Selkirk Estate v. Ontario (Health and Long-Term Care), 2013 HRTO 1980

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

The Estate of Mark Selkirk

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the

Minister of Health and Long-Term Care, and University Health Network

Respondents

-and-

Trillium Gift of Life Network

Affected Party

DECISION

Adjudicator: David Muir

Date: November 29, 2013

Citation: 2013 HRTO 1980

Indexed as: Selkirk Estate v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

The Estate of Mark Selkirk, Applicant ) Debra Selkirk, Representative

University Health Network, Respondent ) Naomi Margo, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of goods and services on the basis of disability. This Decision deals with an issue of delay as well as the applicant’s claim that I am biased and should recuse myself from this case.

2This Application was filed by the Estate of Mark Selkirk after the death of Mr. Selkirk. The central allegation in the Application is that the policy of the hospital that persons with an addiction to alcohol abstain from alcohol for six months before a liver transplant will be undertaken is discriminatory.

3In a Case Assessment Direction (CAD) issued to the parties on October 21, 2013 the applicant was directed to deliver and file her submissions explaining why this Application should not be dismissed for delay. The applicant was directed to an earlier CAD issued on November 26, 2012 for an elaboration of the law and some of the Tribunal’s jurisprudence on this issue. The respondents were directed that they need not file any responding materials unless directed to do so. Notwithstanding this Direction the respondent University Health Network filed submissions seeking the early dismissal of the Application for delay.

The Delay Issue

4Sections 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, read as follows:

(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.

5The applicant’s widow, hereinafter referred to as the applicant, argues that she was ignorant of her right to file an Application. She claims that any reasonable person who had any notion that the denial of treatment could be challenged under the Code would have done so to prevent their death. The applicant argues that she only learned that her rights had been violated when doing research for a petition seeking changes to the Mental Health Act. The applicant asserts that it was not until she discovered section 25 of the Canadian Human Rights Act which she states identifies alcohol addiction as a disability. The applicant then filed the Application within two weeks.

6The Application is dismissed. I am not satisfied that the applicant has met the burden of establishing a good faith explanation for the delay in this case. This Application was filed on November 8, 2012 and relates to events said to have taken place in November 2010. As was noted in the CAD of November 26, 2012 the Tribunal has repeatedly held that a lack of knowledge of the law does not constitute good faith within the meaning of s. 34 (2). See, for example, Lutz v. Toronto (City), 2009 HRTO 1137; Lafleur v. Kimberley Scott, 2009 HRTO 1141; Winston v. University Health Network, 2011 HRTO 1648. These cases all stand for the proposition that it is not enough to show that the applicant was ignorant of their rights under the Code, they must also establish that they had no reason to make enquiries about those rights.

7It is not at all clear what the basis for such a claim would be in this case. All of the information necessary to make enquiries was available to the applicant during the course of the events which ended with the passing away of her spouse in late November 2010. That is she was aware of the allegedly discriminatory policy and the advice of her husband’s physicians that it applied in the circumstances. It seems to me that the applicant had all of the information she required to make enquires about her rights if any. For these reasons the Application is dismissed.

8Having found that there is no good faith explanation for the delay there is no need to determine whether any party would be significantly prejudiced by the delay.

The Bias Issue

9The applicant alleges that I may be in a conflict of interest in that I am a former employee of the Government of Ontario and acted as prosecutor for the Ministry of Labour and am now dealing with a case involving my former employer.

10The legal principles to be applied to reasonable apprehension of bias were set out by de Grandpré J. in Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

11The applicant relies on the fact that over 20 years ago I was employed in a Ministry of government other than the Ministry responding to this Application. In my view the connection relied upon by the applicant is far too remote to give rise to any reasonable apprehension of bias. This case is analogous to those cases where a former client appears before an adjudicator. See for example Goodridge v. Toronto Police Services Board, 2009 HRTO 94. In my view the applicant has not met the burden of establishing a reasonable apprehension of bias.

12For all of these reasons the Application is dismissed.