Kristin Bisbee is a paralegal experienced in human rights matters. She outlines how even the most-meritorious cases at the Human Rights Tribunal of Ontario (HRTO) can get derailed by procedural details.
Not all cases are won or lost on their merits. Sometimes those merits are never even heard. In matters where procedural questions arise, they tend to overshadow the merits of the case, and often cause undue stress on our clients.
Many of us have had a case that seemed to go off the rails at one point or another. After advising our client about how we will present their case, and that we are confident that going to the Tribunal was the best decision, suddenly, the case takes a different direction. We are forced to argue the Rules of Procedure instead of the merits of the case.
When we feel this shift from the merits of the case, to the Rules of Procedure, we may find ourselves asking questions like, “When did this become about technicalities?” or “How did this happen, when we followed every Rule… ”
Our clients are left feeling, “What happened?” and we are left sighing, thinking we did everything we could to avoid these arguments.
Fair and Expeditious?
Fortunately, the Rules of Procedure are not hard and fast; they allow for shades of grey and interpretation, so that self-represented parties are not “railroaded” by those Rules. But speaking from an advocacy point of view, I find it neither fair nor expeditious to argue Rules before merits can be heard.
Is this fair? I will not take a position one way or the other, because I’ve argued both sides of that coin before the Tribunal. The Rules of Procedure are in place to ensure a fair and expeditious hearing for all parties, but they can certainly work against the parties.
Let me be clear: I am reassured, with every decision I read, that the Tribunal makes its decisions based in natural justice and fairness.
I’ll look at two examples of where procedural issues affect cases at the Tribunal: limitations periods, and “series of incidents.”
One-Year Limitation Period – s.34(1)(a) of the Human Rights Code R.S.O. 1990, c. H.19
The first section that is heavily relied upon, and is often the source of contention between Applicants and Respondents, is the one-year limitation period.
The general public is often unaware of the one-year limitation period for matters before the HRTO. This rule is usually interpreted strictly, so it is near the top of the list of advice that I give during consultations regarding human rights.
That one-year limitation period is heavily relied upon by Respondents when Applicants are late. Section 34(2) of the Code does allow for late applications, but only when the Tribunal is satisfied that the lateness occurred in “good faith.” This means that there must be a bona fide reason for a delay in filing the application.
Better be a Good Reason
A bona fide reason is not easy to come by. Do not think that your client’s need to deal with their taxes, or a medical condition, will automatically apply to section 34(2) of the Code. Reasons such as depression, addiction, even a family caregiver role, or insufficient union representation, have all been argued as bona fide reasons for delay. Those all have been denied. (See: Manimalethu v. Kraft Canada Inc., 2012 HRTO 1406 (CanLII), Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (CanLII).
In addition to a bona fide reason for delay, the Tribunal must also be satisfied that no “substantial prejudice” will come to any person affected by the delay. This is a large factor to overcome, as any person involved, whether as a party or as a witness, will suffer some sort of prejudice if they are “affected” by the discrimination case.
This leaves late Applicants in a difficult position. If your client is late in applying to the Tribunal, the stringent interpretations of section 34(2) will most likely not be overcome, and a difficult decision will have to be made.
More Than a Feeling
People are not always certain they have been discriminated against. They know they felt it in their heart, they know they thought it at the time, but was it discriminatory under the Code, and can the Application be filed within the limitation period?
Clients should proceed with caution, and that one-year limitation period should be fiercely watched and obeyed. In Klein v. Toronto Zionist Council, 2009 HRTO 241 (CanLII), the Tribunal was clear that the doctrine of discoverability cannot be used to allow aggrieved persons to delay in making their Application to the Tribunal while they gather evidence and/or find corroborating proof that what they experienced was discrimination.
Series of Incidents – s.34(1)(b) of the Human Rights Code R.S.O. 1990, c. H.19
More complicated than section 34(1)(a) of the Code is section 34(1)(b), in which a “series of incidents” is alleged.
At issue in the definition of “series of incidents” is whether there was one act or event that had “continuing effects,” or a series of events, separated in space and time, but connected by a significant nexus of discrimination that continued over time. (See: Visic v. Ontario Human Rights Commission,  O.J. No. 1768; and Manitoba v. Manitoba (Human Rights Commission) (1984), 25 Man. R. (2d) 117). These issues are reviewed in my last case that dealt with all of these: Killeen v. Soncin Construction, 2013 HRTO 350.
Clients may believe there is a “series of incidents,” long, drawn-out, and seeming to connect the dots perfectly. But is there truly a “series of incidents”?
A potential client tells you her boss discriminated against her. She says the had made discriminatory statements, then later yelled at her, ate her bagged lunches, and took work from her. Taken together, this seems like a “series of incidents.”
But it turns out, the boss had been angry about a serious, one-time performance issue. The boss ate a sandwich that had been inadvertently left on his desk. The boss’s job description had been changed, to include work the client had performed. These could not be proven to be a part of a “series of incidents.” The chain of incidents of discrimination the client felt, is broken.
Further, more than one year had elapsed between the discriminatory statements and the Application. The Applicant has no bona fide reason for her delay.
My favourite case in describing a “series of incidents” is Garrie v. Janus Joan Inc., 2012 HRTO 1955 (CanLII). In this case, the Tribunal found (upon reconsideration) that every single paycheque that an employee received at a differential rate because of her developmental challenges was one incident in a “series of incidents.” Meaning, every two weeks, Garrie experienced a new, separate event of discrimination. Every paycheque was a new incident in a “series.”
Doing What is Best for the Client
In the end, protecting your client’s interests isn’t just about knowing the legislation and common law; it’s about understanding the Rules of Procedure and how they are interpreted.
It’s the story that matters to our clients, not the procedure. I do my best to ensure that my client’s story gets out — sometimes with the assistance of the Rules, sometimes despite the Rules.
Kristin Bisbee has a diverse background in law and business. Her legal research skills were honed while working with influential paralegals throughout Toronto. She currently serves as the President of the Ontario Paralegal Network.
Kristin assists her firm’s practice within Human Rights law; employment law issues at Workplace Safety and Insurance Board (WSIB), Workplace Safety and Insurance Appeals Tribunal (WSIAT) and Occupational Health and Safety cases; and small claims court cases across the province.
Kristin is a firm believer in access to justice and volunteers with the Ontario Justice Education Network (OJEN) and Yellow Brick House.
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More case law:
B.C. Supreme Court Human Rights appeal: In Lewis v. British Columbia (Public Safety and Solicitor General), 013 BCSC 1980A, court found a complainant cannot extend the time for filing by being persistent and asking for reconsideration of a decision or policy. A continuing contravention requires a succession or repetition of separate acts and similar discrimination.
The court held that a tribunal decision was “not patently unreasonable.”