The Human Rights Tribunal of Ontario has dismissed a human rights application brought against Arterra Wines Canada and three individuals, finding that the claim was filed outside the one-year limitation period set out in the Human Rights Code and that the applicant did not show “good faith” reasons for the delay.
Adjudicator François Henrie ruled that the applicant’s submission, received after the Code’s one-year time limit, fell outside the tribunal’s jurisdiction.
“An adjudicative body either has jurisdiction or it does not,” Henrie wrote, citing G.-L. v. OHIP (General Manager), 2014 ONSC 5392.
Allegations
A.L., who was self-represented, alleged discrimination in employment on the basis of multiple grounds including disability, family status, gender identity and sex. The application named Arterra Wines Canada Inc. and three individuals — D.E., A.E.F. and C.P. — as respondents. A.L. claimed incidents dating back to the end of 2022, culminating in what she described as either a constructive dismissal or her resignation, effective Dec. 31, 2022.
The tribunal found that the limitation period ended on Dec. 31, 2023, at the latest, but the application was electronically filed at 11:51 p.m. on Jan. 5, 2024. According to the tribunal’s rules, applications filed after the close of business on a Friday are considered received on the following Monday — here, Jan. 8, 2024.
The last alleged act of discrimination centred on the applicant’s termination of employment. While A.L. argued that a Jan. 5, 2023, email from the respondent confirming her termination constituted a new incident of discrimination, the tribunal rejected that characterization. “The tribunal does not accept that the email of January 5, 2023, constituted a further act of discrimination,” Henrie wrote. “That email was simply the confirmation in writing of the fact that the applicant was no longer employed with the respondent as of December 31, 2022.”
Resetting the clock?
The tribunal noted that reiteration or confirmation of a past action does not reset the clock on the limitation period. Henrie cited Longtin v. Great-West Life Assurance Company, 2011 HRTO 244, and Garrie v. Janus Joan Inc., 2012 HRTO 1955, para. 41, in support of this point. “A respondent’s reiteration or confirmation of a past action is not a new action,” Henrie wrote.
As a result, the tribunal concluded that the last possible discriminatory act occurred no later than Dec. 31, 2022, and the one-year filing deadline expired on Dec. 31, 2023. Even if the tribunal had accepted the Jan. 5, 2023, email as an incident, the application still would not have met the deadline because of the filing rules that pushed its official receipt date to Jan. 8, 2024. “The tribunal has no authority to ‘condone’ even a very short delay in the absence of a good faith explanation,” said Henrie, quoting from Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.
For an application filed outside the one-year period, section 34(2) of the Code requires that the tribunal be satisfied the delay was incurred in good faith and that no substantial prejudice would result from the late filing. The adjudicator observed that a high burden rests on the applicant to provide “a reasonable explanation for the delay,” and that the applicant “must show something more than simply an absence of bad faith,” citing Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, and Klein v. Toronto Zionist Council, 2009 HRTO 241.
In response to a request for additional submissions from the tribunal, A.L. indicated that she initially completed the old application form by the summer of 2023, only to learn that a new version of the form had come into effect as of June 2023. She stated she had to redo the application using the new form guidelines. However, the adjudicator found that this explanation did not constitute a good faith reason for the length of the delay. The applicant gave no rationale for why she did not file sooner or why it took months to finalize the revised application.
“The fact that a new Form 1 Application was required as of June 2023, did not stop or suspend the one-year limitation period,” Henrie noted. The requirement to meet the statutory deadline remained in place throughout the process. The decision stated, “The applicant did not provide any explanation as to why it took her almost eight months to complete the original Application, and a further four months after August 2023 to complete and resubmit the new Form 1 Application.”
Because the applicant did not meet the good faith requirement, the tribunal did not consider whether the delay would have caused substantial prejudice to the respondents. Henrie cited Colhoun v. Hydro One Networks Inc., 2014 ONSC 163, para. 12, confirming that without good faith, there was no need to explore prejudice. Consequently, the tribunal found it had no jurisdiction over the matter.
“The application is dismissed,” the adjudicator concluded.
For more information, see Lawrence v. Arterra Wines Canada Inc., 2024 HRTO 1731 (CanLII).
