B E T W E E N:

African Canadian Legal Clinic Applicant

-and-

Legal Aid Ontario, Angela Longo and Sue McCaffrey Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: June 3, 2010 Citation: 2010 HRTO 1255 Indexed as: African Canadian Legal Clinic v. Legal Aid Ontario

WRITTEN SUBMISSIONS BY

African Canadian Legal Clinic, Applicant ) Hamdi Mursal, Counsel Legal Aid Ontario, Angelo Longo and Sue McCaffrey, Respondents ) Tracy A. Pratt, Counsel

Background

[2] On May 20, 2004, the African Canadian Legal Clinic (“ACLC”) filed a complaint with the Ontario Human Rights Commission against Legal Aid Ontario (“LAO”) and the personal respondents. Angela Longo was President of LAO when the ACLC made its complaint. Sue McCaffrey was Vice President, Clinics and Special Services at the time.

[3] ACLC identified itself as a legal aid clinic protecting the rights and interest of African Canadians. The majority of their staff and the entire Board of Directors are African Canadian.

[4] The ACLC asserts that LAO treated the ACLC differently compared to other legal clinics in the manner in which the LAO conducted an investigation into alleged financial and other irregularities of the ACLC from April 2003 to May 2004. In prior Interim Decision, [2010 HRTO 187](https://www.minicounsel.ca/hrto/2010/187), I ruled that the LAO’s investigatory process, if conducted in a discriminatory manner, could amount to a violation of section 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

Historical Allegations

[5] The ACLC also alleged historical differential treatment in the nine years prior to the complaint.

[6] The ACLC was directed to provide particulars of the dates of allegations found in paragraphs 1 to 13, 19, 20, 21 and 23 of the applicant’s brief and the parties were given an opportunity to make submission on whether the historical allegations are barred by section 34(1) of the Code.

[7] The ACLC provided particulars of the alleged historical discrimination dating back to 1993, including an allegation that the predecessor of the LAO, the Clinic Funding Staff (“CFS”), did not support the establishment of the ACLC and made inappropriate inquiries into the background of three members of the steering committee of the ACLC in 1993, that the CFS advised a candidate for the position of Executive Director to file a human rights complaint against the ACLC in 1994, that the CFS made inappropriate inquiries into background of a potential candidate for the position of Executive Director in 1996, that the Executive Director of the ACLC was underpaid compared to other Executive Directors in the clinic system from 1997 to 2001, that the CFS unfairly compared the productivity of the AFCL, a test case legal aid clinic, with non-test case legal aid clinics in 1996, 1997 and 1999, that the ACLC was scrutinized more closely than other legal aid clinics through the Quality Assurance Program in 1998, 1999 and 2001, that CFS delayed in responding to a review of the co-management model in 1999, that the LAO stopped the ACLC’s direct deposit in April 2003, that the ACLC has experienced extreme delays in having telephone calls returned from LAO staff including senior management (no time frame particularized), and that the Executive Director was treated disrespectfully by a manager at LAO in January 2002.

[8] All of these allegations occurred more than 12 months before the complaint was filed with the Commission in May 2004.

[9] Section 34 of the Code sets a limitation period for bringing applications alleging infringements of the Code:

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.

[10] Section 34 of the Code allows applications alleging discrimination under the Code to be made within one year of the incident (or last in a series of incidents) of alleged discrimination. While the original complaint underlying the present Application was filed when the old section 34 of the Code was in force, the Tribunal has found that the provisions of the current section 34 are applicable to applications, such as this one, filed under the transition provisions of the Code. See, for example, [Boncori v. TRW Canada, 2009 HRTO 564](https://www.minicounsel.ca/hrto/2009/564); [Marchand v. St. Michael’s Hospital, 2009 HRTO 566](https://www.minicounsel.ca/hrto/2009/566); and, [Chinatman v. Toronto District School Board, 2009 HRTO 1225](https://www.minicounsel.ca/hrto/2009/1225).

[11] The applicant asserts that the historical allegations form a “series of incidents” leading to the 2003 to 2004 events, such that the twelve month time limitation should not apply. I do not agree. The description of the historical allegations above is more in the nature of independent incidents of conflict between the applicant and the LAO and the CFS rather than a series of incidents within the meaning of section 34(1).

[12] According to section 34(2) of the Code, an application made more than one year after the incident or last incident of alleged discrimination may only proceed before the Tribunal where the Tribunal is satisfied that the delay in filing the application was incurred in good faith and would not cause not substantial prejudice to any person affected by the delay..

[13] As stated in [Miller v. Prudential Real Estate, 2009 HRTO 1241](https://www.minicounsel.ca/hrto/2009/1241), in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must demonstrate something more than simply an absence of bad faith, otherwise, there would be little meaning to the limitation period. In my view, the limitation period of one year is consistent with the policy objective, expressed elsewhere in the Code that human rights claims should be dealt with expeditiously. Accordingly, individuals must act with all due diligence and file their applications within one year when they seek to pursue human rights claims.

[14] In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a very high onus on applicants to provide a reasonable explanation for the delay. See, by way of example, [Klein v. Toronto Zionist Council, 2009 HRTO 241](https://www.minicounsel.ca/hrto/2009/241).

[15] I am not satisfied that the applicant has established any basis for the delay in raising the historical allegations outlined above. The only explanation for the delay is that the ACLC attempted to resolve its concerns informally and internally with the LAO. The Tribunal has held that this does not excuse an applicant from the obligation to file a timely Application: The desire for a period of reflection and consideration of options may be reasonable, but it cannot be used to overcome a statutory limitation period: [Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670](https://www.minicounsel.ca/hrto/2009/1670). The Legislature had determined that human rights applications are best addressed in a timely fashion and has set the limitation period at one year, absent a good faith reason for a delay. The Tribunal has no authority to condone even brief delays beyond the 12-month mark, unless good faith has been established. See Carter, supra.

[16] I am not satisfied that the applicant has established that the delay in raising the historical allegations was incurred in good faith.

[17] Further, I am also satisfied that the respondents would face substantial prejudice in responding to the historical allegations from 1993 to 2002 set out in paragraph 7 above.

[18] In addition to the investigation of the alleged financial and other irregularities from April 2003 to May 2004, which I previous ruled formed the subject matter of the present Application, the applicant also raised in paragraph 19 of its particulars allegations relating to events from March 2003 to March 2004. In my view, those allegations are not out of time. Accordingly, I will not dismiss them under section 34(1) of the Code. Nothing in this Interim Decision is intended to suggest that these particulars could form a breach of section 1 of the Code.

Removal of Personal Respondents

[19] The corporate respondent asked that the personal respondents be removed from these proceedings.

[20] The Tribunal has generally considered the following factors as set out in [Persaud v. Toronto District School Board, 2008 HRTO 31](https://www.minicounsel.ca/hrto/2008/31) at paras [4-5](https://www.minicounsel.ca/hrto/2008/31) in deciding whether to remove personal respondents from a proceeding:

Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

[21] The applicant has asserted that the personal respondents’ conduct is central to its allegations of racism and that the personal respondents’ actions were indicative of racial profiling. These allegations, if established, could give rise to a remedy against the personal respondents. In these circumstances, I do not find that it would appropriate to remove the personal respondents from these proceedings.

Mediation

[22] The parties have indicated that, following the issuance of this Interim Decision, they would be interested in pursuing mediation. The Registrar-Transition will contact the parties to schedule a date for mediation.

African Canadian Legal Clinic v. Legal Aid Ontario, 2010 HRTO 1255

Case Summary