HUMAN RIGHTS LEGAL SUPPORT CENTRE
Information Sheet #4
October 2009
WHAT ARE THE TIME LIMITS FOR HUMAN
RIGHTS APPLICATIONS?
This is general information only. It is not legal advice about
yoursituation. This publication is not a substitute for a lawyer’s research,
analysis and judgment.
Introduction
If you want to make an application to the Human Rights Tribunal of Ontario
(Tribunal) you must do so within time limits specified in the Human Rights Code
(Code). Although the Tribunal has the discretion to extend these time limits, it is
very important to understand that there is no automatic right to an extension, and
the Tribunal may refuse to proceed with your application if it is late. You should
make every effort, therefore, to file your application on time.
There are two different types of applications to the Tribunal and two different time
limits:
The first type of application is the original application under section 34(1)
of the Human Rights Code (Form 1) or a Form 4 if you want to file an
application on behalf of someone else. The time limit is one (1) year from
the date of the last incident of discrimination.
The second type of application is for breach of an agreement to settle the
original application. The time limit is six (6) months from the date of the
last incident of breach. Allegations of breach of a settlement are under
section 45.9(3) of the Code, Application for Contravention of Settlement
(Form 18).
What is the time limit for filing an application at the
Tribunal?
You must file your application within one (1) year of the date on which the
discrimination happened, or if there was a series of events, within one (1) year of
the last event.
You can find the wording in Section 34(1) of the Code:
34. (1) If a person believes that any of his or her rights under Part I have
been infringed, the person may apply to the Tribunal for an order under
section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident
in the series.
What if the discrimination happened over a period of
time?
Section 34(2)(b) of the Code applies to this situation. An application would be
filed on time if there was a series of incidents and you apply to the Tribunal
within one (1) year after the last incident in the series. A series of incidents is
when a number of discriminatory events happened over a period of time, or
where there is an ongoing situation.
What do I do if my application is late?
The Tribunal might still allow you to file your application even if it is late, but you
will have to provide an explanation for the delay. Question 7(d) on the
application form specifically asks you to provide your explanation. The Tribunal
will also see a difference between a minor delay and a lengthy delay. For a long
period of time between the incident and filing your application, the Tribunal may
require that you provide evidence, for example, a medical report.
How will the Tribunal decide whether or not to accept
my late application?
You have to prove both that you are making a sincere application with a valid
reason for the delay and that the person responding to the application and others
affected (witnesses, for example) will not be negatively affected by the delay.
You can find the wording in section 34(2) of the Code that sets out the factors the
Tribunal will look at in deciding whether to proceed with an application even
though it is filed outside the time limit. It says:
(2) A person may apply…after the expiry of the time limit under that
subsection if the Tribunal is satisfied that the delay was incurred in good
2
faith and [emphasis added] no substantial prejudice will result to any
person affected by the delay.
When will the Tribunal be satisfied that the delay was
incurred in “good faith”?
“Good faith” refers to the honesty, sincerity, and the absence of deception or
improper motive in filing the application late. Every case will be decided based
on its own facts. Depending on how late your application is, the Tribunal may
ask you to provide very solid evidence about your reasons for the delay.
An example of a “good faith” delay would include a situation where you were a
few weeks late because you genuinely believed your application had been filed
and only found out later that it had not been. Other reasons would include that
you were unable to file an application because of serious medical issues.
Ignorance of your rights under the Human Rights Code will generally not be
accepted alone as a reason for the delay.
When will the delay result in “significant prejudice”?
“Significant prejudice” refers to harm or a negative effect on the person or
corporation responding to your application (the respondent) caused by your delay
in filing the application. Again, each case will be determined on its own facts. In
general, the question is whether it would be unfair to require the respondent party
to defend itself against your application, given the length of the delay.
For example, witnesses might be unable to recall incidents that happened a long
time ago or records might have been destroyed. To show that there is no
“significant prejudice” you will want to show that these types of problems do not
exist in your case.
How does the Tribunal deal with a case that is filed
after the time limit?
After receiving your application the Tribunal may send you a “Notice of Intention
to Dismiss the Application”, asking you to justify why the application should go
ahead even though it is late. You will be required to file a written submission,
and the Tribunal will then issue a decision. The Respondent(s) may also be
asked to make submissions.
The Tribunal may decide to proceed with your application without receiving
submissions from the respondent(s). Even then, the respondent still has the right
to make arguments about the issue, to convince the Tribunal that the case
should not go forward. You will also be allowed to make further arguments. If
the respondent provides evidence showing that it is significantly prejudiced by
3
the delay, or that the delay was not incurred in good faith, the Tribunal will issue
a decision to dismiss.
If you would like to do some research to see the Tribunal’s decisions about late
applications, you could go to the Canadian Legal Information Institute web site
and search Human Rights Tribunal of Ontario decisions by the word “delay”.
You can also go to the Tribunal’s web site to see their Plain Language Guide to
filing applications.
4