Lydia Nicoll v. Toronto Police Services Board, 2012 HRTO 74

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lydia Nicoll

Applicant

-and-

Toronto Police Services Board

Respondent

DECISION

Adjudicator: David Muir

Date: January 12, 2012

Citation: 2012 HRTO 74

Indexed as: Nicoll v. Toronto Police Services Board

WRITTEN SUBMISSIONS BY

Lydia Nicoll, Applicant ) Self-represented

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 12, 2011, alleging discrimination in employment by the respondent. The allegations stem from incidents that the applicant states took place primarily between late August and December 2009. The applicant also states that the discriminatory conduct of the respondent was ongoing to the date she filed the Application.

2In its Response the respondent states that the Application should be dismissed on the basis that it had not been filed within the time limit as set out in section 34(1) of the Code. In correspondence from the Tribunal dated November 14, 2011, the applicant was directed to file her submissions in response to the respondent’s request. The parties were advised that the Tribunal may determine the issue on the basis of the parties’ written submissions.

3Section 34 of the Code 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.

4As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why she did not pursue her rights under the Code in a timely manner.

5The applicant was a police cadet. In the Application, the applicant alleges that she was subject to a series of discriminatory actions while in training at the Ontario Police College (OPC) between late August and December 2009, which prevented her from successfully completing the training program. The essential nature of the applicant’s claim is that by reason of her sex, age and ethnic origin she was written off as a potential police constable from the outset and that everything that happened to her flowed from the discriminatory attitudes of many of those involved in her training.

6The applicant states that the training program concluded on December 17, 2009 and that sometime after that she was advised in writing that she was unsuccessful in that she had failed three academic examinations. A letter from the respondent confirming this is dated December 17, 2009. The letter further advises her that “she lacked suitability for continued employment” with the respondent and that she was immediately suspended without pay. The reason given was her lack of success in the OPC courses, as noted above. The applicant does not challenge the respondent’s assertion that she resigned the same day.

7The applicant states that the discrimination is ongoing as the respondents continue to refuse her request to re-write the examinations that she failed. The applicant does not dispute the respondent’s assertion that the first request to re-write was made in a letter dated January 26, 2011 and the only documentation provided by the applicant supports that conclusion. According to the applicant, the request to re-write was denied in March 2011.

8The applicant also states that since December 18, 2009 she has “continuously investigated the circumstances” surrounding her lack of success at the OPC. The applicant states that the respondent perpetuated the discrimination since December 2009 by advising her in May 2011 that her log books for her failed courses had been destroyed. The applicant asserts that the log books were destroyed only after she had filed an access request under the Freedom of Information and Protection of Privacy Act (FOI). The applicant states that the purpose of her FOI request was to gather evidence for this Application.

9The Application is dismissed. The incidents of alleged discrimination in the Application relate to a number of incidents occurring between late August and December 2009. The Application was filed on July 12, 2011.

10The applicant argues that the discrimination is ongoing. I do not agree that this is the case. The applicant relies on her efforts to retrieve documentation from the OPC and their advice to her in May 2011 that the documents she sought no longer existed. The applicant states that she sought this information for purposes of this Application. The Tribunal has held on many occasions that the timelines in the Code are not suspended while an applicant seeks evidence to buttress their case. ( see Dorriesfield v. Domtar, 2012 HRTO 23 and the cases cited therein).

11As regards to the allegation of ongoing discrimination in that the respondents refused to allow the applicant to re-write the examinations she failed, I note that the first request to do was made on January 26, 2011; some 13 months after the events with which the Application is primarily concerned.

12As indicated above, section 34 of the Code requires that an Application be filed within 12 months of the last incident or last in a series of incidents. Although this is not made express in her submissions, in order to be successful the applicant must show that the refusal to allow her to re-write her examinations in March 2011 is an incident of discrimination in a series of incidents occurring between September and December 17 2009.

13The Tribunal has interpreted the phrase “series of incidents” as requiring that the incidents be connected to each other in terms of their timing and their subject matter. The Tribunal has determined in other cases that a gap in time of more than 12 months will in most cases interrupt the series of incidents. ( see Chintamen v. Toronto District School Board, 2009 HRTO 1225). The gap here is 16 months and for that reason I find that it is not one of a series of incidents within the meaning of section 34(2) of the Code.

14It is also not clear whether this allegation can or should be seen as a further incident of discrimination in any way connected to the allegations about which the Application is primarily concerned. A review of the material and the applicant’s submissions make clear that in the 13 months subsequent to the events of December 2009 the matter rested. Then in January 2011 the applicant began what she describes as her continuous investigation of the circumstances. It is then that she makes the request for documentation, as well as the request to re-write her examinations. These, in my view, are not further incidents of discriminatory treatment but were an attempt by the applicant to persuade the respondent to change its position taken in December 2009 or, alternatively, an attempt to revive her claims of discrimination that had arisen many months earlier.

15I find that one cannot make an untimely claim timely by making demands of a potential respondent months after the claim could and should have been made. Accordingly, I find that the applicant is unable to rely on these alleged incidents in 2011 to revive her claims of discrimination between late August and December 2009 and that the last act of discrimination occurred on December 18, 2009. I also find that after the fact requests of a respondent to change its view of a matter do not constitute independent incidents of discrimination ( see Dorriesfield v. Domtar, 2010 HRTO 2190).

16Finally, the applicant also argues that by virtue of the fact that the Tribunal has accepted her Application and did not issue a Notice of Intent to Dismiss (NOID) the Tribunal must be deemed to have concluded that the Application is timely or that any delay was incurred in good faith. This is not so. No inference can be drawn from the fact that the Tribunal did not of its own motion raise the issue of timeliness.

17The Application being filed more than one year after the last incident of alleged discrimination, it falls to the applicant to provide a good faith explanation. The applicant relies on her attempt to have the respondent permit her to re-write the failed examination and to gather evidence from the respondents. For the reasons set out above, neither explanation is sufficient to establish good faith.

18Good faith is more than the absence of bad faith. As indicated above, the Code and the Tribunal’s decisions require that an applicant act with all due diligence. It is clear from the material that the applicant sat on her rights for over a year before deciding to pursue her concerns with the OPC and the respondent. Even then, the applicant did not file the Application for a further 6 months or more. The applicant provides no other explanation for the delay of more than 18 months from December 18, 2009 to July 12, 2011. I find that the applicant has not provided a good faith explanation for the delay in this case.

19For all of these reasons the Application is dismissed.