Carolanne Kotsopoulis v. Casino Rama Services Inc., 2011 HRTO 811

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carolanne Kotsopoulis Applicant

-and-

Casino Rama Services Inc. Respondent

DECISION

Adjudicator: Maureen Doyle Date: April 21, 2011 Citation: 2011 HRTO 811 Indexed as: Kotsopoulis v. Casino Rama Services

APPEARANCES

Carolanne Kotsopoulis, Applicant ) Brenda Culbert, Counsel Casino Rama Services Inc., Respondent ) Stephen Shamie, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging that on March 27, 2008, the respondent discriminated against the applicant in the provision of services and facilities on the basis of sex. She filed her Application on July 3, 2009.

2The respondent requested that the Application be dismissed because it was filed after the expiry of the one-year time limit for filing applications. A hearing was conducted to deal with this preliminary issue and I heard evidence from three witnesses: the applicant, her doctor, Dr. D.K. Loukes who is a general practioner, and Gerald Ian Campbell, a tax specialist who provided assistance to the applicant and who acted as her trustee for purposes of Ontario Disability Support Plan benefits.

3For the reasons that follow, the Application is dismissed. The Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last alleged incident of discrimination and the delay was not incurred in good faith.

Background

4The applicant is a transgendered person who alleges that on March 27, 2008, security guards at the respondent’s casino forced her to leave the women’s washroom and humiliated her in front of other players and staff. She alleges that she was then followed and monitored by guards at the casino and that she ultimately left the casino at approximately 11:30 p.m. She filed her Application just over 15 months later.

5The applicant testified that she was not able to complete her application within the time limits as she had personal problems and an anxiety disorder. The applicant’s doctor testified that the applicant has been diagnosed with a learning disability, Gender Identity Disorder, chronic anxiety, chronic pain, Hepatitis C, and Bipolar Depression. The applicant submits these disabilities are closely connected to her inability to file her Application in time.

6The applicant submits that the evidence, including the testimony of Dr. Louckes, indicates that her thinking is tangential and she is very disorganized. Further, she submits that she is unable to manage her financial affairs and requires daily assistance, which was supported by Mr. Campbell, who she asked to be her trustee for purposes of her Ontario Disability Support Plan payments. She also claims that she had difficulty reading and understanding documents and had no community support in order to complete forms.

7Further, the applicant submits that she has mental health diagnoses and further problems due to a car accident and that the trauma from the accident affected her seriously. She also submits that she was a victim of domestic violence and that the incident at the casino further traumatized her, resulting in her being unable to contact the Human Rights Legal Support Centre until she was mentally able to cope.

8The applicant submits that there is no substantial prejudice to the respondent if the Tribunal proceeds with this application as there will be records of the incident and she is only “slightly” beyond the one year period to file her application.

9The applicant submits that she should be permitted to file her Application outside of the time limits as the delay was due to medical conditions and personal circumstances which posed a barrier to her ability to file on time. In support of her arguments, she cites Tribunal decisions Lutz v. Toronto (City) 2010 HRTO 769 (“Lutz”) and Kelly v. CultureLink Settlement Service 2010 HRTO 977 (“Kelly”).

10The respondent submits that there is no reasonable explanation for the applicant’s delay. This is not a case where the applicant was unaware of her rights or where she was unrepresented.

11The respondent argues that because she took several steps to have her issue addressed in March and April 2008, namely by contacting the security department at the casino the day after the incident and advising them she would be filing a Human Rights Application, also contacting the police, the Ontario Lottery and Gaming Corporation (“OLGC”) and a lawyer, and by taking further steps before the expiry of the one-year limitation period by contacting the Ontario Human Rights Commission (“OHRC”) and the Human Rights Legal Support Centre, it cannot be said that the delay was incurred in good faith. Moreover, the respondent argues that as she had retained counsel, counsel should have ensured that the limitation period was met. The respondent also submits that the fact she was able to participate in criminal proceedings against her former domestic partner indicates that she was able to participate in legal proceedings.

12With regard to the question of prejudice, the respondent submits that memories will have faded and the respondent may no longer have relevant documentation in its possession.

13In support of its arguments, the respondent cites Tribunal decisions Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, Marchand v. St. Michael’s Hospital, 2009 HRTO 566, Gagne v. Maximum Mining, 2010 HRTO 1493, Lafleur v. Kimberly Scott, 2009 HRTO 1141, Doyle v. Canarm, 2009 HRTO 674, Quimado v. S. A. Armstrong Ltd., 2009 HRTO 110, Persad v. Toronto Transit Commission, 2009 HRTO 325, Esanu v. Georgetown Non-contact Hockey League, 2009 HRTO 579, Ababio v. Humber River Regional Hospital, 2009 HRTO 286, Chassie v. Niagara Regional Police Services, 2009 HRTO 999 and Dokis v. Lambton (County), 2009 HRTO 975.

Analysis

14Section 34 of the Code provides that an individual may file an application alleging infringement of his or her rights under the Code within one year of the incident or the last incident in a series. It also provides that an application may not be made to the Tribunal outside of that time limit unless the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no one would be substantially prejudiced by the delay:

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.

15Under 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. The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner.

16The applicant has indicated that her health concerns, including her mental health issues, and her personal circumstances, did not permit her to file her Application within the statutory time limit. In considering the evidence before me regarding her mental health issues and her personal circumstances, however, I do not find that the evidence establishes on a balance of probabilities that these issues prevented her from filing an Application within the one-year time period and, therefore, I find that the delay was not incurred in good faith.

17The applicant herself took several steps in the days immediately following the incident to assert her rights, including her rights under the Code. She advised the Security department at the casino that she would be filing an Application with the Human Rights Tribunal. According to her evidence she called two police forces regarding the incident, she contacted the OLGC to complain, and by April 4, 2008, she advised the casino that she had retained counsel to deal with the matter.

18The applicant also subsequently contacted the OHRC and by October 2008, had contacted the Legal Support Centre. She indicated that she spoke with a lawyer at the Legal Support Centre in December 2008 and then again in February 2009. She also indicated that she received a letter from the Legal Support Centre in March 2009 and that someone read it to her. She testified that the letter spoke about the events at the casino and that she signed and returned it within a couple of weeks, but she could not recall exactly when.

19Mr. Campbell also testified that he has assisted the applicant with trying to balance her books, as this is something she finds difficult. He described her as “not financially astute”. He stated that since becoming her trustee, he may see her three times per day. He commented that she has a limited ability to focus on the task at hand and is easily distracted. In 2008-2009, he testified that she would “pop in” and ask him for advice once or twice per week, or sometimes even daily. He testified that his wife also helps the applicant resolve personal issues. He has helped her fill in forms, for example, relating to housing.

20In the context of her level of activity in acting to enforce her rights, however, I am not persuaded that the fact the applicant asked Mr. Campbell to be her trustee for purposes of her ODSP payments and has relied upon him for advice and assistance indicates that she was, as she claims, incapable of filing her Application within the one-year statutory time limit. I do not find that her level of activity in asserting her rights is consistent with an inability to file an Application with the Tribunal within the statutory time period.

21Dr. D. K. Loukes, a general practitioner, provided a report dated June 9, 2010 and testified at the hearing. The applicant was his patient from February 2007 to February 2010, but she was seen only for medical support around her gender transitioning. He commented that the applicant was cognitively disorganized and her thoughts were tangential, with these tendencies being aggravated by stress. While he stated that her conditions could make it difficult for her to file “complex legal papers within a set period of time”, he had “no knowledge or record of specific psychosocial issues” during the relevant time period.

22Dr. Loukes noted that the applicant had missed numerous appointments (under one-quarter of the appointments) and that he found her distracted at approximately one-third of her appointments, but he indicated he was not treating her for psycho-social issues. He did not recall the applicant telling him that she was filing a complaint against the casino, nor was he aware that she had retained a lawyer immediately after the incident. He was also unaware of the details of her complaint to the police, and did not know that she had contacted a lawyer regarding the matter in October 2008 and in February 2009.

23In his report, Dr. Louckes also provided reports from Dr. Rodway-Norman, a psychiatrist who saw and assessed the applicant in connection with her psycho-social issues at the relevant time period (September 2008). Dr. Rodway-Norman described her mood state as “reasonable” and stated that she reported “doing quite well” despite the fact that assault charges had been brought against her former partner. He also noted she was seeking “legal compensation in connection with the event at the casino, but stated that he did not believe she was experiencing “omnipresent anxiety” or “avoidance symptoms” or “affective numbing”.

24With regard to the medical evidence presented on behalf of the applicant, I do not find that it supports a finding that her medical conditions prevented her from filing her Application on time. Even though he suggests that her conditions “could” lead to difficulty dealing with legal matters within a time limit, Dr. Louckes admittedly had limited involvement with the applicant in regard to her psycho-social issues and very limited awareness of her actions following the incident.

25While I appreciate the fact that the applicant has testified that she felt closer to Dr. Louckes, it was Dr. Rodway-Norman who saw and assessed her in connection with her psycho-social issues and it is his report which I find most relevant to the question of the impact of her disability on her ability to file her Application in time. I do not find that Dr. Rodway-Norman’s report supports a finding that her disability prevented her from filing her Application on time.

26I note at this point that I do not accept the respondent’s argument that the fact the applicant was involved in criminal legal proceedings involving a former partner is proof that she was able to file her Application on time. Participation in criminal legal proceedings regarding domestic violence bear little resemblance to the efforts required to file an Application at the Tribunal and I do not find the comparison apt. I also note, however, that when Dr. Rodway-Norman assessed her in September 2009, he was aware of the fact that assault charges had been brought against her former partner.

27I also do not find that the evidence establishes that the presence of a learning disability has, as she claims, rendered the applicant incapable of filing her application on time. While she found reading and completing written material difficult, she has also indicated that she had the assistance of her aunt (with whom she lived) and her mother in dealing with written material she received from the Legal Support Centre. She testified that she returned documents to the Legal Support Centre within two weeks, which indicates that she was able to deal with documentation in a reasonably timely fashion, despite the presence of a learning disability.

28With regard to the applicant’s assertion that a car accident has also had a negative impact on her ability to file her Application on time, I am not persuaded that there is sufficient evidence before me to make such a finding. As noted above, the applicant was quite active in pursuing her rights and the evidence does not support that any disability inhibited her from taking the necessary steps to file her Application within the statutory time limit.

29The applicant relies on Lutz, where the Tribunal found the medication the applicant was taking for epileptic seizures may have contributed to his ongoing difficulty with cognition and memory, making him totally dependant upon his wife who had undertaken legal proceedings in other regimes on his behalf. The Tribunal held that “the combined effect of his disability and his medications had rendered him unable to take [the necessary steps to file his Application in a timely manner]”, which constituted a good faith reason for the delay.

30As noted above, however, though there is some evidence in this case that the applicant has a tendency to tangential thinking and disorganization, considering the medical evidence and the evidence regarding the applicant’s level of activity in pursuing her rights, I have found that the evidence before me does not establish that the applicant’s disability rendered her unable to take the necessary steps to file her Application within the statutory time limit.

31The applicant also relies on Kelly where the Tribunal found a good faith basis for the delay in filing an application because the nature of the applicant’s disability was closely connected to an inability to file the Application within the statutory time limits, and because the applicant’s personal circumstances, such as poverty, living alone and bad health, were exacerbating factors. In that case, however, medical evidence indicated that the applicant had a reduction in cognitive function for days or weeks at a time, and a psychiatrist was regularly involved in the applicant’s efforts to access benefits and legal rights in different regimes. As noted above, the medical evidence in this case simply does not support such a direct connection between symptoms of a disability and/or the applicant’s personal circumstances, and an inability to engage the Tribunal’s process in a timely way.

32Finally, I note that the applicant provided very limited evidence with respect to the period between April and July 2009. However, based on the applicant’s medical and personal circumstances generally and the fact that she had legal representation during this time, I find that this period of delay was not incurred in good faith.

33For all these reasons, I am not satisfied that the applicant’s delay in filing her Application was incurred in good faith.

34In view of my finding with regard to the applicant’s reasons for delay, it is not necessary for me to consider the respondent’s submissions regarding substantial prejudice.

35I therefore find that the circumstances in subsection 34(2) do not apply to the facts before me. This Application cannot proceed under subsection 34(1) of the Code and is therefore dismissed.