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Out of Time

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Two cases which illustrate the reasoning applied when a Human Rights Tribunal considers whether a complaint was filed too late:

Case 1:

In this case, the Human Rights Tribunal considered the timeliness of a complaint filed, alleging discrimination in employment on the basis of sex (harassment). The employer denied the discrimination and applied to dismiss the compliant on several grounds. The allegations were serious in nature, including sexual innuendo, personal questions, name calling, jokes and comments about other women, as well as unwelcome physical contact. The complainant alleged that despite a number of reports and complaints, the employer took no appropriate action. The complainant alleged retaliation as well to the extent that she required extended medical leave. She filed a written internal complaint in January 2014. She was not provided with the report, no corrective action ensued and she was not provided with accommodation to return to work safely. The complainant indicated that she was dismissed in September 2014.

The employer provided evidence as to the external investigation conducted and offers to share the report of the internal investigation (subject to confidentiality provisions), which the complainant refused. They submitted that the allegations were found not substantiated, and that the complainant had been asked to return to work, yet did not return.

The complainant and the employer submitted arguments for their positions on whether the case should be accepted by the Tribunal as the allegations fell outside of the 6 months time period stated in the Code. The analysis of the Tribunal centered around s. 22(3) of the Code, which states: “If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that: (a) it is in the public interest to accept the complaint, and (b) no substantial prejudice will result to any person because of the delay.”

The finding was that the complaint was about 7 months late-filed. One of the complainant’s arguments in the late-filing was that she was pursuing other avenues, and when those avenues did not provide resolution, she filed with the Tribunal.

The finding was that the complainant should have filed with the Tribunal in time and the matter could have been deferred pending the outcome of the other process. Further, the Tribunal found that allowing the complaint forward would represent prejudice toward the employer. Accordingly, the complaint was not allowed to proceed and was deemed as filed out of time.

Case 2:

In this case, timeliness was also considered, but a very different outcome occurred. The complainant alleged sexual harassment during the term of her employment which ended on October 24, 2016. The complainant initially filed her complaint with the Human Rights Commission of another area, as the company was based there. Once she moved, she made inquiries at the Tribunal about the filing of her complaint and she filed a complaint in that area in April 2017.

The Tribunal’s analysis centred around the same section and considerations as with case 1. The case was filed May 8, 2017 and the last alleged discrimination event occurred on October 24, 2016.

In the analysis, the relatively brief length of delay weighed in favour of accepting the late-filed complaint. The complainant also noted medical concerns which delayed her finding, and which were a result of extreme harassment and assault in the workplace. The Tribunal found that the reasoning for this concern was not sufficient by itself to justify a delay in filing. The complaint was complicated as it involved two jurisdictions, which had vastly different filing deadlines. The Tribunal concluded that this attracted the public interest in allowing the complaint to proceed.

Next the Tribunal turned to the question of prejudice and concluded that no substantial prejudice would result to the employer due to the delay and the complaint was allowed to proceed.

I became interested in these cases when doing research in my area because of the difference in the outcome. I also noted reference to different late-filing times from Province to Province, something which we should all be aware of. I was also interested in the balancing of interests that the Tribunal does through the case law and the reasoning of an issue. Late-filing timelines are in place to ensure that those who have had their Human Rights denied may seek remedy in a timely manner. Also, employers can be assured that there remains an impetus for complainants to pursue remedy as quickly as possible, thereby helping every organization move forward with providing a workplace that is free of harassment and discrimination.