Diler v. Cambridge Memorial Hospital, 2009 HRTO 2143

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuray Diler Applicant

-and-

Cambridge Memorial Hospital and Edward Matti Respondents

DECISION

Adjudicator: Naomi Overend Date: December 11, 2009 Citation: 2009 HRTO 2143 Indexed as: Diler v. Cambridge Memorial Hospital

1The applicant filed her Application on March 9, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), alleging discrimination on the basis of place of origin, citizenship and disability in the provision of services by the respondent Cambridge Memorial Hospital. Dr. Matti was added as a respondent at the request of Cambridge Memorial Hospital (the "Hospital").

2This Decision deals with the request to dismiss made by both respondents on the basis that the applicant filed her Application more than one year after the last alleged discriminatory incident. An Interim Decision, 2009 HRTO 1620, was sent to the parties asking them for their submissions on this issue. The applicant was specifically directed to answer the following questions:

1. When was the last appointment with Dr. Matti she attended?
2. Is she alleging that the closing of her file is a violation of the Code? If so, on what basis?
3. If her last appointment with Dr. Matti took place on October 16, 2006, why is the formal termination of services 19 months later part of a "series of incident" as that term is used in s. 34(1)(b)?
4. Assuming that there was a delay, was it incurred in good faith?

3The parties filed submissions as directed, following which the applicant filed numerous supplemental submissions.

4In answer to the first question posed by the Tribunal, it is common ground between the parties that the applicant was last seen by Dr. Matti on October 16, 2006, and that she was sent a letter on May 23, 2008 closing her file, thus ending the patient/doctor relationship between her and Dr. Matti. In the 19-month period between the two dates, there was no patient/physician interaction. During that period, on September 28, 2007, the applicant, however, filed a complaint concerning her treatment with the College of Physicians and Surgeons (the "College"). She did not file her Application with this Tribunal until March 9, 2009.

ANALYSIS AND DECISION

5Section 34 of the Code states, in part:

(1) If a person believes that any of her 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.

6Pursuant to s. 34 of the Code, where an application is filed more than a year after the incident to which the application relates (or after the last incident in a series of incidents), the Tribunal has no jurisdiction to deal with the application unless it is satisfied that the delay in filing the application was incurred in good faith.

7As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, "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." When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.

Delay

8The applicant alleges that Dr. Matti, her treating psychiatrist, made a number of disparaging remarks to her about her religion and country of origin during his treatment of her. It is unclear when the last remark of this nature was allegedly made, but the applicant does state that it was prior to last appointment in October 2006. The applicant fails to make any connection between these alleged slurs and the closure of her file more than a year and half later. Thus, there is no basis to say that the closure of her file is one of a series of incidents, as that phrase is used in s.34 (1) (b).

9The applicant also states that the receipt of the letter closing her file scared her and made her re-live the earlier discrimination (and abuse of medication) she alleges took place. The respondents deny that there was anything unusual about the manner in which the applicant's file was closed. Indeed, the applicant has failed to allege anything about the closure of her file on which a finding of discrimination could be founded.

10The applicant relies on the notification that her file was being closed to say that her application was filed within one year. However, since this is neither the last in a series of incidents, nor a stand-alone violation of the Code, it cannot be relied on to make what would otherwise be an out-of-time application into a timely one. When it is removed from consideration, the most recent of the allegations in the Application could not have occurred any later than October 2006. Since the Application was filed in March 2009, almost two and half years later, it was filed well outside the one year time limit set out in the Code.

Good Faith

11The Tribunal has jurisdiction to accept applications outside the one year time limit if it is satisfied that the delay in filing was incurred in good faith. The reasons for the delay offered by the applicant do not suggest, however, that the delay was incurred in good faith.

12The applicant does not allege she was unaware of her rights under the Code, but rather states that she has a disability and that it sometimes takes her time to do things because time "desensitizes" her. However, this explanation is inconsistent with the fact that almost 18 months prior to filing her Application, the applicant had filed a complaint before the College, and 10 months before filing her Application, she had requested a review of the College's decision by the Health Professions Review and Appeal Board.

13In subsequent submissions, she asserts that she used the proceeding before the College to ascertain whether such a complaint would trigger "further abuse," and finding that it did not, determined that it would be safe to file her Application. This is inconsistent with later submissions, in which the applicant describes herself as very assertive. She states that Dr. Matti had seen her make complaints concerning the treatment of her by other doctors and that he was aware that "if something happens [she would] definitely complain."

14In light of the findings more than that the events properly complained about occurred well over two years prior to the filing of this Application, and that the applicant has failed to satisfy that the delay was incurred in the good faith. The Tribunal is without jurisdiction to deal with Application. The Application is, accordingly, dismissed.

Dated at Toronto, this 11^th^ day of December, 2009.

"Signed By"

__________________________________

Naomi Overend Vice-chair