Marianne Clarke v. Canadian Blood Services, 2011 HRTO 411

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marianne Clarke

Applicant

-and-

Canadian Blood Services

Respondent

DECISION

Adjudicator: Sherry Liang

Date: February 25, 2011

Citation: 2011 HRTO 411

Indexed as: Clarke v. Canadian Blood Services

1This is an Application filed on November 1, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that the respondent discriminated against her in employment or goods, services and facilities when it advised her that she could not donate blood products because of the increased possibility of complications at the time of blood donation. She alleges that this is discrimination on the ground of disability. The applicant provided a letter from the A/Medical Director with the respondent dated October 17, 2002, advising the applicant of its decision.

2On receipt of the Application, the Tribunal sent a Notice of Intent to Dismiss as it appears that the events giving rise to the Application occurred more than a year before it was filed. The applicant was invited to provide submissions showing why the Application should not be dismissed for delay.

3The applicant made submissions by correspondence on January 4, 2011. She states that the delay in filing the Application was incurred in good faith as she was unable to pursue the matter sooner due to mental exhaustion due to litigation arising out of a serious automobile accident in 1997. She states that the “legal wranglings” that she endured as a result of that incident went far beyond what she could have ever imagined. The applicant indicates that although she was unable to pursue the matter until recently, the denial of the right to donate blood has bothered her since the day she received the letter from the respondent.

4The applicant also submits that the discrimination is ongoing in that she is not free to attend at a blood clinic to donate whenever she sees fit. She submits that this is, in essence, a continuing series of ongoing incidents within the meaning of section 34(1)(b). She states that she could easily qualify under that section and “override” the issue of delay by simply attempting to donate blood again. She states that the letter made it clear that she was “indefinitely deferred from donating blood products” and that it is obvious that if she attempted another donation the same problem would occur.

5The letter of October 17, 2002 reads, in part:

This letter is in follow-up to your recent visit at a Canadian Blood Services blood donor clinic on 30^th of August, 2002. You indicated to the screening nurse of having a history of being in a coma in 1997 and that you are suffering from sequelae.

Our Medical Department recently received sufficient information from Dr. Scali confirming the above. Regretfully, we are informing you that you are indefinitely deferred from donating blood products. This decision is based on the increase[d] possibility of complications at the time of blood donation. Your file will be updated to reflect the above information.

DECISION

6Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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.

7Under section 34, the Tribunal has no jurisdiction to deal with an application filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

8As stated in Miller v. Prudential Lifestyles 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.

9In 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.

10The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” or “incidents” to which the Application relates. I find that the decision of October 17, 2002, to refuse the applicant’s offer to donate blood, is the incident for the purpose of section 34(1). It is evident the applicant believes that this decision was made unfairly. She states that she has a head injury. Despite this, she states that her doctor gave her permission to donate and, contrary to what is said in the letter from the respondent, her doctor was never contacted about the matter.

11I do not accept the submission that there is a continuing series of incidents within the meaning of section 34(1)(b), based on the applicant’s assumption that the ban on her donations continues in effect. The Tribunal has stated that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination: see Mafinezam v. University of Toronto, 2010 HRTO 1495, referring to Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON S.C.D.C.). If indeed, there continues to be a ban on donations of blood by the applicant, this is a continuing effect of the decision made in 2002. It is that decision the applicant claims was made on a discriminatory basis. There have been no events since 2002 that could be considered as independent acts of alleged discrimination, making up a series of incidents.

12The applicant may be right that if she were to attempt to donate blood again, she would be refused. On the other hand, given that 9 years have passed since the decision was made, it is speculative to conclude that her medical circumstances today might not lead to a different decision than in 2002.

13I therefore conclude that the Application has been filed 8 years after the incident to which it relates. I also find that the applicant has not provided a reasonable explanation for the delay in filing her Application. She states that she was mentally exhausted as a result of litigation arising from an accident in 1997. Even assuming that the applicant was pre-occupied with other litigation, this does not provide a reasonable explanation for an eight year delay in pursuing her discrimination claim and indeed demonstrates that she was capable of participating in legal proceedings during this intervening period.

14Given my conclusion that the applicant has not established that the delay in filing the Application was incurred in good faith, it is unnecessary to consider whether there is substantial prejudice to the respondent as a result of the delay.

15The Tribunal finds that the Application is untimely and it is dismissed.