J.H. v. Vaughan Mills Mall, 2010 HRTO 926

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.H. by his next friend C.H.

Applicant

-and-

Vaughan Mills Mall

Respondent

DECISION

Adjudicator: Alison Renton

Date: April 28, 2010

Citation: 2010 HRTO 926

Indexed as: J.H. v. Vaughan Mills Mall

1This is an Application filed December 7, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application alleges discrimination in goods, services and facilities on the grounds of race, colour and age. The applicant is a minor and therefore he has been identified by his initials. As his next friend’s identity would likely disclose the applicant’s identity, I have used initials to identify the next friend as well.

3On January 27, 2010, the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”), advising 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 the Application. The applicant was directed to file submissions within 30 days explaining how the delay was incurred in good faith and why he believed no substantial prejudice will result to any person affected by the delay. On January 27, 2010, the Tribunal also sent the applicant a Notice of Incomplete Application (“Notice”), requesting responses to specific parts of the Application. The applicant was directed to provide this information by February 16, 2010. The applicant did not respond to the NOID or the Notice.

4Having regard for the material before me, the Tribunal dismisses the Application for delay. Accordingly, it is not necessary to address the issue raised in the Notice.

5The applicant alleges that on October 13, 2008, there was an incident with the respondent. While the applicant did not respond to the Tribunal’s NOID, the applicant stated on his Application form that he was applying more than one year after the last event because he thought that the limitation period was two years, not one year.

6Section 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 subsection 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.

7Under section 34, the Tribunal has no jurisdiction to deal with an application 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.

8In 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. 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 justifies exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

9In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that delay may be found not have been incurred in good faith where a party says simply that they were not aware of their rights and made no inquiries about options for pursing the alleged wrong. At para. 8, the Tribunal stated:

…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] OJ No. 2749 (ON S.C.). The Court’s 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] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

10In October 2008, the applicant was aware of the actions that he now alleges to be discriminatory. He had a year to investigate whether he could bring a claim under the Code about those actions. Apart from stating on the application form “I did not know it was a year. I was told it was 2 years”, there is no information from the applicant either in the Application or in response to the NOID about the inquiries that he made about filing an application.

11In these 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 does not fall within the Tribunal’s jurisdiction. It is not necessary to address the question of prejudice.

12The Application is dismissed.