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Human Rights (Ont) - Limitations. Donovan v. Human Rights Tribunal of Ontario
In Donovan v. Human Rights Tribunal of Ontario (Div Court, 2023) the Divisional Court considered a JR against an HRTO decision that the bringing of a 'Contravention of Settlement' ("COS") had been brought past the applicable limitation period:Statutory Framework
[28] Section 45.9(3) of the Code states that COS applications must be brought within six months of the contravention or, if there was a series of contraventions, within six months after the last contravention in the series. Subsection (4) states that a person may apply under subsection (3) after the expiry of the time limit under that subsection “if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.”
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Issue One: Was it unreasonable for the HRTO to find that the First Breach of the Resignation Agreement alleged by the Applicant was untimely?
[42] The timeliness issue was raised by the HRTO. While the Police Respondents did not challenge the timeliness of the Applicant’s contravention of settlement allegations at the preliminary hearing, the HRTO is the master of its own process and is entitled to take any action that it determines appropriate, including on its own initiative.[13]
[43] The Code requires that COS applications be filed: (a) within six (6) months after the contravention to which the application relates; or (b) if there was a series of contraventions, within six (6) months after the last contravention in the series.[14]
[44] In the Reconsideration Decision, the Applicant took no issue with the finding in the Preliminary Hearing Decision that she did not meet the criteria in s.45.9(4) of the Code for establishing that the delay was incurred in good faith and no substantial prejudice will result. Accordingly, the only issue with respect to the timeliness of the Applicant’s allegations on this judicial review is whether they are a “series of contraventions” within the meaning of s. 45.9(3)(b) of the Code.
[45] The Applicant argued that it was unreasonable for the Member to apply caselaw about what constituted a “series” under s.34.1(b) of the Code to s.45.9(3)(b) of the Code. The sections are reproduced below:Application by person
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
Late applications
34 (2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
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Application where contravention
45.9 (3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),
(a) within six months after the contravention to which the application relates; or
(b) if there was a series of contraventions, within six months after the last contravention in the series.
Late applications
45.9 (4) A person may apply under subsection (3) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. [46] Section 34(1) addresses infringements under the Code while s. 45.9(3) addresses contraventions of human rights settlements. Apart from different time limitation periods, in both provisions, late applications may be accepted under identical circumstances: “a series” of incidents or contraventions.
[47] As noted in the Reconsideration Decision, giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation. In the Decisions, the term “series” in s.45.9(3)(b) was given the same meaning as the HRTO has given the word in a large body of HRTO decisions when interpreting s.34(1) (b). The same principles that are applied to whether allegations relate to a “series of incidents” under s.34(1)(b) were applied to whether the Applicant’s two alleged contraventions of settlement are a “series of contraventions” under s.45.9(3)(b).
[48] The Applicant relied on City of Toronto v. Grange[15] for the proposition that once a final incident is found to be timely, all other incidents are presumed to be timely. In Grange the HRT adjudicator found that in the case of allegations of systemic racial discrimination there was no compelling reason to inquire into the timeliness of the various historic allegations prior to hearing evidence on the merits of the claim. The adjudicator declined to dismiss claims as untimely on a preliminary application. This decision was not a final decision and this court declined to review it. It does not assist the Applicant.
[49] The Applicant further relied on Twyne v. Dominion Colour Corporation,[16] which held that a “series of incidents” may be considered to exist where the incidents share a common theme, similar parties and/or circumstances.
[50] In this case, the Vice Chair did not find a common theme or similar circumstances to the Applicant’s two contraventions of settlement allegations. Instead, the Vice Chair found that the two allegations were based on discrete and separate facts that engaged different terms of the Resignation Agreement. The HRTO has jurisdiction to determine all questions of fact or law that arise in an application before it.[17] There is nothing unreasonable about this finding.
[51] The case of McFarlane v. The Regional Municipality of Peel Police Services Board[18] was decided by the HRTO after the Decisions under review here. In McFarlane, the HRTO referred to three prior decisions (in addition to referring to the Decisions under review here) which support that s.45.9(3) should be interpreted similarly to s.34 (1) and (2). Paragraph 51 states:“The Tribunal has a large body of jurisprudence which sets out the general principles on how the Tribunal interprets the limitation period under ss. 34(1) and (2) of the Code for Applications alleging discrimination under the Code. That jurisprudence has been imported into the interpretation of the limitation period under ss. 45.9(3) and (4) of the Code for Applications alleging a contravention of a settlement of an Application. See for example, The Regional Municipality of Waterloo Police Services Board v. Donovan, 2022 HRTO 1409; Regional Municipality of Waterloo Police Services Board v. Donovan, 2023 HRTO 276; Moore v. Canadian Memorial Chiropractic College, 2018 HRTO 1495; Young-Chin v. P.J. O’Brien Irish Pub and Restaurant, 2013 HRTO 1421; and, Freitag v. Penetanguishene (Town), 2012 HRTO 1644. [52] There was nothing unreasonable in the Vice Chair giving the same words the same meaning throughout the statute and importing the caselaw under s.34.1(b) of the Code to s.45.9(3)(b) of the Code.
[53] For a “series of contraventions” to be established within the meaning of section 45.9(3) of the Code, the HRTO considers the following factors:1) What is the last alleged incident of discrimination to which the Application relates?
2) Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
3) What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents or contraventions of a similar nature or character?
4) What is the temporal gap between alleged incidents of discrimination?[19] In respect of factor 3, the HRTO will consider the nature of events and whether they may reasonably be viewed as a pattern of conduct or are comprised of incidents or contraventions relating to discrete and separate issues without some connection or nexus. The HRTO will also consider whether incidents share a common theme and whether they involve similar parties or circumstances. To establish a series of incidents or contraventions, it is not enough for an applicant merely to rely on separate incidents that are alleged to be discrimination on the same ground or are separate breaches of an agreement.[20]
[54] There is no error in the determination that the Applicant’s allegations of contravention of settlement on December 21, 2017, and January 11, 2018, did not constitute a series of contraventions. The determination is in accordance with the HRTO’s long established jurisprudence. The Applicant’s two contravention of settlement allegations against the Police Respondents are based on discrete and separate facts that engaged different terms of the Resignation Agreement. The Applicant’s first allegation of contravention (i.e. former Chief Larkin’s affidavit in the proposed class action) is grounded upon an alleged breach of the confidentiality provisions of the Resignation Agreement as the Applicant herself characterized it in her Request for an Order During Proceedings dated May 24, 2022. The Applicant’s second allegation of contravention (i.e. the WRPSB’s alleged appeal of her WSIB claim) is grounded upon a different factual matrix and is rooted in an alleged violation of the release provisions of the Resignation Agreement. The Applicant herself acknowledges that her claim for relief is for “two distinct and separate contraventions of the [Resignation] Agreement”.[21]
[55] The Applicant’s assertion that the alleged contraventions of settlement on December 21, 2017, and January 17, 2018, form a “series” is based upon nothing more than the fact that they both involve alleged breaches of the Resignation Agreement. This is insufficient to show that the Decisions were unreasonable.[22]
[56] The Applicant’s COS Application was commenced on July 27, 2018. This is over seven (7) months following the Police Respondent’s alleged breach of the Resignation Agreement on December 21, 2017, and, as such, is contrary to section 45.9(3)(a) of the Code.
[57] The Decisions are internally coherent, rational, and justified in relation to the facts and the law that constrained the Vice Chair and meet the standard of reasonableness. . Chen v. Western University [you can access the case cites by number through the main link]
In Chen v. Western University (Div Court, 2022) the Divisional Court considered the "series of incidents" time limitation of s.34(1) of the HRC:[2] The commencement of an application does not bring with it an absolute right to a hearing on the merits; there are some limits. Where, as in this case, an application is brought forward by a “person” the legislation requires that it be commenced within a year of the incident or incidents on which it is founded:34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. [3] ....
[45] What is a “series of incidents”:…in order to constitute a “series of incidents” within the meaning of s. 34(1) of the Code, there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues.[60]
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In my view, all of the allegations raised by the applicant in the new Application share this common theme [the experience of being marginalized as a racialized employee and the reprisals in response to having filed a human rights complaint against the respondents] which provides a sufficient connection or nexus between these allegations to support a finding that they all form a “series of incidents” within the meaning of s. 34(1)(b).[61]
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…recent Tribunal decisions have held that a series cannot be comprised of incidents relating to discrete and separate issues.[62]
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