McLennon v. Toronto (City), 2010 HRTO 722

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desmond McLennon

Applicant

-and-

City of Toronto, Municipal Licensing and Standards Division,

Bruce Robertson, Carol Ruddell-Foster, Scott Baker and Giovanna Priolo

Respondents

DECISION

Adjudicator: Faisal Bhabha

Date: March 31, 2010

Citation: 2010 HRTO 722

Indexed as: McLennon v. Toronto (City)

Appearances

Desmond McLennon, Applicant ) On his own behalf

City of Toronto, Municipal Licensing and )

Standards Division, Bruce Robertson, ) Antonella Ceddia, Counsel

Carol Ruddell-Foster, Scott Baker and )

Giovanna Priolo, Respondents )

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 February 24, 2009, alleging discrimination on the basis of race, disability and age in the areas of employment and in goods, services and facilities.

2The respondents filed a Request for Order During Proceedings (RFOP) seeking a dismissal of the Application on the basis of delay, bad faith and abuse of process, lack of a prima facie case, lack of jurisdiction, and incompleteness, incomprehensibility and incoherence.

3In an Interim Decision, 2009 HRTO 1089, dated July 21, 2009, the Tribunal directed that a one-hour oral hearing be convened to determine the issue of delay. On March 18, 2010, a hearing was held by way of teleconference.

THE APPLICATION

4The Application appears to raise two principal allegations of discrimination. The first relates to an alleged denial of a taxicab licence in 1983. It appears that at that time, the applicant was struck from the list of regular taxicab plate holders, was given an opportunity to make submissions but failed to attend the hearing. The applicant denies that he was given notice of the hearing. What is clear is that in and around 1997-1998, the applicant complained about the withdrawal of his licence and marshalled the support of a Member of Provincial Parliament and his physician. Subsequent to 1998, it is not clear that the applicant took any further steps to voice his grievances up to filing this Application.

5The Application also makes allegations of discriminatory treatment by a by-law enforcement officer, the personal respondent, Scott Baker. The applicant alleges that he was personally targeted by Mr. Baker during an incident in November 2006 resulting in three Municipal Licensing charges being laid against the applicant. The applicant pled not guilty and attended a court hearing on June 29, 2007, where he was found guilty on one count, paid a fine, and the two remaining charges were dismissed. No further allegations related to Mr. Baker are pled in the Application, though at the hearing the applicant for the first time alleged that Mr. Baker harassed him a few days after the court hearing, using a racial epithet.

Delay

6The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 34 of the Code provides as follows:

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.

7The Tribunal must first ascertain whether the last alleged incident of discrimination occurred more than a year prior to the applicant filing the Application. The inquiry under s.34 does not end upon the factual determination alone that no alleged incidents occurred within the previous year. Section 34(1) must be read in conjunction with s.34(2), which provides the Tribunal with the discretion to assess the good faith of the applicant and the prejudice to any affected person of waiving the time limit. Only after a complete consideration of section 34 as a whole, and its application to the facts at hand, can the Tribunal decide whether to dismiss for delay.

APPLICANT’S POSITION

8The applicant argues that the allegations in his Application constitute a series of discriminatory incidents within the meaning of section 34(1)(b), and that the effects of the discriminatory treatment continue to the present day because he continues to be denied the benefit of a regular taxicab licence. He further argues that when the original incident occurred, he was not fully aware of the human rights system and that it took time to learn about accessing the process.

DECISION

9It is clear on the facts that the applicant filed his Application outside of the one-year limitation period, even if I accept his argument that the alleged events constitute a series of incidents. The date of the last discriminatory incident pleaded in the Application is June 29, 2007. If I accept the additional allegation of the racial epithet allegedly made a few days later, the Application is still at least six months out of time.

10Having established that the Application was filed late, the applicant must satisfy the Tribunal that the delay was incurred in good faith. In order to succeed, the applicant must provide a reasonable explanation as to why he did not pursue his 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.

11In Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8, the Tribunal adopted the reasoning of the courts and stated 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. (quoting from Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.).

12The applicant has failed to provide a reasonable explanation for the delay. It is clear that for over 20 years he felt he had been treated unjustly and attempted to have his issues addressed through other means, yet failed to commence proceedings under the Code. The most recent allegation, an alleged epithet, arose for the first time in the hearing and no explanation was offered as to why the applicant waited more than a year and a half from that point to file the Application. In the circumstances, I am unable to find that the delay was incurred in good faith. The Application is dismissed.