Sood v. Ontario (Attorney General), 2009 HRTO 1564

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vishvander Sood

Applicant

• and-

Her Majesty the Queen in Right of Ontario as represented by the

Ministry of the Attorney General

Respondent

DECISION

Adjudicator: David A. Wright

Date: September 29, 2009

Citation: 2009 HRTO 1564

Indexed as: Sood v. Ontario (Attorney General)

1This is an Application filed on June 30, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in services on the basis of race, colour, and ethnic origin. It alleges that a crown attorney failed to charge another individual with perjury as requested by the applicant on the basis of prohibited grounds. The date of the last event identified in the Application is December 20, 2007.

2Sections 34(1) and (2) of the Code reads as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection 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.

3On his Application, when asked to explain why he was applying more than one year from the last event, the applicant stated, “I sent this complaint to Human Rights Commission on April 12, 2008. Some times later they called me to apply to Tribunal, I was mixed up with dates”. The Application includes a letter to the Ontario Human Rights Commission dated April 22, 2008. It does not appear that the applicant filed a Complaint with the Commission.

4On August 12, 2009, the Tribunal issued a Notice of Intent to Dismiss noting the delay and inviting the applicant to make submissions on the issue within thirty days. The applicant did not file any submissions.

5As the Application was filed with the Tribunal more than one year after the last event, the Applicant must demonstrate that the delay was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal held as follows:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

6The applicant’s mere statement that he was “mixed up” about dates does not establish good faith within the meaning of the Code. The applicant did not act with due diligence. Accordingly, I find that the applicant has not shown that the delay in filing the Application was incurred in good faith, as is required.

7The Application is therefore dismissed.