Cvitko v. Ontario (Community Safety and Correction Services), 2010 HRTO 1427

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Cvitko Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correction Services (Ontario Provincial Police) Respondent

DECISION

Adjudicator: Sherry Liang Date: June 29, 2010 Citation: 2010 HRTO 1427 Indexed as: Cvitko v. Ontario (Community Safety and Correction Services)

APPEARANCES:

John Cvitko, Applicant ) On his own behalf Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services (Ontario Provincial Police), Respondent ) Marnie Bacher, Counsel

1This is an Application filed on August 31, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The applicant alleges that the Ontario Provincial Police ("OPP") discriminated against him during the course of arresting him on January 4, 2008. There is very little information in the Application, beyond the statement that the OPP did not allow him to wear footwear, nor bring proper medication. The applicant states that he was assaulted by a police officer resulting in serious injuries including a broken nose, bruised face and broken eardrum.

2The applicant alleges that he was mistreated by the OPP due to his ethnic origin, which he describes as Croatian.

3The OPP acknowledges that the applicant did sustain some injuries during an arrest. It states that the applicant resisted arrest and in the process assaulted a police officer. It takes the position that the force used was the result of the actions of the applicant and were appropriate in the circumstances. The OPP filed a Request for Order seeking the dismissal of the Application on the basis that it does not contain allegations that amount to a prima facie claim of discrimination under the Code, that it does not raise matters within the Tribunal's jurisdiction, and that it is filed beyond the one-year time limit provided in the Code.

4By Interim Decision dated January 25, 2010, 2010 HRTO 148, I directed a conference call to hear the parties' submissions on whether the Application should be dismissed because of delay, because it does not raise an arguable claim of discrimination under the Code, or because it does not raise matters within the Tribunal's jurisdiction to decide. This conference call hearing took place on June 17, 2010, at which time the applicant and the respondent both made submissions on the issues identified in the decision. The applicant made his submissions through his sister, as it was difficult for him to communicate by telephone. He was sitting beside her throughout the call as she conveyed the Tribunal's and respondent's comments and questions to him and his comments and questions in turn.

5During the course of the phone call, the applicant indicated that he did not have a copy of the Interim Decision in his possession, and seemed uncertain about whether he had received it. I confirmed with him that he had received notice of the conference call and other documents sent by the Tribunal to the same address to which the Interim Decision was sent. I also confirmed that the Tribunal had received a letter from a lawyer on his behalf confirming his address for service. The applicant had received the Request for Order and provided a response to it, and understood the issues to be addressed in the conference call. In the circumstances, I proceeded with the conference call and heard the parties' submissions.

DELAY

6In his Application, the applicant explained his reason for late filing as "unable to obtain info from Human Right Tribunal in a timely fashion". In his response to the OPP's Request for Order, he does not address his delay in filing the Application. In his oral submissions on June 17, 2010, the applicant stated that he did not have any additional information to submit, although he explained that he had difficulty tracking down the proper place to go to for assistance. It took him some time to find the right telephone number and contact person, and when he eventually obtained the information he filed the Application. He also stated that he has had difficulty with receiving mail. His sister stated that she wasn't sure that anyone told him that there was a time limit on filing the Application.

7At one point in his submissions, the applicant suggested that perhaps he was not thinking straight because of the injuries he sustained from the OPP, but acknowledged that he did not have any medical evidence that would support an inability to file an Application based on a medical impairment. He then stated that his reasons for the delay were essentially that he was not aware that he could make a human rights complaint, and that it was not an avenue he initially thought of pursuing.

8Section 34 of the Code requires applications alleging infringements of rights under the Code to be made within a one year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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.

9Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

10As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant 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 mandatory one-year limitation period for filing an application 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 seek to pursue a human rights claim.

11In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

12The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one's rights under the Code will generally not constitute a valid explanation for delay in filing an Application. Further, although ignorance of one's rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights.

13In the case before me, I am not convinced that the applicant has established that the delay in filing the Application was incurred in good faith. I stress that I am not finding that he acted in "bad faith" in not filing his Application earlier, but rather, that he has not provided a reasonable explanation that justifies extending the time limit. The applicant believed that he had been wronged by the OPP as of January 2008. Although he may not have believed initially that the events raised a human rights issue, it was incumbent on him to act diligently in determining what avenues were available to him.

14I recognize that it takes time for an individual in the applicant's position to research and determine how to file an application to the Tribunal. In this case, I also recognize that the applicant had limited resources, although he appears to have been able to obtain some assistance from his sister as well as a lawyer who communicated to the Tribunal on his behalf on one occasion. His limited means and sophistication may provide a reasonable explanation for some measure of delay in filing an application, but they do not provide a reasonable explanation for the entirety of the delay.

15In conclusion, I find that the Application was not filed within the time limit provided under the Code, and it is therefore dismissed.