HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Helen Kim

Applicant

-and-

The Governing Council of the University of Toronto,

Office of the Independent Police Review Director, and

The College of Physicians and Surgeons of Ontario

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: November 26, 2013

2013-14982-I; 2013-14983-I; 2013-14984-I; 2013-14985-I; and 2013-14987-I

Citation: 2013 HRTO 1957

Indexed as: Kim v. The Governing Council of the University of Toronto

appearances

Helen Kim, Applicant ) Self-represented

The Governing Council of the ) Sari Springer, Counsel University of Toronto, Respondent )

Office of the Independent Police ) Jean C.H. Iu, Counsel Review Director, Respondent )

The College of Physicians and ) Michelle Gibbs, Counsel Surgeons of Ontario, Respondent )

INTRODUCTION

[1] The applicant filed nine Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

[2] The purpose of this Decision is to decide whether the Applications should be dismissed on a preliminary basis because they are outside the Tribunal’s jurisdiction and/or have no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases which addressed these issues. At the hearing, I heard oral submissions from the applicant, and dismissed the Applications with written reasons to follow. The following are my written reasons.

BACKGROUND

[3] On July 11, 2013, the applicant filed nine Applications, which named each respondent in at least one of them, checked off nearly every ground and social area in the Code, and described incidents that allegedly occurred between 1992 and 1998, and between the beginning of 2012-2013 academic year at the University of Toronto and June 25, 2013. She also alleged that the respondents discriminated against her because of her relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination, and that the respondents subjected her to reprisals.

[4] On July 23, 2013, the Tribunal issued a Case Assessment Direction (“CAD”), which directed that a summary hearing be held by teleconference to decide whether the Applications should be dismissed on a preliminary basis because they are outside the Tribunal’s jurisdiction and/or have no reasonable prospect of success. The CAD stated at paras. 1, 6, 7, and 8:

Having reviewed the materials filed in these nine related Applications, the Tribunal directs, on its own initiative, that a joint summary hearing be held. The purpose of this summary hearing is to determine whether these Applications should be dismissed, in whole or in part, on the basis of delay or on the basis that there is no reasonable prospect that these Applications or part of these Applications will succeed.

(…)

First, it appears that some of the allegations may be untimely…. The parties may make submissions on whether these Applications are outside the Tribunal’s jurisdiction for this reason.

(…)

Second, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code…. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. Having reviewed these Applications it appears that the applicant may be unable to prove a link to the ground or grounds alleged.

The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why these Applications should not be dismissed on the basis of delay or as having no reasonable prospect of success, and point to the evidence on which the applicant will establish a link to the respondents’ alleged actions.

[5] The summary hearing took place on November 21, 2013. At the outset of the hearing, I read the relevant paragraphs of the CAD, and reiterated that the parties should follow the Tribunal's directions in those paragraphs in their submissions.

ANALYSIS

Timeliness

[6] The 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 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.

[7] There is no dispute that the allegations in the Applications which relate to incidents that occurred between 1992 and 1998 were filed with the Tribunal outside the one-year time limit in s. 34(1) of the Code. In Miller v. Prudential Lifestyles Real Estate, [2009 HRTO 1241](https://www.minicounsel.ca/hrto/2009/1241), 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.

[8] In her submissions, the applicant essentially stated that her delay in filing her Applications with respect to the alleged incidents that occurred between 1992 and 1998 is explained by the fact that she was a young adult when these incidents occurred, and she did not have the confidence and maturity to pursue them at that time. She further stated that the more recent incidents triggered her memories about what happened in the past, and she now has the confidence and maturity to pursue them with a judicial body.

[9] I am not satisfied that the applicant’s delay of at least 14 years in filing her Applications with respect to the alleged incidents that occurred between 1992 and 1998 was incurred in good faith. Specifically, I do not accept that a young adult’s lack of confidence and maturity constitutes a good faith reason for a delay in pursuing a human rights claim. There is no evidence that the applicant lacked the capacity to pursue such a claim between 1998 (when the last alleged incident occurred) and July 11, 2013 (when she filed her Applications). As such, she has failed to establish that she acted with all due diligence in pursuing her claim with respect to these alleged incidents, and has not met her onus of providing a reasonable explanation for the delay.

[10] In 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.

[11] Accordingly, the allegations in the Applications which relate to incidents that occurred between 1992 and 1998 are dismissed.

Reasonable Prospect of Success

[12] I now turn to the allegations in the Applications which relate to incidents that occurred between the beginning of 2012-2013 academic year at the University of Toronto and June 25, 2013. These allegations appear to relate to ss. 1, 8, 9, and 12 of the Code, which provide:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

2. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

3. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

(…)

12. A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

[13] The specific allegations in the Applications are vague and difficult to understand, but they appear to relate to breaches of privacy, receiving unfair grades, the behaviour of a professor, receiving a letter requesting that she no longer enroll in classes, filing a complaint with the College of Physicians and Surgeons of Ontario, and being told by the Office of the Independent Police Review Director that it could not respond to the alleged incidents that she had reported.

[14] Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, [2010 HRTO 1994](https://www.minicounsel.ca/hrto/2010/1994) (“Dabic”) at paras. [8-10](https://www.minicounsel.ca/hrto/2010/1994):

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

[15] The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, [2011 HRTO 1389](https://www.minicounsel.ca/hrto/2011/1389) at para. [17](https://www.minicounsel.ca/hrto/2011/1389).

[16] The focus at the summary hearing was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondents discriminated against her because of the Code grounds listed in her Applications, discriminated against her because of her relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination, and subjected her to reprisals as defined in the Code.

[17] In her submissions, the applicant merely repeated what is in the narratives of her Applications, and failed to point to evidence that she has or that is reasonably available to her that can show a link between the alleged incidents and the Code grounds listed in her Applications, that can show that the respondents discriminated against her because of her relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination, and that can show that the respondents subjected her to reprisals as defined in the Code. I then read the relevant paragraphs in the CAD again, and asked her to specifically point to evidence that she has or that is reasonably available to her that can show that the respondents violated the Code. In response, she stated that in the spring of 2011, she published an eBook about what happened to her in the past, and she then began repeating again what is in the narratives of her Applications.

[18] In view of the applicant’s failure to point to any evidence that she has or that is reasonably available to her that can show a link between the alleged incidents and the Code grounds listed in her Applications, that can show that the respondents discriminated against her because of her relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination, and that can show that the respondents subjected her to reprisals as defined in the Code, I find that there is no reasonable prospect that the Applications can succeed. Specifically, I find that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondents discriminated against her because of the Code grounds listed in her Applications, discriminated against her because of her relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination, and subjected her to reprisals as defined in the Code.

[19] Accordingly, the allegations in the Applications which relate to incidents that occurred between the beginning of 2012-2013 academic year at the University of Toronto and June 25, 2013 are dismissed.

ORDER

[20] The Applications are dismissed.

Dated at Toronto, this 26th day of November, 2013.

“Signed by”

Ken Bhattacharjee

Vice-chair