The limitation period is obviously very important. 1 The time to commence a claim varies from jurisdiction to jurisdiction. Some statutes allow for an extension of the stated time period, usually conditioned by a requirement that the delay was incurred in good faith and that the employer will suffer no prejudice, should the extension be granted.
B.C. once had the shortest limitation period of 6 months, which has now be revised to one year. It allows for an extension where in the public interest and no prejudice is shown. Nunavut is similar although the period is set at 2 years and also allows an extension where the delay was occasioned in good faith and again no prejudice has been suffered.
Manitoba sets a 1 year proscription period and allows for a similar extension where there is no prejudice and it is an individual who seeks the extra time and not the Commission.2
New Brunswick allows for a 1 year period and a general discretion to extend without any set guidelines on the face of the statute, as does Saskatchewan.
P.E.I fixes a 1 year absolute period, as does Newfoundland and Alberta. Quebec’s Charter requires the case be commenced within 2 years and similarly there is no provision for an extension.
Nova Scotia and Ontario each set a 1 year period and allow for extensions where there is no prejudice. Ontario requires the applicant to also show good faith. N.W.T. has a 2 year period with extensions available on the same terms as Ontario, which is the same law as the Yukon, apart from the set time period which is 18 months.
The federal law sets the filing period as 1 year and allows for a residual discretion to extend to the commission.
The issue will arise as to when the limitation clock starts. In human rights cases and particularly cases in which there is a repeated pattern of offensive behavior, such as sexual harassment cases, the question often arises as to whether there was a “series of events” which had occurred. If such is the case, and the last of such events is timely, this will allow the entire history of past conduct to be admitted as part of the complaint.
The test is whether the questioned conduct fits a pattern of similar behaviour, as opposed to the converse of discrete and separate issues. 3 O.P.T. v Presteve Foods4