Barua v. University of Toronto, 2009 HRTO 2148

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sona Barua Applicant

-and-

Governing Council of the University of Toronto and David Naylor Respondents

DECISION

Adjudicator: Ken Bhattacharjee Date: December 10, 2009 Citation: 2009 HRTO 2148 Indexed as: Barua v. University of Toronto

APPEARANCES BY

Sona Barua ) On his own behalf Governing Council of the University of Toronto and David Naylor ) Lily Harmer, Counsel

INTRODUCTION

1The purpose of this Decision is to address the respondents’ request to dismiss the Application on the basis that it was not filed with the Tribunal within the one-year statutory deadline.

BACKGROUND

2The applicant, who self identifies as a South Asian immigrant, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on January 16, 2009, which alleged that the respondents discriminated against him with respect to education services because of his ethnic origin.

3Specifically, the applicant alleged that the respondents accused him of plagiarism in 2003, but did not charge him until 2005, and failed to make a decision about his case until 2007, which had the effect of significantly delaying his graduation date. He further alleged that the respondents promptly dismissed and closed the case of a well-connected White student, who faced similar allegations of plagiarism.

4In section 7(c) of the Application (“What was the date of the last event?”), the applicant left the answer space blank, but attached to his Application the Decision of the Trial Division of the University Tribunal dated November 14, 2007, which found him guilty of plagiarism and suspended him from the University for three years. In section 7(d) of the Application (“If you are applying more than one year from the last event, please explain why:”), he wrote: “I could not find your address.”

5The respondents filed a Response on April 22, 2009, which denied the allegation of discrimination. The Response also requested that the Tribunal dismiss the Application (a) pursuant to section 34 of the Code because there was no good faith reason given by the applicant for the delay in filing his Application, and (b) pursuant to section 45.1 of Code because the Decision of the University Tribunal fully and appropriately dealt with the substance of the Application.

6The applicant filed a Reply on June 2, 2009, which did not clearly address these two issues.

7In an Interim Decision, 2009 HRTO 860, I decided that it would be fair, just and expeditious to hear the issues identified by the respondents as preliminary matters in a half-day hearing. The hearing took place on December 1, 2009.

8At the hearing, I heard submissions from the parties on the first issue and dismissed the Application with written reasons to follow. In view of my decision to dismiss the Application, there was no need to hear submissions on the second issue. The following are my reasons for the dismissal.

ONE-YEAR STATUTORY DEADLINE

9The statutory deadline for filing an Application with the Tribunal and the circumstances under which a late Application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

SUBMISSIONS

10There was no dispute between the parties that the Application was filed out of time. The applicant admitted that the last incident of alleged discrimination occurred on November 14, 2007, but he did not file his Application until January 16, 2009, which was more than two months beyond the one-year statutory deadline. Accordingly, the parties’ oral submissions mainly focused on whether the applicant’s delay in filing his Application was incurred in good faith.

11The applicant submitted that his delay in filing his Application was incurred in good faith because he was not aware that he could file an Application with the Tribunal, and did not have its address, until January 2009.

12The applicant admitted that he began pursuing his complaint of discrimination in 2005 after he was charged with plagiarism. He stated that he sent a complaint letter to several individuals and organizations, including Premier Dalton McGuinty, whose office responded to him on January 3, 2006. The response letter stated, in part:

The Ontario Human Rights Commission administers and enforces the Ontario Human Rights Code which provides for the right to equal treatment in employment, services, goods and facilities, contracts and accommodation without discrimination. You may wish to contact the Ontario Human Rights Commission by writing to 7th floor, 180 Dundas Street West, Toronto, Ontario M7A 2R9 or by calling 416-326-9511 to discuss your views.

13The applicant stated that he also submitted a complaint letter to the Commission and went to the Commission’s office in person in 2006 and spoke to the Chief Commissioner, Barbara Hall, who referred him to her staff for assistance. He stated that Commission staff told him “it is not our concern”, refused to accept his complaint, and referred him back to the university.

14I asked the applicant for a copy of the complaint letter. He initially denied that he had the letter with him, but then provided a copy of a typewritten letter addressed to a lawyer with the lawyer’s name and address crossed out and “To The Human Rights Com.” written in hand beside it. I asked the applicant if he had done the cross out and made the handwritten notation just before he gave the letter to me, and he admitted that he had. He stated that the letter was the same one that he had sent to the Commission.

15The applicant stated that he went back to the Commission’s office in person on November 25, 2007 after he received the University Tribunal’s Decision, and submitted another letter of complaint. He stated that he had several meetings with Commission staff, who asked him questions about his case, until December 2008, when he was told again “it is not our concern” and his case was abruptly closed. He stated that the Commission never informed him that he could file an Application with the Tribunal.

16I asked the applicant for a copy of the complaint letter that he submitted to the Commission, and any correspondence that he received from the Commission. He stated that he did not have the complaint letter with him, and he never received any correspondence from the Commission.

17The applicant also stated that he faxed his complaint letter to several other organizations, including the Ombudsman Ontario and the Supreme Court of Canada, and that an anti-racism organization eventually telephoned and informed him that he could file an Application with the Tribunal. He stated that he filed his Application with the Tribunal shortly afterwards. I asked the applicant for the name of the organization and a copy of the fax that he sent to it, but he stated that he did not know its name and he left the fax at home.

18The respondents’ counsel submitted that the applicant failed to meet his onus of providing a reasonable explanation for the delay in filing his Application. She stated that his explanation not only demonstrates a failure to exercise due diligence, but also lacks credibility. Specifically, the applicant knew since January 2006 how to file a human rights complaint, but failed to do so until January 2009, and his explanation about what happened at the Commission lacks credibility, particularly in view of his failure to produce any correspondence between himself and the Commission.

ANALYSIS AND DECISION

19I am not satisfied that the applicant’s delay in filing his Application with the Tribunal was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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.

20In my view, the applicant has not met his onus of providing a reasonable explanation for the delay. I agree with the respondents that the applicant’s failure to file a human rights complaint or Application until January 2009, even though he was clearly informed how to file a complaint at the Commission in January 2006, shows a lack of due diligence.

21Furthermore, I agree with the respondents that the applicant’s statements about what happened to him at the Commission lack credibility, particularly given his failure to produce the complaint letters that he allegedly submitted to the Commission, and his attempt to pass off a letter that he sent to a lawyer as a letter that he sent to the Commission. I also do not find it credible that the applicant cannot remember the name of the anti-racism organization that allegedly informed him in January 2009 that he could file an Application with the Tribunal, and find it inexplicable that he would not bring the letter that he allegedly faxed to the organization to the hearing.

22In view of my finding on this point, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

ORDER

23The Application is dismissed.