Continuing Contravention of the Code

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Date Retrieved:	2024-11-23
CLNP Page ID:	2408
Page Categories:	[Human Rights]
Citation:	Continuing Contravention of the Code, CLNP 2408, <https://rvt.link/c->, retrieved on 2024-11-23
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)

[37] In some instances regarding the provision of services, the distinction between an incident of discrimination and its continuing effect is even more difficult to draw. For example, in Clarke v. Canadian Blood Services, 2011 HRTO 411, the Tribunal held that the respondent’s ongoing refusal to accept blood donations from the applicant did not amount to a series of discrimination but rather arose from a single incident, the decision to ban her blood donations in 2002. In Mafinezam v. University of Toronto, 2010 HRTO 1495, the Tribunal held that an ongoing exclusion from a university pursuant to a trespass notice did not constitute a series of incidents within the meaning of section 34(1). It held instead that the issuance of the trespass notice was the last alleged incident of discrimination and that the ongoing exclusion of the applicant from campus was a continuing effect of this single incident of discrimination.

[38] In our view, while there have been different trends in the Tribunal’s developing application of Visic, supra, a number of non-exhaustive principles emerge, which help to identify the distinction between an incident of discrimination and its continuing effects.

[39] First, as the Divisional Court stated in Visic, supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

[40] Second, the Tribunal looks to when the allegedly discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code. This interpretation flows from the court’s language in Visic, supra. It also finds support in the arbitral jurisprudence, which has generally held that, even where the conduct complained of has continuing effects, there is no series of incidents unless the respondent takes a fresh step that could constitute a separate breach of the collective agreement. See Port Colbourne General Hospital (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett).

[41] Thus, allegations concerning a discrete, non-continuing violation (such as the imposition of discipline or the failure to promote or hire) may have ongoing consequences but, without more, do not amount to a series of incidents within the meaning of the Code because they do not involve any fresh steps taken past the initial alleged incident of discrimination. Similarly, without more, the fact that a respondent maintains a decision it has already taken does not involve a fresh step, nor does it give rise to a separate breach of the Code. See, for example, Longtin, supra.

[42] Third, the Tribunal has also considered when the consequences of the alleged discrimination are manifest for the applicant. For example, in cases where a respondent has terminated an applicant’s employment, the Tribunal has generally applied Visic, supra, to mean that the limitation period runs from the date the employment relationship ends: Longtin, supra. This is because, while a failure to provide a particular payment or benefit may be ongoing beyond the end of the employment relationship, the consequences of severing it are generally manifest as of the date of termination. In such cases, the Tribunal has not interpreted the ongoing failure to provide a benefit or payment upon termination as a series of fresh events. The termination of the employment relationship is the act which is discriminatory rather than the ongoing payments.

[43] There is generally a distinction between sums paid to an employee following the end of an employment relationship and ongoing issues regarding wages paid for work being performed. In the former case, as we have indicated, the alleged discrimination arises out of a decision to end the employment relationship and the consequences of that decision are generally manifest upon termination. Although the consequences of severing the employment relationship may be ongoing, neither party takes fresh steps and the employee’s entitlements are usually known to him or her at or about the time of termination. In contrast, while they may ultimately stem from an employment contract, issues of ongoing wage payment are not static. As we have already explained, they involve the fresh and ongoing step of exchanging labour for pay.

conclusions regarding the series of incidents

[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.