Discrimination Claim & BC Human Rights Tribunal. Should You Wait to Gather Evidence Before Filing?
In short, no. If you believe that you have a potential claim, then you need to set out your factual allegations and claims before the time limit set in the BC Human Rights Code. That goes for most claims and is also true for the work discrimination case example below.
Example of Work Discrimination Case in BC
A recent decision out of the BC Supreme Court in Parmar v Translink Security Management Limited, 2020 BCSC 1625, emphasizes the importance of acting promptly when you have suffered discrimination at work. Although the deadline to file was extended in 2019 from 6 months to 12 months from the last instance of discrimination, many claimants still wait too long to file their claims. Claimants often wait for another process to finish (e.g. a labour grievance or an internal complaint) or are trying to gather evidence and time runs out.
Case Dismissed Due to Late Filing
In this case, the complainant had legal counsel and was waiting to gather evidence of a mental health disorder before filing their claim. The complainant alleged that he only had a suspicion that he had a mental disability under the BC Human Rights Code. The complainant missed the deadline and the Tribunal dismissed their claim in its entirety due to late filing. The complainant sought a judicial review of this decision before the BC Supreme Court.
Petition for Judicial Review Unsuccessful
The argument in the petition for judicial review sought to argue that the Tribunal Member misapprehended the evidence or ignored relevant evidence. In a judicial review, those arguments are very hard to succeed upon. The standard of review is patent unreasonableness – which means that the Tribunal Members’ decision must be on the verge of being absurd to warrant being set aside. Accordingly, the claimant in this petition had a tough claim to make and was ultimately unsuccessful.
In dismissing the petition, the Court wrote that:
[53] I note the Tribunal Member did not refer to the emails from Mr. Parmar’s counsel that helped explain Mr. Parmar’s delay. While troubling, a trier of fact need not advert to every piece of evidence: Canex Investment Corporation v. 0799701 B.C. Ltd., 2020 BCCA 231 at para. 87. In any event, it is obvious the Member understood the reason behind Mr. Parmar’s delay in filing the complaint between October 2018 and February 2019 articulated in the emails. This is evident in the Tribunal Decision:
[36] … While there is no doubt that the report from the forensic psychologist in February 2019 contains medical evidence supporting the filing of the complaint, from the information on file I am satisfied that the evidentiary basis of the complaint was known to [Mr. Parmar], as set out by his lawyer in the letter to [Translink], as of October 2018. In my view, there is a difference between learning you have a complaint and moving forward to file a complaint when you receive expert medical evidence supporting the complaint. To conclude otherwise, would allow complainant’s to wait to file complaints until they receive expert medical opinion supporting the complaint. It would not further the purposes of the Code to do so.
[37] In the circumstances of this case, I conclude that [Mr. Parmar] knew that as of October 2018 he had a case of PTSD that may have a connection to his workplace issues with [Translink]. That case may have gotten stronger when he received the forensic psychologist’s report in February 2019.
[38] In summary, it is fair to conclude that [Mr. Parmar’s] delay in filing, from the time he was terminated in May 2017 until he was diagnosed with PTSD in October 2018, is reasonably explained by his lack of awareness of his potential case at the Tribunal. However the delay from October 2018 to February 2019 should not, in my view, be accorded any such public interest on this basis. While acknowledging [Mr. Parmar’s] decision to refer the medical evidence issues in this case to a forensic psychologist for an opinion would assist with determining the strength of his case, I disagree with his conclusion that he only learned that he had an evidentiary basis for a complaint when he received the report from the forensic psychologist.
[54] The Tribunal Member found that Mr. Parmar’s knowledge of his PTSD and its impact on his work while at Translink went beyond suspicion and that he knew he had the factual basis to file a complaint in October 2018. The Member stated this conclusion was bolstered by the October 25, 2018 demand letter which stated, inter alia, that Mr. Parmar had PTSD, it should have been obvious to Translink he was suffering from PTSD at the time of his termination, and he had instructed his counsel to file a human rights complaint.
[55] Based on the above reasoning, the Member had evidence before him supporting his decision. The decision does not fall within the “no evidence” part of the test in s. 59(2). I must next consider, in light of all the evidence, if this factual finding is otherwise unreasonable.
[56] While the demand letter is relevant evidence, a demand letter is not evidence under oath. I would not have placed as much emphasis on the demand letter as did the Member.[3] However, as stated in Vavilov at para. 125, the “reviewing court must refrain from ‘reweighing and reassessing the evidence considered by the decision maker.’” I am not to reassess; I am also not permitted to substitute my view of the merits for that of the Tribunal: Kinexus Bioinformatics Corporation v. Asad, 2010 BCSC 33 at para. 13. I am not to pursue a “line by line treasure hunt for error”: Vavilov at para. 102.
[57] To the extent s. 59(2) of the ATA applies a reasonableness standard, I find the factual finding of the Member, in light of all the evidence, was reasonable. In any event, I find this finding of fact is inextricably intertwined with the exercise of discretion. Therefore the patently unreasonable standard applies: Morgan-Hung v. British Columbia (Human Rights Tribunal), 2011 BCCA 122; Berezoutskaia. This is likely why the petitioner did not rely on s. 59(2) of the ATA.
[58] The standard of review is patent unreasonableness within the meaning of s. 59(4) of the ATA. As emphasized in Mzite and Routkovskaia, the Tribunal is entitled to the highest degree of deference when this Court is evaluating a decision to deny a late-filed complaint.
In short, this case represents an example of why it is very important for claimants to set out their allegations in a complaint within the 12-month grace period or respective deadline under the Human Rights Code. Remember that the complaint form only sets out the facts supporting the allegation of discrimination. The evidence in support does not need to be provided until later and can always be supplemented after filing.
Book Your Consultation with HOM Today.
If you have suffered discrimination in the workplace or have any other type of possible claim, then it is essential that you do not wait to seek legal advice on this matter. Call Hutchison Oss-Cech Marlatt and we can support you with advice and help you gather evidence. We offer a variety of retainer options for you to bring your claim forward based on the available evidence and likelihood of success.
