Samuray Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samuray Diler

Applicant

-and-

Cambridge Memorial Hospital

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: June 1, 2010

Citation: 2010 HRTO 1224

Indexed as: Diler v. Cambridge Memorial Hospital

1The applicant filed an Application on March 14, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination on the basis of disability in the provision of goods, services or facilities.

2In essence, the applicant alleges that while she was hospitalized in 2005, nurses employed by the respondent hospital decided to give away her pet cat. She states that, because she was disabled, nurses contacted the humane society without her consent or knowledge. She also states that the nurses ignored her because of her disability.

3The Tribunal issued a Notice of Intent to Dismiss stating that the Application appeared to be outside the Tribunal’s jurisdiction because: (a) it was filed more than one year after the last incident of alleged discrimination; and (b) the delay did not appear to meet the criteria of good faith and no substantial prejudice to any affected person. The Tribunal invited further submissions from the applicant on the issue of delay.

4The applicant filed submissions on May 25, 2010. She states that she had a mental disability from 2001 to 2006 and that her condition stabilized sometime in 2006. When she was hospitalized in 2005, she recalls nurses speaking to her about her pet cat and forcing her to give it away. She refused.

5The applicant states that the delay was because she did not appreciate that nurses had contacted the humane society until August 2009, when she obtained medical records. The applicant states that she filed the Application within approximately seven months of obtaining the medical records and discovering the extent of the nurses’ role in this matter.

6Section 34 of the Code states:

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.

7The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

8I find that the Application was filed more than one year after the incident of alleged discrimination. I turn now to whether the delay was incurred in good faith.

9In determining the issue of good faith, the Tribunal has considered factors such as whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application: see Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

10The applicant does not specifically allege that her disability prevented her from taking steps to assert her rights under the Code. In any event, she states that her disability stabilized in 2006. Based on the materials filed, I find that the delay of at least the three years after 2006 cannot be attributed to the applicant’s disability.

11In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”. It wrote:

Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.”

12I accept that the applicant did not know that nurses had contacted the humane society about her cat until 2009. However, the applicant appears to have had concerns about the nurses’ alleged behaviour in 2005, when she says they “forced” her to give away her pet. In light of this, it is unclear why she did not make enquiries about her rights until 2009.

13The Tribunal’s jurisprudence is clear that delay caused by aggrieved persons waiting for evidence to materialize that supports their case (medical records, for example) will not meet the test of good faith for the purposes of the Code: Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23.

14The applicant has not satisfied me that she had no reason to make enquiries about her rights until 2009. Even if the applicant’s disability prevented her from making enquiries until 2006 (which is not specifically alleged), the applicant has not provided a basis for me to conclude that the delay between 2006 and 2009 was in good faith within the meaning of the Code.

15Accordingly, the Application is dismissed.