Praveenkumar Ehamparam v. Roxanne Doyle, 2013 HRTO 1588

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Praveenkumar Ehamparam

Applicant

-and-

Roxanne Doyle

Respondent

DECISION

Adjudicator: Brian Cook

Date: September 20, 2013

Citation: 2013 HRTO 1588

Indexed as: Ehamparam v. Doyle

APPEARANCES

Praveenkumar Ehamparam, Applicant

Self-represented

Roxanne Doyle, Respondent

Brennagh Smith, 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 police services because of race, colour, ancestry, place of origin, citizenship ethnic origin, and disability. The respondent is a police constable employed by the Toronto Police Services Board.

2On review of the Application, the Tribunal noted that it appeared that the alleged discriminatory events that were the subject of the Application occurred several years before the Application was filed. Section 34 of the Code provides:

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.

3The Tribunal issued a Notice of Intent to Dismiss because it appeared that the Application was filed more than one year after the incidents to which the Application relates. If an Application is not filed in accordance with section 34, the Tribunal does not have jurisdiction to deal with the Application, and it must be dismissed on that basis. The applicant made submissions on this issue. After reviewing these submissions, the Tribunal issued a Case Assessment Direction on March 12, 2013. It directed that a telephone conference call hearing be held to hear further submissions from the parties on the delay issue.

4The Case Assessment Direction also directed that if the Tribunal has jurisdiction to deal with the Application because it was filed in accordance with section 34, it would also be necessary to consider whether the Application should be dismissed as having no reasonable prospect of success.

5The telephone conference call hearing was held on September 4, 2013. The applicant appeared and participated in the hearing. The respondent was not present but was represented by counsel.

BACKGROUND

6At the telephone conference call hearing I determined that at this time it was only necessary to hear submissions on the delay issue.

7The applicant confirmed that the Application relates to events that occurred in the period from approximately November 2006 to January 2007. He alleges that the respondent treated him unfairly and illegally and that this occurred contrary to the Code.

8The Application was filed on December 21, 2012, which was approximately six years after the events to which the Application relates. The Application was therefore not filed within one year as required by section 34(1), quoted above. Under section 34(2), the applicant might be permitted to bring the Application even though it was not filed within one year of the allegedly discriminatory events if there is a good faith explanation for the delay and if the respondent would not be substantially prejudiced by the delay. For this reason, the issue in the telephone conference call hearing was whether there was a good faith explanation for the delay in filing the Application.

9The applicant submitted that there are several good faith explanations. He submitted that he has been dealing with significant physical and mental health issues that result in a substantial disability. He noted that his claim for benefits under the Ontario Disability Support Program has been allowed and that the test for entitlement under that program includes whether the person has a substantial disability. The applicant has provided records from a pharmacy that confirm that he has been consistently treated with a variety of medications. He submitted that these records help to confirm that he has a substantial disability.

10The applicant indicated that some or all of the physical disability issues that he has started with injuries he sustained in 2003. He has been involved with ongoing litigation related to those injuries. He indicated that this is one reason why he was unable to file an Application earlier.

11The applicant indicated that for some years he was involved in legal proceedings arising out of the events to which the Application relates. He alleges that he was wrongly arrested and wrongly incarcerated for a period of about four months in 2007. He indicated that he could not have filed an Application in that period and that this is therefore a good faith explanation contributing to the delay in filing the Application. He indicated that he was subsequently on probation for several years, although he did not suggest that this contributed to the delay in filing the Application.

CONCLUSIONS

12As noted, there is no dispute in this case that the Application was filed more than one year after the events to which the Application relates. The issue is whether there is a good faith explanation for the delay.

13It is obvious that the applicant has had a number of significant issues to deal with in the years since the events in 2006 and early 2007. I appreciate that the applicant could have had difficulty filing an Application in the period that he was in jail and that the criminal process would have required the applicant to devote his energies to that process. However, I do not see that those difficulties explain a delay of approximately seven years between the alleged incidents of discrimination and the filing of the Application.

14I also appreciate that the applicant was also dealing with the ongoing litigation related to the injuries he sustained in 2003. However I do not see how that would have prevented the applicant from filing an Application. The Tribunal has repeatedly held that participating in other legal proceedings will generally not constitute a valid explanation for delay in filing an application: see for example, Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

15It is clear that the applicant has a substantial disability, as shown by the fact that he is entitled to benefits under the Ontario Disability Support Program and the list of prescribed medications. However, I am not convinced that this provides a sufficient good faith explanation for the delay. During the telephone conference call hearing the applicant confirmed that his disability has remained the same for many years and that nothing changed in 2012 when he was able to file the Application. While I accept that the applicant’s disability may have made it more difficult to file the Application, there is no explanation for why he was not able to file it earlier since his disability has not changed over the years and since he was able to file the Application in 2012.

16For these reasons, I find that the applicant has not provided a good faith explanation for the delay in filing the Application. The Application was not filed in accordance with section 34 of the Code and as a result, the Tribunal does not have jurisdiction to deal with the Application and it must be dismissed on that basis.