The Human Rights Code allows for a person who believes that their rights under the “Code” have been infringed upon to file an application to the Human Rights Tribunal of Ontario. The “Code” states that the application must be made within one year after the incident, or if there were a series of incidents, within one year after the last incident in the series. But what happens when a person files an application outside of the limitation period?
Miller v. Prudential Lifestyles Real Estate is a leading case which examines this issue. Mr. Miller worked as a real estate broker with Prudential (the respondent). Mr. Miller alleged that he was terminated from his employment as he suffers from Hepatitis C. His application alleged discrimination based on disability.
The working relationship between Miller and Prudential was terminated effective June 11, 2007. In the meantime, Mr. Miller pursued a small claims action against his employer in a non-human rights unrelated matter. It was not until January 13, 2009, that Mr. Miller filed his human rights application. The “Code” states:
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.
The respondents argued that the application was submitted 19 months past the one-year limitation period and without any legitimate explanation. They further argued if the Tribunal allowed the application to proceed that they would suffer substantial prejudice.
Miller asked that the adjudicator accept his application based on section 34(2) which states:
(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.
Was the application in good faith?
After the reviewing the facts, the Tribunal decided that Mr. Miller’s application would not be heard as he had not established grounds for the Tribunal to exercise its discretion under this part of the act. The Tribunal ruled that “the applicant must show something more than simply an absence of bad faith…and that the one-year limitation period is consistent with the policy objective that human rights claims should be dealt with expeditiously, thus requiring the individual to act with all due diligence and to file their application within one year.” The application was dismissed.
Klein v. Toronto Zionist Council, 2009 HRTO 241 Ms. Klein was dismissed from her employment as a seasonal worker at a summer children’s camp. Her employment was terminated by letter on November 28, 2006. Her brother received a similar letter on the same day. In May of the next year her mother, who was employed by the same company, was also terminated. Ms. Klein filed a human rights application alleging discrimination based on family status, alleging the camp terminated her as part of a deliberate campaign by the employer to “drive out all members of her family” from employment at the camp.
The respondent claimed that the reasons for the terminations were due to “dwindling camp enrolment and that staff restructuring was necessary.” In addition they argued that Ms. Klein’s application should be dismissed as it exceeded the one-year limitation period under the “Code”. Ms. Klein relied on section 34(2) asserting that the delay had been incurred in good faith, explaining that the material facts and evidence she would rely upon to support her application, did not come to light until after the one-year limitation period.
The Tribunal referred to the discoverability doctrine stating, “The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated time frame that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.” The Tribunal ultimately rejected Ms. Klein’s argument as she had admitted that she had reason to believe that there was a pattern of behaviour inconsistent with the “Code”, at the time that she and her family members were terminated.
Ultimately Ms. Klein had failed to establish the “good faith” necessary for the Tribunal to accept her late application, and as a result the application was dismissed.
What constitutes good faith?
Hickmott v. YMCA of Western Ontario 2014 HRTO 742 Ms. Hickmott was terminated on February 6, 2013. On February 20, 2014 she filed an application alleging discrimination based on age. Ms. Hickmott had retained a lawyer shortly after the incident. She kept in contact with the lawyer though was still unsure if she wanted to submit the application. A short time before the limitation period, having made up her mind, she instructed the lawyer to file the application. Through a series of unfortunate events, the lawyer was unable to file until after the date of filing. In this case the adjudicator allowed the application and outlined the reasons why.
Applying section 34(2) he stated: “Where counsel is responsible for the delay in filing an application, this may constitute a good faith explanation”. (Patterson v. Mississauga (City), 2012 HRTO 598).
The takeaway is that the Human Rights Tribunal is not obligated to extend limitation periods in the filing of human rights applications, and will not extend a limitation period unless the applicant is able to establish a “good faith” delay.
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