Gibson v. Ontario (Training, Colleges & Universities), 2013 HRTO 1901

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sean Gibson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Training, Colleges & Universities

Respondents

DECISION

Adjudicator: Alison Renton

Date: November 15, 2013

Citation: 2013 HRTO 1901

Indexed as: Gibson v. Ontario (Training, Colleges & Universities)

APPEARANCES

Sean Gibson, Applicant

Self-represented

Her Majesty and Queen in Right of Ontario as represented by the Minister of Training Colleges & Universities, Respondent

Kisha Chatterjee, Counsel

1This is an Application filed on October 24, 2012 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities and membership in a vocational association because of race and ethnic origin.

background

2In a Case Assessment Direction dated March 13, 2013 (“the March CAD”), the Tribunal directed, upon review of the materials filed, that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3A Notice of Summary Hearing was issued by the Tribunal on March 28, 2013 scheduling the summary hearing by teleconference on June 4, 2013. The respondent was not available on this date and a second Notice of Summary Hearing was issued on April 18, 2013 scheduling the summary hearing by teleconference for July 9, 2013 after canvassing the parties’ availability. The summary hearing was held on July 9, 2013 and both parties participated by teleconference. Some observers also called into the teleconference and listened into the summary hearing.

4During the summary hearing, and at the beginning of his submissions, the applicant raised a concern about a conflict of interest existing between the Tribunal and the respondent because they are “on the same page”. He questioned what mechanisms existed to afford him a “fair trial”. I explained, at this point, that I was an Order-in-Council appointment, who was selected and appointed after participating in a competitive selection process and after appearing before a Standing Committee on Government Agencies, and that I made decisions independently and based upon the information and submissions before me.

5During the summary hearing, an issue arose about whether or not the Application had been filed within the one year mandatory time limit as set out in section 34 of the Code. In his Application, the applicant identified July 26, 2012 as being the date of the last event upon which the Application was based. However, during the summary hearing, and in response to a question from the Tribunal, the applicant stated that nothing specifically occurred on July 26, 2012. As the March CAD had not raised timeliness as an issue to be addressed during the hearing, I gave the parties the option of discussing it during the hearing, filing written submissions subsequent to the hearing, or scheduling a further date on which to hear oral submissions. The parties opted for written submissions.

6A Case Assessment Direction dated July 10, 2013 (“the July CAD”) was issued in which the timeliness issue was re-iterated, section 34 of the Code was set out, several Tribunal cases pertaining to delay which are often cited were referenced, including their citations, and quotations from those decisions was set out, including the applicant’s requirement to provide a good faith explanation for the delay. Further a timetable for the written submissions to be exchanged and filed was also set out. Both parties filed subsequent submissions.

7The Application, Response, Reply, submissions made during the summary hearing, and submissions filed subsequent to the summary hearing have all been carefully considered by the Tribunal.

brief conclusion

8For the reasons set out below, I find that the Application is untimely and that the applicant has not provided a good faith explanation for the delay in filing the Application. For this reason, the Application is dismissed. As the Application is dismissed on this basis, I need not determine whether the Application has a reasonable prospect of success.

The Applicant’s position

9On his Application, the applicant self identifies as a “Young black African male (Negro)” who is, and has been, interested in the profession of barbering. He identified July 26, 2012 as being the date of the last event upon which his Application is based. During the summary hearing, as noted above, and in response to the Tribunal’s question, the applicant submitted that nothing specifically occurred on July 26, 2012 in relation to the respondent.

10The applicant has submitted a lot of information about the profession of barbering, the differences between “”African hair” and “European hair”, details about his attempts to have barbering recognized as a licensed trade and attempts to have changes to the hairstyling apprenticeship program as it pertains to “African hair”. He has also made submissions about racial discrimination. For the purposes of this Decision, I have summarized the applicant’s submissions as follows.

11The applicant alleges that since 1999, he has experienced, and continues to experience, systemic racism on a regular basis from the respondent from his contacts with them as well as in their educational programs, curriculum and work opportunities.

12The applicant takes issue with the respondent’s apprenticeship program within the hair industry. First of all, he asserts that the respondent’s educational programs and apprenticeship requirements do not teach he and other Canadians to manage and cut “African hair” or recognize the distinct qualities of “African hair” in the respondent’s curriculum and training materials. Instead, “European hair” is taught and recognized by the respondent.

13The effect of such discriminatory treatment, the applicant asserts, is that he and other black men and women are denied service by hair salons because the hair salon does not know how to cut or manage “African hair”, or that he and other black people experience unsatisfactory service (for example, poor cuts) because of poorly trained staff.

14Further, the applicant takes issue with the respondent’s refusal to acknowledge and permit barbers to be a licensed trade within the hair industry. The designation of barber was removed by the respondent approximately two decades ago. Now the respondent requires that all persons licensed in the hair industry be qualified as hair stylists, which requires education and training in areas other than cutting, and in areas beyond which a barber wants to practice. The respondent has effectively, the applicant asserts, erased a “once thriving industry thriving by Negro males” which has racist undertones. He claims that there has been and continues to be no effective representation present in this sector, as no visible minorities existed on the respondent’s consultation groups when the respondent removed barbers as a licensed trade. This is not reflective of the diversity of the Ontario population, particularly the black population. The applicant aspires to be a licensed barber, not a hairstylist, and asserts that the respondent has prevented him from growing his business, advancing and opening other shops, establishing an educational facility and succeeding overall because if its interference and institutional racism.

15As a remedy, the applicant seeks $1,000,000 as monetary compensation for the hardship and turmoil for which he has endured, although he notes that “…no amount of money could replace what I’ve been through, but $1000,000 [sic] is a start”. He also seeks a provincial program that recognizes “ethnic hair” in the respondent’s curriculum and “something that speaks to the recognition of African hair implemented in the current program of study”. During the summary hearing, the applicant also submitted that he wants the legislation to change.

16The applicant submits that he will be able to prove that systemic discrimination has occurred and that his Application is timely. Systemic discrimination is very difficult to prove, which is why he waited 14 years to file his Application. During this time, he has had contact with different representatives of the respondent, and others, in an effort to obtain the changes that he is seeking to the respondent’s apprenticeship curriculum and training and to have barbering recognized as a licensed trade. He provided copies of documentation from various individuals to support his claim that he has made strong attempts, over the years, to obtain changes to the current hair industry.

the respondent’s position

17The respondent filed a Response in which it denies all the applicant’s allegations of discrimination and/or systemic discrimination and submits that at all times it acted appropriately in its interactions with the applicant.

18The respondent is responsible for apprenticeship and certification in the skilled trades sector as set out and regulated under the Trades Qualification and Apprenticeship Act, R.S.O. 1990, c. T. 17 (“TQAA”) and Apprenticeship and Certification Act, 1998, S.O. 1998, c. 22 (“ACA”). This includes the development of, and responsibility for, workplace-based apprenticeship training programs. On October 28, 2009, the Ontario College of Trades and Apprenticeship Act, 2009, S.O. 2009, c. 22 (“OCTAA”) was passed establishing the Ontario College of Trades (“OCOT”) which, as of the spring of 2013, replaced TQAA and ACA.

19The respondent submits that the trade of hairstylist is a compulsory trade regulated under the ACA. Prior to 1991, the trade of hairstylist had three separate branches: hairstylist, hairdresser and barber. In 1991, upon recommendation of industry representatives, the respondent amalgamated the three branches into a single trade of hairstylist and has since developed on-the-job training standards and in-school curriculum standards for the apprenticeship program for the trade of hairstylist. The respondent submits that both standards are equally applicable to all hair types regardless of race and/or ethnic origin and that its language is neutral and inclusive of all types of hair. The respondent also provided more detailed submissions in support of their position that these standards are non-discriminatory. However, given my conclusion that this application is untimely, these submissions are not ultimately relevant.

20The respondent has no record of the applicant communicating with it on July 26, 2012, despite that date being identified in the Application as being the date of the last event.

21The respondent submits that it has had various contacts with the applicant over the years. In 2003, it reviewed and considered a proposal the applicant submitted about developing a distinct trade for barbers, but ultimately, based upon recommendations from the hairstylist industry committee, it decided not to implement the applicant’s proposal.

22In May 2010, the respondent wrote to the applicant and told him that it would no longer respond to his queries regarding barbering based upon the amount of time it had spent considering his concerns and had come to informed and reasonable decisions which were then communicated to the applicant.

23However, the applicant continued to bring his issues to the respondent’s attention. In June 2012, the applicant expressed interest in meeting with the Minister of the respondent. The respondent considered this, but ultimately the applicant was referred to a manager within the respondent who was very knowledgeable and experienced with apprenticeship and trade certification issues. The applicant did not follow up on this opportunity. The applicant has not asked for specific accommodation for himself under the Code.

24The respondent submits that the Application is untimely and should be dismissed on that basis. It submits that it would experience prejudice if the Tribunal allowed the Application to continue as it would be defending against allegations that date back years, raising evidentiary problems relating to the passage of time, including the loss of memory of key witnesses, the loss of documentation, and the loss of key witnesses. Further, it submits that it has no reasonable prospect of success and should be dismissed on that basis too.

the law

25Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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 subsection 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.

analysis

Reasonable Prospect of Success

26With respect to this Application, I find, for the reasons set out below, that it was not filed in a timely manner and it is dismissed. Accordingly, and regardless of whether or not the Application would otherwise have a reasonable prospect of success, it is not necessary for me to consider whether the Application has a reasonable prospect of success.

Timeliness

27The applicant filed his Application under section 34(1) of the Code, rather than under section 34(5) (on behalf of another person) or section 35(1) (under which the Ontario Human Rights Commission may file an application where it determines it is “in the public interest” to do so). As noted in Carasco v. University of Windsor, 2012 HRTO 195 at paras. 4 to 5, applicants who file applications under sections 34(1) or (5) of the Code can make allegations of systemic discrimination.

28However, section 34(1) of the Code contains a mandatory one year limitation period running either within one year after the incidents to which the application relates (section 34(1)(a)), or, if there was a series of incidents, within one year after the last incident in the series (section 34(1)(b)).

29The Tribunal’s jurisdiction to extend the time limit to consider an untimely application is very limited. This limited jurisdiction is found in section 34(2) which requires the Tribunal to be satisfied that the delay in filing the Application was made in good faith and that no substantial prejudice will result to any person affected by the delay. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

30In the absence of finding a good faith explanation, and even if the delay is minimal, the Tribunal cannot permit an otherwise untimely application to proceed in light of the mandatory one year limitation period set out in the Code. The Tribunal has no power to “condone” delay where it is not satisfied that it was incurred in good faith. See, Gagne v. Maximum Mining, 2010 HRTO 689 at paras. 9 and 10.

31Allegations of systemic discrimination can fall within a “series of incidents” as set out in section 34(1)(b) of the Code. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a panel of the Tribunal identified some factors to be considered in determining whether or not allegations of discrimination were timely because they relate to a “series of incidents”. At para. 30, the panel held:

A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a ‘series of incident’:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature of character?

d. What is the temporal gap between the alleged incidents of discrimination?

32Again, in considering whether or not there is a “series of incidents”, the initial factor to be considered is “what is the last alleged incident of discrimination to which the Application relates”. Implicit in that, in my opinion, is the date of the last incident.

33In his Application, the applicant identified July 26, 2012 in response to Question 7c) “What was the date of the last event?”. In Question 8, “What Happened”, and specific to July 26, 2012, the applicant stated, “I have and continue to experience systemic racism on a regular basis via the MRCU, however the most recent show of discrimination was on 26/07/2012”. Apart from providing this date, twice, the applicant did not provide any details, allegations, or assertions in relation to this date.

34During the summary hearing the Tribunal specifically asked the applicant to tell it what happened on July 26, 2012. In responding to that question, the applicant stated that nothing specifically happened on this date and reiterated that the discrimination is ongoing and that he felt particularly negatively affected after a written exchange with a Frank Lombardo in 2005 who called the applicant’s business “kitchen cutters”. When, during the summary hearing the Tribunal asked the applicant whether he had dates for his assertions from 1999 to 2012, the applicant responded that his assertions were from 1999 onwards, but he did not identify any specific dates.

35In his Reply, the applicant referred to “an expression” made to the respondent’s then sitting Minister in 2005 about an issue and confirmed that he had been fighting against the systemic discrimination since 1999. He attached to his Reply copies of various letters from individuals, including a MPP, the respondent’s Minister, and others, as well as a newspaper article. The last date of these communications is from February 21, 2010 with an individual requesting a copy of the applicant’s program’s outline.

36In his submissions filed subsequent to the summary hearing and the issuance of the July CAD, the applicant wrote:

I’ve been asked by the Vice Chair Renton to narrow down my discrimination incident to a particular event, circumstance, or incident. Being that systemic discrimination and Institutional discrimination is at the core of my complaint identifying a specific incident is not applicable here. Systemic and Institutional discrimination in this instance has been ongoing, and it’s not as simple and basic as summing it up in one occurrence. Although I can emphatically express to you how my human rights “Allegedly” have been violated by the MTCU. This compliant [sic] is just the beginning, the further this case goes the more the system will be exposed.

37Attached to his post summary hearing submissions, the applicant provided a copy of a May 10, 2010 letter from the then Premier. The then Premier wrote, “Thanks for your recent online message about the barber sector. Your concerns are important to me, and I appreciate receiving your feedback”, and noted that the issue fell under the jurisdiction of the Minister of the respondent who had been forwarded a copy of the letter for review and response. The applicant also attached a May 14, 2010 letter from a director, programs branch, at the respondent, in which it says, amongst other things, “We conclude that there is nothing more that we can do to resolve this issue [barbering] on your behalf” and “…kindly be advised that ministry officials will no longer respond to telephone inquiries from you on this issue”.

38The applicant also wrote, in his submissions addressing the issue of timeliness:

I have no excuse for the delay HRTO; but as I already stated, it is systemic and ongoing. You missed the entire point of this exercise, whether it’s a year, month, two years, or whatever …. You refuse to recognize the offence and lack of cultural awareness at the hands of the MTCU….

39In its Response, the respondent submits that it has no record of any communication with or incident involving the applicant on July 26, 2012. It did reference exchanges that it had with the applicant in 2005, 2010 and submitted that in June 2012, the applicant expressed interest in meeting with the respondent’s Minister. The respondent submits that it considered this request, but ultimately referred him to one of its managers, but he did not follow up on this opportunity. The applicant did not address this point in his Application, Reply, during the summary hearing or in his subsequent submissions.

40The Tribunal has not asked the applicant to “narrow down” his allegations of discrimination to a particular event, circumstance, or incident. In the July CAD, the Tribunal noted, in para. 1, that the applicant was alleging ongoing systemic discrimination. The Tribunal stated that it would be appropriate to receive submissions from the parties as to whether or not the Application had been filed in a timely manner and/or if the applicant has a good faith explanation for any delay in filing his Application as required by section 34(2), given that July 26, 2012 had been identified on the Application as the last event upon which the Application was based with the applicant stating during the summary hearing that nothing specifically happened on this date.

41The Tribunal understands the applicant’s point that he has been subjected to systemic discrimination by the respondent since 1999; however, the mandatory one year limitation period that is set out in section 34(1) of the Code requires that an application be filed one year after an incident or the last incident in a series of incidents. In other words, there needs to be some last date identified by an applicant in a section 34 Application so that the Tribunal can determine whether the application was filed in a timely manner, as required by the Code, and if not, whether there is a good faith explanation for the delay, as required by section 34(2) of the Code.

42In this Application, despite the applicant identifying July 26, 2012 as being the date of the last incident, it is not clear to me that this was the date of the last incident, in the absence of any details or allegations pertaining to this date. While the applicant provided some information about his contact with the respondent in various years, including 2005 and 2010, he provided no information about contacting the respondent in the one year period prior to filing his Application. Furthermore, he provided no information that he applied to be a licensed barber, and was refused, and/or that he participated in the apprenticeship program and was thereby subjected to its curriculum and training standards. The absence of this information, and their respective dates makes it difficult for the Tribunal to determine upon which date the applicant is alleging is the date of the last incident, even if there was a series of incidents, and section 34(1) requires that there be a last incident date.

43Instead, it appears from the applicant’s materials and submissions that in 2005 in his interaction with Mr. Lombardo, whom the respondent asserts is not its employee, and/or in 2010, certain incidents took place that could be the last incident upon which the Application could be based and these would not be timely allegations upon which to base an Application without a good faith explanation for their delay.

44It appears, based upon the applicant’s submissions and the information that he has presented, that the applicant is concerned with the continuing effect of an incident of discrimination, that being in the early 1990s when barbers were no longer a licensed trade. The Tribunal has held that a “continuing effect” does not fall within the meaning of “series of incidents” in section 34(1). See Mafinezam v. University of Toronto, 2010 HRTO 1495, as cited in Garrie, at para. 37.

45It also appears that the applicant takes issue with the training and curriculum standards set by the respondent for the hairstyling apprenticeship program, without actually participating in the apprenticeship program itself. His objection to the program, in the abstract, would mean that this issue is beyond a section 34(1) application which requires an applicant to establish that his or her personal rights were violated. See Freitag v. Penetanguishene (Town), 2013 HRTO 554 at para. 133.

46Not only is there no evidence to which the applicant can point to of an incident of discrimination within the one year prior to his filing the Application, the applicant has not provided a good faith explanation for any delay in filing his Application. Indeed, in his written post summary hearing submissions in which the applicant submitted, “I have no excuse for the delay”, the applicant apparently concedes that he has no good faith explanation for any delay in filing his Application. The applicant’s submission that the discrimination is ongoing or systemic is not sufficient to address section 34(1) of the Code and its requirement that a “last date” be identified in an Application. With the lack of any explanation for any delay, the Tribunal cannot find that the Application is timely.

47The Tribunal has stated in a number of cases that if it does not find a good faith explanation for the delay, it does not need to consider the prejudice, if any, to another party. See Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para. 16.

48The Tribunal’s determination that the Application was not filed in a timely manner and/or that there is not reasonable explanation for any delay in filing the Application has no bearing on whether the Application, if timely, had merit.

49In Cadarette v. Peel Regional Police Services Board, 2011 HRTO 1660, I stated the following at paras. 55 to 56:

The applicant asserts that there is a strong societal interest in proceeding with the merits of the Application given that the allegations are against police forces and their associations even if there was a delay in filing her Application. With respect, I do not see that this is a factor to be taken into consideration in determining whether or not a delay in filing her Application was incurred in good faith as against OPS and OPA.

Section 34(1) of the Code contains a mandatory one year limitation period and section 34(2) requires individuals to prove good faith in filing an application outside the mandatory one year limitation period. There would be little meaning to the statutory limitation period if factors such as the perceived merits of an application, who the parties were, and what, if any, public or societal interests were raised in the application, were considered by the Tribunal in allowing an application to proceed where the applicant had not established that his or her delay was incurred in good faith. This is in contrast to section 35(1) of the Code which allows the Ontario Human Rights Commission to file an application if it is of the opinion “it is in the public interest to make an application”. It is not open to individuals to file a “public interest” application. See Matthews v. C.A.W. Local 1285, 2010 HRTO 1116. [emphasis added]

50Accordingly, I find that the Application was not filed in a timely manner, and since the applicant has not provided a good faith explanation for the delay in filing the Application, the Application is dismissed as untimely.