Delay locks up rights case of corrections officer

Tardy filing showed lack of good faith

Aggrieved employees sometimes use human rights commissions as their “courts” of last resort: when they have failed to find relief in other forums, they lodge a rights complaint.

Because of the backlogs at the commissions, court procedural rules, and the generally higher monetary awards provided by courts and arbitrations, it can be strategically sound to at least suspend a rights complaint. But leaving it until last can mean it is dismissed for delay.

That recently happened to George Riches, who had worked as a corrections officer. In October 1995, Riches lost his job on the grounds that he harassed others and was generally unprofessional. He grieved through his union, claiming that his behaviour was caused by illness, but the grievance was dismissed by the arbitrator and on appeal.

While the arbitration was on appeal, Riches complained to the British Columbia Human Rights Commission that his employer (unidentified in the decision) had discriminated against him because of a disability.

The commission’s delegate dismissed the complaint without investigation, finding that Riches filed the complaint more than one year after the alleged discrimination and that the arbitrator had dealt adequately with the substance of the complaint.

Riches filed additional material, requesting that the commission reconsider his complaint, and the delegate invited him to provide further information concerning his delay in filing. Riches forwarded a letter that he had obtained through the provincial Freedom of Information and Protection of Privacy Act, but the delegate again dismissed his complaint without investigation, reasoning that the employer had been prejudiced by the delay.

Riches requested yet another reconsideration, alleging the employer had concealed the letter from him fraudulently, but a new delegate, Chris Finding, again dismissed the complaint.

Finding held that the first delegate had lacked jurisdiction to re-open the complaint and that her original dismissal was not in error. Finding determined that Riches lacked good faith in the tardy filing of his complaint, even after other forums for his case had closed to him.

Seeking judicial review of that determination, Riches argued before the British Columbia Supreme Court that the delegates lacked jurisdiction for their decisions and improperly fettered their discretion by adopting commission practice that an inordinate delay carried a presumption of bad faith where the complainant had brought parallel proceedings.

The court has dismissed Riches application, holding that Finding appropriately applied an objective test to the question of Riches’ good faith or lack of it. Finding, the court has said, considered all of the relevant factors, including Riches’ claim of mental illness, and made a decision that was not only reasonable but correct.

The court added that it was not improper for Finding to consider the commission's past practice or policy respecting delay, and there was ample evidence to support his determination.

Contrast and compare: Note that, as we reported on Oct. 20, 1999, the Ontario Divisional Court recently was quite liberal on the bad-faith filing issue in human rights complaints.

Although a litigant had settled a wrongful dismissal action with her employer and signed a release saying that was the end of the matter, the court held that it was not bad faith for her to breach the release by making a human rights complaint.

For more information:

Riches v. British Columbia (B.C.H.R.C.), Nanaimo docket 21084, Nov. 2/99.

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