Divisional Court orders reinstatement of HRTO application dismissed due to delay 

The applicant, Shawn Gardener, arrived at the office of the Human Rights Tribunal of Ontario (HRTO) around 4pm on August 29, 2019 intending to file her HRTO application in person. 

She had to file her application with the HRTO that day to meet the one-year timeline for filing applications as set out in section 34(1) of the Human Rights Code (Code)

The Ontario Human Rights Code says applications must be brought within 12 months from when the discrimination, harassment or reprisal occurred.

If the discrimination, harassment or reprisal is ongoing or has occurred several times, the 12 months is counted from the most recent date. In rare circumstances, the Tribunal will accept a late application.

A 5pm Deadline:

She had an electronic copy of her application, on a USB stick, but needed a paper copy of the document to file it in person at the HRTO office.

The HRTO provided her with access to a computer and printer but, due to technical issues, she was unable to provide a paper copy of her application until 5:20 pm. The HRTO staff refused to accept the application at that time as it was after 5pm. 

Due to a family emergency, she was unable to attend the HRTO office again to file her application until September 5, 2019.

Application Dismissed ‘Due to Delay:’

In Gardener v. Abell Pest Control Inc., 2022 HRTO 278, the HRTO dismissed Gardener’s application due to delay, because she missed the deadline for filing set out in the Code. The HRTO found she did not have a good faith reason for the delay, which would allow for the acceptance of a late-filed application under section 34(2) of the Code

This dismissal was upheld by the HRTO on reconsiderationGardener v. Abell Pest Control Inc., 2022 HRTO 794.

Judicial Review Declares Application Timely:

Gardener then filed an application for judicial review of both HRTO decisions with the Divisional Court. In Gardener v. Abell Pest Control Inc., 2023 ONSC 2026, the Court agreed with Gardener that both HRTO decisions were unreasonable. 

The Court held that the HRTO should have found the application had been filed on time, given Gardener’s efforts to file on August 29, 2019. Alternatively, the HRTO had the discretion to accept the application after 5pm. 

The Court, with respect to the appropriate remedy, substituted its own decision for that of the HRTO. The Court declared that Gardener’s application was timely and should be allowed to proceed through the HRTO’s process.