Sexual harassment claim dismissed, Ontario human rights tribunal cites delay in filing

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The Human Rights Tribunal of Ontario has dismissed a sexual harassment claim against Veg-Pak Produce because the accuser took too long to file her complaint.

Under the province’s human rights legislation, the tribunal has no jurisdiction over an allegation if it took place more than one year before the filing of the application.

In this case, the woman who made the claim filed it on Dec. 18, 2018. But the last alleged incident occurred on Oct. 1, 2017 — her last day of employment at Veg-Park.

The tribunal said it can’t consider claims outside the one-year period unless:

  • the delay was incurred in good faith; and
  • no substantial prejudice will result to any person affected by the delay.

Reasons for delay

The woman said she did not file her claim in a timely manner for a number of reasons.

First, she was unaware she had a right to pursue a claim at the tribunal. And, second, her medical and life circumstances prevented her from filing.

She said she sought advice from a lawyer and a paralegal who specialized in employment law, but neither told her about the option of filing at the tribunal. Nor did they tell her there was a one-year window to make such a claim.

A different lawyer, that she talked to in 2018, told her about the opportunity — at which point she filed her claim.

At the hearing, she testified that had she known about her rights, she would have filed earlier — though doing so would have had a negative impact on her health.

A choice to delay

The tribunal said that a “failure to be informed of one’s rights by counsel is insufficient to constitute a satisfactory explanation for why the applicant could not have made enquires and learned of these rights in a timely manner.”

It said that, from her submission, it was clear that she turned her mind to potential legal action as early as February 2018, “but was unable to do so because she lacked the necessary financial resources.”

When she found a long-term job in September 2018, she sought legal advice and found out about her right.

“It cannot be said that the applicant was unable to make the necessary enquiries into her rights in a timely manner. Rather, she made a choice to delay her enquiries owing to financial constraints,” the tribunal said. “This is not sufficient to establish good faith in the circumstances.”

Health and life circumstances

The woman also said she did not file her claim on time because of health and life circumstances. Specifically, she said she was subjected to ongoing harassment from her ex-partner and also suffered a physical assault.

That made her fearful for her safety, and she suffered from depression and anxiety.

“She states that as a result of the trauma, she was powerless, in a state of disassociation where she was unable to function and, owing to the cumulative effect of these factors, was unable to pursue her human rights claim during the limitation period,” the tribunal said.

She submitted medical documentation from a registered clinical psychologist, confirming a diagnosis of post-traumatic stress disorder (PTSD). But the treatment of the woman occurred in 2019 and 2020, the tribunal said, which was outside the relevant time period.

Further, the commentary from the psychologist did not make a connection between her disability and the inability to file.

Engaging in life

The tribunal also noted that the woman had to engage in other facets of her life during the period when she could have filed a claim.

“For instance, between the time her employment ended and the filing of her application, the applicant reached out to the (former employer) on more than one occasion, she participated in criminal proceedings against her ex-partner including communications with police and the Crown, she sought out and consulted with three separate legal professionals, she attended counselling and sought referrals to trauma and domestic abuse programs, and she sought out and maintained other employment,” it said.

Therefore, the woman failed to establish good faith for the delay and the application was dismissed.

For more information see Mohamed v. Veg-Pak Produce Ltd., 2022 HRTO 1193 (CanLII)

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