The Human Rights Tribunal of Ontario (HRTO) has dismissed a sexual harassment and assault complaint filed by former Metro Ontario Inc. employee, citing that the application was submitted well beyond the statutory limitation period and that the delay was not incurred in good faith.
Adjudicator Leah Simon ruled that A.B.’s application, filed on Nov. 7, 2022, came approximately 19 years after the expiry of the one-year limitation period under section 34(1) of the Human Rights Code.
“The applicant has not satisfied the Tribunal that the delay in filing the Application was incurred in good faith as required under section 34(2) of the Code,” Simon wrote. “Accordingly, the Tribunal does not have the jurisdiction to consider the Application and it is dismissed for this reason.”
Background of the complaint
A.B. was employed by Metro from the fall of 2002 to the summer of 2003. She alleged that during her employment, she was repeatedly sexually harassed and assaulted by her manager. It wasn’t until November 2018 that she submitted a complaint through Metro’s “Customer Care” online platform.
Metro conducted an investigation into the allegations, which was led by P.R., an individual respondent named in the application. The investigation concluded that while there was evidence of sexual harassment, there was insufficient evidence to substantiate the allegation of sexual assault. According to Metro, the findings were communicated to A.B. verbally around May 2019.
A.B., however, disputed this account. She claimed she was not informed of the investigation results in 2019 and that P.R. ceased responding to her communications by late 2019. Subsequently, on Sept. 30, 2019, she filed a police report and considered pursuing criminal charges.
In May 2022, A.B. re-engaged with Metro’s Human Resources department to inquire about the status of the investigation. On May 24, 2022, she received an email confirming the investigation’s findings. She contested these results, asserting that her former manager had been found guilty of assault and offered to provide her police report. Metro responded on June 17, 2022, reiterating its findings and stating that its investigation was independent of the police investigation.
A.B. identified Metro’s June 17, 2022, communication as the last incident of alleged discrimination, forming the basis for her application to the HRTO.
Tribunal’s analysis and decision
The central issue before the Tribunal was whether the application was timely and, if not, whether the delay was incurred in good faith. Under section 34(1) of the Code, an application must be filed within one year of the alleged incident. A.B.’s application was filed nearly two decades after her employment ended.
A.B. argued that the limitation period should be considered from the last incident of alleged discrimination, which she identified as Metro’s communication on June 17, 2022. She contended that the company’s handling of her complaint and the subsequent investigation constituted ongoing discrimination.
However, the Tribunal disagreed, stating that Metro’s actions in investigating her complaint did not constitute a breach of her rights under the Code. “An employer has a duty under section 5 of the Code, to provide a discrimination and harassment-free workplace for its current employees,” Simon noted. “Investigating a complaint of harassment is an important part of fulfilling this duty.”
The Tribunal referenced previous case law, including Scaduto v. Insurance Search Bureau (2014 HRTO 250), to support its position that an employer’s failure to investigate a complaint from a former employee does not infringe upon that individual’s rights under the Code. “At the time of making their complaint, the former employee had no individual interest in the workplace, discrimination/harassment-free, or otherwise, because they were no longer employed in the workplace,” the decision stated.
Regarding the delay in filing, A.B. asserted that her mental and physical health conditions, stemming from the alleged harassment and assault, prevented her from submitting the application earlier. While the Tribunal acknowledged the severity of her allegations and the impact on her well-being, it found insufficient evidence to establish that the delay was incurred in good faith.
“The threshold to establish that a disability constitutes a good faith basis for a delay in filing an application is high and requires the applicant to submit medical evidence to demonstrate the disability was so debilitating that it prevented the applicant from pursuing their rights under the Code,” Simon wrote, referencing James v. York University and Ontario Human Rights Tribunal (2015 ONSC 2234).
A.B. had provided medical reports from 2018 and 2019 indicating ongoing treatment but did not supply documentation covering the years between 2003 and 2017. Furthermore, the Tribunal noted that A.B. had actively pursued her allegations through other avenues during this period, including filing a police report and engaging with Metro’s investigation. “She did so by filing a police report and a complaint with METRO. The applicant has not explained why she did not file this Application until almost three years later,” the decision stated.
Conclusion
While acknowledging the gravity of A.B.’s allegations, the HRTO concluded that it lacked jurisdiction to consider the application due to the significant delay in filing and the failure to meet the criteria for an extension under section 34(2) of the Code. “The Tribunal does not have discretion to extend the limitation period when the Application is untimely and the requirements of s. 34(2) of the Code are not satisfied,” Simon concluded.
For more information, see A.B. v. Metro Ontario Inc., 2024 HRTO 1494 (CanLII).
