Lorraine Sukhu v. Hiarrow and Wayne Kreklewich, 2013 HRTO 1380

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lorraine Sukhu

Applicant

-and-

Hiarrow and Wayne Kreklewich

Respondents

DECISION

Adjudicator: David Muir

Date: August 13, 2013

Citation: 2013 HRTO 1380

Indexed as: Sukhu v. Hiarrow

WRITTEN SUBMISSIONS

Lorraine Sukhu, Applicant

Self-represented

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and sex.

2In her Application the applicant alleges that she was subject to sexual solicitation at unspecified times in the mid to late 1990’s. She also makes allegations of inappropriate conduct towards her in 1999 and a wrongful dismissal in May 2000. There do not appear to be any allegations that relate to the ground of disability. However, the applicant has provided a letter from a psychiatrist which indicates that the applicant may have been a person with a disability at the time of some of these alleged events and subsequently. The letter also indicates that the applicant may have been terminated in May 1999.

3The applicant filed a statement of claim in Small Claims Court on October 29, 2012, and advises that her claim was dismissed in March 2013. This Application was filed on April 11, 2013. The issues raised in the statement of claim are largely the same as in the Application.

4On April 26, 2013, the Tribunal delivered a Notice of Intent to Dismiss (“NOID”) because it appeared that the Application was out of time being filed at least 13 years after the last alleged incident. The Tribunal also noted that the applicant had commenced a civil suit related to the same issues. The Tribunal sought the applicant’s submissions on both of these points. The applicant has responded to the NOID.

5Sections 34(1) and (2) of the Code provide:

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.

6This Application is out of time and must be dismissed. It was filed more than 13 years after the incidents described by the applicant. Accordingly, unless the applicant can establish a good faith explanation for the delay, the Application must be dismissed. At this preliminary stage before the Application has been served, the Tribunal has held that it must be plain and obvious that an Application is out of time before an Order dismissing it will be made. See Battaglia v. Maplehurst Correctional Complex, 2009 HRTO 1167.

7The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. The provision has been found to be mandatory subject to section 34(2). The 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. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.)

8In her Application the applicant explained that she is a person with a mental health disability that has interfered with her ability to function at times. She also provides a psychiatrist’s letter dated December 10, 2012 that describes her disability and her treatment over a number of years. The letter indicates that the applicant was hospitalized several times between 1999 and 2006. It does not indicate that she was incapable of filing this Application or the statement of claim before she did. The applicant does not in fact claim that she was incapable of filing this Application for the entire 13 year period since her termination and indicates that she has been “well” for the past seven years. This is consistent with her physician’s letter which describes a number of hospitalizations between 1999 and 2006.

9I am satisfied that it is plain and obvious that this Application is out of time and that there is an insufficient basis to conclude that there is a good faith explanation for the lengthy delay in this case. Although the applicant has stated she is a person with a disability, she does not state and there is no evidence that she was incapable of filing this Application for the entire 13 years prior to her doing so in April 2013. I note as well that she was able to commence a civil proceeding related to the same events in October 2012, some seven months prior to filing this Application.

10As indicated previously the requirement of good faith is more than the absence of bad faith. There is no indication of bad faith here, but there is equally no indication at all that the applicant acted with all due diligence in considering her options and filing this Application. Although she may have been significantly impaired and unable to file this Application for periods of time there is no indication that she was incapable for the entire period. When the applicant decided to seek redress for the alleged wrongs done to her she chose to pursue this matter in court and when that claim was dismissed because it was out of time she filed this Application. The Tribunal has held on numerous occasions that pursuing other avenues of redress is not a good faith explanation for delay in filing a human rights application. See Miller v. Prudential Lifestyles, above, and Lutz v. Toronto (City), 2009 HRTO 1137.

11For all of these reasons the Application is dismissed. Having found that there is no good faith explanation for the delay in filing the Application I need not consider whether any party might have been prejudiced by such delay. I also need not consider the application of section 34(11) to these circumstances.