HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark Wilson
Applicant
-and-
Wilkinson Road Shelter
Respondent
decision
Adjudicator: Keith Brennenstuhl
Indexed as: Wilson v. Wilkinson Road Shelter
APPEARANCES
Mark Wilson, Applicant ) Self-represented
Wilkinson Road Shelter )
Respondent ) Christine Leblanc , Counsel
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in services on the basis of a hearing disability.
2On May 24, 2011, the Tribunal issued a Notice of Intent to Dismiss because of delay. The Application refers to an alleged incident of discrimination on July 17, 2007. The Application was filed April 7, 2011.
3On January 23, 2012 the Tribunal held an in-person hearing to hear the applicant’s submissions on delay. An ASL interpreter was provided at the request of the applicant. Both the applicant and the respondent provided submissions.
4The Tribunal does not have the power to consider claims filed more than one year after the last incident of discrimination or last in a series of incidents of discrimination unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay. Section 34 of the Code provides:
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.
34(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.
5The applicant alleges that on July 17, 2007 he attended at the respondent shelter and was subjected to discrimination when he was not given a locker, when staff at the shelter prevented him from applying for ODSP, when staff refused to help him find permanent accommodations, and when staff refused to provide him with a phone. The applicant testified that the delay in filing his Application was due to the police, who followed him everywhere, and because Legal Aid did not co-operate with him. He indicated that he was constantly moving and only recently felt safe enough to make his Application.
Decision
6In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation why he or she failed to pursue his or her rights under the Code in a timely manner. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 124 at paras 24 and 25 the Tribunal held as follows:
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).
7Having considered the matter, I am not satisfied the delay in filing the Application was incurred in good faith.
8The applicant’s reason for the delay is vague, is lacking in substance, and is not, in my view, a reasonable explanation for the extensive delay in enforcing his Code protected rights. Nothing prevented the applicant from filing a timely Application even if the police were following him and despite his itinerancy. Moreover, it seems to me that even if Legal Aid was not co-operative, there were other resources available to the applicant that he could have turned to had he been interested in pursing a human rights claim. For example, he testified that he had ongoing relations with the Canadian Hearing Society, yet it is apparent that he made no efforts to seek the Society’s assistance or support in pursuing a claim.
9The applicant has not provided a reasonable explanation for the failure to file a timely Application under the Code. I am not satisfied therefore that the delay in filing the Application was incurred in good faith. In light of this determination it is not necessary to make the further determination as to whether the respondent has been substantially prejudiced by the delay.
10The Application is dismissed.
Dated at Toronto, this 25th day of January, 2012.
”signed by”__________
Keith Brennenstuhl
Vice-chair