Preliminary Matters in a Human Rights Application

Ontario Tribunal’s One-Year Limitation Period and Reasonable Chance of Success Standard can Result of the Early Dispense of a Matter

To commence a claim with the Human Rights Tribunal of Ontario (the “HRTO” or the “Tribunal”), an individual must file an HRTO Form 1 together with Form 1-A assuming the alleged discrimination occurred in the employment context (the “Application”). There are certain details to be set out in the Application that ought to be carefully considered by both applicants and respondents. If the Application is completed inadequately, the consequences to the applicant’s case can be severe. Well advised respondents can take advantage of such deficiencies by dispensing of the matter without even addressing the merits.

A summary hearing can be initiated by the Tribunal or following a request of a respondent should the Application be filled out incorrectly or insufficiently. In the outcome of a summary hearing, the Application could be dismissed in whole or in part on a preliminary basis.

The Human Rights Tribunal of Ontario, Rules of Procedure (the “Rules”) empower the Tribunal to exercise any of its powers or waive the application of any rules/procedures at the request of a party or on its own initiative, subject to certain exceptions and laws.

Rule 1.7 of the Rules states:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

1. Lengthen or shortn any time limit in the Rules;

2. Add or remove a party;

3. Allow any filing to be amended

Given that the Tribunal has a broad range of power to dismiss an Application, and is clear that part of the Tribunal’s mandate is to ensure matters are dealt with expeditiously, it is important to file a suitable Application. Although the Tribunal has the flexibility to waive certain requirements, it does so lightly.

Time Limitations for filing Applications

Pursuant to section 34(1) of the Human Rights Code(the “Code”),an Application may be submitted “within one year after the incident to which the application relates” or, “if there was a series of incidents, within one year after the last incident in the series.” 

Upon receipt of an Application, a respondent should promptly seek legal advice about how to respond. An important issue to be canvassed is whether the Application was filed on time. Question 7 of the Application requires the Applicant to specify the date of the last event of discrimination. If an application has been filed late, it may be dismissed in part or in its entirety on a preliminary basis, without the cost, time and energy of proceeding to a full hearing.

Late Applications

In highly-limited circumstances, the Tribunal may permit late applications to proceed. If an Application is not submitted within the appropriate time period, the applicant must provide a reason in “good faith” as permitted by section 34(2) of the Code, which states:

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. 

Notably, the Tribunal applies this time limitation period strictly and will only allow a delay in exceptional circumstances. For example, the delay may be permitted if the applicant was in hospitalised at some point during the one (1) year limitation period.

In the leading case of Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (CanLII), the Tribunal stated the following regarding “good faith” and the importance of the one (1) year limitation:

[24] In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith… The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously.  Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

Further, in the case of Lutz v. Toronto (City), 2009 HRTO 1137 (CanLII), Vice-chair Sheri D. Price cited from the matter of  Busch v. Amos, 1994 CanLII 7454 (ONSC), that “it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights…”

If the applicant can prove that the delay was made in “good faith”, the onus then switches to the party asserting the prejudice to prove that the delay has or will result in “substantial prejudice” as determined in the case of Prescod v. National Steel Car Limited, 2011 HRTO 2244.

In the matter of James v. Human Rights Tribunal of Ontario, 2018 ONSC 5537 (CanLII), the applicant attempted to have the Tribunal’s decision to dismiss his Application on the basis that the Application was dismissed as it was filed one (1) day late set aside by the Court through judicial review. The judicial review was also dismissed. The Court found that the Tribunal’s decision was reasonable in concluding that “the Application was filed outside of the one-year period and that there was no evidence that this delay occurred in good faith.” This case underscores the Tribunal’s strict enforcement of the one (1) year limitation period.

Series of Events

If there was more than one alleged incident of discrimination, it is prudent that the applicant and respondent(s) be certain of its date. It is important that both the applicant and respondent(s) are clear if the actual last event is considered to be a discriminatory act as it may lengthen or shorten the time period in which an Application can be submitted.

If there is a series of events, the applicant must explain how the events correspond with one another. Further, if there is more than a one (1) year gap between events, the applicant will have to explain why.

It is important that the applicant include sufficient detail on the Application about all of the alleged events, described in a clear and concise manner. The applicant should include details such as who was involved, what happened, where and when the event(s) occurred, as well as how the applicant believes the allegations violated its Code-protected human rights. Arranging the incidents in chronological order is encouraged.

In the leading case of Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), Ferrier J., Pitt J. and Swinton J., referred to a decision made from the Human Rights Commission of Manitoba. In the matter of Manitoba v. Manitoba Human Rights Commission, 1983 CanLII 2967 (MB CA), it was determined that:

To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination which could be considered as separate contraventions of the Act, and not merely one act of discrimination which may have continuing effects or consequences.

Chance of Success

Rule 19.1A of the Rules states that:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

Consequently, because of Rule 19.1A, it is important that the applicant ensure that the claim has merit and stands a reasonable chance of success. If not, the respondent may request a summary hearing to have the claim dismissed. In the matter of Dabic v. Windsor Police Service, 2010 HRTO 1994 (CanLII), the Tribunal stated the following on ‘reasonable success’:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the Application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

While an applicant may feel as though they are a victim of discrimination, the applicant should speak with a lawyer to ensure that it is based on appropriate grounds and that there is weight to their claim. This will save the applicant from spending time and resources in filing a claim that may potentially be dismissed.

Claiming the Correct Areas of Discrimination

Question 5 of the Application requires the applicant to check off boxes as to what grounds the applicant believes form the basis of the discrimination against them. Importantly, multiple grounds may be selected in the form. It is imperative that an applicant check off all those that apply as it can be difficult to amend the Application later.

If the appropriate ground(s) are not correctly claimed, the respondent may argue that the Application must be dismissed in whole or in part on a preliminary basis for no ‘reasonable prospect of success’.

Depending on the circumstances, an attempt to amend the Application with the appropriate ground(s) may not be allowed.

In a Tribunal’s determination of whether to amend an Application, in the matter of Wozeilek v. 7‑Eleven Canada, 2009 HRTO 926 (CanLII), the Tribunal stated that they will consider the following factors:

The Board has jurisdiction to amend complaints. In deciding whether or not to permit such amendments, the Board is exercising its discretion.  The factors influencing how that discretion will be exercised include the following:

Whether the amendment would occasion actual prejudice to the other party;

Fairness;

The conduct of the party seeking the amendment;

The impact of the proposed amendment on the course of the hearing and any other parties;

Applicants and respondents uncertain about the limitation period or reasonable prospects of success or with questions about the Human Rights Tribunal of Ontario’s Rules and Procedures, should contact Zubas + Associates for counsel. Call us at 416-593-5844 or send an email to info@employment-lawyers.ca.

Zubas + Associates in the News “Good Negotiations need faith more than fear” in Canadian Employment Law Today

Recently, Zubas + Associates Lawyer, Ted Flett, was published in Canadian Employment Law Today. The opinion piece, which discussed tips for HR professionals preparing for a phone call with a lawyer, is available to read on the CELT website here, by pdf here and below.

Good negotiations need faith more than fear

5 Tips for HR Professionals preparing for a phone call with a lawyer

AS EMPLOYERS tighten their purse strings while the business impacts of the coronavirus (COVID-19) pandemic take hold, in-house HR professionals are likely to see a reduction in budget and resources. Some have already. The pre-COVID-19 days of punting a file to external counsel in which an employee, or former employee, has lawyered up may be long gone. Today’s HR practitioner is being called on to rep- resent the employer’s interests in the dispute, in a cost-effective and efficient manner.

Whether it’s a negotiation on the terms of a termination settlement, or with respect to the conditions of a workplace investigation inter- view, the thought of talking to a lawyer of a former or current employee by phone is about as compelling as public speaking naked. However, putting a pause on a letter-writing campaign — where one can hide behind a keyboard — and taking a matter to a phone call could help clear an impasse in a negotiation.

The prospect of such a call could conjure up fears of thinking that you’re about to enter a booby trap in which the lawyer will trip you up, trick you into a confession or twist your words later. And the stakes are not insignificant. The phone call can forge a path toward resolution or could ignite greater conflict in equal measure. The latter is more probable with inadequate preparation.

But HR practitioners should summon confidence in what they bring to the table in a negotiation or a discussion with a lawyer. When an employer’s HR specialist, rather than a lawyer, responds to my correspondence, I see a clear opportunity to resolve the matter amicably; not to mention comparatively faster and cheaper. And it’s not because I plan to bamboozle the person. There are approaches that an HR practitioner can adopt to maximize the call. Here are five helpful tips to prepare for and manage the dreaded phone call with a lawyer. Of course, your standby negotiation techniques — from BATNA (best alternative to a negotiated agreement) to MESOs (multiple equivalent simultaneous offers) — still apply.

Limit the scope of the call. If the communication has been through letters or by email and the lawyer requests a phone call “to discuss the matter,” be available while also following your workplace procedures. In advance of the call, ask whether there is a particular topic or position that the lawyer wishes to discuss, if such is not obvious. This clarification will help provide scope to the conversation and guide your preparation. Have relevant documents on hand for the call, including all correspondence exchanged, and review these in advance.

Determine who leads. While some subscribe to the theory in a negotiation that it is best to lead by speaking first, there are benefits to active listening. When the call begins, if the lawyer has requested the call, let them start the conversation. Pre-supposing what opposing counsel will argue or say is a mistake, particularly if there has been a moderate passage of time between the request for the call and the call itself. The employee’s position or circumstances may have changed since then.

Conversely, if you have requested the call, be prepared to start the dialogue as to what you are seeking and what information you feel is helpful to provide. Organize your thoughts in a few bullet points.

Write it down. Take careful and detailed notes of what the lawyer is saying to help organize your thoughts for a response and to assist with formulation of future arguments. If some in- formation shared by the lawyer is surprising or seems out of context, ask to confirm it to ensure you understand correctly.

Formulate your response. Take confidence in knowing that you are likely closer to the true and precise facts of a story than the lawyer. You have the benefit of a documented history on the employee, buttressed by the employee’s HR file, information from colleagues and witnesses. This is not lost on the lawyer who will naturally have some expectation that you will be more apprised of some of the finer points relevant to the matter at hand and will inquire accordingly.

However, knowledge of the information does not require you to disclose it. Ascertain what information you feel can be disclosed in advance of the call. Take pauses during the call to formulate your thoughts and answers; do not feel rushed. If in doubt during the call, advise that you must follow up with the lawyer later. If you don’t know the answer, don’t make one up or speculate in the moment.

Do not allow the lawyer to leverage a supposed power imbalance. Label interrupting when it happens.

Consider whether documents that are requested by the lawyer are best provided during the call via a quick email or afterwards. Sending documents in the moment without careful review is not recommended, as this may result in disclosing more than you had wanted. Further, the transmission may extend the call unnecessarily as the lawyer reviews them hurriedly, without sufficient time to read them in their entirety.

Concluding the call. At the end of the call, confirm any outstanding matters for follow-up. Establish feasible deadlines to help prioritize your- self and keep the lawyer accountable to you.

Should the call get out of hand, driven more by passion than reason, or if you feel you are making no progress and speaking in circles, wrap up the conversation and suggest that you reconnect at another time once you have had the time to reflect, consider the matter further or have sought additional advice.

Special thanks to a handful of astute HR professionals with whom I have negotiated in my practice who spoke to me on the condition of anonymity.

Special thanks to a handful of astute HR professionals with whom I have negotiated in my practice who spoke to me on the condition of anonymity.

ABOUT THE AUTHOR – Ted Flett

Ted Flett is a lawyer with Zubas + Associates Employment Lawyers in Toronto, practising employment law and human rights law. He can be reached at (416) 593-5844, Ted@employment-lawyers.ca or by visiting www.employment-lawyers.ca.

Ontario Government Attempts to Help Employers by Bolstering Lay Offs

New Regulation Has Hang Ups: Infectious Disease Emergency Leave, O Reg 228/20

In the midst of the novel Coronavirus disease (COVID-19) pandemic, employers have been raising concerns that the temporary layoff and termination provisions of the Employment Standards Act, 2000 (the “ESA”) are ill suited to address the circumstances they are facing. Meanwhile, many employees have been laid off from work and forced to elect to agree, acquiesce or object to temporary layoffs and assert that they have, in effect, been constructively dismissed from their jobs. Constructive dismissal is a unilateral change to an employment contract by the employer.

As the Ontario state of emergency is repeatedly extended – most recently until June 30, 2020 – employers continue to struggle to manage their workforce while enduring significant revenue losses. Meanwhile, employees continue grapple with difficult decisions about their livelihood and volatile job security.

The provincial government has attempted to respond to these concerns.

New Regulation

On May 29, 2020, the Government of Ontario introduced the Infectious Disease Emergency Leave, O Reg 228/20 (the “Regulation”). The Regulation replaces the previous Infectious Disease Emergency Leave Regulation (O Reg 66/20) and amends the ESA provisions regarding the recently introduced infectious disease emergency leave, layoffs, constructive dismissals and automatic terminations. The Regulation applies mainly to non-unionized employees.

“The Ontario government is taking steps to help ensure that as the economy gradually and safely reopens workers will have jobs to return to and businesses will be protected from incurring unsustainable termination costs,” the government stated in a press release.

The COVID-19 Period

Firstly, the Regulation creates a “COVID-19 period” from March 1, 2020 to six weeks after the current declaration of emergency in Ontario ends. Given the province’s announcement on June 2, 2020 to extend the declaration of emergency to June 30, 2020, the COVID-19 period will expire on August 11, 2020 at the earliest.

Infectious Disease Emergency Leave

The Regulation deems non-unionized employees, whose hours of work or wages were temporarily reduced or eliminated during the COVID-19 period for reasons related to COVID-19, to be on infectious disease emergency leave (“IDEL”) retroactively from March 1, 2020 onwards. The IDEL, which was introduced on March 19, 2020 through an expansion of the emergency leave provisions of the ESA, entitles an employee to an unpaid leave of absence in instances where the employee is unable to work for a broad range of COVID-19 related reasons.

Protections to employees on IDEL such as the right to reinstatement, will apply during the COVID-19 period with some exceptions.

Temporary layoffs not deemed a termination or constructive dismissal

The Regulation provides that a temporary reduction or elimination of hours or a reduction of wages during the COVID-19 period for reasons relating to COVID-19 does not amount to a termination, severance or constructive dismissal for the purposes of the ESA.

The Regulation also allows for temporary layoff to exceed the prescribed length of 13 weeks or 35 weeks under the ESA during the COVID-19 period without amounting to termination, subject to some exceptions.

Employees who were already given written notice of termination during the COVID-19 period will not be considered to be on IDEL unless both the employer and employee agree to withdraw the notice of termination.

Apparent purpose of the Regulation

The government appears to have tried to ‘hit the pause button’ on various ESA layoff, termination and severance provisions in response to the COVID-19 emergency, but it may have missed the mark. By placing many employees on deemed IDEL, some of whom will continue to work on a reduced basis, the Regulation appears to have created confusion and uncertainty.

Manner in which the Regulation was introduced

That the Regulation may have been introduced hurriedly without warning or consultation is no surprise, given present circumstances and given that 13 weeks from the start of the COVID-19 emergency was about to elapse in mid-June. Again, the 13-week mark is significant because the general ESA rule is that a temporary layoff will automatically crystalize into a termination after 13 weeks of layoff in any consecutive 20-week period.

Scope of the Regulation

It is clear that the Regulation limits certain employment standards complaints based on termination due to layoff and constructive dismissal. In fact, complaints already filed with the Ministry of Labour arising from temporary reduction or elimination of an employee’s hours of work or a temporary reduction in an employee’s wages by an employer are “deemed not to have been filed”, provided that the reductions occurred in the COVID-19 period for reasons relating to COVID-19.

Common law constructive dismissal or breach of contract law suits decided by the courts are probably still viable, as the ESA generally does not affect civil remedies of employees against their employers. In other words, an employee’s minimum statutory entitlements to termination and severance pay may be limited, but overlapping and often greater entitlements may be awarded by the courts.

Uncertainty surrounding the end of the COVID-19 period

Again, the Regulation is primarily temporary in nature. The bulk of the provisions last only until six weeks after the COVID-19 state of emergency is lifted in Ontario. After that time, the standard protections of the ESA will re-engage. Employees placed on deemed IDEL will also be afforded the additional protections applicable to ESA leaves. More specifically, employees on an ESA leave, such as the IDEL, are entitled to be reinstated to the position they most recently held, if it exists, or to a comparable position, if it does not. The obligation to reinstate an employee does not apply, however, if the employment relationship was ended solely for reasons unrelated to the leave. It remains to be seen what dismissals may now be in breach of the protections of the ESA for a deemed IDEL.

The lack of clarity is not likely to be resolved in the near future. Presently, court procedural deadlines are effectively on hold and, in the pre-COVID-19 circumstances, it often took years to get to trial. Prior to partial court closures, summary judgment decisions usually took several months to be issued and those are limited to cases where the facts are straightforward enough to be decided without a full trial.

It appears that there will be upheaval and litigation arising from layoffs, constructive dismissals and outright terminations following the COVID-19 period, but those will occur no sooner than August 11, 2020.

In the meantime, employees and employers will need to pay close attention to the dates of layoffs, reductions in working hours/wages and dismissals etc., as there are now a host of triggering dates under the Regulation with various consequences.

Analysis by an employment lawyer of each specific set of events will be necessary to determine what an employee’s entitlements may be. If you have questions about layoffs, constructive dismissals or the changes to the new Infectious Disease Emergency Leave, contact Zubas + Associates. Call us at 416-593-5844 or send an email to info@employment-lawyers.ca.