Parry v. Sorokolit, 2010 HRTO 1445

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julia Parry Applicant

-and-

Bob Sorokolit and Edward Morwick Respondents

DECISION

Adjudicator: Faisal Bhabha Date: June 30, 2010 Citation: 2010 HRTO 1445 Indexed as: Parry v. Sorokolit

BACKGROUND

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

2The respondents are the applicant’s former physician and solicitor, respectively. The applicant claims that in 1976 she had grounds for a medical malpractice against Dr. Sorokolit, but that due to a prohibitively high retainer required by her solicitor, Mr. Morwick, she was unable to continue with the litigation. Due to the statutory limitation period, she eventually lost the opportunity to pursue the case. She claims damages for the past 35 years of suffering.

3On April 30, 2010, the Tribunal sent the applicant a Notice of Intent to Dismiss because it appeared the Application was filed more than one year after the last incident of discrimination described in his Application, and the Tribunal is not satisfied that the delay was incurred in good faith. The applicant was given 30 days to make submissions to the Tribunal regarding delay.

4On May 27, 2010, the applicant filed submissions explaining her position on the delay issue. In support of an argument that the delay was incurred in good faith, she submits that in 1976 she was not aware of her rights to file an application. She claims that she was “misled” to believe that her case would be “reopened” once she had the financial means to proceed. She further argues that she has tried unsuccessfully to obtain assistance from other institutions, and is ill-equipped to file an application on her own.

DECISION

5Section 34 of the Code states:

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.

6The Application was not filed within one year of the date that the applicant alleges the respondents last discriminated against her, and I therefore must determine whether the delay in filing this Application was incurred in good faith.

7The applicant makes several general comments about the difficulties she has faced over the past 35 years. Even accepting she has had difficulties, I do not find that these very general subjective statements are sufficient to establish that she was unable to file her Application in a timely fashion. I find, based on the information before me, that the applicant has not demonstrated that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code.

8While the applicant also made submissions in support of an argument that no substantial prejudice will result to any person affected by the delay, the Tribunal has held that if it has not been shown that the delay was incurred in good faith, it is not necessary for the Tribunal to make the further determination regarding prejudice: see Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579). In any event, I am satisfied that a 35-year delay would almost certainly cause substantial prejudice to the parties involved, as well as present challenges to the hearing process.

9Accordingly, the Application is dismissed.