HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Warren Jules Rill
Applicant
-and-
Beth Din of America, Ronald Warburg and Rona Reiss
Respondents
DECISION
Adjudicator: Mary Truemner
Indexed as: Rill v. Beth Din of America
WRITTEN SUBMISSIONS
Warren Jules Rill, Applicant ) Self-represented
Beth Din of America, Ronald Warburg )
and Rona Reiss, ) Mark Dunn, Counsel
Respondents )
1This Application was filed on July 26, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to services on the basis of race, ethnic origin and creed. The Application indicates that the last incident of discrimination took place on March 5, 2008.
2The respondent filed a Response on November 29, 2010 and in the Response requested that the Application be dismissed for several reasons, including for the reason that the Application was not filed within one year of the last incident of alleged discrimination.
3In accordance with a Case Assessment Direction (the “CAD”), the parties filed written submissions with respect to whether the Application should be dismissed for various reasons, including delay.
BACKGROUND
4On June 13, 2008, the applicant originally attempted to file a complaint at the Ontario Human Rights Commission, naming the respondents and others. The complaint was based on the events and allegations described in this Application. On July 15, 2008, the Commission wrote to the applicant to say that it was unable to deal with his complaint, and that he should file an application to the Tribunal. The applicant did so on December 10, 2008 under s. 53(3) of the Code (the “s.53 Application”) which allows an application to be filed if based on a complaint filed at the Commission. The Tribunal issued a Decision on May 7, 2009, dismissing the s.53 Application because a complaint was not actually “filed” with the Commission. After providing reasons for the dismissal, the Tribunal stated:
Nothing in this Decision precludes the applicant from seeking to file an application under section 34 of the Code in the Tribunal’s new applications stream, using Form 1, the form applicable for Applications under s. 34 of the Code. The applicant may wish to consult the Applicant’s Guide, available on the Tribunal’s website or from the Registrar’s office. Pages 2 – 3 of the Guide set out sources of assistance that may be available to him.
Rill v. Beth Din of the United States of America, 2009 HRTO 593
5The applicant accordingly filed the present Application under s.34 on July 26, 2010, more than two years after the alleged discrimination, and more than one year after the Tribunal dismissed the s.53 Application and alerted the applicant about filing under s.34.
DECISION
6Section 34 of the Code provides:
(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.
7The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241, Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, and Low v. Hanley Corporation (Tim Hortons), 2011 HRTO 1012. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and 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.
8In seeking to substantiate that the delay was in good faith, the applicant submitted that the Tribunal (presumably a staff person) and staff at the Human Rights Legal Support Centre (the “HRLSC”) told him to file under s.53, and not a new case. He submits that he filed everything on time, albeit under the wrong section of the Code. He submits that he is not mentally well and it “depressed [him] terribly” when he was told (presumably by the Tribunal’s Decision dismissing the s.53 Application) that his claim should not have been filed under s.53, but under s.34. He states:
I then went to Thailand and had a good rest. Thailand is like my heaven. I talk to very few people there and on my return I was in a much better frame of mind to once again submit a new submission. I called the HRLSC in the beginning of May on my return and spoke to an attorney… who was unable [original emphasis] to give me an appointment right away. I explained the case to her and she stated there was no rush in doing the submission and that she knew of the case.
9Between the filing of the Application and the day of the last incident of alleged discrimination which the Application indicates was March 5, 2008, more than one year has passed. In fact, over 28 months passed. The initial delay between the alleged discrimination and the Tribunal’s Decision dismissing the s.53 Application might be characterized as delay incurred in good faith given that the applicant was not represented at a time when the process for making human rights claims was transitioning between the Commission and the Tribunal. I cannot agree, however, that the subsequent 14 ½ month delay was incurred in good faith.
10In his correspondence with the Tribunal, the applicant has referred to spending winters in Thailand. The Tribunal’s Decision dismissing his s.53 Application was issued at the beginning of May 2009, the beginning of summer. While the dismissal of his s.53 Application and the referral to a different process might have depressed the applicant, he does not explain why that would prevent him from simply refiling his allegations on a different form when it appears he was still in Ontario and when the Tribunal’s s.53 Decision specifically noted that he might do so. That Decision specifically noted that he might seek to file an application under section 34 of the Code “using Form 1”, and referring him to the Tribunal’s website and Registrar.
11While the applicant asserts that he suffered from medical problems, he does not take the position that he was unable to function. Indeed, his arrangements and efforts that allowed him to spend the winter in Thailand demonstrate that he was able to perform tasks that go beyond copying text onto another form and filing it with the Tribunal. Even if he experienced mental disability concerns after the alleged discrimination, he has not established that he could not have pursued his rights within the timeline mandated by the Code. The applicant has failed to explain why his condition was so debilitating that it prevented him from pursuing his rights under the Code in a more timely fashion, particularly given the applicant’s travel to Thailand.
12The applicant’s preferred method of communicating with the Tribunal is through email, and a review of the file indicates that he is competent in sending documents electronically. I note that he filed the Application electronically and without representation. I therefore do not consider the applicant’s absence from Canada while in Thailand, where access to the internet exists, to constitute a good faith reason for delay in filing an application under s.34 of the Code.
13The applicant implies that approximately one year after the Tribunal dismissed his s.53 Application (more than two years since the alleged discrimination), when he returned from wintering in Thailand, he couldn’t get an appointment with staff at the HRLSC. He claims that the lawyer with whom he spoke in May of 2010 told him that he did not have to worry about filing a new application right away. Even if he delayed filing several more months on the basis of this alleged advice, I do not find that this excuses the approximate year of delay since the Tribunal issued the s. 53 Decision and the time he sought advice from the HRLSC.
14In sum, I am not persuaded that the delay in the filing of the Application was incurred in good faith pursuant to section 34(2) of the Code. It is not necessary for me to consider whether substantial prejudice would result from the delay, nor is it necessary for me to consider the parties’ submissions with respect to the other arguments to dismiss the Application raised in the Response and the CAD. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith. The Application is dismissed.
Dated at Toronto, this 25th day of October, 2011.
”signed by”______________
Mary Truemner
Vice-chair