-010770
Indexed as: Ding v. Technical Safety BC (formerly, British Columbia Safety Authority), 2025 BCHRT 163
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:
Youmin Ding
COMPLAINANT
AND:
Technical Safety BC (formerly British Columbia Safety Authority)
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On his own behalf: Youmin Ding
On behalf of the Respondent: Kimberley Fenwick
I. INTRODUCTION
[1] On September 25, 2023, Youmin Ding filed a complaint of discrimination in employment based on age contrary to s. 13 of the Human Rights Code [Code], against Technical Safety BC (formerly British Columbia Safety Authority) [the former Employer].
[2] The issue before me with respect to timeliness is whether to accept the complaint against the former Employer. I make no findings of fact.
[3] For the reasons that follow, I find that it is not in the public interest to allow the Complaint to proceed late filed: s. 22(3) of the Code.
II. BACKGROUND
[4] It appears that Mr. Ding previously worked for the former Employer as a data specialist. Mr. Ding was in his late 50s when the allegations in question arose.
[5] In December 2016, Mr. Ding alleges the former Employer set an unreasonable one-week target for him to update an automatic data process [the Update Task].
[6] In January 2017, Mr. Ding alleges the former Employer removed him form the Update Task after concluding a revised draft did not include modified information that was previously requested. The former Employer proceeded to reassign the Update Task to another employee, which left him feeling humiliated, less valued and less capable despite working in this area of data processing for years.
[7] On August 8, 2017, Mr. Ding alleges the former Employer informed him that his position was being eliminated according to rules in the Collective Agreement. At the same time, Mr. Ding alleges that at least two younger workers were hired into new positions to perform duties under his position.
[8] In August 2017, Mr. Ding alleges that he filed a grievance related to losing his position.
[9] On October 25, 2017, Mr. Ding alleges the former Employer informed him that he was not a candidate for the data scientist position filled by two younger workers because he had not attainted the required level of education (master’s degree). Mr. Ding appears to allege that his position was eliminated for reasons related to his age because two younger workers were hired to perform jobs that included his job duties while the former Employer disqualified him from applying for the new positions because he did not have a master’s degree.
[10] In September 2022, Mr. Ding states that the grievance process related to his position being eliminated ended.
III. ANALYSIS AND DECISION
[11] 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: Chartier v. School District No. 62, 2003 BCHRT 39.
A. Time Limit
[12] The Complaint was filed on September 25, 2023. 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 September 25, 2022.
[13] The latest allegation of discrimination in this case occurred on October 25, 2017. As such, the complaint is late-filed and 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
[14] 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.
[15] I have first considered the length of delay in filing. The latest allegation in this case occurred on October 25, 2017. The complaint allegations are, therefore, almost five years late. Such a delay is an extreme delay, and absent truly extraordinary circumstances, a respondent should not be expected to answer allegations of discrimination so long after the fact: Prasad v. The College of Physicians and Surgeons of British Columbia, 2004 BCHRT 21, at para. 15.
[16] Mr. Ding’s Form 1.1 complaint information states his reason for the delay related to him understanding that he was “forbidden” to contact a third party, such as the Tribunal, during the grievance process which lasted from mid 2017 until September 2022.
[17] The former Employer argues Mr. Ding was mistaken about being precluded from filing a human rights complaint while the grievance was outstanding because the Collective Agreement expressly permits an employee to file a human rights complaint even if they filed a grievance. Further, the former Employer submits that the Collective Agreement states that a human rights complaint shall not form the basis of a grievance. Finally, the former Employer notes that the Collective Agreement states that an employee who files a complaint with the Tribunal shall not have their grievance deemed abandoned through the filing of a complaint. With this in mind, the former Employer submits Mr. Ding was not precluded from filing a complaint because he filed a grievance.
[18] In his Form 5 reply submission, Mr. Ding attached a copy of the August 15, 2017, letter from the Union related to his grievance. In the letter the Union quotes from Collective Agreement Clause 8.10(b) as follows:
In the event that, after having initiated a grievance through the grievance procedure, an employee endeavours to pursue the same grievance through any other channel, then the Union agrees that, pursuant to this article, the grievance shall be considered to have been abandoned.
Mr. Ding submits that he interpreted this section of the letter to mean that he could not contact another party or risk abandoning his grievance. He alleges further that he was never informed that he could file with the Tribunal during his grievance.
[19] I disagree with Mr. Ding that the information provided in the Union’s August 15, 20217, letter forbid him from filing a complaint with the Tribunal. Instead, a plain reading of the letter appears to indicate that if he filed a complaint at the Tribunal his grievance would be deemed abandoned. In this context Mr. Ding appears to have made a strategic decision about wishing to go forward with his grievance without filing at the Tribunal because he did not want to put the grievance process at risk. The Tribunal has repeatedly said that pursuing another process does not suspend the time limit under the Code, 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. In this case, the fact that Mr. Ding made a strategic decision to pursue his grievance before starting a complaint because he concluded in error that his grievance would be deemed abandoned if he filed does not, in my view, provide a compelling reason to allow his complaint to proceed late filed. Mr. Ding has not indicated that was unable to review the provisions of the Collective Agreement on his own or reach out to the Union for clarification about the effect of filing a complaint. Even in circumstances where Mr. Ding thought filing a complaint at the Tribunal would end his grievance, that decision in my view was a strategic one that does not attract the public interest.
[20] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others, 2014 BCHRT 10 at para. 22; Bains v. Advanced Air Supply and others, 2013 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others, 2010 BCHRT 224 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code, this factor may weigh in favour of finding a public interest in accepting the complaint: Mzite at paras. 65-66. The Tribunal has considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mzite at para. 67.
[21] Mr. Ding submits that his case should be allowed to proceed as a deterrence for this type of age discrimination in employment. In response to the former Employer’s submission that the case should not proceed because the parties settled the human rights issues in the grievance process, he states that he has never agreed with the grievance settlement.
[22] Without doubting the seriousness of Mr. Ding’s allegations, I do not find this case is unique for the purposes of attracting the public interest in allowing the complaint to proceed late. The complaint involves allegations of discrimination in employment based on age which are routinely heard by the Tribunal and the law in this area is fairly settled.
[23] This complaint is extremely late filed, and the public interest does not attract to Mr. Ding’s reason of late filing or the nature of his complaint. Weighed together, I have concluded that it is not in the public interest to allow the complaint to proceed late filed.
[24] Having not found that it is in the public interest to accept the late filed complaint, I need not address the issue of whether substantial prejudice would result.
IV. CONCLUSION
[25] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member