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Limitations - Administrative. 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. . Sharma v. Allstate Insurance
In Sharma v. Allstate Insurance (Div Ct, 2022) the Divisional Court considered (and granted) a limitation-issue appeal under the Licence Appeal Tribunal Act (here, involving an MVA claim issue):Legal principles
[15] Section 7 of the LAT Act grants the Tribunal the jurisdiction to extend the limitation period that is set out in s. 56 of the SABS: see Fratarcangeli v. North Blenheim Mutual Insurance Company, 2021 ONSC 3997, at para 61.
[16] In determining if an extension of time should be granted pursuant to s. 7 of the LAT Act, four (4) factors are to be considered, namely the bona fide intention to appeal within the time limit, the length of delay, the prejudice to the other party, and the merits of the appeal: see Manuel v. Registrar, Motor Vehicle Dealers Act, 2012 ONSC 1492 at paras. 14 to 17.
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Error #1 - Did the Tribunal apply the correct legal principle regarding the length of delay criterion?
[28] In the Preliminary Issue Decision, the Tribunal was concerned with Ms. Sharma’s lengthy delay in the filing of her application. At paragraph 21 of the decision, the Tribunal wrote:The applicant filed this appeal within 3 days of receiving the AB file and is asking to extend the limitation period by 5 days. From the applicant’s perspective, this may seem like a short length of delay, but this perspective fails to account for the significant time gap between the end of the mediation process at FSCO and the filing of this application. [29] In the Reconsideration Decision, the Tribunal remained concerned with Ms. Sharma’s lengthy delay and found that the entire delay (end of the FSCO mediation to Ms. Sharma’s application to the Tribunal) could be considered. The relevant passages are found at paragraphs 22 and 23 of the Reconsideration Decision:…I see no reason why the overall delay in filing an application cannot be considered during the analysis and the applicant provided no specific reference to any caselaw to support her position.
If I am wrong, I find the caselaw is unsupportive of the applicant’s position. Specifically, Manuel notes that a short delay does not automatically entitle the application to an extension of the limitation period… [30] Recently, in the Fratarcangeli decision[1], at para. 89, this Court concluded that the first two years ought not to be considered in any assessment of delay:It is clear from Manuel [Manuel v. Registrar, Motor Vehicle Dealers Act, 2012 ONSC 1492], at para. 26, that the delay to be considered is the delay in filing the appeal. Vice-Chair Kershaw considered the delay that occurred in the context of the FSCO mediation that did not take place, and the subsequent closure of FSCO's file. She concluded that the LAT erred when, in determining the delay, it took into account that almost two years had elapsed between North Blenheim's denial and the Respondents' request for a mediation with FCSO. Vice-Chair Kershaw observed that the Respondents appealed the denials within the prescribed two-year timeframe and that the prior two years ought not to be considered in any assessment of delay. [31] The Tribunal erred in law by applying the incorrect legal principles. In both the Preliminary Issue Decision and the Reconsideration Decision, the Tribunal focused its analysis on the period starting with the date of the denial, as opposed to focusing on the period starting from the expiry of the limitation period.
[32] In every instance where an analysis is being undertaken in accordance with s. 7 of the LAT Act, the applicable limitation period to a SABS dispute is two years. Within that two-year period, an applicant to a SABS dispute has the statutory right to appeal the insurer’s decision. Because of this statutory right to appeal, it is incorrect in law to factor this two-year period in its analysis to extend the limitation period. The proper consideration is the length of delay that is beyond the two-year anniversary of the insurer’s denial.
[33] While the Tribunal was correct in stating that a short delay does not automatically entitle an applicant to an extension of the limitation period, an applicant is entitled to have his or her case assessed based upon the correct length of delay. In the case at bar, Ms. Sharma was entitled to have the Tribunal undertake an analysis based upon a delay of five (5) days, rather than 735 days.
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Error #2 - Did the Tribunal apply the correct legal principle regarding the prejudice criterion?
[35] In both the Preliminary Issue Decision and Reconsideration Decision, the Tribunal found that there is an inherent prejudice to Allstate because of Ms. Sharma’s lengthy delay in filing her application. The Tribunal further noted that defending untimely claims that are long passed the insurer’s initial denial is prejudicial because of the difficulty in locating, producing, and relying upon experts and other evidence that may no longer be available.
[36] In Fratarcangeli, this Court confirmed that the prejudice to be considered is the one that exists beyond the limitation period. At paragraph 95, the Court writes:Manuel (at paras. 31-32) makes it clear that the prejudice to be considered is the prejudice to the Appellant "as a result of the delay that would have resulted from the extension of the appeal period" and that the prejudice must go beyond the "general institutional need for respect of the rules and deadlines".[2] [37] The Tribunal’s focus of the prejudice was clearly on the period dating back to Allstate’s denial of the NEB, referring to Ms. Sharma’s delay as “long”. The Tribunal should have considered the actual prejudice that resulted from Ms. Sharma’s five (5) days delay in filing her application.
[38] We find that the Tribunal applied the wrong legal test in assessing Allstate’s prejudice. This represents an error of law. . Sharma v. Sandhu
In Sharma v. Sandhu (Div Ct, 2020) the Divisional Court clarifies when discoverability applies to various administrative limitations:[20] At para. 37 of Peixeiro v. Haberman 1997 CanLII 325 (SCC), [1997] S.C.J. No. 31 the Supreme Court of Canada held that the discoverability rule is an interpretative tool for the construing of limitations statutes and ought to be considered each time a limitations provision is in issue. The court adopted the following passage from Fehr v. Jacob (1993) 1993 CanLII 4407 (MB CA), 14 C.C.L.T. (2d) 200 (Man. C.A.):…When time runs from the “accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party has knowledge of the injury sustained, the judge-made discoverability rule applies. But, when time runs from an event which clearly occurs without regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature has prescribed. [21] Section 57(2) sets the time from which the clock runs from a precise event, namely, the date the tenant vacates the rental unit. The starting of the clock is in no way dependent upon the state of the tenant’s knowledge. It follows that the discoverability rule cannot be used as proposed by the appellants to extend the one-year period prescribed by the legislature. Note: The court dismisses the application of the Limitations Act on the basis of RTA 3(4) ['conflicts resolved in favour of the RTA'], however Limitations Act s.2 ['Application'] makes it clear that the Limitations Act only applies to "court proceedings", a much clearer resolution.
. Wall v. Office of the Independent Police Review Director
The case of Wall v. Office of the Independent Police Review Director (Ont CA, 2014) considered the interesting issue of when and if the limitations principle of 'discoverability' applies to the many and varied timelines set out in administrative law statutes. Here the context was a provision in the Police Services Act which read [s.60(2-3)]:60(2)
The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred.
(3) In making a determination under subsection (2), the Independent Police Review Director shall consider,(a) whether the complainant is a minor or is under a disability within the meaning of the Accessibility for Ontarians with Disabilities Act, 2005;
(b) whether the complainant is or was subject to criminal proceedings in respect of the events underlying the complaint; and
(c) whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with. The Director had refused a complaint that was past this six month mark without giving any discernible reasons. While making it plain that each case where the issue arose would turn on the specific wording of the timeline provision and the purpose of the legislation, the court held in this case that discoverability did play a role in the Director's consideration under both the general s.60(2) provision and the s.60(3) public interest consideration.
The court stated:[28] As explained below, I am persuaded that the Director is required by the scheme and language of the Police Services Act and principles of fairness to take into account discoverability principles when exercising his s. 60 function.
[29] “Discoverability” is the term used – usually in the limitation period context – to describe the principle that a time limit ought not to begin to run against a complainant until the moment when the complainant knew, or ought reasonably to have known, that he or she had the basis for a complaint. In essence, it is a fairness principle, designed to balance the need for finality against exposure to liability by potential defendants, and the need to avoid an injustice to the individual seeking to assert legitimate claims that were unknown to him or her before the time expired.
[30] The Director argues that the Divisional Court erred by incorporating this concept into the operation of s. 60(2) of the Police Services Act.
[31] I disagree. There are three principal reasons why the timing of when a complainant knew (or ought reasonably to have known) that there was a basis for a complaint is a factor the Director is required to consider when exercising his functions under s. 60(2) of the Act. First, there is nothing in the Act that indicates discoverability is excluded from the Director’s consideration. Secondly, the overall scheme of Part V of the Act favours the notion that complaints are generally to be dealt with. Thirdly, s. 60(3) of the Act requires the Director to consider the public interest.
[32] The view that discoverability must be taken into account is consistent with the scheme set out in Part V of the Act. Part V provides for the supervision and treatment of complaints made to the Director by members of the public concerning police policies, services or conduct, and the disciplinary proceedings that may or may not flow from those complaints. Section 26.2(a) of the Act mandates the Director “to manage complaints made to him or her by members of the public”. Part V lays down the procedure for doing so.
[33] Any member of the public may make a complaint to the Director under Part V about the policies of or services provided by a police force, or about the conduct of a police officer: s. 58(1). Sections 59 and 60 of the Act set out the parameters of the Director’s review of such complaints. Their full text is attached as an appendix to these reasons.
[34] In brief, however, the Director is required by s. 59 to review every complaint made, to classify it (as a complaint about policies or services or the conduct of a police officer), and to ensure that it is dealt with in accordance with the mechanisms set out in ss. 61 and following.[3]
[35] However, to shield the police against an avalanche of frivolous or improper complaints, s. 60(1) provides that the Director “may, in accordance with this section, decide not to deal with a complaint made to him or her by a member of the public under this Part” (emphasis added). Under s. 60(4), the Director may decide not to deal with a complaint if it is frivolous, vexatious or made in bad faith, could more appropriately be dealt with under another statute, or if in the circumstances, dealing with the complaint would not be in the public interest. The Director also has the discretion to decide not to deal with a complaint in cases where, generally speaking, the complainant is not directly affected by the police policy, services or conduct: s. 60(5)-(6).
[36] Section 60(2), discussed above, enables the Director to decide not to deal with a complaint “made more than six months after the facts on which it is based occurred”. The Director is required by the terms of s. 60(3) to consider a number of factors when deciding not to deal with a complaint filed after the six-month period. The Director must consider whether the complainant is a minor or a person with a disability, whether the complainant is or was subject to criminal proceedings relating to the events forming the basis for the complaint, and whether in the circumstances it would not be in the public interest to deal with the complaint.
[37] As these provisions indicate, the default scenario under the Act is that the Director is obligated to screen in a complaint for review and to have it dealt with in accordance with Part V unless one of the saving factors in s. 60 applies. The Director “shall ensure that every complaint reviewed … is referred or retained and dealt with”: s. 59(2) (emphasis added). But the Director “may, in accordance with [s. 60], decide not to deal with a complaint”: s. 60(1) (emphasis added). This default paradigm is significant, in my view, in determining whether and, if so, to what extent, “discoverability” factors into the exercise of the Director’s discretion not to proceed with a complaint. It also bears on the scope of the requirement to give reasons, which I deal with below.
[38] Although the six-month period provided for in s. 60(2) is often loosely referred to as a “limitation period”, the parties all agree that it is not a limitation period in the formal legal sense. The Divisional Court adopted that interpretation as well, stating, at para. 35:The six month period referred to in s. 60(2) is not a limitation period, but rather a guideline – a point in time at which the Director may wish to consider not dealing with the complaint, depending on various factors including the reasonableness of the delay and the specific factors the Director is directed to take into account under s. 60(3). All counsel at the hearing essentially agreed with that interpretation. [39] Although the parties agree that s. 60(2) does not contain a limitation period, they have differing views on where that interpretation leads them. Mr. Wall argues that the six-month period is “a presumptive period that must yield to the interests of justice and the public interest.” The Director says it is not a limitation period, but “simply provides the Director with the discretion to screen in a complaint that has been received by his office six months after the facts on which the complaint was based occurred.” The Director submits that he is not mandated to take into account notions of discoverability in exercising his discretion not to screen in the complaint. In doing so, he adopts an analysis that leans towards treating s. 60(2) as a limitation period.
[40] The Director submits that nothing in the language of s. 60(2) or in the provisions of s. 60(3) outlining the factors the Director is to consider in exercising his discretion to screen in the complaint or not to do so, mandates that he take into account whether or not six months have elapsed since the complainant knew or ought to have known that he or she had grounds for a complaint. He concedes, however, that he has discretion to consider whether discoverability in that sense is a factor in the appropriate case.
[41] The Director seeks to rely on the principle of implied exclusion to argue that if the legislature had intended discoverability to apply, it would have said so expressly. That principle is explained by Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014), at § 8.90, as follows:An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. … The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature. [42] In this vein, the Director points out that s. 4(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, expressly states that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” Counsel points to s. 96 of the Employment Standards Act, 2000, S.O. 2000, c. 41, in support of the argument that where discoverability was not meant to apply, the legislature did not include it.
[43] The Director also relies on the decision of the Alberta Court of Appeal in Engel v. da Costa et al., 2008 ABCA 152 (CanLII), 429 A.R. 184, leave to appeal to S.C.C. refused, 460 A.R. 400 (note). There the Court considered a provision in the Alberta Police Act, R.S.A. 2000, c. P-17, s. 43(11), dealing with complaints made more than one year after the events on which they were based. The Court concluded, at para. 31, that “[d]iscoverability is not a principle which must necessarily apply to complaints under s. 43 of the Police Act.”
[44] I do not find these submissions persuasive in the context of the Ontario legislation. First, it is agreed that s. 60(1) of the Police Services Act, does not provide for a limitation period. It is therefore unnecessary to be as concerned with shoring up the goals of finality underpinning limitation period legislation. Second, s. 60(2) expressly provides the Director with discretion – the Director “may decide not to deal with a complaint” – which implies in itself a more flexible approach to screening post-six month complaints in or out (emphasis added). The legislation considered in Engel is quite different: it requires the decision maker to dismiss a late complaint – “shall dismiss any complaint that is made [outside of the time period]” (emphasis added). Third, even if the principle of implied exclusion is applicable, I am satisfied, for the reasons outlined below, that the language of the Act gives rise to little expectation that discoverability principles were to be excluded by implication.
[45] It is true that s. 60(3), prescribing the factors the Director is to consider when exercising his or her discretion to screen in a complaint post-six months, does not specifically refer to discoverability principles. However, it would be odd – given that s. 60(2) does not provide for “a limitation period”, and given the default paradigm in the scheme favouring complaints being dealt with – if the Legislature intended to exclude discoverability principles from the Director’s consideration. In my view, there is nothing expressed or implied in the language of the Act to support such an intention. Indeed, s. 60(3)(c) requires the Director to consider “whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with”. The Director has a discretion, but it is not an unfettered discretion. To the contrary, it is a discretion to be exercised within the confines of the factors set out in s. 60(3) and the bounds of procedural fairness.
[46] Complaints regarding police misconduct raise issues that are important to society, both from the perspective of the complainant and that of the police services. It is generally in the public interest that complaints which are not frivolous or vexatious or made in bad faith – grounds upon which any complaint, timely or not, may be screened out – be reviewed. I am satisfied that the “public interest” factor the Director is required to consider under s. 60(3)(c) of the Act encompasses an obligation to consider discoverability issues in deciding whether or not to deal with a post-six month complaint under s. 60(2).
[47] For these reasons, I would not give effect to the Director’s argument that the Divisional Court erred by importing notions of “discoverability” as a factor to be considered in the discretionary s.60(2) exercise.
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