HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Chan

Applicant

-and-

Toronto Police Services Board, Toronto Police 51 Division

and Office of the Attorney General

Respondents

DECISION

Adjudicator: Kathleen Martin

Date: December 2, 2011

Citation: 2011 HRTO 2171

Indexed as: Chan v. Toronto Police Services Board

APPEARANCES

Mark Chan, Applicant ) Self represented

Toronto Police Services Board )

and Toronto Police 51 Division, ) Mathew Longo, Counsel

Respondents )

Office of the Attorney General, ) Anita Lyon, Counsel

Atorney General )

1This is an Application filed on May 4, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of race, ethnic origin, family status, marital status and age in the provision of goods, services or facilities. This Decision determines whether the Tribunal has the jurisdiction to hear the Application on the basis of delay and the failure to identify any acts of discrimination within the meaning of the Code.

2The Application arises from the applicant’s interactions with the police and judicial system in the period February 2006 to January 2007. In February 2006, the applicant was arrested, detained and fingerprinted as a result of an incident that occurred in December 2005. The criminal charge was eventually withdrawn on January 15, 2007 at which time the applicant agreed to enter into a peace bond. The applicant complains that these events amount to malicious prosecution and racial and marital status discrimination since a former mayor of Toronto and a neighbour made threats and were not treated in the same manner. The applicant states that he lost a job because of the criminal records at “the Toronto Police”.

3The remaining allegations in the Application pertain to the alleged delay in the removal of the applicant’s fingerprint and other records with the police. The supporting material filed in connection with the Application indicates that the applicant applied for the destruction of his fingerprints and photographs on July 24, 2009; the Toronto Police Service acknowledged the request on August 26, 2009 and forwarded it to the Royal Canadian Mounted Police (RCMP); the applicant was advised on September 25, 2009 that the Toronto Police would have to wait for the destruction of the master records on file with the national data base (of which the RCMP was custodian) and that this process could take a number of months; and the applicant was advised that the fingerprints, photographs and record of disposition held by the Toronto Police Service and the RCMP had been destroyed by letter dated July 6, 2010.

4On September 15, 2010, the Tribunal issued a Notice of Intent to Dismiss (NOID) stating that the Application appeared to be outside the Tribunal’s jurisdiction because:

• With respect to the allegations in the Application concerning “malicious prosecution” and events that occurred in 2006 and 2007, the Application was filed more than one year after these incidents of discrimination described in your Application, and you have not fully explained how the delay was incurred in good faith and why you believe no substantial prejudice will result to any person affected by the delay [s.34(1)]. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582;

• With respect to your allegations against the Attorney General, which appear to relate to the actions of a Crown Attorney, the HRTO has found that, in light of the principle of prosecutorial immunity, it has no jurisdiction to hear applications against Crown Attorneys: see Oliphant v. Ontario (Attorney General), 2009 HRTO 1902; S.M. v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1705;

• With respect to the remaining allegations in your Application, concerning the destruction of fingerprints and photographs, a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondents. The Tribunal also notes that you provided with your Application a letter from the Toronto Police Service, dated July 6, 2010, indicating that your fingerprints and photographs have been destroyed.

5The Tribunal invited the applicant to provide further submissions on the issues identified. On September 23, 2010, the applicant filed submissions. In responding to the issue of delay, the applicant stated that he was unaware of the one year requirement, was busy looking for a job and working and “…mental breakdown (mental tormented)”. The applicant made no submissions with respect to the other issues in the NOID.

6On December 23, 2010, the Tribunal issued a Case Assessment Direction scheduling a one hour conference call hearing for the purpose of hearing further submissions on the issued identified in the CAD. The Tribunal directed, among other things, that in the event that the reference to “mental breakdown (mental tormented), relates to a health-related reason for the delay, the applicant shall provide full particulars of the same including any supporting documentation no later than 30 days before the conference call.

7The applicant filed further submissions on several dates prior to the conference call. The submissions included a medical report from 2006 that did not relate to the issue of delay and a reference to being diagnosed with a mental disability/breakdown after he lost his job. The applicant also provided elaboration of his fingerprinting allegation indicating that “they” (those who work for the Toronto Police) are from South Asia and “have been jealous of me because they cannot become engineers”.

8On November 17, 2011, the conference call hearing took place. At the hearing, the applicant provided further submissions on delay and the other issues raised in the CAD.

9With respect to delay, the applicant states that he asked a lawyer for assistance but she was too busy to take on his case. The applicant reiterated that he had a mental breakdown (although he gave three different answers as to when it occurred suggesting initially it was in 2010, then December 2009 and finally indicating that it was after 2007). The applicant states that he was only under a doctor’s care for four to six months for mental health reasons in 2009. Prior to 2009, he only saw a doctor for coughing and sickness.

10The applicant separately described that he was working in the period January to March 2008 and that after that he volunteered for two different organizations (at one organization from April to September and then for another organization for a couple months). The applicant states that while he looked for another job, he was unable to get one because of his “criminal record”.

11With respect to the fingerprinting issue, when asked to explain how the Code was engaged, the applicant did not add to the information already provided in his email submissions. When asked to explain how he was discriminated against on the grounds of race and marital status, the applicant stated that he is Chinese and can do his engineering degree and that the individual that he dealt with at the police station about his records, who was identified, was jealous of him. The applicant also stated that the police knew his marital status.

12Following the conference call, the applicant filed additional submissions. The applicant references a Civilian Police complaint and Ombudsman complaint(s) and appears to be suggesting that this brings it within the one year period. The applicant also filed an extract from a website including case summaries of human rights cases from various jurisdictions in Canada.

DECISION

13I find that this Application should be dismissed by reason of delay and the absence of any connection between the timely allegations and the Code.

14Section 34 of the Code states:

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.

15The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

16I begin with the timely allegation, i.e. the police intentionally delayed destroying the records about the applicant. While not expressly argued as the last incident in a series, to the extent this is the applicant’s contention, I do not find that there is any credible connection between this allegation and the Code.

17The Application itself did not provide any link between this allegation and the Code. Instead, it was only in the applicant’s submissions after the CAD and to some extent in the conference call, that he alluded to his race and marital status being engaged. However, beyond his bald assertion that he is Chinese, that the personnel he dealt with are from South Asia and are jealous of him, the applicant did not point to any evidence as to how he would establish that he was discriminated against based on his race. The applicant was unable to point to any evidence that might establish there actually was a delay in processing his request to have his fingerprints destroyed or, even if there had been, that such a delay was in any way connected to a Code-related ground. Further on the issue of marital status, the applicant provided no particulars merely asserting that the police knew of his marital status. On the basis of these submissions, I cannot find that the applicant has identified any specific acts of discrimination on the basis of race or martial status.

18The remaining allegations are filed more than one year after the incident of alleged discrimination. I therefore turn to whether the delay in applying about these allegations was incurred in good faith.

[19} As stated in Miller v Prudential 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. The mandatory one-year limitation period for filing an application 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 seek to pursue a human rights claim.

20In order to satisfy the Tribunal that the delay was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. 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). See Miller, at paragraph 25.

21As indicated above, in explaining the delay, the applicant relies on a number of reasons including mental distress, ignorance of the requirements and his involvement in other activities.

22I do not find that the general and somewhat confusing submissions made about the applicant’s mental health are sufficient to establish that the applicant had a disability which prevented him from filing for over three years. First, I note that there is no medical evidence filed substantiating the claim. Second, even accepting the applicant’s submissions of a mental breakdown, the submissions do not explain a three year delay. The applicant was uncertain as to when he had the mental breakdown (providing three different dates). Further, based on his submissions generally, it is apparent that his mental health did not appear to prevent him from pursuing other meaningful activities during the entirety of the period. For example, the applicant described working in 2008 for a few months, participating in volunteer activities for a number of other months and looking for a job. As well, the material filed with the Application demonstrates that the applicant was complaining about his concerns through other avenues of redress during the period 2009 and early 2010 – asking his city councillor for assistance in July 2009, complaining to the Law Society in Upper Canada about his counsel’s conduct in 2009 and complaining to the Office of the Independent Police Review Director in February 2010. Considering the foregoing, I cannot find that the the applicant was so incapacitated that he could not inquire into and file an application with the Tribunal for three years.

23The applicant also relies on being unaware of the requirement to file within 12 months and his difficulties in finding a counsel. Neither of these reasons explain a three year delay particularly, where the applicant is actively pursuing other avenues to address his concerns about his treatment from mid 2009 on. Further, even accepting that one lawyer was unable to help him, the applicant has provided no explanation why he did not contact other lawyers for assistance.

24The applicant has also relied on the fact that he was busy pursuing other activities including looking for a job. This is not a reasonable explanation for a delay.

25Finally in his recent submissions, the applicant references the pursuit of his concerns through other mechanisms. Again, I do not find this is a reasonable explanation for the delay. In fact it demonstrates that the applicant was able to pursue other avenues of redress and elected for reasons unspecified not to pursue an application here with all due diligence.

26The applicant has provided case summaries with his submissions. While it is not obvious how these cases relate to the issue of delay, to the extent the applicant relies on them as a precedent I would emphasize that the issue of good faith is a discretionary provision to be exercised on a case by case basis based on the facts and submissions made.

27In this case, I have considered the applicant’s reasons for the delay separately and together. Even accepting that the applicant had some challenging circumstances during this period including some issues with his health, losing a job and having to seach for another job, I do not find that the applicant has provided a reasonable explanation for the delay in this case. Accordingly, I am not satisfied that the delay was incurred in good faith.

28In view of this conclusion, it is not necessary to address whether or not the respondents would be substantially prejudiced in responding to the Application.

29It is also not necessary to address the other issues raised in the NOID and CAD including whether in light of the principle of prosecutorial immunity the Tribunal has no jurisdiction to hear the application against the Attorney General.

30The Application is dismissed.