Focus: A More Contextual Approach to the Human Rights Tribunal of Ontario’s One-Year Limitation Period
Generally, the one-year limitation period at the Ontario Human Rights Tribunal (the Tribunal) has been applied quite stringently by the Tribunal with the threshold applied being so high that most applicants who fall outside the one-year limitation period are often shut out from being able to have their applications heard.
An analysis of a recent decision, however, demonstrates that if the Tribunal adopts a more contextual approach to the one-year limitation period then more applicants may be able to have their applications heard provided they have a reasonable explanation for their delay in filing an application within the one-year limitation period.
The One-Year Limitation Period at the Tribunal
Section 34 of the Ontario Human Rights Code (the Code) stipulates that an applicant seeking to have their matter heard by the Tribunal must file their application within one year from the date of the incident (or the last incident in a series of incidents).
Applications beyond the one-year limitation period are permitted if they satisfy the section 34(2) test, where the applicant must demonstrate that the delay was incurred in good faith and that it will cause no substantial prejudice. Section 34 reads as follows,
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 incidents 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 anyone affected by the delay.
Of the two factors considered under section 34(2), the majority of the HRTO jurisprudence focuses the test for good faith delay and whether an applicant has been successful in demonstrating that their delay was incurred in good faith.
The Test for Good Faith Delay
In order to establish that delay was incurred in good faith pursuant to section 34(2), the applicant must provide the Tribunal with a reasonable explanation for the delay and why they did not pursue an application within the one-year time limit.
The Tribunal has set a “fairly high” threshold for applicants to demonstrate a reasonable explanation. The applicant must demonstrate that they acted honestly and without an ulterior motive in the period of delay. The applicant must also prove that the delay was not a result of “willful blindness” to make inquiries about their rights.
The Tribunal may also recognize that the applicant has experienced legitimate personal circumstances related to the human rights claim itself that may justify delay beyond the one-year limitation period. For example, it is open for the Tribunal to consider whether Code-related reasons (such as disability) affected the applicant’s ability to file an application within the time limit.
How has the Tribunal interpreted “good faith delay”?
While the test may sound broad and flexible, the Tribunal has traditionally taken a strict approach in deciding whether an applicant’s delay in filing was incurred in good faith. In other words, early case law indicates that good faith delay was considerably hard to prove.
For example, the Tribunal has heard several matters where applicants argued that anxiety, depression, family care obligations or financial hardship contributed to the reasons why they were not able to file within the time limit and amounted to good faith delay. The Tribunal routinely rejected each of these arguments. In Kelterborn v. Toronto (City), the Tribunal clarified the test by stating that,
While the Tribunal accepts that a delay may be in good faith because of an applicant`s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code.
Taken together, these early decisions create a very high threshold that is almost impossible to meet for many applicants, whereby an applicant can only demonstrate good faith delay with explicit medical evidence that they were completely prevented from filing their application within the one-year limitation period.
Recent Decisions on Good Faith Delay Suggest a Contextual Approach
More recent Tribunal decisions suggest that the Tribunal may be adopting a more contextual approach to the good faith delay test. For example, in M.C. v. London School of Business , the Tribunal reinforced that an applicant need only demonstrate a reasonable explanation. In that case, the Applicant argued that the delay in filing his application was the result of a serious mental health disability that required a period of hospitalization. The Tribunal emphasized that the intention of section 34(2) is not to impose an “impossibility standard” whereby an applicant must “establish that it was impossible for him to file his Application any earlier than he did.” Rather, the test is whether an applicant “has a reasonable explanation for not filing the Application before he did.”
In TP v St Clair Catholic District School Board, the Tribunal appears to take its approach in M.C. a step further by applying an even more flexible and contextual test in deciding delay.
In TP, a mother (“OP”) brought an application on behalf of her child, a minor, against the local school board alleging discrimination following her son’s removal from that school district. She filed the application 22 months (almost 2 years) after the last alleged incident of discrimination.
OP provided several reasons for the delay. She stated that following the alleged incidents of discrimination, she had to find a new school for her son and they had to relocate to a new house twice. Further, her son required extra care and attention, because due to his disability, he did not adjust well to change. Further, he was upset because of the alleged discrimination, the change in school and the change in residence.
OP also argued that her own disabilities contributed with her inability to file her application within the one-year limitation period. She provided medical documentation confirming that she experienced symptoms related to anxiety and depression. She also provided letters from various support persons in her life.
The Tribunal found that OP satisfied the test for good faith delay. While confirming that the test for good faith delay is a “fairly high bar”, the Tribunal reinforced that in some circumstances, disability may prevent an individual from making the necessary inquires and taking the steps to file a timely application. Of particular importance is the fact that the Tribunal found that the combination of OP’s disability, the need to attend to more pressing and immediate matters, such as the safety and security of her son, and her own personal stresses was sufficient to make out good faith delay:
In this case, it is very clear that the applicant has had a great deal to contend with. The fact that she was unable to give priority to filing a human rights application is understandable because of the immediate needs of caring for her son and ensuring that he felt safe together with the other things that were happening in her life. The applicant has provided medical documentation that she suffers from symptoms of anxiety and depression. … the Tribunal has recognized that in some circumstances, disability can hamper or prevent an individual from making the inquiries and taking the actions needed to file an Application …
In my view, the combination of the applicant’s disability and significant personal stresses and the need to attend to more immediate matters provides a good faith explanation for the delay in this case.
In its decision, the Tribunal demonstrated that it is alive to the multitude of factors that may impact an applicant with a disability and to take those into consideration when determining whether delay beyond the one-year time limit was incurred in good faith.
While earlier HRTO decisions demonstrated a strict application of the section 34(2) test to applications filed outside the one-year limitation period, the analysis in M.C.and more importantly in TP, suggests that there may be room for a shift from the impossibility standard placed upon applicants and that the Tribunal may be open to adopting a more contextual approach.
ARCH will continue monitoring HRTO decisions pertaining to this issue.