The British Columbia Human Rights Tribunal has decided to accept a late-filed complaint of employment discrimination based on sex against Halton Recycling Ltd. and its manager, VC.
The complainant, EN, alleged a series of discriminatory incidents occurring between May 2017 and October 2018 while she worked as a driver for the company. Although the complaint was filed outside the stipulated one-year limitation period, the Tribunal found it to be in the public interest to move forward with the case.
Background
EN began working for Halton Recycling Ltd. in May 2017, reporting that she was the first female driver at the company. Over the course of her employment, EN alleges various instances of harassment and discrimination, including derogatory name-calling, receiving ill-fitting uniforms, and encountering lewd comments from her coworkers.
EN also reported being treated differently by her supervisor, VC, who allegedly altered her work duties without notice and failed to address her harassment complaints adequately. In October 2018, EN left her job citing “excessive bullying and harassment” as the cause. She has reported ongoing post-traumatic stress disorder (PTSD), anxiety, and stress related to her experience at Halton.
Timing issues and tribunal decision
The Tribunal initially questioned the timeliness of the complaint, as it was filed on April 26, 2022 — several years after the alleged incidents took place. Section 22 of the Human Rights Code stipulates that a complaint must be filed within one year of the alleged violation.
EN offered multiple reasons for the delay, including ongoing mental disabilities, her involvement with a protracted WorkSafeBC claims process, and her previous lack of awareness about her ability to file a human rights complaint.
Based on these factors, and the documentation provided by her family physician, the Tribunal determined that it was in the public interest to accept her late-filed complaint.
Public interest
The Tribunal analyzed the public interest aspect using a multi-faceted approach. Factors like the length of the delay, the reasons for it, and the complaint’s public importance were considered. Although the complaint was late-filed by over two-and-a-half years, the Tribunal found EN’s justifications, which were supported by her physician, to be compelling.
The ruling explicitly stated that it made no findings regarding the merits of the complaint but agreed that it was in the public interest to proceed with the case.
Substantial prejudice?
Halton and VC argued they would be put at a significant disadvantage because of the length of time that has passed.
They argued that since both EN and VC are no longer employees, and there was no complaint documentation from EN to the employer in the relevant timeframe, they will be substantially prejudiced by this matter proceeding.
EN, though, argued that Halton participated in in the WorkSafeBC claim process and that numerous documents are available in relation to this case. WorkSafeBC investigated the incidents, contacted the employer, and made factual findings that she was subjected to sexual harassment and bullying in the course of her employment.
“While recognizing many months have passed since the events in question, I do not find a sufficient basis on which to infer sufficient prejudice in the circumstances of this case,” the Tribunal said.
“I am satisfied that even if Halton does not have any records of the events in question, significant documentary evidence can be found in the WorkSafeBC claim record. This evidence should be enough to assist witnesses in recalling the incidents during the Tribunal’s process.”
For more information, see Nagel v. Halton Recycling Ltd. and another, 2023 BCHRT 154 (CanLII)
