Gladys Segura Mosquera v. University of Toronto, 2011 HRTO 464

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gladys Segura Mosquera

Applicant

-and-

University of Toronto

Respondent

DECISION

Adjudicator: Naomi Overend

Date: March 7, 2011

Citation: 2011 HRTO 464

Indexed as: Segura Mosquera v. University of Toronto

WRITTEN SUBMISSIONS

)

Gladys Segura Mosquera, Applicant ) Self-represented

)

1The applicant filed this Application on September 17, 2010 under s. 34 of the Human Rights Code, R.S.O.1990, c. H.19, as amended (the “Code”), alleging discrimination in goods, services and facilities on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin, creed, sex, sexual orientation, marital status and age.

2Although the applicant only names the University of Toronto as the respondent, the Application contains allegations against the Ministry of Education, the Copyright Board of Canada, Annex Property Management, Canada Health Act Division, North York Hospital, Sunnybrook Hospital and Royal Victoria Hospital in Montreal. These allegations concern the period from February 2003 to August 2010.

3On December 2, 2010, the Tribunal sent a Notice of Intent to Dismiss (NOID) on the basis that some of the allegations in the Application appeared to be outside the Tribunal’s jurisdiction (power to decide), either because they involved federally regulated entities or they did not take place in Ontario. A further NOID was sent on January 21, 2011 asking the applicant to also file written submissions on the issue of delay. The applicant filed written submissions on jurisdiction and delay on February 21, 2011.

DELAY

4Section 34 states, in part:

(1) If a person believes that any of her 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

5As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.

6The applicant alleges that, while enrolled at the Faculty of Information Studies from January to May 2004, she was bullied by her professor, his guest lecturer and fellow students. This conduct would clearly be outside the one-year time limit unless the applicant can show that it was part of a series of events, the most recent of which occurred within the one year.

7The applicant indicated that from June 2004 to August 2010 she sent “several communications” to the University administration complaining about the course, but they “refuse to take responsibilities on the wrongdoings of one of their faculties.” Moreover, she attempted to complain about this conduct to the Ministry of Education in February 2010, but discovered “several months” later that the letter had disappeared. When she talked to the officer with the Ministry a few days later, the applicant was told that the Ministry could not help her.

8The Ontario Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19:

To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

9The distinction between “continuing effects of an act of alleged discrimination” and “further acts of discrimination” has been accepted by this Tribunal: See, for example, Mafinezam v. University of Toronto, 2010 HRTO 1495.

10On the face of the allegations in this instant case, the applicant’s only allegations of discrimination against the University are alleged to have taken place in 2004. Since then, her acts have been in the nature of attempts to remedy this original set of alleged discriminatory acts and are more properly characterized as “continuing effects of an act of alleged discrimination.”

11Likewise the applicant’s allegation against Annex Property Management (her landlord from February 2003 to May 2004) is out of time, and her attempts to deal with it by sending a letters to the Privacy Commissioner of Canada (which is, in any event, a federally regulated body) in 2010 do not make these events timely.

12The two sets of allegations against the North York Hospital (May 2004) and Sunnybrook Hospital (December 2008) are also outside the one-year time limit.

13The Tribunal can accept an application that is outside the one-year time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner.

14The applicant’s explanation for the delay in her February 21, 2011 written submissions is that she was unaware of the Tribunal’s existence until she spoke with a private lawyer in August 2010. However, at the time of most of the events (and certainly the ones involving the University of Toronto), the route for enforcing one’s rights under the Code was to file a complaint with the Ontario Human Rights Commission.

15In any event, this Tribunal has stated that, while ignorance of one’s rights may sometimes amount to good faith, it is incumbent upon an applicant to establish that she had no reason to make any inquiries about her rights: See Stewart v. Mitten Vinyl, 2010 HRTO 1628. By attempting to vindicate the harm she believes was done to her in the years since 2004, the applicant has demonstrated that she, in fact, had reason to make inquiries about her rights.

16Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with the untimely allegations against the University of Toronto, Annex Property Management, North York Hospital and Sunnybrook Hospital. It is not necessary to address the issue of prejudice.

EVENTS TAKING PLACE OUTSIDE ONTARIO

17The Tribunal derives its jurisdiction from the Code, which only applies to entities within Ontario. The Tribunal, therefore, has no jurisdiction over matters that took place at the Royal Victoria Hospital, which the applicant identifies as an institution located in Montreal, Quebec. The allegations with respect to that institution are, therefore, dismissed

FEDERAL JURISDICTION

18Prior to serving an application on the named respondents, the Tribunal will only dismiss it as being under federal jurisdiction where it is plain and obvious that the matters do not fall within provincial jurisdiction. In this case, both the Copyright Board of Canada and the Canada Health Act Division, if they are proper entities, are part of the federal government. As part of the federal government, it is plain and obvious that these potential respondents are not provincially regulated. Accordingly, the Tribunal has no jurisdiction to proceed with the allegations against these two entities.

19All of the allegations in the applicant’s detailed answer to question 8 of her Application, which asks the applicant to particularize her allegations of discrimination, are outside the jurisdiction of the Tribunal given the delay and/or the nature of the entities complained against.

20However, in her Application, the applicant provides more allegations in a section entitled “Request for Additional Information,” which she appears to provide by way of background. In order to ensure that everything is addressed, these additional allegations, occurring after her arrival in Canada in 2003 (dates are not given), are as follows:

A lady insulted me on the subway train in Toronto, several of my letters sent by Canada Post’s registered mail disappeared (Canada Post refuses to start an investigation and paid back the whole fees I paid for the service), a security officer at Montreal’s subway station pushed me when waiting for boarding the train, I was the victim of racial profiling at the Toronto airport (the police officer was removing out of the line coloured people to check our luggage. I made her aware of her wrong behaviour), etc, etc.

21None of these allegations are within the jurisdiction of the Tribunal for the reasons discussed above. In light of the failure of the applicant to make allegations that are within the jurisdiction of the Tribunal, the Application is dismissed.