Bad Timing? Policies, Individualized Decision-Making and Time Limits

Here are two contrasting Court of Appeal decisions relating to human rights decision-makers’ ability to hear late-filed complaints: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 and Izaak Walton Killam Health Centre v. Nova Scotia (Human Rights Commission), 2014 NSCA 18. In the latter, the decision-maker proceeded pursuant to a policy — and lost on judicial review. In the former, the decision-maker made an individualized determination — and won on judicial review. The context, legal and factual, of both cases is different, but the contrasting outcomes are nonetheless interesting and perhaps even instructive.

In Izaak Walton Killam, the individual complained of discrimination on the basis of physical disability: he was a diabetic who worked with troubled youth and was reprimanded by his employer for injecting himself with insulin in the presence of the adolescents. He complained in a timely manner to the Nova Scotia Human Rights Commission, but the Commission only agreed to move forward after the individual won an internal appeal. By that time, the 12-month period for making a complaint had elapsed.

Bryson J.A. held that allowing the complaint to proceed outside the time limit was unreasonable:

[24] So we begin with the words the Legislature has used. To repeat, these are:

29 (2) Any complaint must be made within twelve months of the date of the action or conduct complained of, or within twelve months of the last instance of the action or conduct if the action or conduct is ongoing.

Those words seem clear. One hardly needs a dictionary to interpret “within”, which clearly assumes a beginning and end inside of which the time should run. Resort to standard texts bears this out. For example, The Concise Oxford Dictionary, 8th ed. uses such words as “inside”; “enclosed” or “contained by”; “not beyond or exceeding” to describe “within”. More pertinently, Stroud’s Judicial Dictionary, 5th ed., vol. 5, p. 2876 cites examples of judicial interpretation of “within” as “inside which certain events may happen”; “within four months” means any date within that period: “within three years” means not later than three years. But the Board found that “within twelve months” did not mean within consecutive months. Rather, it meant within 12 months excluding any period during which the Commission was conducting an internal review. So the limitation period could be 15 months, 20 months or whatever period by which the internal review delayed the tolling of the months. The Board provided no linguistic or “ordinary meaning” defence of this eccentric interpretation.

That the Commission had a policy of ignoring internal delays in calculating the time limit was of no avail:

[31] The Commission’s practices and policies do not have the force of law. Even if they did, they could not amend an Act of the Legislature…

[32] By interpreting s. 29(2) of the Act to facilitate Commission policy, the Board effectively allows the Commission to amend the Act. Even if the Commission’s policy had the force of law — which it does not — it would have to be consistent with the Act which the Commission has to apply. The Commission’s policies and practices must accord with the Act. It is not the other way around.

This conclusion is problematic, because the Commission’s policy could plausibly be read as an interpretation of “complaint” rather than of “within twelve months”, with complaints being treated as made whenever the internal review process has begun (though counsel does not appear to have argued this point). Moreover, the refusal to treat the Commission’s policy as ‘law’ is unfortunate: much administrative discretion is now exercised by reference to guidelines and other ‘soft law’ instruments, a practice courts would do well to encourage.

Interestingly, s. 29(3) of the Nova Scotia Human Rights Act grants a power to extend the time limit “in exceptional circumstances…if to do so would be in the public interest and…equitable”. If a decision had been made based on s. 29(3), different considerations may have arisen, as the British Columbia case suggests.

In Mitze, the individual complained that he had inadequate access to retroviral medication for his HIV while he was a remand prisoner. Twenty-two months elapsed before he spoke to a lawyer and contacted the decision-maker. Relying on its discretionary power to accept late-filed complaints, the Tribunal admitted the complaint. Notice that its power is broadly drafted: it is permitted to receive late complaints in appropriate circumstances, not just to extend the time limit by 12 months as is the case in Nova Scotia. Willock J.A. held that the decision to receive the late complaint was reasonable. The delay was explicable and the case was of potential importance beyond the individual’s unfortunate situation:

[61] The delay said to have been a result of fear of retaliation occurred between September 2007 and April 2009 while the complainant was at VIRCC. The complainant’s declaration included an assertion that while at VIRCC he was in a vulnerable and dependent position. He stated that he had been advised by two officers and a number of prisoners that a complaint to an “external body” would be counterproductive and might result in retaliation or have a negative impact on his security classification in the federal system…There is, in my view, no basis to say the Tribunal’s assessment of the delay that occurred at VIRCC was arbitrary, not supported by the evidence, or otherwise unreasonable. The judge weighed the complainant’s evidence again and, in my view, did not address this finding by the Tribunal with appropriate deference.

…

[63] Th[e] more significant, 22-month delay was said to have occurred in part as a result of limited access to legal advice. The Tribunal did not conclude that the complainant had no access to legal advice but held, rather, that his access was not the same as that available to a free person. There was evidence, in the form of his declaration, that advice was only available through PLS and that the complainant believed PLS assistance was not available in relation to civil matters. He had no access to the Internet…

…
[79] In my opinion the judge erred in finding, in effect, that the Tribunal could consider only the complainant’s personal interest in the substance of the dispute. There was some evidence upon which the Tribunal could conclude that the complainant was denied access to antiretroviral medication as result of the application of policies that might continue. There was no evidence to the effect that the issue has become moot in provincial prisons. While the remedy ultimately afforded to the complainant, if any, may not assist others, it is in the hands of the Tribunal to weigh the possibility that the examination of the complaint will bring to light the existence of discriminatory policies that have not been remedied. So long as there was some evidence that might be the case, it was not an error for the Tribunal to consider that evidence in determining whether understanding the systemic problems that may have given rise to the discrimination alleged may serve the public interest.
…
[82] In my opinion, it was an error on the part of the judge to substitute his own view of the weight that ought to be given to an allegation of systemic discrimination for that of the Tribunal. The Tribunal has been given a legislative mandate to exercise a discretion in the public interest to hear late-filed complaints. In exercising that discretion the Tribunal considered relevant factors, including the complainant’s evidence with respect to the manner in which he was treated over a lengthy period in remand and some evidence that the policies that led to that treatment continued after his transfer to a federal penitentiary. In my view, it cannot be said the Tribunal erred in the exercise of its discretion in this case.

Had the Nova Scotia Human Rights Commission proceeded in the same way it too might have won on judicial review. To the extent that this privileges individualized decision-making in favour of publicly available guidelines, it is unfortunate.

This content has been updated on July 28, 2014 at 06:46.