Jayasinghe v. Seneca College of Applied Arts and Technology, 2012 HRTO 60

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yakdehikandage Samadara Jayasinghe

Applicant

-and-

Seneca College of Applied Arts and Technology, Vilma Filici and Susan Horne

Respondents

Reconsideration DECISION

Adjudicator: Naomi Overend

Date: January 11, 2012

Citation: 2012 HRTO 60

Indexed as: Jayasinghe v. Seneca College of Applied Arts and Technology

WRITTEN SUBMISSIONS BY

Yakdehikandage Samadara Jayasinghe, Applicant (Self-represented)

Seneca College of Applied Arts and Technology, Vilma Filici and Susan Horne, Respondents (Ann E. Burke, Counsel)

1The applicant filed her Application on February 28, 2011, alleging discrimination in services on the basis of race, place of origin, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On July 12, 2011, the Tribunal issued a Decision in which it dismissed the Application because it had not been filed in a timely manner and the delay was found not to have been incurred in good faith: 2011 HRTO 1327.

3On August 4, 2011, the applicant filed a Request for Reconsideration of that Decision and submissions in support of her Request. Pursuant to a Registrar’s Letter and then a Case Assessment Direction (“CAD”), the parties were asked to provide further submissions, which they have done.

REQUEST FOR RECONSIDERATION

4Section 45.7 of Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, reconsideration will not be granted unless the Tribunal is satisfied that:

a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

5In her Request, the applicant checked the boxes indicating that all four factors set out above applied/formed the basis for her Request. However, the only applicable factor set out in the text of the Request relates to alleged lack of notice. Specifically, the applicant alleges that she knew nothing about the respondents’ Request for Order During Proceedings (“RFOP”) asking that the Application be dismissed on the basis of delay.

6As noted in my July 12, 2011 Decision, the respondents filed a Response and the above-noted RFOP in which they ask that this Application be dismissed on the basis of delay. The applicant did file a Reply to the respondents’ Response (which was delivered to her via regular mail by the Tribunal), but this document does not address the issue of delay. She filed no Response to the RFOP, which meant that at the time the Decision on delay was released, I had no submissions from the applicant on the issue of delay. This is noted in the July 12, 2011 Decision.

7The Statement of Delivery attached to the RFOP indicates that it was delivered to the applicant via email on May 25, 2011. The applicant states she did not receive the RFOP. In her most recent submissions to the Tribunal, the applicant indicates that, although in her Application she gave her email address as a valid means of contacting her, her computer is “not totally functioning” and was “broken” during this period. She also indicates that she was in poor health and not able to travel outside her home at this time in order to access her email.

8The applicant has been diligent about responding to anything sent to her by the Tribunal via regular mail, which in these circumstances suggests that she did not, in fact, receive the email from the respondents’ counsel enclosing its RFOP. Although she had some notice in the Response that the question of delay was being raised by the respondent, without receiving the RFOP the applicant would not have been aware that the respondents were making a specific request to the Tribunal for an order dismissing her Application. Accordingly, I am exercising my discretion to reconsider my earlier Decision.

9The applicant has now provided full submissions on the issue of delay. In accordance with Rule 26.8 of the Tribunal’s Rules of Procedure, I will make a decision on the issue of delay without receiving further submissions from the parties.

DELAY

10The respondents state that Application is barred by virtue of s. 34, which states in part:

(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.

Was the Application Timely?

11The narrative in section 8 of the Application details interactions which the applicant states are discriminatory, but does not contain dates. In assessing the issue of delay, I have relied on the dates provided in the Response, which the applicant does not dispute in her Reply or further submissions.

12The Response states that the academic program in which the applicant was enrolled consisted of six modules, which ran from August 2008 to August 2009. The respondents state that the applicant’s last interaction with Vilma Filici, one of the named respondents, was in August 2009, approximately 18 months prior to the Application being filed with the Tribunal in February 2011.

13The Application and Response detail extensive interactions between the applicant and the respondents in which she asks that her marks be reviewed in each of the six modules, but that the only issues that continued after August 2009 concerned her work in the fifth module. The applicant asked that her exam in Module 5 be re-marked. In the process of re-marking the exam, some alleged irregularities were noted, and in September 2009 she was accused of academic dishonesty concerning her exam.

14The applicant appealed the finding of dishonesty, which was upheld at the first level of appeal by decision issued November 4, 2009. The applicant’s appeal of that decision was allowed on April 8, 2010, on the basis that she not been given an opportunity to provide her response to the allegations of cheating. Her exam for Module 5 was re-marked, but the applicant did not pass the exam and was required to re-take Module 5 in the summer of 2010.

15The Response states that in her letter appealing the first level of appeal, dated November 10, 2009, the applicant makes extensive allegations of discrimination and for that reason was referred to the Resolution, Equity and Diversity Centre (“the Centre”) at the respondent College. The Application makes no reference to this process, only the academic appeals referred to above.

16In response to the question “What was the date of the last event?” in section 7 of her Application, the applicant states it was March 22, 2010, but does not detail what occurred on this date. The respondents advise that that was the date on which the applicant was sent an email, confirming an earlier conversation with the applicant that the Centre had found no evidence of a violation of its internal Discrimination and Harassment Policy or the Code.

17In her submissions on delay, the applicant now states that the Centre’s investigation against her was discriminatory on the basis that it “[c]ompletely and deliberately disregarded the fact the [she] was a permanently disabled person.” The applicant cites no basis for this assertion other than the fact that the decision was helpful to those at the respondent college who she believes had already discriminated against her.

18The Ontario Divisional Court in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993, at para. 45, adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 1983 CanLII 4703 (MB CA), 5 C.H.R.R. D/1885, at para. 19:

To be a “continuing contravention”, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

19The distinction between “continuing effects of an act of alleged discrimination” and “further acts of discrimination” has been accepted by this Tribunal: See, for example, Mafinezam v. University of Toronto, 2010 HRTO 1495.

20In essence, the applicant is asserting that by failing to find discrimination, the process further discriminated against her. However, attempts to enforce one’s rights are not properly characterized as further acts of discrimination, even when they do not result in the hoped-for vindication. Thus, investigations into allegations of discrimination are not properly characterized as the last of an ongoing series of incidents.

21Moreover, unless there are specific allegations of discriminatory conduct during the investigation itself, the investigation and/or the results of that investigation cannot be seen as a discrete act of discrimination. No such specific allegations were made with respect to the investigation undertaken by the Centre. Accordingly, I am not prepared to include the Centre’s investigation in order to assess the timeliness of this Application.

22For the same reasons, I am not prepared to include the appeals process as part of a series of ongoing incidents upon which to assess delay. While the applicant makes reference to the appeals process in her Application, she does not make any allegation of discrimination concerning the persons involved in that or the procedures that followed, stating only that it was a “lengthy process” which she had to go through to clear her name.

23In her December 2011 submissions on delay, the applicant is now asserting that the respondent College failed to accommodate her needs even after the investigation and the second level appeal were concluded. At this stage, I am loath to allow the applicant to make further allegations in order to make an untimely Application timely. This is unfair to the respondents and an abuse of the Tribunal’s process.

24In addition, although the applicant makes a general assertion that the respondent College did not accommodate her needs as a disabled student in June 2010, she does not specify what needs were unmet or make any allegations of discrimination during that period. It is important to note at this juncture that there is no stand-alone right to “accommodation” set out in the Code. The question of accommodation arises only in the context of an allegation of discrimination.

25Relying on the information in the Application, the last allegation of discriminatory conduct set out in the Application allegedly occurred in August 2009. Given that the Application was filed 18 months later, in February 2011, it was filed out of time.

Was the Delay Incurred in Good Faith?

26The Tribunal can accept an Application that is outside the one-year time limit if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he or she did not pursue his or her Code rights in a timely manner.

27This Tribunal has stated that 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. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. There was nothing to prevent the applicant from filing a separate human rights Application even while pursuing her appeal of the findings of dishonesty or consulting with the Centre concerning her allegations of discrimination.

28Moreover, those processes were concluded well within the one-year time frame set out in the Code so that the applicant could have awaited their outcome and still filed a timely Application.

29The applicant has provided no explanation for why she filed her Application so long after her dealings with the respondents. In the absence of this explanation, I have nothing on which to determine whether such the delay was incurred in good faith or otherwise.

30Given the applicant’s failure to demonstrate that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application. It is not necessary, therefore, to address the issue of prejudice.

31The Application is dismissed.