Church v. Ontario Society for the Prevention of Cruelty to Animals, 2012 HRTO 322

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Church

Applicant

-and-

Ontario Society for the Prevention of Cruelty to Animals

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: February 14, 2012

Citation: 2012 HRTO 322

Indexed as: Church v. Ontario Society for the Prevention of Cruelty to Animals

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that he experienced discrimination in receipt of goods, services and facilities on the basis of race, ancestry, ethnic origin and disability. The respondent organization filed a Response denying all allegations and seeking dismissal of the Application.

2Upon a review of the file, it appeared there may be an issue as to delay in filing the Application. The applicant indicates that the date of the last in a series of events of discrimination took place in January 2010. However, there are no specific events described in the body of the Application that correspond to that date. The narrative and supplementary forms in the Application refer to incidents that took place during 2008.

3The Tribunal directed that a preliminary hearing be scheduled to address the issue of delay. Three hearing dates were set, some to proceed by way of conference call and others to proceed in person, at the request of the applicant. The three scheduled dates were November 22, 2010, May 31, 2011, and October 12, 2011. All three have been adjourned at the request of the applicant.

4The first date (November 22, 2010) was cancelled because the applicant indicated that he could not participate by way of conference call and sought an in-person hearing.

5A hearing was scheduled for May 31, 2011, in Toronto. The applicant then sought an adjournment of that date, citing ill health. In a Case Assessment Direction (“CAD”), dated May 30, 2011, the Tribunal granted his request as he had indicated that his ill health prevented him from either participating by phone or travelling to Toronto. The respondent consented to the adjournment request and suggested that the hearing be held in Lindsay, Ontario to accommodate the applicant’s health and transportation issues. The Tribunal indicated that the next scheduled date would take place in Lindsay, Ontario and would be peremptory to the applicant.

6A Notice of Confirmation of Hearing dated July 7, 2011 was sent to the parties indicating that the hearing would take place in Lindsay, Ontario on October 12, 2011. There was no indication that the Notice was not received by either party and the Tribunal did not receive any mail returned as undeliverable.

7The Tribunal then received two faxes from the applicant dated September 21, 2011 and October 4, 2011, neither of which had been copied to the respondent. The applicant sought to have his hearing held “in late April 2012” and indicated that he had not received the Notice of Confirmation of Hearing setting the hearing for October 12, 2011. He stated that his health conditions prevented him being able to participate in a hearing until April 2012 and offered a letter supporting this proposition from his pharmacist.

8The Tribunal forwarded a copy of the faxes to counsel for the respondent immediately and issued a CAD dated October 5, 2011 in which it directed that the applicant provide a letter from his treating physician confirming that he was unable, for reasons relating to his medical conditions, to attend and participate in a half day hearing in Lindsay, Ontario on October 12, 2011. The applicant was given until 5 p.m. on Friday, October 7, 2011, to send this letter.

9On October 7, 2011, instead of a note from his physician, the applicant sent another fax to the Tribunal indicating that the doctor would not be available until the 17th of October, 2011 and he would then obtain a note.

10Having reviewed the Application file, despite the applicant’s inability to provide the necessary medical information within the specified time lines, the Tribunal cancelled the October 12, 2011 hearing date in Lindsay, Ontario, as a result of the applicant indicating his inability to participate in person as a result of his medical restrictions.

11As the Application file showed that the applicant had no difficulty in communicating with the Tribunal and the respondent in writing, having filed at least eleven written and typed documents (in addition to the pleadings) to the Tribunal over the course of the life of this Application, the Tribunal directed that the preliminary issue of delay would be dealt with in writing.

12The Tribunal directed that the applicant provide his submissions on the issue of delay, as outlined in a previous Case Assessment Direction issued by the Tribunal on September 3, 2010. The applicant was given two weeks from October 11, 2011, to do so. The respondent was then provided a further two weeks to provide its submissions in writing. Finally, the applicant was given a week to provide his reply submissions. The parties were directed to provide any case law relied upon with the submissions

13In particular, the applicant was directed to provide his submissions on the following questions:

a. Why January 2010 should be treated as the date of an incident of discrimination within the meaning of section 34;

b. If January 2010 is not the date of an incident of discrimination, the applicant was directed to address s. 34(2);

c. If January, 2010 is found to be the last of a series of incidents, the applicant was directed to provide an explanation for the delay between the incidents that occurred in 2008 and January, 2010.

14On October 14, 2011 and October 25, 2011, the applicant sent in faxes providing a medical note that indicated he could not attend a hearing in person and two notes written by himself indicating that he could not proceed by way of written submissions and stating that given his medical and other restrictions, “only a moron could expect (him) to”. His written materials did not address the questions relating to the issue of delay, as outlined above.

15In arriving at my Decision, I have considered all materials in the Application file, including the parties’ pleadings, the various faxes and mailings received from the applicant and the materials filed by the respondent in anticipation of the scheduled teleconference and in person hearings.

16For the reasons that follow, this Application is dismissed.

DECISION

17Section 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.

18This Application was filed on March 3, 2010. The crucial question in the circumstances of this Application is what discriminatory “incident” took place in January 2010, given that the narrative refers to alleged events that occurred in 2008 and no further.

19Although he has been given a number of opportunities to do so, the applicant has failed to provide any clarification as to what “incident” took place in January 2010.

20The respondent, on the other hand, has provided detailed will-say statements and other information that indicates OSPCA agents attended at the applicant’s property to investigate reports of several animals in severe distress on a number of occasions between June 2008 and January 2009.

21It has also provided documents that show that a City of Kawartha Lakes municipal by-law officer visited the applicant’s property in response to a zoning complaint made by one of the applicant’s neighbors in January 2010, but points out that the City employee is completely unconnected to them.

22There is no indication from the documents, pleadings, submissions and communications in the Application file that there was any contact between the parties after January 2009. As such, I find that the last incident of alleged discrimination cited in the Application could not have taken place after January 2009. The Application was filed on March 3, 2010. Any allegations involving the respondent or its employees are clearly outside the one-year period as set out in section 34(1) of the Code and, consequently, untimely.

23The 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 the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

24In 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. On 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.

25In the circumstances, 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.

26Accordingly, the Application is dismissed.