Cashin v. Mount Sinai Hospital, 2011 HRTO 799

Human Rights Tribunal of Ontario

B E T W E E N:

Robert Cashin Applicant

-and-

Mount Sinai Hospital Respondent

DECISION

Adjudicator: Eric Whist Date: April 21, 2011 Citation: 2011 HRTO 799 Indexed as: Cashin v. Mount Sinai Hospital

APPEARANCES

Robert Cashin, Applicant ) Self-represented Mount Sinai Hospital, Respondent ) Maria McDonald, Counsel

1This Application was filed on January 15, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the "Code"). The Application alleges discrimination with respect to goods, services and facilities on the grounds of disability. Specifically, the Application alleges that several dentists and administrative staff employed by the respondent provided discriminatory service to the applicant during the period December 2004 to September 2008.

2The respondent filed a Response on May 5, 2010 denying that it had discriminated against the applicant. The respondent also filed a Request for an Order During Proceedings ("RFOP") on May 5, 2010 requesting that the Application be dismissed on the basis that it was not filed within the one-year time limit as required under section 34(1) of the Code and that the applicant had not shown that the delay in the filing of his Application was incurred in good faith as required by section 34(2) of the Code.

3On December 23, 2010 the Tribunal issued an Interim Decision, 2010 HRTO 2530, setting this matter down for a 2 hour conference call hearing to consider whether the Application should be dismissed for delay.

4At the hearing on March 15, 2011 I heard evidence from the applicant followed by submissions from both parties. In making my decision I have also considered information relevant to the issue of delay that was contained in the Application and the supplementary Application materials that were filed by the applicant on March 15, 2010 as well as the parties' written submissions that were filed in March 2011.

PRELIMINARY ISSUE

5At the hearing the applicant concluded his brief oral submissions by stating that "I am dropping my case" before hanging up the telephone thus ending his participation in the conference call. On March 21, 2011 I issued a Case Assessment Direction ("CAD") in which I stated that the applicant had to formally advise the Tribunal in writing of his intentions in relation to his Application given his statement that he was going to drop his case and his subsequent withdrawal from the hearing. The CAD stated that the applicant had ten days to provide a clarification of his intentions otherwise the Tribunal would deem that he had abandoned his Application and the Tribunal would close his file.

6On April 1, 2011 the applicant faxed a letter to the Tribunal in response to the CAD stating, in part, that the applicant wished to be treated fairly and wanted time to contact a lawyer.

7The applicant does not clearly state, as requested, his intentions with regards to his Application. However, I am prepared to accept that he does wish to proceed with his Application based on the fact that he did reply to the CAD and did state an intent to speak a lawyer which I find to be indicators of a continued interest in his Application.

EVIDENCE

8A brief summary of the evidence is as follows. The applicant testified that he had an appointment with the respondent for dental work on September 20, 2008, an appointment that was eventually cancelled. The applicant testified that because he believed that this appointment would be cancelled, as other appointments had been, he decided to approach the Ontario Human Rights Commission (the "Commission") prior to September 20, 2008 to discuss filing a complaint about the respondent's actions including its practices around the scheduling of appointments.

9The applicant testified that on September 18, 2008 he met with Bruce Best who he understood to be an intake person with the Commission. The applicant testified that Mr. Best told him that he might have grounds for a human rights complaint case against the respondent. The applicant testified that shortly after this meeting he returned to drop off an envelope to Mr. Best containing original copies of his appointment cards and other correspondence that he had received from the respondent. The applicant testified that he did not hear from Mr. Best for several months and that when he telephoned Mr. Best he learned that Mr. Best had not received the appointment cards and the other materials.

10The applicant testified that he subsequently wrote to Mr. Best in March 2009. The applicant testified that Mr. Best then wrote to him in April 2009 to explain that he was not an employee of the Commission but rather a lawyer for the Human Rights Legal Support Centre ("HRLSC"). The HRLSC's mandate is to provide human rights legal services to individuals who believe they have experienced discrimination including providing legal assistance to persons filing Applications at the Tribunal. The applicant testified that Mr. Best explained in his April 2009 letter the difference between the Commission and the HRLSC and also indicated that the applicant had one year in which to file an Application. The applicant testified that he had this letter but it was not in evidence before me.

11The applicant testified that he subsequently sent Mr. Best an Application he had prepared in July 2009 asking Mr. Best to file this Application on the applicant's behalf. I had before me a letter dated July 31, 2009 from the applicant to Mr. Best stating "Dear Bruce: Please file this for me before September 20, 2009. Thanks!".

12The applicant testified the did not hear from Mr. Best and subsequently wrote to Mr. Best on September 9, 2009 asking Mr. Best to confirm that he had filed the Application prior to September 20, 2009 as the date of the last appointment that the respondent scheduled was September 20, 2008. It is relevant to note here that, after the hearing, the applicant filed with the Tribunal a copy of his September 9, 2010 letter.

13The applicant testified that sometime after September 20, 2009 Mr. Best emailed him with comments as to how he could expand on his Application. The applicant testified that the email did not address the issue of who should file the Application. The applicant testified that he subsequently decided that he would file his Application. Under cross examination the applicant stated that Mr. Best had stated in his email that the applicant could file an Application on his own and had not stated that Mr. Best would file the Application. The applicant further testified that after receiving the email response from Mr. Best he did not expect that Mr. Best would file his Application. This email was not before me but the applicant testified that he had a copy.

14The applicant testified that the subsequent delay in filing his complaint from September 2009 to January 15, 2010 was solely because of his illnesses. He testified that he had been ill for three years, that he had Hepatitis "C" and depression and had been on medications including morphine and interferon that had made it difficult to manage his affairs and had affected his ability to proceed with his Application.

ANALYSIS AND DECISION

15Section 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. Section 34 specifically states:

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.

16There was no dispute that the last incident of alleged discrimination was the cancellation of the applicant's appointment on September 20, 2008 and that the Application was filed on January 15, 2010. The applicant has not met the requirements for filing his Application within one year of the last incident of alleged discrimination. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (Miller), the Tribunal stated that 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.

17The Code states in section 34(2) that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. In Miller the Tribunal also set out what is required to establish that delay has been incurred "in good faith":

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 applications to provide a reasonable explanation for the delay

18I am prepared to accept that the applicant was attempting to pursue his rights under the Code during the one year period following the alleged last incident of discrimination on September 20, 2008. The respondent submitted that the applicant provided slightly conflicting events of exactly what he did during this year that undermine the credibility of his claims. I agree there is an issue of the consistency in the applicant's account of events but I am satisfied that the basic elements of this account are credible.

19I accept that initially the applicant mistakenly believed that Mr. Best worked for the Commission and that during the year believed that Mr. Best could facilitate the filing of his Application. I accept that the applicant met with Mr. Best in September 2008, made further contact with Mr. Best in April, July and September 2009.

20The respondent also raised an issue as to how diligent the applicant was during these 12 months but I find this to be a less significant issue as it relates to what happened during the 12 month period the applicant had to file his Application pursuant to section 34(1).

21I am concerned that I do not have before me two relevant documents. I do not have Mr. Best's May 2009 letter and his September 2009 email to the applicant both of which may have clarified what the HRLSC communicated to the applicant about the respective roles of the HRLSC and the applicant in the filing of an Application. Part of my concern is that it was not clear why I did not have these documents. The applicant provided a copy of his July 31, 2009 letter to Mr. Best with his Application and a copy of his September 9, 2009 letter to Mr. Best after the hearing had finished to support his case and yet did not provide these other documents even though he stated they were in his possession.

22However, my decision in this case does not rest on what happened in the period September 20, 2008 to September 19, 2009 and what may have been communicated during this period but rather what happened after September 19, 2009. The issue is whether the applicant has a reasonable explanation for the delay in filing his Application after the one year time limit for the filing of his application had lapsed on September 19, 2009.

23The applicant testified that he knew after receiving the email from Mr. Best that Mr. Best was not going to file his Application and that he would have to file the Application. He testified that the sole reason he did not file his Application until January 15, 2010 was because of illness.

24I do not find the claim that the applicant was ill to be a reasonable explanation for the delay in the filing of the Application until January 2010, a delay that occurs at a time the applicant clearly knew of the requirement that an Application be filed in a timely manner. As stated in the Tribunal's decision in Dionne v. Toronto (City), 2011 HRTO 317 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.

25The applicant testified that he was ill with Hepatitis C and depression and was taking medications that affected his ability to function and I accept that the applicant's condition caused him difficulties. However, I do not find this oral testimony constitutes persuasive medical evidence that his condition was so debilitating that it prevented him from pursuing his rights under the Code in a more timely fashion. I do not find that the applicant's submissions establish that the applicant has met the fairly high onus the Tribunal requires to show that the delay in the filing of his Application was incurred in good faith pursuant to section 34(2) of the Code.

26As I have found that the delay was not incurred in good faith, I do not need to consider the issue of whether the respondent experienced prejudice as a result of the delay.

22As a result, the Application is dismissed for delay.