The Worker v. WorkSafeBC and others, 2025 BCHRT 79
Date Issued: April 1, 2025
File(s): CS-013675
Indexed as: The Worker v. WorkSafeBC and others, 2025 BCHRT 79
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:
The Worker
COMPLAINANT
AND:
WorkSafeBC and the Physiotherapy Clinic and IO and SK
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
Counsel for the Complainant: Samuel Harper
Counsel for the Physiotherapy Clinic and IO and SK: Hollis A. Bromley
Counsel for WorkSafeBC: Johanna Goosen
I. INTRODUCTION
[1] On November 15, 2024, the Worker filed a complaint of discrimination in services based on Indigenous identity, ancestry, race, mental and physical disability, sex and family status contrary to s. 8 of the Human Rights Code [ Code ], against WorkSafeBC [ WSBC ], a Physiotherapy Clinic [the Clinic ] contracted to offer a WSBC rehabilitation program, and two Clinic physiotherapists, IO and SK.
[2] On December 11, 2024, the Tribunal allowed the Worker’s complaint to proceed against all four respondents as a continuing contravention of the Code in the area and grounds noted above.
[3] The Complaint was later allowed to proceed for alleged retaliation by WSBC.
[4] On January 21, 2025, SK applied for a reconsideration of the Tribunal’s December 11, 2024, decision allowing the complaint to proceed against him as a continuing contravention. SK argued the sole allegation concerning his conduct occurred on May 8, 2023, which was well before the one-year deadline for filing the complaint. Further, he argued that the allegations against him are distinct in nature from the allegations made against the other Respondents such that they do not form part of a continuing contravention.
[5] On January 22, 2025, the Tribunal sought more information from the Worker regarding the late filing of her complaint against SK.
[6] On January 28, 2025, the Tribunal decided to proceed with a reconsideration of its December 11, 2024, decision allowing the Complaint to proceed against SK as a continuing contravention of the Code and sought late filing submissions from the parties regarding this aspect of the Worker’s complaint only.
[7] Submissions were received from the Worker, the Clinic, IO and SK. However, WSBC did not make any submissions, despite having an opportunity to do so.
[8] The issue before me with respect to timeliness is whether to accept the Complaint against SK. I make no findings of fact regarding the merits of the Complaint against SK.
[9] For the reasons that follow, I find that the Complaint against SK is not a continuing contravention of the Code : s. 22(2), however, it is in the public interest to allow it to proceed late filed: s. 22(3).
II. Order LImiting Publication
[10] In rendering this decision, it is necessary to discuss the Worker’s mental disability in some detail as it relates to her ability to file the Complaint in a timely manner. As such, I have decided to order a limitation on the publication of the names of the parties, apart from WSBC, to protect the Worker’s privacy regarding this sensitive information.
[11] In making this order, I recognize there is a strong public interest in the Tribunal maintaining open and public processes to promote the awareness of the Code , education about its application, and access to its processes. However, there are exceptions to an open process where strong grounds for limiting publication of personal information exist: A v. University and Dr. B and C and D and E , 2014 BCHRT 235, at para. 5. In this case, I am persuaded that public knowledge of the parties’ names, apart from WSBC, when the decision must identify the Worker’s mental disabilities could negatively affect her employment prospects and possibly stigmatize her within the community where she resides. These are compelling grounds for limiting publication for the purposes of preliminary decisions on this complaint.
[12] This order is limited to this decision only. Should the matter proceed further in the Tribunal’s process, public decisions will identify the parties unless a further order limiting publication is sought.
III. BACKGROUND
[13] The Worker is Indigenous. She identifies as being visibly Indigenous with a last name that also identifies her as Indigenous. The Worker reports chronic illnesses, including asthma and a susceptibility to heat-induced symptoms.
[14] On March 22, 2023, the Worker injured her right knee in a fall at work. WSBC later accepted her claim.
[15] On April 3, 2023, the Worker began attending the Clinic as part of a six-week WSBC sponsored physiotherapy treatment plan. The plan included two visits per week to provide treatments with “Electrotherapeutic Modalities” and therapeutic exercises aimed at rehabilitating the Worker’s knee for a return to work without any limitations.
[16] On May 8, 2023, the Worker alleges SK engaged in sexual abuse during physiotherapy treatment received at the Clinic. The Worker alleges the abuse that occurred on this day caused her lasting harm to her mental health and wellbeing. She has not provided any details of these allegations, and SK denies them.
[17] On October 18, 2023, the Worker alleges IO misrepresented her difficulties scheduling appointments after concluding in a report to WSBC that she was “having difficulties with timing and booking” without acknowledging her various chronic illness issues and caregiving responsibilities for her elderly mother.
[18] On November 15, 2023, the Worker alleges IO documented her opinion that she was “more focused on her pain than improving function” and again accused her of inconsistency of attending treatment. She further alleges IO commented in the report about her having a mental illness. The Worker claims these perceptions and accusations were communicated to WSBC without consulting her and this negatively influenced later claim entitlement decisions.
[19] The Worker further alleges that IO and WSBC’s perceptions of her as exaggerating or fabricating her symptoms of pain and chronic illness reflected harmful stereotypes about Indigenous people. In her view, these respondents failed to provide culturally appropriate or trauma-informed care, ignoring her identity, and the unique barriers Indigenous people face in healthcare and rehabilitation settings.
[20] On December 18, 2023, the Worker alleges WSBC approved her request for an interruption in the rehabilitation program at the Clinic because of a death in her family. However, she says WSBC told her to immediately return to the program afterwards in order to maintain her wage loss benefits.
[21] On January 18, 2024, WSBC concluded the Worker’s temporary claim benefits after determining her injury had stabilized into a permanent condition. However, that decision was overturned on review by WSBC in mid 2024.
[22] On November 21, 2024, WSBC further determined the Worker’s condition had plateaued as a permanent disability. As of early 2025 the Worker was receiving vocational rehabilitation services and had been referred for an assessment of her permanent disability benefits.
[23] From late November 2024 until mid January 2025, the Worker alleges WSBC made unauthorized phone calls to her in violation of an agreement that it would communicate in writing only. The Worker alleges these incidents were failures to accommodate her disabilities and done to retaliate against her for filing a human rights complaint.
IV. ANALYSIS AND DECISION
[24] 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 and Continuing Contravention
[25] The Complaint was filed on November 15, 2024. 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 November 15, 2023.
[26] A complaint is filed in time if the last allegation of discrimination happened within one year, and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District v. Parent obo the Child , 2018 BCCA 136 at para. 68. 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 57 at para. 23; School District at para. 50.
[27] The Worker confirms that her sexual assault allegations against SK occurred on May 8, 2023. On their own, these allegations are late filed. However, the Worker alleges the assault by SK is part of a systematic failure on the part of the Clinic to maintain a trauma informed environment. She further submits that continuing to have sessions with IO in the same room where the alleged incident with SK occurred retraumatized her and worsened her PTSD symptoms. The Worker believes IO mischaracterized her trauma-related response as “mental health issues” and inaccurately labeled her as resistant to recovery when reporting to WSBC. In her view, the discriminatory impact of SK’s assault and the Clinic’s systemic failures constitutes a continuing contravention under the Code .
[28] SK argues the Worker has not provided allegations related to his conduct that could form a continuing contravention. He submits the specific “sexual abuse” allegation made against him on May 8, 2023, is distinct in character from those alleged against the Clinic and IO. In SK’s view, caselaw cited by the Worker in support of a continuing contravention more accurately supports his position that the actions of a respondent accused of sexual misconduct are not of the same character as those of the others’ subsequent actions: Hale v. University of British Columbia Okanagan and another , 2018 BCHRT 34.
[29] In the circumstances of this case, I disagree with the Worker that her allegations against SK form part of a continuing contravention of the Code . In my view, the allegations in question are distinct in character from other allegations that are timely. First, the other allegations are against different respondents and are related to treatment of the Worker in the program that resulted in a limitation of her benefits because of her Indigeneity, disabilities and family status. While appreciating the Worker’s view that all allegations related to her time in the rehabilitation program concern a systematic failure on the part of the Clinic and its physiotherapist staff members to maintain a trauma-informed environment, I am not convinced that such a broad definition of similar in nature is helpful in deciding whether a continuing contravention exists. In my view, the alleged sexual assault by SK on a specific day is distinguishable from the Clinic and IO’s actions ignoring and minimizing the Worker’s report of disability symptoms, and concluding she was not fully participating in the program without considering how her disability and family status affected her attendance. In the end, I do not find the allegations against SK are of the same character as the worker’s other timely allegations against different respondents for the purposes of determining whether they are part of a timely continuing contravention of the Code .
[30] Having concluded the Worker’s May 8, 2023, allegations against SK were late filed and do not form part of a continuing contravention of the Code , it is necessary to determine whether it is in the public interest to accept the late-filed complaint against SK and whether there would be any substantial prejudice.
B. Public Interest
[31] 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.
[32] I have first considered the length of delay in filing. The delay associated with the May 8, 2023, allegations against SK is approximately six months. A delay of six months is significant: Benedict v. Rutland Dental Centre and others , 2008 BCHRT 39, at para. 19. However, such a delay is not inordinate if other factors indicate that it is in the public interest to allow the complaint to proceed.
[33] The Worker’s reasons for delay focus on the psychological impact the alleged incident had on her ability to file a complaint with the Tribunal. She submits that it was not until October 28, 2024, that she was able to file a police report concerning the alleged sexual assault. She states that once she understood her rights, she acted promptly to file her complaint with the Tribunal. The Worker submits that her delay was not caused by negligence but was the direct result of the psychological impact of the assault and the time she needed to process the trauma.
[34] The Worker believes that she was suffering from undiagnosed post-traumatic stress disorder [ PTSD ] following the incident with SK. When she managed to report the incident to police and file with the Tribunal in late 2024, she says that act greatly exacerbated her PTSD symptoms. In January 2025, the Worker says that she sought treatment from a doctor of unknown speciality for her PTSD symptoms.
[35] While the Worker admits she was able to pursue her WSBC claim and complain to the physiotherapist’s regulatory body regarding IO during the relevant timeframe for filing, she claims the trauma of the sexual assault and subsequent PTSD symptoms prevented her from taking actions regarding SK with the police and the Tribunal for some time.
[36] The Worker asks the Tribunal to consider the Limitation Act in recognizing that survivors of sexual assault may need time to process the event before filing a civil suit, which can lead to a delay, even a lengthy delay. She asks the Tribunal to be guided by this legislative intent found in this other provincial time limit legislation and conclude that this reason for late filing attracts the public interest.
[37] SK argues the Worker’s evidence of PTSD symptoms related to the alleged sexual assault should not be allowed to proceed as she has not provided medical evidence of disability associated with such a condition. SK further argues that the Worker’s evidence of disability is undermined by her ability to pursue avenues of redress in other forums related to her work injury and alleged mistreatment at the Clinic. In SK’s view, the Workers’ ability to file other complaints and appeals, and the lack of particulars regarding how her alleged trauma and psychological issue have impaired ability to file a timely complaint, weigh against accepting the late-filed Complaint in the public interest.
[38] In the circumstances of this case, I see no reason to reject the Worker’s own evidence regarding her disability for filing a complaint due to her recently diagnosed PTSD symptoms. While appreciating that it would be helpful to have corroborative evidence from a treating mental health practitioner to support a finding of disability from filing, the Worker admits she did not seek medical attention until after she filed the Complaint, and her condition was undiagnosed during the period in question. At best, such evidence would be a recounting of the Worker’s own evidence of disability, which in this case I see no reason to disregard. I further accept the Worker’s evidence regarding her specific disability from engaging in any avenue of redress associated with the sexual assault, despite being able to pursue other actions unrelated to this alleged trauma. This is not a case of a complainant having overall low functioning associated with mental and physical disability such that evidence of any capabilities undermines the complainant’s evidence regarding the inability to file with the Tribunal. Here, the Worker could file other disputes elsewhere but had a mental disability preventing her from filing in relation to the sexual assault allegations. As such, I am persuaded that the public interest attracts to allowing the Worker’s late filed complaint against SK to proceed for reasons related to her PTSD symptoms.
[39] 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 , 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 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.
[40] The Worker submits her case matters because it highlights the systematic failures in addressing sexual assault and discrimination within the healthcare and rehabilitation systems. She further submits that allowing the Complaint to proceed will ensure accountability for such failures and address the ongoing harm that continues to affect her recovery.
[41] SK submits that Worker’s case is not unique or novel for the purposes of attracting the public interest. SK notes the Worker’s allegations of systemic failures regarding sexual assault and discrimination can be addressed in the part of the Complaint that is proceeding against the other respondents.
[42] While appreciating the seriousness of the Worker’s allegations against SK, I do not find her 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 the provision of services related to a variety of personal characteristics, including Indigeneity. Such cases are unfortunately commonly heard by the Tribunal and the law in this area is fairly settled.
[43] After reviewing the factors for consideration, I have decided to exercise my discretion in finding it is in the public interest to allow the complaint against SK to proceed. While appreciating the case is not particularly unique or novel and the delay of six months is serious, I am persuaded that the public interest attracts in the circumstances of this case where the Worker’s PTSD symptoms associated with the alleged sexual assault precluded her from filing a complaint about the assault during the relevant timeframe for filing.
[44] Having found that it is in the public interest to accept the late-filed complaint, I need to address the issue of whether substantial prejudice would result.
C. Substantial Prejudice
[45] SK argues the Tribunal should infer substantial prejudice with respect to the allegations in May 2023 because memories will have faded, and relevant evidence may have been lost or destroyed.
[46] The Worker argues no party will experience substantial prejudice if her complaint proceeds against SK. She notes the Respondents are not claiming relevant notes or electronic entries have been lost. Further, they have not identified any witness, including SK, whose memory may have dimmed to the extent that substantial prejudice would result.
[47] In my view, no substantial prejudice would result to the Respondents in this case because of the delay. The Respondents have not raised any specific prejudice concerns and the information on file suggests the existence of documentary evidence as the matter involves a WSBC claim. While appreciating that a good deal of time has passed since the events in question occurred, I am satisfied witnesses can be identified and called up to provide testimony without substantially prejudicing the Respondents. As such, I have determined the Worker has satisfied the burden of establishing both elements under s. 22(3) of the Code and I cannot conclude that the Respondents would suffer substantial prejudice.
V. CONCLUSION
[48] For these reasons, the Complaint against SK will proceed.
Steven Adamson
Tribunal Member