In the Matter of the Human Rights Code R.S.B.C. 1996, c. 210 (as amended)
In the Matter of a complaint before the British Columbia Human Rights Tribunal
Saranya Scheumann, Complainant and Ron Hardman, Zeenat Mohamed, Kari Yuers, Ron Yuers, and Kryton Canada Corporation, Respondents
Humphreys Member
Judgment: August 19, 2003
Docket: None given.
2003 BCHRT 49
Counsel: Wendy Liew, for Complainant
Ib S. Petersen, for Repondents, Zeenat Mohamed, Kari Yuers, Ron Yuers and Kryton Canada Corporation
Humphreys Member:
Background
1 The Complainant, Saranya Scheumann, filed a Complaint with the B.C. Human Rights Commission (the “Commission”) in which she alleged that the Respondents, Rod Hardman, Zeenat Mohamed, Kari Yuers, Ron Yuers, and Kryton Canada Corporation (”Kryton”) discriminated against her regarding the terms and conditions of her employment and refused to continue to employ her because of her sex (sexual harassment), contrary to s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210, as amended (the “Code”). The Complaint alleges that Mr. Hardman sexually harassed the Complainant, and that Zeenat Mohamed, Kari Yuers and Ron Yuers, respectively the office manager, the president, and the chairman of Kryton, condoned the discrimination and refused to continue to employ the Complainant when they learned she was going to complain to the personnel manager.
Applications
2 Zeenat Mohamed, Kari Yuers, Ron Yuers and Kryton applied to the Tribunal to dismiss the Complaint because it is out of time, or, in the alternative, to strike out Zeenat Mohamed, Kari Yuers and Ron Yuers (”the individual Respondents”), or to order the Complainant to specify the remedies she is seeking against the individual Respondents.
Submissions on behalf of the individual Respondents and Kryton (the “applicants”)
3 The date of the last alleged contravention was November 14, 2001, the date of the Complainant’s dismissal. The Complaint was date-stamped by the Commission on December 30, 2002. Before the recent amendments proclaimed in effect on March 31, 2003, the Code provided that complaints had to be filed within one year of the date of the last alleged contravention. That time limit could be extended if the delay was incurred in good faith and there would be no substantial prejudice resulting from the delay.
4 The applicants submit that the Complaint was past the one-year time limit when it was filed with the Commission. They are not aware of any decision to extend the time limit, nor did they have an opportunity to make any submissions regarding an extension of the time limit, before the Complaint was transferred to the Tribunal.
5 The applicants refer to s. 28 of Bill 64, which states that, unless it was dismissed or otherwise settled or withdrawn, a complaint that was filed with the Commission under s. 21 of the Code on or before March 31, 2003 is continued as if it were a complaint filed within the time limit of the Tribunal. They say that this section cannot mean that an untimely complaint at the Commission before March 31, on which no decision was made to extend the time limits, becomes a timely complaint before the Tribunal, especially given the fact that Bill 64 has shortened the time limit for filing a complaint. They submit that the Tribunal cannot remedy the Commission’s failure to address the timeliness of the Complaint.
6 Alternatively, the applicants say that the recent amendments to the Code reduced the time limit for filing a complaint to six months. Addressing the criteria now in s. 22(3) of the Code, the applicants say that there has been no explanation for the delay, there is no public interest in accepting the Complaint, and that they have been prejudiced by the delay because the passage of time generally affects witnesses’ memories and employees with relevant information may no longer be employed by Kryton. Furthermore, Kryton no longer employs the alleged harasser, Ron Hardman, and his whereabouts are unknown.
7 Finally, the applicants submit that that Complaint should be amended to strike out Zeeta Mohamed, Kari Yuers and Ron Yuers because they are employees of Kryton.
Complainant’s Response
8 The Complainant responds that there is no timeliness issue because she first submitted her Complaint to the Commission on November 8, 2002, within the one-year time limit then in effect. She attached correspondence from the Commission dated December 3, 2002, which referred to submissions received from the Complainant on November 8. The Complainant also points out that the Complaint makes reference to November 8 as the date of submissions.
9 The Complainant notes that the applicants did not provide any argument with respect to their application that the Tribunal should strike out the names of the individual Respondents. The Complainant submits that there is no basis for the Tribunal to grant this request.
Applicants’ Reply
10 The applicants reply that it is clearly stated in the Commission’s December 3 letter to the Complainant that her November 8 submissions were not accepted as a complaint. The Commission did not accept the Complaint until December 30, as demonstrated by the date stamp. Furthermore, this is the date on which the Complainant signed her Complaint. The applicants say that parties must be able to rely on the date stamp as official proof of filing.
Analysis and Decision
11 The Complainant made submissions to the Commission concerning a sexual harassment complaint on November 8, 2002, within the one-year time limit. However, the Commission required further information before her Complaint was accepted in its present form on December 30, 2002.
12 In Pinocchio’s on Third & Columbia Inc. v. British Columbia (Council of Human Rights) (1988), 11 C.H.R.R. D/60 (B.C. S.C.) at para. 7, the Court said that it was the first written instrument submitted which set the human rights process in motion. Applying that decision to the facts in this case would mean that, for the purposes of determining whether the Complaint was out-of-time, the submissions of the Complainant on November 8 would have set the Commission process in motion, even though it was officially not accepted as filed until December 30. This may explain why the Commission did not consider it to be out-of-time, and is likely the reason the Commission did not seek submissions with respect to the one-year deadline.
13 In these circumstances, the Complaint is properly before the Tribunal. In any event, the Tribunal does not have supervisory jurisdiction in respect of the Commission — it is not for the Tribunal to determine whether the Commission erred in its treatment of the Complaint.
14 I agree with the submissions of the applicants that the transfer of a complaint from the Commission to the Tribunal pursuant to s. 28 of Bill 64 does not cure a complaint that was filed out of time.
15 I now turn to deal with the applicants’ alternate submission that the Complaint is out of time at the Tribunal because the deadline for filing a complaint has been reduced to six months by Bill 64. However, the six-month period is not an absolute bar to filing a complaint. Section 22(3) of the Code provides the Tribunal with discretion to accept a complaint after six months if it is the public interest to do so and no substantial prejudice will result to any person because of the delay.
16 In the event s. 22(3) of the Code is applicable to this Complaint, the applicants say that it is not in the public interest to accept the Complaint and that they have been substantially prejudiced by the delay.
17 Whether or not it is in the public interest to accept a complaint filed after the time limit is to be decided in light of the purposes of the Code as set out in s. 3 and will depend on the circumstances of the case. Taking into account the factors in s. 3, and the Complainant’s efforts to file her Complaint with the Commission in a timely manner, I am satisfied that it is in the public interest to proceed with the Complaint.
18 The applicants have referred to the passage of time generally impacting memories and to the fact that relevant witnesses may no longer be employed by Kryton. In my view, neither of these amounts to actual prejudice. Regarding Mr. Hardman, while he is no longer employed at Kryton and his whereabouts may be unknown, the applicants do not detail any specific efforts they have made to locate him. In these circumstances, I am satisfied that the applicants have not demonstrated that they have suffered substantial prejudice.
19 For these reasons, the application to dismiss the Complaint is denied and, pursuant to s. 22(3) of the Code, I accept the Complaint.
20 The applicants have also applied to have the individual Respondents struck from the Complaint because they are employees of Kryton.
21 In Primack v. Azim Enterprises Co. (1991), 14 C.H.R.R. D/150 (B.C. Human Rights Council), the complainant was sexually harassed by one of the owners of a restaurant. The complainant spoke to the other owner, the harasser’s brother, about the harassment on more than one occasion; he did nothing. When the complainant told the harasser’s brother that she would go to the police if he did not tell his brother to stop harassing her, he told her that, if she went to the police, she would lose her job. The decision found both brothers liable, one for sexually harassing the complainant and the other for making the complainant’s submission to the harassment a condition of her employment.
22 In my view, the allegations in this Complaint are distinguishable from Primack. The Complainant alleges that she was sexually harassed by Mr. Hardman. She says that she spoke to many other employees at Kryton about Mr. Hardman’s behaviour, but not to any of the individual Respondents. More specifically, she states that when, at the beginning of her employment, Ms. Mohamed asked her if Mr. Hardman was bothering her, she did not tell Ms. Mohamed about Mr. Hardman’s sexual harassment.
23 The Complainant alleges that Kari Yuers condoned the harassment because she heard Ms. Yuers in conversation with two other individuals refer to a sexual harassment lawsuit in a joking manner. The Complainant has also alleged that Ms. Yuers “may have overheard” her discussing the harassment with Ms. Yuer’s assistant because Ms. Yuer’s “door was usually ajar most of the time.” In my view, even if the Complainant were to prove that Ms. Yuers referred to a sexual harassment lawsuit in a joking way and that Ms. Yuers may have overheard a conversation between her assistant and the Complainant about Mr. Hardman’s conduct, these facts would not be sufficient to establish that Ms. Yuers contravened the Code by discriminating against the Complainant because of her sex.
24 The Complainant does not provide any specific allegations against the other individual Respondents other than to allege that they must have known that she was going to complain about the sexual harassment. She says that the individual Respondents terminated her employment without fair notice or cause and without giving her a written or verbal warning. I am also of the view that this allegation, if proven, would not amount to a contravention of the Code.
25 Therefore, pursuant to s. 27(1)(b) of the Code, I dismiss the Complainant’s allegations against the individual Respondents. Mr. Hardman and Kryton remain as Respndents.