This is general information only. It is not legal advice about your situation. This publication is not a substitute for a lawyer’s research, analysis and judgment.
- What is the time limit for filing an application at the Tribunal?
- What if the discrimination happened over a period of time?
- What do I do if my application is late?
- How will the Tribunal decide whether or not to accept my late application?
- When will the Tribunal be satisfied that the delay was incurred in “good faith?”
- When will the delay result in “significant prejudice?”
- How does the Tribunal deal with a case that is filed after the time limit?
If you want to make an application to the Human Rights Tribunal of Ontario (Tribunal) you must do so within time limits specified in the Human Rights Code (Code). Although the Tribunal has the discretion to extend these time limits, it is very important to understand that there is no automatic right to an extension, and the Tribunal may refuse to proceed with your application if it is late. You should make every effort, therefore, to file your application on time.
There are two different types of applications to the Tribunal and two different time limits:
- The first type of application is the original application under section 34(1) of the Human Rights Code (Code) (Form 1) or a Form 4 if you want to file an application on behalf of someone else. The time limit is one (1) year from the date of the last incident of discrimination
- The second type of application is for breach of an agreement to settle the original application. The time limit is six (6) months from the date of the last incident of breach. Allegations of breach of a settlement are under section 45.9(3) of the Code, Application for Contravention of Settlement (Form 18)
You must file your application within one (1) year of the date on which the discrimination happened, or if there was a series of events, within one (1) year of the last event.
You can find the wording in Section 34(1) of the Code:
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.
Section 34(2)(b) of the Code applies to this situation. An application would be filed on time if there was a series of incidents and you apply to the Tribunal within one (1) yearafter the last incident in the series. A series of incidents is when a number of discriminatory events happened over a period of time, or where there is an ongoing situation.
The Tribunal might still allow you to file your application even if it is late, but you will have to provide an explanation for the delay. Question 7(d) on the application form specifically asks you to provide your explanation. The Tribunal will also see a difference between a minor delay and a lengthy delay. For a long period of time between the incident and filing your application, the Tribunal may require that you provide evidence, for example, a medical report.
You have to prove both that you are making a sincere application with a valid reason for the delay and that the person responding to the application and others affected (witnesses, for example) will not be negatively affected by the delay.
You can find the wording in section 34(2) of the Code that sets out the factors the Tribunal will look at in deciding whether to proceed with an application even though it is filed outside the time limit. It says:
(2) A person may apply…after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and [emphasis added] no substantial prejudice will result to any person affected by the delay.
“Good faith” refers to the honesty, sincerity, and the absence of deception or improper motive in filing the application late. Every case will be decided based on its own facts. Depending on how late your application is, the Tribunal may ask you to provide very solid evidence about your reasons for the delay.
An example of a “good faith” delay would include a situation where you were a few weeks late because you genuinely believed your application had been filed and only found out later that it had not been. Other reasons would include that you were unable to file an application because of serious medical issues. Ignorance of your rights under the Human Rights Code will generally not be accepted alone as a reason for the delay.
“Significant prejudice” refers to harm or a negative effect on the person or corporation responding to your application (the respondent) caused by your delay in filing the application. Again, each case will be determined on its own facts. In general, the question is whether it would be unfair to require the respondent party to defend itself against your application, given the length of the delay.
For example, witnesses might be unable to recall incidents that happened a long time ago or records might have been destroyed. To show that there is no “significant prejudice” you will want to show that these types of problems do not exist in your case.
After receiving your application the Tribunal may send you a “Notice of Intention to Dismiss the Application”, asking you to justify why the application should go ahead even though it is late. You will be required to file a written submission, and the Tribunal will then issue a decision. The Respondent(s) may also be asked to make submissions.
The Tribunal may decide to proceed with your application without receiving submissions from the Respondent(s). Even then, the Respondent still has the right to make arguments about the issue, to convince the Tribunal that the case should not go forward. You will also be allowed to make further arguments. If the Respondent provides evidence showing that it is significantly prejudiced by the delay, or that the delay was not incurred in good faith, the Tribunal will issue a decision to dismiss.
If you would like to do some research to see the Tribunal’s decisions about late applications, you could go to the Canadian Legal Information Institute web site and search Human Rights Tribunal of Ontario decisions by the word “delay”.
You can also go to the Tribunal’s web site to see their Plain Language Guide to filing applications.