Sheikh v. Gager, 2011 HRTO 946

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammad Sheikh

Applicant

-and-

Mike Gager

Respondent

DECISION

Adjudicator: Eric Whist

Date: May 18, 2011

Citation: 2011 HRTO 946

Indexed as: Sheikh v. Gager

WRITTEN SUBMISSIONS

Mohammad Sheik, Applicant ) Anita Balakrishna, Counsel

1This Application was filed on August 20, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) and alleges discrimination in housing based on colour.

2The Application alleges that the personal respondent, an inspector from the Office of the Fire Marshall, provided false information when testifying as a witness in an Ontario Court of Justice proceeding on February 19, 2010 and this led to the applicant being convicted and fined under the Fire Protection and Prevention Act 1997, S.O. 1997, c. 4 (“FPPA”). The Application alleges that the personal respondent did this because the personal respondent chose to believe two of the applicant’s tenants who are, like the personal respondent, white, when he inspected the applicant’s premises for possible violations under the FPPA.

BACKGROUND

3On October 22, 2010, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) to the applicant stating that the Application appeared to be outside of the Tribunal’s jurisdiction because the Application appeared to be challenging the decision or outcome of an adjudicative process. The NOID invited the applicant to file written submissions within thirty days of the date of the letter. On October 25, 2010 the applicant provided submissions but failed to address whether the conduct of the personal respondent in court constituted a service under the Code.

4In an Interim Decision dated February 16, 2011, 2011 HRTO 345, the Tribunal asked for further submissions from the applicant on the specific issue of whether the personal respondent’s role as a witness at a hearing can be considered a service within the meaning of the Code given the Tribunal’s decisions, particularly Surh v. Toronto (City), 2009 HRTO 1700.

5On March 24, 2011 the applicant’s counsel filed submissions with the Tribunal on behalf of the applicant. The applicant submits he is not alleging that the personal respondent’s role as a witness in Court should be considered a service but rather that the personal respondent’s conduct and actions towards him during the investigation of an alleged violation of the FPPA was a service within the meaning of the Code. The applicant submits the personal respondent had a duty to act in a non-discriminatory manner at all stages of his investigation of a potential violation and that he did not do so.

6In an Interim Decision dated April 15, 2011, 2011 HRTO 731, the Tribunal accepted the applicant’s clarification that it was the personal respondent’s conduct and actions during his September 11, 2008 investigation that was the basis for his Application. However, the Interim Decision noted that the applicant’s clarification presents another jurisdictional issue. If the incident of alleged discrimination occurred in September 2008, the Application was filed outside the one year time limit for filing an Application time set out in section 34 of the Code. The Interim Decision directed the applicant to provide written submissions as to why the delay in the filing of his Application was incurred in good faith. The Tribunal received written submissions from the applicant’s counsel dated May 11, 2011.

ANALYSIS AND DECISION

7Section 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.

8The applicant submits that he and the personal respondent continued to interact after September 11, 2008, which is when the personal respondent first inspected the applicant’s premises. The applicant submits that the personal respondent returned to his house in December 2008. The applicant submits that he spoke to the personal respondent by telephone in or around the second week of February 2009 when the applicant received a notice to appear in court for alleged violations of provisions in the FPPA. The applicant submits that the personal respondent’s decision in February 2009 to proceed with prosecuting the applicant and not to exercise his discretion to refrain from such prosecution constitutes a further act of discrimination.

9Even if I accept the applicant’s claim that the last act of discrimination occurred in or around the second week of February 2009, the Application was filed on August 20, 2010, over 18 months later. Accordingly, the applicant has not met the requirements for filing his Application within one year of the last incident of alleged discrimination, as required under section 34(1)(a).

10The 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.

11The applicant submits that the Tribunal’s decision in Lutz v. Toronto (City), 2009 HRTO 1137 holds that in order to establish that a delay has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive and that the applicant cannot be willfully blind to the need to make inquiries about his or her rights. The applicant submits that Lutz, at para. 8, further holds that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith” but that it is not enough for a party who must establish good faith to say he or she was ignorant of their rights. They must also establish that they had no reason to make inquiries of those rights.

12The applicant submits that the delay in filing his Application was incurred in good faith because he was unaware of the existence of a human rights system in Ontario until March 2010 when he learned of the Tribunal through searches on the internet.

13The applicant submits that he was unaware of a human rights system in Ontario because although he emigrated to Canada 17 years ago, he did not learn much of the legal system in Canada because of language barriers and the fact that he was originally from a place with a very different legal system and where proper human rights systems do not exist. The applicant submits that he had no dealings with the Canadian legal system until he had to respond to being charged under the FPPA.

14The applicant submits that there is extensive research to show the difficulties refugees and immigrants have in attempting to access the legal system in Ontario, including the difficulties linguistic minorities and immigrants have in accessing information about legal systems, legal rights and legal services. The applicant refers to the Law Foundation of Ontario’s 2008 Report entitled, “Connecting Across Language and Distance”, as providing well documented research into some of these difficulties.

15The applicant submits that the Tribunal should recognize the barriers the applicant faced in accessing information about rights and legal remedies and that the applicant acted honestly and with no ulterior motive and was not wilfully blind and took steps as soon as he became aware to file his Application. He filed his Application six months after the deadline. The applicant submits that if he had known that he had the option to file an Application with the Tribunal at the time of the alleged discrimination, he would have filed much sooner.

16I am not satisfied that the applicant’s delay in filing his Application with the Tribunal was incurred in good faith. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was 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 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 justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

17In my view, the applicant has not met the onus to provide a reasonable explanation for the delay. The applicant relies on an argument that he was unaware of his rights to file an Application because of his ignorance of the human rights system in Ontario and that this was because of the cultural and language barriers he has faced as an immigrant.

18I accept that the applicant may have had some degree of difficulty in accessing legal and other services because of language barriers,and he may not have been familiar with human rights systems in Ontario. However, the applicant was able to determine in March 2010, through his own internet searches, that the Tribunal existed. He was, at that time, capable of determining he had rights under the Code and that he could pursue an Application with the Tribunal. He was able to file his Application five months later. The applicant has not shown why he could not have acted with due diligence and undertaken this effort earlier, within the one year the Tribunal allows for parties to file an Application. As the Tribunal states in Mercer v. Vic Priestly Contracting, 2010 HRTO 707, at para. 10, “The one-year timeframe established by the legislation should provide most individuals, absent exceptional circumstances, ample time to learn about the process if serious inquiries are made.”

19The information before me is that the applicant was capable of making a serious inquiry into his rights, an inquiry that he undertook more than one year after the alleged incidents of discrimination. I am not persuaded that the barriers the applicant has described prevented him from pursuing his rights under the Code in a more timely fashion. In my view, the applicant did not act with due diligence. 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.

22The Application is dismissed for delay.