Ontario dairy farm operator alleges inspectors made discriminatory comments
In a case claiming discrimination under Ontario’s Human Rights Code, 1990, the Ontario Human Rights Tribunal ruled that erroneous advice from a non-lawyer/paralegal did not constitute a good-faith explanation for the delay in filing an application.
In Berendsen v. Dairy Farmers of Ontario, 2025 HRTO 2285, the parties had a contentious relationship due to the respondent’s inspections of the applicant’s dairy farm and its decisions regarding the applicant’s ability to operate the farm.
The applicant brought an application under the Human Rights Code to assert discrimination based on place of origin, ethnic origin, and age in connection with employment and membership in a vocational association.
The applicant claimed that the respondent’s inspectors made discriminatory comments against them and prevented them from operating their dairy farm.
In April, the tribunal sent the applicant a notice of intent to dismiss based on an apparent absence of jurisdiction. The tribunal asked for additional written submissions tackling the jurisdictional issues.
According to the notice, the applicant filed the application over a year after the last alleged discrimination incident and appeared to lack a good-faith explanation for the delay.
Responding to the notice, the applicant alleged that they engaged with the Products Appeal Board and various individuals and groups to address the issues and return to dairy farming.
The Human Rights Tribunal of Ontario dismissed the application for delay and a lack of jurisdiction.
The tribunal determined that the applicant brought the application more than one year after the most recent alleged discrimination incident. The tribunal noted a delay of over three years because the last event of alleged discrimination happened in May 2019, and the applicant filed the application in November 2023.
Next, the tribunal ruled that the applicant did not incur the delay in good faith under s. 34(2) of the Human Rights Code. The tribunal rejected two of the applicant’s arguments concerning this issue.
First, the applicant alleged that they did not initiate an application with the tribunal in 2019 because they tried multiple times to negotiate with the respondent beyond the legal system. The tribunal held that opting for another recourse did not amount to a good-faith reason to delay bringing an application.
Second, the applicant presented a receipt from a consultant, which confirmed a contract for him to assist with this case.
The applicant contended that this consultant, hired in May 2019, defrauded them by making them believe he had filed an application with the Canadian Human Rights Tribunal in Toronto in October 2022.
The applicant claimed they became suspicious of the consultant and fired him in August 2023. The consultant allegedly later received fraud charges.
The tribunal did not accept this argument. The tribunal noted that the receipt referred to a consultant, not a lawyer or a licensed paralegal.
The tribunal acknowledged that an applicant’s reliance on erroneous legal advice from a lawyer or paralegal about the filing deadline could constitute a good-faith explanation for the delay in initiating an application.
However, the tribunal noted that it has consistently determined that wrong advice from a non-lawyer or non-paralegal would not amount to a good-faith explanation for such delay.
In this case, the tribunal found that the consultant who appeared to defraud the applicant and offer erroneous advice was neither a lawyer nor a licensed paralegal.
The tribunal concluded that the applicant failed to act with all due diligence to pursue the protection of their rights under the Human Rights Code and failed to prove that they delayed bringing the application in good faith.
