Frankson v. MacKenzie Health, 2012 HRTO 2202

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Simone Frankson

Applicant

-and-

Mackenzie Health formerly known as York Central Hospital

Respondent

RECONSIDERATION DECISION

Adjudicator: David Muir

Date: November 23, 2012

Citation: 2012 HRTO 2202

Indexed as: Frankson v. MacKenzie Health

WRITTEN SUBMISSIONS

Simone Frankson, Applicant

Self-represented

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 age, colour and race.

2On October 12, 2012, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) this Application because it appeared to be outside of the Tribunal’s jurisdiction on the basis of delay. The last incident complained of occurred more than one year prior to the Application being filed; as well, it was not clear on the face of the narrative how the incidents described constitute an incident of discrimination within the meaning of the Code. The applicant was directed to file her submissions in response to the NOID on or before November 2, 2012,.failing which the Tribunal would determine its jurisdiction to deal with it based on the material filed to date or, could dismiss the Application as abandoned.

3In a Decision dated November 7, 2012, 2012 HRTO 2109, this Application was dismissed as abandoned because it appeared that the applicant had not responded to the NOID in any fashion.

4In fact, the applicant had responded by correspondence received by the Tribunal on October 29, 2012. Due to an administrative oversight this correspondence and the applicant’s submissions were not before the adjudicator who decided to dismiss the Application as abandoned. In my view it would be fair, just and expeditious for the Tribunal on its own initiative to reconsider the Decision pursuant to section 47.5 of the Code and Rule 26.9. In my view the entire basis of the Decision was that the applicant had failed to respond to the NOID. Given that this was not the case and in fact the applicant had responded the Decision should be reconsidered. I therefore grant reconsideration of the Decision on the basis of section 26.5(d), namely, that other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions. Having granted reconsideration, I determine it is appropriate to consider and decide the jurisdictional issues raised in the NOID and the applicant’s submissions in response.

The Delay Issue

5This Application was filed on October 3, 2012, and relates to incidents which took place in August 2010. In her Application and subsequent communications the applicant suggests that the last incident was October 25, 2011, but there are no alleged incidents which occurred on that date detailed in the Application. I find that the last incident complained of occurred in August 2010.

6Sections 34(1) and (2) of the Code provide:

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.

7This Application is out of time. It was filed more than two years after the incidents described by the applicant. Accordingly, unless the applicant can establish a good faith explanation for the delay the Application must be dismissed. I would also observe that at this preliminary stage before the Application has been served, the Tribunal has held that it must be plain and obvious that an Application is out of time in order to dismiss it. See Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

8The Tribunal has held on many occasions 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. The Tribunal has interpreted these provisions of the Code as requiring that 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. 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.

9In her Application the applicant explained that she was distraught over the events of August 20, 2010. The applicant also states that she was on maternity leave and then laid off from her employment. The applicant also stated that she has pursued other legal proceedings before the College of Physicians and Surgeons of Ontario and has made a complaint to the Colleges of Nurses Association. In addition to these legal proceedings the applicant filed a claim under the Employment Standards Act and an application for “social benefits”. The applicant states as well that she has received counselling and was “secretly suffering from post-partum depression.”

10I am satisfied that it is plain and obvious that this Application is out of time and that there is an insufficient basis to conclude that there is a good faith explanation for the delay. While the Tribunal has accepted as a good faith explanation an alleged disability or other incapacity that prevented the filing of a timely Application, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example, Dionne v. Toronto (City), 2011 HRTO 317. Although the applicant has stated that emotional and medical difficulties followed the birth of her child in October 2010, there is no medical documentation provided to support the conclusion that this would have had an appreciable impact on her ability to file this Application in a timely manner. On the contrary, the applicant was able to commence two other legal proceedings arising out of these events in addition to, an employment standards claim, as well as make an application for “social benefits”.

11As indicated previously, the requirement of good faith is more than the absence of bad faith. There is no indication of bad faith here, but there is equally no indication at all that the applicant acted with all due diligence in considering her options and filing this Application. Instead, in addition to raising her child and dealing with other issues in her life, the applicant chose to pursue this matter in two other forums. The Tribunal has held on numerous occasions that pursuing other avenues of redress is not a good faith explanation for delay in filing a human rights application. See Miller v. Prudential Lifestyles, above, and Lutz v. Toronto (City), 2009 HRTO 1137.

12For all of these reasons the Application is dismissed. Having found that there is no good faith explanation for the delay in filing the Application I need not consider whether any party might have been prejudiced by such delay.