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Out of time, out of luck

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I recently represented a client at a prehearing before the Ontario Human Rights Tribunal (the “Tribunal”), arguing that an application filed 2 months after the 1-year deadline set by the Tribunal should be dismissed as untimely. We were successful and the application, which was filed 14 months after an allegedly discriminatory dismissal, was dismissed in its entirety.

In preparing for this case, I was struck by the number of decisions on this very issue. It suggests that while there are timelines and deadlines set by the Tribunal – in Ontario, that deadline is 1 year – all may not necessarily be lost if an application is filed after the deadline. Indeed, the Tribunal has an exception to its 1-year deadline rule for “exceptional circumstances” or where the application deadline was missed in “good faith”. What these “exceptional circumstances “or “good faith” reasons may be is highly dependent on the case. However, in all cases, the burden is on the applicant to prove that the delay was incurred in good faith.

The reason cited in most of the cases we reviewed, and the one alleged in my recent case, was that a disability prevented the applicant from filing the application. In these circumstances, the applicant needs to show: (i) the existence of a disability; and (ii) that the disability was so debilitating that he or she could not move forward with filing the application. To satisfy both prongs, medical documentation and opinions will be needed to substantiate the applicant’s claim that they were too unwell to proceed with the application. The medical documentation should be detailed and ideally, contemporaneous, as it will be scrutinized and challenged by the opposing side. Provided that the Tribunal is convinced that a disability (or other circumstance) caused the delay, it is likely that the application will be allowed to proceed, notwithstanding the timelines set for parties, if proceeding does not cause undue prejudice to the opposing side.

As such, for employers, who may be facing applications filed outside the 1-year filing timeline, it is safe to assume that the delay does not necessarily mean that the application will be dismissed outright. Employers will first need to challenge the evidence provided by the applicant that the delay was incurred in good faith (i.e. scrutinizing the medical documentation and/or the actions of the applicant during the alleged debilitated period). If that challenge is not successful, employers need to show that allowing the application to proceed would prejudice them. This prejudice needs to be significant. Common examples are the unavailability or lack of access to key witnesses or faded memories of the issues.

All of that said, as employees who believe that a breach of the Ontario Human Rights Code has occurred, the 1-year deadline exists for filing an application and will be enforced, as it was in our case, where there are no exceptional circumstances. So, it is safest to seek legal counsel and file an application as soon as possible after a violation or incident. If the 1-year timeline has passed, and exceptional circumstances do not exist, a civil claim may be an option if the 2-year limitation period has not passed and legal counsel should be sought in this regard.

For employers, as soon as you receive an application, first check the date of the allegations/incidents and if they fall outside the 1-year timeline (and they are not part of a series of events, the last of which falls within the 1-year timeline), it may be time to first argue, or have your counsel argue, that the applicant is out of time and as a result, out of luck.

Parisa Nikfarjam

About the Author: Toronto Employment Lawyer Parisa Nikfarjam regularly speaks to human resources professionals, educators, and business owners about employment law and workplace human rights issues. Parisa has designed and delivers interactive workshops on such topics as youth employment, harassment and bullying, and social media in the workplace.