Home Featured Ontario Human Rights Tribunal rejects sexual harassment claim because it was filed late, no proof of illness to justify delay

Ontario Human Rights Tribunal rejects sexual harassment claim because it was filed late, no proof of illness to justify delay

by HR Law Canada

The Human Rights Tribunal of Ontario has rejected a workplace sexual harassment claim against Scarborough and Rouge Hospital because it was filed 19 months after the incident happened.

The province’s Human Rights Code requires applications to be filed within one year of an incident, or within one year of the last incident in a series of events. It will only consider extensions in cases where illness or disability “incapacitates” a person to the point where the claim can’t be filed, wrote tribunal member Karen Mason in the ruling.

And there must be solid evidence to back up that claim, she wrote.

What happened

The victim said she was unable to file her tribunal claim within the one-year deadline due to illness, and also because she was advised by her union to wait until the workplace grievance process had been completed.

She said she suffered significant mental health issues after the incident, though did not provide medical evidence to establish that she suffered a disability that prevented her from filing her application within the one-year time frame.

“It accords with common sense that if someone seeks to extend the one-year limitation period… the applicant seeking such relief must put before the HRTO medical evidence that explains the applicant’s disability and how that disability prevented the applicant from filing his or her application in a timely fashion,” said Mason.

The alleged incident took place on Nov. 25, 2015. The application to the tribunal was filed on June 27, 2017. The incident was reported to the victim’s director HR and occupational health by email on Aug. 24, 2016.

The tribunal also pointed out that the victim was medically cleared to participate in the employer’s investigation into her sexual harassment complaint. And she also testified she was “medically cleared to attend school to upgrade her professional qualifications.”

Advice from the union

It also pointed out that the union’s advice that a human rights application might be premature came in March and April of 2017, some four to five months after the 12-month limitation period had already expired.

For more information see Latchman v. Scarborough and Rouge Hospital, 2022 HRTO 1033 (CanLII)

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