Liana Di Marco v. Bochasanwasi Shree Akshar Purushottam Swaminarayan Sanstha Inc. and City of Toronto, 2011 HRTO 847

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Liana Di Marco Applicant

-and-

Bochasanwasi Shree Akshar Purushottam Swaminarayan Sanstha Inc. and City of Toronto Respondents

DECISION

Adjudicator: Sherry Liang Date: April 29, 2011 Citation: 2011 HRTO 847 Indexed as: Di Marco v. Bochasanwasi Shree Akshar Purushottam Swaminarayan Sanstha

APPEARANCES

Liana Di Marco, Applicant ) Vinay Jain, Counsel Bochasanwasi Shree Akshar Purushottam Swaminarayan Sanstha Inc. (BAPS), Respondent ) Andrew Pinto, Counsel City of Toronto, Respondent ) Ansuya Pachai, Counsel

1This is an Application filed on October 7, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The name of the first respondent is amended in accordance with the Response, and will be referred to here as “BAPS”.

3The Application, which alleges discrimination in the provision of goods, services and facilities on the ground of disability, arises out of events occurring on May 25, 2008. The Tribunal held a hearing by conference call to receive the submissions of the parties on the respondents’ Requests to dismiss the Application for delay. For the reasons below, I find that the Application is untimely, and the applicant has not shown that the delay was incurred in good faith.

BACKGROUND

4In May 2008, a number of buildings in the City of Toronto and area participated in an event called “Doors Open.” On May 25, 2008, the applicant decided to visit the BAPS Shri Swaminarayan Mandir Temple, a Hindu place of worship.

5The applicant states that she had a service dog with her. She alleges that she was told she could not enter the building with her service dog. She alleges that she decided to enter the building with her dog nonetheless but was stopped again. The applicant states that ultimately, she was given a personal tour of the building, which excluded the sacred space and museum. She states that she was forbidden to enter the gift shop with her service dog. She also states that she had a conversation with an organizer, who explained the basis for the exclusion of her dog.

6The applicant complained to BAPS. She also sent a letter to the Mayor of Toronto on June 13, 2008, describing her experience. She concludes by stating that the individual who gave her the tour was a “nice young respectful man”; however, she felt excluded. She stated that “the folks were most polite” but that she “saw nothing of the sacred space and nothing of the museum.”

7BAPS responded to her complaint by letter June 18, 2008. It apologized to her for any inappropriate actions taken by its volunteers. It explained that in fact, BAPS does allow service dogs in most areas of the complex, but that those places that are considered very sacred have a host of special rules that include a restriction on the entry of any animal. BAPS stated that because of those restrictions, it offers special assistance for those who may need it in order to visit and pray in those sacred areas and unfortunately that was not offered to the applicant, for which it apologized. It invited the applicant to visit the temple again and stated that it would be able to make special arrangements to allow her to enjoy the complex in its entirety.

8The applicant did not follow up on the invitation and it does not appear that there was any further communication between BAPS and the applicant until the Application was filed.

9The City of Toronto (the “City”) also responded to the applicant’s letter to the Mayor, on June 19, 2008. The City states that it received no further communications from the applicant until this Application. It states that until it received the Application, it did not know that the applicant felt the matter had not been satisfactorily resolved.

10In May 2009, BAPS participated in Doors Open again. Organizations participating in this event complete a “Participant’s Agreement” and in its 2009 Participant’s Agreement, BAPS made specific reference to permitting service dogs in most areas, except for sacred spaces used for silent prayer and meditation. It also stated that special arrangements could be made for persons with disabilities and advised such persons to contact the reception desk on arrival at the temple.

11As indicated, this Application was filed with the Tribunal on October 7, 2009. With her Application, the applicant attached a letter from York Community Services (the “Clinic”), as her representative was known at the time, stating that “in early 2009” the applicant requested its advice with respect to human rights complaints against the City and BAPS. The letter, dated September 15, 2009, states that the Clinic advised that it would assist her with preparing and filing a complaint against one respondent. The letter states:

Unfortunately, the work was not completed in a timely manner. This was not the fault of Ms. Di Marco, who provided all necessary documents and information well before the deadline. I was responsible for failing to record the limitation date.

When I informed Ms. Di Marco that her complaint had not been prepared prior to the deadline, she instructed me to proceed, stating that she wished to make the application against both respondents.

12The applicant also attached a letter dated September 22, 2009, to the Tribunal, in which she states

I relied on York Community Services to help with this process as due to health challenges my energy is limited….Unfortunately they lost track of my paperwork and the community legal worker is no longer employed by YCS.

SUBMISSIONS OF THE PARTIES

13In its written submissions, BAPS refers to the fact that the applicant was told the Clinic would assist her in preparing an application against one respondent. The Clinic’s letter does not specify which respondent. If the Clinic was not assisting the applicant with an application against BAPS, however, the applicant cannot rely on the Clinic’s delay in establishing good faith. It was her responsibility to initiate an application against BAPS in a timely manner.

14BAPS submitted that even if the Clinic was to prepare an application against BAPS, there is no evidence that the applicant took any steps to check on the status of her application, such as calling, emailing, or corresponding with the Clinic to ensure that her filing deadline would be met.

15In its oral submissions, BAPS submitted that the applicant has not shown due diligence in pursuing her claim in that she has in fact missed five deadlines and not just the initial time limit for making an application. She did not meet the time for disclosure of documents in the hearing process under Rule 16, she did not respond to the Request for Order within the time set for such a response, she failed to respond to a Case Assessment Direction, and ultimately only provided her response several weeks after the initial date set for the conference call.

16BAPS also submitted that it would incur significant prejudice if the hearing were to proceed. It has identified one person who dealt with the applicant on May 25, 2008, but is unable to locate the others. The persons in charge of the temple during the event were volunteers. After BAPS responded to her concerns in June 2008, it had no reason to believe the applicant was dissatisfied with its response and that there would be legal proceedings and at this point, it is unable to determine who the other persons involved were.

17The City’s submissions on the issue of delay support those of BAPS.

18The applicant’s Response to Request states simply that the applicant requested the assistance of the Clinic in the filing of her Application and unfortunately, due to the inadvertence of the caseworker at the time, and through no fault of the applicant, the application was not filed on time. She states that she relied on her caseworker and she should not be penalized due to the inadvertence of the caseworker.

19She further submits that the main facts of this case are not in dispute and there is no substantial prejudice to the respondents as the issues are primarily matters of legal argument.

20During oral submissions, I asked the applicant’s counsel why there was an absence of any information about what happened between the time the applicant contacted the Clinic and the date of the Application. Counsel stated that he has inquired about the events but was unable to provide more information. He stated that the information available was that the applicant contacted the Clinic, the caseworker should have done a number of things and did not and as a result the Application was filed late.

21I also indicated to counsel that it may be relevant to my determination on the timeliness of the Application to know against which of the respondents the Clinic agreed to represent the applicant. Counsel was unable to provide that information, stating that at the time of the hearing, the applicant wished to proceed against both respondents. He also indicated that in his understanding, the applicant believed the Clinic to be dealing with both respondents. The applicant was not present on the conference call.

22I also asked the parties whether, in addition to the Tribunal’s decisions in this area, there may be decisions of the courts that deal with whether a solicitor’s negligence provides a basis for extending a time limit in civil litigation. Counsel agreed that the issue is contextual and that a number of factors are relevant, including prejudice and whether the claim has a reasonable prospect of success. Counsel for BAPS submitted that it should not be enough to assert that it is the solicitor’s fault, but that the factual context must be assessed to allocate responsibility between a lawyer and his or her client.

DECISION

23Section 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.

24Under section 34, the Tribunal has no jurisdiction to deal with a complaint 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.

25The Tribunal has stated, in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, that 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.

26In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justify exercising the discretion under section 34(2). See Miller, above. In 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.

27In this case, the explanation provided for the delay is that the applicant was relying on the Clinic to file the Application. In essence, she takes the position that the Clinic’s negligence in failing to comply with the statutory deadline is a reason that should amount to “good faith” under section 34(2).

28I have reviewed some court decisions dealing with similar issues. Under section 2(8)(b) of the Family Law Act, R.S.O. 1990, c. F.3 (“the Act”), the time for initiating certain proceedings may be extended by the courts where, among other things, the delay was incurred “in good faith”.

29It appears that in some circumstances, the court has accepted a solicitor’s negligence as meeting the “good faith” requirement. See, for example, Curtner v. McNally, 2002 CanLII 2747 (ON S.C.). In Curtner, there was evidence before the court about what steps were taken by the plaintiff and when, and it appears that there was a period of time leading up to the expiry of the limitation period during which counsel for the plaintiff and defendant exchanged correspondence, which ultimately did not serve to resolve the issues.

30There are a number of other decisions interpreting this section of the Act, and it is fair to say that the approach to the interpretation of “good faith” has taken place within the framework of that legislation and of the purposes of that Act, and has differed from the approach taken by this Tribunal to section 34(2) of the Code. It has also taken place against the background of specific facts.

31Without determining whether a claim of solicitor’s negligence might satisfy the “good faith” requirement under section 34(2) generally, I find there is an insufficient factual context to lead to that conclusion here. First, the Clinic’s own letter of September 15, 2009 states that it agreed to help in the preparation of an Application against one respondent only. It was only after the deadline had passed, and being advised of this fact, that the applicant decided she wished to proceed against both. During the conference call, counsel for the applicant (who is with the same Clinic) suggested that the applicant always intended to proceed against both respondents. This was the first time this apparent difference was ever raised, despite the fact that counsel for BAPS referred specifically to this statement in the September 15 in the Request for Order.

32The applicant did not file a timely Response to the Request for Order after it was delivered to her. She did not file the Response within the deadline for filing additional material set by the Tribunal’s Case Assessment Direction of October 15, 2010. Even when she filed a Response, following the first conference call in this matter on November 22, 2010, which was adjourned, she did not challenge the specific facts relied on in the Request.

33Based on the applicant’s own assertions, which are contradictory, it is not possible to know which respondent the Clinic agreed to assist with at the time the applicant consulted it. Even if a solicitor’s negligence should be taken into account, the Tribunal cannot determine to which respondent this factor may be applicable. There is almost no information about the communications between the Clinic and the applicant, when they occurred or were initiated, and whether there was any discussion of timelines for filing the Application or taking the next steps.

34In the circumstances, I cannot find that the applicant has provided a reasonable explanation that amounts to “good faith” as interpreted by the Tribunal. The mere assertion that the Clinic agreed to assist with the application against one of the respondents, and that the caseworker neglected to observe the limitation period, is not a sufficient basis for me to conclude that the applicant has acted with all due diligence in pursuing her claims against the respondents.

35Although, in light of my finding, it is not necessary to consider whether any substantial prejudice will occur to any person affected by the delay, I have considered the respondents’ submissions in this regard, and I am also satisfied that there would be substantial prejudice. Although in some circumstances, a delay of one and a half years would not lead to such prejudice, the events here occurred on a weekend when BAPS received some 17,000 visitors. Although the individual who agreed to give the applicant a personal tour of the temple has been identified, other individuals involved cannot be located. It is true that some of the essential facts are not disputed, but in an Application where, as the applicant states, “complex questions regarding the intersection of equally important and valid fundamental rights and freedoms” are raised, it would be unfair for the respondents to proceed with this significant evidentiary impediment.

36I find that section 34(2) does not apply and the Application is dismissed.