Harden Browne v. Beck Taxi Limited, Irfan Butt and Jutt Motors, 2013 HRTO 1489

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harden Browne

Applicant

-and-

Beck Taxi Limited, Irfan Butt and Jutt Motors

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: September 3, 2013

Citation: 2013 HRTO 1489

Indexed as: Browne v. Beck Taxi Limited

WRITTEN SUBMISSIONS

Harden Browne, Applicant ) Brian Noble, Counsel

Beck Taxi Limited, Respondent ) Carl Peterson and Lauren Chang ) MacLean, Counsel

Irfan Butt, Respondent ) Self-represented

INTRODUCTION

1The applicant filed his Application with the Tribunal more than eight months outside the one-year statutory time limit. The purpose of this Decision is to decide whether the Application should be dismissed because it is outside the Tribunal’s jurisdiction.

2The statutory time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”):

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.

3After reviewing the materials filed by the parties, including written submissions, documents and case law, I have decided to dismiss the Application because the applicant has failed to satisfy me that his last three months and three weeks of delay in filing his Application was incurred in good faith. The following are my reasons.

BACKGROUND

4In the early morning of June 11, 2011, the applicant, who is a Black man, left a nightclub and entered a taxi cab with Beck Taxi signage and colours. Shortly after the taxi ride began, the applicant and the cab driver had a dispute. The cab driver then stopped his cab near a police car where both he and the applicant spoke with the police officers. The officers subsequently arrested the applicant, detained him at the local division for several hours, and issued him a ticket under the Liquor License Act, R.S.O. 1990, c L.19, for being intoxicated in a public place.

5The applicant opted to go to trial and plead not guilty, rather than paying the fine on the ticket. On February 27, 2012, the applicant appeared before the Ontario Court of Justice. He had not received disclosure from the prosecutor and was not prepared to proceed with the trial. The Court adjourned the trial until August 20, 2012, and recommended that the applicant go to the prosecutor’s office and fill out the Disclosure Request Form. The applicant followed the Court’s recommendation and filed the Form on the same day. The Form stated that his Request would be processed in six to eight weeks. The trial was subsequently rescheduled to August 28, 2012.

6When the trial commenced on August 28, 2012, the applicant had still not received disclosure from the prosecutor. The prosecutor withdrew the charges, and the Court ordered the police officer who issued the ticket to the applicant to disclose whatever documents he had with him to the applicant. The officer disclosed a copy of the ticket and a police incident report to the applicant.

7On August 29, 2012, the applicant filed a freedom of information (“FOI”) request with the Toronto Police Service (the “TPS”) for a number of other documents related to the June 11, 2011 incident, including the memo book notes of all the police officers involved in his arrest and detention. He authorized the Toronto Police Services Board (the “TPSB”) to release the documents to his legal counsel (who is the same counsel representing the applicant before this Tribunal). On September 28, 2012, the TPS released the memo book notes of some of the officers involved. The notes identified the taxi as “Beck Taxi” and the taxi cab number as “670”, but the name of the cab driver appeared to be whited out.

8On October 2, 2012, the applicant’s counsel had a telephone conversation with a TPS Access and Privacy Analyst, and requested that the TPS release the name of the cab driver. On October 31, 2012, the TPS sent the applicant’s counsel a letter, which enclosed the memo book notes of other police officers involved in the June 11, 2011 incident, but stated that it would not be releasing the name of the cab driver for privacy reasons. The letter also stated the TPS’s decision denying the applicant access to the cab driver’s name could be appealed to the Information and Privacy Commissioner (the “IPC”) within 30 days.

9On February 5, 2013, the applicant filed a Claim with the Ontario Superior Court of Justice, which alleged that the TPSB and a TPS officer subjected him to false arrest and imprisonment, among other things, on June 11, 2011.

10On February 20, 2013, the applicant filed an Application with this Tribunal under s. 34 of the Code, which alleged that Beck Taxi Limited and “John Doe (to be added later)” discriminated against him with respect to services because of his race and colour. He also stated that Beck Taxi Limited has “[d]ocumentation setting out the name of the cabdriver driving Beck Taxi 670 on June 11, 2011 between the hours of 2:30 am – 3:30 am,” and that such documentation is important because it will “identify the name of the individual respondent.” He also acknowledged that his Application was filed outside the one-year statutory time limit, and provided submissions arguing that his delay in filing his Application was incurred in good faith.

11On March 15, 2013, the Tribunal sent the Application to Beck Taxi Limited and directed it to file a Response within 35 days.

12On March 27, 2013, the TPSB and the TPS officer served their Defence in the civil proceeding on the applicant’s counsel. Among other things, the Defence identified the driver of Beck Taxi 670 during the June 11, 2011 incident as “Irfan Butt”.

13On April 12, 2013, Beck Taxi Limited sent the Tribunal an email, which requested an extension of time to file its Response because it needed more time to identify and speak with the cab driver referred to in the Application. In response, the applicant’s counsel sent the Tribunal and Beck Taxi Limited an email, which identified the driver as Irfan Butt, and stated that the applicant intended to file a Request for Order to add Mr. Butt as a party in due course.

14On April 15, 2013, the Tribunal granted Beck Taxi Limited’s request for an extension of time to file its Response.

15On May 21, 2013, Beck Taxi Limited filed a Response, which denied the allegations of discrimination, and named Irfan Butt and Jutt Motors as additional respondents. Beck Taxi Limited also requested that the Tribunal dismiss the Application because it was filed outside the one-year statutory time limit, and provided submissions arguing that the applicant’s delay in filing his Application was not incurred in good faith, and that the delay has resulted in substantial prejudice to Beck Taxi Limited.

16On June 6, 2013, the applicant filed a Reply, which, among other things, provided further submissions on the delay issue.

17On the same day, the Tribunal sent the Application and the Response to Mr. Butt and directed him to file a Response. Inadvertently, the Tribunal did not take similar steps with respect to Jutt Motors. However, in view of my decision dismissing the Application, it is not necessary for Jutt Motors to file a Response.

18On July 8, 2013, Mr. Butt filed a Response, which denied the allegations of discrimination. Mr. Butt also requested that the Tribunal dismiss the Application because it was filed outside the one-year statutory time limit.

19On July 18, 2013, Beck Taxi Limited filed a Request for Summary Hearing, and provided further submissions on the delay issue.

20On August 1, 2013, the applicant filed a Response, which opposed Beck Taxi’s Limited’s Request for Summary Hearing. He stated that he is opposed to the Request because the parties have made extensive written submissions on the delay issue, and that it would be a colossal waste of time and resources to repeat them at a summary hearing. He also provided further submissions on the delay issue.

21On August 13, 2013, Beck Taxi Limited filed a letter providing arguments why the delay issue should proceed to a summary hearing. On August 14, 2013, the applicant filed a letter, which opposed Beck Taxi Limited’s filing of further submissions on the basis that it was not entitled to do so under the Tribunal’s Rules of Procedure. He stated that he would not be responding to those submissions, and requested that the Tribunal ignore them. In view of my decision dismissing the Application, Beck Taxi Limited’s August 13, 2013 submissions are irrelevant.

ANALYSIS

22There is no dispute between the parties that the applicant filed his Application with the Tribunal outside the one-year time limit in s. 34(1) of the Code. The last alleged incident of discrimination occurred on June 11, 2011, but the Application was not filed until February 20, 2013, which means that it was filed more than eight months outside the one-year statutory time limit of June 11, 2012.

23Pursuant to subsections 34(1) and (2) of the Code, the Tribunal must dismiss an untimely application on basis of jurisdiction unless it is satisfied that the delay in filing the application was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The first issue to address is whether the applicant’s delay in filing his Application was incurred in good faith.

24In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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 Code requires 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. This is a mandatory provision, subject only to section 34(2). 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.

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….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

25Furthermore, an applicant must establish that the entire delay in filing an application was incurred in good faith. See, for example, Dorriesfield v. Domtar, 2012 HRTO 23.

26In his submissions, the applicant stated that his delay in filing his Application was incurred in good faith because he did not know the names of the respondents and was taking reasonable steps to identify them. First, he stated that he did not observe the names of the taxi company and the cab driver during the June 11, 2011 incident. He stated that when he entered the taxi cab, he did not observe the names because it was the early morning and he was only focused on getting home. He also stated that he did not subsequently observe the names because he was only focused on the immediate unfolding events, namely, the discrimination against him by the cab driver, and his wrongful arrest and imprisonment by the police. He denied that his powers of observation were impaired by alcohol.

27Second, the applicant stated that following the June 11, 2011 incident, he took steps to obtain the names of the taxi company and the cab driver through the disclosure process prior to his public intoxication trial before the Ontario Court of Justice, but was stymied by a lack of cooperation by the TPS. Specifically, he stated that he requested disclosure from the prosecutor prior to his initial Court appearance on February 27, 2012, filled out the Disclosure Request Form on February 27, 2012, and visited the prosecutor’s office to request disclosure several times, including once with his counsel, before his second Court appearance on August 28, 2012, all to no avail. He further stated that immediately after the charges were withdrawn on August 28, 2012, he received partial disclosure from the TPS, but none of the documents identified the names of the taxi company and the cab driver.

28Third, the applicant stated that following the withdrawal of the charges on August 28, 2012, he took steps to obtain the names of the taxi company and the cab driver through the municipal FOI process. Specifically, he stated that he filed an FOI request for further documentation from the TPS on August 29, 2012. He stated he did not file an FOI request before that date because he had a reasonable basis to take steps to obtain the names through the disclosure process before the Ontario Court of Justice. He stated that he received partial access to TPS documents on October 1, 2012, which identified the taxi company as Beck Taxi and the taxi cab number as 670, but did not file his Application with the Tribunal at that time because he still did not have the name of the cab driver, and wanted to file a “complete” Application. By way of explanation, he stated that without the name of the cab driver, Beck Taxi Limited would have simply denied any knowledge of the June 11, 2011 incident.

29Fourth, the applicant stated that following the receipt of partial access to documentation on October 1, 2012, his counsel made several follow up requests to the TPS during the month of October 2012 for the name of the cab driver. He stated that the TPS eventually informed him by letter dated October 31, 2012 that it would not disclose the cab driver’s name for privacy reasons.

30Fifth, the applicant stated that following receipt of the October 31, 2012 letter denying him access to the cab driver’s name, he followed up with the TPS numerous times, but was still unsuccessful in obtaining access because of a lack of cooperation by the TPS.

31Sixth, the applicant stated that he finally received the cab driver’s name from the TPS in late March 2013 when he received its Defence to his Claim before the Ontario Superior Court of Justice. He also stated that he could not have initiated his civil claim and obtained the name at an earlier date because the filing of the Claim was contingent on having a successful outcome at his public intoxication trial before the Ontario Court of Justice.

32In its submissions, Beck Taxi Limited stated that the applicant’s delay in filing his Application was not incurred in good faith. First, it stated that the applicant could and should have known its name at the time of the incident on June 11, 2011. It stated that a reasonable response to discriminatory service would be to observe as much information as possible about the taxi cab and its driver. Furthermore, it stated that there is evidence that the applicant was intoxicated during the incident, and that a failure to remember its name because of intoxication cannot constitute a good faith reason for the delay in filing his Application.

33Second, Beck Taxi Limited stated that the applicant could and should have obtained its name before the expiry of the one-year time limit in the Code. It stated that the applicant could have obtained its name by filing his municipal FOI request and/or his civil claim before, rather than after, the expiry of the one-year time limit in the Code.

34Third, Beck Taxi Limited stated that the applicant could and should have filed his Application with the Tribunal, at the latest, in October 2012 when he obtained its name through an FOI request. Rather, it stated that the applicant delayed an additional four months and filed his Application in February 2013. Beck Taxi Limited stated that the applicant, who was represented by counsel, ought to have known that, as the organization respondent, Beck Taxi Limited would have been required to make its own best efforts to obtain and provide the name of the cab driver in the course of responding to the Application. In any case, it stated that the applicant has not provided any particulars about his efforts to obtain the cab driver’s name during this four-month period.

35In his submissions, Mr. Butt merely stated that the Tribunal should dismiss the Application because it was filed outside the one-year statutory time limit and cannot be permitted to proceed pursuant to s. 34(2) of the Code.

36I now turn to my analysis and decision. The applicant has failed to satisfy me that his last three months and three weeks of delay in filing his Application was incurred in good faith. Although there may be a basis for finding that his delay between June 11, 2012 and October 31, 2012 was incurred in good faith because he was still taking steps to obtain the names of the taxi company and the cab driver through the disclosure process before the Ontario Court of Justice, and when that failed, through a municipal FOI request, there is no basis to find that his further delay in filing his Application between October 31, 2012 and February 20, 2013 was incurred in good faith.

37On October 1, 2012, the applicant received the name of the taxi company and the taxi cab number when he received partial disclosure of documents in response to his FOI request to the TPS. At that point, he could have taken immediate steps to file his Application with the Tribunal along with a production request for the cab driver’s name and a request to add the driver as a respondent. See, for example, Dollin v. Almon Equipment, 2009 HRTO 365; Izzard v. Woodbine Entertainment Group, 2009 HRTO 639; Arunachalam v. Best Buy Canada, 2010 HRTO 228; and Heath v. Toronto Police Services Board, 2011 HRTO 1569. However, he was still waiting for the TPS to release the remaining documents that he had requested, and, in the interim, had specifically requested that the TPS release the name of the cab driver to him.

38On October 31, 2012, the TPS released the remaining documents to the applicant, and sent him a letter denying his request for the name of the cab driver for privacy reasons. The letter also informed him that the TPS’s decision denying him access to the cab driver’s name could be appealed to the IPC. The applicant has not stated, or presented any other documentary evidence, that he appealed the TPS’s decision to the IPC. As such, the municipal FOI process effectively came to an end when he received the October 31, 2012 letter. In my view, at this point, the applicant certainly should have taken immediate steps to file his Application with the Tribunal. Instead, he filed his Application three months and three weeks later.

39The applicant’s explanation for the further delay in filing his Application between October 31, 2012 and February 20, 2013 is that after he received the October 31, 2012 letter, he followed up with the TPS numerous times to obtain the cab driver’s name, but was unsuccessful. In my view, this explanation lacks sufficient details to demonstrate that he acted with all due diligence to file his Application in a timely manner. He did not explain whom he followed up with, when he followed up with that person or persons, or why he followed up with the TPS at all given that the October 31, 2012 letter clearly stated that his only recourse was to appeal the decision to the IPC.

40Furthermore, the applicant failed to explain why he did not file his Application within a reasonable period of time after he received the October 31, 2012 letter. On October 31, 2012, 16 months and three weeks had passed since the last alleged incident of discrimination, and four months and three weeks had passed since the expiry of the one-year statutory time limit. In the absence of extenuating circumstances, taking an additional three months and three weeks to prepare and file the Application was not reasonable. See, for example, Cartier v. Securitas Canada, 2010 HRTO 546 at para. 15.

41In the circumstances, I am therefore not satisfied that the applicant’s further delay in filing his Application between October 31, 2012 and February 20, 2013 was incurred in good faith because he has not provided a reasonable explanation for the delay.

42In view of my finding on this point, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

ORDER

43The Application is dismissed.