Vaiakis v. Ontario (Health and Long-Term Care), 2010 HRTO 1866

Human Rights Tribunal of Ontario

B E T W E E N:

Janet Vaiakis Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care Respondent

DECISION

Adjudicator: Michelle Flaherty Date: September 13, 2010 Citation: 2010 HRTO 1866 Indexed as: Vaiakis v. Ontario (Health and Long-Term Care)

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination on the basis of disability, sex, and sexual orientation in the provision of goods, services or facilities.

2In essence, the applicant states that the respondent discriminated against her by failing to pay for sex reassignment surgery ("SRS") which she underwent in February of 2007. The applicant states that, as SRS was not an insured service in 2007, she was required to pay for the surgery out of her own pocket at that time. She states that, although SRS has since been included as an insured service, the respondent has refused to reimburse her for the surgery.

3In an earlier Interim Decision, 2010 HRTO 1617, the Tribunal held that the Application was filed more than one year after the last alleged incident of discrimination. The Tribunal gave the applicant an opportunity to make submissions regarding the reasons for the delay. The Tribunal advised that, if no submissions were received, the timeliness issue might be determined based on the materials already filed.

4The applicant has not filed any submissions explaining the delay in filing the Application and the time for doing so has elapsed. Accordingly, this Decision is based on the materials already filed.

TIMELINESS

5Section 34 of the Code states:

(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.

6Thus, 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.

7The initial onus is on the applicant to show that the delay in filing the Application was incurred in good faith. If she is able to establish good faith, the onus shifts to the respondent to show that it will suffer substantial prejudice as a result of the delay in filing the Application.

8In the materials filed with the Tribunal, the applicant has not made any submissions regarding the reasons for the delay or whether the delay was incurred in good faith.

9Accordingly, based on the materials filed with the Tribunal, there is no basis upon which I could conclude that the delay in filing the Application was incurred in good faith within the meaning of the Code.

10The Application is dismissed pursuant to section 34 of the Code.