Date Issued: June 26, 2024

File: CS-007074

Indexed as: Cooper and another (by Cooper) v. BC Ministry of Children

and Family Development 2024 BCHRT 197

2024 BCHRT 197 (CanLII)

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

BETWEEN:

Shelliea Cooper and Jesse McGhee

COMPLAINANTS

AND:

His Majesty the King in Right of the Province of British Columbia as represented by the
Ministry of Children and Family Development
RESPONDENT

REASONS FOR DECISION

TIMELINESS OF COMPLAINT
Section 22

Tribunal Member: Steven Adamson

Legal Advocate for the Complainants: Amy Schwab

Counsel for the Respondent: Jaclyn Salter

I INTRODUCTION
[1] On April 4, 2022, Shelliea Cooper and Jesse McGhee filed a group complaint of
discrimination in employment based on Indigenous Identity, race, colour, ancestry and place of

2024 BCHRT 197 (CanLII)

origin contrary to s. 13 of the Human Rights Code [Code], against the His Majesty the King in
Right of the Province of British Columbia as represented by the Ministry of Children and Family
Development [MCFD].

[2] The issue before me with respect to timeliness is whether to accept their complaints
against the MCFD. I make no findings regarding the merits of the complaints.

[3] For the reasons that follow, I find that the complaint brought by Mr. McGhee cannot
proceed as it does not contain any arguable contraventions of the Code, and the complaint
brought by Ms. Cooper can proceed as it is in the public interest to accept the late filed
complaint for filing.

II BACKGROUND
[4] Ms. Cooper and Mr. McGhee are Indigenous employees of the MCFD. Ms. Cooper and
Mr. McGhee are life partners with children.

[5] Ms. Cooper is a social worker with more than two decades of work experience. She
holds a social work degree with specialization in child welfare from the University of Victoria.
Ms. Cooper was employed as a Guardianship, Resource and Out of Care Options, Team Leader
in northern British Columbia. The complaint information appears to be silent on the details of
Mr. McGhee’s work experience, qualifications, and education.

[6] Ms. Cooper and Mr. McGhee started working for the MCFD in the mid 2010s. Both
allege generally that they were subjected to various forms of racism, discriminatory behaviours
and comments. This included management treating them differently because of their
Indigeneity. Ms. Cooper and Mr. McGhee allege they were spoken down to as if they were less
important than other staff, referred to as transient and unstable because of their Indigenous
background, targeted as being bullies for speaking up about workplace mistreatment and
racism, subjected to Indigenous racism in the workplace that was mislabeled as being conflicts,

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and not culturally supported or safely supported to express their Indigenous values in the
workplace.

[7] Mr. McGhee alleges that he left the workplace as of early 2018 for reasons related to

2024 BCHRT 197 (CanLII)

mental disability. He says that his psychiatrist told him not to return to work where he is
subjected to various forms of racism, discriminatory behaviours, and comments.

[8] Ms. Cooper alleges the following specific discrimination allegations while working at the
MCFD:

• August 2015 – informed her supervisor about incidents of racism in the workplace
without any follow up actions occurring.
• December 23, 2015 – notified supervisors that she overheard predominantly non-
Indigenous talking about bullying her. Staff also allegedly questioned her credentials
and professional experience in her role as team leader. She alleges that a staff person
yelled at her.
• June 28, 2017 – reported to management incidents of workplace gossip and racism.
Staff allegedly made comments about her training and professional qualifications.
Where other staff were not treated in this way, she allegedly felt targeted by this
mistreatment based on her Indigeneity.
• June 6, 2019 – emailed MCFD ethics advisor to report her direct supervisor, Ms. F,
director of operations, mistreated her for reasons related to her Indigenous identity.
She alleges Ms. F dismissed her complaints about staff targeting her and did not treat
her fairly by labeling what occurred at work as harassment as opposed to racism.
• January 29, 2020 – alleges Ms. F failed to support her return to work following a
medical leave by treating her differently from non-Indigenous co-workers. She alleges
Ms. F made allegations about her performance and gave her a “hard time” rather than
supporting her return to work.
• January 30, 2020 – alleges reporting to her supervisors by email that her co-workers
talked in front of her about a previous Indigenous director of operations being a “token
Indian” who was terminated from her position for reasons related to her Indigeneity.

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 She allegedly informed supervisors that she had developed anxiety because of the toxic
workplace culture towards Indigenous employees and Indigenous people generally.
• March 6, 2020 – reports being inappropriately chastised by a male supervisor for
referring to herself as an Indian in a meeting related to her concerns about racism and

2024 BCHRT 197 (CanLII)

poor treatment by co-worker’s related to her Indigeneity.
• March 9, 2020 – reports by email to supervisor that she is off work due to stress
related illness associated with workplace discrimination. Says some of these comments
affecting both herself and Mr. McGhee were based on Indigenous stereotypes of being
a drunk, being racist against those of European decent, being a witch, and being in an
open relationship. She also alleges some staff refused to get into a vehicle with her.
• April 2020 – alleges a non-Indigenous co-worker posted a racist Facebook message
stating that smudging was from the devil, Indian culture was witchcraft, and that
Indigenous traditional ceremony was screaming and yelling that involved not knowing
what you are saying and calling on the devil. She alleges staff knew that the posting
was a complete disregard for her as an Indigenous team leader.
• July 15, 2020 – she informed Ms. F that a group of her social worker colleagues were
speaking negatively about Indigenous people at a conference by stating Indigenous
people invented the term “lateral violence” because they had so few resources. She
also informed Ms. F that staff proceeded to share a video making fun of Indigenous
people over lunch at the conference.
• December 17, 2020 – received a suspension letter from MCFD’s acting executive
director, Mr. T, that referenced her multiple allegations of workplace discrimination as
deflecting and attempting to blame others, who were mostly her direct reports, for her
actions. She alleges that Mr. T, who is non-Indigenous, also scolded her about calling
herself an Indian when providing responses during workplace investigations.

III ANALYSIS AND DECISION

[9] Section 22 of the Code provides:

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 (1) A complaint must be filed within one year of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint
must be filed within one year of the last alleged instance of the
contravention.

2024 BCHRT 197 (CanLII)

(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.

[10] 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.

A. Time Limit and Arguable Contraventions

[11] The complaint was filed on April 4, 2022. To comply with the one-year time limit under
s. 22(1) of the Code, the alleged act of discrimination had to occur on or after April 4, 2021. To
assess the timing of each complainant’s allegations, it is necessary to first establish that they
have set out allegations of discrimination related to MCFD’s negative treatment in the
workplace where their Indigenous identity, race, colour and place of origin was a factor in the
harms alleged: Moore v. British Columbia (Education), 2012 SCC 61 at para 33.

[12] I start with a review of Mr. McGhee’s complaint details. His complaint alleges that he
was subjected to various forms of racism, discriminatory behaviours, and comments. Mr.
McGhee says he was subjected to Indigenous identity discrimination while working at the
MCFD, which included management treating him differently because of his Indigeneity. Mr.
McGhee alleges he was spoken down to as if he was less important than other staff, referred to
as transient and unstable because of his Indigenous background, targeted as being a bully for
speaking up about workplace mistreatment and racism, subjected to Indigenous racism in the
workplace that was mislabeled as being conflicts, and not culturally supported or safely
supported to express his Indigenous values in the workplace.

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[13] Without doubting the seriousness of Mr. McGhee’s allegations and the negative effects
his experience had on his mental health, I conclude that he has not sufficiently particularized
his allegations such that they can be accepted for filing in this complaint. In a complaint
spanning multiple years that is subject to the timeliness of filing considerations, not having any

2024 BCHRT 197 (CanLII)

specific information as to when these events occurred, what was said, and who was involved
renders the events too vague to be accepted for filing. To allow that would make it overly
difficult for the MCFD to know the case that is being made against them in this complaint. In
reaching this conclusion, I am satisfied that Mr. McGhee had an opportunity to provide the
necessary complaint details as he was represented by a legal advocate in commencing the
complaint and the need for specific details was raised by the MCFD in its complaint response
without being subsequently addressed in any significant way in Mr. McGhee’s reply. In these
circumstances, Mr. McGhee’s complaint is not accepted for filing and his complaint is now
closed.

[14] I have next considered whether Ms. Cooper’s complaint contains arguable
contraventions of the Code. In contrast to her partner’s complaint, the jointly filed complaint
form sets out specific details of her allegations in numbered paragraphs from one to eleven. In
my view, Ms. Cooper’s first three allegations from 2015 and 2017 are sufficiently particularized
as they contain dates for each occurrence and details about reporting Indigenous identity
racism in the workplace to management that went unaddressed. While Ms. Cooper did not
particularize the alleged incidents of racism related to her co-workers, I am satisfied that she
has set out arguable contraventions of the Code related to reporting such events to
management on three occasions for the purposes of this decision on timeliness.

[15] From my review of Ms. Cooper’s allegations, I am further satisfied that she has set out
allegations of discrimination for the period from June 2019 until she was suspended from work
in mid December 2020. These allegations numbered four to eleven, all include dates of
incidents and contain sufficient details about who was involved and what transpired to
constitute arguable contraventions of the Code. I am satisfied that all these enumerated
allegations contain the necessary elements of MCFD’s negative treatment of Ms. Cooper in the
workplace where her Indigenous identity, race, colour and place of origin was a factor in the

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harms alleged. While the MCFD argued Ms. Cooper’s suspension in mid December 2020 was
unrelated to her allegations because it involved performance issues only, I note Ms. Cooper
references a specific allegation of discrimination related to Mr. T chastising her for referring to
herself as an Indian at the time of her suspension. I further note that her suspension for

2024 BCHRT 197 (CanLII)

performance related issues fits with a pattern of allegations accusing the MCFD of transforming
her discrimination allegations into allegations against her related poor performance.

[16] The latest specific allegations of discrimination with respect to Ms. Cooper’s complaint
occurred on December 17, 2020. As recognized by Ms. Cooper, her complaint is late-filed and I
proceed to an analysis of whether the Tribunal should exercise its discretion to accept the
complaint outside the one-year 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: Code s. 22(3). I begin with
the public interest determination.

B. Public Interest for Ms. Cooper’s Complaint

[17] Whether it is in the public interest to accept the 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
they are not necessarily determinative: Goddard v. Dixon, 2012 BCSC 161 at para. 152; Mzite at
para. 55.

[18] I have first considered the length of delay in filing. As noted above, the allegations of
discrimination in Ms. Cooper’s complaint occurred from 2015 until her suspension from work
on December 17, 2020. As such, the complaint allegations range from over five years to just
under four months late. A four-month delay is significant, but not inordinate if other factors
militate in favour of acceptance: Attew v. Ministry of Public Safety and Solicitor General
(Corrections Branch) and another, 2021 BCHRT 170 at para. 19; Bell v. BCGEU Local 801 and
others, 2012 BCHRT 108 at para. 43; Levett v. The Breakwater Café and Bistro and

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another, 2016 BCHRT 181 at para. 10; Dyck v. Fraser Heights Funeral Home and another, 2016
BCHRT 16 at para. 12.

[19] Ms. Cooper provided several reasons for her delay. First, she submits her delay is related

2024 BCHRT 197 (CanLII)

to the time it took to obtain free legal services from the community legal clinic which assisted
her in filing her complaint. One aspect of this delay is related to the limited services that were
provided by the clinic during the recent pandemic. I accept that at the relevant time for filing,
the free community legal clinic in question’s ability to serve clients would most likely have been
limited to some extent for reasons related to the pandemic. Like other organizations, the clinic
most likely faced challenges with staff effectively working remotely and providing remote
services to clients. Secondly, Ms. Cooper submits the wait times for accessing free community
legal services, whether during the pandemic or not, are lengthy given the limited resources of
these organizations and the massive public demand for their services. She argues accessing
justice for Indigenous complainants is an ongoing challenge, especially low-income Indigenous
women. I accept that Ms. Cooper’s delay in filing her complaint with the assistance of a
community legal clinic attracts some public interest in allowing her late filed complaint to
proceed. In reaching this conclusion, I appreciate that getting access to free legal assistance in
filing a human rights complaint is very challenging and takes a considerable amount of time,
which was likely exacerbated by the recent pandemic’s negative effect on the clinic’s ability to
serve clients.

[20] Ms. Cooper also submits her mental and physical disabilities contributed to her delay in
filing this complaint. She notes ongoing health issues left her unable to work such that she went
onto long-term disability benefits as of June 24, 2021. Ms. Cooper describes ongoing disability
that includes anxiety, depression, and chronic pain. She references a doctor’s note in February
2021 that states her anxiety rendered her unable to work. Given her disabilities during the
timeframe for filing and beyond, Ms. Cooper argues that she was delayed in being able to reach
out for legal support and initiate a complaint.

[21] Where the 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. Disabling conditions can include physical
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and mental ailments resulting in great difficulty coping with even the basic daily tasks of
life: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 21. In this
case there is no reason to question Ms. Cooper’s own evidence related to her level of disability
precluding her from accessing the legal resources necessary to file a complaint. I am satisfied

2024 BCHRT 197 (CanLII)

that Ms. Cooper’s mental and physical disabilities contributed to her delay in filing sufficiently
to attract the public interest in allowing her late filed complaint to proceed.

[22] Ms. Cooper also identified the fear of retaliation by the MCFD as a reason for her delay.
Section 43 of the Code protects individuals against retaliation for filing a complaint. With this
protection in place, I find fear of potential retaliation generally does not militate towards
accepting a late-filed complaint as being in the public interest: Mullholland v. City of
Vancouver, 2015 BCHRT 170 at para 52; Fehr and another v. Alexander Laidlaw Housing Co-
operative, 2012 BCHRT 232 at para 16; and Kafer v. Sleep Country Canada and another, 2013
BCHRT 137 at para 29. In this case, Ms. Cooper has not provided any information indicating her
general fear of being retaliated against for filing a complaint with the Tribunal attracts the
public interest. As such, fear of retaliation for filing a complaint is not a factor weighing in
favour of allowing Ms. Cooper’s complaint to proceed late filed.

[23] 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, 2012 BCHRT
74 at para. 22; Mathieu v. Victoria Shipyards and others, 2010 BCHRT 244 at para. 60. Where a
complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of
the Code, this factor may weigh in favour of finding a public interest in accepting the
complaint: Mzite at paras. 65-66. The Tribunal has considered 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.

[24] Ms. Cooper is seeking justice from the MCFD in relation to allegations of Indigenous
identity racism. She argues that race-related grounds of discrimination involving Indigenous
people is of significant public interest because Indigenous people are disproportionately
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negatively impacted due to the historic and current impacts of Colonialism in Canada. Ms.
Cooper further submits Indigenous identity discrimination in the workplace is of public interest
as the perception of Indigenous people in the workplace is impacted negatively by Colonialism
such that they are viewed as unqualified, blue-collar, interim workers with very few possessing

2024 BCHRT 197 (CanLII)

the necessary economic, educational, and social status to acquire professional or administrative
white-collar jobs. She argues her case includes this type of Indigenous identity racism in the
workplace component that renders it novel for the Tribunal’s consideration. Finally, Ms. Cooper
argues the novelty of her case is more broadly related to the child welfare system and its
discrimination against Indigenous people who make up 52% of the children in foster care, but
only 7.7% of the child population of the country. The public interest in this case is further
derived from the need to ensure those working at the MCFD administering the foster care
system do not exhibit acts of blatant discrimination against Indigenous co-workers. Ms. Cooper
argues that allowing such discrimination to continue creates the potential for cultural harm and
other forms of mistreatment in the context of the social work conducted by the MCFD.

[25] I am satisfied that Ms. Cooper’s case raises a novel issue on behalf of a vulnerable
group, which advances the purposes of the Code. This case is not simply about discrimination in
the workplace involving Indigenous identity allegations. Ms. Cooper’s allegations of Indigenous
identify discrimination in the workplace involve an organization that plays a critical role in the
welfare of Indigenous children and their families. In my view, such a case involving the
protection of MCFD’s Indigenous client base from racism by its employees is novel. Here, the
nature of the complaint attracts the public interest in allowing it to proceed late.

[26] After weighing all the factors, I have decided it is in the public interest to allow Ms.
Cooper’s late filed complaint to proceed. I appreciate that her complaint is approximately four
months late for the key allegations leading up to her suspension and up to five years for her
earlier allegations. I also do not see her fear of retaliation as a reason for her delay capable of
attracting the public interest. However, in this case I accept the Ms. Cooper experienced delay
in filing related to accessing community legal advocacy resources. I also accept that her mental
and physical disabilities resulted in some delay in filing in time. Both these reasons attract the
public interest in allowing the late filed complaint to proceed. Finally, I find that the nature of

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Ms. Cooper’s complaint is novel since it involves Indigenous identity racism allegations against
those operating the MCFD’s system of child welfare services to the Indigenous community.

[27] It is now necessary to address the issue of whether any substantial prejudice would

2024 BCHRT 197 (CanLII)

result.

C. Substantial Prejudice

[28] Ms. Cooper argues no party will experience substantial prejudice if her complaint is
allowed to proceed. She notes the MCFD have not identified any specific witness who may be
unavailable or whose memory may have faded, or any documents which have been misplaced
or destroyed. Ms. Cooper argues it is not open to the Tribunal to infer substantial prejudice
without receiving the necessary information and evidence from the MCFD.

[29] The MCFD argues substantial prejudice will occur in this case as the allegations occurred
between 16 months and seven years prior to the filing of the complaint. They submit that since
2018 many of the workers in the MCDF location in question have moved on, such that it cannot
be guaranteed former employee witnesses can be located, and if so, will be able to speak to the
events since so much time has passed. The MCFD also agues many of the allegations involve
discussions and comments that will require witness testimony to corroborate as opposed to
documentary evidence. The MCFD also argues some of the allegations involve documents that
are not in its control or are so vague that that it will take extensive work to identify those
involved and figure out who needs to be contacted. In these circumstances, the MCFD submits
that allowing the complaint to proceed will result in substantial prejudice to it as a party to this
complaint.

[30] In my view, no substantial prejudice would result to the MCFD in this case because of
the delay. The MSFD’s concerns regarding the negative effects of delay are mainly focused on
identifying and locating witnesses in relation to the allegations identified by Ms. Cooper. While
not particularized perfectly, I am satisfied the identities of witnesses and the relevant events
they were involved with have been sufficiently laid out by Ms. Cooper such that their evidence
can be obtained without substantially prejudicing the MCFD. I do not doubt marshalling this
evidence will be more challenging as many potential witnesses are no longer associated with

10
the MCFD, but in my view having to put in more effort does not reach the level
of substantial prejudice in this case. Ms. Cooper’s allegations indicate the existence of email
and other digital and documentary evidence that can be used to refresh the memories of those
witnesses the parties call to testify. I also suspect, given that she was suspended from work and

2024 BCHRT 197 (CanLII)

is now on long-term disability, that the MCFD has a significant personnel file that can be drawn
on for documentary evidence in this case. As such, I have determined Ms. Cooper has satisfied
the burden of establishing both elements under s. 22(3) of the Code and I cannot conclude that
the MCFD would suffer substantial prejudice.

IV Conclusion

[31] For these reasons, the complaint by Mr. McGhee is not accepted for filing and the
complaint by Ms. Cooper is accepted for filing.

Steven Adamson
Tribunal Member

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