Use It or Lose It: The Effect of Limitation Periods

Written by Daniel Standing LL.B., Editor, First Reference Inc.

A limitation period is a contractual or statutory provision that bars the filing of a lawsuit, grievance or formal complaint, depending on the context. When a party misses a filing deadline, it’s not like missing the bus. The results can be profound and hinge on a determination of whether the limitation period was missed in good faith, as we see in [2023] O.H.R.T.D. No. 68. As it turns out, it takes more than simply being sick or having a disability to justify filing a late claim.


The complainant employee was an occasional teacher from 2011 to 2018. In 2020, some 23 months after the last incident, he filed a human rights complaint alleging discrimination on the grounds of disability, creed, family status and reprisal.

The problem was he overshot the one-year limitation period by almost 11 months. Acknowledging his lateness, he tried to explain it by stating, “disability and mental health has limited my ability to think appropriately. It has taken an extensive period to regain good health.”

The Ontario Human Rights Tribunal needed more information, so it convened a preliminary hearing to see if the complaint was receivable.

What the Tribunal decided

The Tribunal began by setting out the legal framework for its process to establish how fundamental limitation periods are. If a complaint is filed outside the one-year time period, the Tribunal has no jurisdiction or authority to consider it. It stated that the policy underlying the rule is to permit human rights claims to be dealt with expeditiously while giving complainants enough time to overcome hurdles to filing they might encounter within one year.

To that end, applicants are expected to act diligently and file their claim within one year of the discriminatory incidents. If they miss the time limit, they must show they acted with due diligence and have a good faith explanation for the delay. Secondly, the other side cannot be substantially prejudiced by the delay.

As for what kind of explanation will suffice, the Tribunal stated that “having a disability, in and of itself, without more, is insufficient to establish a good faith explanation.” Rather, the threshold is quite high. Medical evidence must show that the disability was so debilitating it prevented the complainant from meeting the deadline. In other words, the complainant’s level of function during the delay period is under the microscope.

When the Tribunal scrutinized the medical record, it was clear the complainant received treatment for anxiety and depression. However, as time went on, his condition went from “feeling better” to “improved,” “improved considerably,” “mostly resolved,” and finally, “depression in remission.”

These were powerful indicators of the complainant’s level of function during that period, as was his continued pursuit of alternate employment. Because the complainant chose not to testify on this preliminary matter, the Tribunal said it was left with the impression that the complainant could manage his day-to-day affairs, a compelling factor to consider whether the delay was incurred in good faith. Looking at the situation globally, the Tribunal said the complainant failed to meet his burden.

Key takeaway

Employers are frequently on the receiving end of various forms of litigation, and checking for compliance with limitation periods is normally one of the first steps in determining how to proceed. As this case shows, employees will likely face a stiff challenge in establishing a good faith reason for a delay. This involves showing more than an absence of bad faith; it means presenting detailed evidence of debilitation. By the same token, an employer will have the upper hand on the good faith argument if it can prove a complainant was not debilitated during the relevant period.

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