HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Henry Freitag
Applicant
-and-
The Corporation of the Town of Penetanguishene
Respondent
DECISION
Adjudicator: Brian Eyolfson
Indexed as: Freitag v. Penetanguishene (Town)
written submissions
Henry Freitag, Applicant
Self-represented
Introduction
1This is an Application filed on August 9, 2011, under s. 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging a contravention of settlement.
2With the Application, the applicant included a copy of Minutes of Settlement dated November 17, 2008, resolving an earlier Application filed with the Tribunal. In particular, the applicant alleges that the respondent contravened paragraph 3 of the Minutes of Settlement, wherein the respondent agreed to provide the applicant with a plan and schedule for the completion of accommodations identified by the applicant by January 31, 2009. The paragraph in question also provided that the applicant was to indicate his approval of the plan and schedule by February 7, 2009, and that his approval was not to be unreasonably withheld. The applicant also included with his Application a copy of correspondence that the respondent provided to him on January 29, 2009. It appears that the applicant does not consider this correspondence to be in compliance with paragraph 3 of the Minutes of Settlement.
DELAY
3In a Case Assessment Direction (“CAD”) dated May 17, 2012, the Tribunal noted that the Application may be untimely in light of s. 45.9 of the Code, which provides, in part, as follows:
45.9(3) If a settlement of an application made under section 34 or 35 is agreed to in writing and signed by the parties, a party who believes that another party has contravened the settlement may make an application to the Tribunal for an order under subsection (8),
(a) within six months after the contravention to which the application relates; or
(b) if there was a series of contraventions, within six months after the last contravention in the series.
(4) A person may apply under subsection (3) 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.
4The Tribunal sought written submissions from the applicant addressing the issue of delay, including whether any delay was incurred in good faith, and whether substantial prejudice would result to any person affected by any delay, within the meaning of s. 45.9(4) of the Code. The Tribunal also provided the respondent with an opportunity to respond in writing to any submissions of the applicant on the issue of delay.
DECISION
5Pursuant to s. 45.9 of the Code, the Tribunal does not have the jurisdiction to consider contravention of settlement applications filed more than six months after a contravention, or the last contravention in a series of contraventions, unless the Tribunal is satisfied that the delay in filing the application was incurred in good faith, and no substantial prejudice will result to any person affected by the delay. The language concerning timeliness in s. 45.9 of the Code essentially mirrors the language concerning the timeliness of filing applications pursuant to s. 34 of the Code, except that the time period specified for filing contravention of settlement applications is six months, as compared to one year for filing applications under s. 34 of the Code.
6In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, at paras. 24-25, the Tribunal made the following general comments about untimely applications in the context of s. 34 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, 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).
7In my view, these comments are equally applicable to contravention of settlement applications filed beyond the six month time period in s. 45.9(3) of the Code.
8In the present case, it appears that the respondent was to comply with the last term of the Minutes of Settlement by January 31, 2009, and it is this term that the applicant alleges the respondent breached. The Application, however, was not filed until August 9, 2011, more than one year after the six month time period for filing contravention of settlement applications under s. 45.9 of the Code. While the applicant provided correspondence on May 24, 2012 to the Tribunal and the respondent in response to the Tribunal’s CAD dated May 17, 2012, the applicant did not address the issue of delay in his correspondence as requested in the CAD. The applicant has provided no explanation whatsoever for the rather lengthy delay of more than one year in bringing this Application. In the circumstances, I do not find that the delay was incurred in good faith.
9As I do not find that the delay in filing the Application was incurred in good faith, it is not necessary to consider the question of prejudice to the respondent.
10The Application is dismissed.
Dated at Toronto, this 28^th^ day of August, 2012.
Signed by
Brian Eyolfson
Vice-chair