Eugene Dionne v. City of Toronto and Frank Mitchell, 2011 HRTO 317

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene Dionne

Applicant

-and-

City of Toronto and Frank Mitchell

Respondents

DECISION

Adjudicator: David A. Wright

Date: February 15, 2011

Citation: 2011 HRTO 317

Indexed as: Dionne v. Toronto (City)

WRITTEN SUBMISSIONS

Eugene Dionne, Applicant ) Self-represented

City of Toronto and Frank Mitchell, Respondents ) Kerri Kitchura, ) Counsel

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), filed on April 8, 2009.

2The Tribunal currently has before it three Requests: (i) a Request by the respondents that the Application be dismissed as outside the Tribunal's jurisdiction, as a result of the delay in filing it; (ii) a Request by the applicant that the Tribunal reconsider its Interim Decision of December 15, 2010, 2010 HRTO 2492, removing various respondents, and (iii) a Request to Intervene filed by the Toronto Professional Fire Fighters' Association, Local 3888.

3Having considered the parties' submissions, I find that this Application is outside the Tribunal's jurisdiction, as it was filed more than one year after the last alleged incident of discrimination and the applicant has not shown that the delay was incurred in good faith within the meaning of the Tribunal's case law. Accordingly the Application must be dismissed. As the Tribunal has no jurisdiction over the Application as a whole, there is no need to consider the Request to Reconsider or the Request to Intervene.

SECTION 34 OF THE CODE

4Section 34 of the Code provides that an Application must be filed more than one year after the incident or last incident in a series to which it relates. A late Application is within the Tribunal's jurisdiction if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by it. Sections 34(1) and (2) read 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.

ANALYSIS

5The applicant, a former fire captain with the respondent City, alleges that between 2003 and 2007, the City discriminated against him and failed to accommodate his disability to the point of undue hardship as required by the Code. The applicant states that he was forced to retire because of his treatment by the City, because he realized he would not be properly accommodated by the City. The retirement took effect on May 1, 2007. The Application was not filed until April of 2009.

6The parties disagree about whether the applicant's retirement can constitute the last incident of discrimination within the meaning of s.34(1)(b). I need not address this issue in this case, because even assuming this is the last incident, the Application is out of time and the applicant has not shown good faith.

7In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal made the following general comments about untimely applications:

In my view, where an applicant seeks 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 Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period 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 may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, 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).

8While this argument was not clearly pursued in the response to the respondent's Request for Order, in his Application the applicant argues that any delay was incurred in good faith because of his medical condition. He states that as a result of the failure to accommodate and his "forced retirement", he became depressed and sought medical help for the depression. He argues that he needed to stabilize his depression and could not withstand cross-examination or the legal implications of launching a case during this period.

9This argument cannot establish good faith within the Tribunal's case law. While the Tribunal accepts that a delay may be in good faith because of an applicant's disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

10The applicant makes various submissions focused on the change in the human rights system that took place on June 30, 2008. He states that he made various telephone calls to the Ontario Human Rights Commission prior to June 30, 2008, and was told several times by Commission staff that he had to file a grievance in order to file a Complaint with the OHRC, or that he had to file a grievance first. He states that he said the union would not do so, although it is not clear what response he received. The applicant states that in a conversation with another former firefighter, Jurgen Degen, in March 2009 he "discovered" that he could pursue an application to the Tribunal. The applicant relies upon the "discoverability" principle, discussed in Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549 and Kamloops v. Neilsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2 means that the relevant period did not begin to run until he learned that he could pursue an application to the Tribunal.

11Alternatively, the applicant argues that his "discovery" of the changes to the human rights system establishes good faith, relying upon the following quotation from the family law case of Busch v. Amos (1994), R.F.L. (4th) 36 at para. 8:

I also agree that failure to act in ignorance of one's rights may, in some circumstances, amount to 'good faith'. However, in my view, it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.

12The "discoverability" principle discussed in Peixeiro and Kamloops has no application to the facts of this case. Those cases deal with situations where plaintiffs discover the facts underlying their claim later. They do not establish that a time period only commences when an applicant learns about his or her rights under the Code.

13Moreover, even had the applicant filed the Application on June 30, 2008, the day the new human rights system came into effect, it would still be beyond the one-year period. It was not the intention of the Legislature, in passing the amendments to the Code, that cases that were not brought under the old system because of the legislation in place at that time. The applicant makes various submissions about what he sees as an injustice in the fact that the Commission had the power, under s. 34(1)(d) of the old Code, to dismiss a complaint where it could or should be more appropriately dealt with under a grievance process or that Commission staff stated on the telephone that he should proceed through his union.

14The amendments to the Code and the ability to extend the time period based on good faith were not intended as a mechanism to permit Applications that were not made or could not be made under the old system to be made in the new one. Had the applicant made a Complaint in 2007 and it had been dismissed under s. 34 of the old Code, the Tribunal would have no jurisdiction over this Application: see s. 53(8) of the Code. It cannot be that he is in a better position for having not filed an Application. The change in the human rights system does not establish good faith.

15Moreover, the Application was made over nine months after the new system came into effect. For the reasons expressed in Kelterborn v. Toronto (City), 2011 HRTO 318, this length of delay cannot be justified based on lack of knowledge of the change in the law.

16In submissions signed by Mr. Degen and filed by the applicant, it is suggested that the City cannot make requests based on delay because this issue was "discussed" in a previous day of hearing on October 28, 2009. While there was brief general discussion of the issue, the Tribunal did not make any rulings on delay. The only rulings made on October 28, 2009 are recorded in the Tribunal's decision, 2010 HRTO 13.

17Finally, the applicant makes one other argument in relation to the discoverability principle. He states that he learned in December 2010 that the Association had, in November 2006, filed a grievance involving him of which he was unaware. This does not establish good faith, as it does not suggest that he did not know within the statutory time frame that he had a potential application to the Tribunal. As the Tribunal noted in Klein v. Toronto Zionist Council, 2009 HRTO 241 at para. 23:

The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow aggrieved persons to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

18Accordingly, I find that the Application is outside the Tribunal's jurisdiction, as it was filed more than one year after the events in question and the applicant has not shown that the delay was incurred in good faith. The Application is dismissed.