Mathurin v. Boneschansker, 2010 HRTO 1632

Human Rights Tribunal of Ontario

B E T W E E N:

Marie Mathurin

Applicant

-and-

Grace Boneschansker

Respondent

DECISION

Adjudicator: Sherry Liang

Date: August 4, 2010

Citation: 2010 HRTO 1632

Indexed as: Mathurin v. Boneschansker

1This is an Application filed on January 26, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The applicant alleges that the respondent, a court reporter, discriminated against her on the grounds of place of origin, disability, ethnic origin and race in preparing an inaccurate transcript of a court proceeding.

3The Application states that the date of the last incident of discrimination is December 11, 2007 and June 30, 2008. The Tribunal sent the applicant a Notice of Intent to Dismiss, stating that it appeared that the Application is outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination. The applicant was requested to make submissions on the issue of her delay in filing the Application. The applicant responded by letter dated July 12, 2010.

4From the material in the Application, it appears that the applicant was in court on December 11, 2007, represented by legal counsel. The transcript the applicant has provided with her Application shows that she pleaded guilty to two charges under the Criminal Code of Canada. At the conclusion of the proceedings, the judge ruled orally that she be given a suspended sentence with 18 months probation and certain conditions.

5It appears that following her court appearance, the applicant took action against her lawyer, by filing a complaint against him with the Law Society of Upper Canada (“LSUC”) as well as an application against him with the Tribunal. She has also attempted unsuccessfully to obtain funding from Legal Aid Ontario (“LAO”) to challenge her convictions. As part of these efforts, she obtained a transcript of the proceedings of December 11, 2007 from the court reporter. She received this transcript on June 30, 2008.

6From the material before me, it is apparent that the applicant was concerned about the contents of the transcript as soon as she received it. In a letter to the LSUC on the day she received it, she describes elements of the transcript that she believes are not accurate. She states that “this transcript has been cook.” It appears that the applicant subsequently requested a review of the transcript by the manager of court reporters and transcription at Old City Hall, who advised her that on his review of the tape of the proceedings, his opinion was that the transcript was accurate.

7In her submissions in response to the Tribunal’s Notice, the applicant states that she “was never able to take a good look” at the transcript until she was compelled to do it in order to prepare for oral submissions in her Tribunal application against her former counsel in January 2010.

8In other correspondence, the applicant states that she did not bring her Application against this respondent for some time “just in case she was a relative to the Honourable Judge.” She also states that the LSUC relied on a statement by the court reporter sometime before February 2009 attesting to the accuracy of the transcript.

9The applicant also states that a reason for the delay in filing her Application was that she has been attempting to obtain funding through LAO to enable her to appeal her conviction, and obtain the tape and video of her December 2007 court appearance. She also refers to waiting for a decision from the LSUC Review Commissioner. It appears she received a final decision from both LAO and the LSUC in December 2009.

10The applicant also refers to having seen another copy of the “doctored” transcript, dated October 14, 2009, and apparently obtained by her former counsel as part of his response to her application against him before the Tribunal. The applicant submits that the last “discriminatory offense” by the respondent was therefore October 14, 2009.

11Section 34 of the Code allows 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.

12Under 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.

13As 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.

14In 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

15An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. This includes a decision to dismiss for delay: Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

16The 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.

17The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” to which the Application relates. In this case, I find that the “incident” to which the Application relates is the preparation of the transcript obtained by the applicant on June 30, 2008. This is the action which is alleged to be discriminatory. The subsequent preparation of another copy of the same transcript in October 14, 2009 does not give rise to a further incident or act of discrimination: see Visic v. Ontario (Human Rights Commission) 2008 CanLII 20993 (ON S.C.D.C.).

18The applicant states that she knew right away when she looked at the transcript in June 2008 that it was “doctored” or “cooked”. She made her views known immediately to the LSUC. The fact that the court reporter re-confirmed the accuracy of her transcript during the LSUC investigation, and then produced another copy of the same transcript in October 14, 2009, does not give rise to separate incidents of discrimination.

19As the date of the last incident of discrimination was therefore more than year before the Application was filed, the onus is on the applicant to establish that the delay was incurred in good faith. I find that the applicant has not provided a reasonable explanation for why she did not file this Application within the timeline mandated by the Code. There is no necessity to exhaust other avenues before making an Application to the Tribunal. Although it may be reasonable in some circumstances for an applicant to wish to pursue other avenues before resorting to an application under the Code, it is not reasonable for an applicant to delay making inquiries about the availability of a remedy under the Code or the existence of time lines to file an application under the Code, while awaiting the outcome of other processes.

20The other processes undertaken by the applicant were in any event not against this respondent, and if the applicant believed that the actions of this respondent were discriminatory, there was no reason for the applicant to delay filing this Application while those other matters were ongoing.

21The other factors cited by the applicant do not provide a reasonable explanation for the delay in filing the Application.

22In the result, it is plain and obvious the Application is outside the Tribunal’s jurisdiction and cannot proceed and it is dismissed.