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Case Illustrates Discoverability Does Not Apply In Alberta Human Rights
Ng v Athabasca University, 2023 AHRC 94 (Oshionebo) is a new decision of the Human Rights Tribunal of Alberta, where a human rights complaint was barred from proceeding because it was filed too late.
This case is important because it is a striking example of the strictness and harshness of the one-year human rights complaint limitation in Alberta.
The following were the facts summarized by the Human Rights Tribunal:
- The complainant May Ng was a student at Athabasca University
- The complainant’s human rights complaint was that the University discriminated against her on the basis of physical and mental disability in the provision of goods and services customarily available to the public, contrary to Section 4 of the Alberta Human Rights Act
- The specific complaint alleged discriminatory grading of an exam
- The facts supporting the complaint all occurred between February 1, 2011 and November 30, 2013, including the grading of her exam
- The complainant was not aware of the alleged human rights contraventions until December 22, 2013
- The complainant filed her human rights complaint on December 1, 2014. This is 1 year and a day after the end of the alleged human rights violations, but less than a year after she had become aware of the alleged violations
Analysis / Conclusion
Under the Alberta Human Rights Act, a complaint needs to be made within 1 year of the discriminatory act.
The complaint in this case was made 1 year and a day after the last alleged discriminatory act. The complainant argued that she should still be able to make her complaint because she was not aware that certain acts were discriminatory until several weeks later. She was arguing effectively that she made her complaint within 1 year of when she knew she had been discriminated against.
The AHRT rejected this argument, and confirmed that the 1 year runs from when the events allegedly occurred, not when the person becomes aware of them:
 The statutory one-year limitation period under section 20(2)(b) of the Act runs from the date of the alleged discrimination. As the Alberta Court of King’s Bench noted in St. Albert and Area Student Health Initiative Partnership v Polczer, “the commencement of the limitation period is measured from the date of the act of discrimination, not the date(s) of the effects of discrimination.” Thus, the complainant’s argument that the limitation period runs from the date she discovered that she had been discriminated against (that is, December 22, 2013) is misconceived.
This decision would likely come as a shock to many outside of the legal community. However, it would also seem harsh and incorrect to many lawyers at first glance, because in front of most courts and tribunals, the timeline to bring an action would run from when you “knew or ought to have known” about the wrong allegedly done against you. This way it usually works is called the “discoverability principle”.
In Alberta Human Rights, the discoverability principle does not generally operate. Therefore, if someone does not become aware that they were discriminated against until more than a year after it occurred, they would have no ability to make a human rights claim.
The lesson in this case should serve as a reminder for human rights lawyers who already knew this, and a severe warning for those who did not.
Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Bow River Law is a team of knowledgeable, skilled and experienced lawyers handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.