Human Rights Commission (Nfld.) v. Newfoundland Liquor Corp., (2000) 188 Nfld. & P.E.I.R. 228 (NFTD)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 15, 2000
• Jurisdiction: Newfoundland and Labrador
• Citations: (2000), 188 Nfld. & P.E.I.R. 228 (NFTD)

HRC v. Liquor Corp. (2000), 188 Nfld. & P.E.I.R. 228 (NFTD);

    569 A.P.R. 228

MLB headnote and full text

Temp. Cite: [2000] Nfld. & P.E.I.R. TBEd. MR.034

Human Rights Commission (appellant/respondent by cross-appeal) v. Newfoundland Liquor Corporation (respondent/appellant by cross-appeal) (1998 St. J. 307)

Indexed As: Human Rights Commission (Nfld.) v. Newfoundland Liquor Corp.

Newfoundland Supreme Court

Trial Division

Puddester, J.

March 15, 2000.

Summary:

Dawe applied for a position of Liquor Control Inspector advertised by the New­foundland Liquor Corporation (NLC). After obtaining information that Dawe had health problems, the Selection Committee advised Dawe that he had to provide a medical clearance certificate as a condition of any job offer (a condition not imposed to other candidates). Dawe complained to the Human Rights Commission that he was discrimi­nated against contrary to the Human Rights Code. A Board of Inquiry found that NLC discriminated against Dawe. However, the Board held that the complaint to the Com­mission was statute barred by the time limit in s. 20(2) of the Code. The Commission appealed the Board's conclusion that the complaint was statute barred. In that respect, the Commission challenged the Board's conclusion as to when the discrimination occurred, including the Board's conclusion that there was no "continuing" discrimina­tion. NLC cross-appealed the Board's finding of discriminatory action.

The Newfoundland Supreme Court, Trial Division, allowed the Commission's appeal, holding that the complaint was not barred by s. 20(2) of the Code. The Board's decision dismissing the complaint was set aside and the issue of the appropriate remedy was remitted to the Board. NLC's cross-appeal was dismissed.

Civil Rights - Topic 913

Discrimination - Complaints - Limitation periods - Dawe applied for a position of Liquor Control Inspector advertised by the Newfoundland Liquor Corporation (NLC) -The Selection Committee obtained infor­mation that Dawe had health problems - On November 3, 1994, the Selection Com­mittee advised Dawe that he had to pro­vide a medical clearance certificate as a condition of any job offer (a condition not imposed on other candidates) - In Septem­ber or October of 1995, the last of the positions was filled by another candidate - In February 1996, Dawe complained to the Human Rights Commission that the NLC discriminated against him in imposing the medical certificate requirement - The Newfoundland Supreme Court, Trial Divi­sion, held that the discriminatory require­ment remained in place throughout Dawe's candidacy, which did not end until the positions were filled - Therefore, there was "continuing" discrimination and Dawe's complaint was filed within the six month period following the last incidence of the alleged discriminatory conduct as required by 20(2) of the Human Rights Code - See paragraphs 198 to 227.

Civil Rights - Topic 913

Discrimination - Complaints - Limitation periods - Section 20(2) of the Human Rights Code stated that a complaint "shall be made within six months after the alleged contravention occurs or, in the case of a continuing contravention, within six months after the last incidence of the alleged con­travention" - The Newfound­land Supreme Court, Trial Division, held that the prin­ciple of discoverability applied to the interpretation of the limitation provi­sion in s. 20(2) - The court stated that "the period with respect to 'alleged contraven­tion' must be taken to run from that point where the victim/complainant is or ought reason­ably to be aware of the physical circum­stances, including statements and actions by an employer, which constitute the con­travention" - See paragraphs 230 to 303.

Civil Rights - Topic 913

Discrimination - Complaints - Limitation periods - Dawe applied for a position of Liquor Control Inspector advertised by the Newfoundland Liquor Corporation (NLC) -The Selection Committee obtained infor­mation that Dawe had health problems - On November 3, 1994, the Selection Com­mittee advised Dawe that he had to pro­vide a medical clearance certificate as a condition of any job offer (a condition not imposed on other candidates) - In Septem­ber or October of 1995, the last of the positions was filled by another candidate - In February 1996, Dawe complained to the Human Rights Commission that the NLC discriminated against him in imposing the medical certificate requirement - The Newfoundland Supreme Court, Trial Divi­sion, held that the discoverability principle applied to the six month limitation period prescribed by s. 20(2) of the Human Rights Code for filing a complaint - In this case, the limitation period started to run when Dawe became aware that the last position had been filled - Therefore, the complaint was filed within the limitation period - See paragraph 302.

Civil Rights - Topic 983

Discrimination - Employment - What constitutes discrimination - [See Civil Rights - Topic 989 ].

Civil Rights - Topic 989

Discrimination - Employment - On basis of physical or mental handicap - Dawe applied for a position advertised by the Newfoundland Liquor Corporation (NLC) -After obtaining information that Dawe had health problems, the Selection Committee advised Dawe that he had to provide a medical clearance certificate as a condition of any job offer (a condition not imposed on other candidates) - Dawe reacted angri­ly and the Selection Committee decided not to recommend him for the position because of that behaviour - After the posi­tions were filled, Dawe complained to the Human Rights Commission that NLC discriminated against him - A Board of Inquiry found that NLC discriminated against Dawe - The Board concluded that Dawe was not recommended for the posi­tion because of his behaviour and that as that behaviour was a reaction to the impo­sition of a discriminatory requirement, the Selection Committee could not rely on it to justify its decision not to recommend Dawe - The Newfoundland Supreme Court, Trial Division, held that the Board erred in finding that Dawe's behaviour in reacting to the discriminatory action could not be justification for not hiring him - However, the court agreed with the Board's conclusion that a contravention of s. 9(1) of the Human Rights Code occurred when the medical certificate requirement was imposed - See paragraphs 64 to 197.

Civil Rights - Topic 7118

Federal or provincial legislation - Practice - Limitation period - [See all Civil Rights - Topic 913 ].

Limitation of Actions - Topic 15

Discoverability rule - Application of - [See second and third Civil Rights - Topic 913 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - [See second and third Civil Rights - Topic 913 ].

Cases Noticed:

Wabush Mines v. Power (1995), 134 Nfld. & P.E.I.R. 237; 417 A.P.R. 237; 29 C.H.R.R. D/223 (Nfld. T.D.), refd to. [para. 10].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81; 93 D.L.R.(4th) 346, refd to. [para. 11].

Large v. Stratford (City) et al. (1993), 68 O.A.C. 136; 110 D.L.R.(4th) 435 (C.A.), refd to. [para. 11].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R.(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 12].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 14].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1; 100 D.L.R.(4th) 658; 13 Admin. L.R.(2d) 1, refd to. [para. 15].

Mitchell v. Nobilium Products Ltd. (1982), 3 C.H.R.R. D/641 (Ont. Bd. Inq.), refd to. [para. 128].

Conway v. Koslowski (1993), 19 C.H.R.R. D/253 (Ont. Bd. Inq.), refd to. [para. 129].

Silzer v. Chapparral Industries (86) Inc. (1993), 20 C.H.R.R. D/155 (B.C. Hum. Rights Council), refd to. [para. 131].

Naraine v. Ford Motor Co. of Canada (1996), 27 C.H.R.R. D/230 (Ont. Bd. Inq.), refd to. [para. 141].

Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, 132 D.L.R.(3d) 14, refd to. [para. 151].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241; 23 D.L.R.(4th) 321; 9 C.C.E.L. 185; 17 Admin. L.R. 89; 86 C.L.L.C. 17,002, refd to. [para. 154].

Canadian National Railway Co. v. Bhinder and Canadian Human Rights Commis­sion, [1985] 2 S.C.R. 561; 63 N.R. 185; 23 D.L.R.(4th) 481, refd to. [para. 172].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241; 72 D.L.R.(4th) 417, refd to. [para. 172].

Brooks, Allen and Dixon et al. v. Canada Safeway Ltd. (1985), 38 Man.R.(2d) 192 (Q.B.), refd to. [para. 182].

Tomen v. Human Rights Commission (Ont.) (1994), 20 C.H.R.R. D/257 (Ont. Bd. Inq.), affd. (1995), 83 O.A.C. 161; 126 D.L.R.(4th) 409 (Div. Ct), affd. (1997), 105 O.A.C. 289; 153 D.L.R.(4th) 285 (C.A.), refd to. [para. 185].

Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1; 26 C.H.R.R. D/87, refd to. [para. 187].

Andrews v. Law Society of British Colum­bia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 188].

Manitoba v. Manitoba Human Rights Commission (1983), 25 Man.R.(2d) 117; 2 D.L.R.(4th) 759 (C.A.), refd to. [para. 209].

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 261].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241; [1995] 1 W.W.R. 609; 120 D.L.R.(4th) 289; 100 B.C.L.R.(2d) 1; 7 M.V.R.(3d) 202, refd to. [para. 263].

Canadian Human Rights Commission v. Canadian Broadcasting Corp. et al. (1996), 120 F.T.R. 81 (T.D.), refd to. [para. 265].

Vermette, Re - see Canadian Human Rights Commission v. Canadian Broad­casting Corp.

Sparham-Souter et al. v. Town and Coun­try Developments (Essex) Ltd. et al., [1976] 2 All E.R. 65 (C.A.), refd to. [para. 271].

Pirelli General Cable Works Ltd. v. Oscar Faber & Partners (a firm), [1983] 1 All E.R. 65 (H.L.), refd to. [para. 273].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 29 C.C.L.T. 97; 8 C.L.R. 1; 10 D.L.R.(4th) 641, refd to. [para. 277].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 37 C.C.L.T. 117; 31 D.L.R.(4th) 481, refd to. [para. 281].

Cartledge et al. v. E. Jopling & Sons Ltd., [1963] 1 All E.R. 341 (H.L.), refd to. [para. 285].

Urie v. Thompson, Trustee (1948), 334 U.S. Rep. 163 (S.C.), refd to. [para. 287].

Fehr v. Jacob and Bethel Hospital (1993), 85 Man.R.(2d) 63; 41 W.A.C. 63; 14 C.C.L.T.(2d) 200 (C.A.), refd to. [para. 289].

Snow v. Kashyap (1995), 125 Nfld. & P.E.I.R. 182; 389 A.P.R. 182; 53 A.C.W.S.(3d) 53; 29 C.R.R.(2d) 336 (Nfld. C.A.), refd to. [para. 291].

Statutes Noticed:

Human Rights Code, R.S.N. 1990, c. H-24, sect. 20(2) [para. 207].

Authors and Works Noticed:

Keene, Human Rights in Ontario, generally [para. 260].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 69-73 [para. 155].

Zinn and Brethour, The Law of Human Rights in Canada, Practice and Procedure (1997), generally [para. 184]; p. 1-4 [para. 185].

Counsel:

Barry Fleming, for the ap­pellant/respondent by cross-appeal;

Peter Brown, for the respondent/appellant by cross-appeal.

This appeal and cross-appeal were heard before Puddester, J., of the Newfoundland Supreme Court, Trial Division, who delivered the following decision on March 15, 2000.