O’Flanagan v. Ontario (Education), 2013 HRTO 121

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew O’Flanagan

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Education, Ontario Teachers’ Pension Plan Board and Ontario Teachers’ Federation

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: January 23, 2013

Indexed As: 2013 HRTO 121

Cited as: O’Flanagan v. Ontario (Education)

APPEARANCES

Matthew O’Flanagan, Applicant

Robert Keel and Jasmeet Kala, Counsel

Ontario (Ministry of Education), Respondent

Matthew Horner, Counsel

Ontario Teachers’ Pension Plan Board, Respondent

Elizabeth Brown and Sean M. Sells, Counsel

Ontario Teachers’ Federation, Respondent

Murray Gold, Counsel

1This Application alleges that the survivor benefit provisions of the Ontario Teachers’ Pension Plan (“Plan”) are discriminatory based on sex and marital status contrary to sections 1, 5(1), and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Application is one of over 80 applications (“Group of Applications”) advancing arguments of this nature.

2The respondent, the Ontario Teachers’ Pension Plan Board (“Board”), has filed a Request for an Order During Proceedings (“Request”) seeking the early dismissal of most of the Group of Applications pursuant to section 34(1) of the Code because they were filed outside the limitation period. The other respondents support the Board’s Request.

3The applicant argues that the Group of Applications are timely and, in particular, that they raise allegations that constitute a series of events within the meaning of section 32 of the Code.

4This Application is proceeding as a lead case on the issue of delay: see Group of Persons v. Ontario (Education), 2011 HRTO 2253. The remaining Group of Applications have been placed in abeyance pending my determination of the delay issue in this matter.

5For the reasons that follow, I find that this Application is untimely. I find that the allegations do not constitute a series of events and that the last incident of alleged discrimination occurred more than a year before the Application was filed. The applicant has not satisfied me that the delay was in good faith within the meaning of the Code.

PROCEDURAL HISTORY

6The Tribunal held an oral hearing in this matter on May 28, 2012, at which time the parties made oral submissions concerning delay. As the material facts are not in dispute, the parties agreed that it would not be necessary for me to hear oral evidence. On consent, two witness statements were marked as exhibits and neither witness was cross-examined.

7At the May 28, 2012 hearing, I indicated to the parties that a panel of the Tribunal was conducting a reconsideration hearing of the Tribunal’s Decision in Garrie v. Janus Joan Inc., 2012 HRTO 68 (“Garrie”), a matter that also raised issues of delay. I suggested (and the parties agreed) that it would be appropriate that they provide additional written submissions once the Tribunal released its Reconsideration Decision in the Garrie.

8On October 15, 2012, the Tribunal issued its Reconsideration Decision: Garrie v. Janus Joan Inc., 2012 HRTO 1955 (“Garrie Reconsideration”) and following a Case Assessment Direction, the parties filed further written submissions. Thus, in rendering my Decision, I have considered the written materials the parties filed prior to the hearing, their oral submissions, and their subsequent written submissions regarding the Garrie Reconsideration.

INTRODUCTION

9The Application itself raises a number of issues, which I need summarize only briefly.

10The allegations of discrimination relate to the cost to the Plan member of providing survivorship pension benefits to a spouse. The issue arises because the costs to the member differ depending on whether the member: (a) had an eligible spouse (as that term is defined in the Pension Benefits Act, R.S.O. 1990, c. P.8 (“PBA”) at the time of retirement (i.e. when his or her first pension instalment is due); or (b) acquired an eligible spouse after the date of retirement.

11As I explain in more detail, below, by operation of sections 1(1) and 44 of the PBA, persons who have an eligible spouse at retirement benefit from “subsidized” survivorship benefits. Persons who do not have an eligible spouse at retirement but subsequently acquire one do not benefit from these “subsidized” survivorship benefits and instead bear the full cost of the survivorship benefit.

12In the applicant’s case, although he did not have a partner at the date of his retirement, he married approximately 3.5 years later. While the applicant could have opted to obtain a spousal survivor benefit for his new spouse, this benefit would not be subsidized and the applicant’s own pension benefit would be subject to an actuarial reduction for the full survivor benefit.

13In the Application, the applicant alleges that this cost distinction is discriminatory. At present, however, the only issue before me is whether the Application was filed within the limitation period contained in section 34 of the Code.

THE ISSUE

14Section 34 states:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series. Late applications

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15To determine the Request, I must answer the following questions:

a. When was the last incident or last incident in a series of alleged discrimination?

b. Was the Application filed within one year of the last incident or last incident in a series of alleged discrimination?

c. If the Application was not filed within one year of the last incident of discrimination, was the delay incurred in good faith?

d. If the delay was incurred in good faith, will no substantial prejudice result to any person affected by the delay?

THE FACTS

The applicant

16The applicant is a retired teacher and a member of the Plan. He retired on January 30, 2000, and the first instalment of his pension was due on February 1, 2000.

17On February 1, 2000, the applicant had divorced and he did not have a spouse eligible for survivorship benefits within the meaning of the PBA. The applicant remarried on October 9, 2004, about three and a half years after he began receiving his pension benefits. He has not elected to provide survivorship pension benefits to his new spouse and, accordingly, has not sustained any actuarial reduction to his own pension benefits.

18The applicant acknowledges that he was aware that structure of the Plan raised human rights issues even before his retirement. Indeed, on April 18, 2002, the applicant wrote to fellow retired teacher and Plan member, Kenneth Henderson:

In the event that I remarry after retirement of course, my spouse would be in the same position as yours ie unentitled to receive a survivor pension.

I think that this arrangement, which I discovered just before I retired, is not only unacceptable but one that extends fewer rights to our class of pensioner. I think further that we are being treated unfairly since we in fact have made the same contribution over the years as married members and are in fact receiving a lesser benefit.

I’m not sure what the best route is to proceed. We can certainly raise this issue with OTF and TTP with hopes of reopening it or we may wish to consider a Human Rights case with the TTP or OTF or etc....

19Indeed, the applicant, Mr. Henderson and several others formed a group called the Ontario Teachers Survivor Benefit Group (“Group”). The Group has been in existence since at least January 28, 2003; its stated purpose is to advocate for amendments to the survivorship benefits provision of the PBA and the Plan. The documentary evidence filed by the parties shows that the applicant was actively involved in the Group. The applicant corresponded, attended and even led meetings about allegations that the Plan’s survivorship benefits provisions for new spouses are discriminatory. The applicant was part of a delegation that made a presentation to the Ontario Teacher’s Fund Pension Committee in February 2006 and he was aware that Mr. Henderson had prepared and filed a human rights complaint with the Ontario Human Rights Commission in 2003.

20Based on the evidence before me and the applicant’s letter April 18, 2002, I find that the applicant believed that the Plan raised human rights issues before he retired in 2000.

The Pension Plan

21The Plan is a defined benefit pension plan. It is administered by the Board in accordance with a number of statutes, including the PBA.

22At retirement, members of the plan receive pension benefits equivalent to a portion of their former salary. They may also chose from a number of survivor benefit options, which allows for a spouse (or other party) to receive a percentage of the member’s pension benefits should the member predecease him or her. The amount of the survivor pension will depend on the member’s pension entitlements as well as the elections the member makes at retirement.

23As I have indicated, this Application relates to spousal survivorship benefits. For our purposes, there are two different types of spousal survivorship benefits:

a. survivor benefits where the member has an eligible spouse at the date of retirement; and

b. survivor benefits where, although the member does not have an eligible spouse at the date of retirement, he or she subsequently acquires a spouse.

I address each of these types of spousal survivorship benefits in turn.

24First, where a member has an eligible spouse at retirement, the PBA creates a statutory minimum survivor benefit equivalent to 60% of the member’s pension benefits. Members may opt for a survivor pension in excess of the statutory minimum, of up to 75% of the member’s pension benefits.

25The Plan provides that the first 50% of this spousal survivor benefit is gratuitous in the sense that there is no corresponding actuarial reduction to the member’s own pension benefits. However, for any amount in excess of a 50% survivorship benefit, the member’s own pension benefit is automatically subject to a permanent actuarial reduction. This actuarial reduction is calculated at the time of the member’s retirement. It is designed to fund the increased cost to the Plan of paying benefits over two lives, rather than one. The reduction is permanent and it applies even if the member’s spouse predeceases him or her.

26While the PBA sets 60% as the minimum standard for survivor benefits, it does not require that the Plan bear the cost of these benefits. In other words, there is nothing in the statute that requires the Plan to provide a survivor benefit (or part of a survivor benefit) without imposing an actuarial reduction.

27I turn now to the second type of spousal survivor benefit, which occurs in circumstances (such as the applicant’s) where a member does not have an eligible spouse at retirement but subsequently acquires one (a “new spouse”).

28A member in this situation may opt to provide the new spouse with a survivorship pension benefit. Importantly, however, members with a new spouse do not benefit from a 50% spousal survivor benefit without actuarial reduction to their own pension. In other words, unlike members who fall in the first category, members like the applicant do not benefit from a “subsidized” survivor benefit. Rather, their pension benefits are permanently and actuarially reduced to account for the full amount of the survivor benefit. The permanent reduction is determined and applied at the date the Plan receives a direction from the member that he or she wishes to provide a survivorship benefit to a new spouse. In the applicant’s case, he provided no direction to the respondents regarding survivorship benefits for his new spouse. As a result, his benefits have not been the subject of any reduction and no survivorship benefits have been established for his new spouse.

29In sum, there are two main differences. The first relates to the cost of the survivorship benefits to the member and whether he or she is eligible for the subsidized 50%. This difference is at the root of the allegations of discrimination. The second relates to the timing of the permanent actuarial reduction: if the member has an eligible spouse at retirement, the reduction is calculated and applied as of the date of retirement. If the applicant acquires a new spouse, the actuarial reduction is calculated and applied when he or she elects to provide survivorship benefits to the new spouse.

30Finally, I note that there is no difference in terms of the members’ contribution to the Plan: whether or not members are married has no bearing on their contribution to the Plan during their working years.

ANALYSIS

31The applicant argues that section 34 should be interpreted liberally and expansively. He argues that while human rights should be broadly interpreted, exceptions to those rights must be interpreted narrowly. He submits that an overly restrictive interpretation of the limitation period contained in the Code would undermine the requirements that the Tribunal be just, fair and expeditious. He argues that the Tribunal should focus on what is just in the circumstances, not merely what is expeditious or efficient. In this regard, the applicant submits that “it is contrary to the purpose of the Code to permit a discriminatory effect to continue based on a technical requirement, such as a limitation period”.

32The applicant further submits that, notwithstanding the limitation period, the Tribunal can rely on principles of equity to “take jurisdiction” and remedy the ongoing discrimination. He argues that the interpretation of human rights legislation must be informed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, which he states recognizes that where an action or proceeding is for a declaration that a statute is unconstitutional, a time limitation does not apply, regardless of when the statute was enacted.

33I do not accept these arguments. Section 34 of the Code is a mandatory and jurisdictional provision. If the Application is untimely within the meaning of section 34, the Tribunal would be exceeding its statutory jurisdiction by considering it. While I have no difficulty accepting that the rights provided for in the Code must be interpreted liberally and purposively, I do not accept that the same principles apply to jurisdictional provisions, such as the limitation period. Indeed, the applicant has cited no jurisprudence to support this proposition.

34Further, the Tribunal is not a court of inherent jurisdiction, but rather an administrative tribunal created by statute. The full extent of the Tribunal’s powers are set out in the Code: see ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4 at para. 35; Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25; and Wilson v. District School Board of Niagara, 2011 HRTO 350. While the Tribunal has broad remedial powers, contrary to what the applicant suggests, these cannot be used to “take jurisdiction” that the Code does not otherwise provide. Neither of the cases cited by the applicant, Nor-Man Regional Health Authority v. Manitoba Association of Health Care Professionals, 2011 SCC 59, and Québec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789, support the applicant’s contention that an administrative Tribunal can use the common law principles of equity to seize jurisdiction over a matter that does not otherwise fall within its jurisdiction.

A. When was the last incident or last incident in a series of alleged discrimination?

i. Was there a series of incidents of alleged discrimination?

35The applicant argues that the Application is timely because the alleged discrimination amounts to an ongoing series of events within the meaning of section 34(2) of the Code. The respondents vigorously dispute this and argue that the Application relates to a single incident of alleged discrimination, which may have continuing effects, but which occurred more than a year before the Application was filed.

36The distinction between a single act with continuing effects and a succession of separate acts or violations is an important, albeit sometimes subtle, difference. If allegations relate to a series of separate incidents of discrimination, section 34 provides that the limitation period will run from the date of the last incident in the series. Conversely, if the allegations relates to a single incident of alleged discrimination with continuing effects, the limitation period runs from the date of that single incident. The continuing effects of the discrimination do not amount to a series of incidents for the purposes of section 34: Garrie Reconsideration.

37In the Garrie Reconsideration, a panel of Tribunal members recently had occasion to consider the legal principles applicable to determining whether there has been a series of incidents within the meaning of section 34 of the Code. It considered whether an alleged incident of discrimination (an inferior wage paid to a disabled employee) was a single act with continuing effects or an ongoing series of incidents. While the Garrie Reconsideration deals with an ongoing wage differential, the principles it sets out are of general application.

38The Garrie Reconsideration set out three non-exhaustive principles that help identify the distinction between an incident of discrimination and its continuing effects. The Tribunal wrote (at paras. 39-42):

First, as the Divisional Court stated in Visic, supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

Second, the Tribunal looks to when the allegedly discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code.

Third, the Tribunal has also considered when the consequences of the alleged discrimination are manifest for the applicant. For example, in cases where a respondent has terminated an applicant’s employment, the Tribunal has generally applied Visic, supra, to mean that the limitation period runs from the date the employment relationship ends: Longtin, supra. This is because, while a failure to provide a particular payment or benefit may be ongoing beyond the end of the employment relationship, the consequences of severing it are generally manifest as of the date of termination. In such cases, the Tribunal has not interpreted the ongoing failure to provide a benefit or payment upon termination as a series of fresh events. The termination of the employment relationship is the act which is discriminatory rather than the ongoing payments.

39The applicant defines the proposed series of incidents in two ways. First, he argues that there is an ongoing series of incidents because Plan members who have elected to take an actuarial reduction to their own benefits to provide survivor benefits to their new spouses experience a discriminatory event each month when they receive a reduced pension benefit. He argues that this reduced pension benefit is a “fresh step”, as contemplated in Garrie Reconsideration. Importantly, however, this is not the applicant’s situation. As he has not elected to take an actuarial reduction in order to provide a survivorship benefit to his new spouse, he does not receive a reduced monthly pension benefit. Accordingly, it is not necessary for me to address this argument to determine the delay issue in this Application.

40Second, the applicant submits that the mere existence of an allegedly discriminatory policy constitutes, in and of itself, a series of incidents of discrimination. According to the applicant, this is the case regardless of when the policy was applied to the applicant or when he first became aware of its application or discriminatory effect. The applicant cites Keith v. College of Physicians and Surgeons, 2010 HRTO 2310 at para. 42 for the proposition that policies and practices have been recognized as a series of incidents.

41I am not satisfied that Keith supports the applicant’s contention that (without more) the continued existence of a policy can constitute ongoing discrimination. In Keith, the applicant was a foreign-trained physician and the issue was whether a failure to individually assess his qualifications as a specialist amounted to discrimination. The Tribunal dismissed the application in part, concluding that some of the allegations were untimely and did not amount to a series of incidents within the meaning of section 34 of the Code. It held, however, that allegations relating to an ongoing regulatory prohibition to practice as a specialist were timely because they were series of incidents under section 34.

42In my view, an ongoing regulatory prohibition to practice a specialty of medicine is very different from the case currently before me. Keith addresses a particular fact situation and whether the application of a particular regulatory policy in specific circumstances amounts to a series of incidents. The decision does not, however, stand for the proposition advanced by the applicant, namely that without demonstrating the policy was applied to the applicant in a discriminatory manner within the limitation period, its simple existence is sufficient to establish a series of incidents of alleged discrimination within the meaning of section 34.

43The applicant argues that this matter is distinct from the Visic v. Ontario (Human Rights Commission), 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768, a leading case regarding section 34(2). He says this is because, in Visic, the Divisional Court did not deal with the issue of whether a policy was discriminatory, but rather focussed on the time at which Ms. Visic learned of the policy, which then triggered the limitation period. The applicant argues that the reasoning in Visic is flawed because “the Tribunal should determine first whether the policy, or in our case the Plan, is discriminatory in itself, before determining whether it constitutes a continuing contravention.”

44The applicant also attempts to distinguish Visic because it refers to a “continuing contravention”, the language of the Manitoba human rights statute. He argues that the test for a “continuing contravention” ought to be different from the legal test under section 34 of the Code, which refers to a “series of incidents”.

45I disagree that this semantic difference between the two human rights statutes is material. The Divisional Court’s decision in Visic, above, adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117. The Divisional Court in Visic, above, cites a short excerpt of the Manitoba Court of Appeal’s decision. Given the applicant’s argument, however, it is helpful to cite the Manitoba Court of Appeal at greater length. At para. 19, the Court of Appeal wrote:

What emerges from all of the decisions [various American arbitration decisions that the Court of Appeal and the lower court reviewed] is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the “continuing contravention” under the Act. To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

46I am not satisfied that the semantic differences in Manitoba’s and Ontario’s human rights legislation is material to the analysis. While the words of the statutes are slightly different, both pieces of legislation seek to identify whether alleged discrimination is continuing or ongoing or whether it relates to a discreet incident with continuing effects.

47The applicant seeks also to distinguish the Tribunal’s decision in Lambe v. OMERS Administration, 2010 HRTO 2200. In that matter, the Tribunal found that an ongoing denial of retirement benefits did not constitute a series of events within the meaning of the Code. The Tribunal found that the last incident of alleged discrimination occurred when the applicant in that matter started to receive pension benefits but did not receive retirement benefits. The applicant argues that I should not apply Lambe because, as with Visic, the Tribunal in that matter focussed only on the date at which Mr. Lambe knew or ought to have known that he did not qualify for retirement benefits, rather than examining whether the policy was discriminatory.

48I cannot accept the applicant’s arguments that it is appropriate to shift the focus of the reasoning in Visic and Lambe. As I have indicated, regardless of its merit, I have no jurisdiction over the Application if it is untimely. The fact that an application may be meritorious does not have any bearing on whether it falls within my jurisdiction to decide it and the merits of the application cannot, therefore, be the first line of inquiry.

49Further, I do not agree with the applicant’s argument that an ongoing and allegedly discriminatory policy amounts to a continuing contravention. I cannot presume ongoing discrimination simply from the existence of a policy. Rather, as I have indicated, I must consider whether the application of the policy amounts to a timely allegation.

50As the Board points out, the applicant’s argument that the existence of a policy is, in and of itself, ongoing discrimination leads to a conclusion that an ongoing policy would never be subject to a limitation period. Applicants could file claims at any time.

51I cannot accept that such an interpretation is supported by the language of the Code or that it would be consistent with the Tribunal’s mandate and objectives. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained that the mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. The Code requires individuals to act with all due diligence, and file an application within one year when they seek to pursue a human rights claim. See also Mafinezam v. University of Toronto, 2010 HRTO 1495 at para. 14.

52The applicant argues that his matter is akin, for example, to public transportation that is not accessible to disabled individuals. He queries whether a person with mobility-related disabilities would have to attempt to get on the bus (even though he or she knows it is not accessible) in order to have a claim in discrimination. He argues that just as it would be unfair to apply the reasoning in Visic and Lambe to exclude the disabled person’s claim, it would be unfair to find that this Application is statute-barred.

53While I need not address the hypothetical situations proposed by the applicant, I note again the obligation to pursue claims with due diligence: Miller, above; Mafinezam, above. Applicants, generally, may be barred from seeking a remedy for alleged discrimination unless they can satisfy the requirements of section 34 of the Code. The hypothetical situations proposed by the applicant do not assist him in establishing that, without more, the existence of a policy amounts to continuous discrimination.

54The applicant submits that this case is similar to Garrie Reconsideration because it relates to a series of events arising out of an ongoing practice of paying the applicant less than others. I do not agree. In my view, applying the factors set out in Garrie Reconsideration, the alleged discrimination does not amount to a series of incidents.

55Turning to the first factor identified in Garrie Reconsideration, the applicant has not identified acts of alleged discrimination which could be considered as separate contraventions of the Code. As I have stated, he did not take an actuarial reduction and so it is not necessary for me to determine whether actuarially reduced pension benefits could amount to a series of incidents. Second, for the reasons set out above, I find that (without more) the mere existence of the policy is not sufficient to establish a series of incidents of alleged discrimination.

56Regarding the second factor in Garrie Reconsideration, the applicant argues that the “practice of distributing ongoing discriminatory payment for work that members who married after retirement had performed over the course of their careers” is a fresh step, as contemplated in Garrie. The applicant is attempting to equate pension benefits (whether reduced or otherwise) with salary or wage differentials. In my view, these are fundamentally very different. Unlike in Garrie, the applicant in this matter is no longer exchanging work for wages; he ceased doing so in February 2001 when he retired and his employment relationship ended. The Tribunal’s comments at para. 36 of the Garrie Reconsideration are apposite:

In situations where the employment relationship ends and the applicant receives payments from his or her former employer in the form of severance monies, benefits or pension amounts, the Tribunal has generally held that the date of separation is the last incident of discrimination. These determinations are notwithstanding the applicant’s assertion that the discriminatory effects of the monetary payments and/or ongoing settlement discussions amount to further incidents of discrimination under section 34(1) of the Code.

57I find that the allegations in this case fall squarely within the circumstances described in the quote above and do not amount to a series of incidents. The employment relationship ended upon the applicant’s retirement and his pension entitlement was determined as of that date or, at the latest, when he remarried and elected not to obtain survivorship benefits for his new spouse. The effects of the Plan may be ongoing, but the incident of alleged discrimination is discreet. See also Bourne v. Ontario (Human Rights Commission), [1997] O.J. No. 5253 (Div. Ct.)

58I agree with the Board that a reduction (if any) to a member’s pension benefits is neither ongoing nor a fresh step. Rather, the reduction calculation (if any) is performed only once, at the time the member elects to add a survivor pension. Any differential treatment is the continuing effect of the application of the terms of the Plan at retirement (or following the election).

59Finally, turning to the third factor identified in Garrie Reconsideration, the consequences of the application of the Plan were manifest to the applicant at retirement or, in any event, no later than when he remarried and elected not to obtain survivorship benefits for his new spouse. As the Tribunal stated in Garrie Reconsideration (at para. 43), while a failure to provide a particular payment or benefit may be ongoing beyond the end of the employment relationship, the consequences may well be manifest beforehand.

60For the above reasons, I conclude that there is no series of incidents of alleged discrimination in this matter. I must now determine when the last incident occurred.

ii. When was the last incident of discrimination?

61The applicant states that the limitation period begins to run upon the death of the Plan member, when the survivor benefits become vested in the spouse. He argues that, until the death of the member, the discrimination is theoretical because the spouses could divorce or the spouse could predecease the member. Until the member’s death, the effect of the alleged discrimination “will not be known until the actual harm occurs”.

62The Board contests this characterization of the last incident of discrimination. It states that the applicant has filed an Application alleging a violation of his own rights, yet now argues that the claim does not crystalize until his death, when his new spouse suffers “actual harm”. Arguably, by this characterization, either the Application is premature or it is improper, because the applicant is attempting to file an application on behalf of another. The Board also argues that this argument conflates actual harm with the financial effects of alleged discrimination. The death of a member does not, according to the Board, constitute a fresh incident of discrimination but is rather the continuing effect of Plan, as it was applied on the member’s retirement date.

63I accept the Board’s submissions and find that a member’s death cannot be the last incident of discrimination in the circumstances. This would lead to the absurd result that the Application cannot proceed because it is premature and/or improperly brought on behalf of a third party. I also do not accept that only “actual harm” will trigger a limitation period. The alleged discrimination by the applicant is that he could not access survivorship benefits for his new spouse at the same discounted rates as others, who had eligible spouses at retirement. He was denied this benefit, if not upon retirement then at least upon his remarriage, when he could have obtained these benefits, but at a different cost. As I have indicated, the evidence before me establishes that he specifically knew about the human rights implications of the Plan years before he filed the Application.

64In Boyer v. Sears Canada, 2009 HRTO 1084, I concluded that a limitation period is triggered not when an employer gives notice that it will amend a policy, but rather when the amended policy begins applying to the applicant. This case is similar in that, although there is no issue of amendments to a policy, the trigger for the limitation period is its application to the applicant.

65I conclude that the death of the Plan member would not be an incident of discrimination for the purposes of this Application. Instead, I find that the last incident of discrimination occurred on either (a) February 1, 2000, the date of the applicant’s retirement, when the terms of the Plan were applied to him; or (b) on October 9, 2004, when the applicant remarried and the terms of the Plan regarding survivorship benefits for new spouses became applicable to him.

66The Board argues that the limitation period runs from the date of the applicant’s retirement, not the date of his remarriage. It states that the bundle of the applicant’s rights under the Plan were determined upon his retirement, based on the Plan as it existed at that time. One of the rights included in this bundle, the Board submits, was the ability to obtain spousal survivorship benefits for a new spouse in exchange for a permanent, actuarial reduction to his own pension benefits. As his letter of April 18, 2002 establishes, the applicant was aware of these provisions of the Plan prior to his retirement in February 2000.

67The Board argues that, for the purposes of the limitation period, the date a member acquires a new spouse is not the triggering event. This is because the member’s rights have crystallized at the date of retirement and because a member should not be able to, through his or her own choices, keep a limitation period at bay indefinitely. According to the Board, the only constant is the date of retirement.

68While I have noted the Board’s arguments, to determine the issues raised in this particular Application, I need not reach a more specific conclusion regarding which of the two events described above launches the limitation period. As I explain in more detail below, this is because regardless of which of the two events triggers the limitation period, the Application is untimely.

69The applicant argued (based on the principle of discoverability) that the limitation period is triggered not on the specific dates set out in para. 64, above, but on the date the applicant learned of the potential human rights issues related to entitlement to survivorship benefits. Speaking generally about the Group of Applications, the applicant’s counsel argued that the human rights claim was generally “discoverable” on the date each individual applicant learned about the existence of the Group.

70The Supreme Court of Canada explained the principle of discoverability in Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549 at para. 36. It stated that a limitation period does not generally begin to run until it was “possible for the applicant to discover” that he had a potential claim. See also Dionne v. Toronto (City), 2011 HRTO 317.

71The Board accepts that the principle of discoverability applies, but it argues that the applicant has construed this principle too broadly: that an applicant need not have actual knowledge of the potential human rights implications to trigger the limitation period and that it is sufficient that the applicant be aware of the facts giving rise to the alleged breach of the Code: Klein v. Toronto Zionist Council, 2009 HRTO 241 at paras. 22-24; and Iyirhiaro v. Toronto Transit Commission, 2011 HRTO 462 at paras. 11-12.

72I agree with the Board that the principle of discoverability does not apply to ensure that parties have been able to gather all material evidence to support their claim but exists instead to ensure fairness to parties who cannot know within the limitation period that they have a case: Klein, supra at paras. 23-24. In the applicant’s case, it is clear from his letter of April 18, 2002 to Mr. Henderson that the applicant was aware of a potential claim before he retired in February 2000. He certainly knew of the potential claim by the time of his remarriage in 2004. Accordingly, even applying the principle of discoverability, there is no basis to conclude that the onset of the limitation period should be extended beyond either the date of the applicant’s retirement in 2000 or the date of his remarriage in 2004.

73For these reasons, I find that the Application was filed more than one year after the last alleged incident of discrimination. I turn now to a consideration of whether the delay was in good faith.

B. Good faith

74Although the applicant’s written submissions contain a number of arguments regarding good faith, by the hearing he advanced only the following: that the delay was in good faith because the applicant had a reasonable belief based on the case law that the limitation period had not begun to run.

75The Tribunal has repeatedly stated that ignorance of one's rights does not, except in the most exceptional of cases, constitute good faith for the purposes of section 34(2) of the Code: Lutz v. Toronto (City), 2009 HRTO 1137, and Hunter v. Vermeer, 2010 HRTO 669.

76In this case, the applicant believed that the Plan was unfair at the time he retired in 2000. Along with other members of the Group, he secured legal advice regarding that issue but ultimately decided to not pursue a human rights application until May 2011. As the Tribunal explained in Hunter, above, an applicant who is prepared to “sit on his rights" must bear the risk of engaging in that strategy.

77In Lutz, above, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”. It wrote:

Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.”

78The applicant cannot be said to have met this legal test. While the applicant may have misapprehended his rights in terms of the limitation period, his argument establishes that he had cause to and did make enquiries about the applicable limitation period. Unfortunately, this led him to believe that the limitation period had not been triggered. In my view, while this may show that the applicant had misapprehended his rights, it does not show that his delay was in good faith within the meaning of section 34(2): see N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282.

79Given my conclusion that there is no good faith reason for the delay in filing the Application, it is not necessary for me to consider whether the respondents would be substantially prejudiced by the delay.

CONCLUSION

80For the above reasons, the Application is dismissed because it was filed outside the limitation period provided for in the Code and the applicant has not established a good faith reason for the delay.

81Within three weeks of the date of this Decision, the parties must communicate with each other and provide their mutual availability to the Tribunal to participate in a case management telephone conference to address how the remainder of the Group of Applications will proceed.