Hodgson v. Ontario (Health and Long Term Care), 2013 HRTO 54

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Hodgson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long Term Care

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 10, 2013

Citation: 2013 HRTO 54

Indexed as: Hodgson v. Ontario (Health and Long Term Care)

WRITTEN SUBMISSIONS

Ontario (Health and Long Term Care), Respondent

Matthew Horner, Counsel

Introduction

1This Interim Decision addresses the respondent’s request to dismiss this Application for delay. The applicant filed his Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on September 27, 2012. It alleges discrimination with respect to services on the basis of sex with respect to a period in 2004 and 2005, and a separate period in 2012.

2The respondent filed its Response stating that the Application is out of time and should be dismissed for delay. When the Response was served on the applicant, he was advised of this request and specifically directed to file submissions on it in a Reply no later than December 19, 2012. The applicant did not file written submissions or a Reply and the time for so doing has now elapsed.

Decision and analysis

3The narrative and the request for remedy both refer to a period when the applicant alleges he and a former spouse were denied access to a medical procedure, due to a policy of the respondent, in 2004 and 2005. The applicant requests specific compensation for this period of time.

4He also makes allegations concerning this same policy which he states continued to apply in 2012 when he and his current spouse (who has filed a separate Application) attempted to access the medical procedure. Although the applicant does not request monetary compensation for this current period alone, he appears to be requesting a lump sum for the previous eight years, which may include the 2012 period. His remedial request also includes changes to the existing policy.

5Section 34 states, in part:

(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.

6As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “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.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

7The 2004-2005 period is sufficiently discreet that it cannot be seen as part of a “series of incidents” as that term is used in s. 34(1)(b) of the Code. The fact that the applicant is alleging that he continued to feel the effects of the previous act of alleged discrimination does not make it an ongoing contravention.

8These allegations are out of time and are outside the Tribunal’s jurisdiction unless the applicant can demonstrate that the delay was incurred in good faith and no substantial prejudice will result to the respondent. The applicant has failed to provide an explanation for the delay in bringing these allegations and has not, therefore, met his onus with respect to the good faith requirement. It is not necessary for the Tribunal to address the question of prejudice to the respondent.

9The allegations concerning the 2004-2005 period must be dismissed as untimely. This will not necessarily preclude the applicant from addressing this period in his evidence if it is relevant to understand an issue with respect to the current period, but he will not be entitled to seek a finding of discrimination or any remedy for this alleged breach.

10It would not be appropriate, however, to dismiss the entire Application as requested by the respondent. The allegations concerning events in 2012 are timely and must be allowed to proceed at this time.

order

11The Application will be allowed to proceed at this time, but the applicant is precluded from seeking a finding of discrimination or requesting a remedy for the allegations concerning the period between 2004 and 2005.