HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Yakdehikandage Samadara Jayasinghe
Applicant
-and-
Seneca College of Applied Arts and Technology, Vilma Filici and Susan Horne
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Jayasinghe v. Seneca College of Applied Arts and Technology
1The applicant filed her Application on February 28, 2011 alleging discrimination in services on the basis of race, place of origin, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The respondents have filed a Response and a Request for Order During Proceedings (Form 10) in which they ask that this Application be dismissed on the basis of delay. The Statement of Delivery attached to the Form 10 indicates that it was delivered to the applicant via email on May 25, 2011. The applicant did not file a Response to the Request for Order (Form 11) and the time for doing so has since passed.
3The applicant did file a Reply to the respondents’ Response, but this document does not address the issue of delay, even though delay was also raised in the Response.
4The respondents state that Application is barred by virtue of s. 34, which states in part:
(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 narrative in section 8 of the Application details interactions concerning a program in which the applicant was enrolled, but does not contain dates. In assessing the issue of delay, I have relied on the dates provided in the Response, which the applicant does not dispute in her Reply.
6The Response states that the program in which the applicant was enrolled consisted of six modules, which ran from August 2008 to August 2009. The respondents state that the applicant’s last interaction with Vilma Filici, one of the named respondents was in August 2009, approximately 18 months prior to the Application being filed with the Tribunal.
7The Application and Response detail extensive interactions between the applicant and the respondent in which she asks that her marks be reviewed, but that the only issues that continued after August 2009 concerned her work in the fifth module of six. The applicant asked that her exam in Module 5 be re-marked. In the process of re-marking the exam, some alleged irregularities were noted, and in September 2009 she was accused of academic dishonesty concerning her exam.
8The applicant appealed the finding of dishonesty, which was upheld at the first level of appeal by decision issued November 4, 2009. The applicant’s appeal of that decision was allowed on April 8, 2010 and she was allowed to re-write the Module 5 exam, which she did. The Response states that the applicant successfully completed Module 5 in August 2010.
9The Response states that in her letter appealing the first level of appeal, dated November 10, 2009, the applicant makes extensive allegations of discrimination and for that reason was referred to the Resolution, Equity and Diversity Centre (“the Centre”) at the respondent College. The Application makes no reference to this process, only the academic appeals referred to above.
10In response to the question “What was the date of the last event?” in section 7 of her Application, the applicant states it was March 22, 2010, but does not detail what occurred on this date and there is nothing in the respondents’ narrative in its Response that corresponds to that date.
11From the above chronology, it would appear that the last date on which anything that might be an “incident” in which the applicant alleges her rights were infringed occurred in early November 2009, when her first appeal was unsuccessful. This is putting matters in the most favourable light, since the applicant does not make any specific allegations of discrimination with respect to the appeal process in her Application, instead describing it as a “lengthy process” which she had to go through to clear her name.
12As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner.
13This 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. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697.
14There was nothing to prevent the applicant from filing a separate human rights Application even while pursuing her appeal of the findings of dishonesty or consulting with the Centre concerning her allegations of discrimination. Indeed, the applicant did not file her Application for another six months after successfully completing the requirements for her program. The applicant has provided no explanation for this delay.
15Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application. It is not necessary, therefore, to address the issue of prejudice.
16The Application is dismissed.
Dated at Toronto, this 12th day of July, 2011.
“signed by”
Naomi Overend
Vice-chair