McCarthy v. Kenny Tan Pharmacy Inc., 2013 HRTO 159

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary McCarthy Applicant

-and-

Kenny Tan Pharmacy Inc. Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: January 29, 2013 Citation: 2013 HRTO 159 Indexed as: McCarthy v. Kenny Tan Pharmacy Inc.

WRITTEN SUBMISSIONS

Mary McCarthy, Applicant ) Self-represented Kenny Tan Pharmacy Inc., Respondent ) Eva Melamed, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to address the respondent’s request that the Tribunal dismiss the Application on the basis that it was not filed within the one-year statutory deadline.

BACKGROUND

2On May 22, 2011, the applicant, who is a Black woman, was in a Shoppers Drug Mart store, which is owned by the respondent. She subsequently filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to services and facilities because of her race and colour. Specifically, she alleged that a staff person subjected her to racial profiling and discrimination by falsely accusing her of shoplifting, searching her bag, and failing to apologize to her when the search disclosed that she had not shoplifted anything.

3The applicant, who is a provincial government employee and a Ph.D. student, filed her Application with the Tribunal by e-mail on May 22, 2012, at 11:03 PM, but the Tribunal deemed it to have been filed on May 23, 2012, because the Tribunal’s Rules of Procedure require that documents be filed by the end of the business day. Specifically, Rule 1.19 states:

Documents received after 5 p.m. by fax or e-mail will be deemed to have been received on the next business day.

4On July 24, 2012, the respondent filed a Response, which requested, among other things, that the Tribunal dismiss the Application because it was not filed within the one-year statutory deadline. On August 21, 2012, the applicant filed a Reply, which maintained that her Application was filed in a timely manner.

5On September 5, 2012, the Tribunal issued a Case Assessment Direction, which directed the parties to file written submissions addressing the timeliness issue. Both parties have now filed submissions.

ANALYSIS

6The statutory deadline 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 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.

7The first issue to determine is whether the applicant’s delay in filing her Application was incurred in good faith. In 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.

8In her submissions, the applicant stated that her delay in filing her Application was incurred in good faith. Specifically, she stated that she acted with due diligence by consulting with a lawyer and speaking with a Tribunal staff member, neither of whom mentioned the 5:00 PM deadline, and by reviewing s. 34(1) of the Code, reading the FAQ section of the Tribunal’s website, and reviewing the Tribunal’s Applicant Guide, all which mention the one-year statutory deadline, but do not mention the 5:00 PM deadline. She stated that the possibility that the Application had to be filed by 5:00 PM, rather than midnight, did not enter her mind because, although she is a highly educated professional, she is a layperson, not a lawyer.

9In its submissions, the respondent stated that the applicant’s delay in filing her Application was not incurred in good faith because it is “common sense”, particularly for someone like the applicant who is highly educated, that the deadline would be within normal working hours. The respondent stated that the applicant’s negligence or inadvertence does not constitute a good faith explanation for the delay.

10I am satisfied that the applicant’s six-hour delay in filing her Application was incurred in good faith. In view of the fact that some public bodies accept documents electronically between 5:00 PM and midnight, but do not deem them to have been received the following day (for example, income tax returns), I cannot accept the respondent’s submission that a layperson with “common sense” would know that the Tribunal’s deadline for accepting an Application would be at the end of the business day. In my view, lawyers and paralegals, who, by the nature of their job, have frequent contact with courts and tribunals, may have that “common sense” knowledge, but the same cannot be said about laypersons who do not work in the legal field, including someone like the applicant who is highly educated. More importantly, however, I accept the applicant’s submission that she acted with due diligence by consulting with a lawyer, speaking with a Tribunal staff member, and reviewing s. 34(1) of the Code and documents on the Tribunal’s website. In these circumstances, I do not believe that the fact that she missed a sub-rule in the Tribunal’s Rules amounts to a lack of good faith.

11The second issue to determine is whether substantial prejudice will result to any person affected by the delay. In its submissions, the respondent stated that it has suffered substantial prejudice because of the delay. The respondent stated that it does not have to show that a memory would have materially faded between the last day of statutory deadline and the day after. Rather, the respondent stated that the Tribunal should accept that substantial prejudice attaches to the individual accused of racial profiling if she cannot rely on the finality of the statutory deadline, and has to continue to live with accusations of discrimination. See M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 SCR 6 at paras. 22-24.

12In her submissions, the applicant stated that the respondent has not demonstrated that it suffered substantial prejudice because of the delay. The applicant stated that in the unique circumstances of this case, where she filed her Application within the one-year statutory deadline, but the Tribunal deemed it to have been received on the next business day, it cannot be said that the respondent suffered substantial prejudice.

13I am satisfied that the respondent did not suffer substantial prejudice because of the applicant’s six-hour delay in filing her Application. The delay was extremely short, and there is no evidence that the respondent suffered actual substantial prejudice because of it. I do not accept the respondent’s submission that substantial prejudice should be assumed to exist immediately after the one-year statutory deadline expires. Although I do not discount the possibility that a delay may result in a deemed prejudice to a respondent in certain circumstances, I do not see how the six-hour delay in this case could amount to a deemed “substantial” prejudice.

14In the alternative, I have the authority to waive the application of Rule 1.19, and find that the Application was filed within the one-year statutory deadline. Rule 5.2 of the Tribunal’s Rules provides:

The Tribunal may vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms as the Tribunal considers appropriate in accordance with Rule 1.1.

15Rule 1.1 provides:

These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.

16In my view, in the circumstances of this case, the importance that the Tribunal be accessible to laypersons, such as the applicant, outweighs any other factors, including any small detriment that the respondent would suffer if the filing deadline was midnight rather than 5:00 PM. Accordingly, I exercise my discretion to waive the requirement in Rule 1.19 that the Application be filed by 5:00 PM, and find that the Application was filed within the one-year statutory deadline because it was filed before midnight on May 22, 2012.

ORDER

17The respondent’s request that the Tribunal dismiss the Application on the basis that it was not filed within the one-year statutory deadline is denied.