Harvey v. Kwantlen Polytechnic University and another, 2025 BCHRT 292
Date Issued: November 26, 2025
File: CS-005865
Indexed as: Harvey v. Kwantlen Polytechnic University and another, 2025 BCHRT 292
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:
David Harvey
COMPLAINANT
AND:
Kwantlen Polytechnic University and Kwantlen Faculty Association
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Edward Takayanagi
On his own behalf: David Harvey
Counsel for the Respondent, Kwantlen Polytechnic University: Lindsie M. Thomson
Counsel for the Respondent, Kwantlen Faculty Association: Heather Kennedy
I INTRODUCTION
[1] On January 5, 2022, David Harvey filed a complaint alleging that his former employer, Kwantlen Polytechnic University, and his union, Kwantlen Faculty Association [the Union] discriminated against him in the area of employment on the basis of his age contrary to s. 13 of the Human Rights Code. He says that in 2018, he was notified that some of his employment benefit entitlements had changed as he was over the age of 65.
[2] The University and the Union [together the Respondents] apply to dismiss Mr. Harvey’s complaint under s. 27(1)(g) of the Code because the allegations of discrimination occurred more than one year before the complaint was filed.
[3] For the reasons that follow, the complaint is not a timely continuing contravention of the Code, and it is not in the public interest to allow it to proceed late filed: ss. 22(2) and (3). Accordingly, I allow the application and dismiss the complaint.
[4] 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. I make no findings of fact.
II BACKGROUND
[5] Mr. Harvey began his employment with the University in 2005. The terms of his employment are set out in a collective agreement negotiated by the University and the Union.
[6] Mr. Harvey turned 65 on October 1, 2018. In November 2018, in response to a question from Mr. Harvey about employment benefits entitlement, the University’s Health and Benefits specialist sent an email outlining some of the differences in coverage for staff under 65 years of age and over 65.
[7] On February 8, 2019, the University sent Mr. Harvey an email outlining how his coverage for employment benefits had changed because he turned 65 years of age.
[8] On July 6, 2021, in response to Mr. Harvey requesting the Union file a grievance on his behalf for age discrimination, the Union responded that it would not file a grievance.
[9] Mr. Harvey filed his human rights complaint on January 5, 2022. He retired from the University at the end of May 2022.
III DECISION
[10] There is a one-year time limit for filing a human rights complaint: Code, s. 22. 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.
[11] The Respondents 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 the complaint is late filed, and (2) if so, whether to exercise my discretion to accept it 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.
[12] The complaint was filed on January 5, 2022. Therefore, allegations of events occurring after January 5, 2021, are timely. Alleged incidents that occurred before January 5, 2021, more than one year before the complaint was filed, would be out of time unless they are part of a continuing contravention with a timely allegation of an incident of discrimination.
[13] 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 Districtat para. 50.
[14] The Respondents say the complaint was late filed by approximately two years. It says that the single allegation of discrimination is that in 2018, when Mr. Harvey turned 65, the Respondents changed his entitlement to employment benefits.
[15] Mr. Harvey argues that each pay period where he was not given the employment benefits he was provided when he was under 65 is a separate act of discrimination. He says, therefore, the last act of discrimination occurred in May 2022, his last pay period before he retired.
[16] I agree with the Respondents that the complaint does not allege a continuing contravention. The Tribunal’s jurisprudence is clear that a continuing contravention is not merely one act of discrimination which may have continuing effects. Here, each pay period is not a distinct act of discrimination but rather the continuing effects of the decision by the Respondents to vary Mr. Harvey’s entitlement to employment benefits in 2018. Therefore, there are no timely allegations of discrimination and the complaint is late filed.
[17] Because the complaint is late filed, I now consider whether to accept all or part of the complaint under s. 22(3). The burden is on the complainant to persuade the Tribunal to accept the complaint. I must consider two things: public interest and substantial prejudice.
[18] 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 [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.
[19] Mr. Harvey’s complaint is about his employment benefits changing when he turned 65 on October 1, 2018. Therefore, the delay in filing is a little over two years. This is a significant delay and weighs against the public interest in accepting the complaint.
[20] Mr. Harvey says he was pursuing a remedy through the Union and delayed filing his complaint until it was clear his Union would not provide a resolution. He says he believed he was not permitted to file a human rights complaint until he had exhausted his other avenues for a remedy.
[21] Pursuing another process for dispute resolution is not, on its own, sufficient to support a finding of public interest in accepting a late-filed complaint: Sones v. District of Squamish, 2016 BCHRT 99 at paras. 39-52. The Tribunal has also held that pursuing other avenues does not provide an excuse for filing a complaint outside the time limit and parties should be discouraged from waiting to file their human rights complaint in the hopes of achieving a resolution elsewhere: Johar and others v. College of Veterinarians of British Columbia (No. 3), 2024 BCHRT 342 at para 185. Rather, the proper course is to file the human rights complaint on time and request the complaint be deferred pending the resolution of the issues elsewhere: George v. Montrose (Village), 2012 BCHRT 279 at para. 19; Kang v. UBC and another, 2015 BCHRT 10 at para. 43-45.
[22] While I appreciate that Mr. Harvey is self-represented and believed he was not permitted to file a human rights complaint until he had exhausted his other avenues for a remedy, ignorance of the law, in and of itself, is not enough to support a finding of public interest to support accepting a late-filed complaint: Joubarne v. Great West Life Assurance Co., 2004 BCHRT 183 at para. 18.
[23] In considering whether acceptance of a late-filed complaint is in the public interest, the Tribunal has also considered whether there is anything particularly, novel, unique or unusual about the complaint that has not been addressed in other complaints.
[24] Allegations of workplace discrimination based on age are not new issues to the Tribunal. The Tribunal has addressed complaints of age discrimination and different entitlement to benefits coverage under s. 13 of the Code: Barker v. Molson Coors Breweries and another (No. 3), 2019 BCHRT 192; Johnston obo others v. City of Vancouver (No. 2), 2015 BCHRT 90. The information before me does not suggest there is anything particularly unique, novel, or unusual about the complaint that has not already been addressed in other complaints before the Tribunal or that will fill a gap in the Tribunal’s jurisprudence.
[25] Considering all of the circumstances, I am not persuaded that it is in the public interest to accept the late-filed complaint.
[26] 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
[27] I allow the application and dismiss the complaint under s.27(1)(g).
Edward Takayanagi
Tribunal Member