Despite other Acts removing limitations periods for sexual assault claims, the Human Rights Code (“the Code”) continues to force sexual harassment claimants to bring their claims to the Human Rights Tribunal of Ontario (“HRTO”) within one year of being harassed.[1] The Code has included this limitation period since 2006.[2] Expecting sexual harassment survivors to process their experience and bring a claim to the HRTO within a year is unrealistic and places an unreasonable burden on victims. To respect survivors’ processes and boundaries, the HRTO must remove this harmful barrier.
With some exceptions, the HRTO is the only option for sexual harassment survivors to bring their claim.[3] Moreover, the HRTO’s structure is more beneficial for sexual harassment survivors than court proceedings for various reasons:
- The HRTO is supposed to be a more accessible and affordable option than courts.[4]
- The HRTO can provide more flexible and meaningful awards, such as systemic and public interest remedies.
- The HRTO has a remedial purpose—it aims to eliminate discrimination and promote an equitable society.[5]
The Code gives the HRTO its power.[6] The Code also allows the HRTO to extend the one-year limitation period where there is a “good faith basis” for the delay, yet this places a “fairly high onus” on claimants and often requires extensive medical evidence.[7]
Other Acts have removed limitation periods for sexual assault claims
In 2016, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) removed the two-year limitation period for civil sexual assault claims in the Limitations Act, 2002 and sexual assault compensation claims in the Compensation for Victims of Crime Act.[8] The Sexual Harassment Act also provides stronger protections for sexual harassment victims in the Ministry of Training, Colleges and Universities Act, the Occupational Health and Safety Act, the Private Career Colleges Act, 2005, and the Residential Tenancies Act, 2006. Notwithstanding these amendments, the one-year limitation periodremains in the Code.[9]
Limitation periods contradict the Code and Sexual Harassment Act’s objectives
The Code aims to affirm each individual’s dignity, yet it requires claimants to bring their discrimination claims within one-year of the incident occurring (or, if there was a series of incidents, within a year of the last incident of discrimination).[10] Claimants can only extend this period by proving to the HRTO the delay in bringing the claim occurred in good faith and would not result in significant prejudice.[11]
The HRTO’s limitation period is not mentioned in the Sexual Harassment Act, the legislative discussions around the Act, or in the action plan that gave rise to the Act.[12] However, the Sexual Harassment Act’s purpose, legislative discussions, and action plan follow reasoning that supports removing the limitation period for sexual harassment claims from the Code and aligns with the Code’s purpose. For example:
- The Sexual Harassment Act’s preamble recognizes the need to fight against sexual violence and its harm: “[t]he Government will not tolerate sexual violence, sexual harassment or domestic violence. Protecting all Ontarians from their devastating impact is a top Government priority and is essential for the achievement of a fair and equitable society.”[13]
- In legislative debates around the Sexual Harassment Act, the legislature discussed how removing the limitation periods from the Limitations Act and Compensation for Victims of Crime Act “would encourage more survivors to come forward, regardless of how much time has passed since they became survivors of sexual assault.”[14] The discussion centred around letting survivors choose when to come forward, and allowing them to do so when they feel comfortable.
Notably, the Bill to remove these barriers and strengthen sexual harassment protections passed unanimously.[15]
Limitation periods harm sexual assault survivors
The Ontario Legislature removed limitation periods from civil and compensatory sexual assault claims because these limitations were one of many barriers preventing survivors from coming forward with their claims. These same barriers (in addition to the one-year limitation period in the Human Rights Code) exist for sexual harassment survivors:
- Survivors often know their perpetrators, which can make it difficult for them to resist or report them.
- Survivors may face retaliation (from the perpetrator, their employer, or other colleagues) when they disclose harassment.
- Survivors may feel embarrassed or not want anyone to know they were harassed.
- Survivors may blame themselves or feel responsible for the harassment.
- Survivors may minimize or ignore their experience of sexual harassment. For example:
- Survivors may continue working despite being sexually harassed to keep their job; this is especially true for women “whose immigration status is connected to their employment.”[16]
- Black women “[find] it difficult to separate sexual harassment in the workplace from sexual and racial harassment in society at large.”[17]
- Young women normalize sexual violence and “don’t see it as a big deal.”[18]
Sexual assault survivors face countless barriers that may keep them from disclosing their experience. While other Acts have recognized that limitations periods are harmful to sexual assault survivors, the HRTO continues to enforce a one-year period, with burdensome exceptions. Removing this limitation period is the first step towards ensuring sexual harassment survivors have the time and support they need to come forward.
[1] Human Rights Code, RSO 1990, c H.19, s 34.
[2] Bill 107, An Act to Amend the Human Rights Code, 2006, c. 30, s 5.
[3] Samantha Kompa, “Why Human Rights Code one-year limitation should not apply to sexual harassment” (28 May 2021) The Lawyer’s Daily, online: <https://www.thelawyersdaily.ca/articles/27028/why-human-rights-code-one-year-limitation-should-not-apply-to-sexual-harassment>
[4] Keeping the one-year limit does not make the HRTO accessible, and would force sexual harassment survivors to endure heavy costs through court proceedings.
[5] Kompa, supra note 3.
[6] Human Rights Code, supra note 1, ss 32 & 39.
[7] Kompa, supra note 3.
[8] Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2 [Sexual Harassment Act]; Limitations Act, 2002, S.O., c. 24, Sched. B, s 16(h)-(h.1) [Limitations Act]; Compensation for Victims of Crime Act, R.S.O. 1990, c. 24.
[9] Human Rights Code, supra note 1, c. H.19, s 34(1).
[10] Ibid, preamble & s 34(1). Note that sexual harassment is discrimination on the basis of sex (see Janzen v Platy Enterprises Ltd, [1989] 1 SCR 1252).
[11] Human Rights Code, supra note 1, s 34(2). The HRTO’s authority to extend the limitation period is one of the only arguments to keep the limitation period and was briefly raised in the Standing Committee Sessions for the Sexual Harassment Act (see the Standing Committee on Social Policy session from January 22, 2016).
[12] See Sexual Harassment Act, supra note 8; Debates around Bill 132, Sexual Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 (27 October 2015 – 8 March 2016), online: <https://www.ola.org/en/legislative-business/bills/parliament-41/session-1/bill-132/debates>; Ontario, “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” (March 2015), pdf: <http://docs.files.ontario.ca/documents/4136/mi-2003-svhap-report-en-for-tagging-final-2-up-s.pdf>
[13] Sexual Harassment Act, supra note 8, preamble.
[14] Legislative Assembly of Ontario, Hansard Transcript for 28 October 2015 (First Reading of Bill 132, Sexual Harassment Action Plan Act), 41st Parliament, 1st Session, online: <https://www.ola.org/en/legislative-business/house-documents/parliament-41/session-1/2015-10-28/hansard#para821>
[15] Legislative Assembly of Ontario, Hansard Transcript for 8 March 2016 (Third Reading of Bill 132, Sexual Harassment Action Plan Act), 41st Parliament, 1st Session, online: <https://www.ola.org/en/legislative-business/house-documents/parliament-41/session-1/2016-03-08/hansard#para612>
[16] Kompa, supra note 3; Nicole Pietsch, “Barriers to Reporting Sexual Harassment” (May 2015) Learning Network, Centre for Research and Education on Violence Against Women and Children, pp. 3-4, pdf: <https://www.vawlearningnetwork.ca/our-work/briefs/briefpdfs/LB-26.pdf>
[17] Pietsch, ibid, p. 4.
[18] Ibid.
University of Ottawa Association of Women and the Law 