As we have mentioned before, if you have experienced discrimination or harassment in the workplace, one option is to bring a complaint to an administrative body like the Human Rights Tribunal of Ontario (HRTO).
As with any employment law claim, it is critically important to understand that there are deadlines that you need to comply with when filing an application with the HRTO. If you miss the time limit, the HRTO may refuse to deal with your matter.
This article reviews the time limit to apply to the HRTO and the circumstances in which the Tribunal might decide to hear the claim even if the deadline is missed. We also reviewed a recent decision in which the employee applicant missed the time limit, and the HRTO dismissed the application.
Employers cannot discriminate on prohibited grounds or engage in harassment
If you believe you have experienced discrimination or harassment, one option for non-federally regulated employees is to file an application with the HRTO.
Under section 5 of the Ontario Human Rights Code (Code), every person has a right to equal treatment with respect to employment without discrimination because of a range of enumerated grounds. The Code contains the same right to freedom from harassment in the workplace.
Applications that do not settle go to a hearing. The HRTO has the power to grant a wide range of remedies, from monetary compensation to restitution to an order requiring a party to do anything that will promote compliance with the Code.
Time limit to apply to the HRTO and the possibility of being granted an extension
Under section 34 of the Code, if a person believes they had a Code right infringed, they are allowed to apply to the HRTO within one year or one year after the last incident if there was a series of incidents.
The Code envisages the possibility of receiving an extension from applying to the HRTO. However, they are generally difficult to obtain, and it is far preferable to apply to the HRTO within one year of the incident. According to the Code, a person may apply after the expiry of the time limit if the HRTO finds that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
Was the delay incurred in good faith?
The HRTO has placed a fairly high onus on applicants when advancing a good-faith explanation for the delay. They need to prove that they acted with due diligence, which can be difficult.
For example, the HRTO has held that simply failing to know one’s rights or that they could have applied to the HRTO is insufficient to explain why they could not have made enquiries and learned their rights by the deadline.
Will substantial prejudice result?
Even if the delay was incurred in good faith, the application would be dismissed if the delay resulted in substantial prejudice. In assessing whether prejudice will result from allowing the application to proceed despite the delay, the HRTO may consider the delay’s length and the delay’s impact on a party’s ability to respond to the application. For example, the delay might prevent the other party from being able to obtain witnesses or documents relevant to the application.
Employee applied to HRTO over one year after last incident of alleged discrimination
In the recent HRTO decision of Mohamed v Veg-Pak Produce Ltd., the employee applicant claimed discrimination on the basis of race and sex. She alleged that she was subjected to sexually harassing behaviour.
The employee applied to the HRTO in December 2018 but claimed in the application that the last incident of discrimination occurred in October 2017, which was the date she resigned. At the preliminary hearing, the applicant claimed that events after resignation were also part of the series of incidents, meaning that the application met the time limit.
Post-resignation incidents were not employment-related
Adjudicator Gomes explained that in order to form part of the series of incidents, the incident needs to be a discriminatory act in itself, not simply connecting back to, or being a consequence of, a prior allegation of discrimination.
While the applicant attempted to arrange meetings after resigning, this was not a new discriminatory incident. In addition, claims that one of the perpetrators gave a “thumbs down” to one of her social media posts and that she was harassed by her ex-partner, who was also an employee, were not employment-related as required by the Code.
Employee did not prove good faith for the delay
The employee argued that the delay was incurred in good faith because she was unaware of her right to pursue a claim at the HRTO and that her medical and life circumstances prevented her from applying.
Adjudicator Gomes found that the applicant made a choice to delay enquiring into her rights with a lawyer due to financial constraints. This was insufficient to establish good faith in the circumstances. A psychologist’s note related to treatment in 2019 and 2020, which was after the relevant period, could not support her argument that a medical condition prevented her from filing the application by the time limit.
The Adjudicator decided that the applicant’s life circumstances were not so severe as to have prevented her from filing the application on time. As a result, the applicant failed to establish good faith for the delay, and the HRTO dismissed the claim.
Contact Haynes Law Firm in Toronto for Highly Skilled Representation in Employment Discrimination Claims
Don’t miss out on the chance to have your claim heard. Contact Toronto employment lawyer Paulette Haynes early to give you the best chance of securing fair compensation or a remedial remedy appropriate for your circumstances. Haynes Law Firm has worked on both sides of this issue and also helps employers maintain harassment-free workplaces and deal with allegations of human rights violations. Please fill out the online form or call us at 416.593.2731.