Tripathi v. Kingston Police Force, 2013 HRTO 470

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kiran Tripathi

Applicant

-and-

Kingston Police Force, Chief of the Kingston Police and Chris Gobeil

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: March 19, 2013

Citation: 2013 HRTO 470

Indexed as: Tripathi v. Kingston Police Force

1The applicant filed this Application on October 30, 2012, alleging discrimination in the receipt of services on the basis of race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated November 29, 2012 (the “CAD”), the Tribunal, on its own initiative, directed 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 it will succeed. The Tribunal advised the parties that there were two possible reasons why the Application may not succeed. One, the allegations may be untimely, and two, the applicant may be unable to establish a link between the alleged discrimination and a prohibited ground of discrimination. The respondents were advised that they did not need to file a Response.

3In the CAD, the applicant’s attention was specifically directed to s. 34 which states in part:

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.

4The respondents filed written submissions on the summary hearing on February 26, 2013. The summary hearing was conducted by teleconference on March 12, 2013.

BACKGROUND

5On November 16, 2010, the applicant attended at the headquarters of the Kingston Police to report that she had been sexually assaulted by her lawyer. On April 5, 2011, the applicant was advised by the individual respondent, Detective Constable Chris Gobeil (“Gobeil”), that after consulting with the Crown Attorney, a decision had been made not to pursue criminal charges against the lawyer. On the same day, the applicant wrote to Gobeil and complained that the failure of the Kingston Police to lay charges was because of her race. She questioned why her ethnic background was relevant to her case and asserted justice should be the same for everyone regardless of their age, race, culture or profession. The applicant asked Gobeil to forward her police report to the Law Society of Upper Canada.

6On March 16, 2012, the applicant wrote to the Kingston Police to again complain about the fact that it had not laid criminal charges against her lawyer. In this letter, the applicant complained that her human rights had been violated. She stated:

Now, let me turn it around, what’s the Crown and the Police’s motive for not pursuing the case? You don’t want to go against a powerful lawyer for an Indian woman, so I am getting all these excuses. So I should let a sex offender go free, because he is a lawyer, so he is above the law? …. My Human Rights were violated. It’s not like I am getting over a cold, so get over it. It’s my Human Rights, my dignity, my self-worth, my honour we are talking about.

7The applicant filed her Application with the Tribunal on October 30, 2012, approximately eighteen months after she was advised by the respondent police force in April 2011 that it would not lay criminal charges against her lawyer.

8The Tribunal does not have jurisdiction to consider claims filed more than one year after the last incident of discrimination, or the last in a series of discrimination, unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay. As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, “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”.

9During the summary hearing, the applicant stated her last contact with the Kingston Police was on March 16, 2012 and therefore her Application was within the one year time period. In my view, the applicant’s communication with the Kingston Police in March 2012 was to repeat the same allegation of discrimination made in April 2011. The March 2012 communication was not a separate incident of discrimination and does not operate to extend the time period under which the applicant is required to file her Application. The limitation period under the Code would have little meaning if it could be extended simply by repeating historic allegations of discrimination. As such, the Application is untimely. I will now turn to the question of whether the applicant’s delay in filing the Application was incurred in good faith.

10During the summary hearing, the applicant was asked for an explanation as to why she delayed filing her Application with the Tribunal. She stated that she had many things going on at the time she was advised of the decision not to lay charges in April 2011, including dealing with the sexual assault, and she did not think it was possible to file with the Tribunal. When she received a response from the Kingston Police to her March 2012 letter, she thought she should give it another shot and that she might get heard by the Tribunal.

11While ignorance of one’s rights may, in some circumstances, amount to good faith, the applicant must establish that she had no reason to make inquiries about those rights during the one-year period following the alleged infringement of the Code. See Stewart v. Mitten Vinyl, 2010 HRTO 1628 at para. 7.

12In this case, the applicant believed in April 2011 that her race and culture played a role in the decision by the police not to lay criminal charges. At that point, she had reason to make inquiries about her human rights. She failed to do so. While the applicant stated she had a lot going on, that explanation on its own is insufficient to establish that the delay was incurred in good faith. I therefore find the applicant has failed to establish her delay in filing the Application was incurred in good faith. In light of this finding, it is not necessary to consider the question of prejudice.

13Where the Tribunal is not satisfied that the delay was incurred in good faith, it has no power to relieve against the one-year time limit and no jurisdiction to hear the Application. The Application is dismissed on the basis of delay. No finding has been made as to whether or not the applicant is able to establish a link between her race and the decision not to lay criminal charges against her lawyer.