Cada v. Shoppers Drug Mart Inc., 2013 HRTO 2099

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Cada

Applicant

-and-

Shoppers Drug Mart Inc., JAC Pharmacy Solutions Inc., Bruce Wright Management Ltd., Muhammad Awan and Mustal Trading and Services Inc.

Respondents

DECISION

Adjudicator: Paul Aterman

Date: December 19, 2013

Citation: 2013 HRTO 2099

Indexed as: Cada v. Shoppers Drug Mart Inc.

WRITTEN SUBMISSIONS

David Cada, Applicant

Amanda Driscoll, Counsel

Shoppers Drug Mart Inc. and JAC Pharmacy Solutions Inc., Respondents

Craig Colraine, Counsel

Bruce Wright Management Ltd., Respondent

Jim Dimovski, Counsel

Muhammad Awan and Mustal Trading and Services Inc., Respondents

Yunus Timol, Counsel

Introduction

1This Decision deals with requests made by each of the respondents to dismiss this Application on the grounds that the Tribunal has no jurisdiction to deal with it. The Application was filed on May 29, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race, ancestry and citizenship.

2The respondents request dismissal on the ground of delay because the Application alleges an incident of discrimination that took place on October 2, 2011, more than a year before the filling of the Application.

3This Application initially only named Shoppers Drug Mart Inc. as a respondent. When it filed its Response, that corporate respondent requested dismissal of the Application on grounds of delay. The applicant provided submissions arguing against dismissal in his Reply. Subsequently the other respondents were added and all have requested that the Application be dismissed for delay. Their arguments are the same as the ones advanced by Shoppers Drug Mart Inc. The applicant has not filed separate submissions in relation to these requests and I am assuming that the arguments made by the applicant in his Reply to Shoppers Drug Mart Inc. are applicable to all the requests for dismissal.

4The applicant self-identifies as a First Nations person from the Sheshegwanig First Nation. He was a regular customer at a pharmacy owned by JAC Pharmacy Solutions Inc., a franchisee of the respondent Shoppers Drug Mart Inc. In order to make use of the federally mandated health benefits to which he is entitled as an Aboriginal person, he was required to present identification that verified his entitlement when having a prescription filled.

5As the applicant’s personal information was on file and as staff at the pharmacy came to know him over time, he was no longer required to present his identification or explain what he was entitled to each time he needed a new prescription.

6However, on October 2, 2011, when he went to have a prescription filled, a pharmacist whom he did not recognise dealt with him. The applicant tried to explain what he was entitled to and the pharmacist is alleged to have said to him “We don’t honour your nation here, or your status here.” The pharmacist is alleged to have made similar remarks about the applicant to another employee.

7The owner of the pharmacy, JAC Pharmacy Solutions, had contracted with Bruce Wright Management Ltd. to refer a licenced pharmacist to it on a short-term basis. Bruce Wright Management Ltd. had in turn arranged for a pharmacist to work at the pharmacy by contracting with Mustal Trading and Services Inc.

8The president, sole shareholder and director of Mustal Trading and Services Inc. is Muhammad Awan, a licenced pharmacist. He was the pharmacist who dealt with the applicant on October 2, 2011.

9I have concluded that the Application falls outside the Tribunal’s jurisdiction. As a result it is dismissed. The reasons for this conclusion are set out below.

the applicant’s explanation of the delay in filing the application

10The applicant says that four days after the incident he went on the Shoppers Drug Mart website and sent a letter of complaint about his treatment to both the pharmacy and the corporate head office. On October 19 he went to a legal clinic for advice about the incident and provided the clinic with the reference number he had been given for the complaint letter that he had sent.

11On October 31, 2011 the clinic confirmed that it would assist him if the company did not address his concerns. The applicant waited to hear from Shoppers Drug Mart but received no response. He returned to the clinic in May of 2012 and the clinic contacted a representative of the company’s consumer affairs section.

12The clinic was told that the applicant’s complaint had been closed. When the clinic asked to know what steps had or would be taken to prevent a repetition of the original incident, the company’s representative undertook to find out. Having received no answer, on May 24 the clinic again contacted the representative and was told that the complaint was regarded as closed.

13Further exchanges followed between the clinic and the representative of the respondent Shoppers Drug Mart Inc. On May 30, 2012 the applicant was told by the clinic that it had demanded that Shoppers Drug Mart Inc. explain in writing what had been done to address the applicant’s complaint. He alleges that the company representative undertook to provide a letter within a week explaining how the complaint had been dealt with. No letter was provided. The clinic made further attempts to contact Shoppers Drug Mart Inc., the last being in October of 2012.

14The applicant argues that, despite the delay in filing the Application, he acted in good faith and that the respondent Shoppers Drug Mart Inc. would not be prejudiced if his Application were allowed to proceed. He says that he believed the clinic was working to resolve his complaint. It had informed Shoppers Drug Mart Inc. that an Application might be filed, but that the applicant was interested in a more informal resolution of the matter. The applicant adds that the clinic is a busy office, with client demands that strain the capacity of its small staff.

analysis

15Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

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.

16In this case the application was filed on May 29, 2013, well after the one year time limit for filing, which expired on October 1, 2012, one year after the last alleged incident of discrimination on October 2, 2011. The applicant does not contest that the application was filed beyond the one year time limit. His argument is based on the good faith exception.

17The Tribunal has set a high onus on applicants to demonstrate that a delay was incurred in good faith (see Klein v. Toronto Zionist Council, 2009 HRTO 241).

18The applicant’s good faith argument appears to be based on his assertion that he was trying to address this matter through less formal means than the filing of an Application. In doing so he was assisted by counsel. It is also clear that the clinic communicated to the representative of Shoppers Drug Mart Inc. that, while the applicant was looking for an informal resolution, he was nonetheless thinking about filing an Application. The legal clinic kept the applicant apprised of what it had told Shoppers Drug Mart Inc.

19Despite having retained counsel and having been informed of the possibility of bringing an Application, the applicant opted to pursue an alternative route to address the alleged discrimination. The Tribunal has held that choosing to pursue other proceedings before initiating an Application is generally not sufficient to justify a delay under the good faith exception (see Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670).

20In my view this reasoning applies here. The applicant has not explained what stopped him from filing an Application within time while simultaneously pursuing an informal resolution of the matter.

21In addition, there is little or no explanation of some periods of time that make up the delay. From the end of October of 2011 to May of 2012 neither the applicant nor the clinic did anything to prod Shoppers Drug Mart Inc. The explanation is simply that they were awaiting the outcome of an investigation they believed had been started by that corporate respondent.

22The applicant indicates that after May of 2012 the clinic made attempts to contact Shoppers Drug Mart Inc., but stopped doing so at the end of October 2012. There is no explanation of why the clinic stopped whatever efforts it had been making. Finally, there is no explanation at all of what steps the applicant took between October 2012 and May 29, 2013, when the Application was eventually filed.

23The applicant also appears to argue that the clinic was in some way negligent by failing to action his file for some period of time, and that this should excuse his delay. His submission reads:

However, due to the nature of the work that ALST does, the busy office and a file transfer within the office because of a maternity leave, Mr. Cada’s Application was not filed within the time period allowed by the Tribunal.

24Solicitor’s negligence is not explicitly argued by the applicant as a reason that might satisfy the good faith requirement of s. 34(2), nor has the applicant produced evidence in support of such an argument. In any event it is not necessary for me to decide that issue because – quite apart from the possibility that the clinic let the applicant’s file fall through the cracks – at the time when it was focusing on the applicant’s file the clinic chose not to pursue an Application. Instead it made an active decision to try to resolve the matter directly with Shoppers Drug Mart Inc. and it acted on the applicant’s instructions in doing so.

25The approach taken by the applicant indicates that he knew he could file an Application with the Tribunal, but chose to put off doing so in order to see if the matter could be resolved by dealing directly with Shoppers Drug Mart Inc. He has failed to show that he acted in good faith in the period when he delayed bringing an Application.

26Having arrived at that conclusion, it is not necessary for me to consider whether any substantial prejudice will result to any person affected by the delay (see: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16).

order

27The Application is dismissed for delay.