Millien v. Toronto Police Services Board, 2012 HRTO 1034

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Felix Millien Applicant

-and-

Toronto Police Services Board, William Blair, John Moreira, and Wayne O’Riordan Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: May 24, 2012 Citation: 2012 HRTO 1034 Indexed as: Millien v. Toronto Police Services Board

WRITTEN SUBMISSIONS

Felix Millien, Applicant Self-represented

Toronto Police Services Board, Respondent David Gourlay, Counsel

William Blair, John Moreira and Wayne O’Riordan, Respondent Naomi Calla and Lisa Cabel, Counsel

Introduction

1The purpose of this Interim Decision is to deal with the respondents’ request to dismiss parts of the Application as untimely, and to order the applicant to produce an arguably relevant document.

BACKGROUND

2On May 25, 2010, the applicant, who self-identifies as a Black male, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to services because of his race, colour, ancestry, place of origin, citizenship, and ethnic origin.

3In his Application, the applicant stated that “[t]his complaint will list 3 incidents that I believe had the elements of racial profiling.” The alleged incidents occurred on November 30, 2009, February 6, 2010 and May 12, 2010. The applicant also listed a number of other alleged incidents of racial discrimination that occurred between 2005 and August 2009, but stated “I never complained as I never wanted to be one of those people who cry racism everytime they are confronted by the police.”

4On August 26, 2010, the organization respondent filed a Response, which denied that allegations of discrimination and stated that the parts of the Application that relate to alleged incidents that occurred prior to the filing of the Application are out of time and should be dismissed. On September 28, 2010, the individual respondents filed a Response, which also denied the allegations of discrimination and stated that the untimely parts of the Application should be dismissed.

5On November 29, 2011, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing is scheduled for May 29, 30 and 31, 2012.

6On December 13, 2011 and January 18, 2012, the respondents filed a Request for an Order During Proceeding to dismiss the untimely parts of the Application.

7The applicant did not file a Response to the Request, but, in response to a Case Assessment Direction that the Tribunal issued on May 1, 2012, he filed a letter on May 14, 2012, which stated that if he was unable to file a Response by the end of the day, he would leave it to the Tribunal to decide whether parts of his Application should be dismissed. The applicant did not file a Response by the end of the day.

TIMELINESS

8The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

9In their submissions, the respondents stated that the alleged incidents of discrimination on November 30, 2009, February 6, 2010 and May 12, 2010 are timely, but that the remaining allegations of discrimination occurred prior to filing of the Application on May 25, 2010, and are therefore outside the one-year statutory deadline and should be dismissed. The respondents noted that the applicant claimed that one incident (a traffic stop) occurred in May 2009, but he did not specify that it was after May 25, 2009, and the Toronto Police Service (“TPS”) has no record of the alleged incident. The respondents also noted that the applicant claimed that another incident (a street stop) occurred in August 2009, but the TPS has a Field Information Report of the alleged incident which is dated July 18, 2008. The respondents filed the Report with the Tribunal.

10The respondents also stated that each untimely allegation involves a discrete incident with different police officers than the timely incidents. As such, the respondents stated, there is no series of incidents because there is an insufficient link between the untimely incidents and the timely incidents.

11The respondents further stated that the applicant has provided no explanation, let alone a good faith explanation, to justify the delay in filing an Application with respect to the untimely allegations.

12My reading of the Application was that the applicant included the untimely allegations as background information to the alleged incidents of discrimination that occurred on November 30, 2009, February 6, 2010 and May 12, 2010. However, even if I am wrong about this, I agree entirely with the respondents that the untimely allegations are not within this Tribunal’s jurisdiction because they are not linked to the timely allegations as a series of incidents, and the applicant has not established that his delay in filing his Application with respect to the untimely allegations was incurred in good faith.

13In considering the meaning of the term “series of incidents” under s. 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457, at para. 25. The Tribunal has also held that there must at least be some connection or nexus between the incidents that are alleged to form the series, and that a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621, at para. 22.

14In the case at hand, the applicant has not established that the untimely incidents were of the same class as the timely incidents so as to constitute a series of incidents. Specifically, the applicant did not establish that the untimely incidents involved the same police officers as the timely incidents or were sufficiently connected in other ways to the timely incidents. Based on the materials before me, it appears that the untimely incidents and the timely incidents involved discrete and separate matters.

15In 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 pursuant to s. 34(2) of the Code:

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….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 428, at para. 20, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, at para. 21.

16In my view, the applicant’s explanation that he never filed an Application with respect to the untimely allegations because he did not want to be a person who cries racism every time he is confronted by the police does not amount to a good faith explanation. The applicant’s explanation shows a lack of due diligence, and therefore he has not met his onus to provide a reasonable explanation for the delay.

17In view of my finding that the applicant’s delay in filing his Application with the Tribunal with respect to the untimely allegations was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay. The only alleged incidents of discrimination that will proceed to the merits hearing are the ones that occurred on November 30, 2009, February 6, 2010, and May 12, 2010. The remaining allegations in the Application are dismissed as untimely and outside this Tribunal’s jurisdiction.

PRODUCTION OF DOCUMENT

18Based on the materials before me and previous decisions by this Tribunal involving the applicant and his landlord (Millien v. 1474367 Ontario, 2011 HRTO 759; Millien v. 1474367 Ontario, 2010 HRTO 2288; Millien v. 1474367 Ontario, 2010 HRTO 1146), it appears that the alleged incident that occurred on November 30, 2009, may have been the subject of a proceeding before the Landlord and Tenant Board.

19Neither party has filed a decision and/or order of the Landlord and Tenant Board on this matter as part of disclosure during this proceeding. If such a decision and/or order exists, it is clearly “arguably relevant”, and the applicant was obliged to disclose it to the respondents no later than 21 days after the date of the Hearing Notice. See Rule 16.1 of the Tribunal’s Rules of Procedure. Furthermore, Rule 1.7(o) of the Tribunal’s Rules states that in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may advise when additional evidence may assist the Tribunal. In my view, the production of a decision and/or order of the Landlord Tenant Board on this matter, if it exists, may assist the Tribunal in providing for a fair, just and expeditious resolution of this case.

20The Tribunal therefore orders the applicant to immediately deliver to the respondents and file with the Tribunal any decision and/or order of the Landlord and Tenant Board which deals with the subject matter of the incident that occurred on November 30, 2009.

ORDER

21The Tribunal makes the following orders:

1. The only alleged incidents of discrimination that will proceed to the merits hearing are the ones that occurred on November 30, 2009, February 6, 2010, and May 12, 2010. The remaining allegations in the Application are dismissed as untimely and outside this Tribunal’s jurisdiction.

2. The applicant shall immediately deliver to the respondents and file with the Tribunal any decision and/or order of the Landlord and Tenant Board which deals with the subject matter of the incident that occurred on November 30, 2009.