Author: Robert Bell
Usually, applicants under the Ontario Human Rights Code have one year to file an application after a discriminatory incident. However, when there is not one, but a series of incidents, the Tribunal may find that there has been a “continuing contravention” of the Code and the one year time limit runs from the last incident in the series rather than from the first.
In Terri Lynn Garrie v. Janus Joan Inc. and Stacey Szuch (2012) HRTO 1955 (CanLII), in an Application for Reconsideration, a full panel of the Tribunal found for the first time that an ongoing wage differential constituted a continuing contravention of the Code.
The Applicant in this case originally filed an application in 2009 claiming discrimination because of disability. She and other adults with developmental disabilities performed the same duties as general labourers who did not have developmental disabilities. The Applicant and other labourers with developmental disabilities were paid a “training honorarium” of $1.00 per hour, which eventually was increased to $1.25 per hour. Conversely, the general labourers who did not have developmental disabilities were paid minimum wage or higher. At first instance, the Tribunal dismissed her allegation that she had been discriminated against by being paid less than employees without developmental difficulties. The Tribunal held that the employer’s payment practices were not a continuing contravention and the complaint was outside the one year time limit.
Upon Review, the Tribunal held that the previous decision was wrong and that the time limit ran from the last incident and not the first. As a result, the application was not time-barred and could proceed. The decision provides helpful clarification regarding continuing contraventions under the Code.
It is now clear that an ongoing wage differential constitutes an ongoing contravention – the practical effect of which is that employees will have much longer to file applications in these circumstances; potentially, at a much greater cost to the employer.