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Dismissal of Human Rights Complaints for Delay

The Ontario Human Rights Code allows the Tribunal to dismiss an application alleging workplace discrimination for delay. The key section is s. 34, and here’s what it says:

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.

(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.

So, an employee must file the complaint within one year from the last incident of alleged discrimination.  If she doesn’t, then her case will be dismissed, unless she convince the Tribunal that the employer will not suffer “substantial prejudice” and the delay was “incurred in good faith”.  That does all that mean?

The theory behind the delay section is to encourage employees to come forward with their human rights cases in a timely way, since human rights issues should be dealt with quickly.   Sometimes this can work against employees who do not understand the complexities of our human rights laws, and how they relate to other legal proceedings.  For example, there are loads of Tribunal cases dismissing applications filed after the one year mark when the employee’s explanation was that they were dealing with the complaint in another forum, such as grievance.  While the grievance process snails along, the time limit passes on filing a human rights complaint.  The Tribunal has taken the position that delay caused by an employee waiting to see if the matter can be resolved without a human rights complaint is not  a “good faith” reason for delay.  The reason is that the employee can, and should, file the human rights complaint in addition to whatever other legal proceeding is going on. See for example this case called Cartier v. Securitas Canada.  While that is legally correct, many employees are not aware of the need to file a “cover your ass” human rights complaint and allow the time period to pass while they are waiting for the matter to be settled elsewhere.

So our model encourages employees to always file a human rights complaint within a year of the alleged discrimination, even if another legal proceeding has commenced.  Sometimes an issue arises as to when “the last incident in a series” occurs.  Here is an interesting case that considers that point, called Mu v. Cargill Foods. The employee was dismissed in January 2008.  She believed it was for discriminatory reasons.  On June 2 2008, she filed a grievance under the collective agreement.  On June 4, the employer offered to settle the grievance by a sort of “last chance agreement”.  The employer indicated that the offer was open until July 18, 2008, after which it would expire.  The offer was not accepted, so it expired on July 18th.

She filed her human rights complaint on June 20, 2009.  That was clearly more than one year after her dismissal. However, she argued (among other things) that the “last chance agreement” proposed by the Employer to settle the grievance was itself discriminatory, and since that discriminatory offer remained on the table until July 18, 2008, that was the date of that last incident of discrimination in the series.  Very creative.

Unfortunately for the claimant employee, the Tribunal didn’t buy the argument.  The Tribunal said that, even assuming that a without prejudice settlement offer could form the basis of a Code discrimination complaint, the argument fails.  When the Code says “last incident in a series”, it must mean that last time that something “happens”:

The respondents argue, and I agree, that in order for an “incident” to occur, something has to happen.  This is consistent with the definition of “incident” in The Pocket Oxford Dictionary of Current English, 7th ed. (Oxford:  Clarendon Press, 1984) as an “event or occurrence”.

When a Tribunal pulls out the Oxford Pocket Dictionary, game over!  The last possible “incident”, on the applicant’s theory would be the making of the discriminatory offer (June 4).  The fact that the offer remained “open” until July 18th, does not extent that incident to July 18th.  Therefore, since she filed her human rights complaint on June 20th, it was too late.  The Tribunal rejected her argument that the delay was made in “good faith” because she was waiting to see how the grievance process would be resolved, for the reasons I noted above.

Do you think it is fair that the human rights cases are dismissed for delay in filing?


5 Responses to Dismissal of Human Rights Complaints for Delay

  1. Bruce Reply

    May 10, 2011 at 12:16 pm

    Like so much in law & life, there seems a need to balance between a reasonable delay and one that is unreasonable. I don’t feel that pursuing a remedy elsewhere only to find out, too late, that the HRT was an option, should count against an applicant. If the object is to eliminate human rights violations, why punish applicants who were actively seeking a solution through their CA?

    Given the silos surrounding grievances & WSIB, as examples, how would one know (absent learning the hard way) the cya Application is proper & expected? Union Reps are rarely lawyers, and lay-reps would have the ‘no double dipping’ edict ingrained in their thinking & are also probably more comfortable dealing in grievances.

    Is the assumption that people aren’t ignorant of the finer points of law still valid? It seems that this is the legal fiction that forms the basis of these decisions. It’s a good basis for managing caseloads & getting through backlogs; not good if it rids meritorious applications from the Tribunal’s scrutiny (which erodes peoples’ faith in the administration of justice).

  2. anon Reply

    May 10, 2011 at 2:52 pm

    I think the challenge there Bruce is that you end up distinguishing between not knowing your rights existed because you were busy in another forum and simply not knowing because you didn’t investigate the matter. If we accept that ignorance of your time limits is no excuse then does it really matter why you were ignorant?

    I will confess however that I’m not sure how loose Ontario is with the time limits. Here in BC they tend to be very strict with them.

  3. Heather Reply

    May 11, 2011 at 12:42 pm

    It seems to me the policy reasons for the time limit for filing are speedy resolution (which won’t change based on date filed, since the HRTO will probably put the matter on hold while the grievance process is underway) and to preserve evidence (which is already happening, if the grievance process is underway). I’m assuming that the grievance process in question clearly alleges the Human Rights violation. Having said that, a year to file a Human Rights complaint doesn’t seem unreasonable to me.

  4. Christina Reply

    May 26, 2011 at 11:04 am

    What would be considered a delay “incurred in good faith and no substantial prejudice will result?”

  5. robyn Reply

    June 5, 2011 at 3:31 pm

    There are nstances where a complainant did not realize that their charter rights are being violated until someone explains it to them. That is what happened to me and that was a few years after the fact.

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