HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kevin Agyei-Abankwa
Applicant
-and-
University of Windsor and Ruth Betoria
Respondents
DECISION
Adjudicator: Mary Truemner
Indexed as: Agyei-Abankwa v. University of Windsor
1This Decision deals with an Application filed on April 17, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It alleges discrimination on the basis of race and colour with respect to services.
Background
2The applicant was a student in the respondent’s Bachelor of Education programme in 2008. The Application alleges discrimination because the applicant was removed from a “placement” as a student teacher in February 2008 by his supervising teacher (his “associate teacher”), the personal respondent, who he alleges was racist and accordingly judged him unfairly. The applicant alleges that his failed placement, caused by racism, was the reason that the University respondent terminated his enrolment in the entire Bachelor of Education programme later that year. In describing the circumstances that he believes are discriminatory, the applicant wrote, “In my 3rd placement my associate teacher said I was lazy, that she failed her placement/had to do it again in 1987 & that white teachers make the best teachers.”
Delay
3The Application indicates that the last alleged discriminatory incident was February 2, 2008, and the reason that the Applicant is applying more than one year from the last event is because he “tried to reason with the University for 2 years,” and he “finally [decided] to let the courts handled [sic] it.”
4On May 18, 2011, the Tribunal Registrar sent a Notice of Intent to Dismiss (“NOID”) to the applicant. The NOID noted that the Application was filed in April 2011, and stated that, pursuant to section 34 of the Code, 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.
5In response to the NOID, the applicant filed written submissions which provided more information. He wrote:
The reason this application comes beyond the one year mark is because I have been in constant communication with the University of Windsor tryin [sic] to get a settlement in this matter…
With respect to the jurisdiction issue the University said it would do and [sic] investigation but never did. They said they would look into it and conduct a formal investigation but never did that…
6In a Case Assessment Direction dated August 3, 2011, the Tribunal directed the applicant to file further particulars involving the timing of any assurance by the University that it would conduct an internal investigation into his allegations of racism.
7The applicant then provided submissions which implied that the University led the applicant to believe that it was investigating his allegations, and that it would “let [the applicant] finish [his] education.” He wrote that the University did not investigate after all. He wrote that the last communication with the University was with the administration and that it was several days after he filed the Application, but he did not indicate when exactly he communicated with the University about any internal investigation or lack of one.
8The University replied to the applicant’s submissions, indicating that there is no issue about whether it might have failed to investigate an allegation of race discrimination because the applicant never raised such an issue, and the first it heard of the allegation was upon receiving the Application.
9The applicant’s documents merely implied that he had complained to the University about racism and that it failed to investigate racism, but he provided scant particulars about an investigation, about a request for one, or about any assurances that an investigation was underway. Consequently, the Tribunal issued a final Case Assessment Direction on November 21, 2011, directing the applicant to provide the Tribunal with particulars, including when and how any complaints were made to the University specifically alleging that he had experienced discrimination because of race or colour, the grounds listed in the Application, and what exactly he said or wrote to the University. He was also directed to include particulars about when he knew that the University was refusing to investigate any claim of discrimination because of race or colour, and to include any copies of emails or letters to support his position.
10The applicant responded by providing slightly more particulars, again vague with respect to timing, about his allegation that the respondent failed to investigate his complaint of racism. He wrote that he complained that he was a victim of racism to his academic advisor “after this terrible experience,” a reference to his placement teacher causing him to be removed from the February 2008 teaching placement. He wrote that he asked his academic advisor “on/after my placement” to file an internal human rights complaint with the University, but the advisor told the applicant that he did not think his experience was racism and that he did not think there was an office to which he might complain. He wrote that he brought his complaint of racism “to the university but they simply did nothing!” The applicant did not provide any further particulars about anyone other than his advisor to whom he alleged racism, and I take from his submissions that he had no further discussion about any internal investigation of his complaint of race discrimination after 2008.
11On December 19, 2011, the respondent filed an affidavit from the applicant’s academic advisor which contradicts the facts as alleged by the applicant with respect to his oral report of racism. It is not necessary, however, for me to inquire further into the applicant’s allegations that the respondent failed in a duty to investigate a complaint of racism (if any such duty exists in the context of the University’s provision of a service to the applicant in 2008) because I find below that any such allegation is also out of time.
The Legislation
12Section 34 of the Code states, in part:
(1) If a person believes that any of her 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.
Whether the Delay was Incurred in Good Faith
13The alleged discrimination happened in the placement of February 2008 and the alleged reporting of it to the University happened soon after he failed that placement. The applicant was removed from the Bachelor of Education programme in the summer of 2008. The Application was filed approximately three years later on April 17, 2011. Clearly, neither his allegation of racist treatment by the personal respondent, nor his allegation that the University failed in any duty to investigate, meets the Code’s requirement to file an Application within one year of the alleged discrimination.
14As 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.
15Persons who feel their rights have been violated are expected to file an application within the one-year time limit specified in the Code, even if it means that they are seeking redress from two different entities, or waiting for the result of an internal investigation. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Poole v. Trent University, 2011 HRTO 2086; and Foley v. CAW-Canada Local 222, 2011 HRTO 1224.
16The applicant takes the position that his delay in filing the Application was incurred in good faith because he thought that the University was investigating his allegations against the personal respondent, and that it was going to allow him back into the teaching programme. I find that it is unreasonable for the applicant to have understood an investigation to have been proceeding, without any indication that it was proceeding, in the approximately three-year period between his alleged reporting of the alleged racism to the University, and the filing of his Application at the Tribunal.
17Even if it were reasonable for him to have understood that the University was investigating his allegations against the personal respondent, his understanding would not excuse him from his obligation to act with due diligence and file his Application within one year as required by the Code. He provides no satisfactory reason why he could not have inquired into his rights and filed an Application once he saw how an investigation or offer for him to return to the programme was not materializing. Pursuing an internal investigation prior to filing an Application under the Code does not meet the requirement of good faith in these circumstances of three years without any action by the University.
18I find that the delay was not occurred in good faith pursuant to section 34(2) of the Code.
Decision
19Given the absence of evidence that the delay was incurred in good faith, it is unnecessary to deal with the issue of potential prejudice to the respondent. The Tribunal is without jurisdiction to deal with this Application because it was filed more than one year after the last alleged incident of discrimination and the applicant has not established good faith. The Application is, accordingly, dismissed.
Dated at Toronto, this 13th day of January, 2012.
“Signed by”
Mary Truemner
Vice-chair```