Cashin v. Mount Sinai Hospital, 2010 HRTO 2530

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Cashin

Applicant

-and-

Mount Sinai Hospital, Department of Dentistry

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 23, 2010

Citation: 2010 HRTO 2530

Indexed as: Cashin v. Mount Sinai Hospital

1The applicant filed his Application on January 15, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”) alleging discrimination with respect to goods, services and facilities on the grounds of disability. This Interim Decision addresses the respondent’s request that the Application be dismissed for delay.

2The Application alleges that several dentists and administrative staff employed by the respondent provided discriminatory service to the applicant during the period December 2004 to September 2008.

3The respondent filed a Response on May 5, 2010 denying that it had discriminated against the applicant. On the same day the respondent filed a Request for an Order During Proceedings (“RFOP”) requesting that the Application be dismissed on the basis that it was not filed within the one-year time limit required under the Code and that the applicant had provided no compelling reason for the delay in the filing of his Application. The applicant filed a Reply to the Response but did not respond to respondent’s request to have his Application dismissed for delay. I do note that the applicant does refer in his Application to beginning to prepare his Application in September 2008 and encountering difficulties in finalizing this document.

4Both parties indicated a willingness to participate in mediation. Consequently, a mediation was scheduled for December 14, 2010. This mediation was not successful. As a consequence the Tribunal will now consider the respondent’s RFOP.

DECISION

5Section 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. Section 34 specifically states:

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.

6In order to satisfy the Tribunal that the delay was incurred in good faith an 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. 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 that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

7In the circumstances of this Application, I find it appropriate to convene a 2 hour conference call hearing to hear the parties’ submissions on the issue of:

Was the applicant’s delay in filing his Application incurred in good faith and without any substantial prejudice result to a person affected by the delay?

8If either party wishes to file any documentation, including facts, material or case law, they are required to deliver such documentation to the other party and file it with the Tribunal no later than 14 days prior to the date of the conference call hearing.

9The Tribunal’s cases are found on www.canlii.org.

10I am not seized of this matter.