By Norm Keith and Anil Nair
A recent decision by the Human Rights Tribunal of Ontario (HRTO) provides guidance regarding time limits for filing a claim of discrimination. In Yu v. Workplace Safety and Insurance Board, the issue was when the one-year limitation period starts and how it should be interpreted to provide fairness and certainty for all workplace stakeholders.
Time limitations exist in all Canadian human rights laws, and therefore, this decision may have importance in all jurisdictions across the country.
This case also clarifies the difference between alleged active, ongoing discrimination and allegations of past discriminatory acts. It is a welcome decision by the HRTO that will encourage prompt reporting and timely resolution of claims of discrimination. The decision also clarified the important legal issue of when allegations of past unlawful discrimination may, and may not, constitute a new incident of alleged discrimination to be considered by the HRTO.
Background
The Applicant was trained as a computer engineer in China and moved to Canada in 2005. He had a limited grasp of the English language but obtained a job as a general labourer. In May 2006, the worker suffered a workplace injury and was unable to continue working in that occupation. He applied for and received workers’ compensation loss of earnings benefits because of his injury.
During his recovery, the worker was placed in a labour market re-entry plan. In that plan assessment, it was determined by a return-to-work specialist that the worker was suited for employment as a retail salesperson. The Applicant was provided with a paid course of 25 weeks of English language training. The Applicant did not finish the language training and subsequently, once he was working in the retail store, was dismissed for poor performance.
This dismissal for poor performance took place in April 2011. However, the dismissal did not change the view of the Workplace Safety and Insurance Board (WSIB) that the Applicant was suitable for a position in retail sales. Therefore, it was determined that it was the worker, and not the employer, who had failed to meet his return-to-work obligations. As a result of this decision, his loss of earnings benefit was reduced accordingly. The Applicant challenged this ruling four times; however, the WSIB did not agree and did not increase his benefits.
Sometime later, in April 2020, the Applicant filed an application before the HRTO against the WSIB, alleging discrimination based on “place of origin.” The Applicant and his lawyer submitted that the failure to accommodate his language barrier constituted unlawful discrimination. The WSIB brought a preliminary motion to dismiss the complaint on several grounds, including timeliness. It argued that the periodic reviews of the Applicant’s benefits were the continuing effects of its 2011 decision rather than new incidents of alleged unlawful discrimination.
Decision of HRTO
The HRTO focused its decision on the legal meaning of the phrase “continuing contravention.” A “continuing contravention” requires a succession or repetition of discrete acts of discrimination of the same character—not merely one act of discrimination with continuing effects or consequences.
Applying this guidance to the facts, the Tribunal held that the allegation that the statutorily mandated review of his benefits was discriminatory was actually a “continuing effect” of the initial decision in April 2011. Therefore, since the most recent allegations of unlawful discrimination were not new, they were well past the one-year limitation period, and the claim failed on that basis.
Key employment stakeholder takeways
This decision establishes that where there is one act of discrimination with potential continuing effects, the one-year limitation period will not restart or reset after the occurrence of a continuing effect. Also, more generally, if there is any doubt about whether an employer’s actions or decisions amount to unlawful discrimination, the employee must act promptly in asserting their claim with the HRTO.
Time limitations are critical for certainty and fairness in the employment relationship. Complaints that may linger for more than a decade should not be easily turned into legal proceedings. Although the time limitation for commencing a wrongful dismissal action is two years and the time limitation for an Ontario human rights application is one year, the concept of restricting claims to a certain time limitation is well known to employment law counsel. Therefore, another general takeaway from this HRTO decision for all workplace stakeholders is that a prompt and informed review of any employment dispute, by both employees and employers, is always recommended.
Norm Keith is a partner and Anil Nair is an associate in the Employment & Labour Practice of KPMG Law LLP, in their Toronto office.
