Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Guy Esanu

Applicant

-and-

Georgetown Men’s Non-Contact Hockey League, Tim Lester

and Neil Robshaw

Respondents

DECISION

Adjudicator: Sheri Price

Date: May 5, 2009

Citation: 2009 HRTO 579

Indexed as: Esanu v. Georgetown Men’s Non-Contact Hockey League

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on September 24, 2008, alleging discrimination in respect of services on the basis of ethnic origin and creed. This decision deals with the issue of delay in filing the Application.

2The applicant alleges that on one night in January 2006, while the applicant and other members of his recreational men’s hockey team were having beer and wings at a local restaurant after one of their games, the team representative, a fellow player and a personal respondent in this matter, Tim Lester, called the applicant a name which was tantamount to an ethnic slur. The applicant’s team was part of the Georgetown Men’s Non-Contact Hockey League (the “League”), the institutional respondent in this matter.

3The Application in this matter was filed almost two years and eight months after the incident to which the Application relates. Thus, there is a significant issue regarding the Tribunal’s ability to hear this matter as a result of the delay. This is because section 34(2) of the Code provides that a person may apply to the Tribunal more than one year after the incident to which his or her Application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed. In order to demonstrate that the delay in filing the Application was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not or could not pursue his or her rights under the Code in a timely manner.

4Pursuant to an Interim Decision in this matter, 2009 HRTO 1, a teleconference was convened to give the parties the opportunity to make oral submissions on whether the applicant could proceed with the Application in light of the delay in filing it.

SUBMISSIONS OF THE PARTIES

The Applicant

5The date of the last (and only) event leading to this Application was January 30, 2006. The applicant did not take any action with respect to the January 30, 2006 incident until April 2008, at which time he raised it with the League. The applicant submits that he did not take any action with respect to his complaint prior to April 2008 because he continued to play in the League and he feared harassment for being a “whistle-blower” and creating an environment of hostility among his fellow teammates. He says that bringing a formal complaint against a fellow teammate would have ended his ability to play in the League and he very much wished to continue to play. Moreover, the team was so “close knit”, the applicant asserts, that he had no confidence that his complaint would be dealt with in a fair and impartial manner. He states that he now realizes that ignoring the issue for as long as he did was to condone the respondents’ actions.

6The applicant asserts that he first felt free to complain about the January 30, 2006 incident to the League in April 2008. At that time, he was no longer on the same team as Mr. Lester and he felt the League could investigate his complaint. Thus, in April 2008, the applicant approached the then convenor, Mr. Neil Robshaw, the person to whom players’ concerns or questions about the League would ordinarily be directed. The applicant made Mr. Robshaw aware of all of the details of the January 30, 2006 incident and provided him with the names of the witnesses who were present. The applicant had full faith that Mr. Robshaw would investigate the matter quickly and get back to him with a decision as to how the League was going to address what had occurred. A couple of months passed and the applicant heard nothing. He did not follow up with Mr. Robshaw because he did not want to bother him. Then, in June 2008, Mr. Robshaw sent an email to some members of the League indicating that he was no longer involved with the League and that no one should contact him. The applicant did try to contact Mr. Robshaw but Mr. Robshaw did not respond to his emails or telephone calls.

7The applicant submits that he decided to wait until registration for the 2008/2009 season to see who would replace Mr. Robshaw so that he could pursue his complaint with that person. In early September 2008, a notice in the local paper provided contact information for Mr. Roger Morell, the new convenor for the League. The applicant contacted Mr. Morrell and for the first time made him aware of the January 30, 2006 incident. After a few days, the applicant contacted Mr. Morrell again who told him that he had confirmed with a witness that an ethnic slur had been uttered against the applicant more than two years earlier as the applicant alleged, but that the League would not be taking any further action in the matter. Shortly thereafter, the applicant filed his Application with the Tribunal.

THE RESPONDENTS

8The respondents submit that they would be substantially prejudiced by the delay if the Application were permitted to proceed. The League submits that it cannot adequately defend the allegations against it because Mr. Robshaw, the former convenor who received the applicant’s complaint to the League, is no longer available as a witness. It is common ground among the parties that, since June 2008, Mr. Robshaw has been “nowhere to be found” and he has not participated in the Tribunal process in respect of this Application although named as a personal respondent. The League submits that it would be prejudiced by Mr. Robshaw’s unavailability because it does not have access to any of the records which existed with respect to the applicant’s complaint as they were in Mr. Robshaw’s sole possession. The League submits that if the applicant had attempted to pursue his rights under the Code in a timely manner, Mr. Robshaw would have been available to provide information and assistance to the League in responding to the allegations against it.

9Mr. Lester submits that he would be prejudiced by the delay because with the passage of nearly two years and eight months since the incident in question, his memory of the evening in question has faded. He submits that because of the lengthy delay in bringing the Application, he cannot recall who else was present on the evening in question and who might therefore be potential witnesses in this matter.

10The League and Mr. Lester also submit that the delay in making the Application was not incurred in good faith. They reject the applicant’s position that he was not free to raise his complaint prior to April 2008 because he was on the same team as Mr. Lester. The respondents submit that the applicant could have moved to another team if he had wished to do so and that moving teams is not uncommon.

11The applicant submits that he did not understand at the time that he could ask to be moved to another team. He also submits that the League would not be prejudiced by the delay because after he raised the complaint with Mr. Morell in September 2008, the League was able to confirm with a witness that the incident did take place as he alleged in January 2006. With respect to Mr. Lester’s submission that his memory of the events has faded with time, he submits that he himself remembers the events of the evening in question clearly.

DECISION

12The Tribunal is not satisfied that the delay in filing this Application was incurred in good faith. In order to be satisfied that the delay was incurred in good faith, the Tribunal would require a reasonable explanation as to why the applicant did not or could not pursue his rights under the Code in a timely manner. In the circumstances before me, the applicant did not provide a reasonable explanation for the nearly two year and eight month delay in filing the Application.

13In attempting to justify the delay in filing his Application, the applicant submits that he did not wish to bring a human rights complaint against a fellow teammate while still playing on that person’s team. He felt that to do so would create hostility towards him among his fellow players and end his ability to play in the League. This, in my view, does not justify the applicant’s failure to enforce his human rights in a timely manner. Essentially, the applicant decided that he would rather continue playing hockey in the League than to bring a human rights complaint against a teammate. That was certainly a decision that he was entitled to make and it may very well have been the best decision for him at the time. However, the desire to avoid the interpersonal discomfort which might result from making a human rights application is not a reasonable explanation for the delay of more than two years before the applicant raised his complaint with anyone.

14I note also that, under the Code, the Tribunal must be satisfied that the applicant had a good reason for delaying the length of time he did before filing his Application with the Tribunal, not merely before bringing it to the attention of the respondents. The applicant submitted that part of the reason he did not pursue his human rights prior to April 2008 was that he did not believe that the League would conduct a fair and impartial investigation of his complaint while he was still a member of Mr. Lester’s team. However, the applicant need not have relied on the League to conduct a fair and impartial investigation; he could have filed a complaint under the Code to enforce his human rights. He did not offer any reasonable explanation why he could not pursue his rights under the Code in a timely manner.

15Even if the Tribunal were satisfied (which it is not) that the delay from January 30, 2006 to April 2008 was justified, the applicant has not provided a valid reason why he could not file an Application or complaint under the Code in April 2008, at which time he submits he finally felt free to raise his complaint. Waiting for the League to investigate his allegations and get back to him and then, when that did not happen, waiting for contact information for the new contact person for the League to be published, so that he could pursue his allegations with that person, are not valid reasons why the applicant could not pursue his rights under the Code in a timely manner.

16In these circumstances, I am not satisfied that the applicant was unable, for valid reasons, to pursue his allegations under the Code in a timely way and that the delay was incurred in good faith. Accordingly, it is not necessary to determine whether substantial prejudice would result to the respondents if the Application were to proceed. This Application cannot proceed under section 34(1) of the Code and I find that the circumstances of section 34(2) do not apply. The Application is therefore dismissed.