HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Eugene Stasiuk
Applicant
-and-
Ministry of Education (Ontario)
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed as: Stasiuk v. Ontario (Education)
1This Application was filed on February 14, 2012 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code") alleging discrimination with respect to employment because of sexual orientation. In response to Question 7 of the Application, which asks what the date of the last event was, the applicant indicated that the last event was in "May 1960".
2By correspondence dated March 5, 2012, the Tribunal issued a Notice of Incomplete Application and Notice of Intent to Dismiss ("Notice") to the applicant. In addition to requiring the applicant to provide a copy of the statement of claim that started his court action, the Notice indicated that it appeared that the Tribunal did not have jurisdiction over the Application because it appears that the Application was filed more than one year after the last incident of alleged discrimination. The Notice directed the applicant to file submissions on or before March 25, 2012 with respect to the jurisdictional issue of timeliness.
3On March 16, 2012, the applicant filed a copy of his Statement as filed with the Supreme Court of Ontario and the Court's decision, dated December 6, 1984. The applicant did not file submissions with respect to the jurisdictional issue of the timeliness of the Application.
DECISION
4The applicant alleges that his teaching certificate was revoked on discriminatory grounds in the 1960s and that he believes his certificate should have been returned in the 1973 when the American Psychiatric Association removed homosexuality from its Diagnostic and Statistical Manual of Mental Disorders. The court documentation provided by the applicant indicates that he sought the assistance of the Ombudsman's Office from 1975 to 1977 and pursued a judicial review of the certificate revocation, a process which continued in the 1980s. Ultimately, it appears that the applicant was successful in regaining his teaching certificate in 1989. The applicant indicates that he worked as a supply teacher until his retirement in 2000.
5In his Application, the applicant indicated that he made the Application more than one year after the events because he "tried other agencies for remedies".
6Section 34 of the Code provides:
(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.
7The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code's objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.
8The Tribunal's jurisprudence establishes that the onus is on the applicant to demonstrate that the delay in filing the Application was in good faith. In determining the issue of good faith, factors for consideration include whether Code-related reasons (such as a disability) 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: Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110 and Doyle v. Canarm, 2009 HRTO 674.
9As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period.
10It appears the alleged events occurred several decades prior to the filing of this Application.
11With respect the applicant's contention that he was involved with other agencies in seeking redress, it is noteworthy that efforts to pursue one's rights elsewhere, without more, have been found not to justify delay, see: Miller, supra; Lutz v. Toronto (City), 2009 HRTO 1137; Kelly v. CultureLink Settlement Services, 2010 HRTO 508.
12Based on the documentary materials, it appears that the applicant chose to focus on these other avenues of redress for a number of years and did not pursue his human rights. Further, I do not find the applicant's materials constitute persuasive evidence that the applicant's situation prevented him from pursuing his rights under the Code.
13I do not accept the applicant's suggestion that he continued to experience the discrimination into the 2000s. Any alleged continuing effect flowing from the earlier events does not extend the Code's section 34(1) timeline. See Mafinezam v. University of Toronto, 2010 HRTO 1495. Moreover, to allow an applicant to revive an out of time claim by simply restating old concerns would undermine the purpose of section 34 of the Code. See Seetharam v. Iogen, 2010 HRTO 1811.
14I do not accept that the applicant's materials establish that the applicant met the fairly high onus the Tribunal requires to show that the delay in the filing of an Application was incurred in good faith pursuant to section 34(2) of the Code. Accordingly, the Application does not meet the requirements of section 34(1).
CONCLUSION
15Accordingly, the Application is dismissed on the basis that it is outside the Tribunal's jurisdiction because of delay.
Dated at Toronto, this 1st day of May, 2012.
"Signed by"
Ena Chadha
Vice-chair