Christianson v. University of Windsor, 2010 HRTO 1607

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Christianson

Applicant

-and-

University of Windsor

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: July 27, 2010

Citation: 2010 HRTO 1607

Indexed as: Christianson v. University of Windsor

APPEARANCES

Michael Christianson, Applicant ) On his own behalf ) ) University of Windsor, Respondent ) David Amyot, Counsel

1The applicant filed an Application with the Tribunal on November 28, 2008 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he was discriminated against on the basis of disability in relation to the provision of goods, services and facilities. More specifically, he states that the respondent investigated him, caused him to be detained in hospital and discriminated against him on the basis of disability when it failed to provide him with the names of alleged informants or complainants.

2In its Response, the respondent asked that the Application be dismissed because another proceeding has in whole or in part appropriately dealt with the substance of the Application. The respondents also state that the applicant has not properly alleged that he was discriminated against in the provision of services and that, in any event, the allegations relate to incidents which occurred well outside the one year period for filing applications under the Code.

3Pursuant to an Interim Decision, 2009 HRTO 806, the Tribunal scheduled a telephone hearing to address the following preliminary issues:

a. pursuant to s. 34(1), was the Application filed within one year after the incidents to which the Application relates?

b. if not, should the Tribunal exercise its discretion to accept the Application under s. 34(2) because the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay?

c. pursuant to s. 45.1, has another proceeding appropriately dealt with the substance of the Application?

d. does the Application relate to an area of discrimination (for example, a service, good or facility) under s. 1 of the Code?

4At a telephone hearing on July 21, 2010, the Tribunal heard submissions from the applicant and counsel for the respondent on the above issues.

5For the reasons that follow, I find that the Application must be dismissed pursuant to section 34 of the Code. The Application was filed outside the limitation period contained in the Code and the applicant has not established that the delay in filing his Application was incurred in good faith as required by section 34(2).

THE ALLEGATIONS

6While the Application refers to many alleged wrongs, I understand the essence of the complaint against the respondent to be twofold:

a. the respondent discriminated against the applicant on the basis of his disability in 1991 when it conducted an investigation of the applicant, caused him to be detained in hospital and failed to accommodate his disability; and

b. the respondent discriminated against the applicant by failing to provide the applicant with information relating to the alleged investigation, specifically the name of an alleged informant.

THE FACTS

7At the oral hearing, the applicant acknowledged that the first issue fell outside the Tribunal’s limitation period and he did not seek to explain the delay in filing in regards to that issue. Rather, he stated that his Application was principally concerned with the second issue, the respondent’s failure to disclose complete investigation records.

8The applicant filed a request for information pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended (“FIPPA”) seeking, among other things, access to campus police occurrence reports regarding an incident involving the applicant in 1991.

9Before the Tribunal, he argues that the respondent’s failure to provide complete copies of those occurrence reports constitutes discrimination on the basis of disability. The applicant states that the name and coordinates of the individual who launched a complaint against him in 1991 were redacted from the reports provided to him. He argues that the respondent wrongfully assumed, based on his disability, that he was a public risk and that it refused to provide the personal information of a third party to him on that basis.

10The respondent stated that it was merely complying with the statute and that, in any event, its decision to provide redacted versions of the reports was confirmed by order of the Information and Privacy Commission.

11In response to questioning by the Tribunal, the applicant indicated that his allegations of discrimination relate to the failure to provide complete copies of three occurrence reports, numbered 7395-91, 7423-91, and 7403-91.

12A redacted version of report 7423-91 was provided to the applicant and attached to a letter to him dated June 8, 2007. Redacted versions of reports 7395-91 and 7403-91 were provided to the applicant attached to a letter dated October 25, 2007. The redactions to the documents provided on June 8, 2007 and October 25, 2007 included the removal of the complainant’s name and coordinates.

13The Application was filed on November 28, 2008. The respondent argued that the Application is not timely because it was filed over a year after the applicant received copies of the redacted reports.

14The applicant relies on a letter from the respondent dated June 9, 2008. He states that the limitation period runs as of that date. That letter states:

The University has reviewed the records disclosed to you under its decision letter dated October 25, 2007. The following is the University’s revised decision letter in this matter. I have enclosed another copy of page #1 of report #7395-91 which now discloses information which hasn’t been previously disclosed.

Please note that it is the University’s position that the redacted portions of this new page 1 still contain the personal information of others, which must not be disclosed under s. 21 of FIPPA.

DECISION

15Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within one year’s time of the alleged incident or the last incident in a series. It also gives the Tribunal discretion to accept late applications in certain circumstances. Section 34 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.

16Accordingly, the 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.

17As I indicated earlier, the applicant acknowledges that the allegations summarized in paragraph 6(a) of this Decision relate to incidents well outside the one year limitation. He did not argue that the delay in filing the Application regarding those allegations is in good faith within the meaning of the Tribunal’s jurisprudence.

18In regards to the allegations summarized in paragraph 6(b), I reject the argument that the Application was filed within one year of the date of the last alleged incident of discrimination.

19In my view, the June 9, 2008 letter is not material to the allegations in the Application. It contains no material change to the position the respondent took in October of 2007, by which time the applicant had received copies of all of the reports with the name and coordinates of the complainant redacted.

20The applicant explained that the Application is about the respondent’s failure to disclose the complainant's name and coordinates. I find these alleged incidents of discrimination occurred when the respondent provided the applicant with a copy of the redacted reports on June 8, 2007 and on October 25, 2007. The last alleged incident of discrimination occurred on October 25, 2007.

21There is a further exchange between the respondent and the applicant on October 30, 2007. The letter from the respondent of that date confirms that the applicant attended at the respondent's place of business to exchange the copy he had received of page one of report 7423-91 for a redacted version of that page. Before the Tribunal, the applicant did not dispute this redaction or allege that it constituted discrimination.

22While the revision to the respondent’s position, expressed in the June 9, 2008 letter, does result in additional information being provided to the applicant, there is no basis to conclude that this additional information (or the previous withholding of it) is an alleged incident of discrimination for the purposes of section 34 of the Code.

23Accordingly, I find that the Application was filed approximately one month outside the limitation period, which began to run on October 25, 2007. I turn now to whether the delay in filing the Application was incurred in good faith.

24Although the delay in this case is relatively short, the applicant must nevertheless establish that it was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and to determine the Application. In other words, the Tribunal has no power to condone delay where it is not satisfied that it was incurred in good faith.

25In 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 did not pursue his rights under the Code in a timely manner. See Cartier v. Northeast Mental Health Centre, 2008 HRTO 1670.

26At the hearing, when the applicant was asked to explain his delay in filing the Application, he stated that he did not receive the letters from the respondent on the date that they were sent. The applicant explained that there was a lag between when letters were sent and when he received them.

27I accept that the applicant received the respondent’s October 25, 2007 letter sometime after the date it was sent. I note that the letter was sent from one Windsor address to the applicant, who also resided in Windsor. Absent evidence or specific argument to the contrary, I am not prepared to conclude that the entire approximately one month delay can be attributed to the lag between the sending and the receipt of the letter.

28Accordingly, I cannot conclude that the applicant has established that the delay in filing his Application was incurred in good faith as required by section 34(2) of the Code.

29Where the applicant fails to demonstrate that the delay was incurred in good faith it is not necessary for me to determine whether anyone has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-contact Hockey League, 2009 HRTO 579.

30For these reasons, the Application is dismissed pursuant to section 34 of the Code.

31In light of this conclusion, it is not necessary for me to consider whether the substance of the Application was dealt with in another proceeding or whether the Application engages a service under section 1 of the Code.