Doug Surh v. Ontario Court of Justice, 2009 HRTO 1815

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Doug Surh

Applicant

-and-

Ontario Court of Justice

Respondent

DECISION

Adjudicator: Faisal Bhabha

Date: October 30, 2009

Citation: 2009 HRTO 1815

Indexed as: Surh v. Ontario Court of Justice

BACKGROUND

1The applicant filed an Application dated July 21, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The Application alleges reprisal and discrimination in goods, services and facilities because of race, colour and ethnic origin.

2The Application states that the date of the last event is October 16, 2006 when he appeared in court to defend an alleged Highway Traffic Act violation. In explaining the delay between the last event and the filing of the Application, the applicant stated that there was an appeal of the conviction in January 2009. The applicant alleges that the Justice of the Peace, the prosecutor and the police officer discriminatorily worked together to wrongfully convict him. While the applicant's allegations impugn the prosecutor and the police, this Application names only the Ontario Court of Justice as the respondent. An Application arising out of the same events, alleging discrimination on the part of the prosecutor and police officer, was dismissed by the Tribunal in an earlier Decision: 2009 HRTO 1700.

3On August 26, 2009 the Tribunal sent the applicant a Notice of Intent to Dismiss because it appeared the Application was filed more than one year after the last incident of discrimination described in his Application, and the Tribunal is not satisfied that the delay was incurred in good faith. The applicant was given 30 days to make submissions to the Tribunal regarding delay. No submissions were received.

DECISION

4Section 34 of the Code states:

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.

5The Application describes the events in court on October 16, 2006. There is no indication in the applicant's materials that the appeal he cites as an explanation for the delay has anything to do with the alleged conduct of the proceedings held on October 16, 2006. I therefore find that the last date of the alleged discrimination is October 16, 2006.

6The Application was not filed within one year of the date that the applicant alleges the respondent last discriminated against him, and I therefore must determine whether the delay in filing this Application was incurred in good faith. The only reason that the applicant has provided which might constitute an explanation for the delay is the fact that he appealed the decision of the court.

7The applicant may believe that his apparent vindication on appeal supports his allegation that the initial proceedings were discriminatory. Whether or not this is true, the Tribunal's jurisprudence is clear that delay caused by aggrieved persons waiting for events to unfold or for evidence to materialize that supports their case will not meet the test of good faith for the purposes of the Code: Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23.

8With no further information about why the appeal prevented the applicant from claiming his rights under the Code, I find that the applicant has not satisfied the burden of demonstrating that the delay in filing this Application was "incurred in good faith" as required under s. 34(2) of the Code.

9While it is not strictly necessary for me to address it, it is worth noting that this Application additionally raises a preliminary jurisdictional issue. The substance of the Application appears to deal substantially if not entirely with the court proceedings on October 16, 2006 and the decision of the Justice of the Peace. The jurisprudence of the Tribunal is clear in holding that the adjudicative process of courts and statutory tribunals are not "services" within the meaning of the Code. See Cooper v. Pinkofskys (2008), HRTO 390; Baird v. Workplace Safety and Insurance Appeals Tribunal (2009), HRTO 99. For this reason, it is unlikely the Tribunal would have had the power to proceed with the Application, irrespective of the issue of delay.

10This Application is dismissed.