Steven Edwards v. The Regional Municipality of Peel Police Services Board, 2012 HRTO 14

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Edwards

Applicant

-and-

The Regional Municipality of Peel Police Services Board

Respondent

DECISION

Adjudicator: Sherry Liang

Date: January 4, 2012

Citation: 2012 HRTO 14

Indexed as: Edwards v. The Regional Municipality of Peel Police Services Board

1The name of the respondent is amended in accordance with the Response.

2The applicant filed an Application on June 16, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities on the basis of ancestry and disability.

3The applicant alleges that police officers with the Peel Regional Police Service (the Police) used excessive force in relation to an incident at Pearson International Airport (the Airport) on March 13, 2009, and that the excessive force was used because of his ancestry. In the Application, the applicant states that he “presented” the Police with a samurai sword at the Airport, in a bag. He was intending to board a flight to Honolulu although it appears that he did not have a ticket. The applicant states that he did not show any aggression, but the police officers threw his head to the ground, injuring his chin and mouth. He was transported to a hospital where he was given medical attention.

4The respondent filed a Response in which it requests, among other things, that the Application be dismissed as untimely. The applicant was directed to provide submissions in response to the request to dismiss, and filed a Reply in which he provided an explanation for the delay in filing the Application.

5On my review of the material before me, I find that the Application is untimely and it is dismissed.

6In his submissions, the applicant states that he did not know initially about the Tribunal or that it was within his rights to make a complaint about the incident. As well, he states that immediately after the incident he was involved in other legal matters that required his attention, including an attendance at a Superior Court of Justice, Smalls Claims Court settlement conference on July 16, 2009. He also indicates that he had mental health difficulties in 2009 and 2010 and was involved in a legal process as a result of which he was found Not Criminally Responsible due to Mental Disorder (NCR).

7He states that the major barrier to filing the complaint on time was his financial situation, which prevented him from retaining a lawyer to assist him.

BACKGROUND CHRONOLOGY

8The applicant was incarcerated at the Toronto West Detention Centre from September 3, 2009 to July 15, 2010. While incarcerated, he states that the incident was on his mind and he contacted the John Howard Society in January 2010 to inquire about the possibility of bringing a civil claim about the incident. The John Howard Society suggested making a complaint to the Tribunal. Therefore, in February 2010, he contacted the African Canadian Legal Clinic (the Legal Clinic) and they provided brief legal advice. In early March 2010, he received the application package from the Tribunal. He found the process confusing and was not sure who the respondent should be and on March 26, 2010, he filed an Application with the Tribunal naming American Airlines as the respondent (the “March 2010 Application”). The applicant states that since personal items could only be mailed or faxed once per week while incarcerated, this contributed to his delay.

9The March 2010 Application was dismissed by the Tribunal on January 18, 2011, on the basis that American Airlines was subject to federal and not provincial jurisdiction. Previous to this, on November 15, 2010, the applicant also filed an application with the Canadian Human Rights Commission against American Airlines, but his file was closed soon afterwards which the applicant states was because the Commission believed he had the “wrong respondent”.

10As indicated above, the applicant states that a major barrier to filing the Application on time was his financial situation, which prevented him from being able to retain a lawyer. In addition to consulting with the legal clinic, he states that he found a lawyer through the Lawyer Referral Service in December 2010. It appears that he consulted with the lawyer, who agreed to take his case, but he was unable to afford her legal fees.

11The applicant filed this Application on June 16, 2011.

ANALYSIS AND DECISION

12Section 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.

13Under 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.

14As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, 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.

15The 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Further, although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Thorogood v. International Brotherhood of Electrical Workers, Local 120, 2010 HRTO 786.

16In this case, the allegations arose out of an incident at the Airport in March 2009, in which the applicant believes the Police used excessive force. The Application against the Police was not made until more than two years following this event.

17I recognize that the applicant faced some barriers in his ability to diligently and promptly explore his options for pursuing a remedy for the alleged discrimination. It is clear, based on the applicant’s assertion that he was found not criminally responsible in a criminal process, that he has a history that includes mental illness. The applicant has provided some documentation from March 2009 which confirms a history of schizophrenia. The result of the incident in March 2009 was that he was taken to a hospital for assessment under the Mental Health Act, and it appears from the applicant’s contact information that he currently resides at the Centre for Addiction and Mental Health. The respondent states that it is its understanding that the applicant remains detained with numerous restrictions on his liberty.

18There are certainly factors present which may in some circumstances provide a reasonable explanation for delay in filing the Application. Ultimately, however, I find that they do not justify the over two year delay at issue here.

19Although the applicant’s incarceration between September 2009 and July 2010 presented some barriers to his timely filing of a complaint, it does appear that while incarcerated, he had access to legal and other resources as well as means of communication and was able to file his March 2010 Application with the Tribunal.

20Further, although there is no doubt that the applicant has a current and past history of mental illness, he has been capable of taking legal and other action on his own behalf. These steps include participation in a civil proceeding in July 2009, filing two human rights applications in two different jurisdictions in March 2010 and November 2010, and seeking out legal advice and assistance both during and following his incarceration. In addition to seeking advice from the Legal Clinic and a human rights lawyer, his correspondence to the Tribunal also indicates that he consulted with the Human Rights Legal Support Centre (the HRLSC) at some point, who advised him of the one-year deadline for filing an Application.

21The March 2010 Application was flawed, in that it was brought against an entity, American Airlines, over which this Tribunal has no jurisdiction. This became apparent to the applicant later in the year, at which time he attempted to file a complaint with the federal Commission, and was then confirmed by the Tribunal’s decision dismissing that Application in January 2011.

22Although the applicant states that he had some difficulty deciding who the respondent should be at the time he filed the March 2010 Application, certainly by November 2010, he was advised by the federal Commission that the proper respondent was the Police and not American Airlines. It is not clear from the materials why, in all the circumstances, it took him until June 2011 to re-file the Application, this time against the Police.

23I appreciate that the applicant’s financial circumstances also contributed to some difficulties in obtaining legal services, but many applicants face similar circumstances and this does not justify the delay in filing the Application. The applicant was able to consult with several sources of legal advice during this time, including the HRLSC, whose contact information is made available to all applicants through the Tribunal’s application form, which the applicant obtained sometime before March 2010.

24In all the circumstances, I am unable to conclude that the delay was incurred in good faith within the meaning of section 34(2) and the Application is dismissed.