HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Simmons
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Transportation, Michael Ostro and Sylvia Fahim
Respondents
InTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Simmons v. Ontario (Transportation)
APPEARANCES BY
John Simmons, Applicant ) Self-represented
Trillium Health Centre, Respondent )
) Ayanna Ferdinand, Counsel
Ministry of Transportation, Respondent )
) Scott Hattie, Counsel
Michael Ostro and Sylvia Fahim, )
Respondents ) Alexi Wood, Counsel
INTRODUCTION
1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on January 26, 2009, alleging discrimination in employment on the ground of disability. On March 23, 2009, the applicant also filed a Form 1-C, which refers to allegations of discrimination in the area of goods, services and facilities.
2The respondent Trillium Health Centre (“Trillium”) filed a Request for Order During Proceedings (“Request”), requesting that the Tribunal dismiss the Application against it on the basis that it fails to establish a prima facie case of discrimination under the Code. That Request was dismissed by an Interim Decision, 2009 HRTO 1469, but a teleconference was set up to receive submissions concerning Trillium’s alternative argument that the Application against it should be dismissed on the basis of delay. These are my reasons in respect of that Request.
POSITION OF THE APPLICANT
3The applicant acknowledged that his Application against Trillium arose out of a hospital admission in late June 2007. The emergency room physician prepared a report pursuant to s.203 of the Highway Traffic Act, R.S.O. 1990 c. H.8 which was provided to the Deputy Registrar of Motor Vehicles for Ontario (the “Deputy Registrar”) on June 29, 2007. All parties agree that the applicant’s driver’s license was suspended pursuant to the report.
4The Application was filed some eighteen months after the date the report was filed. Thus the Application was made some six months past the time set out in the Code.
5The applicant said that, when he arrived home from the hospital, he got a letter from the Ministry of Transportation confirming that his license was suspended. That letter gave instructions for getting a license renewed. It said, in part
We will be pleased to reconsider your case upon receipt of medical information satisfactory to the Registrar. Therefore you must arrange for this office to receive an up-to-date detailed neurologist’s assessment regarding your reported stroke, confirmation that all risk factors have been addressed and details of residual deficits (i.e. physical, cognitive, perceptual, visual).
6The applicant‘s primary argument was that his situation in regard to Trillium should be considered a series of incidents for the purpose of s. 34(2). In his reply he explains that after his release from the hospital “a note should have been written [by a doctor at Trillium] to give me back my license…This sounds to me like a continuation of the hospital and its representatives not doing their jobs…a continuation of their originally not doing their jobs…”. In his view, his discharge from emergency care should be considered an acknowledgement by the hospital that he was completely recovered. Therefore, his recovery obligated the hospital to take the action needed to get his license suspension lifted. He submitted that, by not taking this action, the hospital “waived” the one-year limitation period imposed by s. 34.
7The applicant confirmed that his license remained suspended, and that he did not contact Trillium after he was discharged from the hospital to ask if a doctor would be writing to the Ministry of Transportation. His position is that Trillium knew his license was suspended and should have taken action without him getting in touch with them. He also failed to make enquiries of the Ministry of Transportation to verify what he might need to do to get his suspension lifted.
8I enquired about the applicant's personal circumstances and state of health during the relevant period. The applicant stated that he was able to get back to his regular activities, and that “a couple of doctors had checked him out and said he was fine”. He felt that he was ready to resume his ordinary work, including construction and factory work, but was unable to find work that did not require a driver's license. The applicant appeared to have no difficulty expressing himself or dealing with questions or argument.
9The applicant also indicated that the one-year limitation period should not operate against his Application because he was unaware that the limitation period existed.
DECISION
10The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 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 incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed:
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.
11As noted above, pursuant to s. 34 of the Code, where an application is filed more than a year after the incident to which the Application relates (or after the last incident in a series of incidents), the Tribunal cannot deal with the Application unless it is satisfied that the delay in filing the Application was incurred in good faith.
12In this case, because the applicant had no further dealings with Trillium after his discharge, I cannot conclude that there was a series of incidents that continued beyond the applicant's dealings with Trillium in June 2007.
13I must therefore consider whether the applicant’s delay “was incurred in good faith and no substantial prejudice will result to any person affected by the delay”.
14In Lafleur v. Kimberley Scott, 2009 HRTO 1141, at paragraph 8, the Tribunal reviewed decisions of Ontario courts interpreting the phrase “delay that has been incurred in good faith”:
To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) 2002 CanLII 44920 (ON CA), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).
15In another decision, the Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights: see Stewart v. Mitten Vinyl, 2010 HRTO 1628.
16In 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.
17The term “reasonable” has both objective and subjective elements, both of which must be considered within the context of the Code. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, (“Miller”) briefly discusses both. In regard to the objective element, the Tribunal stated:
The mandatory one-year limitation period 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 may seek to pursue a human rights claim.
18The Tribunal in Miller also briefly alluded to the subjective element of “reasonable” noting that, while
the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay…there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). (at para. 25)
19In some cases, an applicant has established that a personal characteristic included as a ground of discrimination under the Code is closely connected to his failure to file his Application on time; see for example Lutz v. Toronto (City), 2010 HRTO 769, and Kelly v. CultureLink Settlement Services, 2010 HRTO 977.
20In this case, the applicant has indicated no disability or other Code-related circumstances that might interfere with his ability to pursue his rights under the Code in a timely manner.
21The applicant’s license has been suspended since July of 2007. He indicates that this was a considerable disadvantage to him, so I conclude that he had reason to make inquiries about his rights: see Stewart v. Mitten Vinyl, above.
22Despite his concern about his license, the applicant did not contact Trillium after he was discharged from the hospital to ask if a doctor would be writing to the Ministry of Transportation. He admits receiving a letter from the Ministry of Transportation, in July of 2007, that indicates that it was his responsibility to “arrange for this office to receive an up-to-date detailed neurologist’s assessment”. He does not claim that Trillium told him that a doctor from Trillium would take steps to reverse the suspension of his license. He seemed simply to have assumed that Trillium would do so because he thought it was right that they do so. He made no enquiries of Trillium to ascertain whether his assumption that this would happen was correct. He also failed to make enquiries of the Ministry of Transportation to verify what he might need to do to get his suspension lifted.
23In the circumstances, I cannot conclude that the applicant’s delay of eighteen months in making a claim of discrimination against Trillium Health Centre meets the test of good faith. The Application against Trillium Health Centre is dismissed. Trillium Health Centre will be removed as a respondent to the Application, and the style of cause is amended accordingly.
CASE MANAGEMENT DIRECTION
24There were four respondents in this matter, and there are now three. That part of the Application that makes allegations against the personal respondents concerns different facts, and has been made within the time period set out in the Code. However, during the course of the teleconference, the Ministry raised a timeliness issue in respect of the allegations against it. The allegations against the Ministry are that it breached the Code in suspending the applicant's license, which occurred in July of 2007. During the course of the teleconference, the applicant confirmed that he had had no further dealings with the Ministry since the date his license was suspended. It therefore appears that his Application as against the Ministry is also filed outside the one year limitation period.
25The applicant may take the position that his Application against the Ministry was filed within the time required by the Code. If not, he may take the position that the delay in filing was incurred in good faith and that no substantial prejudice will result if the Application as against the Ministry is permitted to proceed. If he wishes to make submissions on these points, he must provide these submissions in writing to the Tribunal, copied to the other parties, by no later than September 30, 2010.
26If the applicant does not make submissions by September 30, 2010 the Tribunal will decide the issue of delay based on the materials in the file, or may dismiss the Application as against the Ministry as abandoned.
27If the Tribunal determines that it requires a response from the Ministry on the issue of delay, it will issue further directions.
Dated at Toronto, this 15th day of September, 2010.
“signed by”
Judith Keene
Vice-chair