HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ronald Silas
Applicant
-and-
Dr. Robert Fielden
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Silas v. Fielden
1This is an Application filed on February 10, 2011 under section 34 of Part IV 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 because of disability, marital status and age regarding erroneous information the respondent relayed in the context of an independent medical evaluation for an insurance company. The applicant was involved in motor vehicle accident in December 2005 and his insurance company required him to undergo an independent medical evaluation, which was performed by the respondent. The respondent provided his initial evaluation on May 23, 2006. The insurance company provided further medical records for the respondent to review and he responded by letter to the insurance company on July 11, 2006. In this second letter, the respondent provided erroneous information regarding the applicant, based on a misreading of the notes provided by the applicant’s family physician. This erroneous information had negative consequences for the applicant regarding his insurance claim.
3The Tribunal issue a Notice of Intention to Dismiss (“NOID”) on May 5, 2011 because the Application was filed more than one year after the last alleged incident of discrimination and therefore appeared to be outside the Tribunal’s jurisdiction. By letter dated May 18, 2011, the applicant responded to the NOID in writing. The Tribunal has not delivered the Application to the respondent or requested submissions from him regarding the NOID.
4Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:
- (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.
5The Application was filed on February 10, 2011. The respondent’s erroneous report, the event on which the Application is based, is dated July 11, 2006. I must determine if this delay was incurred in good faith and, if so, whether the respondent would suffer substantial prejudice as a result of the delay.
6The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paragraphs 24 and 25:
24In my view, where an applicant seeks 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 Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period 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 may seek to pursue a human rights claim.
25In dealing with requests that applications be considered outside the one-year limitation period, 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, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.
The Tribunal has also 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.
7In his response to the NOID, the applicant explained the delay in filing this Application as follows:
…the law and rules of the (sic) The College of Physcians (sic) and Surgeons of Health Professions of Ontario of Canada, and as well as The Health Professions Appeal and Review Board, Government of Ontario, I cannot take the action or jump from one place to other place, without their decision on the case, as their procedure and the proceeding till (sic) case settled or withdraw (sic)….
From this I take it that the applicant believed that he was not entitled to file an application to the Tribunal until the proceedings before the Ontario College of Physicians and Surgeons (“CPS”) and the Health Professions Appeal and Review Board (“HPARB”) were completed. This belief was, of course, incorrect, and the applicant provided no documentation from either body suggesting such a restriction.
8Concurrent proceedings do not prevent an application to the Tribunal and the applicant could have confirmed his entitlement to file an application with minimal effort. It is not clear precisely when the applicant learned of the respondent’s erroneous report to the insurance company, but his initial complaint to the College of Physicians and Surgeons regarding the report is dated April 4, 2008. Whenever he learned of it, the report was obviously incorrect and if the applicant believed his rights under the Code had been violated he was required to take steps to learn about and enforce his rights. Neither the CPS or HPARB have expertise in the human rights law of Ontario; therefore, it was not reasonable for the applicant to rely on any advice he may have received from either body regarding his rights under the Code. As noted above, waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will also generally not constitute a valid explanation for delay in filing an Application.
9In the circumstances, I find that applicant has not provided a reasonable explanation for the delay and therefore has not established that the delay was incurred in good faith. Having found the delay was not incurred in good faith, I need not address the issue of prejudice.
10The Application is dismissed.
Dated at Toronto this 2nd day of June, 2011.
”signed by”__________________
Douglas Sanderson
Vice-chair