Smith v. Windsor Police Services, 2010 HRTO 1163

Human Rights Tribunal of Ontario

B E T W E E N:

Carl Smith

Applicant

-and-

Windsor Police Services and Ravishankar Shenava

Respondents

DECISION

Adjudicator: Naomi Overend

Date: May 21, 2010

Citation: 2010 HRTO 1163

Indexed as: Smith v. Windsor Police Services

Decision

1The applicant filed his Application on December 8, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), alleging discrimination in the provision of services and contracts by the respondents. The allegations against the two respondents stem from an incident that the applicant states took place on January 14, 2008. A Notice of Intent to Dismiss ("NOID") was issued on February 10, 2010, indicating that the Application appears to be outside the Tribunal's jurisdiction because it was filed more than one year after the last incident of alleged discrimination.

2In addition, the NOID indicated that the Application may be outside the Tribunal's jurisdiction because the applicant had commenced a civil proceeding, which was still ongoing (see s. 34(11) of the Code). Finally, the NOID indicated that the subject matter of the Application was the same or substantially the same as the subject matter of a complaint that was filed with the Ontario Human Rights Commission (the "Commission") and, therefore, outside the Tribunal's jurisdiction (see s. 53(8) of the Code).

3With respect to the latter issue, the applicant had filed a complaint against the Windsor Police Services (File T-0149-08), but on review of the Decision and Reconsideration Decision arising from that Complaint, it would appear that that Complaint arose out of an unrelated incident which occurred on February 20, 2007. That being the case, the Application is not barred by virtue of s. 53(8) of the Code.

4With respect to the civil proceeding, although the applicant has appended some documents from SC-09-29753 (e.g., a list of proposed witnesses), he has not provided the Tribunal with the full Statement of Claim, as directed in the Application. Because none of the documents provided outline the nature of the allegations or the relief sought, it is not possible to determine whether the applicant is barred from filing an application under s. 34(11). However, given the delay in filing this Application discussed below, it is not necessary to determine the issue of whether it is also barred by virtue of s. 34(11).

DELAY

5Section 34 states, in part:

(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.

6As 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 did not pursue his rights under the Code in a timely manner.

7In response to the NOID, the applicant sent in a series of letters, some of which are responsive to the delay issue raised by the NOID, some of which (in whole or in part) deal with his previous complaints to the Commission. In this correspondence, the applicant states that his reason for the delay is that he did not want to be "black-balled" in the medical community by complaining earlier. He further expounds that he is the only one affected by the delay, indirectly suggesting that respondents are not prejudiced by the delay.

8The applicant does not allege he was unaware of his rights under the Code, which would be difficult to do given the series of complaints he had already filed with the Commission, one of which involved the Windsor Police Services (i.e., the same respondent in this Application).

9With respect to his stated concern about being "black-balled" in the medical community, it would appear that the applicant was actively engaged in complaining about his treatment months before he filed his Application. The applicant submitted a letter he purports to have sent to the Superior Court of Justice on July 7, 2009, five months prior to filing his Application, setting out his version of the facts of the January 14, 2008 incident. This letter is copied to the Canadian Mental Health Association, the College of Physicians and Surgeons (the "College"), the Windsor Police Services as well as this Tribunal. Indeed, in his Form 1-C, the applicant states that he had already complained to the College, and was told that they were doing an ongoing investigation. I find that the delay was not incurred in good faith, given the applicant's explanation for the late filing is inconsistent with his prior conduct.

10In light of my finding about the absence of good faith, coupled with the fact that the event complained about occurred almost two years prior to the filing of this Application, the Tribunal is without jurisdiction to deal with this Application. The Application is, accordingly, dismissed.