Lewis v. CA-DO Mart Limited (c.o.b. Giant Tiger), 2013 HRTO 1208

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Lewis

Applicant

-and-

CA-DO Mart Limited (c.o.b. Giant Tiger) and Gestion Rodaki Inc. – Rodaki Management Inc.

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: July 11, 2013

Citation: 2013 HRTO 1208

Indexed as: Lewis v. CA-DO Mart Limited (c.o.b. Giant Tiger)

WRITTEN SUBMISSIONS

James Lewis, Applicant

Christian Pilon, Counsel

CA-DO Mart Limited (c.o.b. Giant Tiger), Respondent

Heather Cameron, Counsel

Gestion Rodaki Inc. – Rodaki Management Inc., Respondent

Louise Morel, Counsel

Introduction

1This Decision addresses the requests by the respondents that the Tribunal dismiss the Application as untimely.

Factual Background

2By Application filed December 6, 2012, the applicant alleged that the respondents discriminated against him because of disability contrary to the Human Rights Code, R.S.O. c. H. 19 (the “Code”). Specifically, he submitted that he was discriminated against due to a ramp located on the premises formerly occupied by CA-DO Mart Limited (“CA-DO Mart”) on a property managed by Gestion Rodaki Inc. – Rodaki Management Inc. (“Rodaki Management”).

3On October 15, 2008, the applicant, who uses a wheelchair, fell while attempting to back down the ramp after requesting assistance from a CA-DO Mart employee. In November 2010, the applicant received an engineering report which indicated that the ramp did not comply with the Building Code Act, S.O. 1992 c. 23. On October 20, 2011, the applicant’s counsel sent a letter to CA-DO Mart seeking to engage in settlement negotiations. In the letter, the applicant’s counsel advised that his client had instructed him to attempt to settle the matter prior to filing an application with the Tribunal. These attempted settlement negotiations were ultimately unsuccessful and ended in or around February 2012.

4CA-DO Mart vacated the premises in question in November 2011 and the premises remain unoccupied.

5As noted above, the applicant filed his Application with the Tribunal in December 2012. In their Responses, both respondents submitted that the Application should be dismissed as untimely.

Legal Principles Regarding Delay

6Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed:

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.

7In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. As stated in Miller v Prudential 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. The mandatory one-year limitation period for filing an application 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 to file an application within one year when pursuing a human rights claim.

Submissions

8The applicant submitted that the Application relates to a “series of incidents”, the last of which occurred within the one year time frame set out in s. 34 of the Code. The applicant submitted that the discrimination in this case is ongoing as the respondents still have not taken steps to ensure that the ramp complies with the Code. Alternatively, he argued that the last incident in the series occurred when the parties’ “accommodation discussions” ended in February 2012. In the further alternative, the applicant submitted that any delay was incurred in good faith as he had no reason to make inquiries about his rights until he became aware that the ramp did not comply with the Building Code Act and the Accessibility for Ontarians with Disabilities Act (“AODA”), 2005, S.O. 2005, c. 11. He argued that, following receipt of the engineering report, he acted in good faith by first seeking to engage in settlement/accommodation negotiations with CA-DO Mart.

9CA-DO Mart submitted that the Application is untimely. It argued that the Application relates to a single incident that occurred in October 2008, more than four years before the Application was filed. It noted that the applicant filed his Application more than two years after receiving the engineering report that he seeks to rely upon. CA-DO Mart argued that an applicant who delays filing an application because he or she is pursuing an alternative remedy is not acting in good faith. Finally, it submitted that it will suffer prejudice if forced to defend against the Application since the key incident in the case occurred more than four and a half years ago.

10Rodaki Management submitted that the Application should be dismissed as untimely for many of the same reasons.

Findings

11I find that the Applicant was filed beyond the one year time limit set out in s. 34(1). In my view, the date from which the one year time limit began to run in this case is October 15, 2008. That is the date on which CA-DO Mart allegedly failed to accommodate the applicant when he exited its store. It is also the date on which the applicant became aware of the steepness of the ramp which he alleged was discriminatory under the Code. In my view, the fact that the applicant only became aware that the ramp did not comply with the Building Code Act and the AODA until November 2010 is irrelevant. Compliance with these other statutes is a separate and distinct issue from any breach of the Human Rights Code, even if the issues may be related in some cases. In any event, I note that the applicant filed the Application more than two years after receiving the engineering report.

12I do not accept the applicant’s argument that the discrimination is ongoing since the respondents have not taken any steps to ensure that the ramp complies with the Building Code Act and the AODA. Even if I were to accept that the continuing existence of the ramp was a “continuing contravention” of the Code, as that term has been used in the Tribunal’s case law, this contravention would have ended when Cado-Mart vacated the premises in question. As noted above, CA-DO Mart left the premises in November 2011, more than one year before the Application was filed. Thereafter, according to the respondents, the premises remained vacant at least up to the date on which the Application was filed. In these circumstances, it cannot be said that the respondents continue to contravene the Code in relation to the applicant.

13I also do not agree with the applicant’s attempt to rely upon the parties’ settlement/accommodation discussions to render his Application timely. In my view, the fact that the applicant sought to engage in settlement/accommodation discussions with the respondent cannot be used to extend the Code’s one year time limit. If anything, such discussions are a factor that may be taken into account in assessing the existence of “good faith” reasons for the delay under s. 34(2) of the Code.

14In my view, the applicant has failed to establish that his delay was incurred in good faith, within the meaning of s. 34(2). Even if the existence of settlement/accommodation discussions between the parties could satisfy the criterion of “good faith” in some cases, I find that the applicant has failed to establish good faith in this case. Even if I were to accept that his attempts to settle the matter amounted to good faith, he has failed to provide any explanation of the further ten month delay between the time these settlement discussions ended and the date on which he filed his Application. In these circumstances, I cannot find that the applicant has discharged his onus to establish that his delay was incurred in good faith.

15Since the applicant has failed to satisfy the requirements of good faith set out in s. 34(2) of the Code, it is not necessary for me to consider whether substantial prejudice would result from the delay.

order

16For the above reasons, the Application is dismissed.