Nancy Arcuri v. Cambridge Memorial Hospital and Susan Toth, 2010 HRTO 578

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Arcuri

Applicant

-and-

Cambridge Memorial Hospital and Susan Toth

Respondents

DECISION

Adjudicator: Sherry Liang

Date: March 17, 2010

Citation: 2010 HRTO 578

Indexed as: Arcuri v. Cambridge Memorial Hospital

1This is an Application filed December 17, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application alleges discrimination in employment on the ground of disability, although the applicant seems to also believe she has been discriminated against on the ground of a record of offences.

3On February 23, 2010, the Tribunal sent the applicant a Notice of Intent to Dismiss, advising her that the Application appeared to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination described in her Application. The applicant was directed to file submissions explaining how the delay was incurred in good faith and why she believes no substantial prejudice will result to any person affected by the delay. In response, the applicant sent a letter dated March 11, 2010.

4Having regard to the material before it, including the applicant’s letter of March 11, the Tribunal dismisses the Application for delay.

5The applicant alleges that she has been a volunteer with the Cambridge Memorial Hospital (the “Hospital”). She states that she was employed in the housekeeping department at the Hospital in 2001-2002. In 2008, she wished to resume volunteering at the Hospital and in the course of the recruitment process, agreed to a police check. Subsequently, the Hospital stopped returning her calls.

6She also sought paid employment at the Hospital. The applicant states that she continued to call both the manager of the volunteer department and the manager of human resources. She states that she continued to be aggressive in calling and attempting to make contact with Hospital personnel, and was never called for an interview.

7The applicant was told in written correspondence from the Hospital in April 2008 that it was not offering her a volunteer position. Counsel from the Hospital sent her letters in June 2008 asking her to refrain from further contact with staff at the Hospital, as they perceived her behaviour as harassing and threatening. She was advised that any further telephone calls from her would not be accepted or returned and further, that she was not to attend on Hospital premises for any reason other than her own legitimate health care needs.

DECISION

8Section 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.

9Under 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.

10An 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.

11In 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.

12The 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.

13Early in 2008, the applicant was turned down for a volunteer position. She was advised in April and June 2008 to stop contacting the Hospital staff. She believes that the Hospital’s refusal to accept her for a volunteer position, and for any paid position, relates to her mental health and to a record of offences. The applicant believes that the Hospital has wrongly labelled her as a dangerous person.

14The discrimination alleged by the applicant thus occurred early in 2008. The reason the applicant gives for filing her Application in December 2009, more than a year and half after the events, is that she was not aware of any rights she had. She states that she was not told about her rights until her psychiatrist mentioned to her upon one of her visits and after that she proceeded to take action. She also mentions that she was not aware of “this service,” which appears to refer to the Tribunal, until her doctor told her about it.

15By April and June of 2008, the applicant was aware of the actions that she now alleges to be discriminatory. She believed that she was being treated unfairly and wrongly labelled. She had a year to investigate whether she could bring a claim under the Code about those events. It is not reasonable for the applicant to take no action to inquire into her rights under the Code, and only begin the process of making an application because of a comment made by her doctor.

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 hereby dismissed.