Mason v. Board of Education of School District No. 61 (Greater Victoria), 2025 BCHRT 283
Date Issued: November 13, 2025
File: CS-005464
Indexed as: Mason v. Board of Education of School District No. 61 (Greater Victoria), 2025 BCHRT 283
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:
Samantha Mason
COMPLAINANT
AND:
Board of Education of School District No. 61 (Greater Victoria)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Theressa Etmanski
On their own behalf: Samantha Mason
Counsel for the Respondent: Alyssa Paez and Aleksandra Zivkovic
I INTRODUCTION
[1] This is a decision about whether to dismiss all or part of Samantha Mason’s human rights complaint without a hearing.
[2] Ms. Mason filed her initial complaint on November 3, 2021, and an amended complaint on April 28, 2023. She alleges discrimination in employment against the Board of Education of School District No.61 (Greater Victoria) [School District] based on her race, ancestry, place of origin, Indigenous identity, and mental disability. She says the School District made decisions about her position based on her identity as an Indigenous person, did not address microaggressions and racism directed toward her in the workplace, and terminated her employment while she was on medical leave.
[3] The Board denies discriminating and applies to dismiss the complaint without a hearing because it says the complaint is untimely. Ms. Mason has not responded to this application.
[4] The primary issues I need to decide to resolve this application are: (1) whether the allegations are timely; and (2) whether it is in the public interest to accept any late filed allegations.
[5] For the following reasons, I allow the application in part. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[6] Ms. Mason commenced her employment with the School District in 2016. She held various positions, including Education Assistant General [EAG], and Aboriginal Educational Assistant [AEA] (now known as Indigenous Educational Assistant).
[7] In her initial complaint, Ms. Mason explained that she was initially hired in a temporary position as AEA to provide social, emotional, academic, and cultural support to Indigenous students. However, she alleges she was continuously prevented from fulfilling her job responsibilities and instead required to do the work of an EAG, despite receiving a lower salary than the EAGs performing the same duties. She explains that the role of an EAG is to support the inclusion of students with diverse learning needs by providing academic, social and emotional skills development in the learning environment.
[8] The following school year (2017/2018), Ms. Mason says she applied for and was hired in the role of an EAG. However, when she received her assignment for the 2018/2019 school year, she says her job title was changed back to AEA. When she raised this with her school principal, she says she was told that the AEA position was vacant, so they decided to give her EAG position to someone else so they could receive funding from the Indigenous Nations Education Department by placing her, an Indigenous person, in that role. She alleges that this allowed the School District to hire a non-Indigenous person as EAG rather than post the vacancy for the AEA position. The School District denies this allegation.
[9] Ms. Mason says that she was initially assigned to the AEA position again for the 2019/2020 school year but was subsequently returned to her EAG role. She states that the School District still did not post the AEA position, and it remained vacant at the time of the complaint.
[10] Ms. Mason further alleges that, even when she was in the AEA position, the School District rejected or interfered with her attempts to engage directly with Indigenous students during this period.
[11] In addition, Ms. Mason alleges that she experienced microaggressions and racism from her colleagues. For example, she says on June 20, 2019, a colleague called her “disrespectful and shameful” when she spoke up about an Indigenous student being told they had to stand for the national anthem. On another occasion, January 29, 2020, she shared her perspective about the “problematic” history of the school and its namesake after a vote to change the school’s name had passed and was told that her colleagues called her “unhinged” and “disrespectful.” The School District denies these allegations and says they do not amount to a breach of the Code.
[12] Ms. Mason says she attempted to raise her concerns about these issues on various occasions, including with her union representative and the District Principal of the Indigenous Nations Education Department on January 16, 2020, March 17, 2020, and June 28, 2020. However, she says she either received no response, or no action was taken.
[13] In her amendment to the complaint, Ms. Mason adds the ground of mental disability. She says she expressed serious concerns to the School District about her safety in the workplace, and the impacts the above allegations had on her. However, she says the School District minimized and ignored these concerns and did not provide any supports for her safety or wellbeing as an employee. She says her mental health was severely impacted as a result.
[14] On or around October 7, 2020, Ms. Mason commenced a medical leave of absence. While the School District says Ms. Mason stopped communicating with it, her union, and the insurance company after this date, Ms. Mason says she provided medical documentation supporting her leave until April 30, 2021. Nevertheless, on April 21, 2021, the School District terminated her employment stating that she was “AWOL” from her position.
III DECISION
[15] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Allegations are timely if they occurred within one year of filing the complaint, or if they form part of a timely continuing contravention of the Code. Section 22 is meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[16] The School District argues that all the allegations in this complaint are late filed and should be dismissed under s. 27(1)(g) of the Code. I must decide two issues: (1) whether any or all of Ms. Mason’s allegations are late, and (2) if so, whether to exercise my discretion to accept those late allegations because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3), School District v. Parent obo the Child, 2018 BCCA 136 at para. 68.
[17] I first explain why some of the allegations in this complaint were filed out of time and do not form part of a continuing contravention. Next, I explain why I am not persuaded it is in the public interest to exercise my discretion to accept the late filed allegations.
A. Is the complaint late filed?
[18] Ms. Mason filed her initial complaint on November 2, 2021. Any allegation that occurred before November 2, 2020, is therefore out of time unless it is part of a timely continuing contravention. This encompasses all the allegations in the initial complaint, which are alleged to have occurred between 2016 and July 2020.
[19] The initial complaint refers to dates that would fall within the timeline for filing, but the School District argues, and I agree, that these dates are not attached to an arguable contravention of the Code. For example, she states that on April 28, 2021: “My concerns were finally acknowledged by my union representative […] but nothing changed.” The School District suggests that the reference to 2021 may be a “typo”, as this event is listed chronologically between events in March 2020 and June 2020. Regardless of whether this was a drafting error, I find that it does not describe an arguable contravention of the Code with respect to the School District. Rather, it appears to be an allegation involving Ms. Mason’s union, who is not a party to the complaint.
[20] The complaint form also lists April 1, 2021, as the date of the most recent discriminatory conduct; however, Ms. Mason has not provided any particulars about what is alleged to have occurred on that date. This is insufficient information on which to find a timely arguable contravention in the initial complaint.
[21] Ms. Mason filed her amended complaint on April 28, 2023. The amended complaint contains one timely allegation: the termination of Ms. Mason’s employment while on medical leave [Termination Allegation]. This is alleged to have occurred on April 21, 2021. The amended complaint otherwise provides particulars to the allegations in the initial complaint, which I have already found are out of time.
[22] The School District argues that the entirety of the amended complaint, including the Termination Allegation, is out of time. Specifically, it says that since the initial complaint is out of time, the amended complaint cannot be accepted unless it meets the requirements of s. 22 of the Code as a standalone complaint. The School District says that it does not further the purposes of the Code for a complainant to file an out of time complaint, wait over two years, then use that complaint as a basis to file an amendment with allegations that: (a) were not filed within twelve months of the date of filing the amendment, and (b) all of which predate the filing of the initial complaint. The School District notes that if considered as a standalone complaint, all the allegations in the amended complaint were filed more than one year out of time and there are insufficient grounds to accept it under s. 22(3) of the Code.
[23] I am not persuaded by this argument, as it is not supported by the Tribunal’s practices or authorities. Complainants are permitted, within certain limitations, to rectify deficiencies in their complaints by filing an amendment. This is subject to Rule 24(4), which requires an application to amend a complaint to guard against creating a “moving target” for the respondent at certain advanced stages of the Tribunal’s process: Pausch v. School District No. 34, 2008 BCHRT 154. Notably, this was not a complaint in which the complainant was required to apply to amend the complaint under Rule 24(4), and the Tribunal confirmed that the amended complaint formed part of the complaint by letter to the parties dated June 13, 2023. The School District has since filed an amended complaint response.
[24] Further, the Tribunal has held that the issue of whether an amendment includes a late-filed allegation is determined based on the time limit for filing the initial complaint, not the date on which the amendment is filed: Ashton v. BC Ministry of Children and Family Development and another, 2017 BCHRT 202 at para. 26; Kun v. UBC, 2011 BCHRT 102 at para. 34; Kruger v. Xerox Canada (No. 3), 2005 BCHRT 284. In that sense, once a complaint amendment is accepted for filing by the Tribunal in circumstances where an application to amend is not required, the amendment forms part of the initial complaint, and the timeliness of the allegations it contains is based on the initial date of filing. In sum, there is no authority that would allow me to dismiss timely allegations contained in an amendment to the complaint on the basis that the allegations in the initial complaint were later found to be untimely.
[25] Accordingly, I find that the Termination Allegation is timely, but all the other allegations in this complaint as amended are late filed. Although the late allegations could be considered timely if they form part of a continuing contravention anchored to a timely allegation: School District v. Parent obo the Child, 2018 BCCA 136 at para. 73, I am not persuaded that that is the case here.
[26] A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57at para. 23; School District at para. 50. It is Ms. Mason’s burden to establish that her allegations are part of a continuing contravention: Dove v. GVRD and others (No. 3), 2006 BCHRT 374 at para. 21. As mentioned above, Ms. Mason has not responded to this application. She has also not alleged that the timely allegation forms part of a continuing contravention which could bring the late-filed allegations into time. Upon review of the information before me, I am also not satisfied that the out-of-time allegations are of the same character as the Termination Allegation. Whereas the out of time allegations are about workplace conditions, including Ms. Mason’s job responsibilities, as well as alleged racism and microaggression by her colleagues; the Termination Allegation is about whether the School District improperly disregarded the medical basis for her leave of absence. The former allegations do not form part of a continuing contravention anchored to the timely allegation and are therefore out of time.
B. Is it in the public interest to accept the late-filed part of the complaint?
[27] Because much of the complaint is late-filed, I now consider whether to accept all or part of the complaint under s. 22(3) of the Code. The burden is on the complainant to persuade the Tribunal to accept the complaint. I must consider two things: public interest and substantial prejudice to any party.
[28] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. These 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: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria), 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152; Mzite at para. 55. The inquiry is always fact and context specific.
[29] I begin with the length of the delay, which ranges between five months and four years. This is significant, but not insurmountable if there are compelling public interest reasons to accept the late-filed complaint.
[30] Next, I turn to the reasons for the delay. In her initial complaint form, Ms. Mason states that she filed her complaint late because “there is a discrepancy between the termination of employment letter and the dates of [her] correspondence as an employee with [her] union and HR representatives.” While this explanation may be relevant to the date of the Termination Allegation, I note that Ms. Mason did not include an allegation regarding her termination in her initial complaint. It is therefore unclear how this confusion contributed to the delay in filing her complaint. She has provided insufficient information for me to find this to be a compelling reason for the delay.
[31] Ms. Mason further states that accepting the late-filed complaint would benefit the public by empowering “Indigenous employees to speak up against the systemic issues within the organizations they work in as well as change the way these organizations interact not only with their Indigenous employees but their Indigenous students.”
[32] The School District says this argument is purely speculative and could be made in all complaints before the Tribunal. It points to A v. University and others, 2014 BCHRT 235 at para. 29, where the Tribunal rejected a similar argument, stating that any potential benefit “must be weighed against the argument that allowing a late-filed complaint to be accepted, in the absence of other reasons supporting the public interest, could encourage other complainants to ignore the substantive time limits set out in the Code.”
[33] I have considered that the Tribunal has previously recognized that systemic barriers have caused Indigenous people to be disproportionately underrepresented in complaints to this Tribunal: Mother K v. BC Ministry of Children and Family Development, 2025 BCHRT 44 at para. 55; Campbell v. Vancouver Police Board, 2019 BCHRT 12 at para. 18. In Mother K, the Tribunal found that, given the Tribunal’s commitment to reducing these barriers to make the Code’s protections meaningful to Indigenous people, there is a public interest in accepting complaints from Indigenous people who file their complaints late for reasons identified in the Expanding Our Vision: Cultural Equality & Indigenous Peoples’ Human Rights (2020) report. In view of these circumstances, I appreciate that accepting Ms. Mason’s late-filed complaint could contribute to a reduction in barriers for other Indigenous people by raising awareness of the Code’s application in these circumstances.
[34] However, I do not see this a parallel case to Mother K, where the complainant provided a reason for the delay in filing connected to her experience as an Indigenous person. Here, Ms. Mason has not provided a transparent or compelling reason for filing her complaint late. I note that she was provided the opportunity to respond to this application where she could have provided further details, but she did not do so.
[35] Further, I am satisfied that in these circumstances the School District will suffer substantial prejudice because of the delay in filing the complaint due to loss of witness evidence.
[36] While the complainant bears the burden under s. 22(3) of the Code, the respondent is more likely to have information about substantial prejudice: Ferguson v. Ausenco Engineering Canada and another, 2015 BCHRT 28 at para. 87; Shields v. Source Interlink Canada, 2007 BCHRT 164, para. 14. It is not enough to just say there is prejudice. A respondent must give facts and details about what the prejudice is, and why it is substantial: Rezaei v. University of Northern British Columbia and another, 2009 BCHRT 406, para. 80. In some cases, the Tribunal may infer substantial prejudice from a long delay in filing a complaint: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 31. In these cases, the delay is usually measured in years, not in months: Alford and another v. B.C. (Ministry of Social Development and Social Innovation), 2016 BCHRT 64 at para. 64.
[37] The School District says it will experience prejudice from the delay because many of the allegations in the complaint involve brief interactions with staff and union representatives that occurred over four years ago. In the amended complaint response, it has provided specific examples of how the delay in filing has impacted the memories of key witnesses to the alleged events. For example, it states that the school principal does not recall a conversation that Ms. Mason alleges they had on June 28, 2019, regarding the AEA position. Similarly, the School District says that one of the colleagues who Ms. Mason has made allegations about dating back to June 2019, is unable to provide reliable evidence due to fading memories and the passage of time.
[38] The School District further says that other key witnesses who would be required to provide evidence about allegations in the complaint are either no longer employed with the School District or not under its control. This includes the school principal, colleagues involved in the allegations, and other involved staff. With respect to the amendment allegations, the School District says that they are insufficiently particularized, which, given the delay, will make them particularly difficult to investigate. The School District says this causes prejudice in preparing for the hearing.
[39] In her initial complaint form, Ms. Mason states that the delay in filing would not cause any party harm because “the issues within the organization have not been resolved.” Respectfully, this is not a relevant consideration in the assessment of prejudice caused by the delay. I see this as a bare assertion without sufficient information for the Tribunal to assess the real potential for harm to the other party.
[40] In these circumstances, I am satisfied that it is not in the public interest to accept the late filed portions of this complaint, and that doing so would cause the School District significant prejudice.
IV CONCLUSION
[41] In summary, with the exception of the Termination Allegation, I find that all allegations in the complaint as amended are late filed, do not constitute a continuing contravention, and that it is not in the public interest to accept the late part of the complaint. These allegations are dismissed. As a result, only the Termination Allegation will proceed to a hearing.
Theressa Etmanski
Tribunal Member