Discrimination complaint proceeds despite being filed nearly 2 years late

The British Columbia Human Rights Tribunal is allowing a worker’s sex and ancestry discrimination complaint to proceed even through it was filed nearly two years after the deadline.

The worker joined Amplified AV Solutions (AAVS) on April 18, 2018, as an executive assistant, bookkeeper, and client co-ordinator. AAVS was an audio-visual consultancy and sales business and, as the only employee, reported directly to its owner.

According to the worker, the owner repeatedly subjected her to sexual harassment and assault. He made inappropriate comments such as telling her that she was sexy and turned him on, and when she said that the comments made her uncomfortable, he laughed at her and told her to “stop playing hard to get.” The worker said that he groped her thighs and breasts and stood over her thrusting his groin towards her face. The owner also called her personal number over and over until she answered and stalked her, demanding a key to her apartment and threatening to fire her if she didn’t give it to him, she said.

The worker also alleged that the owner discriminated against her because she was Jewish. When she was hired, she asked for Saturdays off because that is the Jewish day of rest, but the owner purposely scheduled her to work Fridays and Saturdays. He also made antisemitic comments and, when she told him that he had denied her statutory and holiday pay, he said that she could afford it because she was a “rich Jew.”

On Jan. 14, 2019, the owner terminated the worker’s employment. The worker claimed that it was because she kept refusing to sleep with him.

A worker’s trauma after workplace harassment was an acceptable reason that her discrimination complaint was filed late, the BC Human Rights Tribunal found.

Criminal investigation, charges

The worker complained to police, leading to a criminal investigation and sexual assault charges laid against the owner. Eventually, the prosecution issued a stay of proceedings.

The worker filed a human rights complaint on Nov. 16, 2021, against AAVS and the owner, alleging discrimination in employment based on sex, religion, ancestry, and place of origin.

The tribunal was tasked with determining if the complaint should be allowed to proceed, as the worker submitted it beyond the one-year time limit set out in the BC Human Rights Code to ensure that complainants pursue human rights remedies diligently. The code only allows late-filed complaints to proceed if the tribunal determines that it is in the public interest to accept the complaint and there is “no substantial prejudice” to any person from the delay.

The worker attributed the delay in filing – 22 months after the deadline – to the fact that she was diagnosed with post-traumatic stress disorder (PTSD) and major depressive disorder caused by her experiences at AAVS and her termination. She explained that she was afraid to leave her apartment for months as she was scared of the owner waiting for her outside. She said she had panic attacks and suicidal thoughts, which were aggravated by the criminal investigation that forced her to re-live the abuse she suffered from the owner, she said.

Tight deadlines can handcuff tribunals when it comes to offering extensions of deadlines.

Proof that disability caused delay

AAVS argued that the worker didn’t prove that her disabilities caused or contributed to her inability to initiate a human rights complaint within a year of her termination. It pointed out that she was able to lodge a criminal complaint with police, participate in interviews, and provide a written account of her allegations. It also pointed out that the worker filed and participated in a workers’ compensation claim related to her mental disability.

AAVS also maintained that the complaint was “a restatement of the same allegations made to and investigated” by police and the matter was ended when the prosecution entered a stay of proceedings without a conviction. There was no public interest in allowing the worker to relitigate her claims when they had already been dealt with by the courts, said the company.

The tribunal found that the worker’s disability was significant following the termination of her employment, as evidenced by her diagnoses. It also found that participating in the criminal investigation and the workers’ compensation claim in the months after her firing resulted in “further disability associated with re-living the alleged abuse repeatedly retriggering her condition.” The aggravation of her conditions led to her having “insufficient capacity to learn about the human rights complaint process and file this complaint,” said the tribunal.

The tribunal also noted that the worker provided evidence that while she was unemployed and struggling to find work, access to legal advice was not easy for her. Given the extent of the worker’s disability and financial vulnerability, there was some public interest in allowing the complaint to proceed, the tribunal said.

A BC employer must pay a former worker more than $38,000 for sexual harassment and discrimination she suffered at the hands of her boss.

Different issues in human rights proceeding

As for the criminal case and the workers’ compensation claim, the tribunal found that the human rights issues in the complaint would be approached differently by the tribunal than in the other proceedings, as the purpose and focus were different. The human rights claim raised “numerous serious arguable contraventions of the code that have not been dealt with in other forums,” the tribunal said, noting that the worker was uniquely vulnerable in comparison to most human rights cases involving employment.

“I also agree that it is in the public interest to encourage the reporting of sexual harassment and assault in the workplace to further the purposes of the code, and allowing the complaint to proceed late filed would assist to accomplish this goal,” said the tribunal. “Finally, I agree… that the tribunal has not recently addressed the issue of antisemitic harassment in detail and accepting this complaint would give the tribunal the opportunity to reassess the discrimination currently faced by Jewish persons in the workplace.

The complaint was allowed to proceed. See Cohen v. Amplified AV Solutions and another, 2023 BCHRT 79.