Application to Dismiss Complaint: Complaint Filed After the Time Limit

Information Sheet DA13

This information sheet tells you:


Legal test: section 27(1)(g) of Human Rights Code

A respondent must show:

The complainant filed the complaint after the time limit.

The respondent should also explain:

The complainant does not meet the legal test to accept a late complaint.

Information about the time limit

There is a 1-year time limit in s. 22 of the Human Rights Code.

All of a complaint is in time in two situations.

  1. All the conduct that could be discrimination was within 1 year of the filing date.
  2. All the conduct in the complaint is similar and at least some of the conduct was within 1 year of the filing date. The legal term is a “continuing contravention”.

A respondent must show the complainant filed all or part of the complaint late.

A respondent may argue that conduct in the complaint is not part of a “continuing contravention”. It might say that all the conduct is not similar. It might say that there are big gaps in time between the conduct.

Read the complaint form and amendments to see:

  • the dates of the conduct complained about
  • if the complainant says if the conduct is similar

Legal test to accept a late complaint

The Human Rights Code lets the Tribunal accept a late complaint. See section 22(3).

The complainant must show two things.

  1. There must be a good reason to accept the late complaint. The legal term is that it must be in the “public interest”.
  2. There must be no real harm to anyone because of the delay in filing. The legal term is no “substantial prejudice”.

Read step 4 in the complaint form to see what the complainant says about these two things.

Explain why you think the complainant’s reasons to accept the late-filed part of the complaint aren’t good enough.

If you say the delay in filing harmed you, explain how. The delay is the time after the 1-year time limit. Usually, it is not enough to say, “memories have faded”. Give examples of harm, such as a witness who died.

Sample argument for respondent

“The Tribunal should dismiss the part of the complaint before November 1, 2018.

The complainant filed the complaint on November 1, 2019.

Part of complaint in time

The complaint alleges we denied her promotions twice after November 1, 2018.

Earlier promotions filed late

The complaint alleges that we denied her a promotion in September 2017. The gap from that denial to the next one is 15 months. This gap of time is too big. The last denial is not part of a “continuing contravention”

We rely on:

  • Dove v. GVRD and others (No. 3), 2006 BCHRT 374 at para. 18
  • Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 16

Alleged comments filed late

The complaint alleges that her manager made a sexist comment in February 2018. This conduct is different from denying a promotion. It is not part of a “continuing contravention”.

No reason to accept late parts of complaint

The complainant does not explain why she did not file in time.”

Sample argument for complainant

“I don’t agree that I filed parts of the complaint late.

Earlier promotion

The respondent relies on the gap of time between the promotions I applied for. I agree the gap is 15 months. But the gap is explained. The promotions were only offered about once a year. Each time I applied, they didn’t promote me.
I rely on Mangat v. City of Burnaby, 2019 BCHRT 184 at para. 21.

Comments

My manager’s comment is different than denying me a promotion. It shows his attitude to women though. This attitude was why my employer didn’t promote me.

Reasons to accept late part of complaint

If these parts are late, the Tribunal should accept them. I didn’t see the pattern until they denied me a third promotion. The complaint will go ahead anyway. This won’t make it more complicated. My manager’s comment shows his sexist attitude. There is no harm to the respondent.”