In Yu v. Workplace Safety and Insurance Board, 2024 HRTO 1401, the Human Rights Tribunal of Ontario (HRTO) dismissed an application alleging the Workplace Safety and Insurance Board (WSIB) discriminated against the worker by “failing to accommodate” his language barrier arising from his place of origin contrary to Ontario’s Human Rights Code (OHRC), because it was untimely.

This decision provides guidance on when, in the human rights context, an administrative body’s statutorily permitted review of its past decision will be considered the “continuing effect” of a previous act of discrimination rather than a new and discrete act of discrimination. Such a review will be considered the continuing effect of the administrative body’s one act of discrimination, i.e., its past decision. The decision also establishes that where there is one act of discrimination with continuing effects, the one-year limitation period after the last alleged act of discrimination will not begin anew after the occurrence of a continuing effect.

Background

In 2005, the Applicant immigrated to Canada from China and obtained work as a general labourer. In 2006, he experienced a workplace accident that seriously and permanently injured him. As a result, he could no longer take on physically demanding jobs and began to receive Loss of Earnings (LOE) benefits under the Workplace Safety and Insurance Act, 1997 (WSIA).

The WSIB prepared a “labour market re-entry plan” (Plan) for the Applicant to enable him to re-enter the labour market through suitable and available employment. The Applicant was assessed as eligible for employment as a retail salesperson and his Plan included 25 weeks of English as a Second Language (ESL) training and a co-op placement at a retail store. When the Applicant enrolled in the ESL training, the 25-week course had been replaced with a 16-week course entitled “Essential Skills Levels 1 and 2.”

Shortly after the Applicant began his co-op placement, the store manager concluded he was not “suited to working with customers” and moved the Applicant to the computer repair department. When the placement ended, the Applicant was not hired. The Applicant had job interviews after the placement ended, but he did not receive any job offers.

In 2011, the Applicant’s retraining process ended. Since then, the WSIB reviewed the Applicant’s LOE entitlement four times and each time it upheld its decision that employment in retail sales was suitable and available to him. The Applicant’s English proficiency was never reassessed, and no further ESL training was offered to him.

In 2020, the Applicant filed an application against the WSIB alleging that it discriminated against him based on his place of origin contrary to the OHRC when it reduced the length of ESL training provided, and that the discrimination recurred each time the WSIB reviewed his LOE benefits and confirmed that employment in retail sales was “suitable and available” to him without offering additional ESL instruction.

Relevant Provisions

Subsections 34(1) and (2) of the OHRC provide that the HRTO does not have jurisdiction to consider applications filed more than one year after the last alleged incident of discrimination, unless it is satisfied that the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Subsection 44(1) of WSIA provides that in certain circumstances, the WSIB “may review payments to a worker for loss of earnings and may confirm, vary or discontinue the payments.” 

WSIB’s Argument

The WSIB sought dismissal of the application on several grounds, including timeliness. It argued that its reviews of the Applicant’s benefits were not recurring acts of discrimination, but the “continuing effects” of its 2011 decision deeming him eligible for “suitable and available employment” in retail sales and reducing his LOE benefits accordingly.  

HRTO Decision

Relying on a few of its previous decisions, the HRTO emphasized the distinction between a “continuing contravention” and the “confirmation of a previous decision”:

A “continuing contravention” requires a succession or repetition of discrete acts of discrimination of the same character, not merely one act of discrimination with continuing effects or consequences…Confirmation of a previous position does not constitute a second discrete act...

The HRTO held that each time the WSIB conducted a statutory review of the LOE payments as permitted under s. 44(1) of WSIA, it confirmed the calculation of the employee’s LOE payment that flowed from the WSIB’s conclusion in 2011 that he was eligible for full-time employment as a salesperson. The HRTO stressed: “On its face, subsection 44(1) enables the WSIB to review LOE payments; it does not compel the WSIB to undertake a review of the elements of the labour market re-entry plan.” Accordingly, the HRTO found that the reviews were “…a continuing effect of the WSIB’s 2011 decision rather than continuing contraventions.”

Finally, noting that s. 34(2) of WSIA allowed for the admission of an untimely application if the applicant provides a good-faith explanation for the delay in filing, the HRTO held the application was outside its jurisdiction because the employee did not provide any explanation for the delay in filing.

Bottom Line for Employers

This decision puts employers on notice that in the human rights context, there is a clearly defined distinction between an administrative body’s new and discrete acts of discrimination, and its one act of discrimination with continuing effects. An administrative body’s statutorily permitted review of a decision it made in the past will be viewed as the continuing effect of its one act of discrimination, i.e., its past decision. Finally, this decision establishes that where there is one act of discrimination with continuing effects, the one-year limitation period after the last alleged act of discrimination will not begin anew after the occurrence of a continuing effect.