Sahza Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario, 2010 HRTO 1578

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sahza Hatibovic-Kofman Applicant

-and-

Royal College of Dental Surgeons of Ontario Respondent

DECISION

Adjudicator: Ena Chadha Date: July 20, 2010 Citation: 2010 HRTO 1578 Indexed as: Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application was filed on February 12, 2010. The applicant alleges that she is being denied specialty certification due to systemic discrimination against foreign trained candidates. The applicant was last denied the specialty certificate licence by the respondent on June 6, 2007.

2On June 8, 2010, the Tribunal issued a Notice of Intent to Dismiss because the Application was filed more than one year after the last incident of discrimination. The Tribunal invited the applicant to file submissions within 30 days of June 8, 2010, explaining why the Application was filed beyond the one-year limitation period established under the Code.

3The Tribunal has reviewed the applicant’s submissions with respect to the issue of delay, filed on July 8, 2010, as well as the lengthy submissions and documents filed with her Application.

DECISION

4Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last in a series of incidents) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 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.

5The last incident of alleged discrimination cited in the Application is June 6, 2007, the date the applicant was most recently denied specialty certification. Accordingly, the Application, filed over one year later does not meet the requirements of section 34(1).

6On review of the material before me, I am satisfied that this Application may not proceed. The applicant has not provided a reasonable explanation for the delay that leads to the conclusion that it was incurred in good faith.

7The applicant states that the delay in filing the Application was because she was attempting to resolve her concerns through an alternate adjudicative body, specifically the Health Professionals Appeal and Review Board (“HPARB”). The applicant commenced her appeal of the respondent’s denial with HPARB in July 2007. Since that time the applicant and respondent have been involved in various discussions, submissions and negotiations regarding a preliminary issue with respect to HPARB’s jurisdiction to deal with the matter in writing or orally. Nothing has occurred since June 2009 when HPARB was asked to rule on that preliminary matter. The parties continue to wait for the HPARB’s disposition in this regard.

8The applicant submits that as a result of these “prolonged, unexpected, frustrating and unwarranted time delays and the increasing costs of dealing with procedural preliminary points” the applicant determined that her “only viable option was to file a discrimination complaint” with the Tribunal which she “promptly” filed. The applicant submits that the Tribunal should exercise its discretion to accept this Application because there is a reasonable explanation for the applicant’s delay. The applicant argues that the effects of the respondent’s denial are on-going and that it is not practical to force the applicant to re-apply to the respondent only to be again rejected in order to file a timely Application. In addition, the applicant argues that the respondent would not be substantially prejudiced if the Application were to proceed because, as the impugned decision is in written form, there would be few witnesses and all records and documents continue to exist and have already been collated.

9The applicant’s submissions indicate that the delay was caused because she was exploring another legal avenue in an attempt to resolve the matter. The fact that a person is pursuing other avenues or 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. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Further, the fact that the alleged discriminatory act has continuing effects does not extend the time limit for filing an application under the Code. See Mafinezam v. University of Toronto, 2010 HRTO 1495.

10The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. In determining the issue of good faith, the Tribunal has considered factors such as the duration of the delay; whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674. Based on the information before the Tribunal, the applicant has not demonstrated why she could not have met the Code deadline.

11The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and 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. While I am sympathetic to the applicant’s argument that proceeding first before HPARB minimized costs and duplication of processes, these factors are not generally considered adequate reasons for failing to file a timely Application. Under Rule 7 of the Tribunal’s Rules of Procedure, applicants have the opportunity to file an application and, at the same time, ask the Tribunal to defer consideration of the application if there are other legal proceedings dealing with the subject-matter of the application. This option was available to the applicant as a means of preserving her Code rights, while avoiding duplicative costs and processes.

12In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. As noted in other decisions, this is not to suggest that the applicant acted in “bad faith”, but rather that her explanation does not satisfy the good faith considerations developed by this Tribunal’s jurisprudence. See Mafinezam, supra.

13It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.

14The Application is dismissed.