Peers v. Utovic and another, 2025 BCHRT 199
Date Issued: August 19, 2025
File: CS-009056
Indexed as: Peers v. Utovic and another, 2025 BCHRT 199
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:
Jacideane (Jazz) Peers
COMPLAINANT
AND:
Candace Utovic and Carisa Carothers
RESPONDENT
REASONS FOR DECISION
APPLICATION TO ADD A RESPONDENT
Rule 25(2)
Tribunal Member: Ijeamaka Anika
On their own behalf: Jacideane (Jazz) Peers
Counsel for Respondents, Candace Utovic and Carisa Carothers: Raaj Dhaliwal
Counsel for Proposed Respondent, Aboriginal Mother Centre Society: Julie Menten
I INTRODUCTION
[1] This decision concerns two applications in relation to Jacideane (Jazz) Peers’ complaint of discrimination based on sex in the area of employment.
[2] On March 6, 2023, Ms. Peers filed a complaint alleging that Candace Utovic and Carissa Carothers [the Respondents] discriminated against her based on her sex in the area of employment contrary to s. 13 of the Human Rights Code. Ms. Peers alleges that the Respondents made offensive comments to her which amount to sexual harassment in the workplace. She says she resigned her employment as a result of the alleged discrimination.
[3] Ms. Peers now applies to add her employer, the Aboriginal Mother Centre Society [AMCS]. Ms. Peers says that the Respondents were employees of AMCS at the time of the alleged discrimination, the alleged discriminatory incidents occurred at work, and AMCS failed to address them appropriately. She says the internal investigation into the alleged incidents took over a year to complete and that when she contacted AMCS for an update on the internal investigation, she did not get a response.
[4] AMCS objects to the application on the following grounds: (1) the facts alleged in the application do not involve a contravention of the Code under s. 27(1)(b); (2) the allegation against it is late filed by almost two years, as the allegations that are contained within the complaint and that are the subject of the application occurred in June 2022 and the application was filed on December 10, 2024. It says Ms. Peers should have filed the application at the latest, by June 2023. It says the delay will cause significant prejudice in its ability to respond to the complaint because the individuals with direct knowledge of the allegations in question, including the Respondents, no longer work at AMCS.
[5] In responding to AMCS’ response submissions, Ms. Peers filed her reply late and AMCS objects to the Tribunal accepting the late-filed reply.
[6] The Respondents deny discriminating and take no position on the applications.
[7] The two issues I must decide in this application are as follows: (1) whether to accept Ms. Peers’ late-filed reply in support of her application to add AMCS as a respondent; (2) whether to allow the application to add AMCS as a respondent to the complaint.
[8] For the following reasons, I grant both applications. I am satisfied that accepting the late-filed reply furthers the just and timely resolution of the application of the application to add AMCS as a respondent. I am also satisfied that Ms. Peers has alleged an arguable contravention of the Code, it is in the public interest to grant the application to add AMCS as a respondent, and AMCS will not suffer any substantial prejudice as a result.
[9] While I do not refer to it all in my decision, I have considered all of the information filed by the parties in relation to this application. This is not a complete recitation of the parties’ submissions, but only those necessary to come to my decision.
II BACKGROUND
[10] Ms. Peers was employed by AMCS as a support worker until her resignation in August 2022. Ms. Utovic was Ms. Peers’ supervisor and Ms. Carothers, her co-worker. Her complaint filed on March 6, 2023, names Ms. Utovic Ms. Carothers as respondents.
[11] Ms. Peers’ complaint alleges that during her employment, she experienced sexual harassment and that following her resignation, AMCS failed to adequately address her concerns. Ms. Peers alleges that, at an AMCS meeting sometime on or around June 1, 2022, Ms. Utovic told employees that workplace relationships were against AMCS policy. She says Ms. Carothers then said to her: “well I am sorry Jacideane but we cannot continue on, but I am done in two weeks anyway.” Ms. Peers says the comment made her feel uncomfortable and belittled.
[12] Ms. Peers says that during her night shift on June 20, 2022, Ms. Utovic telephoned her. She says that during their conversation, Ms. Utovic asked her if she wanted to have a threesome with Ms. Carothers. Ms. Peers says this question made her very uncomfortable. She says she declined the request and ended the call as soon as she could. She says a co-worker heard the comments. Ms. Peers says that after that phone call, she experienced bullying, harassment, and anxiety during meetings with Ms. Utovic. Ms. Peers did not provide specific details of those experiences.
[13] I refer to the Respondents’ alleged statements to Ms. Peers as the comments.
[14] Ms. Peers says she did not report the incidents at the time because she was taunted at work, belittled, and embarrassed. Again, Ms. Peers did not provide any details of the incidents she says amounted to taunting and belittling at work.
[15] Ms. Peers says that by July 2022, Ms. Utovic began accusing her of giving “pushback or attitude” whenever she provided feedback to Ms. Utovic. She says she met with Ms. Utovic on more than one occasion where she felt uncomfortable and anxious about losing her job. Ms. Peers says Ms. Utovic denied her request for vacation days and when she found someone to cover her shift so she could take the day off without pay, Ms. Utovic became “aggressive,” and talked over and down to her. Ms. Peers did not provide details of what Ms. Utovic said to her during this conversation. Ms. Peers says that on August 5, 2022, she resigned from her position as the stress and bullying in the workplace was affecting her mental health.
[16] Ms. Peers says that on August 6, 2022, she emailed AMCS’s then executive director regarding miscommunications with Ms. Utovic including whether she was late returning from her breaks, taking time off work, having to use her personal vehicle for work tasks, Ms. Utovic saying she gave a lot of “push back and attitude” when she provided Ms. Utovic with constructive criticism, and Ms. Utovic being rude to her. She says she requested an exit meeting with the executive director and Ms. Utovic, but the meeting did not occur. The email did not mention the comments.
[17] On August 19, 2022, Ms. Peers emailed the executive director about Ms. Utovic’s comments. She told the executive director that the “threesome” comment made her hand in her resignation because after that comment, she was constantly “pulled in” for providing Ms. Utovic with constructive feedback or criticism. On August 22, 2022, the executive director asked Ms. Peers for a formal statement of her allegations. The executive director also asked for a statement from the co-worker who heard Ms. Utovic’s comment or for the co-worker to call the executive director for a confidential chat. The executive director copied the AMCS human resources manager on the email to organize an independent investigation into Ms. Peers’ allegations. On August 23, 2022, Ms. Peers sent her statement to AMCS regarding Ms. Utovic’s comments and its impact on her. She told the executive director that she was unsure whether her co-worker was willing to come forward regarding her allegations. Ms. Peers’ attached a call log of her telephone calls highlighting the record of her call with Ms. Utovic on July 20, 2022, when Ms. Utovic allegedly made the threesome comment.
[18] On August 12, 2022, Ms. Peers emailed Ms. Utovic to withdraw her resignation. Ms. Peers says she wanted to withdraw her resignation because she enjoyed her work with Indigenous mothers, grandmothers and caretakers. AMCS rejected this request.
[19] Ms. Peers says Ms. Utovic remained a manager for at least a year. She says AMCS’ internal investigation took over a year to complete before Ms. Utovic’s employment was terminated.
[20] AMCS says it has workplace policies and procedures to prohibit discrimination, bullying, harassment, and to provide a process for employees to follow when they raise concerns about discrimination, bullying, and harassment. AMCS also introduced a Respectful Environment Policy in February 2021 to protect against discrimination under the Code and prohibit sexual harassment.
[21] In September 2023, AMCS terminated Ms. Utovic’s employment on a without cause basis but without prejudice to the fact that AMCS believed that it had just cause to terminate her employment given the findings of an internal investigation that Ms. Utovic had breach AMCS’s expectations and respectful workplace policies.
[22] AMCS deemed Ms. Carothers to have abandoned her employment in January 2024 when she failed to provide medical information regarding her leave of absence and failed to communicate with AMCS.
III DECISION
A. Application to accept late-filed reply
[23] I start with Ms. Peers’ application to accept her late-filed reply. Under Rule 2(2) of the Tribunal’s Rules of Practice and Procedure [Rules], and for the reasons that follow, I accept Ms. Peers’ late-filed reply.
[24] Ms. Peers’ original deadline to file a reply was on April 14, 2025. Three weeks after the deadline, Ms. Peers requested an extension to the deadline because she had been unable to obtain legal advice. The Tribunal granted Ms. Peers an extension until May 22, 2025. On May 25, 2025, three days after the extended deadline, Ms. Peers by email requested an additional extension to which AMCS objected. Ms. Peers’ reasons for the request was that her son had his Indigenous graduation that week and she was “caught up with other things” and had no time to finish her submission. Before the Tribunal addressed the extension request, on June 3, 2025, Ms. Peers filed her reply and an application to accept the late-filed reply. The reply submission at this point was 12 days late.
[25] The purpose of the Rules is to facilitate the just and timely resolution of complaints: Rule 1(1). The Tribunal has discretion to waive or vary the Tribunal Rules, and lengthen any time limits in the Tribunal Rules, as it considers appropriate in the circumstances: Rule 2(2). A just and timely resolution of the application to add a respondent to the complaint requires that the process for deciding it is procedurally fair to both parties and that the Tribunal has all the relevant information before it: Spielberger v. Sofo Kitchens Ltd. (No. 2), 2025 BCHRT 6, at para 10. I find that extending the time limit for Ms. Peers’ reply in the circumstances facilitates the just and timely resolution of the complaint, specifically the application to add AMCS as a respondent to the complaint, despite the delay in filing it.
[26] First, I find that Ms. Peers has provided reasons for the delay which weigh in favour of accepting the late-filed reply. I do not agree with AMCS that corroborating evidence of Ms. Peers’ reasons for the delay are needed at this stage. I have no reason to doubt the sincerity or accuracy of Ms. Peers’ submissions on the reasons for the delay and AMCS has not pointed me to any reasons why Ms. Peers’ own evidence is insufficient, especially in the context of this application, which is to accept a reply submission 12 days late.
[27] Ms. Peers’ reasons for the delay include: reading AMCS’ response was a major trigger to her mental health, post-traumatic stress disorder, and anxiety; she had different appointments with different organizations for legal services and could not find a lawyer to help within the deadlines; she is a single mother and three of her children were being assessed for disabilities at BC Children’s Hospital which required her to attend long appointments at the hospital. Ms. Peers also says her son was transitioning to high school and had two Indigenous-based graduation ceremonies that she could not miss as his main caregiver. She says these ceremonies were an important milestone in his life.
[28] I do not accept AMCS’ argument that her reasons changed over time. Rather, in my view, her submissions became more detailed as the process unfolded. In providing further particulars in her application, Ms. Peers explains the importance of her son’s Indigenous graduation ceremonies and the particulars of other reasons for her delay including attending hospital appointments with her children as their primary caregiver, trying to find legal advice and representation to assist her in responding to the complaint, and dealing with AMCS’ response which she says was a major trigger to her mental health. This factor weighs in favour of accepting the late-filed reply.
[29] Second, I am also satisfied that the delay has not caused AMCS serious prejudice. AMCS argues that accepting the late reply adds to an already delayed application and would result in prejudice. I disagree. In my view, the relevant delay here is the delay in filing the late reply, 12 days, not the underlying application to add a respondent. AMCS has not shown how the delay of 12 days has caused it serious prejudice. I deal with the delay in filing the application to add AMCS as a respondent later in this decision.
[30] Third, I also consider that Ms. Peers’ reply contains relevant submissions that respond directly to AMCS’ arguments about prejudice and the merits of adding AMCS as a respondent. Refusing to consider her reply based solely on a 12 day delay would be unfair to Ms. Peers and would prevent the Tribunal from having complete submissions on the application: Spielberger at para. 10.
[31] After considering information on file and the parties submissions, I have decided to accept Ms. Peers’ reply submissions for consideration in the application to add AMCS as respondents in the complaint.
[32] Next, I consider whether to add AMCS to the complaint.
B. Application to add AMCS as a respondent
[33] A person seeking to add a respondent to a complaint must establish that there are facts alleged against the proposed respondent that, if proven, could establish a contravention of the Code, and that adding the proposed respondent will further the just and timely resolution of the complaint: Rule 25(2). If the application is brought after the one-year time limit for filing a complaint under s. 22 of the Code, the complainant must also explain why it is in the public interest to add the proposed respondent and why no substantial delay will result to any person because of the delay: Rule 25(2); Mother E and Baby E (by Mother E) v. BC Ministry of Health, 2023 BCHRT 204 at para. 17; Goddard v. Dixon, 2012 BCSC 161 at para. 151.
[34] In this case, AMCS disputes that Ms. Peers has alleged an arguable contravention of the Code against it, and I determine that issue first. Because Ms. Peers applies to add AMCS as a respondent in this complaint after the one-year time limit for doing so in s. 22(2) of the Code, I then address whether to accept the late-filed complaint under s. 22(3) of the Code.
1. Has Ms. Peers alleged facts or omission that contravene the Code?
[35] In this application, Ms. Peers is not required to prove her case against AMCS. Rather, she must only meet the low threshold of alleged facts that if proven could be a contravention of the Code. The Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon, 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low: Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56. As indicated by the words set out in Rule 25(2)(b), the Tribunal will assume the facts alleged can be proven: Taylor v. BC (Ministry of Attorney General) and others (No. 2), 2013 BCHRT 173 at paras. 8 and 17.
[36] In this case, Ms. Peers must set out facts that, if proved, could establish that she has a characteristic protected by the Code, she was adversely impacted in employment and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[37] AMCS’ argues that Ms. Peers does not alleged facts that, if proved, could establish it discriminated against her. AMCS argues that the alleged misconduct set out in the complaint were neither part of the Respondents’ job descriptions or in the normal scope of their duties. I disagree. Section 44(2) of the Code deems the conduct of an employee, within the scope of his or her authority, to be that of the employer. In so doing, it makes employers responsible for the acts of its employees if acting within the scope of their authority. The Tribunal has considered the interpretation of the term “within the scope of his or her authority” in s. 44(2) of the Code elsewhere. In L. (C.) v. Badyal, 1998 CanLII 29877 (BC HRT), the Tribunal applied the interpretative approach in Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 (S.C.C.) and characterised the “course of employment” as “encompass[ing] responsibility for all acts of employees in some way related to or associated with their employment”: at para. 40-41; Neale v. Princeton Place Apts. Ltd., 2001 BCHRT 6, at para. 71.
[38] I adopt the Tribunal’s reasoning for the purpose of determining whether the Respondents acted within the scope of their duties. Here the alleged comments occurred during work hours, in the workplace, and involved workplace relationships and policies. Regarding Ms. Utovic, Ms. Peers stated on her complaint form: “my manager asked me a question and make me feel very uncomfortable while on shift” and “my manager asked me an unprofessional question on the job” and “the manager for the aboriginal mothers center society had asked me if I wanted to have a “threesome” with her and her best friend who also worked at the aboriginal mothers center society” (as written). Ms. Peers also alleges regarding Ms. Carothers: “my co-worker said things that made me feel very uncomfortable in a room full of other co-workers as well” and “co-worker was belittling me in front of other staff members and the transitional housing manager” (as written). Ms. Peers alleges that because of the alleged comments, she suffered workplace bullying and harassment which also impacted her mental health, and she resigned as a result. She also alleges that AMCS failed to adequately respond to her internal reports of misconduct. In these circumstances, I am satisfied that the Respondents made the alleged comments during the course of their employment.
[39] For the reasons set out above, I find that these allegations, if proven, could support a finding of discrimination in the workplace for which AMCS would be liable under s. 44(2) of the Code and the principles regarding employer liability established in Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 SCR 84. I also find that the allegation that AMCS did not adequately respond to the complaint, if proven, could establish that AMCS contravened the Code.
2. Should the Tribunal accept Ms. Peers’ late-filed allegation against AMCS?
[40] There is no dispute that the application to add AMCS as a respondent is filed after the one-year time limit in ss. 22(1) and (2) of the Code. The only issue is whether the Tribunal should accept the late-filed allegation under s. 22(3), which provides:
(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.
[41] Ms. Peers bears the burden of establishing that it is in the public interest to accept the complaint and that no substantial prejudice will result to any person because of the delay: Chartier v. School District No. 62, 2003 BCHRT 39, para 11.
[42] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. The purposes of the Code include identifying and eliminating persistent patterns of inequality and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: Tarbuck v. E-Comm Emergency Communications for British Columbia Incorporated and others, 2025 BCHRT 58 at para. 30; British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at para. 53 and 63. While these are important factors, they are not necessarily determinative and not every factor will be relevant in every case: Goddard at para. 152; Mzite at para. 55.
[43] First, I accept that the length of the delay is significant and is a factor that weighs against granting the application. AMCS argues that the application was filed over 17 months late. Ms. Peers does not dispute this assertion, and I agree with AMCS. AMCS cites authorities for instances that the Tribunal has not accepted complaints with much shorter delays: Andres v. Hiway Refrigeration and Grehan, 2009 BCHRT 135 (three-day delay); Jones v. Olympic Physiotherapy and another, 2009 BCHRT 427 (five-day delay); Mahairhu v. Scott Paper, 2007 BCHRT 10 (two to three months). I agree that this is a significant delay and weighs against granting the application.
[44] Second, Ms. Peers has not provided any reasons for the delay in filing the application to add AMCS as a respondent. Nor did she provide reasons in her reply submission, even though AMCS raised the issue its response.
[45] I note the following uncontroverted facts, however. Ms. Peers filed her complaint on March 6, 2023. She named Ms. Utovic and Ms. Carothers, identifying them as her manager and co-worker at the AMCS. She identified arguable contraventions of the Code against the employees. She did not specifically name AMCS as a respondent. She was self-represented at the time and remains self-represented. As a result of backlog and resulting delay in its process, the Tribunal did not provide notice of the complaint until October 10, 2024. The Tribunal provided notice of the complaint to AMCS. At that time, Ms. Peers would have understood that the complaint was proceeding against AMCS as a respondent. About a month later, on November 20, 2024, the Tribunal informed Ms. Peers of the process for adding a respondent to her complaint. Ms. Peers acted quickly, bringing her application on December 10, 2024. These circumstances shed light on Ms. Peers’ delay in naming AMCS as a respondent and, in my view, weigh in favour of the public interest.
[46] Third, AMCS argues that there is nothing particularly novel, unique, or unusual about the sex-based allegations in Ms. Peers’ complaint that has not been addressed in other complaints. In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal 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, 2012 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others, 2010 BCHRT 244 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, 2014 BCCA 220 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.
[47] I am satisfied that there is nothing novel about this complaint. Ms. Peers makes no arguments about the novelty of her complaint. While Ms. Peers states that she was triggered because of her Indigenous identity and working in a non-profit organization and is already racially profiled and did not expect to the comments to be asked in an Indigenous non-profit, she has not alleged discrimination on the basis of her race or Indigenous identity. AMCS cites Ferguson v. Ausenco Engineering Canada and another, 2015 BCHRT 28, at para. 80 in support of its argument that this complaint is neither novel nor unique. In that case, the Tribunal stated that there was nothing unusual or novel about the sex-based complaint. I agree with AMCS’ that the complaint is about allegations of discrimination on in employment on the basis of sex and this factor does not support granting Ms. Peers’ application.
[48] While I acknowledge that the delay in bringing the application and the lack of articulated reasons weighs against accepting the late-filed application to add AMCS as a respondent, these factors are important but not determinative in every case: Tarbuck v. E-Comm Emergency Communications for British Columbia Incorporated and others, 2025 BCHRT 58 at para 30; Mzite at para. 55; Goddard at para 152. The inquiry is always context specific. As I also said, I find that the circumstances outlined above act as a counterbalance because Ms. Peers had filed her complaint on time and acted quickly once the issue was brought to her attention.
[49] I also consider the nature of the allegations in the complaint, the relationship between the Respondents and AMCS, and the likelihood that the Tribunal would have to hear evidence about AMCS’ investigation into the comments. Ms. Peers argues that AMCS should be held accountable for its employees’ actions and that she emailed her concerns about the comments to AMCS on three occasions in August 2022 shortly after she had resigned. She says she also emailed AMCS in January 2023 for an update on its internal investigation into the comments and did not get a response. According to Ms. Peers, the Respondents remained AMCS employees at that time.
[50] AMCS on the other hand argues that it should not be added as a respondent because it expressly prohibits sexual harassment and discrimination of the kind alleged in this complaint. It also argues that the allegations occurred almost three years ago, AMCS’ current executive director has no direct knowledge of Ms. Peers or her employment with AMCS and had had no direct knowledge of the allegations in the complaint, no one in a supervisory or management position at AMCS had any direct knowledge of the allegations contained in the complaint, Ms. Peers and the Respondents are no longer employed by AMCS. It says that when it received information about Ms. Utovic allegedly engaging in conduct that would breach AMCS’s policies, it retained external legal counsel to conduct an independent investigation and when it determined that Ms. Utovic had breached the Policies, it took immediate action by terminating her employment. As I addressed above, it says the alleged misconduct set out in the complaint was neither part of the Respondents’ job descriptions or in the normal scope of their duties.
[51] AMCS argues that if the allegations against the Respondents are found to be true, it will argue that it should not be responsible for any remedy awarded for the reasons above and also because the conduct was not within their job descriptions and outside the normal scope of their duties, AMCS prohibits discrimination, bullying and harassment in the workplace and has policies to that effect, employees are required to report concerns of discrimination, bullying and harassment in a timely manner so that AMCS can take steps to address the concerns, AMCS has already taken steps to implement employment consequences for Ms. Utovic for her workplace misconduct, given the nature of the allegations against the Respondents, it is more appropriate for the Respondents to take accountability for any remedies ordered that relate to their conduct.
[52] As I understand the gist of AMCS’s arguments, there is no remedial purpose in adding it because either it is not liable for the Respondents’ conduct or because its liability should be reduced or there is no longer an issue. I disagree. As explained above, the facts alleged could if proved establish AMCS’s liability. In my view, adding AMCS will allow the Tribunal to consider the full context of the complaint and ensure any remedies address all potentially responsible parties. A just and timely resolution includes considering allegations of institutional responsibility for workplace discrimination. As noted in Mother E and Baby E (by Mother E) v. BC Ministry of Health, 2023 BCHRT 20 at para. 38, Rule 25(2) is designed to allow the Tribunal to determine whether all necessary parties are before it for a complete and just adjudication. Ms. Peers’ allegation of sexual harassment in the workplace by AMCS employees was set out in the complaint form. The Tribunal will need to decide this allegation, whether or not AMCS is added as a respondent. As set out above, I am also satisfied that the complaint alleges an arguable contravention of the Code in relation to AMCS’ response. The merits of AMCS’s defence to that allegation are best considered in the context of the complaint against it.
[53] I am satisfied that adding AMCS to the complaint is in the public interest. It ensures that the institutional context and alleged employer responsibilities are part of the Tribunal’s analysis. On this application I am not deciding whether AMCS discriminated or if it did, whether it is jointly responsible with the Respondents. I also do not consider the likelihood of success of Ms. Peers’ complaint against AMCS. Rather, I consider that Ms. Peers has set out an arguable contravention of the Code by AMCS. If Ms. Peers can prove her allegations of discrimination against AMCS, she would be able to obtain an order for a remedy regarding that discrimination. This will uphold the purpose set out in s.3 (e) of the Code to provide a means of redress for those persons who are discriminated against contrary to the Code. A just determination, and the possibility of a remedy if any part of the complaint against AMCS is successful, requires participation by AMCS.
[54] For these reasons, I am satisfied that it is in the public interest to add AMCS as a respondent to this complaint.
[55] Next, I turn to the issue of whether AMCS will suffer substantial prejudice.
3. Will AMCS suffer any substantial prejudice if it is added as a respondent to the complaint?
[56] AMCS argues that the significant delay will cause it substantial prejudice. The Tribunal has said that it is not sufficient for some prejudice to be present; what the Code requires is substantial prejudice: Read v. Century Holdings Ltd. dba Best Western Tsawwassen Inn, 2003 BCHRT 52, at para. 78. On the materials and submissions before me, I am satisfied that no substantial prejudice will result to AMCS as a result of the delay. AMCS argues that the complaint concerns events that occurred almost three years ago and the individuals with direct knowledge of the allegations including Respondents no longer work at AMCS. I agree that there may be some prejudice due to the Respondents and other relevant individuals no longer working at AMCS. However, that possibility does not equate with actual prejudice. I note that Ms. Utovic and Ms. Carothers are named as respondents in the complaint and participating in the proceedings.
[57] Further, AMCS does not also argue other the relevant individuals will not be in a position to give evidence. Rather, the Executive Director at the time the investigation into Ms. Utovic’s conduct was concluded provided a statutory declaration for the purposes of this application. I cannot assume that the relevant 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 current reality of the Tribunal’s process. I am not satisfied that substantial prejudice to AMCS will result by amending the complaint at this stage.
[58] AMCS does not argue that any of the relevant documents or evidence are no longer available. It already investigated whether Ms. Utovic’s comments that form the subject of this complaint breached its anti-discrimination and anti-harassment Policies. I find that Ms. Peers’ complaint to AMCS regarding the offensive comments put it on notice of some of Ms. Peers’ employment-related concerns, and their participation in that process may have facilitated the preservation of relevant information and evidence that could relate to this complaint, particularly since AMCS says its hired external legal counsel to conduct an independent investigation. AMCS has not argued that the documents preserved for that investigation have been misplaced or destroyed. Further, AMCS was already aware of the complaint when the Tribunal mistakenly named and notified it of the initial complaint.
[59] Ultimately, I am not satisfied that AMCS will suffer substantial prejudice as a result of being added as a respondent to this complaint.
IV CONCLUSION
[60] I allow the application and add AMCS as a respondent.
Ijeamaka Anika
Tribunal Member