David O’Hare v. Madoc Drive Public School, 2009 HRTO 652

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David O’Hare Applicant

-and-

Madoc Drive Public School Respondent

decision

Adjudicator: Brian Cook Date: May 19, 2009 Citation: 2009 HRTO 652 Indexed as: O’Hare v. Madoc Drive Public School

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”), filed on March 14, 2009. The applicant describes himself as Canadian born citizen of Jamaican heritage. The Application describes racial discrimination at a public school in the period from 1980 to 1982.

2Since the events giving rise to the Application occurred more than 25 years before the Application was filed, there is a question of whether the applicant can bring the Application to the Tribunal. The Tribunal issued a Notice of Intent to Dismiss on April 1, 2009 seeking submissions from the applicant about why he should be permitted to bring the Application even though the events in question happened so long ago. In accordance with the Tribunal’s Rules, the Application has not yet been delivered to the respondent.

3Sections 34(1) and (2) of the Code provide:

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.

4To permit the Application to proceed where filed outside the time set out in s.34(1) the Tribunal must be satisfied of two things: that the delay was incurred in good faith and that the delay will not result in substantial prejudice to any person affected by the delay. It is not sufficient, for example, that the delay was incurred in good faith where the delay results in substantial prejudice to a person affected by the application.

The applicant’s submissions

5The applicant alleges that he was subjected to racial discrimination by two teachers and the school principal when he was nine and ten years old. He alleges that his grade 4 teacher in particular was abusive and caused him to experience significant humiliation. For example, she forced him to stay in a cardboard box which she constructed for that purpose, and told the other children not to talk to him, calling him “stupid, fat and ugly”. In grade 5, a teacher singled him out, humiliated him and treated him unfairly. For example, she once sent him home inappropriately without an escort and without notifying his parents. The principal called him a “nigger” and made other racist remarks. The principal denied this when the applicant’s parents complained, but he refused to do anything about the discrimination by the teachers.

6The applicant indicates that these experiences caused life-long emotional distress. He has suffered from depression and “self loathing”.

7The applicant submits that he should be allowed to bring the Application even though it is brought late. He indicates that he just recently began to come to terms with the abuse that he suffered. He notes that at the time he was a vulnerable child and could not reasonably have been expected to take action on his own. His parents were recent immigrants who were not comfortable confronting authority, and were not aware of the full extent of the humiliation and discrimination that the applicant suffered.

8The applicant concedes that it might be difficult for the school or the school board to respond to the allegations. He thinks that it is unlikely that the teachers or principal are still working. However, he thinks his allegations should be dealt with because of the life-long impact of the experiences and also so that past racist attitudes and actions are exposed and recognized.

Conclusions

9While the fact that the applicant did not raise the allegations at the time may be understandable, and while I appreciate that it has taken him some time to come to terms with his experiences, the applicant has not provided a clear explanation of why it has taken so long to raise his concerns.

10Even if it were to be accepted that the delay was incurred in good faith, it is clear that the respondent would be significantly prejudiced by the delay. The events described in the Application occurred more than 25 years ago. As the applicant notes, it is unlikely that the teachers or the principal involved are still employed by the school. Even if they could be located, it would be very difficult for the school to now investigate the applicant’s allegations. Memories of all concerned will have faded significantly and it would be almost impossible to find relevant documents.

11The Code does not allow the Tribunal to extend the time limit for filing an Application if doing so would cause substantial prejudice to a party affected by the delay. The reason for this is that the rules of natural justice require that a party to a proceeding must have the ability to prepare its case and to meet the case presented against it.

12In some cases, the prejudice caused by delay can be overcome or minimized by appropriate procedural measures to the point that any prejudice is no longer substantial. In this case however, there are no measures that could be taken that could make the prejudice to the respondent anything less than substantial because the passage of time is simply too great.

13Accordingly, while I understand the reasons for the applicant’s delay in bringing the Application, I conclude that the conditions in s.34(2) that would allow me to permit the applicant to bring the Application have not been met.

ORDER

14The Application is dismissed.