Kimberly Thornton v. Ernescliffe Housing Co-op and Apollo Estrada, 2011 HRTO 470

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberly Thornton

Applicant

-and-

Ernescliffe Housing Co-op and Apollo Estrada

Respondents

DECISION

Adjudicator: Sherry Liang

Date: March 7, 2011

Citation: 2011 HRTO 470

Indexed as: Thornton v. Ernescliffe Housing Co-op

1This is an Application filed on December 19, 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 discrimination in housing on the grounds of sexual orientation and receipt of public assistance.

2On January 13, 2011, the Tribunal issued a Notice of Intent to Dismiss. The Tribunal advised the applicant that the Application appeared to be outside its jurisdiction because, based on the allegations, it was filed more than a year after the alleged incident of discrimination or series of incidents. The Tribunal also indicated that a review of the Application fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondents. The applicant was directed to provide written submissions responding to these issues, by February 14, 2011.

3The applicant responded with a letter dated January 24, 2011. The letter stated that the applicant receives a disability pension and has a mental illness. The applicant alleges “ongoing harassment” and an “abusive situation” at the respondent Co-op. However, he does not provide specifics about the events alleged to constitute the harassment. The applicant also stated that he has sought help to deal with his situation and is still waiting for counselling or psychological support. He states that it has been “overwhelming” for him, and that the delay is a culmination of “these circumstances”.

4In a Case Assessment Direction dated February 15, 2011, the applicant was directed to provide further information about the circumstances. He was directed to state how the actions of the respondent Co-op amount to discrimination or harassment on the grounds of sexual orientation or receipt of public assistance, what actions of the respondent Estrada amount to discrimination or harassment and when and where they occurred, and how this actions amount to discrimination or harassment on the grounds of sexual orientation or receipt of public assistance.

5The applicant was also directed to provide medical evidence, if any, supporting his inability to make this Application in a timely manner.

6The applicant has not responded to the Case Assessment Direction and the time for doing so has passed.

7On my review of the Application and the further submissions of the applicant on January 24, 2011, I find that the Application has been filed more than a year beyond date of the last incident of discrimination or last incident in a series.

8In answer to Question 7(c) on the Application form, the applicant states that the date of the last event is December 12, 2009. Nowhere in his narrative does he identify an alleged incident of discrimination which occurred on that date. He states that some events happened between November 16, 2007 and October 27, 2009, which he describes as “ongoing harassment and assault” but does not provide details of the ongoing harassment and assault other than to say that the respondent Estrada committed the assault. He states that on two occasions, February 2009 and July 2009, he was lied to about Co-op board meetings, but it is not clear how this relates to an allegation of a violation of the Code.

9The applicant suggests that the Co-op wrongfully failed to instruct him to submit his complaints in writing until November 2007. Elsewhere, he states that at a board meeting in March 2008, the respondent Co-op “did not take sufficient action in my defense or follow co-op bylaws.” Some of the actions described do not involved the respondents but rather, members of the Toronto Police Service.

10Section 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.

11Under 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.

12As 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.

13In 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 See: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

14The threshold question in applying section 34 to the circumstances here is what constitutes the “incident” or “incidents” to which the Application relates. I find, on the basis of the material before me, that the last incident of alleged discrimination by the respondent Co-op occurred in July 2009. I surmise that the last incident of alleged discrimination by the respondent Estrada may have been August 2009 since the applicant states he called the Toronto Police Service in that month about an assault by this respondent. On a generous interpretation, based on his broad statement that there was “ongoing harassment and assault” between November 2008 and October 2009, the last incident occurred in October 2009.

15Despite stating in his Application that the last incident was December 19, 2009, and despite being asked to provide more particulars about the actions or events alleged to be discriminatory, the applicant fails to identify any incident of alleged discrimination by the respondents on this date.

16I therefore conclude that the Application has been filed more than a year after the incident or incidents to which it relates. I also find that the applicant has not provided a reasonable explanation for the delay in filing his Application. He suggests that he has been seeking psychological counselling and has a mental illness, but has not provided any evidence in support of this which would provide a reasonable explanation for the delay in filing the Application, despite being invited to do so.

17Given 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 respondents as a result of the delay.

18In sum, the applicant has been given several opportunities to provide further information establishing that the Application was filed within a year of the last incident of discrimination or, if it was not, that the delay was incurred in good faith within the meaning of section 34. On the basis of the material before me, I find that the Application is untimely and it is dismissed.