R.M. v. Toronto Police Services Board, 2013 HRTO 1102

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.M.

Applicant

-and-

Toronto Police Services Board, William Blair, Brian Kellar, Christopher Groff and Peter Eckersall

Respondents

-and-

Ontario Human Rights Commission

Intervenor

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: June 20, 2013

Citation: 2013 HRTO 1102

Indexed as: R.M. v. Toronto Police Services Board

WRITTEN SUBMISSIONS

R.M., Applicant

Selwyn A. Pieters, Counsel

William Blair, Brian Kellar, Christopher Groff and Peter Eckersall, Respondents

Lisa C. Cabel, Counsel

Toronto Police Services Board, Respondent

David A. Gourlay, Counsel

Ontario Human Rights Commission, Intervenor

Raj Dhir, Counsel

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 16, 2010, alleging discrimination with respect to services, goods and facilities because of race, colour, ancestry, ethnic origin, age and association with a person identified by a prohibited ground of discrimination.

2In addition to the Toronto Police Services Board (the “TPSB”), the Application names the following individual respondents: Police Chief William Blair and Police Constables (“PCs”) Brian Kellar, Christopher Groff and Peter Eckersall (the “respondent Officers”). The Application also named a security guard as an individual respondent; however, on January 16, 2013, the applicant and the security guard filed a Form 25 with the Tribunal, confirming that this matter was resolved as between them.

3This Interim Decision is further to the Tribunal’s Interim Decision dated January 15, 2013, 2013 HRTO 73, wherein the Tribunal sought further submissions from the parties on the appropriate application of the provisions addressing delay in the Code where an applicant was a minor at the time of the alleged discriminatory incidents, and does not appear to have been represented by a litigation guardian at any time.

4On February 1, 2013, the Ontario Human Rights Commission (the “Commission”) provided a Notice of Commission Intervention as a party, with consent of the applicant, pursuant to section 37(2) of the Code, to address the issues raised by the Tribunal in its January 15, 2013 Interim Decision.

The applicant’s allegations

5The applicant alleges, in essence, that the respondents engaged in racial profiling and improperly targeted him for arrest and detention based on Code-related grounds. The Application refers to the following events in his Application:

a. his arrest by police on October 29, 2007 (involving PC Kellar);

b. his arrest by police on January 29, 2008;

c. an incident at the Cedarbrae Mall on December 18, 2009; and,

d. his arrest by police on January 5, 2010 (involving PCs Groff and Eckersall).

Delay

6With respect to delay, section 34 of the Code provides as follows:

34(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 will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that the circumstances in section 34(2) exist.

The Tribunal’s earlier Interim Decision

8In its Interim Decision dated January 15, 2013, the Tribunal addressed, in part, the respondent Officers’ Request for an Order During Proceedings (“RFOP”), originally filed February 14, 2011, to strike portions of the Application on the basis of delay. In their RFOP, the respondent Officers sought dismissal of the earlier allegations in the Application that fall outside the one-year limitation period in section 34(1) of the Code. They submitted, among other things, that the allegations that fall outside the one-year limitation period do not form a “series of incidents”, within the meaning of section 34(1)(b) the Code, with the more recent incidents alleged in the Application.

9In its Interim Decision, the Tribunal determined that the earlier allegations in the Application, pertaining to alleged events between October 2007 and in January 2008, do not constitute a “series of incidents” within the meaning of the Code with the timely allegations in the Application. However, the Tribunal also indicated that it appeared there may be an issue as to the appropriate application of the provisions addressing delay in section 34 of the Code where an applicant was a minor at the time of the alleged discriminatory incidents, and does not appear to have been represented by a litigation guardian at any time. The Tribunal noted that it appeared this issue was briefly raised by the applicant in his earlier February 17, 2011 submissions on delay, although not clearly, and that none of the parties addressed this issue in their more recent submissions on delay.

10In particular, section 6 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (the “Limitations Act, 2002”) provides that the limitation period established by section 4 of the Limitations Act, 2002 does not run during any time in which the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim.

11In the circumstances, the Tribunal determined that it was appropriate to seek further submissions from the parties, in writing, on the following issues:

a. whether the one-year time period in section 34 of the Code, in the case of a minor not represented by a litigation guardian, begins to run when the minor turns 18, by virtue of legislation, such as the Limitations Act, 2002, or by virtue of common law;

b. whether section 6 of the Limitations Act, 2002 applies to section 34 of the Code;

c. whether there is a broader common law principle that limitation periods do not run during the time an individual is a minor and if so the application of any such common law principles to section 34 of the Code; and,

d. whether there was “good faith” within the meaning of section 34(2) of the Code, where the applicant was a minor at the time of the alleged incidents of discrimination.

12The applicant and the Commission provided submissions addressing the issues raised in the Tribunal’s Interim Decision, on January 28 and February 8, 2013, respectively. The TPSB and the respondent Officers each provided submissions on February 22, 2013. The applicant provided submissions, in reply, on February 27, 2013.

ANALYSIS AND DECISION

The [Limitations Act, 2002](https://www.canlii.org/en/on/laws/stat/so-2002-c-24-sch-b/latest/so-2002-c-24-sch-b.html)

13All of the parties and the intervenor agree, and I accept, that the Limitations Act, 2002 does not apply to applications made under the Code. As the Commission explains in its submissions, section 2 of the Limitations Act, 2002 limits its application to “claims pursued in court proceedings”. In West End Construction Ltd. v. Ontario (Ministry of Labour), 1989 CanLII 4088 (ON CA), [1989] O.J. No. 1444, the Ontario Court of Appeal held that the predecessor legislation to the current Limitations Act, 2002 did not apply to the Code, and stated, in part, as follows, at para. 21:

In my opinion, the Code is neither fish nor fowl for limitation purposes. It does not create any cause of action which fits within the traditional format of the Limitations Act. …

See also Anonuevo v. General Motors of Canada Ltd., [1996] O.H.R.B.I.D. No. 44., at para. 60.

[Section 34](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

Submissions of the parties and the intervenor

14While all of the parties and the Commission agree that the Limitations Act, 2002 does not apply to applications made under the Code, the applicant and the Commission submit that section 34(1) of the Code should nevertheless be interpreted in accordance with the principle that a limitation period for a minor not represented by a litigation guardian does not begin to run while the applicant is a minor. The Commission refers to a number of court decisions that have addressed limitation of action legislation provisions that “recognize infancy as a disability.” For example, in Papamonolopoulos v. Board of Education for the City of Toronto, 1986 CanLII 2688 (ON CA), [1986] O.J. No. 753, the Ontario Court of Appeal stated as follows, at para. 3:

… since early days we have recognized that fairness and justice require some relief for those who because of the incapacity of infancy would probably lose their right to compensation by courts for wrongs done to them. Williams, Limitation of Actions in Canada, 2^nd ed. (1980), p. 203, says:

All modern Limitation of Actions Acts recognize infancy as a disability. Naturally, the rationale is that an infant is unable adequately to look after his own affairs, including the bringing of actions. Clearly, the rationale will be affected by the modern move towards lowering the age of majority.

15The applicant and the Commission also refer to the Supreme Court of Canada’s decision in Murphy v. Welsh, 1993 CanLII 59 (SCC), [1993] 2 S.C.R. 1069 at para. 12, wherein the Court stated that those under “legal disability” are presumed not to know their rights and remedies, and it would be unfair to expect them to proceed diligently in such matters. The Commission submits that, pursuant to Rule 1.03 of the Rules of Civil Procedure, a minor is a person under legal disability. The Commission also submits that, since minors are considered to be under a legal disability, special rules apply to them as litigants. The Commission refers to Graeme Mew, “The Law of Limitations”, 2^nd Edition, at page 110, wherein the author states that minors must generally be represented by a litigation guardian and settlements or judgments for the credit of minors are usually held in court until the minor reaches majority.

16The Commission submits that the special rules related to minors are reflected in the Tribunal’s Rules of Procedure, Practice Direction on Applications on Behalf of Another Person, and Forms. Together these documents indicate that if an applicant is a minor, a parent or legal guardian may file an application on their behalf as a “Next Friend” under section 34(1) of the Code, or a litigation guardian may file an application on behalf of another person who lacks legal capacity to apply on their own behalf under section 34(1) of the Code. The Commission submits that, in the absence of any express statutory provisions dealing with the circumstances of claims involving minors, section 34(1) of the Code should be liberally construed to protect the applicant’s ability to enforce rights under the Code, and an applicant should be able to file an application within one year from the point in time when the applicant is legally capable of doing so.

17The respondent Officers submit that, given that the Limitations Act, 2002 does not apply to the Code and the Code does not have a specific provision setting out how minors not represented by a litigation guardian are to be treated for the purposes of section 34 of the Code, it is necessary to consider the common law, the purposes of section 34 of the Code, and policy reasons.

18The respondent Officers agree that, under the common law, fairness and justice require some relief for those who, because of the incapacity of infancy, would probably lose their right to compensation for wrongs done to them. See Papamonolopoulos, supra, at para. 3. However, the respondent Officers, along with the TPSB, do not agree that the common law requires that a limitation period for a minor, who is not represented by a litigation guardian, does not run until the applicant is 18 years of age.

19The respondent Officers submit that the applicant and the Commission do not cite any authority that there is a common law requirement that a limitation period for a minor who is not represented by a litigation guardian does not run until the applicant is 18 years of age, and that, in all of the cases referred to, such a requirement is always linked back to a statute. The Tribunal notes that the cases referred to above, such as Papamonolopoulos and Murphy, appear to involve determinations of how a limitation period in a statute is to be read together with an explicit provision that limitation periods do not run for minors not represented by a litigation guardian contained in another applicable statute.

20The respondent Officers also agree that, as stated in Murphy, supra, at para. 12, diligence requires awareness of one’s rights and that those under “legal disability” are presumed not to know their rights and remedies and it would be unfair to expect them to proceed diligently in such matters. They also agree that, while “legal disability” is not a concept that is used in the Code, under the common law, a minor is under a “legal disability” and is presumed not to know their rights and remedies.

21The TPSB also submits that there is a common law principle that minors lack legal capacity, and that a young person is explicitly prevented from accessing the civil courts without a litigation guardian by Rule 7.01 of the Rules of Civil Procedure. The TPSB submits, on the other hand, that the Code does not appear to prohibit a young person from bringing an application in his or her own name, and that the Tribunal’s Rules allow a willing parent or guardian to act as “next friend”, without formally seeking leave to act as a litigation guardian. The TPSB submits that section 34 of the Code recognizes that in some cases there will be delay incurred in good faith, which should be balanced against prejudice, and it is possible that in some cases youthful inexperience will amount to a good faith explanation for delay.

22The respondent Officers submit that the Code is an important public policy statute and must be given a large, liberal and purposive interpretation, but this does not mean that the Tribunal can rewrite or amend the Code, or depart from express provisions in the Code. They submit that subsections 34(1) and 34(2) of the Code set out a complete statutory scheme for the consideration of time periods, and although the Tribunal can rely on the common law in interpreting and applying the Code, the Tribunal must follow the complete scheme for consideration of time periods.

23More particularly, the respondent Officers, as well as the TPSB, submit that the Code requires that status as a minor be considered under the second stage of the inquiry, in determining whether any delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, under subsection 34(2) of the Code. The respondent Officers refer to the Tribunal’s decision in Louis v. Ottawa Police Services Board, 2012 HRTO 1316, where the Tribunal considered the common law principle of discoverability and how it fit within section 34 of the Code. In Louis, the Tribunal held that if an applicant is successful in establishing that he or she was not aware of an alleged discriminatory incident, the time limit for filing an application is not extended by one year from the date of discovery, but, instead, is considered in determining whether the delay was incurred in good faith. The respondent Officers submit that the common law principle that those under legal disability are presumed not to know their rights and remedies should be interpreted, for the purposes of the Code, similar to the common law principle of discoverability.

24In the alternative to its position that limitation periods for minors not represented by litigation guardians do not begin to run while the applicant is a minor, the Commission submits that any delay arising because the applicant was a minor at the time of the alleged incidents of discrimination constitutes “delay incurred in good faith” within the meaning of section 34(2) of the Code. The Commission submits that the applicant, who is not represented by a litigation guardian, is incapable of filing an application before he turns 18 years old. As a minor, the applicant is considered to be under a legal disability, and is presumed not to know his rights and is not expected to proceed diligently in such matters. The Commission submits that it would simply be wrong to impute anything less than good faith to the applicant.

25The TPSB submits that an applicant’s youth should not result in a presumption of good faith delay, as the Commission’s alternate submission suggests. The TPSB submits that the Code requires a case-by-case objective examination of good faith reasons for delay, which cannot simply be presumed. The TPSB submits that the analysis of good faith includes such factors as the length of the delay, whether Code-related reasons 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. See N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282.

26The TPSB also submits that, in the appropriate case, a young person’s ignorance of the law could be considered as a good faith reason not to have considered commencing an application at the appropriate time. However, that analysis should be based on an objective analysis of the alleged good faith explanation for the delay, and should consider other factors that militate against a good faith explanation, as set out in N.M., supra.

The approach to [section 34](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) where the applicant is a minor

27With respect to the “legal disability” of minors in the context of Code applications, the Tribunal stated in Yuill v. Canadian Union of Public Employees, 2011 HRTO 126 at para. 4, that minors under the age of 18 years, and adults who are mentally incapable of appointing a person to bring an application under s. 34(5) of the Code, must participate in Tribunal applications through a person who makes decisions on their behalf. The Tribunal, in Yuill, determined that it has the power to appoint a litigation guardian to conduct a Tribunal application on behalf of a person under a legal disability.

28The Tribunal’s current Practice Direction on Applications on Behalf of Another Person states that a person may lack legal capacity to file a human rights application on their own behalf for a number of reasons, including because he or she is a minor less than 18 years of age. The Practice Direction also states that persons who are 16 and 17 years old and who have withdrawn from parental control are not minors for the purposes of making an application to the Tribunal alleging discrimination in housing. See Code, section 4.

29The Practice Direction goes on to explain that applications on behalf of another person can be made in two ways under section 34(1) of the Code. Traditionally, the Tribunal has permitted the parent or legal guardian of a minor to participate as a “Next Friend”, or an application may be filed by a litigation guardian or a substitute decision-maker on behalf of a person who lacks legal capacity to apply on their own behalf.

30I note that the HRTO and other Tribunals in the Social Justice Tribunals Ontario cluster recently completed a public consultation on a proposed new rule to formalize the process of appointing litigation guardians on behalf of minors and persons without mental capacity. If the proposed rule is implemented, the above process will change.

31The TPSB submits that the Code does not appear to prohibit a young person from bringing an application in his or her own name, and I agree that there does not appear to be anything explicit in the Code that prevents a minor from filing an application on their own behalf. The Tribunal’s Practice Direction also recognizes an exception for 16 and 17 year olds who have withdrawn from parental control, in the context of filing applications alleging discrimination in housing. However, it also appears quite clear that the Tribunal’s general practice has been to consider minors as lacking legal capacity, or under a “legal disability”, for the purposes of filing applications under the Code on their own behalf, consistent with what the respondents agree is a common law principle. It appears from a review of Tribunal jurisprudence that applications alleging discrimination against minors, while they are minors, have been filed by another adult person on their behalf.

32Within this context, the applicant and the Commission submit that an applicant should be able to file an application within one year from the point in time when the applicant is legally capable of doing so. In other words, the one-year time period in section 34(1) of the Code, for an applicant who was a minor at the time of the alleged discriminatory events, should begin to run from the date the applicant turns 18 years of age.

33However, I agree with the respondent Officers’ submissions that the Tribunal’s jurisdiction is to interpret and apply the Code, and, although the Tribunal can rely on the common law in interpreting and applying the Code, the Tribunal cannot rewrite or amend the Code. In my view, the appropriate approach in the present case is to interpret section 34 in light of any relevant common law principles and policy considerations, consistent with the overall purposes of the Code.

34In any event, it is not clear to me that there is an actual common law principle that a limitation period for a minor who is not represented by a litigation guardian does not run until the applicant is 18 years of age. I note that the respondent Officers submit that, under the common law, minors are under a “legal disability” and are presumed not to know their rights and remedies, and the Supreme Court of Canada did state in Murphy, supra, at para. 12, that those under “legal disability” are presumed not to know their rights and remedies, and it would be unfair to expect them to proceed diligently in such matters. However, it is also not clear to me that the Supreme Court’s statement in Murphy that those under legal disability are presumed not to know their rights and remedies, and it would be unfair to expect them to proceed diligently, constitutes a general common law principle. The Murphy case, and other cases relied upon by the applicant and the Commission, concern the interpretation of provisions in statutory schemes addressing limitations, where it is explicit both that minors are under a legal disability and that the limitation periods are not to run for individuals while they are under legal disability and do not have a litigation guardian. The Ontario Court of Appeal also recognized in Duchesne v. St-Denis, 2012 ONCA 699, that minors can nevertheless discover their claims prior to reaching the age of majority.

35In my view, whether or not it is a common law principle that those under “legal disability” are presumed not to know their rights and remedies, and it would be unfair to expect them to proceed diligently, it is nevertheless an important consideration for the Tribunal in addressing delay within the meaning of section 34 of the Code.

36In my view, an applicant’s status as a minor during any period of delay is appropriately considered in the second stage of the delay analysis under section 34(2) of the Code, in determining whether any delay was incurred in good faith, similar to the manner in which the Tribunal considered the common law principle of discoverability and how it fit within section 34 of the Code in Louis, above. I also agree with the submissions of the TPSB that, in determining whether or not “good faith” exists within the meaning of section 34(2) of the Code, while there is a common law principle that minors lack legal capacity, an applicant’s youth should not result in a presumption of good faith with respect to delay within the meaning of the Code. In my view, to presume that delay is incurred in good faith where an applicant is a minor would be to, in effect, interpret the time limit in section 34(2) of the Code as beginning to run when the applicant turns 18 years of age.

37I also agree with the submissions of the TPSB that a case-by-case examination of “good faith” within the meaning of the Code, including an analysis of factors such as the length of the delay, whether Code-related reasons 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, is appropriate. See N.M., supra. The principle that minors are presumed not to know their rights and remedies, and that it would be unfair to expect them to proceed diligently, will in most cases strongly militate in favour of a finding of good faith. However, there may be other considerations in a particular case that do not support a finding of good faith.

Was the delay incurred in good faith?

38The applicant submits that, in the present case, the delay in filing the Application was due to the applicant’s status as a minor and was incurred in good faith. With respect to the October/November 2007 incident(s), the applicant submits that the Application was filed two years and ten months after they occurred, and less than two months after the applicant’s 18^th birthday. The applicant submits that sound policy reasons exist to not ascribe capacity to discover claims to persons under 18 years of age unless there is a litigation guardian. With respect to the untimely incidents, the applicant submits that he did not have access to a litigation guardian in the time during and after the alleged events. He submits that he has given the Tribunal valid reasons why he could not pursue his rights under the Code in a timely manner while he was 15, 16 or 17 years old.

39The respondent Officers submit that the applicant states in his Application that, at the time of his arrests allegedly on October 17, 2007 and January 29, 2008, charges under the Youth Criminal Justice Act were withdrawn by the Crown after the applicant’s lawyer presented facts and raised the issue of the applicant being harassed and racially profiled. They submit that the applicant was represented by counsel at the time of his alleged arrests in 2007 and 2008, and his counsel raised these issues. They submit that, in such circumstances, it is unreasonable that the applicant would not know his rights and remedies, including rights and remedies under the Code. They also submit that the applicant’s mother would have been permitted to file an application as a Next Friend of the applicant.

40The TPSB submits that it should not be presumed that the applicant could not reasonably have brought his complaints on a timely basis, or that the delay was incurred in good faith. The TPSB also submits that it is clear from the Application that the applicant was represented by counsel in a prosecution arising from one of the untimely interactions in question, and that his counsel raised the issue of racial profiling. The TPSB also submits that the Tribunal should not simply presume that a next friend was unavailable. The TPSB also submits that the untimely interactions are alleged to have taken place in October 2007, and January 2008, approximately 34 months and 31 months prior to the Application being filed, and that this lengthy delay is a factor militating against a good faith explanation.

41In addressing the respondents’ submissions with respect to “good faith” in reply, the applicant submitted that his counsel in the criminal matter asserted racial profiling based on the parameters of the Legal Aid Ontario retainer that was limited to criminal matters. The applicant then makes some general submissions about the scope of retainers in criminal matters.

42The applicant also submits that it is evident that he lived in a neighbourhood characterized by high poverty, crime, unemployment, poor housing, weak family structures and over-policing. He submits that it is unlikely that his mother contemplated a human rights application on his behalf. He states that the respondents have not provided any evidence indicating that his mother was willing and/or able to pursue an application on his behalf.

43In addressing good faith within the meaning of section 34(2) of the Code, the Tribunal stated as follows in Miller v. Prudential Lifestyles Real Estate, 2009, HRTO 1241 at paras. 24-25:

In my view, where an applicant seeks 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. … The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, 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.

44The Tribunal in Miller also stated that, in dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. In this context, as set out above, the Tribunal should also consider the Supreme Court of Canada’s recognition in Murphy, supra, that minors are presumed not to know their rights and remedies, and it would be unfair to expect them to proceed diligently in such matters.

45In the present case, the applicant provides little, if any, explanation for the delay with respect to the untimely allegations in the Application. The applicant simply relies on the fact that he was a minor at the time of the alleged incidents and asserts that he did not have access to a litigation guardian in the time during and after the alleged events. In my view, this is not sufficient to establish good faith in these circumstances.

46On the other hand, it appears that the applicant was represented by counsel with respect to the events giving rise to the untimely allegations. The applicant alleges in his Application that his criminal charges were withdrawn by the Crown after his counsel raised the issue of the applicant being harassed and racially profiled. He also states in his Application, in response to a question about whether he complained to someone about the alleged discrimination, that his lawyer wrote a letter to a Crown Attorney. I note that the applicant submits in his reply that his counsel in the criminal matter asserted racial profiling based on the parameters of the Legal Aid Ontario retainer. He also makes some general assertions about the scope of retainers in criminal matters. However, I also note that nowhere in his submissions does the applicant appear to submit that he was not aware of his rights under the Code.

47The applicant also does not specifically address his ability to obtain assistance in filing an Application in a timely manner. As indicated above, the applicant rather baldly asserts that he did not have access to a litigation guardian at the time. He also makes some speculative assertions in reply regarding his mother’s ability and/or willingness to pursue an application on his behalf.

48In all of the circumstances, I am not satisfied that the applicant has met the onus of establishing the necessary good faith within the meaning of section 34(2) of the Code, in order for the Tribunal to proceed with the untimely allegations. The applicant clearly states in his Application that allegations of harassment and racial profiling were raised by his counsel in other venues at an earlier stage, and he does not indicate that he was not aware of his rights under the Code. He had legal counsel who was aware of issues of race, and has given no explanation for why someone could not bring the Application on his behalf. While being under 18 is an important factor in the analysis, some evidence was needed to explain why the applicant did not assert his rights sooner, and the applicant has presented none.

49Based on my finding that good faith within the meaning of section 34(2) of the Code has not been established, it is not necessary to consider the issue of prejudice.

50The allegations in the Application concerning events in October 2007 and January 2008 are dismissed on the basis of delay.

51The Respondent Officers’ RFOP to remove individual respondents will be addressed separately.