A late-filed human rights complaint alleging sexual harassment and discrimination will go before the British Columbia Human Rights Tribunal, after it found “it is in the public interest to allow the Complaint to proceed” despite being filed outside the one-year statutory limit set out in the Human Rights Code.
The decision, issued by tribunal member Steven Adamson, underscores the tribunal’s willingness to consider the impact of mental and physical disabilities on delayed filings, while also acknowledging potential harm to reputations should private health information become public.
What happened
The complaint involves a personal care aide, identified only as “the Worker,” who alleged that “the Employer” engaged in sexual harassment, sexual assault, and discriminatory conduct based on sex, gender identity or expression, mental and physical disability, and age. The complaint concerns alleged events said to have occurred between late November 2021 and January 30, 2022, when the Worker resigned. The tribunal did not make any findings on the merits of the underlying allegations.
While decisions about whether to proceed with late-filed complaints often hinge on factors such as the length of the delay and explanations provided, the tribunal placed particular emphasis on the Worker’s mental health. According to the ruling, the Worker had been diagnosed with ADHD and a generalized anxiety disorder since 2012 and also reported experiencing chronic myofascial pain.
In the course of detailing reasons for the delay, the Worker said that the process of filing “resulted in her losing consciousness while driving and then suffering a concussion for which she was taken to hospital by ambulance.” The Worker maintained that this traumatic brain injury caused “ongoing negative effects on her ability to read and write.”
One-year time limit
Under s. 22 of the Code, a complaint must be filed within one year of the alleged contravention, unless it is in the public interest to accept a late submission and doing so would not result in substantial prejudice. In this instance, the Worker filed on March 2, 2023, more than one year after the alleged acts, which ended by January 30, 2022. The tribunal acknowledged the delay exceeded the statutory limit, but found that “the complaint allegations are just over one month late,” which it characterized as “relatively brief.”
The Worker attributed the delay to multiple factors related to her mental health and personal circumstances. These included the impact of the alleged harassment and assault on her psychological well-being, ongoing anxiety, and what the tribunal described as “life-threatening concerns” at the time of filing.
The Worker also cited family emergencies, housing instability, financial distress, social isolation, and lack of job security as contributing factors. The tribunal concluded that, taken together, these challenges, along with her disabilities, created barriers that explained her inability to meet the one-year deadline.
Complaint not unique or novel
While the Worker expressed concerns that the Employer’s conduct might occur with other female personal care aides, the tribunal was cautious about calling the complaint unique or novel.
“Unfortunately, the Tribunal routinely deals with cases involving sexual harassment and assault in employment, and the jurisprudence is fairly settled,” Adamson wrote, referencing the established body of case law.
Still, he concluded that the Worker’s evidence around her disabilities was compelling enough to meet the public interest test set out by s. 22(3) of the Code.
Privacy issues
The tribunal also addressed privacy. Adamson recognized that a key element of the Worker’s delay and the nature of her complaint related to her mental disability. Making these details public, he noted, could harm her employment prospects and potentially stigmatize her in her community.
While the tribunal aims to maintain open and public processes, Adamson cited precedent in ordering the names of the parties withheld. “I have decided to order a limitation on the publication of the names of the parties to protect the Worker’s privacy,” he stated. The decision referenced the case A v. University and Dr. B and C and D and E, 2014 BCHRT 235, in discussing the balance between transparency and privacy. In this instance, the tribunal considered the Worker’s vulnerability as a persuasive factor.
Witnesses still available to provide testimony
The Employer, represented by counsel, did not significantly contest the reasons provided by the Worker for the delay, nor did the tribunal find any substantial prejudice to the Employer. Adamson found that witnesses could still be identified and would be available to provide testimony. While the events are now somewhat dated, the short delay and the absence of significant prejudice helped tip the balance in favour of accepting the late complaint.
Though the substance of the Worker’s allegations will be determined at a later stage, this ruling makes it clear that the tribunal is willing to consider the full context surrounding a late filing. Factors such as mental health, physical disabilities, and other life stressors can influence whether a complaint will proceed to a hearing despite missing the one-year deadline.
The tribunal also referenced its statutory mandate, noting that s. 22 of the Code exists partly to ensure that complaints are pursued promptly. However, it concluded that a brief delay, paired with evidence of disabling conditions, satisfies the “public interest” criteria, given that the Code’s purposes include protecting vulnerable individuals and addressing discrimination in the workplace.
For more information, see The Worker v. The Employer, 2024 BCHRT 305 (CanLII).
