HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christopher St. Louis
Applicant
- and-
Ottawa Police Services Board and Norma Couturier
Respondents
INTERIM decision
Adjudicator: Ian R. Mackenzie
Indexed as: St. Louis v. Ottawa Police Services Board
APPEARANCES BY
Christopher St. Louis, applicant ) Chantal Tie, Counsel
Ottawa Police Services Board and ) David Patacairk, Counsel
Norma Couturier, respondents )
1Christopher St. Louis has filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in services on the basis of disability and race. He alleges that he was discriminated against based on his disability and race in that his hunting rifles were retained by the Firearms Officer, Norma Couturier. The Ottawa Police Services Board is the organizational respondent.
2The respondents raised the timeliness of the Application at the commencement of the hearing, submitting that the Application had been filed outside of the one-year time limit set out in the Code. The respondents advised the applicant that it would be making this submission the day prior to the hearing. In the circumstances, I heard submissions of the parties and allowed the applicant to make additional submissions in writing.
3For the reasons set out in this Interim Decision, I have concluded that the Application is untimely. I did not receive submissions from the applicant on whether I should exercise my discretion to extend the time limit (pursuant to s. 34). The applicant will provide submissions on whether the applicant’s delay was incurred in good faith within two weeks of the date of this Interim Decision. The respondent will have one week from the receipt of those submissions to file a reply.
4The respondents made additional jurisdictional objections at the hearing. In light of my conclusion on timeliness, I have deferred consideration of those arguments until I have made a determination on whether to exercise discretion to extend the time limit.
BACKGROUND
5Section 34 of the Code provides that an Application must be filed more than one year after the incident or last incident in a series to which it relates. A late Application is within the Tribunal’s jurisdiction if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by it. The section reads as follows:
- (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.
6The police seized the applicant’s hunting rifles from his home on January 9, 2007. Criminal charges were withdrawn against the applicant and a peace bond was issued on October 25, 2007. Ms. Couturier, under the Firearms Act, placed the applicant’s firearms license under review because of concerns about his mental stability. She revoked the applicant’s license on January 16, 2008. The applicant filed a judicial review application against her decision. The judicial hearing occurred on September 29, 2008. At the hearing, his counsel took the position that the applicant was entitled to his guns, pending the resolution of the hearing. The judge stated that the applicant would have to bring a motion requesting the return of the guns. On October 30, 2008, the applicant’s counsel confirmed that the respondents did not consent to the release of the hunting rifles. No motion was brought for the return of the rifles.
7The judicial review decision was issued on March 10, 2009. The decision to revoke the applicant’s license was annulled. The hunting rifles were returned to the applicant on March 19, 2009.
8This Application was filed on September 15, 2009.
Submissions
9The organizational respondent submitted that the Application solely relates to the decision of the personal respondent to revoke the applicant’s firearm license. The Application was filed one year and eight months after the revocation. In order for an adjudicator to permit an untimely application the applicant must demonstrate a good faith reason for an extension of the time limit. The 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: Mufata v. Ottawa Police Services Board, 2010 HRTO 814 at para. 22.
10The respondents submitted that there is not a continuing contravention of the Code. In Visic v. Ontario Human Rights Commission, University of Windsor et al., 2008 CanLII 20993 (ON SCDC), aff’d 2008 ONCA 731, the court concluded that the continuing effects of an alleged discriminatory act is not an independent event (paras 41-52). The time limit runs from the last act for which the respondent could be held liable, not the last moment of the effect of discrimination.
11The respondents submitted that nothing happened in the time between the revocation and the filing of the Application that was discriminatory. The applicant was simply continuing to suffer the effects of the revocation.
12In Mufata v. Ottawa Police Services Board, 2010 HRTO 814, the adjudicator concluded that waiting until the end of criminal proceedings was not sufficient to establish that a delay was incurred in good faith. The adjudicator concluded that nothing prevented the applicant in that case from filing his Application and then deferring it until the criminal proceeding was completed (para. 23). In addition, waiting to acquire additional information (in this case, the results of the judicial review application) is not sufficient to establish good faith: Dionne v. City of Toronto, 2011 HRTO 317.
13The respondents stated that they were relying on the absence of good faith and were waiving their right to raise arguments on substantial prejudice.
14The applicant submitted that the position of the respondents was based on a mischaracterization of the Application. The applicant is alleging a series of discriminatory incidents as follows:
a. in the conduct of the investigation by Ms. Couturier prior to January 16, 2008;
b. in the discriminatory revocation of the firearms license on January 16, 2008; and
c. in the retention of his firearms which continued until March 19, 2009.
15Until March 19, 2009 the applicant submitted that there was a continuing state of affairs which was discriminatory. When properly characterized in this way, the applicant states that it is clear that the applicant filed his Application within the one-year time limit.
16The applicant submitted that should the Application be dismissed at this early stage, the Tribunal would in effect be determining that there is no merit to his claim.
17The applicant submitted that the applicant is only required to show that the Application contains allegations which, if proven, could constitute a continuing contravention of the Code: Penner v. B.C. (MPSSG), 2005 BCHRT 465 at para. 11.
18The applicant submitted that the interpretation of a continuing contravention of the Code should be given a generous and liberal interpretation: Newfoundland and Labrador (Human Rights Commission) v. Newfoundland Liquor Corp., 2004 BCHRT 7, [2004] N.J. No. 22 (at para. 59).
19The applicant referred me to the case of Dove v. Greater Vancouver Regional District, 2006 BCHRT 377 for its discussion of the relevant factors used to distinguish a continuing contravention from a single act of discrimination. Dove concluded that the Tribunal should consider the relevant factors in light of the purposes of the Code, “including ensuring that individuals who claim to have suffered discrimination are given a means of redress while at the same time ensuring that respondents are treated fairly” (at para. 20).
20The applicant also referred me to the jurisprudence in the labour arbitration context. A continuing grievance has been found when the conduct is renewed at regular intervals and is capable of being considered as a series of separate actions rather than as one action, with continuing consequences (e.g., Parking Authority of Toronto v. CUPE Local 43, 1974 CanLII 445 (ON HCJDC), 5 L.A.C. (2d) 150 at para. 9). The monthly failure to pay the appropriate benefit cost was considered to be a continuing breach (Toronto (City) v. Toronto Civic Employees Union, (Cooke Grievance) [2011] O.L.A.A. No. 327, para. 70).
21The applicant submitted that Ms. Couturier assumed control over the hunting rifles in October of 2007. While the retention of the hunting rifles and the decision to revoke the firearms license were incidents, the continued retention of the hunting rifles was an ongoing deprivation of a right and the loss of an opportunity for the applicant. According to the applicant, there was a continuing violation of the applicant’s rights as the hunting rifles remained in the respondents’ control and were withheld on a discriminatory basis.
22The applicant submitted the following:
the respondents failed to do what was required of them (releasing the hunting rifles);
the respondents failed to correct the wrong by specific performance;
the respondents failed to take action to put an end to the discriminatory state of affairs;
the respondents continued to commit the injury until March 19, 2009;
the discriminatory conditions continued to be applied to the applicant until March 19, 2009; and
the respondents continued to assert a right to withhold his firearms, on a discriminatory basis.
23The applicant submitted that each day that the rifles were retained is a separate act capable of being the subject of an individual human rights application.
24The applicant submitted that the retention of the hunting rifles was not part of the judicial review process. The judicial review hearing dealt exclusively with whether the decision to revoke the license was justified and did not address the retention of the rifles.
25The applicant submitted that the Firearms Act presumes the continued possession of the rifles by the applicant. Subsection 72(6) of that Act provides that licenses and firearms do not have to be surrendered for disposal until after a reference to the provincial court. As such, the applicant submits that the respondents had no legal authority to retain the firearms. Discussions with the respondents about the release of the hunting rifles were held continuously until the rifles were released.
26The applicant submitted that it was confirmed on October 30, 2008, that the respondents were unwilling to return the hunting rifles. This falls within the one-year time limit. In addition, there were numerous requests for the return of the rifles. The applicant submitted that the tribunal has recognized that ongoing negotiations and discussions concerning the accommodation of a disability in housing are events which can bring an application within the timelines, even where the initial denial of accommodation was not: Whyte v. Sudbury (City), 2011 HRTO 885. The applicant submits that there is little to distinguish this type of ongoing negotiation from what occurred in this case.
27The applicant requested that in the event that the Tribunal determines the Application is out of time, that he be permitted to call evidence regarding good faith and no substantial prejudice, in order to argue for an extension of time under subsection 34(2) of the Code. The applicant submitted that an assessment of credibility will be required to determine if there was good faith and substantial prejudice. Therefore, he submitted that an oral hearing was appropriate to properly determine these issues.
28The respondents submitted that the Application is not a series of events, but one event that crystallized on January 16, 2008. To find that the breach of the Code was ongoing would require a finding that each and every day since the date of the retention of the firearms is an independent wrong under the Code. The respondents submitted that this characterization was not reasonable.
29The respondents submitted that the applicant’s interpretation of the Firearms Act was incorrect. The issue of the return of the firearms was directly addressed in the judicial review application and the judge stated that the proper approach was to schedule a motion. No motion was filed.
30The respondents submitted that the labour arbitration jurisprudence submitted by the applicant was not relevant, as these cases involve ongoing issues which are repeated. In such cases, jurisdiction is found where there is a continued repetition of the matter at issue, not an ongoing effect. An error in an employee’s pay does not become a continuing event because the matter is not corrected; rather, it is considered to be continuing because it is repeated every pay period.
31The respondents stated that the fact that the applicant raised the issue of retention of his firearms at the judicial review proceeding demonstrates that the applicant was already engaged in efforts to reclaim his firearms. It also demonstrates that he failed to file a timely application given the knowledge and legal representation he had at the time.
32The respondents submitted that the only reason ever given by the applicant for the delay in filing the Application was that he was waiting for the completion of the judicial review. This does not amount to good faith. In the absence of any other claim regarding the delay, the respondents submitted that there is no reason for an oral hearing on the issue.
DECISION
33Section 34 of the Code permits the filing of an Application alleging an infringement of rights under the Code within one year after the incident to which the Application relates or, if there was a series of incidents, within one year after the last incident in the series.
34The applicant’s firearms license was revoked on January 16, 2008 and the Application was filed on September 15, 2009. The applicant’s position is that there was a continuing series of events until the firearms were returned. For the reasons set out below, I have concluded that the retention of the firearms was a single incident and not a series of incidents and the Application is therefore untimely.
35In Visic, the Court distinguished between a continuing contravention of the Code and continuing effects or consequences of an alleged contravention. The Court relied on the following statement from Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117 (C.A.) 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.
36The threshold question in applying section 34 to the circumstances in each case is what constitutes the “incident” to which the Application relates (Mafinezam v. University of Toronto, 2010 HRTO 1495 at para. 13).
37The applicant has argued that the continued retention of his rifles was a continuing contravention of the Code. He has also argued that continued negotiation for their return constitutes a series of incidents.
38In Longtin v. Great-West Life Assurance Company, 2011 HRTO 244, the Tribunal was faced with a similar argument. In that case, the applicant’s employment had been terminated more than a year before the filing of her Application. She argued that the repeated refusal of the respondent to reverse its decision was an act of ongoing discrimination. The adjudicator concluded (at para. 18):
On the face of the facts in this instant case, the applicant continues to not be employed by Great-West and, as a result of that status, continues to not have access to health and pension benefits. That is, she continues to experience the consequences of what she alleges is the discriminatory act of terminating her employment. Her attempts to dispute that termination, and the company’s decision to stand by its original decision, cannot be said to be further acts of discrimination.
39Efforts to remedy an original discriminatory act are properly characterized as “continuing effects of an act of alleged discrimination” (Segura Mosquera v. University of Toronto, 2011 HRTO 464 at para. 10). The fact that the applicant made efforts to obtain his hunting rifles does not constitute a new act of discrimination on the part of the respondents.
40In this case, the alleged discriminatory action of the respondents is the retention of the applicant’s hunting rifles. The guns were initially seized in January of 2007. A decision to revoke his license was made on January 16, 2008. He filed a judicial review of the revocation shortly afterwards. Assuming for the sake of this determination on timeliness that the respondents were required to return his hunting rifles pending the outcome of the judicial review, the last incident of alleged discrimination (the refusal to return the hunting rifles) is January 16, 2008. The continued requests by the applicant and the continued refusal of the respondents to return the guns do not make the retention of the hunting rifles a series of incidents. The applicant relied on Whyte to suggest that continuing negotiations amounted to a series of incidents. However, in that case, the applicant made additional submissions and provided additional medical documents. In addition, the adjudicator concluded that it appeared there were two applications with various pieces of medical documentation. On this basis, she concluded that the housing request by the applicant and the basis of that request evolved in nature. In this case, the basis of the request for the return of the hunting rifles did not evolve or change over the period from January 16, 2008 until their return.
41I have concluded that the continued retention of the hunting rifles is the continuing effect of an act of alleged discrimination and does not amount to continuing acts of alleged discrimination. Accordingly, the Application is not within the one-year time limit established by the Code.
42The 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 (subsection 34(2) of the Code). To find that a delay in filing an Application was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his rights under the Code in a timely manner: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424.
43The applicant has not made submissions on the exercise of discretion to relieve against the one-year time limitation. The respondents have stated that they waived their right to raise issues of substantial prejudice. The applicant submitted that an oral hearing was required to address good faith because there are issues of credibility. The applicant did not provide any reason, other than waiting for the completion of a judicial review proceeding, to explain the reason for the delay in filing the Application. Other than the assertion by the applicant that credibility is an issue, there is no explanation for the delay that necessitates a finding on credibility. In the circumstances, submissions in writing will be sufficient to determine whether the applicant’s delay was incurred in good faith.
44The respondents have waived their right to make arguments on “substantial prejudice”. Accordingly, I do not need to hear arguments from the applicant on substantial prejudice.
ORDER
45The Tribunal orders:
a. The Application is not timely;
b. The applicant shall provide submissions in writing relating solely to the good faith reasons for the delay in filing his Application within two weeks of the date of this decision; and
c. The respondents will provide written submissions in reply within one week of receiving the written submissions of the applicant.
Dated at Toronto, this 7th day of May, 2012.
”signed by”
Ian R. Mackenzie
Member