This guide is general information only. It is not legal advice about your situation. This guide is not a substitute for a lawyer’s research, analysis and judgment. This guide is reliable as of the date of publication (January 2021). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.
If you wish to prepare and file an application to the Human Rights Tribunal of Ontario (HRTO) you must do so within the time limits specified in the Human Rights Code (Code). A time limit to file a legal claim, including an HRTO application under the Code, is called a limitation period.
This means that you must file your HRTO application within either one (1) year or within six (6) months, depending on the type of HRTO application you are intending to file. More information about these two (2) types of limitation periods is available below in the next section.
It is important to understand that missing a limitation period under the Code is a potential defence to a HRTO application. If your HRTO application is not brought within the relevant limitation period, you run the risk that the HRTO will find that your application is out of time (also referred to as statute-barred) and your application may be dismissed.
Although the HRTO can extend the Code’s limitation period, there is no automatic right to an extension of time. The HRTO may refuse to proceed with your application if it is out of time.
You will need a very good explanation to justify being late with your HRTO application. You should therefore make every reasonable effort to file your HRTO application on time.
There are two (2) types of HRTO applications with a limitation period under the Code. The first is an application under section 34(1) of the Code. This refers to an application alleging discrimination related to a social area such as employment, housing, or services, goods and facilities.
Section 34(1) of the Code provides that a person may apply to the HRTO within one (1) year after the incident of discrimination to which the application relates. If there was a series of incidents, a person can apply within one (1) year after the last incident in the series (using HRTO Form 1 or a Form 4 if you want to file an application on behalf of someone else).
Second, a person may submit an application for a contravention of settlement under section 45.9(3) of the Code (using HRTO Form 18).
Section 45.9(3) of the Code provides that, where there is a written and signed settlement of a human rights application, a party who believes that another party has contravened, or breached, the settlement may make an application to the HRTO.
This application must be made within six (6) months after the contravention to which the application relates. If there was a series of contraventions, the application must be made within six (6) months after the last contravention in the series.
Section 34 of the Code provides that a human rights application is filed in time if there was a series of incidents of discrimination and have applied to the HRTO within one (1) year after the last incident.
A series of incidents occurs where there are several discriminatory events that happen over a longer period than one (1) year from the date of filing the HRTO application.
For example, an employee may have filed an application at the HRTO in January 2020 but the discriminatory events during the employment may go back longer than January 2019 and may have started in July 2018.
In this case, the period of discriminatory incidents runs from July 2018 to January 2020, a period of eighteen (18) months. Normally, the discriminatory events that happened between July and December 2018 would be out of time because they are outside the one (1) year limitation period.
But if the events that occurred prior to January 2019 can be connected to the events that happened later, then you may be able to establish a series of incidents. This would mean that all the discriminatory events between July 2018 and January 2020 would be in time and allowed to proceed at the HRTO.
The HRTO’s leading case on a series of incidents under section 34 of the Code is Garrie v. Janus Joan, 2012 HRTO 1955 (CanLII). In general, the following factors will be relevant to the HRTO’s determination of whether allegations of discrimination relate to a series of incidents:
- What is the last alleged incident of discrimination to which the application relates?
- Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
- What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?; and
- What is the temporal gap, or gap in time, between alleged incidents of discrimination?
Garrie is a good case to review if your case involves a dispute about whether your HRTO application is in time where you claim discriminatory events beyond the one (1) year period before you filed your application.
A series of contraventions is a very similar concept to a series of incidents, except that this relates only to breaches of settlement agreements.
Using the example above again, an applicant may have filed a breach of settlement application at the HRTO in January 2020 which includes breaches that go back longer than July 2019 – that is, longer than six (6) months – to May 2019.
In this case, the time period for the breaches of the settlement runs from May 2019 to January 2020, a period of eight (8) months. Normally, the alleged breaches that happened between May and July 2019 would be out of time because they are outside the six (6) month limitation period.
But if the breaches that occurred prior to July 2019 can be connected to the later breaches, then you may be able to establish a series of contraventions. This would mean that all the breaches of settlement between May 2019 and January 2020 would be in time and allowed to proceed at the HRTO.
There are two (2) ways by which the HRTO may have to decide whether your application should be dismissed for delay.
First, after reviewing your application, the HRTO may send you a Notice of Intention to Dismiss the Application (NOID) asking you to explain why the application should go ahead even though it appears to be out of time. You will have the opportunity to file written submissions. The respondent(s) may also be asked to make submissions.
Second, a respondent, after receiving your application from the HRTO, may file a Request for an Order During Proceedings (RODP), using HRTO Form 10, asking the HRTO to dismiss your application as being out of time. You will have the opportunity to file a written submission in response, using HRTO Form 11.
The HRTO uses the same legal test under both section 34(2) and 45.9(4) of the Code to decide if it should accept your late application. This legal test is not easy to satisfy. The HRTO has stated repeatedly that there is a very high onus of proof on an applicant to meet the test. See Johnstone v. Unifor Local 2458, 2020 HRTO 277 (CanLII).
There are two parts to the test. First, you must show the HRTO that you have a good faith reason for the delay. This means that you must provide a reasonable explanation for not being able to file your application on time.
Good faith refers to honesty, sincerity, and the absence of deception or improper motive. Every case will be decided based on its own facts. Depending on how late your application is, the HRTO will ask you to provide very good evidence about your reasons for the delay.
An example of a good faith delay may include 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 may include that you were unable to file an application because of serious medical issues. However, the HRTO has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See, for example, James v. York University and Human Rights Tribunal of Ontario, 2015 ONSC 2234 (Div. Ct.) (CanLII).
Ignorance of your rights under the Code will generally not be accepted as a reason for the delay. It is not enough to simply say that you did not know your rights. You must also prove that you had no reason to ask about those rights. See Abhar v. Ontario (Attorney General), 2020 HRTO 376 (CanLII).
The HRTO has also found that waiting for another proceeding to conclude, including an internal investigation, before filing an application will generally not be considered a good faith reason for delay. See Spooner v. Student Administrative Council Inc., 2015 HRTO 1320 (CanLII).
Substantial prejudice refers to the harm or negative effects on the person or organization responding to your application (respondent) caused by your delay in filing the application. Again, each case will be determined on its own facts.
In general, the HRTO must decide whether it would be unfair to require the respondent to defend itself against your application, given the length of the delay. The longer the delay, the more likely it is that the respondent will suffer substantial prejudice.
For example, a witness for a respondent might be unable to recall incidents that happened a long time ago or documents and records might have been destroyed due to the passage of time. Because of this, it may be very difficult for a respondent to properly defend the HRTO application. In such a case, the HRTO may decide it would be unfair to allow the application to proceed.
You should be aware that the HRTO does not always have to consider both parts of the test under sections 34(2) and 45.9(4) of the Code – good faith and substantial prejudice – in every case.
If you are unable to provide a good faith explanation for the delay, then the HRTO will not need to determine whether there is any substantial prejudice caused by the delay. See Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 (CanLII).
If the HRTO accepts that you have a good faith explanation for the delay, then the HRTO must then go on to consider whether there is any substantial prejudice caused by that delay.
A HRTO decision to dismiss your application for delay is a final decision. This means that, if the HRTO dismisses your application due to delay, you may request a reconsideration under HRTO Rule 26 of its Rules of Procedure.
The HRTO’s power to reconsider a final decision is limited to the grounds set out in HRTO Rule 26.5. You have thirty (30) days to request a reconsideration.