Delano Brown v. YMCA of Greater Toronto, 2010 HRTO 967

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Delano Brown

Applicant

-and-

YMCA of Greater Toronto

Respondent

decision

Adjudicator: Janice Sandomirsky

Date: May 3, 2010

Citation: 2010 HRTO 967

Indexed as: Brown v. YMCA of Greater Toronto

appearances BY

Delano Brown, Applicant ) On his own behalf

YMCA of Greater Toronto, ) Brian D. Mulroney Respondent ) Counsel

1This Application was filed on June 24, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on September 17, 2007, and abandoned upon the filing of this Application with the Tribunal. The applicant, who self-identifies as a blind person, alleges that the respondent, the YMCA of Greater Toronto (the “YMCA”) is in breach of the settlement of his prior human rights complaint.

2The parties filed written submissions on the preliminary issues raised by the respondent and made oral submissions at the hearing held on April 9, 2010.

3In the response to the Application, the YMCA submitted that it should be dismissed on the basis of delay. Section 34 of the Code limits the Tribunal’s jurisdiction to deal with complaints filed within one year after the incident, or the last incident if a series of incidents is alleged, unless the applicant provides an explanation for the delay that shows it was incurred in good faith and there is no substantial prejudice to any person affected by the delay.

4The 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.

5In this case, the applicant alleges that the YMCA is in breach of the settlement of his prior human rights claim, which was filed in November 2001. That complaint was settled in September 2002 for some monetary payment and a number of other terms including the following:

The complainant and the corporate respondent agree to work together to identify exercise equipment which could be better accessed with the use of instructions or labels written in Braille. The complainant and the corporate respondent will then discuss appropriate wording as well as location of such labels and the complainant will produce these labels on “dymo tape” provided by the corporate respondent. Once the labels are produced, they will be sent to the Braille Transcription Department of the C.N.I.B. where they will be proof-read by staff of that department which provides the services at the rate of $25.00 per page. The corporate respondent will cover the cost of this service and, once the wording of the labels has been confirmed, they will be affixed to the equipment in suitable locations

6The complaint underlying this Application was filed with the Commission on September 17, 2007. The applicant states in his complaint that he returned to the YMCA on April 3, 2007, and “… discovered that equipment was not labelled properly as prescribed in minutes of settlement. I brought it to staff’s attention – and nothing was done.”

7The YMCA states that the applicant never participated in the process set out in this term of settlement and, accordingly, it proceeded to arrange for and label the equipment on its own. Then, approximately five years after the YMCA fulfilled the terms of the settlement, the applicant filed another complaint alleging breach of settlement without setting out any further particulars, including: when the breach occurred, who he spoke to about his concerns, what he alleges is “improper labelling” and whether the failure to accommodate him is separate from his allegation of breach of settlement.

8Furthermore, the YMCA notes that, while the applicant was a member for the year following the signing of the settlement, there was no indication that he had any concerns about the labelling of the equipment. The applicant let his membership lapse and then rejoined the YMCA in 2004, using the facility primarily between May and September of that year. His membership lapsed again and he rejoined in April 2007 and has used the facility reasonably regularly since that date.

9The YMCA confirmed that the applicant did raise a concern in September 2004 about the level of assistance he was receiving. He met with the one of the YMCA’s senior vice presidents, but there was no record of his mentioning problems with the Braille labelling.

10The applicant confirmed at the hearing that he was not in touch with the YMCA to co-ordinate the implementation of the 2002 settlement and he believed that it was best for the YMCA to deal directly with the CNIB. He stated at the hearing that he tried to address his concerns about accommodations provided by the YMCA through discussion with the staff in an informal manner.

11In reviewing this sequence of events, there is no issue that the applicant filed the complaint more than one year after he signed the minutes of settlement of his 2001 human rights complaint. While there is no deadline for the implementation of the settlement, it appears from the information filed by the YMCA that it took steps to fulfill the terms of the settlement within months of signing the agreement, even without the input of the applicant. The applicant was a member of the YMCA for the full year after the settlement and there is no information suggesting that he raised any issues about the implementation of the terms of settlement.

12Having found that the complaint was filed more than one year after the alleged breach of settlement, the Code requires that I determine whether the delay was incurred in good faith. The onus on the applicant to establish a good faith explanation for the delay under section 34(2) requires more than proving the absence of bad faith: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. At a minimum, this requires that the applicant provide some reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District, 2008 HRTO 424.

13The applicant confirmed that he did not participate in the process contemplated in the terms of settlement to identify and label the exercise equipment. The applicant used the facility for many months between the date of the settlement of the prior human rights complaint in 2002 and the filing of the current complaint in 2007. He said he had concerns about the services provided by the YMCA, but addressed them informally with staff.

14Given the lack of participation of the applicant in implementing the terms of settlement, and the number of years that passed before he filed a complaint alleging breach of that settlement, I do not find the applicant’s explanation for the delay is reasonable. While I appreciate that the applicant continues to have concerns related to his use of the YMCA’s facilities, this Application alleging breach of settlement is dismissed on the basis of delay.

15The YMCA also filed a Request for an Order during Proceedings seeking early dismissal of the Application on the basis that the applicant failed to comply with the Tribunal’s Rules of Procedure. Having decided to dismiss the Application for delay, there is no need to consider this Request.