Idrissi v. Hunter, 2010 HRTO 1190

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mariam Idrissi

Applicant

-and-

Barry Hunter

Respondent

DECISION

Adjudicator: Naomi Overend

Date: May 26, 2010

Citation: 2010 HRTO 1190

Indexed as: Idrissi v. Hunter

1The applicant filed her Application on March 2, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleging reprisal and discrimination in the provision of services on the basis of ethnic origin, creed and marital status. The allegations concern events that took place between January 7, 2008 and February 21, 2008. At the same time as the applicant filed her Application, she also filed a Request to Expedite in which she states: “The harm was done two years ago. Waiting longer would hurt more.”

2A Notice of Intent to Dismiss (“NOID”) was issued on April 20, 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 and the applicant had not explained how the delay was incurred in good faith. The applicant sent in response submissions to this Notice on May 18, 2010.

ANALYSIS AND DECISION

3Section 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.

4As 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 she did not pursue her rights under the Code in a timely manner.

5In her Application, the applicant’s explanation for the delay is that for an unspecified period she was unaware of her rights under the Code. In addition, she states that she was “afraid to speak up” for the first year because she was afraid she would experience “another reprisal” of the same nature as the reprisal she alleges in her Application. This concern is repeated in her May 18, 2010 submissions on delay. She states: “Even until today I am afraid of stepping into Canada with my baby unless I have protection status.” The applicant is resident in the United States.

6In order to evaluate the applicant’s stated concerns, it is important to understand some of the alleged background facts. The allegations concern the treatment of her by staff (including the respondent) during the period she was giving birth and in the post-partum period. At some point the applicant became so concerned about the medical treatment of her daughter that she called the police, which resulted in her being committed under the Mental Health Act, R.S.O. 1990, c. M.7 and the Children’s Aid Society becoming temporarily involved. This all took place the week of January 7-14, 2008.

7On February 21, 2008, the date of her follow-up visit with the respondent, the applicant alleges she confronted the respondent about his “discrimination.” She alleges that at that visit the respondent and his secretary were already aware that she had contacted a lawyer in Hamilton and it was her intention to file a suit against the respondent and the hospital at which she gave birth. Moreover, in March 2008, the applicant had filed a “public complaint” with the Halton Police and received their findings in July 2008.

8The actions of the applicant in February and March 2008 are not consistent with her assertion that her failure to file an application arose out of her concern about experiencing further reprisal. Moreover, her submissions do not address why, at this stage, her concern about reprisal has abated. Finally, her submissions do not address what reprisal she believes the respondent, a doctor within Ontario, can inflict on her given that she is again living in the United States. The applicant has, accordingly, provided no information on which the Tribunal could conclude that the delay was incurred in good faith.

9Given the absence of evidence that the two-year delay was incurred in good faith, the Tribunal is without jurisdiction to deal with this Application. The Application is dismissed.