Deloras-Billot v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1236

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Albert Deloras-Billot, Evonne Deloras-Billot, Michael Deloras-Billot, Thierry Deloras-Billot and Jennifer Deloras-Billot Applicants

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Office of the Chief Coroner) Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta Date: June 28, 2011 Citation: 2011 HRTO 1236 Indexed as: Deloras-Billot v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Albert Deloras-Billot, Evonne Deloras-Billot, Michael Deloras-Billot, Thierry Deloras-Billot and Jennifer Deloras-Billot, Applicants Jennifer Deloras-Billot, Representative

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services (Office of the Chief Coroner), Respondent Marni Corbold, Counsel

L’Hospital Montfort Hospital, Respondent Jim Anstey, Counsel

1This is an Application filed on October 12, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicants include Albert Deloras-Billot, now deceased; his spouse, Evonne Deloras-Billot; and their three adult children, Michael, Thierry and Jennifer. Although it is unclear from the written material, the Application appears to have been brought against some of the respondents on behalf of Albert Deloras-Billot, who passed away on September 12, 2007, by his widow, Evonne, and on behalf of the remaining family members against the remaining respondents.

3The Application alleges that the applicants, either individually or as a group, experienced discrimination in receipt of goods, services or facilities on the basis of disability, creed, age and association with a person identified by a Code-protected ground.

4The Application names a number of institutions, including a hospital and the Office of the Coroner, employees of those institutions, independent contractors such as doctors and coroners associated with those institutions and suggests that the applicants may seek to add other employees of these institutions who not yet been named. In all, thus far, there are 22 named or partially named respondents and an indication that other respondents exist whose names had not yet been confirmed.

5A number of preliminary issues were identified by the Tribunal upon receipt of the Application. The Application documents were served on the primary institutional respondents and a conference call held to hear the submissions of the parties on the preliminary issues.

6Following the conference call hearing, additional submissions were called for. The applicants’ materials were initially sent to the Human Rights Legal Support Centre, which then redirected the materials to the Tribunal.

7For the reasons that follow, this Application is dismissed as against all respondents other than the Office of the Chief Coroner of Ontario. Additional case management directions will follow.

BACKGROUND

8The Application alleges that in April 2006, a physiotherapist and two social workers pressured the now deceased Albert Deloras-Billot to enter a nursing home, at which time these individuals were alleged to have made condescending and inappropriate remarks and treated him in a discriminatory fashion. No further mention is made of these three individuals.

9The narrative then jumps to January 2007, when a physician by the name of H. Zihni Dervish conducts a post-operative visit with Albert Deloras-Billot. This visit is alleged to be perfunctory, inadequate and discriminatory. There is then no further mention of this physician.

10The narrative then moves to September 2007, when during the late evening of September 10, 2007, and the early morning of September 11, 2007, Albert Deloras-Billot was transported by ambulance and admitted to L’Hopital Montfort Hospital (“Montfort Hospital”). On September 12, 2007, he passed away.

11The Application alleges discriminatory conduct and inadequate or inappropriate medical treatment by five physicians, Keith Lane, Nicholas Chagnon, Roland Sabbagh, Justin Kahale and James Worrall. In addition to partially naming two nurses employed at the Montfort Hospital, the Application purports to include as respondents all “other nurses between 10th and 12th September, 2007”. The Application also names as respondents eight other individuals employed by or acting as independent contractors at the Montfort Hospital or the Ottawa Hospital, as well as a funeral director who dealt with the family in September 2007.

12The central theme in the allegations against all those involved with the applicants during these times is that because Albert Deloras-Billot was elderly and disabled, he was not given adequate or appropriate care. The Application also alleges that creed was a factor in the allegedly inadequate or inappropriate care.

13The allegation is that in September and October, 2007, these institutions and individuals discriminated against either Albert Deloras-Billot or various members of the Deloras-Billot family and did not provide adequate or appropriate service to the applicants.

14After the death of Albert Deloras-Billot, Yvonne and Jennifer Deloras-Billot, on behalf of the remaining family members, appear to have communicated extensively with employees and individual contractors associated with the Office of the Chief Coroner (the “OCC”). The family’s objective appears to have been to ensure that an inquest be held into the death of Albert Deloras-Billot. They allege that the failure of the OCC to do so is discriminatory.

15By way of a complaint form dated March 11, 2008, the family initiated a complaint to the Ontario Human Rights Commission (the “Commission”), in which they raised some but not all of the incidents subsequently included in the Application to the Tribunal and in which they indicate that the last in a series of incidents of discrimination occurred on September 12, 2007.

16The Commission responded by way of a letter dated June 23, 2008, indicating that the complaint was not being processed in order that an Application could be filed with the Tribunal instead. The letter notified the family that there was a one-year limitation period in which they were required to file an Application with the Tribunal.

17While the complaint includes the earlier and possibly unrelated events of April 2006 and January 2007, it focuses on the time surrounding the death of Albert Deloras-Billot on September 12, 2007, the date cited as the last incident of discrimination. There is no mention of the funeral home employee or the OCC, despite the fact that those contacts had already begun and, in the case of the funeral home, been concluded.

DECISION

Delay in Filing Application

18Section 34 of the Code states:

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.

19In a letter dated June 23, 2008, the Commission confirmed that the complaint was not being processed in order that an Application could be filed with the Tribunal instead. This correspondence arose in the context of significant amendments to the Code that were coming into effect on June 30, 2008, and, as a result of which, the Commission would no longer have jurisdiction to accept individual human rights complaints. The letter notified the family that there was a one-year limitation period in which they were required to file an Application with the Tribunal.

20This Application was filed with the Tribunal on October 14, 2008, more than one year from the last of a series of events that gave rise to the Application as against all respondents other than the OCC, and several months after the Commission’s letter to the family. Therefore, I must determine whether the delay in filing this Application against all respondents other than the OCC was incurred in good faith.

21The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. As 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.

22The explanation for the delay offered on behalf of the applicants is that they were trying to find out contact information about the new Tribunal and that the remaining family members were facing ongoing discrimination.

23The fact that a person is pursuing other avenues or considering doing so is not generally accepted as a valid or good faith reason for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. In addition, I find it difficult to accept that finding contact information for the Tribunal would take upwards of five months, given, among many other options, the possibility of seeking out the required information from the Commission after receiving the June 23, 2008 letter from it.

24In these circumstances, I am not satisfied that the delay in filing the Application against the respondents interacting with the deceased and his family in April 2006, January 2007 and, finally, in September 2007 at Montfort Hospital and Ottawa Hospital or the funeral home was incurred in good faith.

25As such, it is not necessary to determine whether substantial prejudice would result to those 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 against all respondents other than the OCC.

26The Application is dismissed as against all respondents other than the Office of the Chief Coroner and the style of cause amended accordingly.

Removal of Personal Respondents associated with the OCC

27Two physicians, Dr. Genier and Dr. Acharya, were named in addition to three persons employed by the OCC, Dr. Bechard, Dr. Porter and Dr. Evans.

28The submissions made by the OCC during the telephone hearing and in the written submissions sent in after the call confirm that although it takes the position that it is not vicariously liable for the actions of the individual contractors, those two individuals are not properly named as personal respondents given that their involvement with the applicants was in their capacity as individuals performing duties pursuant to the Coroner’s Act, R.S.O. 1990, c. C.37, on a fee-for-service basis for the OCC.

29During the conference call held into this matter and in written submissions following the call, the applicants took the position that they were content to proceed as against the institutions named and did not seek to continue to have individual contractors or employees named as personal respondents.

30Accordingly, the Application will proceed only as against the institutional respondent OCC and the style of cause will be amended accordingly.

31A Case Assessment Direction will be issued to outline next steps.