Tribunal accepted complaint filed six months past deadline
The BC Human Rights Tribunal is allowing a worker’s discrimination complaint to proceed, despite the fact that it was filed 18 months after the last instance of discrimination, beyond the one-year limitation period.
The worker was employed by Best Personnel, an employment agency in New Westminster, BC, starting in October 2019. Shortly after her hiring, she was assigned to be a temporary worker on a construction site for EllisDon Corporation.
According to the worker, she experienced discrimination based on her race, ancestry, place of origin, sex, and gender identity starting in November 2019, stemming from bullying and sexual harassment by employees of both Best Personnel and EllisDon.
The worker said that the harassing behaviour continued until Jan. 20, 2020, when her employment ended.
Discrimination complaint
The worker filed a complaint of discrimination in employment based on race, ancestry, place of origin, sex, and gender identity with the tribunal on July 19, 2021. She said that she developed anxiety, depression, and post-traumatic symptoms for a long time after her employment ended.
A medical assessment indicated that the worker’s symptoms affected her ability to meet deadlines and she was undergoing counselling and treatment since the end of her employment. She filed a claim with WorkSafeBC, but it took her longer to file a human rights complaint because remembering the discrimination triggered her trauma.
The tribunal noted that the BC Human Rights Code limits human rights complaints to one year after the last instance of a contravention of the code. If a complaint is filed beyond that limit, the tribunal may accept it if it is in the public interest to do so, or there will be “no substantial prejudice” to any person because of the delay.
The tribunal also noted that the time limit is meant to ensure people pursue human rights remedies to allow respondents some certainty without the possibility of endless complaints.
Two conditions to accept late filing
The tribunal found that, since the worker’s employment ended 18 months before she filed her complaint, the complaint was late-filed and could only be accepted if it met one of the two conditions outlined in the code.
The worker claimed that the delay in filling was because her mental disability prevented her from doing it earlier. The companies pointed to the WorkSafeBC complaint as proof that she could have filed her human rights complaint as well.
The complaint was filed six months after the expiration of the limitation period, with wasn’t an insignificant delay but not long enough to strongly weigh against the public interest, said the tribunal. The worker’s evidence of her mental disability supported her reason for not filing earlier, as such a complaint requires more in-depth investment, while a WorkSafeBC complaint only required documenting her disability, the tribunal added.
Although there appeared to be no novel issues that would “fill a gap” in the jurisprudence, the tribunal found that it was in the public interest to accept the late-filed complaint, given the legitimate reasons for the delay.
No substantial prejudice
EllisDon argued that it would be substantially prejudiced from the delay, as it would be difficult to locate witnesses due to the high turnover in the construction industry and memories “will have faded considerably.” Best Personnel said that the delay would not cause any prejudice to it.
The tribunal found that having to put in an effort to find witnesses to defend against the complaint did not amount to substantial prejudice against EllisDon. Given that Best Personnel had no concerns, the risk of substantial prejudice was low and not a reason to dismiss the complaint, said the tribunal.
The tribunal determined that it would be the public interest to allow the worker’s complaint to proceed, despite its late filing. See Rabilizarov v. Eric Dorval and others, 2023 BCHRT 54.