[1]            LOWRY J.A.: Linda Roulette appeals from an order made 8 July 2003 dismissing her petition for judicial review, of a decision of the Human Rights Commissioner of Investigation and Mediation. 

[2]            A Commission Delegate decided a complaint Ms. Roulette made against Camosun College should be dismissed because her delay in filing the complaint would cause substantial prejudice.  The question now is whether the learned chambers judge erred in concluding as he did that the Delegate’s decision was not, in the circumstances, patently unreasonable such that there was no basis for the court to interfere.

[3]            Ms. Roulette is a First Nation’s woman who was a student at Camosun College.  In June 2000 she complained to the college about being harassed by another female student.  She made subsequent complaints in the fall of that year.  The complaints were investigated by the Assistant Manager of College Safety.  She was assisted by the Human Rights Equity and Mediation Coordinator.  When the investigation was concluded, Ms. Roulette was informed that no evidence of any conduct amounting to harassment had been found. 

[4]            In January 2001, the Manager of College Safety issued a behaviour protocol to both Ms. Roulette and the other student involved designed to minimize their contact with each other.  Both students left the College three months later in April 2001 and did not return. 

[5]            Ms. Roulette considered that the investigation the College conducted was inadequate and that it failed to take adequate steps to protect her from harassment. 

[6]            A year later, in April 2002, she made a complaint to the Provincial Ombudsman concerning the way her complaints had been addressed by the college.  That office conducted an investigation.  In December 2002, Ms. Roulette was given a summary of the investigation which concluded as follows:

… we found no evidence to support the allegation that College officials had failed to address the complainant’s concerns.  We considered that officials adhered to the College’s guidelines and that the complainant was given ample opportunity to be heard.  She was offered a wide range of services and what seemed to be a serious attempt to address her concerns. 

[7]            In February 2003, Ms. Roulette made a complaint to the Human Rights Commission apparently contending that the way in which the College had dealt with her complaints of harassment amounted to discrimination because of race.  The actual complaint was not included in the record before the chambers judge and is not before us. 

[8]            Ms. Roulette was informed by a Complaints Analyst that, because the alleged human rights violations were said to have occurred more than a year before, the Commission could dismiss the complaint by virtue of the provisions of the Human Rights Code R.S.B.C. 1996, c. 241.  In particular he quoted s. 27 and drew attention a subsection 1(g):

The commissioner of investigation and mediation may, at any time after a complaint is filed, dismiss all or part of the complaint if that commissioner determines that any of the following apply:

…

(g)   the contravention alleged in the complaint or that part of the complaint occurred more than one year before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22(3).

Section 22(3) provides:

The commissioner of investigation and mediation may accept a complaint filed after the expiration of the time limit referred to in subsection (1) or (2) if that commissioner determines that

(a)   the delay in filing the complaint was incurred in good faith, and

(b)   no substantial prejudice will result to any person because of the delay.

[9]            The Complaints Analyst pointed out that Ms. Roulette had been sent a complaint form in June 2002 but had not completed it and filed it with the Commission until eight months had passed.  He asked that she promptly submit any further information that she had with respect to the timeliness of her complaint. 

[10]        Ms. Roulette responded, but her response was not put before the chambers judge. 

[11]        On 4 March 2003, the Commission Delegate informed Ms. Roulette that she had decided the complaint was to be dismissed.  She said that she found no suggestion of bad faith on the part of Ms. Roulette in respect of the late filing of her complaint but the delay would cause substantial prejudice. 

[12]        Ms. Roulette then made the application for judicial review of that decision that is the subject of this appeal.  The affidavit evidence filed establishes that the whereabouts of the student who Ms. Roulette alleged harassed her is now unknown to the college and the Assistant Manager of Safety who investigated Ms. Roulette’s complaint is no longer employed by the college or living in this province.  After effectively stating that the decision taken by the Commission Delegate was one to be accorded the greatest deference as a matter of Administrative Law, the chambers judge concluded at paragraph 8 of his judgment:

In this case, I conclude that the decision is not patently unreasonable.  Indeed, from the mere passage of time, in the context of the facts of this case, it is apparent to me that there would be a substantial prejudice caused by the delay.  In these circumstances, I do not propose to grant the remedy sought by the petitioner…

[13]        Ms. Roulette contends that the chambers judge erred for two reasons.  She first says that there was no evidence and no submission made by the college to the Commission to the effect that it would be prejudiced by the delay.  She then says that she was not allowed any opportunity to explain why it would not be prejudiced. 

[14]        In my view, to the extent that what Ms. Roulette says is correct, it does not render the Delegate’s decision patently unreasonable.  Ms. Roulette was directed to the governing legislation and invited to make such representations to the Commission with respect to the timeliness of her complaint as she wished.  She responded as she saw fit. 

[15]        Given that Ms. Roulette’s response was not before the chambers judge, I do not see how he can be said to have erred in his conclusion about the Delegate’s disposition of the complaint.  In any event, considering that upwards of two years had passed from the time the discriminatory conduct is alleged to have occurred, and having regard for the nature of the complaint in all the circumstances, it cannot be said that it was not entirely open to the Delegate to conclude that the delay was inherently prejudicial to the College.  It certainly cannot be said that her decision was so clearly unsupportable on the information before her that it was patently unreasonable.

[16]        I find no error in the judgment of the chambers judge and I would dismiss the appeal.

[17]        FINCH C.J.B.C.: I agree.

[18]        HUDDART J.A.: I agree.

[19]        FINCH C.J.B.C.:  The appeal is dismissed.

"The Honourable Mr. Justice Lowry"