A British Columbia employment tribunal has overturned a decision that denied a woman the right to file a complaint against her former employer after she missed the six-month statutory deadline, ruling that an adjudicator failed to properly consider the impact of sexual assault on the victim’s ability to meet filing requirements.
The Employment Standards Tribunal found that S.B., a former nurse who was sexually assaulted by her employer, had valid “special circumstances” that should have warranted an extension to file her complaint for unpaid wages.
The tribunal ruled the original adjudicator made an error of law by not considering all purposes of the Employment Standards Act and by failing to properly weigh the complainant’s mental health evidence.
Background of the case
S.B. filed her complaint on Oct. 20, 2023, nearly a year after her last day of work on Oct. 18, 2022. She also applied for an extension of time to deliver the complaint under the Employment Standards Act.
The original adjudicator denied S.B.’s application and refused to proceed with the complaint, finding no special circumstances existed to justify the late filing. The adjudicator noted that complaint requirements “are very explicit and available publicly on the Branch’s website” and that employees can call a toll-free information line for clarification.
During a telephone interview, S.B. told the adjudicator she was unaware of the filing deadline and would not have been able to meet it anyway due to physical and psychological injuries from the assault by her former employer. She said her injuries included memory loss and that PTSD left her housebound for more than six months.
The case also involved criminal charges against S.B.’s former employer related to the assault. While the tribunal decision does not detail the specific outcome of the criminal proceedings, S.B. provided documentation from the Crown Prosecutor’s office regarding the criminal charges as part of her evidence supporting the extension application.
Medical evidence presented
S.B. provided extensive medical documentation to support her extension application. Her medical practitioner noted she had been “struggling with metal health issues including anxiety, depression, hallucinations, difficulty with concentration and PTSD symptoms.” The practitioner also observed S.B. had “extreme difficulty navigating the legal, medical insurance, social work and health care systems, especially as she has no primary care provider.”
Her counsellor indicated S.B. had been referred by WorkSafe BC for treatment “for a condition directly attributable to a workplace injury” that occurred on her last day of work. The counsellor noted that S.B. suffered from mental health issues that affected her ability to file her complaint.
Despite this evidence, the original adjudicator found there were no special circumstances that prevented S.B. from filing within the statutory time limit.
Tribunal’s analysis
The Employment Standards Tribunal found the adjudicator exercised discretion in good faith but not reasonably, concluding she failed to consider all purposes of the Employment Standards Act when making her decision.
The tribunal noted the adjudicator considered only one purpose of the act — providing fair and efficient procedures for resolving disputes — while ignoring other equally relevant purposes, including promoting fair treatment of employees and ensuring workers receive basic standards of compensation.
“In my view, the Adjudicating Delegate’s failure to consider all the purposes in light of the evidence is an improper exercise of discretion,” the tribunal wrote.
The tribunal also found the adjudicator improperly concluded that because S.B. could use the internet for research, she should have known about the limitation period from the government website.
“One can only be aware of the existence of a website if one is informed of it,” the tribunal stated. “In my view, the Adjudicating Delegate failed to properly consider Ms. B.’s evidence that she was not aware of the website until it was past the six-month statutory period.”
Impact of trauma not properly considered
The tribunal criticized the adjudicator for failing to give proper weight to evidence about how the assault affected S.B.’s ability to function and manage various legal processes.
“The Adjudicating Delegate also did not appear to give any weight to Ms. B.’s evidence that the assault by her former employer caused her significant mental distress, and that her failure to file within the statutory time period was, at least in part, attributable to that mental distress and her consequent inability to manage the myriad criminal and civil processes,” the tribunal found.
The employer had argued that S.B. demonstrated resourcefulness by successfully accessing services like UVic Law, Handy Dart and Service Canada, suggesting she should have been able to file her complaint on time. However, the tribunal found this argument failed to address the evidence that S.B. was dealing with serious criminal and medical issues following the end of her employment.
Legal framework for extensions
The Employment Standards Act allows the director to extend filing deadlines if satisfied that special circumstances exist that precluded filing within the required time period and that an injustice would otherwise result.
The tribunal said it will only interfere with the director’s exercise of discretion in exceptional circumstances, including when there is an abuse of power, mistake in construing authority, procedural irregularity, or unreasonable decision-making.
However, the tribunal found the adjudicator’s approach fell short of this standard by failing to properly consider S.B.’s unique circumstances and the full scope of the act’s purposes.
The tribunal allowed S.B.’s appeal and cancelled the original determination. The matter has been referred back to the director to be considered fresh, giving S.B. another opportunity to have her complaint heard on its merits.
For more information, see S.B., 2025 BCEST 61 (CanLII).
