Sumner v. Vancouver Aboriginal Child and Family Services Society and another, 2026 BCHRT 228
Date Issued: November 3, 2026
File: CS-010752
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:
Cynthia Sumner
COMPLAINANT
AND:
Vancouver Aboriginal Child and Family Services Society (VACFSS)
and Bernadette Spence
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Beverly Froese
On her own behalf: Cynthia Sumner
Counsel for the Respondent: Kirsten Scrimshaw
I INTRODUCTION
[1] In October 2023, Cynthia Sumner made a complaint against Vancouver Aboriginal Child and Family Services Society (VACFSS) and Bernadette Spence alleging they discriminated against her regarding her employment based on her Indigenous identity, ancestry, and place of origin. Ms. Sumner is a Kwakwak’wakw person and alleges that she was forced to resign from her position at VACFSS due to a lack of cultural safety, cultural misappropriation of carvings that were gifted to VACFSS by a former client, and the creation of ceremonies that disrespect Kwakwak’wakw protocols. Ms. Sumner alleges that her traditional knowledge was never acknowledged and she was excluded from sharing that tradition knowledge despite being the only Kwakwak’wakw person employed at VACFSS. Last, she alleges that her employer never meaningfully investigated a whistleblower complaint she made after she left her employment.
[2] The Respondents deny discriminating against Ms. Sumner. They say that Ms. Sumner’s opinions on the carvings were directly contrary to the directions and teachings of Kwakwaka’wakw Elders, and they deny creating ceremonies that disrespect Kwakwak’wakw protocols. The Respondents also say they addressed Ms. Sumner’s whistleblower complaint appropriately and that none of the allegations she made in the whistleblower complaint constitute discrimination under the Human Rights Code.
[3] Under its Case Path Pilot, the Tribunal allowed the Respondents to apply to dismiss all or part of the complaint under ss. 27(1)(c), (d)(ii) and/or (g) of the Code. In my view, the most appropriate ground on which to decide this application is s. 27(1)(g). I find that the complaint is late-filed and I am not persuaded that I should exercise my discretion to accept it under s. 22(3) of the Code. Specifically, I find that that the public interest in the complaint itself is not outweighed by the lengthy delay in making the complaint without a sufficiently compelling reason. In light of my conclusion, it was not necessary for me to consider the Respondents’ submissions under ss. 27(1)(c) or (d)(ii).
[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.
II BACKGROUND
[5] The background is taken from the materials filed by the parties. I make no findings of fact.
[6] VACFSS is an Indigenous-led Child and Family Services Agency that serves urban Indigenous families in the City of Vancouver. VACFSS is located on the unceded and occupied territories the Coast Salish Peoples, including the xʷməθkʷə y̓ əm (Musqueam), Sḵwx̱wú7mesh (Squamish), Selílwitulh (Tsleil-Waututh), and Stó:lō nations. VACFSS supports families and keeps children connected to their families and communities. VACFSS says that its goals are to culturally and spiritually strengthen the families it serves. Its practices are grounded in Indigenous culture and guided by policy and research done in partnership with communities it works alongside.
[7] Bernadette Spence is a Cree woman and at the relevant time was VACFSS’s CEO.
[8] Ms. Sumner is a Kwakwaka’wakw woman and worked at VACFSS for about 20 years. From 2008 until the time she left her employment in June 2023, Ms. Sumner was VACFSS’s Executive Assistant.
[9] In 2009, an Indigenous woman carver from the Ditidaht Nation who had been supported by one of VACFSS’s Indigenous social workers gifted VACFSS with several cedar carvings. In a blessing ceremony at VACFSS to recognize the carvings as gifts, the carvings were referred to as “talking sticks”. VACFSS subsequently published a photo of one of the carvings in its newsletter and referred to the carvings as “talking sticks”.
[10] After seeing the newsletter, some of the Elders from the Ministry of Child and Family Development [MCFD] Elder Advisory Committee, including a traditional knowledge-holder of the Kwakwaka’wakw and Pentlatch Nations, contacted Ms. Spence and told her that the carvings were not “talking sticks”. They also told Ms. Spence that referring to the carvings as “talking sticks” had caused offence to Coastal Nations. Ms. Spence says that as a Cree woman, she knew the importance of recognizing the cultural traditions of other Indigenous Nations and she wanted to take steps to repair the offence.
[11] In December 2009, Kwakwaka’wakw Elders, including the then-Clan Chief of the Kawadillikalla Clan of the Dzawatainuk Tribe of the Kwakwaka’wakw First Nation, held a ceremony at VACFSS to correct Ms. Spence’s misrepresentation of the carvings as “talking sticks”. VACFSS referred to this as a “Correction Ceremony” that met the strict protocols of the Kwakwaka’wakw potlatch complex.
[12] As part of the teachings of the Correction Ceremony, VACFSS was given direction by the Kwakwaka’wakw Elders present not to refer to the carvings as “talking sticks” and to use the carvings as a reminder to VACFSS of its responsibility to children. The Respondents say that consistent with the carver’s intention, the Kwakwaka’wakw Elders recognized the carvings as “medicine”, which broadly means “they were created with an intended good purpose”. The Kwakwaka’wakw Elders told VACFSS that it was appropriate to refer to the carvings as “Chieftan sticks”.
[13] Since the Correction Ceremony, VACFSS has referred to the carvings as “Chieftan sticks”. Ms. Spence believes that allowing anyone at VACFSS to refer to the carvings as “talking sticks” would be a serious cultural offence.
[14] The Respondents say that consistent with the carver’s intentions and the direction given by the Kwakwaka’wakw Elders at the Correction Ceremony, VACFSS developed a protocol such that one of the carvings would be presented at workplace gatherings such as retirement events, management retreats, and board-managed meetings. The Respondents say that the protocol is not an Indigenous “ceremony” or formal Indigenous cultural event. They say that VACFSS did not follow any specific Nation’s protocol, and there is no call to ceremony when a carving is transferred, for instance from a retiring manager to a new manager. Ms. Sumner disagrees with that characterization and says the Respondents’ description of these events minimizes their ceremonial nature.
[15] In October 2016, VACFSS held a cultural committee meeting involving board members and management. Ms. Sumner was present at the meeting in her administrative role as Executive Assistant to support Ms. Spence and the board. The parties appear to agree that during the meeting, Ms. Spence shared one of the carvings and passed it around to the attendees. Ms. Spence says that she passed the carving around to allow the attendees to see it and reflect on their responsibilities toward the children that VACFSS serves. The parties do not appear to dispute that when the carving was passed to Ms. Sumner, she said the phrase “talking sticks”. They also do not appear to dispute that Ms. Spence told Ms. Sumner that the carvings were to be referred to as “Chieftan sticks” and she did not want to hear anyone at VACFSS refer to the carvings as “talking sticks”.
[16] The key issue in dispute between the parties, and the foundation of this complaint, is the context in which Ms. Sumner used the phrase “talking sticks” at the October 2016 meeting.
[17] The Respondents allege that Ms. Sumner said the carvings should be referred to as “talking sticks”. They say that Ms. Spence told Ms. Sumner that according to the directions of the Kwakwaka’wakw Elders, the carvings were to be referred to as “Chieftan sticks” and she did not want to hear anyone at VACFSS refer to them as “talking sticks”. The Respondents say that Ms. Sumner’s “attempt to rename and direct the use of the Carvings (as from another Nation’s culture) is highly offensive, as it is a Kwakwaka’wakw law that one may never appropriate another item or cultural practice that does not belong to one’s own clan”. Ms. Spence says that she personally saw herself as responsible for ensuring that she and VACFSS staff followed the teachings of the Kwakwaka’wakw Elders present at the Correction Ceremony.
[18] Ms. Sumner denies that she was asserting that the carvings had to be called “talking sticks” or attempting to decide how the carvings should be named or used. Rather, she says she was trying to share her Kwakwaka’wakw knowledge and teachings about “talking sticks”, why the carvings were known by a different name at VACFSS, and why that distinction matters culturally. Ms. Sumner says that when VACFSS decided to rely on Kwakwaka’wakw teachings, terminology, and ceremonies in relation to the carvings, her own Kwakwaka’wakw teachings were not meaningfully sought, incorporated, or given appropriate weight. Ms. Sumner says that as a Kwakwaka’wakw person, she understood the issues around the carvings through her teachings, lived experience, and the cultural responsibilities that she carries. She says that being prohibited from speaking about her own Kwakwaka’wakw teachings left her believing that her cultural knowledge was being silenced instead of respected.
[19] Sometime after the planning session, Ms. Sumner requested a meeting with Ms. Spence and a human resources representative. The parties do not dispute that at the meeting, Ms. Sumner read from what she describes as an “impact statement” she prepared before the meeting. Ms. Sumner says that she became very emotional while reading the impact statement and was in tears for most of the meeting.
[20] The Respondents say that Ms. Spence told Ms. Sumner she was concerned about Ms. Sumner wanting to treat the carvings in a manner that contradicted the directions given by the Kwakwaka’wakw Elders, which in turn would breach Ms. Spence’s own cultural obligations that she assumed at the Corrections Ceremony. Ms. Spence says she did not understand how Ms. Sumner, as a Kwakwaka’wakw woman, felt she could ignore the teachings of the Kwakwaka’wakw Elders. The Respondents say that Ms. Sumner never explained at the meeting why she believed she could override the explicit directions from the Kwakwaka’wakw Elders. Ms. Spence does not recall everything that Ms. Sumner said at the meeting but described Ms. Sumner’s tone as angry and accusatory.
[21] Ms. Sumner denies that she did not explain herself clearly at the meeting. Ms. Sumner says she did not ask VACFSS to disregard the carver’s traditions or teachings from her Nation, or the teachings from the Kwakwaka’wakw Elders present at the Correction Ceremony. She says she was asking that the Kwakwaka’wakw teachings that VACFSS had relied on also be acknowledged and that she not be prohibited from explaining those teachings as a Kwakwaka’wakw person. Ms. Sumner says the carver’s story, healing journey, and gifting of the carvings to VACFSS were only parts of the story and history. She says that at the meeting, she explained that because of the initial misunderstanding when the carvings were referred to as “talking sticks”, she wanted to share her traditional knowledge about what “talking sticks” represent to Kwakwaka’wakw people and why the carvings came to be called “Chieftan sticks”. Ms. Sumner says that since VACFSS chose to share the story of the carvings, it was important to share the full story behind why they are also known by another name.
[22] Ms. Spence says that because she recognized that Ms. Sumner needed to express her thoughts and be heard, she focused on remaining present and calm while Ms. Sumner spoke. Ms. Spence says she told Ms. Sumner that because she was talking about cultural matters, she listened to Ms. Sumner “with the mindset of a clinical practitioner” rather than as her boss. She also told Ms. Sumner that had she been listening to her as a boss, Ms. Sumner’s tone and conduct would have constituted insubordination. Ms. Spence says she never threatened to “write up” Ms. Sumner and only reminded Ms. Sumner that everyone at VACFSS had been told by the Kwakwaka’wakw Elders not to refer to the carvings as “talking sticks”.
[23] Ms. Sumner says that being told by Ms. Spence that her conduct could have been treated as insubordination “chilled her ability to share Kwakwaka’wakw knowledge at work”. She says that the phrase “talking sticks” became contentious around Ms. Spence and Ms. Sumner says she felt that if she used those words, she would be “corrected, interrupted, or made to feel she could not safely speak from her teachings”.
[24] The Respondents say that because Ms. Sumner had expressed cultural concerns, Ms. Spence arranged for cultural training to take place in April 2017 by a Chief that Ms. Sumner recommended who regularly shared knowledge on traditional protocols and cultural safety in the workplace. The Respondents say that nothing the trainer said contradicted the directions given by the Kwakwaka’wakw Elders at the Correction Ceremony.
[25] The issue of the carvings does not appear to have arisen again until a cultural committee meeting In February 2023. At the meeting, Ms. Spence passed one of the carvings around “as an anchor to reflect on the importance of spiritual and cultural grounding”. Ms. Sumner says that passing the carving around the circle as part of a “reflective or sharing practice” is inconsistent with Kwakwaka’wakw teachings and protocols. She describes this meeting as the “final event” that led her to conclude that VACFSS was not a culturally safe space for her.
[26] Sometime in the spring of 2023, Ms. Sumner met with VACFSS’s Director of Human Resources. Ms. Sumner told the Director she was upset at how Ms. Spence used the carvings at the cultural committee meeting and wanted to know what her options were. The Director did not know the details of Ms. Sumner’s complaint and gave her information about her options, including dispute resolution, a complaint under VACFSS’s Workplace Harassment/Bullying Prevention Policy or its Whistleblower Policy. It does not appear to be in dispute that Ms. Sumner did not make a formal complaint under the Workplace Harassment/Bullying Policy. Ms. Sumner says she did not make a complaint under the Harassment/Bullying Policy because she did not believe that would be a culturally safe or appropriate process to address her concerns.
[27] In May 2023, Ms. Sumner gave notice of her resignation. Ms. Sumner says that by that time, she had concluded that remaining employed at VACFSS would require her to supress or silence aspects of her Kwakwaka’wakw identity and cultural knowledge. Ms. Spence says she was surprised by Ms. Sumner’s resignation and offered her an opportunity to reflect and reconsider, which Ms. Sumner declined.
[28] The Respondents say that after Ms. Sumner submitted her resignation, the communications between her and Ms. Spence were positive and supportive and Ms. Sumner’s work and contributions were recognized at a board meeting. The Respondents say that Ms. Sumner declined to participate in an exit interview. Ms. Sumner says she did not participate in an exit interview because she felt that her concerns would not be relayed to the board in their entirety. She says that given the seriousness and confidentiality of the concerns she had, she wanted to put them in writing and send them to the appropriate decision-maker and authorities.
[29] Ms. Sumner’s employment with VACFSS ended in early June 2023. Sometime after that, VACFSS took steps to find a replacement. The Respondents say that the Executive Assistant job description and salary were updated to reflect VACFSS’s needs. The Respondents say that while this process was going on, it found out that Ms. Sumner had used her work email for personal business and those emails were forwarded to her.
[30] In late July 2023, Ms. Sumner sent a 25-page letter with numerous attachments to every VACFSS board member and to MCFD’s A/Deputy Director of Child Welfare. Ms. Sumner said she made the complaint under VACFSS’s Whistleblower Policy. In her complaint, Ms. Sumner raised concerns about VACFSS’s leadership, governance, cultural safety, misuse of the carvings, compensation, workplace treatment, and the failure to acknowledge her Kwakwaka’wakw knowledge. The Respondents say the complaint contained confidential information that Ms. Sumner had not been permitted to take with her or to keep. They also say there was a significant amount of personal information in the complaint about its employees, including Ms. Spence’s personal health information.
[31] The Respondents say that VACFSS’s board chair made a good faith assessment of Ms. Sumner’s complaint and concluded that it was not necessary for the board to investigate it because the allegations did not engage the Whistleblower Policy. The Respondents say that MCFD’s A/Deputy Director of Child Welfare made her own assessment of Ms. Sumner’s complaint and concluded that it did not make any allegations that would lead MCFD to take any further action.
[32] The Respondents say that the board informed Ms. Sumner that if she wanted to pursue her allegations against Ms. Spence, she could make a complaint against her under the Harassment/Bullying Policy. They say that because Ms. Sumner did not indicate that she would pursue such a complaint, VACFSS could not take any further steps. The Respondents also say there was no reason to take any further steps to address Ms. Sumner’s complaint because her allegations contradicted what was said at the Correction Ceremony.
[33] Ms. Sumner says the board’s failure to provide a meaningful response to her whistleblower complaint reinforced her belief that VACFSS would not address the cultural safety concerns she had raised.
III DECISION
[34] The Respondents apply to dismiss the complaint under s. 27(1)(g) of the Code on the basis that it is late filed. They also apply to dismiss the complaint under s. 27(1)(c) on the basis that it has no reasonable prospect of success. Last, they apply to dismiss the complaint against Ms. Spence under s. 27(1)(d)(ii) on the basis that proceeding with the complaint against her would not further the Code’s purpose. In my view, this application is most appropriately decided under s. 27(1)(g).
A. Section 27(g)
[35] Section 27(1)(g) of the Code permits the Tribunal to dismiss all or part of a complaint if it is late filed. A complaint is filed in time if the last allegation of discrimination happened with 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 57at para. 23; School District at para. 50. The concept of a continuing contravention “must not be used to improperly sweep in allegations which would otherwise be far outside the Code’s time limits”: Dove v. GVRD and others (No. 2), 2006 BCHRT 197 [Dove No. 2] at para. 41.
[36] 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. Separate acts of discrimination might not be a continuous contravention if they are not “sufficiently frequent, or sufficiently close in time” because “more than one person is alleged to have discriminated, or where the discrimination takes different form or is in relation to different prohibited grounds”: Dove v. GVRD and others (No. 3), 2006 BCHRT 374 [Dove No. 3] at para. 18. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[37] My analysis takes into consideration “the purposes of the Code, including ensuring that individuals who claim to have suffered discrimination are given a means of redress while at the same time ensuring that respondents are treated fairly”: Dove No. 3 at para. 20. At the end of the day, my goal is to try to “draw the line in a fair, principled and reasoned way”: Dove No. 3 at para. 20.
[38] Ms. Sumner’s complaint was made on October 19, 2023. That means to be timely, there must be at least one instance of alleged discrimination that occurred on or after October 19, 2022, and the remaining allegations constitute a continuing contravention.
[39] Ms. Sumner’s complaint includes general allegations of discrimination that are not dated or particularized. In their argument, the Respondents divided the particularized allegations into separate categories. I found that to be a helpful way of identifying the scope of the complaint, however for the purposes of my analysis I have chosen to separate the allegations in a way that mirrors the Respondents’ categories, as follows:
a. October 2016 – When Ms. Sumner used the phrase “talking sticks” at a meeting, Ms. Spence told her that she never wanted to hear anyone at VACFSS refer to the carvings as “talking sticks” [2016 Meeting Allegation];
b. October 2016 – When Ms. Sumner met with Ms. Spence and a VACFSS Elder about the impact of being prohibited from using the phrase “talking sticks” on her Indigenous culture and identity, Ms. Spence told her she could have been written up for insubordination [Insubordination Allegation];
c. 2017 – The handout provided by the Chief who did the cultural training was never incorporated into any manual, staff communications, or mandatory training [Training Allegation];
d. February 23, 2023 – At a cultural committee meeting, Ms. Spence passed one of the carvings around the circle in a manner that Ms. Sumner alleges is pan-Indigeneity, meaning assuming that culturally significant items have the same use by every Indigenous person. Sometime in the spring of 2023, Ms. Sumner met with the HR Director and reported her concerns about how Ms. Spence used the carvings at the cultural committee meeting [2023 Meeting Allegation]; and
e. June 29, 2023 – Ms. Sumner submitted a whistleblower complaint to VACFSS and the MCFD detailing why she felt she had been forced out of her position and how VACFSS did not value her work, duties, and cultural contributions. In July 2023, VACFSS acknowledged receiving the complaint but never meaningfully addressed the concerns she raised [Whistleblower Allegation].
[40] The onus is on Ms. Sumner to establish a continuing contravention. Further, the way Ms. Sumner chose to frame her complaint is important because it affects the analysis: Dove No. 3 at para. 11. In my view, the essence of Ms. Sumner’s complaint is that the Respondents discriminated against her when she was prevented from sharing her traditional Kwakwak’wakw knowledge and teachings in relation to “talking sticks” in the context of the carvings and the naming and use of the carvings.
[41] The only two allegations in the complaint filed within the one-year time are the 2023 Meeting and Whistleblower Allegations. These allegations are timely if they are new and separate allegations of discrimination: School District at para. 51. If they are not new and separate allegations but rather the continuing effects of previous alleged discrimination, then the complaint in its entirety is late-filed and I must consider whether to exercise my discretion under s. 22(3) to accept it.
[42] The Respondents say that the 2023 Meeting Allegation is not a new or separate contravention of the Code, but rather “an ongoing state of affairs based on organizational decisions and the Correction Ceremony many years earlier”. In their submission, the Respondents do not expressly refer to the Whistleblower Allegation.
[43] Ms. Sumner says that the 2023 Meeting Allegation is a timely allegation and “not a passive consequence of a past decision”. She says that when Ms. Spence brought the carving to the cultural committee meeting and used it in her presence, it “caused a fresh adverse impact” connected to her protected characteristics. She says the 2023 Meeting and 2016 Meeting Allegations are a succession of separate acts of discrimination involving the same parties, workplace, cultural items, protected characteristics, issues of Kwakwaka’wakw cultural knowledge, and cultural safety.
[44] Ms. Sumner says the Whistleblower Allegation is another discrete incident of discrimination because when she tried to raise serious concerns internally regarding cultural safety and the treatment of her Kwakwaka’wakw knowledge, VACFSS’s lack of a meaningful response contributed to her belief that her workplace was not culturally safe. Elsewhere in her response, however, Ms. Sumner says the Whistleblower Allegation is not an allegation of “freestanding discrimination”, but rather “contextual and cumulative evidence of the workplace treatment, impact, and organizational response” to her concerns. She says the lack of a response to her whistleblower complaint “reinforced” her previous experience that VACFSS did not meaningfully address her concerns regarding cultural safety.
[45] Overall, the allegations in the complaint involve the same parties, workplace, cultural item, protected characteristics, issues of Kwakwaka’wakw cultural knowledge, and cultural safety. However, as I explain below, in my view the 2023 Meeting and Whistleblower Allegations are not “distinct acts of discrimination” but rather continuing effects of the 2016 Meeting and Insubordination Allegations.
[46] I accept for the purposes of this application that, if proven, the 2016 Meeting and Insubordination Allegations could constitute discrimination under the Code. In my view, however, the 2023 Meeting, and Whistleblower Allegations are not of the same character as the previous allegations. As stated above, the essence of this complaint is that the Respondents discriminated against Ms. Sumner by preventing her from sharing her traditional Kwakwak’wakw knowledge and teachings in the context of the carvings. Unlike the 2016 Meeting and Insubordination Allegations, Ms. Sumner does not allege that she was prevented from sharing her traditional Kwakwak’wakw knowledge and teachings at the February 2023 meeting or when VACFSS’s board considered her whistleblower complaint. Rather, she herself appears to acknowledge that incidents that occurred after October 2016 merely reinforced the adverse impact she experienced when her traditional Kwakwak’wakw knowledge and teachings in the context of the carvings were not acknowledged. Specifically, in her response Ms. Sumner says that to her, the 2023 Meeting Allegation was “confirmation that my cultural knowledge had been discounted, that VACFSS was continuing a practice I understood to be culturally unsafe, and that I could not remain in the workplace without accepting the ongoing silencing or minimization of teachings connected to my identity”.
[47] Further, the gap between the allegations weighs against a finding that the allegations constitute continuing contraventions of the Code. In particular, the gap between the Training Allegation and the 2023 Meeting and Whistleblower Allegations is both significant and unexplained. Ms. Sumner says that she witnessed what she describes as the “transfer ceremonies” that VACFSS “invented” many times between 2016 and 2023. She did not, however, include specific allegations that these incidents constituted discrete acts of discriminatory conduct because she was prevented from sharing her traditional Kwakwak’wakw knowledge and teachings in the context of the carvings.
[48] For the above reasons, I find that the complaint consists of the continuing impacts or reiterations of decisions the Respondents allegedly made in October 2016.
B. Should the complaint be accepted under s. 22(3) of the Code?
[49] Having found that the complaint is not timely, I now turn to consider 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. The burden is on Ms. Sumner to persuade the Tribunal to accept her complaint.
[50] 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: Code, s. 3. 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 [Mzite] at paras. 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.
1. Length and reason for the delay
[51] I first consider the length of delay in filing. Having found that the complaint consists of the continuing impacts or reiterations of decisions the Respondents made in October 2016, the delay in making the complaint is about seven years. Since the Tribunal has recognized that a delay as short as one month is significant without an adequate explanation, in my view to meet this factor there must be a very compelling reason why Ms. Sumner did not make the complaint until September 2023: Dobler v. Board of Education of School District No. 72 (Campbell River), 2026 BCHRT 21 at para. 24; Clark v. Vancouver Coastal Health o/a Vancouver General Hospital, 2024 BCHRT 236 at para. 12.
[52] In cases such as Mother K v BC Ministry of Children and Family Development, 2025 BCHRT 44, the Tribunal has recognized that there are systemic barriers to the human rights system faced by Indigenous people and that “Indigenous people have been disproportionately underrepresented in complaints to this Tribunal”: at para. 55; see also Campbell v. Vancouver Police Board, 2019 BCHRT 12 at para. 18. In Mother K, the complainant, an Indigenous woman, alleged that the Ministry discriminated against her when it apprehended her children and failed to ensure she had sufficient visits with her children and opportunities to share her culture with her children. When considering whether to accept allegations in the complaint that were late filed, the Tribunal took a nuanced approach that recognized systemic barriers facing Indigenous people in the human rights system. The Tribunal recognized that “Indigenous people have been disproportionately underrepresented in complaints to this Tribunal” and that delays in making a complaint can be attributed to Indigenous people not knowing how to file a complaint, not thinking filing a complaint would make a difference, or thinking they will not be believed: at para. 55; see also PL v. BC Ministry of Children and Family Development and others, 2023 BCHRT 58at para. 53.
[53] Efforts a complainant makes to resolve their concerns before making a complaint may constitute a reasonable explanation for a delay in making the complaint, as the “Tribunal encourages parties to resolve issues between them on their own”: PL at para. 45. The Tribunal recognizes that in the context of a complaint made against an employer, delay in making the complaint may be reasonable if the complainant is afraid of negative job-related consequences: PL at para. 56. In the specific context of a complaint made by an Indigenous complainant, the Tribunal “must also consider Indigenous perspectives and values that place primacy on efforts to repair relationships and situations prior to filing a complaint”: PL at para. 45. In Clark, the Tribunal cited Justice Ardith We’dalx Walkem’s report entitled Expanding Our Vision: Cultural Equality & Indigenous Peoples’ Human Rights (2020) [EOV Report] that explored why Indigenous people are underrepresented in the Tribunal’s process. One of the recommendations made in the EOV Report was for the Tribunal to assess time extension requests with a trauma-informed lens and consider any circumstances Indigenous applicants raise tied to Indigenous traditions or ways of approaching conflict (such as attempts at relationship repair or restoration)”: at para. 15.
[54] In keeping with the Tribunal’s commitment to reducing barriers to meaningful access to the human rights system that face Indigenous people, I have considered Ms. Sumner’s explanation for the delay in making her complaint through a trauma-informed lens. Since Ms. Sumner is self-represented, I have also considered whether her complaint appears to be “in ragged form”, meaning it was “imperfectly brought” but “likely contains valid complaints of human rights violations”: Lord v. Fraser Health Authority, 2021 BCSC 2176, at para. 38. The Tribunal takes this into consideration to ensure that complaints with merit are not “winnowed out”: PL at para. 31. In my view, Ms. Sumner’s complaint was not in “ragged form”, and she addressed the timeliness issue in both the complaint and her response to this application.
[55] In her complaint, Ms. Sumner said that the reason for the gaps between the allegations was because after the events in 2016, one of her Elders told her that she “could be the bigger person and take the high road”. Ms. Sumner also said that because Ms. Spence had a close personal relationship with the board chair, she decided to just “shoulder” what happened. In her response to this application, Ms. Sumner said that between 2016 and 2023, she raised her concerns internally, made attempts to have a dialogue with her employer, participated in cultural discussions and training, and raised formal concerns in the whistleblower process. While I accept those are the reasons why Ms. Sumner did not make a complaint until 2023, in my view they are not sufficiently detailed or compelling to overcome a delay of almost seven years.
[56] Although Ms. Sumner mentioned speaking to an Elder and making informal attempts to resolve her concerns, she did not provide any information as to how those efforts were “tied to an Indigenous tradition or ways of approaching conflict” that could reasonably explain the delay: Clark at para. 16. Further, unlike in cases such as Cooper and another (by Cooper) v. BC Ministry of Children and Family Development, 2024 BCHRT 197, Ms. Sumner did not raise circumstances of the kind identified in the EOV Report as contributing to the underrepresentation of Indigenous complainants in the human rights system. I compare her case with that of Cooper, where the complainant, an Indigenous woman who worked as a social worker for MCFD, said the delay in making her complaint alleging Indigenous identity discrimination in employment was caused by the time it took to obtain free legal services from the community legal clinic that helped her make the complaint. She also provided the Tribunal with information about how her physical and mental disabilities contributed to the delay in accessing legal assistance to make her complaint.
[57] In my view, this case is more in line with the Tribunal’s decision in Clark, where the Tribunal declined to exercise its discretion to accept a complaint that was made 12 years late. In that case, the complainant, an Indigenous man, alleged that he experienced racism when he sought medical treatment for a broken shoulder. The Tribunal found that the complainant did not raise any circumstances “tied to Indigenous tradition or ways of approaching conflict that explain his delay in filing”: at para. 17. While the Tribunal accepted that the complainant had experienced a great deal of trauma in his life that developed into mental health issues including PTSD and anxiety, he had not provided the Tribunal with any information or evidence as to how that precluded him from making a complaint for over 12 years.
2. The parties’ interests
[58] I accept that Ms. Sumner has a strong interest in having her complaint proceed. In her complaint and response, Ms. Sumner says that since October 2016, she has felt as though her Kwakwak’wakw traditional knowledge and teachings were being ignored and that she did not feel her work environment was culturally safe. She also says that she was forced to resign from her position because of a lack of cultural safety, culminating with what she believes was disrespect for and misappropriation of Kwakwak’wakw customs and protocols relating to how the carvings were used. In my view, this factor weighs in favour of accepting the complaint.
[59] On the other hand, I also accept that the Respondents have an equally strong interest in not having the complaint accepted in that they would be required to defend a complaint that stems from incidents that occurred in October 2016. In my view, this factor weighs against accepting the complaint.
3. Public interest in the complaint itself
[60] When assessing the public interest in the complaint itself, I have considered whether there is anything particularly unique, novel, or unusual about it that has not been raised in other complaints: Mzite at para. 66. I have also taken into consideration whether it would be in the public interest to accept the complaint because it raises a “novel issue on behalf of a particular and vulnerable group”: A and B obo C v. B.C. (Ministry of Health), 2012 BCHRT 145 at para. 47.
[61] The Respondents say that this factor is not met because there is nothing particularly unique or novel about discrimination based on differential treatment in the workplace, even based on Indigeneity. The Respondents further say that accepting the complaint would not fill a gap in the Tribunal’s jurisprudence.
[62] Ms. Sumner submits that accepting her complaint is in the public interest because it raises serious issues regarding cultural safety in the workplace.
[63] I agree with the Respondents that the Tribunal has received or exercised its discretion to accept many complaints that allege discrimination in employment based on race, colour, ancestry, and place of origin. However, I agree with Ms. Sumner that her complaint is not the same as the employment-related discrimination complaints the Tribunal often receives or accepts under s. 22(3). I agree with Ms. Sumner that what makes her complaint unique is that she is alleging she experienced an employment-related adverse impact when she was prevented from using language and teachings connected to her own Kwakwaka’wakw cultural knowledge in the context of the carvings. The Tribunal accepts there is a strong public interest in complaints brought by Indigenous people about anti-Indigenous discrimination, including complaints made by Indigenous complainants after the time limit to make a complaint: Mother K at para. 58; Cooper at para. 25; PL at para. 51; Clark at para. 21.
4. Conclusion
[64] After weighing all the relevant factors, I am not persuaded it is in the public interest to exercise my discretion and accept the complaint under s. 22(3). While I have found that the public interest in the complaint itself is an important factor, in my view it does not outweigh the years long delay in making the complaint in the absence of a sufficiently compelling explanation for the delay.
[65] Given my conclusion, it is not necessary for me to consider whether accepting the Untimely Allegations would give rise to substantial prejudice to any person.
IV CONCLUSION
[66] The Respondents’ application to dismiss the complaint under s. 27(1)(g) of the Code is granted. The complaint is dismissed in its entirety.
Beverly Froese
Tribunal Member
Human Rights Tribunal