In Ontario, individuals that feel they have been subjected to discrimination on the basis of a protected ground under the Human Rights Code may file an application for an order to the Human Rights Tribunal of Ontario within a year of the last incident occurring. There is an exception to the one-year limitation. Under the Code, if the applicant shows that ‘the delay was … in good faith and no substantial prejudice will result to any person affected by the delay’.
Proving that the delay was in good faith is the crucial element if an application past the one-year limitation will be accepted by the Tribunal. This is a high burden and the Tribunal recognizes this as justifiable as per the objective of the code. The Tribunal acknowledges that the code is to be applied in a broad and expansive manner; however, the objective to deal with cases promptly and fairly places the high onus on proving the delay was in good faith. Only exceptional circumstances will warrant an extension in this instance.
In analyzing past cases, a couple exceptional circumstances that may qualify as good faith delays consist of the following. When it is established that delay is due to the disability in question and where one’s disability affects their ability to initiate an application without additional assistance (Lutz v. City of Toronto 2010 HRTO 769; Kelly v. CultureLink Settlement Services 2010 HRTO 977); and where ones legal representative was responsible for the delay in filing the application to the Tribunal (Patterson v. City of Mississauga, 2012 HRTO 598). These are only a few examples and any legitimate reason for a delay should be assessed by an employment lawyer.