Continuing Contravention of the Code

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Date Retrieved:	2024-09-21
CLNP Page ID:	2408
Page Categories:	[Human Rights]
Citation:	Continuing Contravention of the Code, CLNP 2408, <https://rvt.link/c->, retrieved on 2024-09-21
Editor:	P08916
Last Updated:	2024/09/05

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Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC)

[41]Assuming but without deciding, that the University’s policy is discriminatory, does the continuing effect of the policy constitute a new act of discrimination whenever a transcript is requested?

[42] In my view it does not, as the Commission reasonably decided.

[43] In Bourne v. Ontario (Human Rights Commission), [1997] O.J. No. 5253 (Div. Ct.), the complainant alleged that the respondent's manner of dividing a pension surplus contravened and continued to contravene a provision of the Code.

[44] This Court rejected the submission that there was a continuing contravention:

…

What the complaint referred to as continuing contraventions of the Code, were but continuing effects or consequences flowing from a notional split of the surplus. It was therefore open to the Commission to conclude the complaint was made more than six months after the facts occurred on which it was based.

[45] Of like effect is Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117 at para. 19 (C.A.). The complainants complained that the Manitoba legislation of compulsory retirement at age 65 was discriminatory. The Court had to determine whether the complaints were out of time and the issue of a "continuing contravention" was addressed. The Court held there was none:

To be a 'continuing contravention', there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences.

[46] The reasoning in the Manitoba Human Rights Commission decision was applied in Lynch v. British Columbia (Human Rights Commission), 2000 BCSC 1419 (CanLII), [2000] B.C.J. No.1999 (S.C.); O'Hara v. British Columbia (Human Rights Commission), 2002 BCSC 559 (CanLII), [2002] B.C.J. No.887 (S.C.); and Callaghan v. University of Victoria, [2005] B.C.H.R.T. 589.

[47] In Callaghan, part of the complaint was based on the fact of the student's disability, her failed year, and the continued reflection of the failed year in her transcript.

[48] In Lynch, the complaint was based on an allegation that Simon Fraser University, the complainant’s employer, discriminated against him in failing to take account of his psychiatric disability when he returned to work following a layoff. He was ultimately dismissed from his employment. His complaint was held to be out of time, the events not being a succession or repetition of separate acts.

[49] In O’Hara the complainant alleged that he had a physical disability and that the province had discriminated against him by failing to hire him on several occasions. It was held that there was not a continuing contravention and that he was out of time in all but two of his complaints.

[50] Applying the reasoning in Manitoba H.R.C. and in Bourne, I conclude the decision of the Commission was not only reasonable but correct. The allegations were not those of a continuing contravention of the Code, rather of continuing effects or consequences.

Garrie v. Janus Joan Inc., 2012 HRTO 1955 (CanLII)

[44] In our view, the ongoing wage differential between the applicant and labourers who did not have a developmental disability is a series of incidents within the meaning of the Code. We find that the Decision misapplied Visic, supra. We believe that the Vice-chair erred in concluding that the ongoing practice of paying the applicant less than other employees who did not have developmental disabilities was a single act of alleged discrimination. Rather, it was an ongoing series of allegedly discriminatory payments for work performed on a series of occasions, continuing up to a date less than one year prior to the filing of the Application.

[45] Accordingly, applying the principles set out above, we find that the last incident of discrimination is the applicant’s last pay period.

[46] As we have indicated, the Decision finds that the applicant’s employment was terminated on October 26, 2009. She filed this Application on November 12, 2009. Having concluded that the ongoing wage differential constitutes a series of incidents within section 34(1) of the Code, we find that the applicant’s allegations in regard to the wage differential were filed within one year of the last incident of alleged discrimination and are therefore timely.