Gernon v. Toronto Police Services Board, 2012 HRTO 600

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vusumzi Msi on behalf of Mark Gernon

Applicant

-and-

Toronto Police Services Board

Respondent

DECISION

Adjudicator: David Muir

Date: March 22, 2012

Citation: 2012 HRTO 600

Indexed As: Gernon v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Vusumzi Msi on behalf of Mark Gernon, ) Self-represented

Applicant )

1This is an Application filed pursuant to section 34(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application was filed on January 18, 2012. In the Application it is alleged that the right of Mr. Gernon (the claimant) to be free of discrimination in employment on the basis of record of offences was infringed by the respondent. The applicant is a lawyer who represented the claimant in a prior human rights proceeding.

2On February 9, 2012 the Tribunal delivered to the applicant a Notice of Intent to Dismiss the Application (NOID) on the basis that it was filed more than 12 months after the last alleged incident of discrimination. The applicant has responded to the NOID. Although it appears likely that this Application should be dismissed pursuant to section 53(8) because the applicant takes the position, set out below, that the issue of record of offences was part of the subject matter of a complaint filed with the Commission, as this issue was not put to the applicant in the NOID I will deal only with the delay issue.

3The Application is dismissed. My reasons for this determination follow.

4Section 34(1) and (2) 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.

5Section 34 of the Code requires that an applicant act with expedition and file their application within one year of the last, or the last in a series of, incidents. It is not disputed by the applicant that this Application was filed more than 12 months after the last incident of discrimination complained of. The Application is out of time.

6However the Tribunal does have the authority granted in section 34(2) to extend the time for the filing of an application if the applicant is able to show a good faith explanation for the delay. The applicant asserts that he has a good faith explanation for the delay in this case.

7The allegations in this Application relate to events which occurred in the Fall of 2004. The claimant filed a complaint at the Ontario Human Rights Commission (the Commission) about the respondent’s recruiting process in December 2004.The applicant states that the claimant filed the complaint within 7 days of being made aware of the incident of discrimination. In the complaint the claimant alleged discriminating in hiring as well as an allegation of reprisal. The applicant asserts that the claimant raised his belief that he was discriminated against on the basis of a record of offences, amongst other grounds, with the Commission from the outset.

8At that time the Code required the Commission to investigate a complaint and determine whether it would refer the matter to the Tribunal for a hearing. After an investigation of the complaint, Commission staff recommended that the Commission not refer any aspect of the complaint to the Tribunal for hearing. The claimant filed a Reply to the staff recommendation. He did not raise the issue of record of offences at that time. The Commission subsequently determined that it would refer the reprisal issue to the Tribunal but not any of the other issues raised by the claimant related to the recruiting process. The claimant sought reconsideration of that decision. In his request for reconsideration the claimant did not raise the issue of record of offences. The request was denied by the Commission in August 2007.

9The applicant states that the respondent, in its pleadings filed with the Tribunal on July 30, 2007, alleged that the claimant’s record of offences supported its decision not to hire the applicant as a police officer. The applicant states that this was the first notice to the claimant that his “record of alleged offences had been actually relied upon by the respondent” in the recruiting process.

10The applicant states that he continually tried to get the issue of record of offences before the Tribunal. During the Tribunal hearing process the applicant made a request for documentation from the respondent related to the record of offences issue but that this was denied by the Tribunal on the basis that the material sought was of tenuous relevance to the reprisal issue before it. See 2009 HRTO 7. The applicant states that he sought reconsideration of the Tribunal’s determination of the production issue at the first day of hearing. The request was rejected and the applicant states that he issued a Notice of Application for Judicial Review of the production decision on May 5, 2009 but did not proceed with it pending the conclusion of the Tribunal hearing. The applicant also states that he did not seek leave of the Tribunal to have the issue of record of offences added to the complaint.

11After a number of days of hearing the complaint was dismissed by the Tribunal in a Decision dated January 18, 2011, 2011 HRTO 125. As indicated above, this Application was filed a year after the Tribunal’s Decision disposing of the complaint.

12The applicant argues that the claimant had no independent means of ascertaining what the respondent’s practices were with respect to hiring individuals with a record of offences and no practical means of placing the issue before the Tribunal. In this regard the applicant also states that the respondent led evidence in December 2009 that the claimant’s challenges to the use of record of offences was the main factor in their determination that he was unsuitable. The applicant states that until this evidence was tendered by the respondent, any attempt by the claimant to add the issue of record of offences to the complaint was “doomed to fail”. Accordingly, the applicant appears to be stating the Tribunal should now allow him to advance the issue, although he also claims that the Commission had “conclusively determined that the only issue to be referred to the Tribunal was the allegation of reprisal”.

13The delay in this case is extraordinary. As indicated above the allegation in the Application relates to events in 2004. The Tribunal has held that at a minimum, in order to establish a good faith explanation for the delay, an applicant must provide a reasonable explanation. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. The explanation offered by the applicant on behalf of the claimant is not a reasonable one and I am not satisfied that he has provided a good faith explanation.

14Leaving aside the question of whether the Commission had conclusively dealt with the issue or record of offences and despite the applicant’s assertions to the contrary there is no indication that the claimant or the applicant took any steps to have either the Commission or the Tribunal deal with the issue after it being raised by the claimant in the initial stage of the Commission’s investigation. I do not accept the applicant’s assertion that he or the claimant made every attempt to have the Commission and/or the Tribunal deal with the issue of record of offences and that the claimant had no other option but to await the outcome of the Tribunal determination of the reprisal issue before seeking to advance the claim. Contrary to these assertions, based on the material filed there is no indication that the claimant challenged the Commission’s apparent determination not to deal with it. As indicated above, neither in the reply to Commission staff recommendations nor in the request for reconsideration of the Commission’s referral to a hearing by the Tribunal did the claimant raise the issue. Finally, the applicant concedes that the claimant did not seek leave of the Tribunal to add the issue to the complaint at the Tribunal stage. Moreover, the applicant did not file a new Application with the Tribunal, which the claimant or the applicant would have been entitled to do as of June 30, 2008 - until one year after the Decision dismissing the complaint. Much less than a reasonable explanation, the applicant has offered no real explanation at all for the delay in this case.

15For all of these reasons the Application is dismissed.