HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Houle
Applicant
-and-
Rainbow District School Board – The Gord Ewin Centre
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Houle v. Rainbow District School Board
WRITTEN SUBMISSIONS
Joseph Houle, Applicant
self-represented
Rainbow District School Board – The Gord Ewin Centre, Respondent
Brenda Bowlby, counsel,
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods and services because of disability.
2The respondent has filed a Request for Order During Proceeding (Request) seeking the dismissal of aspects of this Application that they argue are out of time. The applicant has responded and opposes the Request.
3For the reasons that follow the respondent’s Request is granted.
4Section 34 (1) and (2) of the Code provide as follows:
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.
5The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination, 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. The provision has been found to be mandatory subject to section 34(2). The 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. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241). The Tribunal has interpreted the words “series of incidents” in section 34(1)(b) as contemplating incidents that are related thematically and in time. The Tribunal has also held in many cases that a significant gap in time between incidents in a putative series will interrupt the series.
6The Tribunal has jurisdiction to entertain an application that is out of time where the applicant is able to establish a good faith explanation and that there would be no substantial prejudice to any party in the event that application were to be processed further. However the Tribunal has held that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith.
7The allegations in the Application relate primarily to an event in November 2010 and alleged discriminatory treatment of the applicant’s son. The applicant, in another section of the Application form, makes reference to events several years prior to the November 2011 incident when the applicant was in Grades 4 and 5 (at the time of the Application the applicant was said to be in Grade 9) and attending a different school.
8The phrase “series of incidents” in section 34(1)(b) recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language in section 34(1) provides for the flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct can be identified. On the other hand the language of the section recognizes that it would not be appropriate that a human rights claimant file an Application at the first incident of what might be understood to be inappropriate treatment. The Tribunal has also determined that the logic of the section suggests that the gap between incidents in a putative “series” may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be a shorter time frame.
9The applicant states that these earlier allegations should not be dismissed because it is alleged that the discriminatory treatment of the applicant’s son continued will into Grade VII. In his response to the Request the applicant makes a number of allegations related to events in 2009 primarily.
10I am not satisfied that there is a sufficient temporal or thematic connection between the quite general allegations of events some of which are at least several years prior to the events of November 2011 to conclude that they constitute a series of incidents within the meaning of section 34(1)(b). There are no specific allegations of discriminatory treatment of the applicant’s son in the one year prior to September 2011. Accordingly those alleged incidents said to have occurred prior to September 2011 are out of time and the respondent need not respond to them further.
Other Matters
11The applicant had filed an Application which appears to be about alleged discriminatory treatment of his son. The applicant has indicated that he has filed this Application on behalf of his son. Although this is in some sense a technical matter, it may have practical import at some stage and should be clarified before this matter moves forward. Accordingly the applicant is directed to confirm that he has filed this Application on behalf of his son and file the appropriate Form 4 within 30 days of the date of this Interim Decision.
12I am not seized of this case.
Dated at Toronto, this 1^st^ day of October, 2012.
”signed by”
David Muir
Vice-chair