Jason Kranz v. Ottawa Police Service and Tracy Turpin, 2010 HRTO 968

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Kranz

Applicant

-and-

Ottawa Police Service and Tracy Turpin

Respondents

DECISION

Adjudicator: Sherry Liang

Date: May 3, 2010

Citation: 2010 HRTO 968

Indexed as: Kranz v. Ottawa Police Service

APPEARANCES

Jason Kranz, Applicant ) On his own behalf

Ottawa Police Service and ) David Patacairk, Counsel

Tracy Turpin, Respondents )

1This is an Application filed on March 10, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On March 29, 2010, the Tribunal held a conference call hearing to receive the submissions of the parties on the following issues:

• Whether the Application should be dismissed because it was filed outside the one-year time limit specified in section 34 of the Code;
• Whether the individual respondent should be removed as a party to the Application;
• Whether the Tribunal should grant the applicant’s request to add an additional individual respondent;
• Whether allegations based on “association” and “reprisal” should be struck from the Application;
• Whether the Application raises allegations establishing a prima facie case of a violation of the Code.

3After considering the submissions of the parties and reviewing the material before me, I find that the Application must be dismissed because it is filed outside the time limit provided in section 34(1) of the Code and the applicant has not established good faith within the meaning of section 34(2).

BACKGROUND

4On the Application form, the applicant identifies the date of the discriminatory event as November 6, 2007. In explaining the delay in filing the Application on the form, he wrote that he “just obtained the relevant documentation from IPC, lawyer and Police Service.”

5The Application arises out of the applicant’s arrest on November 6, 2007.

6On November 6, 2007, the applicant was arrested and charged with criminal harassment and uttering threats of death or bodily harm, relating to events that occurred prior to that date. The applicant alleges that he was physically assaulted by the Ottawa Police Service during his arrest, and believes that the actions of the Police were motivated by his race and colour. He describes himself as having a black heritage, with a Jamaican mother. Since November 6, 2007, the charges have been in the process of being heard by the criminal courts. By the date of the conference call hearing, there had been no final disposition on those charges.

7In May 2009, the respondents brought a Request for an Order During Proceedings in which they asked that the Application be dismissed because it did not disclose allegations that are within the Tribunal’s jurisdiction to decide, and because it was filed beyond the time limit under the Code. The applicant responded to the Request in a Form 11. He did not address the issue of delay, repeated his allegations concerning the events of November 2007, and referred to material he had filed with the Tribunal.

8Although the parties agreed to mediation, consent was withdrawn and no mediation was held. In an Interim Decision, 2009 HRTO 1341, dated August 27, 2009, the Tribunal directed the parties to make written submissions on the issues identified above, and to indicate whether they wished to make oral submissions as well.

9The applicant addressed the issue of the timeliness of the Application in submissions attached to a further Request for Order he filed on September 4, 2009. In those submissions, he states that

I believe I exercised section 34(2) by means of trying to obtain evidence through the IPC but was denied the evidence during that process. I believe I exercised section 34(2) by following up with a lawyer to obtain the evidence I required even though it was after the time frame. I did however request information in regards to one of the officers involved during the time frame.

10The Tribunal issued a Case Assessment Direction on November 24, 2009, directing a conference call hearing to receive the submissions of the parties on the issues identified in the August Interim Decision. The Tribunal provided the parties with a further opportunity to file additional submissions, documents or case law relevant to the issues by no later than two weeks before the date set for the hearing. The applicant sent a considerable volume of material to the Tribunal leading up to the hearing. Among other things, he filed a Request for Order on January 16, 2010, in which he asked that the Tribunal proceed to a hearing and make a decision on whether it will

process this matter and add Peter Danyluck as an additional party and consider the case as a prima facie case and the case filed within a reasonable timeframe based on all the submissions I have made up to date.

The applicant indicated that he wished the Tribunal to deal with the matter in writing as “I believe the Tribunal is at a stage where it can make a sound decision.”

11The applicant subsequently filed case law with the Tribunal that he indicated he would be relying on at the conference call hearing. In further correspondence, he also indicated that he was withdrawing his request to add an additional individual respondent.

12The applicant also filed documentation in relation to a complaint he filed with the RCMP about the events of November 2007, and a complaint he filed with the Law Society of Upper Canada against the Crown Prosecutor at his preliminary inquiry.

13In addition, the applicant has filed a statement that he wrote on November 4, 2008, which was the basis on which he sought a legal opinion about whether he had any recourse over the events of the previous November. That opinion, dated January 29, 2009, is also included in the applicant’s materials.

14The applicant has filed other Requests for Order which, given my disposition of this Application, are unnecessary to address.

DECISION

15During the submissions on March 19, 2010, the applicant clarified that his allegations against the individual respondent are based on her role in the decision to have charges laid against him, resulting in his arrest on November 6, 2007. Therefore, the key events that are the subject of the Application occurred on or before November 6, 2007. The Application was filed on March 10, 2009.

16Section 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.

17Under 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.

18As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period for filing an Application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year when they seek to pursue a human rights claim.

19In 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.

20The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. Further, 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.

21The only reason the applicant gave in the Application for why it was not filed earlier was a reference to requesting documents from the Information and Privacy Commission/Ontario (“IPC”). In his oral submissions, he stated that he was unaware of the process, and wished to get an opinion from a lawyer to understand the full scope of his options. He stated that when the lawyer identified the possibility of filing a discrimination complaint, he made this Application. He also referred to being scared for his safety in pursuing a human rights matter, and being continuously harassed by the Police.

22I find that the applicant has not provided a reasonable explanation for the delay. From the materials filed, it is apparent that he has pursued complaints about misconduct of public officials in the past, including those against members of the police service. He has been able to educate himself about various authorities available to assist him, such as the IPC. If the applicant believed that he had been mistreated on November 6, 2007, he had an obligation to make inquiries about his rights within a reasonable time. Although he states that he wished to obtain a legal opinion before deciding what action to take, he did not seek this opinion until November 2008, effectively a full year after the incident. I note that he has been represented by a criminal lawyer throughout the criminal process, so he has not been without access to legal advice.

23I do not find the applicant’s assertions that he was “scared for his safety” in pursuing a human rights matter to be credible. First, he makes no reference to this in his statement of November 4, 2008. Further, he was given the opportunity to explain the reasons for the delay on at least three occasions before the conference call hearing, and did not mention a concern for safety as a reason for delay in filing the Application in any of his submissions. Finally, and in any event, this does not explain why he only took the first step to obtain a legal opinion a year after the incidents.

24With respect to the applicant’s explanation about awaiting documents from the IPC, the Tribunal has stated that time spent in gathering evidence in support of a claim of discrimination does not provide a reason to extend the time limit for filing an application: see Klein v. Toronto Zionist Council, 2009 HRTO 241.

25In the circumstances, I am not convinced that the applicant has provided a reasonable explanation for the delay in filing the Application and I find that the delay was not incurred in good faith. It is not necessary to address the question of prejudice.

26The Application is accordingly dismissed.