Akinkuowo v. Young, 2009 HRTO 2118

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Akinkuowo

Applicant

-and-

Robert Young

Respondent

DECISION

Adjudicator: Alison Renton

Date: December 7, 2009

Citation: 2009 HRTO 2118

Indexed as: Akinkuowo v. Young

1This is an Application filed on February 17, 2009 under section 34 of the Human Rights Code, R.S.O. 1990 c. H.19, as amended, (the “Code”). The applicant alleges discrimination on the basis of race, colour, ethnic origin, and family status in the provision of goods, services and facilities and employment. More specifically, she alleges that in 2007 she attended the respondent’s dental practice initially for teeth cleaning and then for fillings. She alleges that after the fillings, she experienced some “strange” and negative side effects that are described in her Application, that she attributes to the installation of the fillings.

2Upon receipt of her Application, the Tribunal issued a “Notice of Intent to Dismiss” (“NOID”) advising the applicant that it appeared that the Application is outside of the Tribunal’s jurisdiction because it was filed more than a year after the last incident of discrimination. The Tribunal requested submissions from the applicant on this issue including addressing whether the delay was incurred in good faith and that no substantial prejudice would result to any person affected by the delay. The Tribunal requested that the applicant’s submissions be filed by April 22, 2009. The applicant did not file any submissions, or otherwise communicate with the Tribunal since filing her Application, and the time for filing submissions has now passed.

3While there may be a question of whether or not the allegations themselves are within the jurisdiction of the Tribunal, I will consider first the issue of delay.

4Section 34 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.

5The 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.

6In 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). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

7In response to the question on the Application form “what was the date of the last event”, the applicant wrote 2007. In response to the question “if you are applying more than one year from the last event, please explain why” the applicant wrote “just discovered the implant about a year ago”. However, the applicant’s response is inconsistent with the allegations contained in her Application. In her Application, the applicant wrote that she started to experience her side effects after a couple of weeks of the fillings being installed. She referenced a receipt dated April 19, 2007 as the date for that dental work. She submitted that she visited her family physician about the side effects from her dental surgery, but decided not to pursue the issue with her doctor because her doctor seemed “agitated somehow and vague with her answers”. She also wrote, “There are other things tak[ing] place in my life that [have] prevented me from tak[ing] legal action against Dr. Young until now”, but provides no details about those other things. As mentioned above, the applicant did not respond to the Tribunal’s NOID.

8I find that based upon the information in the Application, the applicant was aware of the basis for her alleged claim of discrimination in a timely manner, but did not file her Application because of other, unspecified incidents that were happening in her life. Given the vague description of why she filed her Application late, I do not find that the applicant has met the high onus required to provide a reasonable explanation for the delay. As such, I am not satisfied that any delay was incurred in good faith. Therefore, this Application is outside the Tribunal’s jurisdiction as it was filed more than one year following the date of the incident to which it relates, and it would not be appropriate for the Tribunal to allow this late Application pursuant to s. 34(2).

9In light of this finding, it is not necessary for me to address the second issue which is whether or not the respondent has suffered substantial prejudice as a result of the applicant’s delay.

10In light of my decision to dismiss the Application because it was brought outside the statutory one-year limitation period, I do not find it necessary to consider further the question of whether the allegations themselves raise issues within the jurisdiction of the Tribunal.

11The Application is dismissed.