Tayebicheshmehchenar v. Mahler Industries, 2025 BCHRT 86
Date Issued: April 8, 2025
File(s): CS-010196
Indexed as: Tayebicheshmehchenar v. Mahler Industries, 2025 BCHRT 86
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:
Sadegh Tayebicheshmehchenar
COMPLAINANT
AND:
Mahler Industries
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
On behalf of the Complainant: Vida Saberiyekta
On behalf of the Respondent: Aaron Kennedy
I. INTRODUCTION
[1] On July 13, 2023, Sadegh Tayebicheshmehchenar [the Worker ] filed a complaint of discrimination in employment based on physical disability contrary to s. 13 of the Human Rights Code [ Code ], against Mahler Industries [his former Employer ].
[2] Since the Complaint may have been filed outside the one-year limitation period under s. 22 of the Code , the Tribunal sought submissions from the parties.
[3] The issue before me is whether to accept the Complaint against the Employer. I make no findings of fact regarding the merits of this complaint.
[4] For the reasons that follow, I find that the Complaint against the Employer is not a continuing contravention of the Code : s. 22(2), and it is not in the public interest to allow it to proceed late filed: s. 22(3).
II. BACKGROUND
[5] On March 14, 2020, the Worker suffered a left four digits table saw injury while working for another employer. The injury required surgery and physiotherapy to regain movement in the Worker’s left hand. The Worker reports that his hand injury caused him a lot of emotional stress and financial hardship.
[6] The Worker says that after lots of hand therapy he was able to return to work.
[7] On July 3, 2020, however, the Employer wrote the Worker to inform him that his employment was terminated, effective immediately, for reasons related to his ongoing inability to return to work due to his injury and a shortage of work during the COVID-19 pandemic.
[8] On several unspecified occasions, the Worker alleges attending the Employer’s facility to ask if they would re-hire him. He alleges the Employer used different excuses each time to inform him that this would not be possible. Specifically, he alleges the first time he went back he was told there was no work because of the pandemic and the second time the Employer told him they could not hire him because of his disability. The Worker alleges the Employer’s reasons for turning him down did not seem logical without providing any details.
[9] The Worker alleges the Employer advertised his position online on multiple occasions despite not giving him an opportunity to return to work.
III. ANALYSIS AND DECISION
[10] 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
[11] The Complaint was filed on July 17, 2023. 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 July 17, 2022.
[12] 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.
[13] The Worker provides a clear allegation that his employment was terminated on July 3, 2020, for reasons related to his left-hand disability. He further alleges that he later approached the Employer on several occasions to ask for his job back without success. While appreciating the Worker alleges several distinct, undated, allegations of requesting the Employer re-hire into his former position, in my view these occurrences are appropriately characterized as continuing effects or consequences of the Employer’s July 3, 2020, decision to terminate him. I appreciate the Worker says that the Employer made excuses about its reasons for not re-hiring him, however, he has not set out new allegations apart from the Employer confirming its previous decision to end his employment in July 2020. Even if the Employer said it would not re-hire him for reasons related to his disability on the second occasion, this was a confirmation of its previous termination decision and not a new allegation of discrimination.
[14] In reaching this conclusion, I also note that the Worker’s allegations about getting his job back do not include sufficient details concerning the dates when these attempts occurred. While appreciating the Worker states that he tried to get his job back some time after his injury in March 2020, he did not include any information indicating dates for when these attempts occurred. As such, even if the Worker made further allegations of discrimination, he has not provided any evidence of a timely allegation capable of anchoring other untimely allegations necessary to form a continuing contravention of the Code .
[15] Having concluded the Complaint does not contain any continuing contravention of the Code and was late filed for the July 3, 2020, termination allegation, it is necessary to determine whether it is in the public interest to accept the late-filed complaint against the Employer and whether there would be any substantial prejudice.
B. Public Interest
[16] 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.
[17] I have first considered the length of delay in filing. The delay associated with the July 3, 2020, is more than two years, which is excessive, and militates strongly against the public interest: Naziel-Wilson v. Providence Health Care and another , 2014 BCHRT 170, [ Naziel-Wilson ]at para. 13; Mzite at para. 59.
[18] The Worker provided several reasons for his delay in filing the Complaint. First, he submits that he suffered terribly because of the March 2020 hand injury and was focused on his recovery. The Worker submits the rehabilitation process was delayed because of the COVID-19 pandemic restrictions during this time. Once he regained movement in his hand, the Worker states that he was in a “better place” to resolve the issue with the Employer.
[19] Where delay is due to a disabling condition, the Tribunal has observed that it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth , 2011 BCHRT 29 at para. 42. Disabling conditions can include physical and mental ailments resulting in great trouble coping with even the basic daily tasks of life: Naziel-Wilson at para. 21.
[20] I have no doubt the experience of losing four fingers in a table saw injury would be deeply disturbing and require a great deal of attention during rehabilitation. However, the Worker’s information indicates he was sufficiently recovered from the injury as of mid 2020 to approach the Employer about returning to work only to be informed that he was being let go. While appreciating the Worker’s injury left him with a significant disability in the immediate months after March 2020, and involved ongoing disability given the nature of the injury, the evidence on file fails to indicate the Worker was precluded from filing a complaint for reasons related to disability for most of the period of delay in question. I accept that the Worker’s hand rehabilitation was a lengthy process taking many months, however, the fact that he was undergoing rehabilitation does not adequately explain why time spent in rehabilitation precluded him from also starting a complaint with the Tribunal concurrently.
[21] 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.
[22] The Worker argues that allowing his case to proceed may help others experiencing similar employment discrimination. He submits that it is not acceptable that workers like him get left behind because they have less ability following an injury. Such workers feel abandoned and broken, and without purpose.
[23] While appreciating the seriousness of the Worker’s allegations against the Employer, I do not find this 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 Employment based on disability, which is commonly heard by the Tribunal and the law in this area is fairly settled.
[24] On balance, I have decided it is not in the public interest to allow the late filed Complaint to proceed. The Complaint is significantly late filed and the Worker’s disability stemming from the injury did not preclude him for filing for much of the allotted timeframe. Finally, while the nature of the Complaint is serious, it is unfortunately not unique for the purposes of attracting the public interest.
[25] 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
[26] For these reasons, the Complaint against the Employer will not proceed.
Steven Adamson
Tribunal Member