The Human Rights Code provides:
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.
(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 any person affected by the delay.
The Ontario Human Rights Tribunal has considered this section in hundreds of cases. Recently it considered whether waiting to see how another proceeding unfolded was a reasonable explanation for a delay in commencing an application under the Code. The case is Baughman v. The Beer Store, 2017 HRTO 75 (CanLII).
The case involved allegations of sexual, verbal and physical harassment over a period of years. The applicant pursued her claims under the Workplace Safety and Insurance Act with the Workplace Safety and Insurance Board and the Workplace Safety and Insurance Appeals Tribunal. After what the Tribunal described as “a multi-year appeal process”, the WSIAT held that her condition was not a compensable injury under the Act. At this point she commenced an application under the Code, but this was after the limitation in 34(1) of the Code. According to the Tribunal she argued:
…. that she could not have pursued an application before this Tribunal if she were pursuing essentially the same claim before the WSIB and WSIAT. She argued that the WSIA and its administrative bodies took precedence over any other forum in respect of injuries arising out of, and in the course of employment
The Tribunal dismissed her application (that decision is Baughman v. The Beer Store, 2016 HRTO 1344 (CanLII)). She sought Reconsideration. The Tribunal considered a number of earlier decisions and held that “the Tribunal has consistently held that waiting for another legal proceeding is not generally a reasonable explanation for a delay.”
The Tribunal quoted, with approval, from Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 (CanLII) at para. 23, where the Tribunal stated:
The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the Ontario Labour Relations Board and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other fora relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.
Applicants must pursue their claims promptly, within the time limits prescribed under the Code even where doing so results in a multiplicity of proceedings. This case is another in a long line of cases that discuss the risks.
Also of note is that the Divisional Court released a decision on January 21, 2017 in which it considered “the last incident of discrimination in order to determine if the application to the Tribunal is timely.” In doing so, it dismissed an application for judicial review and upheld the Tribunal’s decision and reconsideration decision.