Thursday, April 14, 2011

Justice Delayed

The Human Rights Tribunal of Ontario is designed to be a relatively short and cost-effective method of resolving disputes under the Human Rights Code. The process was essentially redesigned in 2008 to remove the Commission from its "gatekeeper" role and speed up the process of dispute resolution.

Whereas administrative tribunals are frequently reluctant to dismiss proceedings on procedural or technical grounds without hearing the merits, bending over backwards to ensure a just disposition on the merits of any case, the HRTO has taken a fairly hardline approach to delay. Lawyers are often taken by surprise by the HRTO's reluctance to grant adjournments on consent, and missing the deadline to file the Application in the first place is usually fatal to the Application, unless there's a good reason for it. (For example, if you tell your employer that you're pregnant and he immediately fires you, you usually have one year to bring an Application on that basis. If you bring the Application a year and a day later, you'd best have a good reason for it.)

This might be explained by the fact that - while there's no arguing that the old human rights system was broken - there was value in the Commission's gatekeeper role. The Tribunal is being inundated with Applications of questionable merits being filed by people who often don't take the process itself very seriously.

The recent decision in Deane v. Ford Motor is the first decision I'm aware of in which the same hard line was applied to a circumstance in which the Application alleged breach of a settlement agreement. The timeframe for that is only six months - if you don't bring the Application within six months of the last contravention, you're probably out-of-luck. The Applicant brought the Application 9 months after discovering the contravention, following unsuccessful negotiations with the employer. The Tribunal dismissed the Application because it was brought too late.

I am somewhat concerned about this decision. Six months isn't a lot of time in legal disputes, particularly when you're dealing with a file in which a settlement was reached. Quite often, a breached settlement isn't a matter of disregarding the entire agreement, but a matter of disagreement over the requirements of some of its terms. Minor points in terms of the overall settlement, over which nobody really wants to litigate if it can be avoided. And with some employers (and lawyers) tending to drag their feet, months can go by pretty quickly.

With many Applicants being self-represented, foot-dragging might actually become a winning strategy when protracted negotiations are not an excuse for a delay of more than six months.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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