Man. v. HRC (1983), 25 Man.R.(2d) 117 (CA)
MLB headnote and full text
Manitoba, Province of v. Manitoba Human Rights Commission, Galbraith and Lylyk
Indexed As: Manitoba v. Human Rights Commission (Man.), Galbraith and Lylyk
Manitoba Court of Appeal
Monnin, C.J.M., Matas and Philp, JJ.A.
November 8, 1983.
Summary:
Two employees of the Manitoba Government were mandatorily retired after their 65th birthdays in accordance with s. 54 of the Civil Service Superannuation Act. The employees complained to the Human Rights Commission. The Manitoba Government applied for a declaration that the discrimination against the employees, which resulted from the mandatory retirement, was not of a continuing nature and therefore the complaints against the Government were not within the limitation period prescribed by the Human Rights Act. The Manitoba Court of Queen’s Bench, in a decision reported in (1983), 23 Man.R.(2d) 102, held that the complaints were untimely and granted the declaration. The employees appealed.
The Manitoba Court of Appeal dismissed the appeal.
Civil Rights – Topic 995
Discrimination – Employment – Age – Retirement – Continuing contravention – Two employees were mandatorily retired at the age of 65 – Over one year later the employees complained to Human Rights Commission, alleging discrimination – The Human Rights Act provided a six month limitation period for complaints, to run from the time of contravention of the Act (discrimination) – The Manitoba Court of Appeal held that the complaints were untimely – The court held that the contravention was a single act occurring when the employees retired even though the consequences of the retirement continued – See paragraphs 15 to 22.
Civil Rights – Topic 7103
Provincial legislation – Practice – Complaint – Limitation period – Two employees were mandatorily retired at the age of 65 – Over one year later the employees complained to Human Rights Commission, alleging discrimination – The Human Rights Act provided a six month limitation period for complaints, to run from the time of contravention of the Act (discrimination) – The Manitoba Court of Appeal held that the complaints were untimely – The court held that the contravention was a single act occurring when the employees retired even though the consequences of the retirement continued – See paragraphs 15 to 22.
Limitation of Actions – Topic 2023
Actions in contract – Actions for breach of contract – When time commences to run – Continuing contravention – Two employees were mandatorily retired at the age of 65 – Over one year later the employees complained to Human Rights Commission, alleging discrimination – The Human Rights Act provided a six month limitation period for complaints, to run from the time of contravention of the Act (discrimination) – The Manitoba Court of Appeal held that the complaints were untimely – The court held that the contravention was a single act occurring when the employees retired even though the consequences of the retirement continued – See paragraphs 15 to 22.
Statutes – Topic 5126
Interpretation – Mandatory acts – What constitutes – Two employees were mandatorily retired at age 65 – Over a year later the employees complained to the Human Rights Commission, alleging discrimination – The Human Rights Act provided for a six month limitation period for complaints, to run from the time of contravention of the Act – The employees argued that the limitation section was directory rather than mandatory and therefore the breach of the section was not fatal – The Manitoba Court of Appeal disagreed and concluded that the time requirements of s. 19(1) of the Act were mandatory and therefore the complaints were out of time – See paragraphs 23 to 30.
Words and Phrases
Continuing contravention
– The Manitoba Court of Appeal discussed the meaning of the phrase “continuing contravention” as used in s. 19(1) of the Human Rights Act, S.M. 1974, c. 65; C.C.S.M., c. H-175 – The court concluded that retiring an employee at age 65 did not constitute a continuing contravention of the Act – See paragraphs 15 to 22.
Cases Noticed:
Newport v. Government of Manitoba, 2 W.W.R. 254; 13 Man.R.(2d) 292, refd to. [para. 8].
Manitoba Human Rights Commission and Finlayson v. Winnipeg et al. (1982), 16 Man.R.(2d) 94, refd to. [paras. 15, 22].
Re Burns and United Association of Journeymen of the Plumbing and Pipefitting Industry, Local 170 v. Piping Industry Apprenticeship Board, [1977] 78 C.L.L.C. 14-134 (B.C.S.C.), refd to. [para. 17].
Re United Glass and Ceramic Workers of North America (AFL-CIO-CLC), Local 246 v. Dominion Glass Co. Ltd. et al. (1973), 40 D.L.R.(3d) 496 (Ont. C.A.), refd to. [para. 17].
Hiscott v. General Electric Company (1975), 521 F.2d 632, refd to. [para. 17].
Woodburn v. LTV Aerospace Corporation (1976), 531 F.2d 750, refd to. [para. 17].
Charlier et al. v. S.C. Johnson and Son, Inc. (1977), 556 F.2d 761, refd to. [para. 17].
Goldman v. Sears, Roebuck & Company (1979), 607 F.2d 1014, refd to. [para. 17].
Wright v. State of Tennessee et al. (1980), 628 F.2d 949, refd to. [para. 17].
Re Parking Authority of Toronto and Canadian Union of Public Employees, Local 43 (1974), 7 L.A.C.(2d) 150, refd to. [para. 17].
Dressler v. Tallman Gravel & Sand Supply Ltd. (#2) (1963), 40 W.W.R.(N.S.) 449, refd to. [para. 18].
Hole v. Chard Union (1894), 1 Ch.D. 293, refd to. [para. 18].
Vialoux v. Registered Psychiatric Nurses Association of Manitoba (1983), 23 Man.R.(2d) 310, refd to. [para. 25].
R. v. Metropolitan Toronto Board of Commissioners of Police, Ex Parte Prosser, [1971] 3 O.R. 363 (C.A.), dist. [para. 27].
Re International Beverage Dispensers’ & Bartenders’ Union Local 280 and Man of Aran Ltd., [1974] 2 O.R.(2d) 54 (Div. Ct.), dist. [para. 27].
Re City of Winnipeg and Torchinsky (1981), 129 D.L.R.(3d) 170; 13 Man.R.(2d) 369, dist. [para. 28].
Statutes Noticed:
Civil Service Superannuation Act, R.S.M. 1970, c. 120; C.C.S.M., c. C-120, sect. 54 [paras. 5 to 8, 20].
Human Rights Act, S.M. 1974, c. 65; C.C.S.M., c. H-175, sect. 6(1) [para. 8]; sect. 19(1) [paras. 11 to 31].
Authors and Works Noticed:
Maxwell on Interpretation of Statutes (12th Ed.), p. 320 [para. 26].
Counsel:
R.B. Doyle, for the appellants;
R.S. Perozzo, for the respondent.
This appeal was heard before Monnin, C.J.M., Matas and Philp, JJ.A., of the Manitoba Court of Appeal, on October 26, 1983. The following judgment of the Court of Appeal was delivered by Philp, J.A., on November 8, 1983:
