Simak v. Douglas College and another (No.2), 2026 BCHRT 181
Date Issued: August 12, 2026
File: CS-008296
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:
Douglas Brian Simak
COMPLAINANT
AND:
Douglas College and John Vernon Fleming
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Andrew Robb
Counsel for the Complainant: Larry W.O. Smeets
Counsel for the Respondents: Alon Mizrahi and William Kunimoto
I INTRODUCTION
[1] In this decision I explain my reasons for dismissing Dr. Douglas Simak’s human rights complaint against Douglas College [the College] and John Fleming, who was a dean at the College. I refer to the College and Mr. Fleming, together, as the Respondents.
[2] Dr. Simak was employed by the College. He alleges that the Respondents discriminated against him based on his disabilities. He says that after incidents at the College where his disabilities affected his conduct, the Respondents placed restrictions on his access to the College campus and his ability to contact colleagues and moved his office out of his home department. He says these restrictions were unreasonable and discriminatory.
[3] The Respondents deny discriminating. They apply to dismiss the complaint on the basis that Dr. Simak has no reasonable prospect of proving a connection between his disabilities and the Respondents’ conduct at issue in the complaint, and because the allegations in the complaint are from more than one year before the complaint was filed.
[4] For the following reasons, I allow the Respondents’ application, and I dismiss the complaint. I find the discrimination alleged in the complaint occurred more than one year before Dr. Simak filed the complaint. The most recent discriminatory decision alleged in the complaint took place in 2018. Dr. Simak’s allegations from after that date describe continuing consequences of that decision, rather than separate acts of discrimination by the Respondents. Considering the length of Dr. Simak’s delay in filing the complaint, I am not persuaded that the reasons he gives for the delay, or the unique aspects of the complaint, establish that it is in the public interest to proceed with the complaint.
[5] 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] Dr. Simak was an instructor at the College for many years before going on leave in 2016, after he was involved in a motor vehicle accident which resulted in disabilities. When he came to the College a few weeks after the accident to complete disability-related forms, there was an incident between him and a colleague. As a result of the incident, the College placed restrictions on his ability to contact that colleague and barred him from coming to the College without prior arrangement. He says his behaviour in the incident was caused by his disabilities, and the restrictions placed on him as a result of the incident were discriminatory.
[7] Dr. Simak attempted to return to work in November 2017, but he went back on leave after an incident at a return-to-work meeting with Mr. Fleming and others, on November 27, 2017. At the meeting, he says he expressed concern that the return-to-work plan proposed by the College was not consistent with his psychologist’s recommendations, but the College refused to discuss any possible changes. He says he reacted negatively to this, due to symptoms of his disabilities, and the Respondents used his reaction to portray him as a danger to the College community.
[8] After the incident on November 27, 2017, the College placed new restrictions on Dr. Simak’s contact with his colleagues and his ability to attend the College or College-sanctioned events. He was also required to “check in” with the College’s disability manager, on a weekly basis, until 2019. He says these check-ins felt more disciplinary than supportive. He says the College’s response to the incident was discriminatory, as his behaviour during the incident was related to his disabilities.
[9] Dr. Simak returned to work in November 2018. When he returned, his office was moved out of his home department, into a different area of the College. In December 2018, Mr. Fleming told him the College was placing additional restrictions on his contact with certain colleagues. Under these restrictions, he was required to refrain from contacting his department chair and others. Some of these restrictions were removed in August 2021, but the restriction on contact with his chair remained in effect until his retirement in 2022. Dr. Simak says the restrictions on his contact with colleagues, and the decision to move his office, made him feel isolated, and were a barrier to recovery from his disabilities. He says these restrictions were discriminatory.
[10] Dr. Simak says that due to the restrictions on his contact with the chair of his department, he was unable to attend department meetings, and he had to use other colleagues as “go-betweens” when he needed to contact the chair to fulfill his employment duties. He provided evidence that he used colleagues, and occasionally Mr. Fleming, as “go-betweens” for this purpose on several occasions, including in December 2021, January 2022, February 2022, and April 2022.
[11] In 2019, the College required Dr. Simak to undergo an independent medical examination regarding his fitness to work. The examination determined that he was fit to continue working. The only recommended accommodation was a reduced teaching load.
[12] In 2021, Mr. Fleming completed a dissertation for a degree at a different university. Dr. Simak says the dissertation was published online in August 2021, and it referred to the incident on November 27, 2017. Although it did not refer to Dr. Simak by name, he says it described the incident in a way that could identify him. Dr. Simak says this was an invasion of his privacy.
[13] Dr. Simak notified the dean of his faculty, in October 2021, that he planned to retire the following August. He retired on August 31, 2022. He filed this complaint on October 31, 2022.
III DECISION
[14] The Respondents apply to dismiss the complaint because it is late-filed. Under s. 22 of the Human Rights Code, there is a one-year time limit for filing a human rights complaint. 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.
[15] Section 27(1)(g) of the Code permits the Tribunal to dismiss a late-filed complaint. The Respondents argue that all the allegations in Dr. Simak’s complaint are late-filed and should be dismissed under s. 27(1)(g). 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.
A. The complaint is late-filed
[16] Under s. 22(2), 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: School District v. Parent obo the Child, 2018 BCCA 136 [School District] 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 57at para. 23; School District at para. 50. The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17.
[17] Dr. Simak says the complaint is not late-filed because it alleged ongoing discrimination based on the restrictions on his ability to contact his colleagues, including his chair, and these restrictions continued until the date of his retirement, which was less than one year before he filed the complaint.
[18] The Respondents say Dr. Simak’s complaint does not allege a contravention of the Code that occurred in the year before the complaint was filed. Even if Dr. Simak experienced the continuing consequences of the restrictions on his ability to contact his colleagues, the Respondents say these were not discrete acts of discrimination capable of anchoring a timely continuing contravention of the Code.
[19] For the following reasons, I find the complaint is late-filed, as it does not allege a contravention of the Code in the year before it was filed.
[20] Dr. Simak says the fact that the contact restrictions were ongoing for years before he filed the complaint does not preclude him from establishing a continuing contravention based on the impact of those restrictions in the year before he filed the complaint. He relies on para. 70 of School District, where the Court of Appeal said:
…it would be open to an individual requiring the use of a wheelchair to file a complaint to the BCHRT alleging that within the past six months, the complainant had been prevented from accessing a public building by reason of the lack of a wheelchair ramp, and that this form of discrimination had been ongoing for years. The Tribunal would then be entitled to consider the entire time the conduct had been taking place, not just the single instance experienced by the complainant to determine whether conduct that occurred outside the six-month limitation period could nevertheless be considered by the Tribunal as part of a continuing contravention. The inquiry, however, is predicated on the existence of what was described in Chen at para. 23 as conduct “occurring within six months of the complaint, which, if proven, could constitute a separate contravention.”
[21] Dr. Simak likens the situation described by the Court of Appeal to his own complaint. He says his allegation that he was unable to attend department meetings, and he had to use “go-betweens” to communicate with the chair of his department, in the year before he filed his complaint, is sufficient to anchor a timely continuing contravention. He says contact with his colleagues was important for his recovery from some of the effects of his disabilities, and having to comply with the contact restrictions exacerbated his condition.
[22] I am not persuaded by this argument. Dr. Simak’s inability to attend department meetings and the need for him to use go-betweens are not separate acts of discrimination by the Respondents. I agree with the Respondents’ submission that allegations about the effects of the restrictions on Dr. Simak’s contact with his department chair are about the continuing consequences of decisions made more than one year before the complaint was filed.
[23] The wheelchair ramp example in School District is distinguishable from Dr. Simak’s case. In that example, the discriminatory event occurred when the complainant was prevented from accessing the building. The building was never accessible to them, but discrimination did not take place until they were prevented from accessing it. In Dr. Simak’s case, the alleged discriminatory event occurred when the contact restrictions were imposed on him, in December 2018. The specific actions he took to comply with those restrictions, such as not attending department meetings, and using go-betweens to communicate with the chair, did not amount to separate acts of discrimination by the Respondents. They were the continuing effects of allegedly discriminatory decisions made by the Respondents in 2018 or earlier. The College’s requirement that Dr. Simak continue to comply with the contact restrictions in the year before he filed his complaint was the equivalent of “confirmation of previous decisions made” rather than separate allegations of discrimination; see School District at para. 74.
[24] Since the steps taken by Dr. Simak to comply with the contact restrictions, in 2021 and 2022, do not establish a continuing contravention of the Code by the Respondents, and he has not alleged any other acts of discrimination within the year before he filed the complaint, the complaint is late-filed.
B. It is not in the public interest to proceed
[25] Because the complaint is late-filed, I now consider whether to proceed with it under s. 22(3) of the Code. The burden is on Dr. Simak to persuade the Tribunal to accept the late-filed complaint, considering whether it is in the public interest to do so, and whether no substantial prejudice will result to any person because of the delay.
[26] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. As set out at s. 3 of the Code, these include identifying and eliminating persistent patterns of inequality and providing a remedy for persons who are discriminated against. The Tribunal 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. The inquiry is always fact and context specific.
[27] For the following reasons, I am not satisfied the public interest favours proceeding with the late-filed complaint.
[28] I find that the most recent allegation of discrimination in Dr. Simak’s complaint is the allegation about the imposition of the contact restrictions, in December 2018. All his subsequent allegations of discrimination are about the continuing consequences of the Respondents’ decision to impose those restrictions.
[29] I do not understand Dr. Simak to argue that the publication of Mr. Fleming’s dissertation, in 2021, represents a contravention of the Code by the Respondents. Rather, I understand he refers to it, in response to the application to dismiss, as an example of how his complaint has unique or novel aspects. I address that argument below.
[30] Since the last allegation of discrimination in the complaint is from December 2018, the complaint is late-filed by approximately two years and ten months. This is a significant delay in filing the complaint.
[31] Dr. Simak says he did not file a complaint sooner because he was concerned about his job security and he feared negative job-related consequences. He says this fear was reasonable based on his previous experience of suffering negative consequences when raising concerns at the College, including the imposition of contact restrictions after the incident on November 27, 2017. He also refers to another incident, in February 2022, where he sought to ensure a colleague was complying with COVID-19 restrictions, and the College rebuked him and directed him not to contact the colleague. I do not understand Dr. Simak to suggest the February 2022 incident was discriminatory, but he says it explains why he feared negative consequences as a result of making a complaint about the College.
[32] Dr. Simak cites Boyetchko v. Home Hardware Stores Limited and another, 2004 BCHRT 396, where the Tribunal observed that it may be difficult for an employee to file a human rights complaint against their current employer. I accept this is true. However, the mere fact that the complainant in Boyetchko continued to work for the employer was not determinative in that case. That was just one factor in the Tribunal’s contextual analysis. The Tribunal also considered that the complainant was only 19 years old, and the complaint was filed only two days late: Boyetchko at para. 8. The context of Dr. Simak’s complaint is quite different. He filed his complaint almost three years late and he was nearing retirement age at the time the alleged discrimination occurred.
[33] In any event, s. 43 of the Code prohibits retaliation for filing a complaint, and the Tribunal does not generally accept that fear of retaliation supports a finding that it is in the public interest to accept a significantly late-filed complaint: Mullholland v. City of Vancouver, 2015 BCHRT 170 at para. 52, Fehr and another v. Alexander Laidlaw Housing Co-operative, 2012 BCHRT 232 at para. 16, Kafer v. Sleep Country Canada and another, 2013 BCHRT 137 at para. 29. I am not satisfied that there are any circumstances in this case that could justify an exception to the general rule. While Dr. Simak disagrees with the way the College handled the incidents on November 27, 2017 and in February 2022, I am not persuaded that the College’s response to these incidents supports a finding that the College would retaliate against for filing a complaint under the Code. I understand his argument to be that the College’s response to the November 27, 2017 incident was discriminatory, not retaliatory. Regarding the February 2022 incident, based on Dr. Simak’s account of the incident it appears the College was managing its workforce, as it is entitled to do.
[34] Additionally, Dr. Simak has not explained why any concerns about his job security prevented him from filing a complaint after October 2021, when he notified the College he planned to retire the following August.
[35] Dr. Simak argues there is a public interest in proceeding with his complaint because his specific allegations are unique, novel, and unusual. I accept that the facts of the complaint—including the issue of Mr. Fleming’s dissertation, which referred to the November 27, 2017 incident—are unique, but every human rights complaint involves unique facts. I am not persuaded that Dr. Simak’s complaint is so novel or unusual that the public interest supports proceeding with it, considering that it is two years and ten months out of time. The Tribunal regularly hears complaints about disability-based discrimination in employment, involving employees returning to employment after disability-related leave.
[36] Since I have found it is not in the public interest to proceed with Dr. Simak’s complaint, it is not necessary for me to consider whether doing so would result in substantial prejudice.
IV CONCLUSION
[37] The complaint is dismissed under s. 27(1)(g) of the Code.
Andrew Robb
Tribunal Member
Human Rights Tribunal