Simon v. Peel Regional Police Services, 2010 HRTO 433

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Duane Simon

Applicant

-and-

Peel Regional Police Services, Len Favreau and S. Mendyk

Respondents

DECISION

Adjudicator: Sherry Liang

Date: February 25, 2010

Citation: 2010 HRTO 433

Indexed as: Simon v. Peel Regional Police Services

1This is an Application filed on December 15, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination in the provision of policing services, on the grounds of race, colour, ancestry, place of origin, ethnic origin, as well as reprisal.

2The Application states that the date of the last event is May 5, 2008. Because the Application was filed more than a year after the last event, the Tribunal issued a Notice of Intent to Dismiss, requiring the applicant to provide submissions on whether the Application could proceed, given the delay in filing it. The applicant provided written submissions.

3The Application refers to events in May 2004, when the applicant was charged with two counts of assault, charges that were later withdrawn. The applicant states that in March 2005 he filed a formal complaint with the respondent Peel Regional Police Services against the officers involved in the investigation. He states that he believed that race was a factor in the investigation.

4The applicant also states that in May 2005, he began to suspect that his name was being flagged by the Peel Police. He brought this to the attention of the Peel Police in May 2006 and states that he also suspected at the time that race played a role.

5The applicant has pursued several other avenues to raise his concerns about his treatment by the respondents, including a civil action commenced in 2006, complaints under the Police Services Act, and requests for information and a privacy complaint to the Freedom of Information and Privacy Commissioner of Ontario.

6The applicant states that he believes he has been racially profiled by the respondents and reprised against for pursing his remedies against them.

7It appears that the last event dated May 5, 2008 is a decision of the Peel Police Public Complaints Bureau not to investigate the applicant’s allegations about being flagged. It is not apparent whether the Application contends that this decision was discriminatory, or if the alleged discriminatory conduct consists of the investigation in 2004 and the subsequent alleged flagging of the applicant in or around 2005. The Application also refers to an incident in March 2007, in relation to a complaint made by the applicant about the conduct of his ex-wife. I will assume for the purposes of this decision that the delay in filing the Application is at the least 19 months (from May 2008 to December 2009), and possibly longer.

8In explaining the delay in filing the Application, the applicant refers to his complaint to the Chief of Police for the Peel Police, the investigation by the Peel Police public complaints bureau and review by the Ontario Civilian Commission on Police Services. He also refers to his complaint to the Information and Privacy Commissioner of Ontario (the IPC). The applicant states that he had waited for other agencies to conduct an investigation into the matter. He submits that he learned through the IPC in February 2009 that this matter “would be better dealt with by the Human Rights Tribunal” and that it was not until he received his advice that he became aware that he should be filing this Application. He states that he had waited for other agencies to conduct their respective investigations, thinking that the matter would be appropriately dealt with and that he understood that he needed to follow the process available to him before filing this Application.

DECISION

9Section 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.

10Under 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.

11An 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.

12In 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.

13The 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. Further, 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.

14In the circumstances of this Application, the applicant had reason to believe as long ago as 2004 that he was being treated unequally by the Peel Police because of his race. He has not hesitated to take legal action in relation to his complaints about police misconduct or unfair treatment. If he believed that his arrest in 2004 was motivated by racial discrimination, or that his alleged flagging by the Peel Police was similarly motivated, or was a reprisal for his attempts to enforce his rights against the Peel Police, he could have made inquiries about the availability of a complaint under the Code. The fact that he was advised by the IPC in 2009 that he should be bringing his matter to the Tribunal does not provide a justification for his years of inaction in investigating his rights under the Code.

15There 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 assume that they may unilaterally decide to delay bringing an application while they pursue other remedies, without regard for the statutory time line in the Code.

16In the circumstances, I am not convinced that the applicant has provided a reasonable explanation for the delay in filing the Application. I find that the delay was not incurred in good faith and it is therefore plain and obvious that it does not fall within the Tribunal’s jurisdiction. It is not necessary to address the question of prejudice.

17The Application is dismissed.