HRTO Dismisses Sexual Harassment Claim because it was Brought 19 Years after the Alleged Sexual Misconduct Occurred

Limitation Periods in Ontario

In Ontario, there is a limitation period for civil legal matters. The Ontario Limitations Act 2002 provides that legal claims of a civil nature must be brought within a two-year period. In 2016 however, the Limitations Act was amended such that sexual assault claims were no longer subject to any limitation period. This means that claimants may bring civil sexual assault claims at any time, even if the two-year limitation period has expired.

The Limitations Act was further amended such that claims based on any other misconduct of a sexual nature would not be subject to a limitations period so long as the person with the claim was a minor or in the other following scenarios:

i) The other person had charge of the person with the claim;
ii) the other person was in a position of trust or authority in relation to the person with the claim,
iii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

These amendments significantly broadened the types of claims that would no longer be subject to a limitation period. During the legislative debates regarding these amendments to the Limitations Act, Member of Parliament Daiene Vernile discussed the purpose of these amendments, stating that “this bill seeks to improve the power relations with survivors and our legal system by eliminating the limitation period for survivors to report their assaults. This gives survivors the time that they need to come to terms with what has happened to them and to seek justice accordingly. Whether the assault happened last week or last month or last year or last decade, it’s never okay”.¹

Natasha Bourgault v Metro Ontario Inc. and Paul Rucurean 2024 HRTO 1494 (Bourgault v Metro)

In Bourgault v Metro, the Ontario Human Rights Tribunal (HRTO) dismissed a claim for workplace sexual harassment because the claim was brought outside of the one-year limitation period prescribed in the Ontario Human Rights Code (the “Code”) Unlike the Limitations Act, the Code does not have the same exception to limitation periods for claims involving sexual misconduct. Instead, the Code states that a person may bring a claim under the Code after the expiry of the one-year limitation period “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” (Section34(2)).

In this case, the applicant was employed by Metro from the fall of 2002 until the summer of 2003. During this period, the applicant alleged that she was repeatedly sexually harassed and assaulted by her manager. Notably, the applicant brought this claim 19 years after the alleged misconduct took place. In its decision, the Tribunal assessed whether it was satisfied that the substantial delay incurred by the applicant was incurred in good faith. The applicant argued that her mental and physical health was severely impacted by what she experienced while working at Metro, and that she was not well enough to pursue this application until 2022. According to case law, medical evidence is required to assess whether an applicant’s disability constitutes a “good faith basis” for delay in filing an application. The Tribunal found that the applicant did not provide any supporting medical documentation for the years 2003-2017, nor did the reports she provide address her ability to pursue this claim with the Tribunal. The Tribunal also found it inconsistent that the claimant was able to bring a criminal case forward three years prior, but did not also pursue a human rights claim at that point.

Notably, in coming to its decision, the Tribunal did mention the amendments to the Limitations Act, as well as the public policy reasons in favour of removing limitation periods for claims related to sexual misconduct. The Tribunal stated that in an appropriate case it may be necessary to adopt a more “nuanced approach to the assessment of good faith under section 34(2) where the allegations involve sexual assault”. However, the Tribunal found that such an approach was not appropriate in this case. Though it is encouraging that the Tribunal is alive to the public policy reasons for removing limitations periods for sexual misconduct claims, it is unclear in which cases this so called “nuanced approach” will be applied. The Tribunal’s decision is disappointing for sexual harassment complainants, as there is no guarantee they will have their complaints heard where they miss the one year filing deadline.

Takeaways for Employers

Employers should be aware that they have an ongoing obligation to ensure that their workplaces are free from discrimination, as well as harassment and sexual harassment. Further, employers should be aware that even where a substantial time passes before a claim is brought against them, Employers may still be on the hook if such cases involve sexual misconduct.

Takeaways for Employees

Employees should seek legal advice where potential claims against employers involve sexual misconduct to ensure they are aware of their rights. Further, even where an employee may think they are out of time they may still be able to bring such claims considering the amendments to the Limitations Act.

Contact Us

If you are an employer investigating the conduct of an employee, contact our lawyers to make sure that you are up to date on your obligations and potential liabilities. 

If you are an employee who is experiencing workplace sexual harassment, contact our lawyers to review your rights and options.

¹Legislative Assembly for Ontario