Older allegations of discrimination can be considered if they are part of a 'continuing contravention'
The British Columbia Human Rights Tribunal has declined to accept a worker’s complaint of workplace discrimination on the grounds of mental disability due to the lateness of the complaint.
The worker was a nurse for the Vancouver Island Health Authority (VIHA) for many years. In 2012, she encountered a patient with a head injury who threatened and verbally abused her. The patient also threw metal trays at her, broke the unit’s metal doors with his wheelchair, and tried to attack a security guard. The patient was eventually physically restrained and arrested.
The worker continued to work after the incident, but she soon began to experience symptoms of post-traumatic stress disorder (PTSD). However, at the time, she failed to recognized that she had PTSD.
In 2016, a patient made a report against the worker and VIHA put her on a learning plan. According to the worker, the learning plan included monitoring of her work without an explanation of why and she felt unsupported. VIHA also didn’t allow her to adjust to working day shifts when she had previously worked nights. The worker also alleged that her manager mocked her for saying that she liked learning.
Mental disability
Three days into the monitoring, the worker claimed that her manager terminated her employment. According to the worker, she wasn’t given an explanation or an opportunity to explain herself and she felt judged and bullied. However, the worker continued to be an employee of VIHA, although the BC College of Nursing Professionals suspended her license to practice nursing after her manager made a complaint about the incidents that had led to her removal from duty.
The worker was off work on benefits until August 2019. In June 2019, the college agreed to reinstate her license with conditions. The worker disagreed with the conditions, but she decided not to dispute them. The college cleared her to return to work on Aug. 6.
However, the worker claimed that she needed accommodation due to her PTSD, but VIHA didn’t find her a position. She applied for several positions, but VIHA rejected her. She was unable to obtain the hours needed to maintain her license, so she applied for several other jobs. She also claimed that her health, family life, and self-esteem were negatively affected by the lack of support from VIHA.
On Jan. 19, 2021, the worker filed a complaint of discrimination in employment based on mental disability related to VIHA’s failure to accommodate her. However, VIHA continued to engage in return-to-work efforts with her.
One-year limitation period
The tribunal noted that the BC Human Rights Code required human rights complaints to be filed within one year of the last alleged act of discrimination. Older allegations of discrimination can be considered if they are part of a “continuing contravention” of a series of acts of the same character, of which the most recent happened within a year of the complaint. Alternatively, a complaint filed late may be considered if there were legitimate, good-faith reasons for the delay or it would be in the public interest to consider it, the tribunal said.
The tribunal was unable to find any evidence of contraventions of the code within one year of her complaint, as the worker didn’t provide any dates for when she was rejected for position – anything before Jan. 21, 2020, would be beyond the limitation period - or details on the discriminatory elements of VIHA’s decisions.
The tribunal found that the only other allegations of discrimination were related to the events leading to her removal from her position in 2016, which were also well beyond the one-year limitation period for her complaint.
The tribunal recognized that the worker was off work for reasons related to mental disability from 2016 to August 2019, but the worker didn’t provide any information indicating that her disabilities prevented her from filing her complaint earlier. In fact, she was cleared to return to work in August 2019, more than 16 months before she filed the complaint in January 2021, the tribunal said.
Public interest
The Tribunal also considered whether it was in the public interest to accept the late-filed complaint. It acknowledged that delays due to mental health conditions might warrant consideration but found insufficient evidence that such conditions precluded the worker from filing her complaint earlier.
Further, the tribunal determined that the issues raised in the worker’s complaint relating to mental disability accommodation, while significant, were not unique or novel enough to justify accepting the late filing. It also noted that cases involving workplace discrimination related to mental disabilities are commonly addressed and well-settled in law.
The tribunal declined to accept the complaint, concluding that it didn’t meet the criteria for a late-filed or continuing contravention and that accepting it would not serve the public interest. See FitzGerald v. Vancouver Island Health Authority, 2024 BCHRT 326.
