MacDonald v. Klein, 2025 BCHRT 167
Date Issued: July 17, 2025
File: CS-005946
Indexed as: MacDonald v. Klein, 2025 BCHRT 167
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:
Tanya MacDonald
COMPLAINANT
AND:
Gunther Klein
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On their own behalf: Tanya MacDonald
Counsel for the Respondent: Nina Dauvergne
I. INTRODUCTION
[1] On January 15, 2022, Tanya MacDonald [the Complainant] filed a complaint of discrimination in services based on mental disability contrary to s. 8 of the Human Rights Code [Code], against Gunther Klein [the Respondent].
[2] The parties were provided with an opportunity to file submissions related to timeliness. The Respondent filed a response submission; however, the Complainant did not file any reply submission despite being given several opportunities to do so.
[3] The issue before me with respect to timeliness is whether to accept the complaint against the Respondent. I make no findings of fact.
[4] 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
[5] The Complainant has complex post-traumatic stress disorder [PTSD]. They were designated as a person with disabilities related to their PTSD since 2005.
[6] The Complainant has medical and social phobias. They allege that their phobias deterred them from applying for a disability tax credit [DTC] related to their PTSD from 2005 until 2013.
[7] On December 12, 2013, the Complainant alleges seeking the assistance of the Respondent physician’s assistance in applying for a DTC when they were seen as a walk-in patient at his clinic. The Complainant alleges that the Respondent refused to provide them with assistance in filling out a DTC application because he believed such a credit was only available to those with severe physical disabilities. The Complainant alleges that when they advised the doctor that they knew of a relative with a mental disability who received the DTC, the Respondent told them that the relative was breaking the law and could get into a lot of trouble.
[8] On December 12, 2013, the Complainant wrote a Facebook post about their experience with the Respondent refusing to support their DTC application. The Complaint stated that they were going to go to the media about the incident. They also sought help from readers for information about the name of a doctor who would help them with applying for a DTC.
[9] On August 20, 2020, the Complainant wrote a Facebook post on the Respondent clinic’s page. The Complainant recounted their experience with the Respondent physician years earlier and outlined their belief that his treatment of them was discriminatory. The Complainant noted that while being too unwell at that time to file a timely human rights complaint, they recently learned that the Tribunal made exceptions if advancing the late filed case is in the public interest. The Complainant stated they were going to file a complaint against the Respondent. They further noted having chronic suicidal ideation that was not being taken seriously by the local hospital. The Complainant stated it was their intention to file a lawsuit against the hospital for its lack of care. Finally, the Complainant reported that they had made a further request for assistance to apply for a DTC with another doctor at the clinic on this day in August 2020, which was rejected. The Complainant stated it was their intention to complain about this further doctor’s conduct to the College of Physicians and Surgeons.
III. ANALYSIS AND DECISION
[10] 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
[11] The Complaint was filed on January 15, 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 January 15, 2021.
[12] The allegation of discrimination in this case occurred on December 12, 2013. 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
[13] 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.
[14] I have first considered the length of delay in filing. The allegation in this case occurred on December 12, 2013. The complaint allegation is, therefore, over seven 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.
[15] The Complainant states that their severe mental illness, exacerbated by the Respondent’s conduct, prevented them from filing the complaint despite wanting to do so since the incident occurred in 2013.
[16] 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.
[17] I accept the Complainant’s evidence that they have mental disabilities that include medical and social phobias. From the Facebook posting evidence I also acknowledge the Complainant’s chronic suicidal ideation. This evidence alone, however, in my view does not indicate the Complainant’s disabilities precluded them from filing a complaint in time. On the contrary, the Facebook evidence indicates the Complainant was able to post about the alleged discrimination on the day it occurred in 2013. At that time, the Complainant demonstrated that they could reach out for assistance from others to find a physician who would help them apply for a DTC, despite their experience with the Respondent. Even if I accept the Complainant’s evidence that their mental disabilities precluded them from filing a complaint in the years after the 2013 encounter with the Respondent, their further Facebook post in August 2020 indicates that they were ready to file as of that time and knew about the Tribunal’s discretion to allow late filed complaints to proceed if it was in the public interest. With this in mind, the Complainant has not explained how their mental disabilities precluded them from filing for approximately one and half years between August 2020 and January 2022.
[18] I have also considered the evidence suggesting the Complainant was unaware that they could file a complaint late if the Tribunal decided it was in the public interest to allow it to proceed. 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. In this case, the Complainant has not provided any evidence that would take this case out of the general rule that ignorance of the Code is not an acceptable reason for a delay in filing. The Complainant has demonstrated that they have the ability to research the Tribunal’s processes on their own and articulate themselves in written form.
[19] 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.
[20] The Complainant seeks justice for themselves and for future patients seen by the Respondent. They are also filing to bring awareness to the stigma and discrimination faced by persons with mental and other non-physical health conditions. While acknowledging the Complainant’s allegations and litigation goals, 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 services based on mental disability which are routinely heard by the Tribunal and the law in this area is fairly settled.
[21] This complaint is extremely late filed, and the public interest does not attract to the Complainant’s reason of late filing or the nature of their complaint. Weighed together, I have concluded that it is not in the public interest to allow the complaint to proceed late filed.
[22] 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
[23] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member