Laurent Mufata v. Ottawa Police Services Board and Andrea Lensen, 2010 HRTO 814

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurent Mufata

Applicant

-and-

Ottawa Police Services Board and Andrea Lensen

Respondents

Decision

Adjudicator: Caroline Rowan

Date: April 13, 2010

Citation: 2010 HRTO 814

Indexed as: Mufata v. Ottawa Police Services Board

APPEARANCES

Laurent Mufata, Applicant ) Désiré Ndomba, Representative

Ottawa Police Services Board and ) David Patacairk, Counsel

Andrea Lensen, Respondents )

1This is an Application filed pursuant to section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 10, 2009 by the applicant, Laurent Mufata. The underlying human rights complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 17, 2007.

2In his Application, the applicant alleges that the respondents, Ottawa Police Services Board (the “Police”) and Andrea Lensen (now Girimonte), a police officer, discriminated against him in the provision of goods and services on the grounds of race and colour contrary to section 1 of the Code. The applicant’s complaint against the respondents arises out of an incident which occurred on January 4, 2006 at the Rideau Centre in Ottawa.

3On or about January 17, 2007, the applicant filed two human rights complaints with the Commission in connection with this incident: one complaint against the Rideau Centre and two of its security guards and the complaint which is the subject of this proceeding against the Police and Ms. Girimonte. The applicant’s complaint against the Rideau Centre and the two security guards was never referred to the Tribunal, since it was resolved by the parties at a mediation session held by the Commission.

4In its response to the present Application, the respondents request that the Application be dismissed summarily because of the applicant’s delay in filing the underlying human rights complaint with the Commission.

5A hearing was scheduled in this matter on March 12, 2010, to address this preliminary issue. The applicant’s representative subsequently filed a letter dated March 15, 2010, in which he purports to record the submissions made at the hearing given that the hearing was not recorded. Counsel for the respondents then wrote to the Tribunal on March 19, 2010, formally objecting to what he refers to as the applicant’s attempt to create a transcript of the proceedings and submits that the Tribunal should not consider that correspondence.

6In reaching my determination of the preliminary issue, I do not find it appropriate to consider the applicant’s representative’s correspondence dated March 15, 2010 in view of the respondents’ objection to the letter and the fact that the submissions set out in the letter do not simply record the representations made at the hearing. As noted below, they also add some new facts and arguments to which the respondents have no opportunity to respond. It is simply too late to raise these additional facts and arguments after the hearing has ended absent the consent of the other parties.

7By way of background to the preliminary issue, the Tribunal notes that on January 4, 2006, the applicant was at the Rideau Centre when he was stopped by the Centre’s security guards allegedly for trespassing. Following an altercation between them, the police were called. Ms. Girimonte attended and then criminally charged the applicant with a number of criminal offences, including assaulting one of the guards, uttering death threats, causing a disturbance and trespass to property. The applicant spent two days in jail before being released on bail on January 6, 2006, on certain conditions.

8The criminal charges against the applicant were scheduled to be heard at a trial set for December 22, 2006. However, on or about December 6, 2006, the Crown withdrew the charges against the applicant and the trial was cancelled. Thereafter, the applicant contacted the Commission and filed the two human rights complaints referred to above. As noted, both of these complaints were filed on January 17, 2007, approximately two weeks after the one-year time limit set out under section 34 of the Code had elapsed.

9The applicant explained in his complaint and at the hearing in this matter that the reason he did not file the present complaint earlier was because his bail conditions required him to abstain from direct or indirect communication or association with the two security guards who had been involved in the incident at the Rideau Centre. According to the applicant, he would have violated this condition if he had filed either of his human rights complaints before the resolution of the criminal charges. In this regard, the applicant explained that, even though neither guard is a respondent to the present proceeding, they would necessarily be implicated as witnesses in the present proceeding against the Police and against the arresting officer. According to the applicant, both would therefore have to be present at a hearing into the complaint.

10The applicant also noted his understanding that initiating the human rights process would have an impact on the criminal one and that the two could not proceed concurrently. The applicant referred to the fact that he had never previously been arrested and that he was under the impression that a criminal proceeding took precedence over a civil one. According to the applicant, he decided for all of these reasons to wait until the criminal proceeding was completed before commencing either of his human rights complaints in connection with the incident on January 4, 2006.

11The respondents, for their part, argued that there is nothing in the applicant’s bail conditions which prevented him from taking action against the respondents to this proceeding. In this regard, the respondents pointed out that neither of the security guards is a respondent to the present proceeding and that that there is nothing in the applicant’s bail conditions which prevented him from having contact with the arresting officer. The respondents, in fact, noted that one of the conditions of bail required the applicant to contact the arresting officer in writing in the event of a change of address. The respondents therefore submitted that, even if the applicant might arguably have been restricted from pursuing a complaint against the security guards, nothing prevented him from initiating the present complaint against the Police and the arresting officer in a timely way.

12The respondents further argued that, if the applicant had a concern about the availability of witnesses, he could have sought to make them available through a variance to his bail conditions or by seeking an order from the Tribunal to summons them to appear. The respondents also contended that the applicant has not provided a reasonable explanation for why it took him a further six weeks after the criminal charges were withdrawn on December 6, 2006, to file the present complaint on January 17, 2007.

13The respondents submitted that in order to meet the conditions set out in section 34(2) of the Code which would permit the Tribunal to deal with a complaint filed in excess of one year from the date of the incident in question, it is not sufficient for the applicant to establish that he or she was mistaken about the law or unaware of his or her rights. In this connection, the respondents asserted that the applicant’s understanding that he was required to complete the criminal process before commencing the present complaint is simply not accurate. The respondents referred to the fact that the Tribunal’s current practice where there are multiple proceedings relating to the same event is to determine if a deferral of the human rights complaint is necessary. Counsel for the respondents also noted that criminal proceedings are notoriously lengthy and that it is therefore inappropriate for his clients to be expected to face human rights complaints up to a decade later.

14The respondents finally submitted that they are prejudiced in defending against the present Application by the lapse of some four years since the occurrence of the incident to which the underlying complaint relates.

Decision

15Section 34 of the Code permits a person who believes that any of his or her rights under the Code have been infringed to make an application to the Tribunal alleging an infringement within one year after the incident to which the application relates. Even though the applicant’s original complaint to the Commission was filed when the old section 34 of the Code was in force, the Tribunal has found that the current section 34 provisions are applicable to applications, such as this one, filed under the transition provisions of the Code. See Boncori v. TRW Canada, 2009 HRTO 564; Marchand v. St. Michael’s Hospital, 2009 HRTO 566; Chinatman v. Toronto District School Board, 2009 HRTO 1225.

16An application alleging an infringement of a person’s rights under Part I of the Code must therefore generally be made within a one-year period after the alleged discriminatory incident (or after the last alleged discriminatory incident if there is a series of incidents). Section 34(2) of the Code, however, permits a person to make an application alleging an infringement of the Code more than one year after the alleged incident took place (or after the last incident if there was a series of incidents) only if the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed. The relevant provisions of section 34 of the Code provide 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.

17In the present case, the alleged discrimination in the provision of goods and services occurred on a single occasion on January 4, 2006, and the applicant’s human rights complaint was filed with the Commission a year and thirteen days later.

Good Faith

18In addressing the timeliness issue, the first question to be determined is whether the applicant’s delay was incurred in good faith. As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, in order to find that a delay in pursuing one’s complaint was incurred in good faith, the applicant must provide a reasonable explanation for why he or she did not pursue his or her rights under the Code in a timely manner. In Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3d) 419 (Ont. U.F.C.), cited in Scherer v. Scherer, (2002) 2002 CanLII 44920 (ON CA), 59 O.R. (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON.S.C.). The courts have held 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.” (Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] O.J. No. 2975 (Ct. J. (Gen. Div.)), cited in Scherer, supra).

19In the present case, the vast majority of the applicant’s delay was due to his decision to wait until the criminal charges against him were resolved given his view that initiating his complaint would violate the conditions of his release on bail in that they required him to abstain from communication or association with either of the two security guards.

20The respondents’ counsel makes a compelling argument that his clients should not be expected to face human rights complaints filed for the first time after criminal proceedings have ended given that some criminal proceedings can take many years to complete. Counsel is also correct that, in the normal course, the proper procedure is to file a human rights complaint within the prescribed time and to address any arguable problems associated with concurrent proceedings through a request for deferral made to the Tribunal.

21In the specific circumstances of this case, the applicant was subject to certain conditions of bail, which he believed prevented him from initiating his complaint against the Police and Ms. Girimonte. In particular, he refers to the fact that the restriction against communication or association with the two security guards was cast broadly to require that he abstain from directly or indirectly communicating or associating with either security guard. Given the broad nature of the prohibition and the fact that the applicant’s important liberty interests were at stake if he violated the bail conditions, it is understandable that the applicant wished to err on the side of caution by not initiating an action which implicated those two security guards as potential witnesses.

22However, the applicant’s belief that he did not have the right to file his human rights complaint prior to the resolution of his criminal charges is not sufficient to establish that his delay was incurred in good faith. As noted above, in order to do so, the applicant must establish that he had no reason to make inquiries of his rights. In the present case, it is not at all apparent from a reading of the applicant’s bail conditions that he was in fact precluded from initiating the present human complaint against the Police and the arresting officer prior to the resolution of the criminal charges simply because the security guards, who are not respondents to this proceeding, could be called as witnesses when the matter proceeded to hearing. Notwithstanding this, there is no suggestion in the agreed facts before me that the applicant took any steps to clarify his rights in that regard. There is, for example, no indication that he sought to clarify the scope of his restrictions as it related to the filing of the present complaint either with the Crown or with the criminal counsel he retained in connection with his criminal charges.

23In any event, even if it was reasonable for the applicant to have waited until the criminal charges against him were resolved before pursuing his rights under the Code, the applicant did not at the hearing in this matter provide any explanation for why it took him a further six weeks after the charges were withdrawn on December 6, 2006, to file his complaint with the Commission

24By the time the criminal charges were withdrawn, he had already had ample time to prepare his complaint by obtaining and completing the necessary forms with the Commission. The applicant then had almost a month after the criminal charges were withdrawn to file a timely complaint, but he did not do so. Having decided to wait until the criminal charges were resolved prior to pursuing his rights under the Code, it was incumbent on him to act expeditiously thereafter. In all of the circumstances, I am not persuaded that the applicant has reasonably explained his failure to file the underlying complaint to this Application in a timely way.

25It bears noting that the applicant’s representative in his correspondence to the Tribunal dated March 15, 2010 adds certain additional explanations for the applicant’s delay in the period after December 6, 2006 which were not, in fact, raised at the hearing. In particular, he states for the first time that the applicant was only informed of the withdrawal of the criminal charges against him by his lawyer a week before his trial set for December 22, 2006. He also states for the first time in those submissions that his complaint was presented orally at the Commission on December 28, 2006, and that the Commission sent the forms to the applicant to complete thereafter.

26While, as noted above, it is simply too late to raise these additional facts after the hearing in this matter concluded, those facts would not, in any event, have changed my determination that the applicant has not established that his delay in filing his complaint was incurred in good faith. As noted, the applicant had ample time to obtain and complete the necessary forms to file his complaint while he waited for the criminal proceeding to end. Even if it were reasonable for him to have waited until the criminal charges were withdrawn before filing the complaint, there was no reason he could not have filed a timely complaint before the expiry of the one year deadline.

27In all the circumstances, I find that the applicant has not satisfied his burden of demonstrating that the delay in filing this Application was “incurred in good faith” as required under section 34(2) of the Code. As such, it is not necessary to determine whether substantial prejudice would result to the respondents if the Application were to proceed. In light of the Tribunal’s finding that the delay was not incurred in good faith, the Tribunal has no power pursuant to section 34(1) of the Code to hear this Application.

Order

28The Application is therefore dismissed.