N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

N.M.

Applicant

-and-

Ottawa-Carleton District School Board, Bruce Whitehead, Darryl Kilcul and Wendy Verreault

Respondents

DECISION

Adjudicator: Michelle Flaherty

Date: February 9, 2012

Citation: 2012 HRTO 282

Indexed as: N.M. v. Ottawa-Carleton District School Board

WRITTEN SUBMISSIONS

N.M., Applicant ) James Kafieh, counsel

Ottawa Carleton District School Board, ) Roger Mills, counsel

Bruce Whitehead, Darryl Kicul and )

Wendy Verreault, Respondents )

1This is an Application filed on June 28, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant alleges discrimination on the basis of race, colour, ancestry, place of origin, ethnic origin, and creed in the provision of education services.

2For the reasons that follow, the Application is dismissed pursuant to section 34 of the Code. I find that the Application was filed more than one year after the last alleged incident of discrimination and the applicant has not established that the delay in filing was in good faith within the meaning of the Code.

OVERVIEW

3The applicant was a student attending Bell High School when she was disciplined for damaging a flag on November 18, 2008.

4The applicant states that Code-related grounds lead the respondents to discipline her more harshly than others involved in the incident. She states that she was suspended from school for 20 days and then not permitted to return to Bell High School. She subsequently attended a different high school within the respondent school board and graduated in June of 2010.

5Because the applicant appears to have been a minor at the material time, her name has been anonymized in the style of cause.

6The applicant states that discrimination was ongoing from November 2008 until June, 2010, when she graduated from a different high school. She states this is because she continued to feel humiliated, demoralized, and ostracized from her friends and teachers. I note that the applicant did not re-attend Bell High School after November 2008 and she does not allege experiencing discrimination at her new high school.

7The respondents filed a Response in which they deny the allegations of discrimination. They also seek the early dismissal of the Application because, among other things, it was filed outside the one-year limitation period set out in the Code.

8The applicant filed a Reply, which includes some submissions regarding the alleged delay in filing the Application. As well, pursuant to a Case Assessment Direction dated December 5, 2011, both parties filed further written submissions regarding a number of preliminary issues, including delay.

ANALYSIS

9Section 34 of the Code states:

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.

10Pursuant to section 34, the Tribunal will not deal with an application filed more than a 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.

11The initial onus is on the applicant to show that any delay in filing the Application was incurred in good faith. If she is able to establish good faith, the onus shifts to the respondents to show that they will suffer substantial prejudice as a result of the delay in filing the Application.

When was the last alleged incident of discrimination?

12The last alleged incident of discrimination occurred in late November or early December 2008, when the applicant was disciplined and the respondents decided that she would not re-attend Bell High School.

13There is a dispute as to whether the applicant was banned from attending Bell High School following her suspension or whether she was placed at a different high school pursuant to the respondent’s statutory authority. I do not need to resolve this factual dispute because the parties agree that, whatever its basis, the decision that resulted in the applicant attending a different high school was made sometime in late 2008.

14I do not accept the applicant’s argument that the discrimination was ongoing until June 2010. The fact that the respondents maintained a decision they took in 2008 is not a new incident of discrimination for the purposes of determining the limitation period: Mafinezam v. University of Toronto, 2010 HRTO 1495. Similarly, the applicant’s ongoing inability to attend Bell High School does not amount to ongoing discrimination. This situation analogizes to an applicant who alleges discrimination in the termination of her employment. In those cases, the Tribunal has stated that an ongoing inability to return to work will not generally constitute ongoing discrimination: see Prescod v. National Steel Car Limited, 2011 HRTO 2244 at para. 14.

15Finally, the Tribunal has stated that the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination: see Mafinezam, supra, at para. 13. For this reason, I do not accept the applicant’s argument that because the sense of humiliation and hurt continued throughout her high school studies, these ongoing sentiments are incidents of discrimination for the purpose of determining the limitation period.

Was the Application filed more than one year following the last alleged incident of discrimination?

16The Application was filed on June 28, 2010. Given my conclusion that the last act of alleged discrimination occurred in November or December 2008, the Application was filed approximately six months outside the limitation period provided for in the Code.

Was the delay incurred in good faith?

17In determining the issue of good faith, the Tribunal has considered factors such as the length of the delay, whether Code-related reasons 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: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424; Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.

18Counsel for the applicant argues that the delay in filing the Application was in good faith because it “resulted from a well founded fear of retribution from the respondent’” and a belief that the expiry period had not yet expired. Counsel states that, while the applicant had the benefit of counsel from approximately November 2008 to May 2009, she was not represented between May 2009 and June 2010.

19I note that the applicant pursued an appeal of her academic suspension under the Education Act, R.S.O. 1990, c. E.2. Counsel for the applicant states that the appeal was abandoned because no meaningful remedy was available in that process.

20In terms of the applicant’s argument that she was not aware of the one-year limitation period in the Code, the Tribunal’s case law makes clear that while ignorance of one’s rights may amount to good faith, an applicant alleging this must also establish that she had no reason to make inquiries about her rights. See, for example, Ramnath v. Peel Regional Police 2010 HRTO 548 at paragraphs 12 and 14 and Lutz v. Toronto, 2009 HRTO 1137.

21In this case, the applicant did, in fact, make inquiries about her rights and she took steps under the Education Act to pursue at least some of those rights. The applicant had legal representation for approximately five months after the alleged incident of discrimination. In the circumstances, I cannot conclude that the applicant had no reason to make inquiries about her rights under the Code or that any ignorance of the limitation period amounts to good faith.

22Further, I cannot accept that the applicant’s fear of reprisal justifies the delay in filing the Application. As I have indicated, the applicant did take some steps to pursue her rights under the Education Act. She has provided no explanation as to why pursuing her rights under the Code caused her to fear retribution, whereas this fear did not prevent her from appealing the respondents’ decision under the Education Act. In any event, the Code contains express provisions regarding reprisal and threat of reprisal. It is not clear to me that fear of reprisal could, generally, constitute a good faith basis for delay.

23Finally, many if not most, applicants before the Tribunal are not represented. A lack of legal representation without, for example, some link to a Code-related factor, does not constitute a good faith reason for delay. In this case, the applicant’s general assertions about being unrepresented for a period of time are not sufficient to establish a reasonable explanation for her failure to file the Application within the limitation period.

24I do not doubt that the applicant faced challenging circumstances, as do many applicants before the Tribunal. However, the applicant has not satisfied me that the delay in filing the Application was in good faith within the meaning of section 34(2) of the Code.

DECISION

25The Application is dismissed pursuant to section 34 of the Code. The Application was filed more than one year after the last alleged incident of discrimination. I am not satisfied that the delay was incurred in good faith.