Complainant v. Care Home and others (No. 2), 2025 BCHRT 285
Date Issued: November 18, 2025
File(s): CS-002457
Indexed as: Complainant v. Care Home and others (No. 2), 2025 BCHRT 285
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:
Complainant
COMPLAINANT
AND:
Care Home and Care Worker and Manager and Funder
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
RULE 36
Tribunal Member: Robin Dean
Counsel for the Complainant: Jodie Berry
Counsel for the Funder: Justin Mason and Joanne Kim
Counsel for the Manager, the Care Worker, and the Care Home: Matthew Desmarais
I INTRODUCTION
[1] The Complainant and the Funder both file applications seeking reconsideration of my decision dismissing aspects of the complaint: Complainant v. Care Home and others, 2024 BCHRT 354 [Dismissal Decision].
[2] The Complainant’s application is late-filed by 3.5 months. Nevertheless, she argues that I should exercise my discretion to accept it. While I accept the late-filed application, I do not reconsider the Dismissal Decision, except in one regard. The Dismissal Decision states that the Complainant failed to argue that it would be in the public interest to accept one of her untimely allegations and that it would not result in any prejudice: the Inadequate Investigation Allegation (as described below). In fact, the Complainant did argue that point in her response to the applications to dismiss. I therefore reconsider that portion of the decision alone. In doing so, I dismiss the Inadequate Investigation Allegation because it is untimely, and it is not in the public interest to accept it.
[3] Turning to the Funder’s reconsideration application, it says that I misunderstood or failed to consider two key arguments about one of the Complainant’s allegations: the Two-Person Care Allegation (as described below). The Funder’s arguments re-argue its case or provide arguments that it failed to provide in the first instance. This is inappropriate on reconsideration. I decline to reconsider the Dismissal Decision. The Funder’s reconsideration application is denied.
II BACKGROUND
[4] The background to the complaint is set out in the Dismissal Decision. I do not repeat it here: Complainant at paras. 7-17. In brief, the Complainant alleges that she was sexually assaulted by the Care Worker in the Care Home where she lived, which was funded by the Funder [Sexual Assault Allegation]. She says after she reported the sexual assault to the Manager of the Care Home, she was disbelieved, and, as a result, the Care Home took inadequate steps to investigate the sexual assault [Inadequate Investigation Allegation]. The Complainant further alleged that the Manager told HandyDART, the accessible bus service that the Complainant relied upon for transportation, that the Complainant had a history of making similar claims after the Complainant alleged that the driver of the HandyDART sexually harassed her. She says that HandyDART then made the decision to require the Complainant to be accompanied on board by an attendant, which is something she cannot afford [HandyDART Allegation]. She also alleges that the Care Home began assigning two people to assist her with her care, instead of one, after the sexual assault allegation came to light [Two-Person Care Allegation]. Finally, she says that the Respondents retaliated against her when they found out about her intention to file a human rights complaint by accelerating plans to move her from the Care Home [Retaliation Allegation].
[5] In the Dismissal Decision, I dismissed the Sexual Assault Allegation and the Inadequate Investigation Allegation as untimely. I found that there was no reasonable prospect of the Complainant proving an adverse impact attributable to one of the Respondents and therefore dismissed the HandyDART allegation. I also found no reasonable prospect of the Complainant proving a connection between the human rights complaint and the Respondents’ decision to move her, dismissing the Retaliation Allegation. I did not dismiss the Two-Person Care Allegation.
[6] In the reconsideration application, the Complainant says that the Dismissal Decision was based on a series of fundamental misunderstandings about the arguments she made in response to the application to dismiss. She also says that I made the decision to dismiss the Inadequate Investigation Allegation on an incorrect basis—i.e. that she did not make a s. 22(3) argument when, in fact, she did.
[7] The Funder argues in its reconsideration application that I fundamentally misunderstood two of its arguments related to the Two-Person Care Allegation.
III Analysis and decision – The complainant’s reconsideration application
A. Whether to Accept Late-Filed Application
[8] Rule 36(2) of the Tribunal’s Rules of Practice and Procedure sets a time limit to file a reconsideration decision: A party must apply to reconsider a decision within 14 days of the date on which the circumstances that form the basis of the application came to the party’s attention or could have come to the party’s attention if the party exercised reasonable diligence, whichever is earlier.
[9] The Tribunal has authority to waive or vary time limits set out in the Rules, as it considers appropriate: Rule 2(2). In exercising this discretion, the Tribunal considers that the purpose of the Rules is to “facilitate the just and timely resolution of complaints”: Rule 1(1). In MacLennan v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 214, the Tribunal identified factors that may be relevant in exercising its discretion to waive or vary the time limit in Rule 36(2):
In the context of a late-filed application for reconsideration, the Tribunal must – as in all cases – consider all of the circumstances to exercise its discretion in a manner that best furthers the fair and timely resolution of the complaint and the purposes of the Code. Because the authority to reconsider a final decision is based on considerations of fairness and equity, these will be guiding principles. In my view, relevant factors may include: whether there are serious grounds for reconsideration, the length of the delay, the explanation for the delay, and prejudice to any person. These factors are non-exhaustive. These are not statutory criteria so, unlike a late-filed petition, a person seeking to file a late reconsideration application does not need to satisfy each of the criteria to persuade the Tribunal to waive the time limit. Rather, the Tribunal considers all of the circumstances to determine whether to consider the late-filed application. This is a highly discretionary exercise.
[10] In this case, and considering all of the circumstances, I exercise my discretion to accept the late-filed application for reconsideration. First, there are serious grounds for reconsideration. The Complainant says that I overlooked one of her arguments and then made a decision on the basis that the argument had not been made. This was clearly unfair, and I find that it is a serious ground for reconsideration.
[11] Second, the length of the delay—3.5 months—is significant in the context of a 14-day application period. While this would generally weigh against proceeding with the late-filed application, in the context of this case, I do not find it weighs heavily against proceeding. Specifically, concerns about prejudice to the other party from a delay in filing are mitigated in this case. The Complainant filed her application at the same time that the Tribunal was receiving submissions on the Funder’s application for reconsideration. Although the Funder initially filed its reconsideration application within the 14-day timeframe, the submissions period was prolonged due to health issues of one of the participants. The submissions period for the Complainant’s application ended up coinciding with the submissions period for the Funder’s application.
[12] Finally, in terms of the reasons for the delay, I do not find them to weigh in favour of accepting the late application. The Complainant says she retained new counsel in February 2025. She says the delay was the result of finding new representation, new legal counsel getting up to speed, preparing a judicial review petition of the Dismissal Decision, and preparing her response to the Funder’s application for reconsideration. In other words, it was a busy time for the Complainant and her new legal counsel. However, at the time that new legal counsel was retained, the application for reconsideration was already late. The Complainant does not explain why her former legal counsel could not have filed the application on time. I find this factor weighs against accepting the late-filed application.
[13] Nevertheless, considering all the circumstances, including the seriousness of the grounds for reconsideration and the lack of prejudice to any other person, I exercise my discretion to accept the late-filed application for reconsideration.
B. Whether to Reconsider the Decision
[14] The Tribunal has a limited jurisdiction to reconsider its own decisions: Rule 36 of the Tribunal’s Rules of Practice and Procedure. Specifically, the Tribunal may reconsider a decision if it is in the interests of justice and fairness to do so: Routkovskaia v. British Columbia (Human Rights Tribunal), 2012 BCCA 141 at para. 23. The Tribunal exercises this power sparingly, giving due consideration to the principle of finality in administrative proceedings: Grant v. City of Vancouver and others (No. 4), 2007 BCHRT 206 [Grant] at para 10.
[15] The burden is on the person seeking to have a matter re-opened to show that the interests of fairness and justice demand such an order: Grant at para. 10.
[16] The Tribunal does not have authority to reconsider a decision based on an argument that the decision was wrong or unreasonable or because there has been a change of circumstances: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499 [Fraser Health] at paras. 135 and 160. The Tribunal will not reconsider a decision to address arguments that could have been made in the first instance but were not, or to hear a party reargue its case: Ramadan v. Kwantlen Polytechnic University and another (No. 2), 2018 BCHRT 56 at para. 13. When a party simply disagrees with a Tribunal decision, the appropriate recourse is judicial review by the BC Supreme Court.
[17] At para. 42 of the Dismissal Decision, I state:
I find that the Inadequate Investigation Allegation is not timely, and I dismiss it on this basis. I do not consider whether it would nevertheless be in the public interest to accept the untimely Inadequate Investigation Allegation because the Complainant has not put this argument forward in her submissions.
[18] I was incorrect. At para. 73 of the Complainant’s response to the application to dismiss it says:
The failure by [the Manager] and [the Care Home] to respond appropriately and reasonably to [the Complainant’s] assault also constitutes a continuing contravention. In the alternative, it should be accepted pursuant to s. 22(3) of the Code, for the same reasons as the assault allegation.
[19] Here, like in Lychy v. Frontier Kemper (No. 2), 2011 BCHRT 42, I wrongly stated in the Dismissal Decision that the Complainant did not provide an argument on the issue in circumstances where, in fact, she did provide an argument. Because I overlooked her argument on this point, I made a decision on the basis that no argument was made. As the Tribunal said in Tuson v. The Board of Education of School District No. 5 (No. 5), 2021 BCHRT 14 at para. 21: “there was clearly an unfairness in having a matter decided in circumstances where the Tribunal Member did not have all of the material before them.”
[20] Given this, I find it is appropriate to reconsider whether it is in the public interest to accept the Inadequate Investigation Allegation.
[21] There are other arguments that the Complainant says I missed, failed to consider, or misunderstood. The Complainant says that I:
a. misunderstood her arguments regarding the public interest in the Sexual Assault Allegation, failing to take an intersectional approach;
b. incorrectly treated the Inadequate Investigation Allegation as a standalone complaint;
c. in terms of the Handy-DART Allegation, incorrectly stated that the Complainant failed to articulate the adverse impacts she experienced; and
d. did not consider her arguments in relation to the Retaliation Allegation.
[22] Several of the Complainant’s submissions on reconsideration take statements and findings from the Dismissal Decision out of context with the rest of the decision in order to argue error. To the extent they are expressions of disagreement with the Dismissal Decision or attempts to reargue the case, that is not what reconsideration is for. The Tribunal does not have authority to reconsider a decision based on an argument that the decision was wrong or unreasonable. And a reconsideration application is not an occasion for re-argument. The Complainant disagrees with the Dismissal Decision. Her recourse is judicial review
[23] Considering the Dismissal Decision as a whole, I disagree that reconsideration is proper. I do not find it necessary or appropriate to elaborate or provide further reasons in this decision. It is not the purpose on reconsideration for the Tribunal to explain to the applicant how their arguments were understood. The Complainant’s arguments were before me as part of her submissions and evidence in response to the application to dismiss, and I considered them. I will not engage further with these arguments.
[24] I now turn to reconsider whether it is in the public interest to accept the Inadequate Investigation Allegation. For the reasons that follow, I find that it is not.
C. Reconsideration of Decision
[25] The question under s. 22(3) of the Human Rights Code is 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.
[26] The Tribunal assesses the public interest in a late-filed allegation 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: Code, 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 [Mzite] 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.
[27] The Complainant argues that the late-filed Inadequate Investigation Allegation should be accepted under s. 22(3) of the Code for the same reason as the Sexual Assault Allegation should be accepted. In the Dismissal Decision I determined that it was not in the public interest to accept the untimely Sexual Assault Allegation, after a consideration of the factors relevant to the public interest inquiry: Complainant at paras. 26-36. I find that the same considerations apply here and determine upon reconsideration that it is not in the public interest to accept the Inadequate Investigation Allegation.
[28] I do not accept the late-filed Inadequate Investigation Allegation as it is not in the public interest to do so. Because I find that it is not in the public interest to accept the Inadequate Investigation Allegation, it is unnecessary for me to consider whether accepting the late-filed complaint would give rise to substantial prejudice.
[29] I next turn to the Funder’s application for reconsideration.
IV Analysis and decision – the funder’s Reconsideration application
[30] Here, the Funder’s application for reconsideration was timely; therefore, the only question before me on the Funder’s application is whether reconsideration is appropriate. I find that it is not.
[31] The Funder says that I either failed to address or fundamentally misunderstood two key arguments in their submissions on dismissal.
[32] First, the Funder says that I fundamentally misunderstood or failed to consider its argument that it was not responsible for the implementation of the two-person care policy. I considered this argument at para. 57 of the Dismissal Decision, saying that it was not an argument that the Funder fully developed. In its reconsideration application, the Funder provides arguments that were not developed in the application to dismiss process. It says that it was “plain and clear” that the Complainant could not take her complaint vis-à-vis the Funder out of the realm of conjecture. However, a reconsideration application is not the chance to re-argue a case or to provide arguments that were not made in the first instance. I do not reconsider the Dismissal Decision on this basis.
[33] Second, the Funder says that I fundamentally misunderstood or failed to consider its justification defence in regard to the Two-Person Care Allegation. The Funder says that the Complainant developed a new theory in her response to the application to dismiss—i.e. that it was discriminatory for the Funder not to intervene after the Care Home implemented the two-person care policy. The Funder says that it put forward a justification argument in its reply. The Funder acknowledges that the justification argument was not fully fleshed out in its reply but says that this is because it was in response to a new argument made by the Complainant. It also says that the “record already established that [the Funder] had met the test for justification.”
[34] The Funder is correct that the Dismissal Decision did not consider whether it would be reasonably certain to prove a justification defence with regards to the Two-Person Care Allegation. However, in my view, this is not a basis to reconsider the decision. Generally, the Tribunal makes decisions based on the arguments before it. This is a matter of fairness to all participants. To the extent that a justification defence was argued, I am not persuaded that it was unfair not to consider it given the undeveloped nature of the arguments advanced before me and the burden on a respondent under s. 27(1) of the Code. I do not reconsider the Dismissal Decision on this basis. If the Funder thinks that the Dismissal Decision was wrong, its recourse is judicial review.
V Conclusion
[35] I grant the Complainant’s reconsideration application. I reconsider whether it would be in the public interest to accept the Inadequate Investigation Allegation and determine that it would not. This means that the result in the Dismissal Decision stands.
[36] I deny the Funder’s reconsideration application.
Robin Dean
Tribunal Member
Human Rights Tribunal