Borges Ferrer v. Vancouver Police Board, 2025 BCHRT 175
Date Issued: July 30, 2025
File: CS-004559
Indexed as: Borges Ferrer v. Vancouver Police Board, 2025 BCHRT 175
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:
José Rafael Borges Ferrer
COMPLAINANT
AND:
Vancouver Police Board
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
Counsel for the Complainant: Jason M. Harman
Counsel for the Respondent: David T. McKnight, Naomi J. Krueger
I. INTRODUCTION
[1] On July 26, 2021, José Rafael Borges Ferrer [the Complainant] filed a complaint of discrimination in services based on race, colour, ancestry, mental disability and sex contrary to s. 8 of the Human Rights Code [Code], against the Vancouver Police Board [the VPB].
[2] The VPB applied to make a further submission in response to the Complainant’s additional evidence and argument found in his Form 5 – Time Limit Reply. I recognize the Complainant did not retain counsel until after his Form 1.1 – Individual Complaint was filed. With this in mind, I accepted the further evidence and argument from the Complainant, which I found useful in rendering my decision. In the interests of fairness and justice, I also considered the VPB’s response to the further evidence and arguments and the Complainant’s reply to that response in making this decision.
[3] The issue before me with respect to timeliness is whether to accept the complaint against the VPB. 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 is Venezuelan born and came to Canada with his family as a refugee. He identifies as a visible minority, of mixed European and Latin American Indigenous ancestry.
[6] The Complainant reports a history of mental and emotional problems. In late 2016, the Complainant states he was feeling symptoms of burnout, anxiety and stress related to series of life events.
[7] The Complainant reports being followed around by police for months leading up to July 2017. He alleges these encounters caused him to experience further mental health issues.
[8] On July 10, 2017, the Complainant alleges he was experiencing a mental health crisis when the VPB police intervened. He agrees that his mental state at that time likely contributed to the VPB officer’s description of his behaviour as erratic. The Complainant alleges the VPB police officer took him down onto the street while he was attempting to surrender peacefully with arms outstretched and belly up against the police car. By forcing the Complainant down onto the cobblestone pavement, the officer allegedly smashed his face breaking several teeth and bones in his face and nose. The Complainant alleges the officer involved used excessive force without accommodating his mental disabilities. He further alleges the VPB officer treated him violently after racially profiling him with stereotypical views of Hispanic, street-entrenched, males. By approaching the Complainant with an artificial stereotype, the Complainant alleges the VPB refused to see and approach him as a dignified individual.
[9] In the days and weeks after the assault by the VBP officer in mid 2017, the Complainant reports being in and out of medical and dental treatments. He alleges being wholly reliant on his family to facilitate attending these appointments. The Complainant alleges being in constant pain and experiencing paranoia, anxiety, depression and fear. He says that he was bed-ridden for days and weeks on end and would often sleep all day due to his psychological exhaustion.
[10] In late 2017 and 2018, the Complainant alleges learning that another Hispanic male he had gone to high school with was fraudulently using his name when interacting with police and emergency services. He alleges that identity theft issue came to light when he started receiving bills and fines that he knew nothing about. The Complainant alleges asking his brother to look into this matter as he could not handle the task on his own. As a result of freedom of information searches and outreach to various institutions, the Complainant noted that he became certain that the former high school classmate was using his identity since early 2017 and these institutions were accepting that person’s claim at face value.
[11] In the second half of 2017 and early 2018, the Complainant alleges obtaining employment, but being unsuccessful in keeping jobs because of the physical and mental injuries suffered form the assault by the VPB in July 2017. He describes missing cues and messages, experiencing panic attacks, self-medicating with alcohol, withdrawing socially, and failing to meet work obligations during that period.
[12] In May 2018, the Complainant alleges securing a full-time waiter position. He describes the job as very demanding and a “psychologically unsafe workplace”. The Complainant alleges that time away from work was often spent sleeping.
[13] In 2019, the Complainant alleges taking a second, part-time, waiter position. He says that he took this job to save up for surgeries and get back on his feet financially.
[14] In March 2020, the Complainant alleges being laid off work as a result of the COVID-19 pandemic. With time on his hands, he reports taking action to look into specifics surrounding his encounter with police in July 2017. The Complainant alleges that through his investigations he discovered that various agencies, including the Metro Vancouver Transit Police, the ambulance service, and various hospitals, shared information about him that would have been accessible to the VPB officer that assaulted him in July 2017.
[15] As of the summer of 2020, the Complainant allegedly realized that misinformation on various agencies files attributed his former high school classmate’s behaviour to him as “combative” and a “street entrenched opiate addict”, and was likely behind the VPB officer’s aggressive response to him. He then felt that the VPB officer stereotyped him as a man of Hispanic descent suffering from mental illness who was likely street entrenched.
III. ANALYSIS AND DECISION
[16] 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
[17] The Complaint was filed on July 26, 2021. 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 July 26, 2020.
[18] The allegation of discrimination in this case occurred on July 10, 2017. As such, the complaint is late filed.
[19] The Complainant argues his complaint was filed in time because he did not discover the VPB police officer had access to misinformation about him taken from the conduct of the former classmate who stole his identity. The Complaint states he only knew about the negative stereotyping available in shared police files when he was able to retrieve copies of those records and analyze them in the spring and summer of 2020 when he was not working because of the COVID-19 pandemic.
[20] The Complainant argues the principle of discoverability applies to the time limit under s. 22 of the Code because that provision fails to clearly oust it. I disagree with the Complainant since section 22 clearly states that the complaint must be filed within one year of the alleged contravention, and there is nothing in the statute which deals with the postponement of the running of that time: ICBC v. Yuan, 2008 BCSC 1703 at para. 21. The question of whether the Complainant’s discovery that he had a complaint in mid 2020 when he realized the VPB had access to misinformation about his conduct is properly considered as a factor under s. 22(3) of the Code and will be discussed below.
[21] 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
[22] 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.
[23] I have first considered the length of delay in filing. The allegation in this case occurred on July 10, 2017. The complaint is, therefore, just over three years late. A delay of one year or more is considered by the Tribunal to be excessive and militates strongly against the public interest: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 [Naziel-Wilson]at para. 13.
[24] The Complainant provided several reasons for his delay in filing. First, the Complainant alleges he did not realize the actions of the VPB police officer on July 10, 2017, were likely related to racist stereotypes until he discovered the officer in question had access to other agencies’ misinformation about him being a combative Hispanic male who was street entrenched. Without doubting the potential usefulness of this evidence in deciding the merits of this complaint, I do not conclude that its discovery in mid 2020 attracts any significant public interest in allowing the complaint to proceed late filed. First, the Complainant admits he was suffering from mental disabilities at the time of the alleged assault and was exhibiting behaviour that would appear erratic to the police. With this in mind, it is difficult to see how the Complainant would only discover the allegation of discrimination based on mental disability after learning the VPB may have thought he was someone else who exhibited mental disability symptoms when he learned the VPB police had access to misinformation about him. In my view, the discovery of the identity theft information being available to the VPB only served to bolster an allegation of discrimination based on mental disability that existed at the time of the alleged assault in July 2017.
[25] Second, the Complainant is male and a Hispanic visible minority. Given the Complainant’s appearance at the time of the alleged assault in July 2017, in my view the allegations of discrimination based on race, colour, ancestry and sex clearly existed and should have been apparent to the Complainant at that time. In reaching this conclusion, I appreciate that the Complainant’s allegations might have been strengthened when he learned about the VPB’s access to misinformation, which could possibly confirm and enhance negative stereotypes of him, however, the allegations based on race, colour, ancestry and sex existed at the time of the July 2017 assault. Learning about further evidence that may improve a complainant’s case is not sufficient to attract the public interest in allowing a complaint to proceed late filed.
[26] The Complainant also provided his various mental and physical disabilities as a reason for the delay in filing. With reference to medical reports authored by his family physician for the purpose of obtaining benefits in late 2022 and 2023, the Complaint notes the alleged assault injury in July 2017 resulted in a serious traumatic brain injury with ongoing disabilities that significantly disrupt his everyday functioning and negatively affect all aspects of his life.
[27] 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 at para. 21.
[28] I have no doubt the Complainant suffered a traumatic brain injury and other physical injuries with lasting negative effects on his level of functioning. However, the information on file fails to indicate his disabilities precluded him from filing the complaint in time for the purposes of attracting the public interest. Starting in late 2017, the Complainant demonstrated the ability to seek the assistance of a family member to investigate the fraudulent use of his identity by another person in multiple settings. I also note the Complainant was able to interact himself in phone calls with these agencies from early 2018 onwards in his attempts to undo the harms created by the imposter.
[29] While appreciating the Complainant’s disabilities made filing a complaint more challenging, it also appears that he was able to return to work in 2017 as a waiter despite his disabilities. I recognize the Complainant experienced a rough start back to work, however, he reports establishing himself in steady employment from May 2018 until going off in March 2020 for reasons related to the COVID-19 pandemic. I also note the Complainant’s information that he took as second part-time waiter job in 2019 to save money so he could pay for surgeries and get back on his feet financially. Given the Complainant’s ability to work as a waiter many hours a week, I am not convinced that he was precluded from devoting the necessary time to file with the Tribunal. Certainly, after the Complainant went off work in March 2020, he had many months to file a complaint that cannot be explained by his disabilities or limited free time while working.
[30] 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.
[31] The Complainant argues his complaint should proceed late filed as stories such as his about racial minority males trying to access public health at a time of crisis need to be amplified to effect changes in policing. He wants to achieve accountability through changes in policy and training. The Complainant also believes his case is unique as it involves the nexus of identity theft and discrimination, issues about which have not been fully explored by the Tribunal.
[32] While acknowledging the serious assault allegations raised by the Complainant, 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, race, colour, ancestry and sex, which are routinely heard by the Tribunal and the law in this area is fairly settled: see Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 as an example of a racial profiling case. I disagree with the Complainant that the specific issue of identity theft intersecting with discrimination, while somewhat unique, attracts sufficient public interest to allow the complaint to proceed when weighed against the lengthy delay in filing and a lack of reasons for late filing that attract the public interest in this case.
[33] 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
[34] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member