Patsa obo others v. Fraser Health Authority (No.2), 2026 BCHRT 41
Date Issued: February 4, 2026
File(s): CS-006011
Indexed as: Patsa obo others v. Fraser Health Authority (No.2), 2026 BCHRT 41
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:
Eleni Patsa obo individuals who have been identified as higher-risk for severe COVID-19 et al
COMPLAINANT
AND:
Fraser Health Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO ADD RESPONDENT: RULE 25(2)
APPLICATION TO FILE FURTHER SUBMISSIONS: RULE 28
Tribunal Member: Ijeamaka Anika
Counsel for the Complainant: Alison Moore and Meredith Shaw
Counsel for the Respondent: Alon Mizrahi
Counsel for His Majesty the King represented by the Ministry of Health: Justin Mason
I INTRODUCTION
[1] This decision is about whether to add His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Health [the Ministry]as a respondent in this complaint.
[2] The complaint is a representative complaint. In the complaint, Eleni Patsa alleges that in 2022, Fraser Health Authority [FHA] discriminated against patients and visitors at FHA hospitals who were at higher risk of contracting COVID-19 and who wore N95 respirators/masks [the class]. The complaint alleges that FHA had a policy that patients and visitors were required to remove their N95 masks and wear a medical mask instead, with those refusing to comply being denied care.
[3] Dr. Patsa now applies under Rule 25(2) of the Tribunal’s Rules of Practice and Procedure [Rules] to add the Ministry as a respondent to the complaint outside of the one-year time limit for filing: Code, s. 22(1). Dr. Patsa’s application to add the Ministry as a respondent is based on a document which FHA disclosed to her on May 2, 2025, as part of the complaint process, titled “Ministry of Health Mask Use in Health – Care Facilities during the COVID-19 Pandemic”. Dr. Patsa says that the document is the policy at issue in the complaint and only upon disclosure did she find out that the policy was created by the Ministry.
[4] The Ministry opposes the application on the basis that Dr. Patsa’s application does not meet the requirements of Rule 25(2) and should be denied. It argues that the application was filed out of time and should not be accepted because, it says, adding the Ministry is not in the public interest, and it will suffer prejudice because of the delay in bringing the application. The Ministry also argues that Dr. Patsa does not allege an arguable contravention of the Human Rights Code against the Ministry, and adding the Ministry will not further the just and timely resolution of the complaint.
[5] FHA takes no position on the application. However, it submits that Dr. Patsa knew or ought to have known that the Ministry created the policy by December 2021 and that adding the Ministry should not expand the geographical and temporal scope of the complaint.
[6] Dr. Patsa and the Ministry also bring applications to file further submissions in this application.
[7] For the reasons below, I deny the Ministry and Dr. Patsa’s applications to file further submissions. I grant Dr. Patsa’s application to add the Ministry as a respondent. I find Dr. Patsa has alleged facts that, if proven, could establish a contravention of the Code by the Ministry, and that adding the Ministry to the complaint is in the public interest, will not cause substantial prejudice to any person, and will further the just and timely resolution of the complaint.
II Preliminary Matters
[8] Dr. Patsa and the Ministry have each applied to file further submissions on the application, and as per Rule 28(5), have provided the proposed further submissions with the application.
[9] Rules 28(5) and (6) address applications for further submissions. The Tribunal will not consider submissions other than those permitted in a schedule for submissions, unless it allows an application to file further submissions: Rule 28(4). It is within my discretion to permit or consider additional submissions, but an application to file further submissions is an unusual procedure and should be limited to replying to new information or submissions contained in the reply: Kruger v. Xerox Canada Ltd. (No. 2), 2005 BCHRT 24 at para. 22.
[10] An overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201 at para. 201; Simpkin v. Stl’atl’imx Tribal Police Board, 2014 BCHRT 255 at para. 21. The Tribunal exercises caution in granting applications for further submissions so as not to result in endless submission processes: Murphy v. VIHA and others (No. 2), 2014 BCHRT 102 at para. 9.
[11] I will consider each application in turn.
[12] The Ministry argues that Dr. Patsa introduced a new issue in her reply submission by asserting her alleged lack of knowledge of broad provincial masking policies. It argues that Dr. Patsa’s own evidence – an article referencing a “government mandate” and “provincial …requirement” undermines this claim and demonstrates that Dr. Patsa knew or ought to have known of provincial involvement earlier, which is relevant to whether the application is out of time.
[13] Having reviewed the Ministry’s proposed further submissions, I am satisfied that fairness does not dictate in favour of accepting them. I do not agree that the points the Ministry seeks to respond to from Dr. Patsa’s reply constitute new issues that fairness requires an opportunity to answer. Dr. Patsa’s reference to her lack of knowledge of broad masking policies is in answer to the Ministry’s argument regarding her knowledge of provincial involvement in mask mandates. Regardless of Dr. Patsa’s general awareness of provincial masking mandates, the issue here is the timing of when the Dr. Patsa learned that the Ministry authored the specific policy at issue in this complaint.
[14] I now briefly turn to Dr. Patsa’s application. Dr. Patsa argues that if the Ministry’s application to file further submissions is accepted, she should be able to file further submissions in response to those submissions. Since I have denied the Ministry’s application to file further submissions, I also deny Dr. Patsa’s application to file further submissions.
[15] Having reviewed all the proposed further submissions, they would not have changed the outcome of my decision and do not materially add to or reframe the information already before me in respect of the issues in dispute. As a result, I have not considered them in making my decision.
[16] The Ministry and Dr. Patsa’s applications to file further submissions are denied.
III BACKGROUND
[17] On January 26, 2022, Dr. Patsa filed the complaint against FHA. On October 3, 2024, the complaint was deferred for six months, and the parties were given a disclosure deadline of April 17, 2025. FHA filed its Form 9.2 and provided disclosure on May 2, 2025.
[18] The complaint concerns a policy that provided direction to FHA staff regarding mask wearing. The policy provides that patients and visitors to FHA healthcare facilities were required to wear medical masks. FHA says it was mandated by the Ministry to ensure mask wearing for health care workers, non-clinical staff, patients, and visitors. FHA says that at all times, it was acting in good faith to comply with these mandates. It further says that it conducted its own research and based its policy on bona fide scientific information to ensure the protection of the greater public and the FHA’s employees.
[19] Dr. Patsa says she first learned of the policy from a January 2022 article in the Burnaby Beacon. In the January 18, 2022, article, the Burnaby Beacon reported that it had reviewed copies of a memo sent to staff at Peace Arch Hospital in White Rock with guidance from the Executive Director for Infection Prevention and Control at Fraser Health. The Burnaby Beacon reported that this memo set out that patients and visitors must wear medical masks and could not wear N95 masks. According to the article, an FHA employee spoke to the Burnaby Beacon on the condition of anonymity, and told the publication that patients were being turned away from their facility if they refused to take off their N95 mask and put on a medical mask.
[20] Dr. Patsa says she filed the class complaint after learning about the policy from the Burnaby Beacon’s reporting. Dr. Patsa says she was not able to obtain a copy of the memo referred to in the Burnaby Beacon article.
[21] In its complaint response on May 2, 2025, FHA’s pointed to the Ministry’s mandate to health authorities regarding masking:
Throughout the pandemic, the Health Authority was mandated by the Ministry of Health to ensure mask wearing for health care workers, non-clinical staff, patients, and visitors. At all relevant times, the Health Authority was acting in good faith to comply with these mandates.
[22] During disclosure in the complaint process, FHA’s list of documents included a document identified as “Ministry of Health Mask Use in Health – Care Facilities during the COVID-19 Pandemic” (“Document 1.2”). The document itself is titled “Questions and Answers Ministry of Health Mask Use in Health-Care Facilities during the COVID-19 pandemic;” last updated December 8, 2020 [policy Q and A]. The document is not on any letterhead and there was no indication within the document as to what entity authored it. On June 18, 2025, Dr. Patsa asked FHA about the author of the policy. On June 23, 2025, FHA responded, indicating that the policy was from the Ministry.
[23] In its submissions in this application, the Ministry agrees that this document is a Ministry-authored document. The Ministry says that the policy Q and A is more accurately described as “guidance” and the policy itself is referenced in that document and labeled “Mask Use in Health Care Facilities During the COVID-10 Pandemic” [the policy]. This policy is addressed to health authority CEOs. It does not mention the use of N95 masks. The parties have put both documents before me. The policy Q and A states that “visitors and patients are required to wear medical mask, when entering and moving around any healthcare facility, including clinical and non-clinical areas, as they are likely entering clinical units/patient care settings.” It also states the following:
22. If a patient arrives wearing a medical mask or N95 respirator, do we still need to provide a new medical mask?
The provincial mask policy states that all healthcare facilities must provide medical masks for all patients and visitors. Because it is difficult to ensure that masks purchased outside of the facility meet the standards for medical masks, patients should be provided with a medical mask, no matter whether they are wearing one when they arrive (para. 22)
…
25. What if a patient refuses to wear a mask or change their cloth mask to a medical mask?
If you have a patient who cannot wear a mask due to a medical reason or a patient that refuses to comply*, care must still be provided. However, if feasible, consider how the patient can be accommodated during their visit in way (sic) that minimizes risk to health-care workers, staff and other patients.
…
For health-care staff working in health authorities’ facilities and requiring support with patients or visitors who refuse to comply with the policy, staff should speak to their management team for support.
*Please note, under the provincial orders effective November 24, 2020, everyone is required to wear face covering (non-medical masks) in indoor public spaces, including health professionals’ offices. However, there are exemptions to the orders, including:
• A person who is less than 12 years of age;
• A person who is unable to wear a face covering because of a psychological, behavioural or health condition, or a physical, cognitive or mental impairment;
• A person who is unable to put on or remove a face covering without the assistance of another person
[24] The policy Q and A also provides guidance for health authorities in dealing with people not wearing masks around the hospital, visitors who cannot or will not wear masks, and the exemptions that can me made for medical or compassionate reasons.
IV DECISION
[25] A person seeking to add a respondent to a complaint must establish that there are facts alleged against the proposed respondent that, if proven, could establish a contravention of the Code, and that adding the proposed respondent will further the just and timely resolution of the complaint: Rule 25(2). If the application is brought after the one-year time limit for filing a complaint under s. 22 of the Code, the complainant must also establish that it is in the public interest to add the proposed respondent and why no substantial delay will result to any person because of the delay: Rule 25(2); Mother E and Baby E (by Mother E) v. BC Ministry of Health, 2023 BCHRT 204 at para. 17; Goddard v. Dixon, 2012 BCSC 161 at para. 151.
[26] On July 4, 2025, Dr. Patsa applied to add the Ministry as a respondent. She applied after she received the May 2, 2025, disclosure from FHA and following correspondence with FHA indicating that the policy at issue in the complaint was created by the Ministry. In support of her application, Dr. Patsa included the disclosed policy Q and A.
[27] In this case, the Ministry disputes that Dr. Patsa has alleged an arguable contravention of the Code against it. I determine this issue first.
1. Has Dr. Patsa alleged facts or omissions that contravene the Code?
[28] In this application, Dr. Patsa is not required to prove her case against the Ministry. Rather, she must only meet the low threshold of alleging facts that, if proved, could be a contravention of the Code. The Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon, 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low: Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56. As indicated by the words set out in Rule 25(2)(b), the Tribunal will assume the facts alleged can be proven: Taylor v. BC (Ministry of Attorney General) and others (No. 2), 2013 BCHRT 173 at paras. 8 and 17.
[29] In this case, Dr. Patsa must set out facts that, if proved, could establish that the complaint class was adversely impacted in a service customarily available to the public, and that their protected characteristics were a factor in that adverse impact: Moore v. BC (Education), 2012 SCC 61 at para. 33. In this application, she must also alleged facts that, if proved, could establish the Ministry’s responsibility for that alleged impact to establish the Ministry’s liability for any discrimination proved.
[30] The Ministry argues that the facts as alleged by Dr. Patsa, even if accepted to be true, do not allege an arguable contravention of the Code. Generally, the Ministry argues that Dr. Patsa has not alleged that members of the class who required accommodation from the policy were not being accommodated by FHA.
[31] Dr. Patsa’s allegation is that the Ministry created the policy and policy Q and A document which had a discriminatory impact on individuals with physical disabilities (higher-risk for severe Covid 19) in the context of FHA’s services.
[32] Having considered Dr. Patsa’s submissions, I am satisfied that that her complaint alleges an arguable contravention of the Code by the Ministry. The members of the class have alleged physical disabilities. Dr. Patsa argues that members of the class were denied care at FHA hospitals. If this allegation is proven, it could amount to adverse impact in the area of “service and facility” as set out in s. 8 of the Code. On nexus, at the hearing on merits, Dr. Patsa would need to prove that disability was a “factor” in the adverse impact. I find that Dr. Patsa has alleged conduct that, if proven, could establish nexus.
[33] Regarding Ministry responsibility, Dr. Patsa alleges that the Ministry developed the specific policy and policy Q and A that Dr. Patsa alleges discriminated against members of the class based on their disabilities. She cites Union of BC Indian Chiefs v. Provincial Health Services Authority and others, 2022 BCHRT 99 [UBCIC 2022] in support. In that case, the Tribunal found that BC Transplant was properly a respondent to the complaint because it had published the policy that had a discriminatory impact on the class. Above, I noted that FHA was mandated by the Ministry to ensure mask wearing for health care workers, non-clinical staff, patients, and visitors.
[34] For these reasons, I find that these allegations, if proven, could support a finding of discrimination by the Ministry. I confirm that, at this stage, I do not assess the probability of Dr. Patsa proving her allegations.
[35] I now turn to whether the allegation is timely and, if not, whether to allow the late-filed application.
2. Are the allegations against the Ministry timely and, if not, should they be accepted under s. 22(3) of the Code?
[36] The Ministry opposes the application to add it as a respondent. It submits that the application is outside the time limit for filing a complaint, and that Dr. Patsa’s complaint does not allege an arguable contravention of the Code by the Ministry and does not meet the requirements of Rule 25(2).
[37] Rule 25 says that if an application is filed after the time limit for filing a complaint, in respect of the allegations against the proposed respondent, the applicant must explain why it is in the public interest to add the proposed respondent. This is a reference to s. 22 of the Code, which says that if a complaint is filed more than one year after alleged contravention of the Code, or the last alleged instance of a continuing contravention, the Tribunal may accept it if it is in the public interest to do so, and no substantial prejudice will result to any person because of the delay. The same considerations apply to an application to add a respondent outside of the one-year time limit.
[38] I am satisfied that the complaint against the Ministry is out of time. Dr. Patsa submits that, where a policy is in issue in a class complaint, the period of liability is the period during which the policy was being applied, and this can extend past the point that the policy was rescinded: Union of BC Indian Chiefs v. Provincial Health Services Authority and others, 2022 BCHRT 99 at paras. 56-57. Dr. Patsa identifies that the policy appears to have been in place from November 2020 through January 2022 and it is unclear when it ceased to be in force. However, according to the complaint form, the most recent conduct occurred in January 2022. The application to add the Ministry was filed over three years later.
[39] Dr. Patsa submits that it is unclear whether an application to add a respondent is out of time if the allegations against the proposed respondent occurred outside the time limit for filing the initial complaint. The cases Dr. Patsa cites are in the context of complaint amendments rather than applications to add a respondent: Kruger v. Xerox Canada (No. 3), 2005 BCHRT 284 at paras. 21-22; Preiss v. B.C. (Ministry of Attorney General), 2005 BCHRT 477 at para. 105; Greenlees v. British Columbia Emergency Health Services, 2024 BCHRT 122 at para. 21. The time limit for an application to add a respondent is based on the dates of the alleged conduct and the date the application was filed. As noted, the time limit would run from January 2022, the last alleged conduct under the policy.
[40] I now turn to consider whether it is in the public interest to add the Ministry at this stage.
[41] Dr. Patsa bears the burden of establishing that it is in the public interest to accept the complaint and that no substantial prejudice will result to any person because of the delay: Chartier v. School District No. 62, 2003 BCHRT 39, para 11.
[42] As stated above, under s. 22(3) of the Code, the Tribunal may accept a complaint filed more than one year after the alleged contravention where it determines that it is in the public interest to do so, and no substantial prejudice would result to any person because of the delay.
[43] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. The purposes of the Code include identifying and eliminating persistent patterns of inequality and providing a remedy for persons who are discriminated against: s. 3. In relation to the public interest, the Tribunal will consider a non-exhaustive list of factors, including the length of the delay, reasons for the delay, and the public interest in the complaint itself: British Columbia (Minister of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 [Mzite] at para. 53. These factors are important, but not necessarily determinative: Goddard v. Dixon, 2012 BCSC 161 at para. 152. The inquiry is fact and context specific and assessed in accordance with the purposes of the Code: Brelecic v. Mike’s No Frills, 2021 BCHRT 168 at para. 13.
[44] In considering the length of the delay, the purpose of the time limit is to ensure that complainants pursue their human rights remedies with some diligence, and to allow respondents the ability to go about their affairs without fear of having to deal with dated complaint: Buchanan v. Providence Health Care and others, 2023 BCHRT 50 at para. 33; Chartier at para 12.
[45] Regarding the length of the delay, the application to add the Ministry as a respondent was received by the Tribunal on July 4, 2025. This is a delay of over two years following the time limit for filing in January 2023. This delay is lengthy. I find that this delay is significant and weighs against adding the Ministry as a respondent.
[46] Turning to the reason for the delay, Dr. Patsa says that she did not become aware that the Ministry had drafted the Policy until she reviewed the documents which FHA’s disclosed on May 2, 2025.
[47] The Ministry disputes the validity of Dr. Patsa’s reason for the delay. The Ministry says the Policy was publicly accessible when Dr. Patsa filed her complaint in 2022 and Dr. Patsa knew or ought to have known that the Ministry authored the policy and policy Q and A. It says that by Dr. Patsa’s own submissions, she became aware of the policy from a Burnaby Beacon article published in January 2022 and filed the complaint in relation to the policy. The Ministry argues that the article referred to a “government mandate” and a “provincial … requirement.” The Ministry further argues that another news article from January 2022 regarding the complaint by Dr. Patsa stated that an FHA spokesperson “redirected all enquiries to B.C.’s Ministry of Health, who confirmed that rules requiring all patients to wear masks remain in place provincewide.” For this reason, the Ministry says that Dr. Patsa has not explained how she only knew of the Ministry’s involvement in 2025. It also says that in April 2022, Dr. Patsa filed a different class complaint against the Ministry. While the Tribunal did not accept that complaint, the Ministry argues that it establishes that Dr. Patsa was aware of the Ministry’s role in the COVID-19 pandemic, the resulting health emergency, and in masking guidance in healthcare facilities. Dr. Patsa disputes this and says she did not include the allegation regarding the N95 masks in that other complaint because she did not, at that time, understand that the Ministry had a role in the creation or implementation of that specific policy.
[48] While the Ministry argues that Dr. Patsa knew or ought to have known about its creation of the policy, the evidence before me does not demonstrate that Dr. Patsa did in fact know that the Ministry created the policy. Dr. Patsa’s sworn affidavit is that she did not know about the Ministry’s involvement in the creation of the policy. Dr. Patsa says she was aware of the masking requirements in the Province at the time regarding the COVID-29 pandemic and understood the requirements to be set by the Provincial Health Officer. However, at the time of filing the complaint, she was not aware that the Ministry was the source of the particular requirements to remove an N95 mask that was being imposed by FHA until she received FHA’s disclosure. Dr. Patsa provides her communication with the FHA where she sought to ascertain the authorship of the policy following disclosure. I have no reason to doubt the sincerity of Dr. Patsa’s evidence that she did not know of the Ministry’s involvement in creating the policy. Her sworn affidavit is that she was not familiar with how the health care system in BC was administered. I am satisfied that Dr. Patsa was unaware of the Ministry’s authorship of the policy until the disclosure stage of the process. The email communication between Dr. Patsa and FHA regarding whether who created the policy supports this.
[49] Regarding whether Dr. Patsa ought to have known about the Ministry’s creation of the policy, I am not satisfied by the Ministry’s arguments. It points to evidence that Dr. Patsa ought to have known from: news articles referring to “government mandate” and “provincial requirement,” an article indicating that FHA redirected enquiries to the Ministry of Health, and Dr. Pasta’s prior complaint against the Ministry concerning COVID-19. While this evidence demonstrates Dr. Patsa’s general awareness of provincial involvement in COVID-19 policies, it does not establish that she ought to have known that the Ministry specifically authored the policy at issue in the complaint. References to “government” or “provincial” requirements, or awareness of the Ministry’s broad role in the pandemic response, do not necessarily put a complainant on notice that the Ministry created a specific policy being implemented by a health authority. FHA is a separate entity that implements policies in healthcare facilities, and it would not have been unreasonable for Dr. Patsa to have understood the policy as an FHA policy, particularly given that it was being enforced by FHA staff at FHA facilities.
[50] I accept that Dr. Patsa did not know of the Ministry’s role in the policy until FHA confirmed it on June 23, 2025. I also do not find it unreasonable that she did not know earlier. The point at which a complainant learns of the evidentiary basis for a complaint is relevant and may be a compelling reasoning to accept a late-filed complaint: see, for example, A.M. v. British Columbia Human Rights Tribunal, 2017 BCSC 89 at para. 47.
[51] Accordingly, while I acknowledge that the delay in bringing the application weighs against accepting the late-filed application to add the Ministry as a respondent, this factor is not determinative. The inquiry is always context specific. I find that the circumstances of this case act as a counterbalance because Dr. Patsa, on learning that the Ministry created the policy, acted diligently to file the application in a timely fashion. Dr. Patsa learned on June 23, 2025, that the Ministry had authored the policy and brought her application approximately two weeks later, on July 4, 2025. On balance, this weighs in favour of allowing the late-filed application.
[52] Dr. Patsa argues that the Tribunal has not yet had the opportunity to address the rights of those who are at risk for severe COVID-19, particularly not in the systemic manner inherent in class complaints. She cites the Tribunal’s decision in UBCIC 2022 where the Tribunal noted that that class complaint raised systemic concerns about policies and practices alleged to be discriminatory and that such issues were significant because they went to the core of the Code as set out in s. 3 – promoting a society free from barriers to full participation and addressing entrenched patterns of inequality: para 70. Dr. Patsa also argues that the Tribunal has elsewhere found that “class complaints are an important way that the Tribunal considers allegations of systemic discrimination against groups of people who may face barriers to bringing a complaint on their own”: UBCIC, at para 47 citing CSWU Local 1611 v. SELI Canada and others (No. 3), 2007 BCHRT 423 at para. 101. I note, however, that the Tribunal in UBCIC made that statement in the context of class members’ ability to bring complaints themselves. In this case, the Tribunal is proceeding with a complaint about the policy, and the issue is whether it is the public interest to add the Ministry after the time limit for filing a complaint against it. I return to this shortly.
[53] The Ministry disputes that the complaint raises novel issues such that it is in the public interest. It says the issue of masks has been litigated over the past few years, the policy is no longer in effect, the complaint is stale, and Dr. Patsa is not alleging any present harm.
[54] I disagree with the Ministry’s characterization of the novelty of this complaint. I agree that the complaint involves allegations concerning mask wearing which often comes to the Tribunal and as the Ministry argues, the policy is no longer in effect, many complaints concerning the issue of masking continue to be litigated and the Tribunal’s jurisprudence in this area remains limited. However, Dr. Patsa’s allegations goes beyond a simple issue of mask wearing in the context of services. Her complaint concerns the rights of a sub-section of the public who are at risk for severe COVID-19 who she alleges were impacted by the provisions of the policy and policy Q and A. The specific issue in this case is somewhat novel. That said, the issue is already before the Tribunal in the complaint against the FHA, so I do not view the novelty of the complaint as a significant factor.
[55] I also consider the public interest of having the complaint adjudicated fully on its merits. Due to nature of the allegations in the complaint, it is likely that the Tribunal would have to hear evidence about the Ministry’s creation of the policy and policy Q and A, as well as exemptions and accommodations for certain individuals under the policy. There is a public interest in ensuring that all parties said to be responsible for the allegedly discriminatory policy are parties to the complaint.
[56] The Ministry argues that the policy includes exemptions for those who are not able to comply with it and that a reasonable reading of the policy would include exemptions for those wearing N95 masks. It points to the portions of the policy and policy Q and A that it says sets out the policy exceptions and accommodation provisions. The Ministry says that a reasonable reading of the documents is that neither document is absolute in terms of its exceptions and apply not only to those who are unable or unwilling to wear a mask, but also those who are unwilling to replace their N95 masks with medical masks.
[57] To the extent that the Ministry argues that the policy’s exemptions mean it could not be found responsible for the alleged discrimination, I disagree. In my view, as explained above, the facts alleged could if proved establish the Ministry’s liability. Adding the Ministry would allow the Tribunal to consider the full context of the complaint and ensure any remedies address all potentially responsible parties. This will further a just and timely resolution of the complaint. As noted in Mother E and Baby E (by Mother E) v. BC Ministry of Health, 2023 BCHRT 20 at para. 38, Rule 25(2) is designed to allow the Tribunal to determine whether all necessary parties are before it for a complete and just adjudication. The allegation in the class complaint form is that a policy which the parties do not dispute is a Ministry policy discriminated against members of the class. The Tribunal will need to decide this allegation. If I grant the application, the merits of the Ministry’s defence to the allegations will be best considered in the context of its response to the complaint. The Ministry would be entitled to file a response to the complaint.
[58] I am satisfied that adding the Ministry to the complaint is in the public interest. On this application, I am not deciding whether the Ministry discriminated or if it did, whether it is jointly responsible with FHA. I do not also consider the likelihood of success of Dr. Patsa’s complaint against the Ministry. Rather, I consider that Dr. Patsa has set out an arguable contravention of the Code against the Ministry. If Dr. Patsa can prove the allegations of discrimination against the Ministry, the class would be able to obtain an order for a remedy regarding that discrimination. This will uphold the purpose set out in s.3 (e) of the Code to provide a means of redress for those persons who are discriminated against contrary to the Code. A just determination, and the possibility of a remedy if any part of the complaint against the Ministry is successful, requires participation by the Ministry.
[59] For these reasons, I am satisfied that it is in the public interest to add the Ministry as a respondent to this complaint.
[60] Next, I turn to the issue of whether the Ministry will suffer substantial prejudice.
3. Will the Ministry suffer any substantial prejudice if it is added as a respondent to the complaint?
[61] The Ministry argues that the significant delay will cause it substantial prejudice. The Tribunal has said that it is not sufficient for some prejudice to be present; what the Code requires is substantial prejudice: Read v. Century Holdings Ltd. dba Best Western Tsawwassen Inn, 2003 BCHRT 52, at para. 78. On the materials and submissions before me, I am satisfied that no substantial prejudice will result to the Ministry as a result of the delay.
[62] The Ministry argues that it is reasonable to presume that it will suffer substantial prejudice in trying to defend against speculation and hypothetical scenarios. It says that it is unaware of any instances where healthcare was denied in 2022, or earlier, due to N95 issues. It also says that if any such instances exists, it is unaware of its role in it because the policy states that healthcare must be provided even if a patient refuses to comply. It says that the nature of the class complaint is overly broad, the allegations are unparticularized, and there has been significant and unreasonable delay in bringing the complaint.
[63] Dr. Patsa says that no substantial prejudice will result because of the delay because the complaint is in its early stages and no hearing dates have been scheduled.
[64] I find that no substantial prejudice will result from the delay. I understand that there will be some prejudice in defending a complaint without all the particulars the Ministry believes it requires, but that concern does not flow from the delay, and, in any event, I am not satisfied that the prejudice in this case is substantial.
[65] While the burden is on Dr. Patsa under s. 23(3), the Ministry is in the best position to identify prejudice arising from the delay, such as records or witnesses who may no longer be available. The Ministry has identified issues with the complaint, including with the class definition, that are more appropriately addressed within the complaint process, as has occurred in relation to the complaint against FHA.
[66] Ultimately, I am satisfied that the Ministry will suffer no substantial prejudice as a result of the delay in being added as a respondent to this complaint.
V CONCLUSION
[67] For the above reasons, I allow the application and add the Ministry as a respondent. The style of proceeding is amended accordingly.
Ijeamaka Anika
Tribunal Member
Human Rights Tribunal