REASONS FOR DECISION TIMELINESS OF COMPLAINT Section 22

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1 Indexed as: Courquin v. Inuktun Services Ltd., 2017 BCHRT 166 IN THE MATTER OF THE HUMAN RIGHTS CODE R.S.B.C. 1996, c. 210 (as amended) AND IN THE MATTER of a complaint before the British Columbia Human Rights Tribunal Date Issued: August 3, 2017 File: BETWEEN: Craig Courquin COMPLAINANT AND: Inuktun Services Ltd. RESPONDENT REASONS FOR DECISION TIMELINESS OF COMPLAINT Section 22 Tribunal Registrar and Member: Advocate for the Complainant: Counsel for the Respondent: Steven Adamson Mabel Mardell Michael Korbin

2 I INTRODUCTION [1] On March 22, 2017, Craig Courquin filed a complaint against Inuktun Services Ltd. [Inuktun], alleging discrimination in the area of employment based on physical disability, contrary to s. 13 of the Human Rights Code [Code]. [2] Since Mr. Courquin s complaint may have been filed outside the six-month limitation period under s. 22 of the Code, the Tribunal sought submissions from the parties concerning the complaint s timeliness. I have considered all of their submissions with the exception of the further submission provided by the Respondent. Given the outcome of my decision below, I did not find it necessary to consider the Respondent s application for further submissions. The issue before me is whether to accept the complaint for filing. I make no findings of fact regarding the merits of this complaint. II BACKGROUND TO COMPLAINT [3] Mr. Courquin had a two-decade career as a machinist. He was employed by Inuktun in January [4] At the end of October 2014, Mr. Courquin notified his supervisor of the lingering effects of medications he was taking while at work for his chronic back and neck pain associated with a degenerative back condition. Mr. Courquin states his request for a shorter work week to try and lessen the amount of pain medication he had to take was granted on October 30, [5] Mr. Courquin states that in February 2015 his back and neck condition worsened to point where he notified management staff at Inuktun of his concern that the effects of him taking pain medication might put himself and others at work in danger. He notes that by October 2015 he needed to take pain medication daily to cope with his problem. [6] On October 1, 2015, Mr. Courquin states he broke out in an extreme sweat and experienced rapid heart palpations. He says that when he reported this to management he was sent home without receiving first aid. Further, the next day when he presented his employer 1

3 with a doctor s note requiring a month off because of his injury, Inuktun allegedly responded by issuing a record of employment [ROE] with an expected date of recall for October 30, [7] On October 30, 2015, Mr. Courquin met with his supervisor, a production manager and the payroll administrator at Inuktun. He was asked about his fitness to return to work. Following the meeting he was sent an ROE, dated October 19, 2015 indicating shortage of work as the reason for layoff with an unknown recall date. [8] Sometime in October 2015, a senior official at Inuktun, Colin Dobell, called Mr. Courquin to allegedly confirm that he would not be permitted to return to work until he had a doctor s note indicating he was free of the prescribed pain medications. Mr. Courquin states Mr. Dobell called him a drug addict and told him he knew how to deal with people like him. [9] A third ROE, dated January 22, 2016, indicated Mr. Courquin was permanently laid off work at Inuktun because of a shortage of work. When he spoke to Mr. Dobell about the situation that day, Mr. Courquin states he was offered six weeks of work because the company was so far behind. However, Mr. Courquin says he had to turn Mr. Dobell down because he could not guarantee his ability to show up for work regularly because of his need to take pain medications. [10] Mr. Courquin reports having problems applying for his employment insurance [EI] benefits because of the numerous ROEs that were issued by Inuktun. After waiting months for his EI benefits to be approved, they were received and continued until October [11] With the aid of his mother, sister, a close friend, an advocate other than the one listed on this complaint, and a representative from a local Member of Parliament s office, Mr. Courquin applied for medical Canada Pension Plan [CPP] benefits in March 2016 and undertook multiple appeals of the decision to deny him such benefits until they were granted in March III ANALYSIS AND DECISION [12] Section 22 of the Code provides: (1) A complaint must be filed within 6 months of the alleged contravention. 2

4 (2) If a continuing contravention is alleged in a complaint, the complaint must be filed within 6 months of the last alleged instance of the contravention. (3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that: (a) it is in the public interest to accept the complaint, and (b) no substantial prejudice will result to any person because of the delay. [13] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62, 2003 BCHRT 39. IV TIME LIMIT [14] The complaint was filed on March 22, To comply with the six-month time limit under s. 22(1) of the Code, the alleged act of discrimination would have to have occurred on or after September 22, The last alleged discrimination event in this case occurred on January 22, 2016, when Inuktun terminated Mr. Courquin s employment permanently. As such, this complaint is late filed and I therefore proceed to an analysis of whether the Tribunal should exercise its discretion to accept this complaint outside the six-month time limit because it is in the public interest to do so and no substantial prejudice will result to any person because of the delay. I will start with the public interest determination. A. Public interest [15] Whether it is in the public interest to accept a late-filed complaint is a multi-faceted analysis. The enquiry is fact and context specific, and assessed in accordance with the purposes of the Code: Hoang v. Warnaco and Johns, 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 [Mzite] at para. 53. These are important factors, but not necessarily determinative: Goddard v. Dixon, 2012 BCSC 161 at para. 152; Mzite at para

5 [16] The length of the delay in this case is approximately eight months, which is significant and weighs heavily against accepting the complaint for filing in the public interest: A v. X. and others, 2013 BCHRT 46 at para. 32. [17] Mr. Courquin set out a number of reasons for his delay in filing this complaint. He admits that he did not know about the possibility of filing a complaint with the Tribunal and focused his limited resources pursuing his CPP benefits entitlement as the only viable source of income when his EI ran out. It appears that he did not learn about his ability to file a human rights complaint against Inuktun until meeting with his current advocate in December At that time he chose to pursue his CPP benefits because the advocate s mandate did not extend to human rights complaints assistance. He also appears to have also chosen to pursue the CPP benefits to ensure a future source of income. Finally, he appears to have opted for pursuing the CPP benefits because he was under the impression that starting a human rights matter required him to spend money hiring a separate advocate. [18] While appreciating Mr. Courquin s candour in admitting his lack of knowledge about his protections under the Code and the time limits for filing a complaint as a reason for his delay, ignorance of the Code, or the time required to become aware of one s rights, is generally not an acceptable reason, on its own, for the delay in filing: Rashead v. Vereschagin (No. 2), 2006 BCHRT 74, at para. 12; Ferrier v. British Columbia Automobile Association, 2009 BCHRT 412, at para. 31. For the reasons set out below concerning disabilities and the public interest, I have concluded that Mr. Courquin has not offered any reasons to depart from this general rule. [19] Mr. Courquin may also be arguing that his pursuit of his CPP benefits should be considered as a factor in the public interest to accept his late filed complaint with Tribunal. While appreciating Mr. Courquin quite rationally focused his attention on obtaining medical CPP benefits over the course of a one year period between March 2016 and 2017 to secure a stable source of income, I conclude this reason for delay does not strengthen the public interest in allowing the complaint to proceed. The Tribunal has repeatedly said that pursuing another process does not suspend the time limit under the Code and that exhausting internal avenues and resources is not sufficient, on its own, to relieve against the time limit: Sones v. District of 4

6 Squamish, 2016 BCHRT 99, at para. 44 and Devitt and Hargrove obo others v. School District No. 43 and another, 2011 BCHRT 218, at paras [20] Another reason for Mr. Courquin s delay is related to his ongoing back problem and the effects of his medication on his ability to file. Where a delay is due to a disabling condition, the Tribunal has observed that it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth, 2011 BCHRT 29, at para. 42 and Naziel-Wilson v. Providence Health Care and another 2014 BCHRT 170 at para. 13. [21] The June 28, 2016 opinion from Dr. Dalla Lana sets out Mr. Courquin s limitations from activities involving extending his arms out in front of him or standing for more than half an hour without exacerbating his pain symptoms. He also notes Mr. Courquin s confusion and disorientation associated with the use of medical marijuana. In Dr. Dalla Lana s opinion, Mr. Courquin s physical limitations prevent him from working as a machinist or any work that requires him to stand or sit for any significant length of time. He also noted his condition limited him at home and with all of his leisure activities. He does not elaborate on which activities Mr. Courquin was disabled from performing. [22] The July 5, 2016 note from Mr. Courquin s sister set out her observations of his limitations. She observed him not sleeping more than two to three hours at a time and his inability to sit through a meal. She noticed Mr. Courquin s short term memory was failing as he repeated conversations they previously held. He could not make it through a movie without falling asleep and sometimes his eyes glazed over while speaking to her in mid conversation. Mr. Courquin s sister stated he had great difficulty making a decision about anything and was always second guessing himself. [23] While there is no doubt Mr. Courquin has a significant back and neck condition, as evidenced by the existence of his medical CPP benefits award, I have determined there is not enough evidence of him being disabled from filing his complaint such that the public interest would be engaged. In making this decision, I have considered the evidence from Dr. Dalla Lana, which indicates limitations from work involving prolonged sitting, standing and extended arm use without commenting on Mr. Courquin s ability to start a complaint. I also note his sister s 5

7 observations with regard to Ms. Courquin s limited abilities at home, which are likely related to his chronic pain and related medication. In the end, however, I cannot accept that he was unable to file his human rights complaint in circumstances where he demonstrated his ability to file a CPP medical benefits application and appeals during the same relevant timeframe for filing this complaint with the Tribunal. While not doubting the limitations Mr. Courquin had in starting a complaint, I am not convinced that his disability was such that he could only start the CPP benefits application process and not pursue a human rights complaint at the same time. I make this decision while recognizing Mr. Courquin s actions also included the need to reach out for assistance from many individuals in order to pursue his CPP benefits. As such, Mr. Courquin s physical disabilities and effects from taking pain medication do not attract the public interest in allowing his late filed complaint to proceed. [24] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others, 2014 BHCRT 10 at para. 22; Bains v. Advanced Air Supply and others, 2013 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others, 2010 BCHRT 224 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code, this is a factor that may be considered in weighing the public interest in accepting the complaint: Mzite at paras The Tribunal has taken into account gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mzite at para. 67. [25] Mr. Courquin is seeking justice for the alleged discrimination in this employment and physical disability complaint. He also blames Inuktun s multiple ROEs for much of the delay and need to fight for his EI and CPP benefits as a distraction from pursuing his rights under the Code. While not doubting his sincerity in this pursuit, I am not satisfied there is anything unique, novel or particularly unusual about this case where the Tribunal routinely considers complaints of this nature. His case is ultimately about a common type of employment discrimination involving physical disability, the jurisprudence about which is fairly settled: Edwards v B.C. Ltd. and another (No. 2), 2015 BCHRT 59. 6

8 [26] Considering all of the circumstances, I am not persuaded that it is in the public interest to accept the late-filed complaint. Given this conclusion, it is not necessary to address the issue of whether there would be any substantial prejudice. V CONCLUSION [27] For these reasons, the complaint is not accepted for filing. 7