The Applicants successfully brought an application for judicial review of a decision made by the Executive Director of the Human Rights Commission in which the Executive Director dismissed their complaint as being out of time

Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human Rights complaints – Discrimination – Limitations – Discoverability rule – Judicial review – Standard of review – Reasonableness simpliciter

PEI Music and Amusement Operations Association Inc. v. Prince Edward Island, [2010] P.E.I.J. No. 43, 2010 PESC 40, Prince Edward Island Supreme Court, September 21, 2010, B.B. Taylor J.

The Applicant company, PEI Music and Amusement Operations Association Inc. (“PEI Operators”) and the Applicant individuals (McCarville, Gaudet, Kennedy and Peters (collectively referred to as the “Applicants”)) complained to the P.E.I. Human Rights Commission.

In 1991, the PEI Government legalized Video Lottery Terminal (“VLT”) gambling and licensed the PEI Operators to supply, install and maintain VLTs in bars and stores. In 2002, the PEI Government cancelled the PEI Operator’s licence and took over the VLT business. In 1991, the Government was a Liberal Government and in 2002, the Government was a Conservative Government. The Applicants made a complaint to the Commission on April 16, 2007 alleging that the Respondent, the Government of Prince Edward Island, discriminated against them on the basis of political belief. In January 2009, the executive director of the Commission dismissed the complaint on the basis that was statute-barred due to the passage of the relevant limitation in the Human Rights Act.

The Applicants applied for judicial review seeking a declaration that the Executive Director of the Commission erred at law, an order nullifying the decision of the Executive Director, and an order directing the Executive Director to reconsider the question of whether the complaint was statute-barred.

The Court outlined the relevant limitation period as “one year after the alleged contravention of the Act”. The Applicants claim that they were not aware, until 2006, that store owners (whose licences to have VLTs were cancelled) received compensation. The Applicants stated that they brought their claim within one year of the time that they discovered the material facts on which their claim was based. The Applicants also assert that the limitation period of one year in the Human Rights Act is subject to the Discoverability Rule.

The Court found that the applicable standard of review was reasonableness because the Executive Director either found that the Discoverability Rule was not applicable to the limitation period in the Human Rights Act, or failed to determine whether the Discoverability Rule applied.

The Court referred to authorities relating to the language of limitation clauses and found that a discoverability provision is implicit in every limitation (and any legislature which intends otherwise must specify that when setting a limitation period). Specifically, the limitation period in the Human Rights Act would have to state “notwithstanding when the Complainant discovered the material facts on which the complaint is based or ought to have discovered by the exercise of reasonable diligence…” before it could be concluded that the legislature had overridden the Discoverability Rule. Therefore, because the limitation period and the Discoverability Rule were raised, the Executive Director of the Commission ought to have determined when the one year period began to run. That determination has not yet been made. The Court therefore referred the matter back to the current Executive Director to determine when the material facts on which the complaint is based were discovered or ought to have been discovered by the Applicants by the exercise of reasonable diligence. Based upon that finding, the Executive Director should then dismiss the complaint as being statute-barred or continue to consider the merits of the complaint.

In the result, the Court found that the Executive Director erred and the Court returned the matter to the Executive Director for further consideration and determination.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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