Wallace Crispin Barnes v. Dr. Edward E. Vivoda, 2011 HRTO 1373

Human Rights Tribunal of Ontario

Between:

Wallace Crispin Barnes Applicant

-and-

Dr. Edward E. Vivoda Respondent

Decision

Adjudicator: David Muir Date: July 21, 2011 Citation: 2011 HRTO 1373 Indexed as: Barnes v. Vivoda

1This is an Application made under s. 53(5) of the Ontario Human Rights Code ("Code") dated May 12, 2009. The underlying human rights complaint ("complaint") was filed with the Ontario Human Rights Commission ("Commission") on May 12, 2008. The events giving rise to this Application occurred in late September 2006.

2The complaint forming the subject matter of this Application was filed approximately 20 months after the alleged incident of discrimination. On its face, the Application was out of time and after some discussion with the parties it was agreed that the delay issue should be dealt with as a preliminary matter. The parties provided written submissions and attended a telephone conference call to provide oral submissions.

3Section 34 of the Code provides 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.

4Section 34 as it is applies to transitional Applications such as this one has been interpreted as requiring that the complaint underlying it must have been filed within 12 months of the alleged incident, or last in a series of alleged incidents of discrimination.

5As indicated above, the Application is clearly out of time, the complaint having been filed almost 20 months after the alleged incident of discrimination. The question addressed in the parties' submissions was primarily whether the applicant could establish a good faith explanation for the delay. The respondent also stated that it would be substantially prejudiced by the delay.

6At the time of the events giving rise to the complaint the applicant was a police cadet on the cusp of a new career in policing. He is now a police officer with the Toronto Police Service. He was immediately and keenly aware of what he perceived to have been racial discrimination by the respondent. This is not a case where it took some time for the applicant to put the pieces together. The question was what he should do in response.

7The applicant chose what he described as the path of least resistance before escalating the matter to the Commission. He felt constrained in what he could do and considered the issue carefully before choosing a course of action. He took advice and direction from members of the police community who he respected. He was concerned about being perceived as a person who played the "race card" and was concerned that if he filed a human rights complaint with the Commission that it might affect his career prospects. He was also concerned with the possibility of reprisal by future employers.

8The applicant chose to take his complaint of discriminatory treatment by the respondent to the College of Physicians and Surgeons first. From the beginning, the applicant was of the view that if the results of that process were not satisfactory he had the option of, as he put it, "escalating" the matter by filing a complaint with the Commission. The complaint with the College of Physicians and Surgeons is currently ongoing, however, the applicant was not satisfied with the outcome of the first stages of the complaint process. Consequently, the applicant decided to file the complaint with the Commission in May 2008. The applicant states that his intent was not to cause the respondent to be prejudiced by his approach but to seek resolution of the matter as quickly and discretely as possible.

9The Application is dismissed. The Application is out of time and the applicant does not have a good faith explanation for the delay.

10The Tribunal has determined on many occasions that good faith is more than the mere absence of bad faith. I have no hesitation in concluding that the applicant has not acted in bad faith, in any respect, in this matter. On the other hand, the Tribunal has also set a fairly high onus on applicants to provide a cogent explanation for the delay. The mandatory one year limitation period is consistent with the Code's objective that human rights claims are dealt with expeditiously. Accordingly, the Code requires that applicants act with all due diligence and file their claims within one year of the events complained of.

11As the respondent indicated in his submissions, while understandable in some sense, the applicant's choice to pursue his complaint in another forum first boiled down to a "wait and see" approach. The Tribunal has held on many occasions that pursuing other legal avenues before filing a human rights complaint is not a sufficient good faith explanation for delay in pursuing their rights under the Code (see for example: Jeffrey v. Oxford (County), 2010 HRTO 1048 and the cases cited therein). As this is the only explanation offered by the applicant the Application must be dismissed.

12Having found that the applicant has not established a good faith explanation for the delay there is no reason to consider whether any party would be prejudiced by it.