Labor & Employment Law

Delay in Filing an Application Under the Human Rights Code

By Michael Fitzgibbon

Section 34 of the Ontario Human Rights Code provides that a person who believes that he or she has a complaint may apply to the Tribunal:

    (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.

An applicant may apply after the expiry of the time limits under that subsection 34 "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".  Where a good faith explanation for the delay is not supplied, the application is dismissed.

There is a heavy onus on an applicant seeking to provide a reasonable explanation for the delay.    

As the Tribunal recently stated "there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion".  In that case, the applicant appears to raise as explanation for the delay that he believed that he was precluded from pursuing a complaint under the Code because he had signed some document at the time he received his last paycheck.  

I dismissing the application and determining that the reason supplied was not reasonable, the Tribunal relied upon comments from the Court:

Failure to act in ignorance of one?s rights may, in some circumstances, amount to ?good faith?. However? it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.

Busch v. Amos, [1994] O.J. No. 2975 (Ct. J. (Gen. Div.)), cited in Scherer v. Scherer, 2002 CanLII 44920 (ON C.A.), 2002 CanLII 44920 (ON C.A.) at para. 24.  See also Lafleur v. Kimberley Scott, 2009 HRTO 1141 (CanLII), 2009 HRTO 1141 (CanLII), Vaya v. Apache Burgers, 2010 HRTO 1289 (CanLII), 2010 HRTO 1289 (CanLII), and Waithe v. Brofort, 2010 HRTO 1254 (CanLII), 2010 HRTO 1254 (CanLII).

As the Tribunal noted in Lafleur:

With nothing more, mere ignorance of one?s rights will rarely suffice to establish that delay was incurred in good faith, particularly where the delay has been significant, as is the case here.  To establish good faith, the applicant must establish that it was reasonable for her not to make enquiries about her rights during the period in question. The applicant felt that the termination of her employment was unfair at the time it happened.  It was not reasonable for her not to make any inquiries about her rights other than contacting the Labour Board. I am not satisfied that the period of delay to August 2008 was incurred in good faith. 

Furthermore, "delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one?s rights".

So, while in an appropriate case the Tribunal will exercise its discretion and allow an applicant to file and pursue a complaint under the Code after the time limits the onus on the applicant is indeed a heavy one and where "ignorance of one's rights" is the reason put forward as the explanation for the delay a line of cases is developing on the factors that will be considered in assessing the "good faith" of such an explanation.  

Full post as published by Thoughts from a Management Lawyer on August 12, 2010 (boomark / email).