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Human Rights Tribunal of Ontario Reconsiders Test for Continuing Breaches of the Code

Posted On: January, 21 2015

In a recent decision, Garrie v. Janus Joan Inc., the Human Rights Tribunal of Ontario (“HRTO”) has clarified the principles related to determining the limitation period for discrimination claims involving a series of discriminatory incidents that are more than one year old.

The Code creates a one year deadline for filing an application with the HRTO.  Normally, an individual must bring his or her application within one year of the alleged breach of the Code.  If there was a series of discriminatory incidents, the application must be filed within one year of the last incident.

There has been significant confusion in the HRTO’s case law as to what constitutes “a series of discriminatory incidents.”  It has been difficult for respondents and applicants to predict whether a case involving a series of incidents that commenced more than one year prior to the application filing date will be found by the HRTO to be outside of the limitation period and out of time.

In some cases, the HRTO has found that repeated and ongoing discrimination constitutes a series of incidents, and therefore the filing deadline begins to run from the date of last incident.

In other cases, the HRTO has held that the one year limitation begins to run from the first discriminatory event.  In these cases, the HRTO has found that the subsequent incidents were merely the “continuing effects” of initial incident of discrimination.  When the conduct that is being complained about is merely a continuing effect of an initial discriminatory incident, the application will be dismissed if the first incident occurred outside of the one year filing deadline.

This issue was front and centre in the Garrie v. Janus Joan Inc. case.  The Applicant, Ms. Garrie, claimed that she had been underpaid by her employer between the 1990s and 2009 because of her developmental disability.  In an initial ruling, which was subsequently overturned, the HRTO held that the pay discrimination claim was 10 years out of time.  According to the Vice Chair, the practice of paying a lower wage to developmentally disabled employees did not constitute an on-going series of discriminatory incidents.  Rather, it was one act of alleged discrimination commencing in the late 1990s, which had continuing effects until the applicant’s employment ended in October 2009.  Because Ms. Garrie’s ongoing pay discrimination claim first occurred in the 1990s, her claim was dismissed for being out of time.

The HRTO agreed to reconsider the decision, and the reconsideration was heard by a panel which released its decision on October 15, 2012.  In the reconsideration ruling, the HRTO held that the earlier adjudicator got it wrong.  According to the panel, each pay period, in which the applicant was paid $1.25 per hour, compared to non-disabled employees, who received minimum wage, constituted an independent discriminatory act.  The Applicant was therefore entitled to make a claim for pay discrimination in 2009, going one year back from the filing date of her application.

The HRTO also set out a new test for distinguishing between and incident of discrimination and its continuing effects.  First, the Tribunal will consider whether the last conduct complaint of could, on its own, support a finding of discrimination.  Second, the tribunal will inquire as to whether the series of incidents in question each involve “fresh steps” taken by the parties, each step giving rise to a separate alleged breach of the Code.  Finally, the tribunal will consider when the consequences of the alleged discrimination manifest for the applicant.

In Ms. Garrie’s case, according to the HRTO, while the decision to pay her $1.25 per hour because of her disability ultimately stemmed from a 10 year old employment contract, her wage rate was not a static issue, and involved the fresh and ongoing exchange of labour for pay during each pay period.

As a result of the October 15 reconsideration decision, Ms. Garrie’s pay discrimination claim has been remitted back to the previous Tribunal Adjudicator for a re-hearing.

 

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