HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Ross
Applicant
-and-
Simcoe County District School Board
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed as: Ross v. Simcoe County District School Board
WRITTEN SUBMISSIONS
John Ross, Applicant ) Self-represented
1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on February 8, 2012, alleging discrimination and reprisal with respect to employment and membership in a vocational association because of creed. In response to Question 7, the applicant indicated that the date of the last event was May 10, 2008.
2The Tribunal has not yet delivered the Application to the respondent. The purpose of this Decision is to address whether the Application should be dismissed at this preliminary stage because of delay.
3On March 16, 2012, the Tribunal issued a Notice of Intent to Dismiss to the applicant, which noted that the Application appeared to be outside of the Tribunal’s jurisdiction because it was filed more than one year after the last alleged incident of discrimination. The Notice required the applicant to provide written submissions to explain why the Application is within the Tribunal’s jurisdiction.
4The applicant filed written submissions on March 29, 2011. The applicant acknowledges that his Application is untimely; however, the applicant indicates that for a number of years he has attempted to have his concerns addressed. The applicant also indicates that he had to deal with mental illness and other issues which made it difficult for him to prepare his written materials.
ANALYSIS
5Section 34 of the Code states:
(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 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.
7This Application was filed on February 8, 2012, almost 4 years after the last alleged event. As such, the events alleged in the Application are clearly outside the time period provided under the Code. The Tribunal will not deal with an application filed more than one year after the incident, or a last incident in a series, unless it is satisfied that:
a. the delay was incurred in good faith; and
b. no substantial prejudice will result to any person affected by the delay.
8Given that both criteria of good faith and lack of substantial prejudice must be established in order to justify a delay beyond the one-year period, it is not necessary for the Tribunal to consider the issue of substantial prejudice if an applicant has failed to pass the good faith test: Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579. Therefore, notwithstanding the absence of substantial prejudice, the Tribunal has no power to relieve against the one-year time limit and does not have jurisdiction to determine an application in situations where the Tribunal is not satisfied that the delay was incurred in good faith.
9In order to demonstrate good faith an applicant must show something more than simply an absence of bad faith. See Reid v. March of Dimes, 2009 HRTO 2207.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.
10The applicant’s submissions appear to suggest that there are two reasons for his untimeliness: (i) his history of mental health concerns and (ii) his efforts to seek assistance through his lawyer.
11On review of the material before me, I am satisfied that this Application may not proceed. I do not accept that the applicant has satisfied 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. In considering whether the delay was incurred in good faith, the Tribunal has held that the onus is on the applicant to provide some reasonable explanation for the delay. See Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339.
12The applicant did not provide medical evidence to establish that the delay in pursuing his human rights was connected to or caused by his mental health. As stated in the Tribunal‘s decision in Dionne v. Toronto (City), 2011 HRTO 317, while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992, and Savage v. Toronto Transit Commission, 2010 HRTO 1360.
13The applicant has offered no evidence in support of his position that his mental health precluded him from pursuing his human rights concerns. I do not find the documentary materials provided by the applicant, such as the business cards of his chiropractor and counsellor, constitute persuasive evidence that his condition was so debilitating that it prevented him from pursuing his rights under the Code in a more timely fashion. I do not accept that the applicant was unable to pursue a timely application under the Code given the information provided by the applicant that he attempted to correspond and communicate with various representatives of the respondent to address his grievances prior to filing his Application.
14The applicant appears to suggest that the delay was also caused by his lawyer’s failure to act promptly. The documentation indicates that the applicant was actively seeking legal assistance from 2009 and onwards; however, it appears that the applicant experienced some delay in receiving advice from his lawyer.
15With respect to the applicant’s suggestion that the delay was caused by his lawyer’s failure to provide prompt advice, I note that any such delay occurred after the Code’s one year limitation period had passed. I appreciate that the applicant believes that his lawyer may be responsible for some of the delay; however, I do not accept that this is a satisfactory explanation for the four year delay in initiating this Application.
16In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is therefore not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.
17Also, I note that, in addition to the jurisdictional issue of delay, it appears that the events described in the Application may not be connected to the Code because the alleged incidents do not appear to be specific acts of discrimination within the meaning of the Code. While the applicant appears to allege discrimination because of creed, the applicant’s narrative did not specify any link between the impugned treatment and the ground of creed.
18The Application is dismissed for delay.
Dated at Toronto, this 8th day of May, 2012.
“Signed by”
Ena Chadha
Vice-chair