When does a "short delay" justify an extension of a time limit?
The Ontario Divisional Court suggests that extensions of time limits should be granted where there is a "short delay" without "substantial prejudice"
Limitation periods for the filing of human rights complaints/applications exist for good reasons. However, there are times where relief against those time limits may be justified. The recent case of Konkle v. Ontario (Human Rights Tribunal), 2025 ONSC 4071, is a good example of when it is appropriate to exercise discretion to provide relief against a time limit.
A complaint was filed on behalf of Owen Konkle against the Canada Games Council alleging discrimination after eligibility requirements for special athletes were changed by the Council. Initially, the complaint was filed with the Canadian Human Rights Commission (CHRC) on June 9, 2023. On August 1, 2023, the CHRC found that the complaint was not within federal jurisdiction and suggested that it might be subject to provincial jurisdiction before the Human Rights Tribunal of Ontario (HRTO). On August 11 - nine days later (including the August statutory holiday) - an application was filed with the HRTO (the Ontario Human Rights Code refers to complaints as applications).
The HRTO determined that the application was one day beyond the one-year limitation period set out in the Human Rights Code. The HRTO also determined that the applicant had not established a good faith basis under the Code for extending the limitation period. Section 34(2) provides that an extension of a time limit is possible “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”.
In its reasons denying the extension, the HRTO noted that it had established “a high bar for determining if an applicant has provided a good faith reason” for the delay in filing an application. The applicant argued that the delay was in good faith because a complaint with the same allegations was filed with the CHRC. The HRTO member stated:
[17] I cannot accept this good faith argument because the applicant has not explained why they could not apply to the Tribunal between August 1, 2023 and August 10, 2023.
The court held that this finding was unreasonable. It noted that there were six business days between the denial of jurisdiction by the CHRC and the filing of a fresh application:
[10] This is not a case of willful blindness, simple inadvertence or acting with an ulterior motive. The decision to bring the application in the CHRC was an entirely reasonable one. This is brought home by the fact that counsel for the Canada Games Council initially took the position in its response to the HRTO application after it was filed that there should be an early dismissal because jurisdiction fell within the CHRC. Even the HRTO at the outset requested additional submissions about whether jurisdiction lay with the CHRC …
The court also noted that it was clear that the applicant always intended to pursue his rights for the alleged violation of his human rights - this was not a case of a party being unaware of their rights and not making inquiries about options for pursuing the alleged wrong.
The court stated that it was clear that the applicant “moved with dispatch” when advised that the CHRC had denied jurisdiction:
[13] …It is not a reasonable approach to require an accounting for every minute of every day of delay. The question the HRTO should have turned its mind to is whether the application initially being brought in the CHRC was a good faith explanation for being one day late in filing its application with the HRTO and whether the applicant moved with reasonable dispatch upon being advised of the CHRC declining jurisdiction.
The court remitted the application back to the HRTO to be determined on its merits.
In an interesting comment at the end of the decision, the court suggested that it would be a rare occurrence to deny an extension of time when the delay was a matter of days (and where there is no substantial prejudice):
[16] …However, there is nothing in s. 34(2) that limits it to the very rare exception. Even without the distinguishing facts in this case, it is difficult to see how it would be reasonable to find that the requirements of s. 34(2) were not met in the case of a short delay and no substantial prejudice exists.
