Can You Start a Human Rights Application After 1 Year?achkarlaw-admin
Employees in Ontario experience breaches of Human Rights in the workplace more often than one might assume. Many are not even aware they have protections under the Ontario Human Rights Code (“Code”). They mistakenly believe an employer can terminate them instead of accommodating their disabilities, or they have to put up with sexual harassment in the workplace.
Some employees are aware of their Human Rights but are instead intimidated by the legal process of submitting a Human Rights Application and fear their employer might punish them. A common fear is that making a Human Rights complaint or filing a Human Rights application may result in an employee losing advancement opportunities or harm their reputation in the eyes of their workplace colleagues.
Despite an employee not knowing about their rights or their fears, there is a procedural deadline for employees to file their Human Rights application with the Human Rights Tribunal of Ontario (“Tribunal”). Failure to meet this deadline can impact an employee’s available entitlements and remedies for Human Rights violations.
When should you submit a Human Rights application? What happens if you submit a Human Rights application too late? What can an employment and Human Rights lawyer do to help?
This article will answer these questions and provide an overview of workplace Human Rights employers must respect.
When Should an Employee File a Human Rights Application?
An employee should recognize when it may be time to start their Human Rights application. The Code protects employees from differential and disadvantaging discriminatory treatment in the workplace on the basis of protected grounds, including but not limited to the following:
- Sex and pregnancy
- Sexual orientation
- Gender identity
The Code also protects employees from harassment based on the above-listed protected grounds and others, which includes incidents of sexual harassment. Harassment in this context generally means engaging in a course of vexatious (annoying or provoking) comment or conduct which is known or ought reasonably to be known to be unwelcome.
The Code applies to employer actions in the hiring process, during employment, and even after employment. Failure to accommodate an employee’s disability, family status, or religion in the workplace to the point of undue hardship could be discriminatory in violation of the Code.
Employers should generally make an informal Human Rights complaint in the workplace if they suspect their Human Rights are not being enforced in the workplace. If the employer fails to appropriately investigate or address the Human Rights complaint, the next step may be to file a Human Rights application.
The Code also protects employees from retaliation from their employer after they try to enforce their Human Rights in the workplace or commence a legal proceeding for workplace violations of the Code. An employer’s sudden shift in behavior towards an employee, refusal to provide them a raise or other forms of direct or indirect mistreatment could be considered retaliation in such a scenario.
Where an employee suspects their employer violated the Code, they have the option of enforcing their rights through a Human Rights application at the Tribunal. The Tribunal has the power to award applicants damages, non-monetary remedies, and public policy remedies for violations of the Code by their employer.
However, the Code requires employees to file a Human Rights application within 1 year from the incident or pattern of incidents that affected their rights under the Code. Any person who waits too long to formally sue someone for violating their rights under the Code can have severe legal consequences.
What If an Employee Submits their Human Rights Application Too Late?
The Tribunal is strict with respect to the 1-year limitation deadline to file a Human Rights application. This means an employee potentially risks not being able to seek damages, non-monetary remedies, and other relief against their employer they otherwise could be legally entitled to if they file their application too late.
If an employee submits their Human Rights application late, the Tribunal may send them a Notice of Intention to Dismiss. The Tribunal will expect the applicant to explain the reason for their delay, and provide them an opportunity to make submissions to explain why their Human Rights application should proceed nonetheless.
If the Tribunal dismisses a Human Rights application for delay, it is a final decision. An applicant may request a reconsideration of this decision, but they rarely result in a different ruling.
The Tribunal may extend the 1 year limitation period in very and exceptional circumstances. An employee not understanding their legal rights or having trouble with the forms are not usually acceptable reasons for the Tribunal.
An employee must show the Tribunal their delay exceeding a year to file their Human Rights application occurred in “good faith”. In other words, the employee must provide a reasonable explanation for filing their Human Rights application too late.
In some cases, a decision-maker may consider an applicant’s hospitalization or other severe illness and allow a Human Rights application to proceed accordingly. However, the applicant must prove their medical condition was so debilitating they could not reasonably pursue their legal rights.
An applicant with a late Human Rights application must also establish that “no substantial prejudice” will occur against any person affected by the delay. Typically, the delay would impact the person or organization responding to your application. The Tribunal must assess whether it would be fair to ask the respondent to defend itself against your application after the period of delay.
Long delays are more likely to create enough prejudice resulting in not being allowed to proceed with a late Human Rights application. For example, if there is a significant delay, a witness will be less likely to recall specific events or relevant documents that may have been destroyed.
How Can An Employment and Human Rights Lawyer Help?
It is important for both employers and employees to understand their legal obligations and entitlements in any given situation. There is no substitute for consulting with an employment and Human Rights lawyer when trying to understand what actions to take when to take them, and how to proceed through a legal proceeding relating to a workplace dispute.
An employment and Human Rights lawyer can specifically help an employee determine whether any mistreatment in the workplace violates the Code, and can provide tailored legal advice about what steps to take next. An employee can also benefit from a lawyer’s expertise in negotiating with their employer for a resolution, and navigating legal proceedings to enforce their Human Rights.
Even if you are an employee facing dismissal for failure to file your Human Rights application on time, an employment and Human Rights lawyer can help you maximize your chances of persuading the Tribunal that your application can proceed. This will never guarantee a result, but a lawyer can help craft the necessary documents properly, and present arguments with evidence in the most convincing way possible.
There are many ways an employee can have their workplace Human Rights violated under the Code. If an employer does not respond appropriately to an informal complaint, the employee likely has to file a Human Rights application with the Tribunal for remedies.
If the employee files their Human Rights application with the Tribunal more than 1 year after the violations of their rights under the Code, the Tribunal may dismiss their Human Rights application altogether. The Tribunal may allow a late-filed application to proceed for exceptional circumstances.
An employee filing their Human Rights application too late could therefore prevent them from seeking damages and non-monetary remedies against whoever violated their Human Rights.
Consulting with an employment and Human Rights lawyer as soon as an employee suspects a violation of their Human Rights in the workplace can help prevent a late-filed application. A lawyer can also help an employee negotiate a resolution of their workplace dispute and navigate the legal process to seek enforcement of their rights and remedies for Human Rights violations.
If you are an employer or an employee with questions about Human Rights in Ontario, or in need of assistance with a workplace Human Rights dispute our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
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