Hall v. Royal Victoria Hospital, 2010 HRTO 1165

Human Rights Tribunal of Ontario

B E T W E E N:

Clifford Hall

Applicant

-and-

Royal Victoria Hospital and Janice Skot

Respondents

DECISION

Adjudicator: Brian Cook

Date: May 21, 2010

Citation: 2010 HRTO 1165

Indexed as: Hall v. Royal Victoria Hospital

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application concerns a comment made during the treatment of the applicant’s late wife by a doctor who was treating her prior to her death. The applicant alleges that the comment reflected discriminatory treatment on the grounds of age.

2According to the Application, the remark was made in November 2007. The Application was filed January 6, 2010, more than two years later. The respondents filed a full Response and a Request for Order During Proceedings which raised a number of concerns about the Application, including whether it had been filed in a timely way. The applicant filed a Response to the Request for Order During Proceedings.

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.

4The respondents ask that the Tribunal dismiss the Application because it was not brought within one year of the incident to which the Application relates.

5The applicant submits that the delay was incurred in good faith. He states that the reason for the delay is that he was waiting to have a meeting with the personal respondent, who is the CEO of the hospital where his late wife was being treated. He met with the CEO in October 2009 and was dissatisfied with her response, and then filed this Application. He does not allege that the personal respondent directly discriminated against him or his late wife but rather that she failed to take appropriate action in response to the complaint.

6In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal discussed what an applicant must show to establish that a delay in filing an application 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.

7In the present case, I appreciate that the applicant was trying to resolve his complaints in other ways. Although it may be reasonable in some circumstances for an applicant to wish to pursue other avenues before resorting to an application under the Code, it is not reasonable for an applicant to delay making inquiries about the availability of a remedy under the Code or the existence of time lines to file an application under the Code, while awaiting the outcome of other processes: Ramnath v. Peel Regional Police, 2010 HRTO 548. I am unable to accept that this is a reason which supports a finding the two-year delay was incurred in good faith within the meaning of section 34(2) of the Code.

8For this reason, the Application is dismissed.