Hoekstra v. The Christian Reformed Church in North America, 2012 HRTO 1272

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Hoekstra

Applicant

-and-

The Christian Reformed Church in North America – Canada Corporation,

The Christian Reformed Church in North America,

Classis Hamilton, and Synod 2009

Respondents

RECONSIDERATION DECISION

Adjudicator: Ken Bhattacharjee

Date: June 27, 2012

Citation: 2012 HRTO 1272

Indexed as: Hoekstra v. The Christian Reformed Church in North America

WRITTEN SUBMISSIONS

Barbara Hoekstra, Applicant ) Self-represented

INTRODUCTION

1The purpose of this Decision is to address the applicant’s Request for Reconsideration of the Tribunal’s Decision, 2012 HRTO 580, which dismissed the Application against certain respondents because of a lack of timeliness.

BACKGROUND

2On March 17, 2010, the applicant 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 Bethel Christian Reformed Church (“Bethel”), its pastor, 15 of its elders, The Christian Reformed Church in North America – Canada Corporation (the “CRCNA-Canada”), and The Christian Reformed Church in North America (the “CRCNA-United States”) discriminated against her with respect to services because of her sex. The applicant was a member of Bethel until April 2005 when Bethel deemed her to have resigned her membership from the church.

3On July 16, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 1546, reconsideration refused, 2010 HRTO 2124, which removed 11 of the individual respondents from the Application. The five remaining individual respondents included Bethel’s pastor and four of its elders.

4On October 19, 2011, the respondents filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal dismiss the Application because it is outside the one-year statutory deadline. On November 15, 2011, the applicant filed a Response, which opposed the respondents’ Request to dismiss her Application for lack of timeliness.

5The 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.

6On March 21, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 580, which noted that the parties had provided documents which showed, among other things, that between April 22 and June 8, 2005, the applicant complained to a church visitor, an executive director, a church polity expert, and pastors at two other Christian Reformed Churches about what happened to her at Bethel. The Interim Decision also noted that the documents then showed, in terms of chronology, that on August 18, 2007, the applicant’s legal counsel sent a letter to Bethel, the CRCNA-Canada and the CRCNA-United States, which alleged that these organizations had denied the applicant due process and that Bethel’s pastor had committed breaches of trust, confidentiality and professional ethics.

7In determining the timeliness issue, the Tribunal stated the following at paras. 12-17 of its Interim Decision:

The first issue to consider is when the last alleged incident of discrimination occurred. In my view, the last alleged incident occurred on June 17, 2009 when Synod 2009 denied the applicant’s appeal. In her Application and Reply, the applicant alleged that the appeals bodies denied her an investigation and a hearing in order to protect her abusive husband and the men in the church hierarchy who were covering up the matter on her husband’s behalf. I disagree with the respondents that the applicant’s allegation was about the effects of alleged incidents of discrimination. In my view, the applicant’s allegation, although it is somewhat opaque in her pleadings, is about acts of discrimination by the appeal bodies, not the effects of acts of discrimination by Bethel and its elders.

The second issue to consider is whether the alleged incidents of discrimination in the Application constitute a “series of incidents”. Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents. See, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9. In the case at hand, there was a break of more than two years between the last alleged incident of discrimination by Bethel and its elders and the first alleged incident of discrimination by the appeal bodies. As such, I find that allegations of discrimination against Bethel and its elders are nearly five years of time.

The third issue to consider is whether the applicant’s delay in filing her Application with respect to the allegations of discrimination against Bethel and its elders 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….

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.

Therefore, 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 she did not pursue her rights under the Code in a timely manner. The applicant stated that any delay in filing her Application was incurred in good faith because she had a reasonable expectation, which eroded over time, that the appeal bodies would investigate her allegations against Bethel and its elders.

I am not satisfied that the applicant’s near five-year delay in filing her Application with the Tribunal with respect to the allegations of discrimination against Bethel and its elders was incurred in good faith. The applicant’s explanation for her delay only covers a short period of time after Bethel gave her a document that stated that she had resigned her membership (April 22 to June 8, 2005), and the time period from when her legal counsel issued a demand letter (August 18, 2007) to the final denial of her appeal by Synod 2009 (June 17, 2009). She did not explain why she waited more than two years to send a legal demand letter after the last alleged act of discrimination by Bethel and its elders, and why she waited approximately nine months to file her Application with the Tribunal after her appeal was denied with finality.

In view of my finding that the applicant’s delay in filing her Application with the Tribunal with respect to the allegations of discrimination against Bethel and its elders was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

8Accordingly, the Tribunal dismissed the allegations in the Application related to events occurring between 2003 and 2005, and removed Bethel and the five individual respondents as parties to the Application.

9On April 25, 2012, the applicant filed a Request for Reconsideration of the Tribunal’s decision to dismiss the Application against Bethel and the individual respondents because of a lack of timeliness.

ANALYSIS

10Section 45.7(1) of the Code provides that any party to a proceeding before the Tribunal may request that the Tribunal reconsider a final decision in accordance with the Tribunal rules. Although it was part of an Interim Decision, the dismissal of part of the Application was a final decision.

11Rule 26.5 of the Tribunal’s Rules of Procedure states that reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

12The Tribunal has also issued a Practice Direction on Reconsideration to provide guidance to the community on the nature of the reconsideration process. The Practice Direction states, in part:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal.

13In her Request for Reconsideration, the applicant indicated that the Tribunal’s decision to dismiss part of her Application should be reconsidered in accordance with Rule 26.5 c) and d). In her submissions, the applicant essentially repeated many of the same arguments that she had made in her pleadings and her Response to the respondents’ RFOP. Although the applicant did not indicate that the decision should be reconsidered in accordance with Rule 25.6 a), she also raised new facts to explain why she waited more than two years to send a legal demand letter after the last alleged act of discrimination by Bethel and its pastor and elders. Specifically, she explained that she had to lay low between mid-2005 and mid-2007 to regain her emotional footing.

14The applicant’s Request is denied. Reconsideration is not available simply because a party disagrees with the Tribunal’s decision, and it is not an opportunity for a party to reargue the case. The applicant did not explain, and I cannot see, how the decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance, or what other factors exist that outweigh the public interest in the finality of Tribunal decisions.

15With respect to the new facts that the applicant raised to explain her delay in filing her Application against Bethel and its pastor and elders, in my view, they are not potentially determinative of the case because laying low to regain emotional footing shows a lack of due diligence, and does not amount to a good faith explanation for the delay. Furthermore, the applicant did not explain, and I cannot see, how these are new facts that could not reasonably have been obtained earlier.

ORDER

16The Request for Reconsideration is dismissed.