On July 20, 2020 the Divisional Court, in Pereira v. Hamilton Police Services Board, 2022 ONSC 4150, ruled that the Human Rights Tribunal of Ontario (HRTO) erred in applying the wrong legal test to Ms. Pereira’s late request to reactive her application under Rule 14 of the HRTO’s Rules of Procedure (Rules).
Ms. Pereira filed an application at the HRTO in 2013 that was deferred by the HRTO in 2014 for four years until another legal proceeding concluded. Ms. Pereira was 40 days late in filing her request to reactivate due to solicitor inadvertence. The HRTO found that Ms. Pereira had not provided a good faith explanation for her delay and decided there was no need to consider prejudice. Thus, The HRTO denied Ms. Pereira’s request to reactivate and dismissed her application. When Ms. Pereira’s requested that the HRTO reconsider its decision (under Rule 26 of the Rules), her request was denied.
The HRTO’s decision was based upon its interpretation of Rule 14 of the Rules, which gives the Tribunal discretion to defer the consideration of an application. However, under Rule 14.4, where an application has been deferred pending the outcome of another proceeding a request to reactivate the application must be made within 60 days of the conclusion of the other proceeding. In addition, Rule 1.7 provides additional direction on matter, as “[in] order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may: a. lengthen or shorten any time limit in these Rules”. The HRTO, however, applied the statutory test under section 34(2) of the Code, which provides that a person who believes that their rights have been infringed may apply to the HRTO for relief within one year of the incident to which the application relates. Section 34(2) provides for that time limit to be extended if the HRTO is satisfied that “the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.”
The Divisional Court found that the HRTO erred in applying a section 34(2) test in three ways. First, the HRTO unreasonably decided to limit the wide discretion available to it under Rule 14.4 and Rule 1.7 by adopting the test in section 34(2) of the Code. Nothing in the wording of the Code justified that result. In fact, the Court found the opposite was the case when referencing section 40 of the Code which requires the HRTO to “adopt the procedures and practices … which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.” Additionally, section 41 of the Code requires the Tribunal to liberally construe its rules so as to permit it to “facilitate fair, just and expeditious resolutions of the merits of the matters before it.”
Second, the HRTO unreasonably relied on prior jurisprudence, including the decision in Marc-Ali v. Graham, 2012 HRTO 502. The Court noted that the HRTO misplaced reliance on Marc-Ali which did not stand as authority for the proposition that the HRTO in this case took it to say. In fact, according to Marc-Ali, even if the explanation for the delay is not reasonable, there is a need to examine prejudice. Moreover, the HRTO relied on another case, Ouwroulis v. New Locomotion, 2009 HRTO 335, to justify its decision to import the section 34(2) test into Rule 14.4. The Court noted, however, that Ouwroulis had nothing to do with late reactivation requests or the test for such requests articulated in Rule 1.7 of the Rules.
Third, the HRTO also unreasonably imported the section 34(2) case law into its analysis of whether it accepted Ms. Pereira’s explanation for the delay. That explanation rested on uncontroverted evidence of solicitor inadvertence, yet he HRTO could not point to any case where a late reactivation request was rejected when the delay was based on unchallenged solicitor inadvertence. Ms. Pereira provided several cases where the opposite occurred, and while the HRTO acknowledged that line of jurisprudence, the HRTO unreasonably rejected it in favour the section 34(2) jurisprudence, even though the test at issue was not the section 34(2) test.
The Divisional Court remitted the matter back to the HRTO for a new hearing. It noted that the HRTO has a broad discretion to exercise, which involves considering a number of relevant factors, including the explanation for the delay, matter of any prejudice to the parties caused by the short delay and possibly the merits of the application.
For more information on this case, please read:
Pereira v. Hamilton Police Services Board, 2022 ONSC 4150