S.M. v. Durham Regional Police Service, 2010 HRTO 2526

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.M.

Applicant

-and-

Durham Regional Police Service, Durham Catholic District School Board, Andy J. Fedak, Susan Duane, and Police Constable Foote

Respondents

DECISION

Adjudicator: Sherry Liang Date: December 22, 2010 Citation: 2010 HRTO 2526 Indexed as: S.M. v. Durham Regional Police Service

WRITTEN SUBMISSIONS

S.M., Applicant ) Moya Teklu, Counsel Durham Regional Police Service ) Sheila Schweizer, Counsel and Police Constable Foote, Respondents ) Durham Catholic District School Board, ) Dolores Barbini, Counsel Andy J. Fedak and Susan Duane, ) Respondents )

1This is an Application filed on August 10, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2As the applicant was under the age of 18 at the time of the events underlying the Application and records about her may be subject to the Youth Criminal Justice Act, S.C. 2002, c.1 (“YCJA”), the Tribunal will use initials to identify her in its decisions and correspondence. See S.K. v. Toronto Anti-Violence Intervention Strategy, 2010 HRTO 1270.

3The Application arises out of events that occurred on April 10, 2008. In their Responses, the respondents request early dismissal of the Application on the basis that the subject-matter of the Application is the same or substantially the same as the subject-matter of a complaint that was previously filed with the Ontario Human Rights Commission [s.53(8)], and on the basis that it has been filed beyond the time limit for making such an Application under the Code [s.34].

4The applicant filed submissions in response to the request to dismiss. She has also filed a request to consolidate the mediation and hearing of her Application with those of another applicant, on the basis that they concern the same events. Because of my determinations below, it is unnecessary to consider the request to consolidate.

5For the reasons that follow, I find that this Application is not barred by section 53(8) of the Code. However, it has been filed beyond the statutory time limit, and I am not satisfied that the delay was incurred in good faith.

PRIOR COMMISSION COMPLAINT

6Section 53(8) of the Code states:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

7The answer to the respondents’ request to dismiss under section 53(8) lies in the Tribunal’s decision in 2010 HRTO 636. In that decision, the Tribunal found that this same applicant could not make a transition application under section 53(5), based on a complaint filed with the Ontario Human Rights Commission (the “Commission”), because no complaint had ever been “filed”. The Tribunal therefore dismissed the Transition Application made under section 53(5) of the Code. As no complaint had been filed with the Commission, the applicant could not file a transition application in order to continue a complaint begun before the Commission.

8There is no doubt that the applicant completed a complaint form and submitted it to the Commission. However, as described in other decisions of this Tribunal, under the practices and processes of the Commission, the mere acceptance of a complaint form and assignment of a file number does not mean that it has been “filed”. See Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160.

9Given the conclusion of the Tribunal in respect of the Transition Application that the applicant did not “file” a complaint with the Commission, I see no basis to apply section 53(8) to bar this Application.

DELAY

10Section 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.

11Under 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.

12As stated in Miller v. Prudential Lifestyles 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.

13In Miller, the Tribunal also stated that:

[i]n dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Where an applicant fails to establish that the delay was incurred in good faith, it is unnecessary to consider whether any substantial prejudice will result.

14In this case, the applicant submits that she has a good faith explanation for her delay in filing the Application, and that she has taken reasonable steps to ensure that her rights under the Code were being pursued. She states that she retained her current legal representative, the African Canadian Legal Clinic (the “Clinic”), shortly after the events of April 2008 and it submitted a complaint to the Commission on her behalf. She submits that she reasonably expected, as the Clinic was named as her alternate contact on the Human Rights Complaint Form, that correspondence from the Commission would be directed to the Clinic.

15The applicant submits that, despite the fact that she was represented by the Clinic, the Commission communicated directly with her by phone and by letter. The Commission advised her to withdraw her complaint and file an application directly with the Tribunal under section 34 of the Code.

16Part of the Commission’s letter, dated July 31, 2008, was set out in the Tribunal’s decision on the Transition Application:

This letter is further to our recent telephone conversation. As discussed, on June 30, 2008, changes were made to Ontario’s human rights system when the Human Rights Code Amendment Act, 2006 took effect. As a result, the Ontario Human Rights Commission (the “Commission”) is no longer accepting complaints of discrimination.

We have indicated to you that it is unlikely the Commission will be able to deal with your complaint, and have therefore advised you to file an application directly with the Human Rights Tribunal of Ontario (the “Tribunal”). You have accordingly decided to do so. The file you initiated with the Ontario Human Rights Commission has been closed as requested. Please note that effective June 30, 2008, there will be a one-year time limit (from the date of your last incident of discrimination) to file an application with the Tribunal. [emphasis in original]

17The applicant states that her counsel was not contacted and does not appear to have been copied on the correspondence. She states that counsel therefore operated under the reasonable belief that the complaint was continued with the Commission and thus, on June 30, 2009, filed a transition application with the Tribunal under section 53(5) of the Code, consistent with the time lines for filing such an application.

18The applicant states that the first time her counsel became aware of the Commission’s correspondence with the applicant was in December 2009, when the Commission responded to the Tribunal’s request for information about the complaint. In the Transition Application, the applicant was given until January 11, 2010 to respond to this information, and did not make submissions.

19In the applicant’s submission, these facts establish that there was no delay between April 2008 and January 11, 2010. Further, she states that the reason for the delay from January 11, 2010 to August 12, 2010, when this Application was made, was that her counsel failed to observe important deadlines. She states that this counsel is no longer employed with the Clinic.

20In sum, the applicant submits that the part of the delay was caused by an oversight on the part of the Commission in corresponding with her instead of her counsel and part of it was caused by an error on the part of her legal representatives. She submits that these reasons amount to circumstances that justify an exercise of the Tribunal’s discretion to allow the Application to proceed outside of the statutory time limit.

DECISION

21It is unnecessary for me to consider whether the alleged errors on the part of her legal representative between January 11, 2010 and August 12, 2010, would amount to good faith within the meaning of section 34. I find that, taken as a whole, the applicant has failed to discharge the onus of establishing that the two year and five month delay in filing this Application was incurred in good faith.

22The Human Rights Commission’s Complaint Form requests the applicant’s contact information. It also provides a space for an “alternate contact”. The Form also clearly states that the alternate contact is a “person who will know where to contact you in the event the Commission cannot locate you during the proceedings of your complaint.” It does not state that where an applicant provides an alternative contact, the Commission will only communicate with the alternate contact. The applicant has also indicated on the Form that she, or her next friend, (her father) may be contacted at work.

23The applicant’s submissions do not dispute that the Commission contacted her (or her father), and that she received the letter of July 31, 2008. I note that with her Application, the applicant attached an affidavit (dated January 18, 2010) from her father which suggests that he does not recall receiving a letter or having a discussion. It appears that this affidavit was prepared in support of the Transition Application but it was dated beyond the deadline for filing submissions on that Application and does not appear to ever have been submitted to the Tribunal. The conclusions of the Tribunal on the applicant’s Transition Application were thus based on the Commission’s information, which clearly indicated that this letter was sent to the applicant. The applicant’s submissions of November 30, 2010 do not rely on that earlier affidavit, but accept that the Commission contacted the applicant or her father by phone and letter.

24That affidavit also states that applicant’s counsel advised her in or about December 2008 that she could make a transition application under the Code. That Transition Application was filed on June 30, 2009, as indicated above.

25In my view, the circumstances described above do not reflect exercise of due diligence in pursuing a human rights complaint. Whether or not counsel had an expectation, based on any reason, of being contacted by the Commission in relation to the complaint, the fact is that the Commission did what the Complaint Form suggests it will do, and contacted the applicant. There is no explanation for why the applicant did not make counsel aware of the letter of July 2008, either then or in December 2008, particularly if, as asserted, counsel was under the mistaken impression in December that the complaint had been filed and continued with the Commission. There is no explanation for why neither counsel nor the applicant made any inquiries of the Commission before waiting until June 30, 2009 to file the Transition Application, or sought clarification about the timelines referred to in the Commission’s letter of July 2008 when discussing the matter in December 2008.

26In the circumstances, it was not reasonable for the applicant and her counsel to assume that they could wait until more than a year after the events to file an application to the Tribunal.

27In her submissions, the applicant has referred to the circumstances of another applicant before the Tribunal, whose transition applications have been accepted by the Tribunal and are proceeding to mediation. She suggests that it was reasonable for her and her counsel to assume that the same processes and timelines applied to her. I do not find those other circumstances helpful to my determinations in this matter. There is no suggestion that the Commission dealt with the two applicants’ complaints together, or led the applicants or their counsel to believe so. There is no suggestion that there were any similar communications between the Commission and the other applicant or her counsel about withdrawing her complaints and filing an application with the Tribunal. Most importantly, the applicant has not asserted that the applicant in the other matters received correspondence from the Commission to the same effect as the letter of July 31, 2008.

28In these circumstances, it was not reasonable for the applicant to assume that despite the correspondence she received from the Commission, her complaint was proceeding in the same manner as that of the other applicant. I cannot conclude that the fact that another applicant’s complaints were accepted by the Commission as filed and are now proceeding under section 53(5) provides an explanation for the undue delay in filing this Application.

29In sum, the circumstances before me may demonstrate lack of communication or the presence of miscommunication, but they do not establish that the applicant has pursued her rights with diligence amounting to a reasonable explanation for the delay.

30The Application is therefore dismissed.