Jing Huo v. University of Western Ontario, 2012 HRTO 198

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jing Huo

Applicant

-and-

University of Western Ontario

Respondent

DECISION

Adjudicator: Ena Chadha

Date: January 27, 2012

Citation: 2012 HRTO 198

Indexed as: Huo v. University of Western Ontario

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on October 14, 2011, alleging discrimination with respect to services, goods and facilities because of disability.

2The Tribunal has not yet delivered the Application to the respondent. The purpose of this Interim Decision is to address whether the Application should be dismissed at this preliminary stage because of delay.

3On December 6, 2011, the Tribunal issued a Notice of Intent to Dismiss to the applicant which noted that the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.

4The applicant filed submissions on December 20, 2011. The applicant submits that his Application is timely. The applicant claims that the last incident of discrimination occurred on October 15, 2010, when the respondent university’s vice-provost denied the applicant’s appeal and confirmed that the applicant was required to withdraw from the program.

Summary of Application

5The applicant was a student in the respondent university’s School of Physical Therapy (PT). The applicant self-identifies as a person with a mental health disability. The Application notes that, in June 2009, the applicant and the respondent university settled a previous human rights application. The terms of the settlement agreement permitted the applicant to be reinstated into the PT program with the provision of certain accommodations. However, the minutes of settlement expressly stated that, upon readmission into the program with the provision of certain accommodations, the applicant was required to satisfy program standards and that the applicant would not be entitled to further remedial placement or supplemental examinations.

6Pursuant to the settlement, the applicant re-enrolled in the PT program in the fall of 2009 and commenced his clinical placement in March 2010. On May 13, 2010, the applicant was informed that he failed his clinical placement. The applicant alleges that, even with the provision of accommodations, he failed his placement because deteriorating health adversely affected his academic performance. From May 2010 to October 2010, the applicant filed various appeals to overturn the failed placement and seek readmission.

7The applicant alleges that the respondent university failed to accommodate his disability-related needs when it did not accept his deteriorating health status as a valid ground for appeal. The applicant alleges that the respondent’s June 29, 2010 letter denying his appeal specifically references the settlement disentitling him from further supplemental examinations or remedial clinical placements. The applicant alleges that the settlement term precluding further remedial placement and/or supplementary examinations is discriminatory because it prevents him receiving the additional accommodation he requires, that being another opportunity to repeat the program.

ANALYSIS

8Section 34 of the Code states:

(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.

9The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and 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.

10The threshold question in applying section 34 to the circumstances of this Application is what constitutes the “incident” to which the Application relates. Although the applicant noted, in response to Question 7 of the Application, that the date of the last discriminatory incident was November 8, 2010, in his submissions the applicant now claims that November 8, 2010 date was provided due to a “misunderstanding”. The applicant asserts the last incident was October 15, 2010 in reference to the respondent university’s denial of the applicant’s appeals.

11The Application alleges that from May 2010 and onwards the respondent university failed to provide the applicant with appropriate accommodation of his disability, namely another opportunity to repeat the program. Based on the applicant’s chronology as set out in his narrative, it appears the applicant was informed that he failed the program on May 13, 2010 and was informed on June 29, 2010 that he was not permitted further remediation pursuant to the settlement agreement. It is the latter act which the applicant perceives to be discriminatory and is at the heart of his Application. This is acknowledged in the Application, where the applicant explains that the duty to accommodate short of undue hardship was violated on June 29, 2010 when the respondent informed him that, pursuant to the terms of the settlement, he would not be offered any additional remedial placement. As such, I find that the last incident of alleged discrimination cited in the Application took place on June 29, 2010, when the applicant learned that the respondent would not reconsider the terms of the settlement and refused to grant additional remediation.

12This Application was filed on October 14, 2011, approximately 17 months after the termination of the applicant’s studies and approximately 16 months after the applicant was informed that he would not be granted any additional remedial opportunities. These events are clearly outside the one-year period as set out in section 34(1) of the Code and, consequently, untimely.

13With respect to the applicant’s argument that the Application is timely because the respondent’s vice-provost denied his appeal and confirmed the alleged discriminatory decision in a letter dated October 15, 2011, I note that any alleged continuing effect flowing from the June 29, 2010 decision does not extend the Code’s section 34(1) timeline. A “continuing contravention” pursuant to section 34(1)(b) requires a succession or repetition of separate acts of discrimination of the same character; that is separate contraventions of the Code. One act of discrimination with continuing effects is not a continuing contravention. See Visic v. Ontario (Human Rights Commission), 2008 CanLII 19784 (ON SCDC), 236 O.A.C. 110 (Ont. Div. Ct.) and Mafinezam v. University of Toronto, 2010 HRTO 1495. Applying these principles, I find that this Application was not brought within the one-year time frame of the Code.

14The Tribunal will not deal with an application filed more than one year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

15In determining the issue of good faith, factors for consideration include whether Code-related reasons (such as a disability) directly impeded the applicant’s ability to file an application; the nature of the allegations; and whether the applicant was able to raise allegations in other venues during the period in question: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

16The applicant submits that his Application is timely because from May 13, 2010 until October 15, 2010 he approached and corresponded with various representatives and offices of the respondent university to try to appeal the decision denying him continued status in the program. The applicant’s narrative indicates that the applicant pursued the appeal process set out in the respondent university’s academic grade appeal policy and that this process took until October 15, 2010, following which the applicant corresponded with the respondent university’s legal counsel at which point it was again confirmed that the respondent university would not reconsider its decision denying the applicant’s appeal.

17On review of the material before me, I am satisfied that this Application may not proceed. The applicant has not provided a reasonable explanation for the delay that leads to the conclusion that it was incurred in good faith.

18With respect the applicant’s submissions regarding the fact that he was involved the respondent’s internal appeal process, it is noteworthy that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay, see: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508.

19The materials in the file indicate that the applicant was actively pursuing readmission through the respondent’s university’s academic appeals process and it appears that he engaged in communications in this regard with the respondent’s legal counsel prior to filing his Application with this Tribunal. The Tribunal has determined that the fact that a person is pursuing other avenues, including internal avenues, or waiting for other appeal processes to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application: Hatibovic-Kofman v. Royal College of Dental Surgeons of Ontario, 2010 HRTO 1578

20In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, the Tribunal stated:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other for a relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

21In considering whether the delay was incurred in good faith, the Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay. See Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. Based on the applicant’s narrative and submissions, it is clear that the discrimination crystallized in May – June 2010 and that the events in May – June 2010 caused the applicant to repeatedly raise his concerns with the respondent, which he did up until October – November 2010. The applicant has offered no explanation as to why he could not have pursued his human rights concerns as early as May 2010, when he was advised that he failed the placement or in June 2010 when he was informed that as per the settlement he would not be allowed to repeat the program. I do not accept that the applicant’s submissions establish that the applicant met the fairly high onus the Tribunal requires to show that the delay in the filing of an application was incurred in good faith pursuant to section 34(2) of the Code.

22In sum, I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith. It is therefore not necessary for me to consider whether substantial prejudice would result from the delay.

23Accordingly, the Application is dismissed.