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Wednesday, May 16, 2018 @ 8:38 AM  

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Appeal by the School District from a decision of a Human Rights Tribunal dismissing the appellant’s application to strike the respondent’s complaint as being out of time. The complaint alleged that for six years the School District discriminated against a child by failing to accommodate the child’s educational requirements arising from mental disabilities. The complaint was based on the allegation that the School District’s conduct constituted a continuing contravention that carried forward into the period in which the complaint was filed. The complaint was filed when the child was in grade seven. The child left the school District in grade six. The parent took the position that the complaint was timely because the nature of the discrimination was the School District’s ongoing failure to accommodate the child’s disabilities, a failure that was continuing into the new school year. The Tribunal member held that s. 22(2) of the Human Rights Code applied, but that the continuing state of affairs itself rendered the complaint timely. Section 22(2) provided a basis for reaching back before the six-month period if there had been a continuing contravention, but only if the complaint was filed within six months of the last alleged instance of the contravention. The chambers judge on judicial review confirmed the approach of the Tribunal member that the complaint was timely for the sole reason that it constituted a continuing contravention.

HELD: Appeal allowed. The Court remitted the complaint back to the Tribunal for consideration under s. 22(3) of the Code. The Tribunal had no jurisdiction under s. 22(2) to accept the complaint because it was not filed within six months of the last instance of the alleged contravention, which took place more than seven months prior to the filing of the complaint. It was necessary, in order to have a complaint accepted under s. 22(2), to allege a specific instance of discrimination occurring within six months of the filing date that could be considered a separate contravention of the Code. It was insufficient to allege a continuing contravention of the Code that extended to the date the complaint was filed. There must have been an occurrence or example of the discrimination within the six-month period for the complaint to be accepted under s. 22(2). To be a continuing contravention, there must have been acts of discrimination which could be considered as separate contraventions of the Code, and not merely one act of discrimination which could have continuing effects or consequences. Once it was determined that there had been no specific instance of discrimination within the six-month period, there was no need to consider whether the complaint alleged a continuing contravention. The complaint was out of time. It could, however, still be heard if the conditions for the exercise of discretion under s. 22(3) of the Code were met.

School District v. Child (Litigation guardian of), [2018] B.C.J. No. 650, British Columbia Court of Appeal, S.D. Frankel, J.E.D. Savage and J.J.L. Hunter JJ.A., April 11, 2018. Digest No. TLD-May142018006