D.G. v. Centre for Addiction and Mental Health, 2014 HRTO 1336

Human Rights Tribunal of Ontario

B E T W E E N:

D.G.

Applicant

-and-

Centre for Addiction and Mental Health

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: September 10, 2014

Citation: 2014 HRTO 1336

Indexed as: D.G. v. Centre for Addiction and Mental Health

APPEARANCES

D.G., Applicant

Self-represented

Centre for Addiction and Mental Health, Respondent

Kendra Naidoo, Counsel

Introduction

1This Application alleges discrimination with respect to goods, services and facilities because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant was involuntarily admitted to the respondent facility on February 2, 2011 and discharged on February 11, 2011. The applicant alleges the doctors who assessed him upon his admission to, and during his detention at, the respondent facility discriminated against him because they failed to objectively assess his mental state and instead made assumptions about him on the basis of a perceived disability. He vehemently denies he met the criteria for detention under the Mental Health Act. In his view he was detained inappropriately and without justification, despite his objections.

3The applicant’s allegations are untimely. The last alleged event occurred on February 11, 2011 and the Application was filed on September 6, 2013, more than two and a half years after the events in question.

4In accordance with a May 23, 2014 Case Assessment Direction, a teleconference hearing was held to address:

a. Whether the applicant has any reasonable prospect of success;

b. Whether the applicant has a good faith explanation for the delay in filing the Application; and

c. Whether this is an appropriate case for anonymization.

anonymization

5The applicant seeks an order pursuant to Rule 3.11 of the Tribunal’s Rules of Procedure which states:

3.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

6The respondent did not oppose the applicant’s request for anonymization. Given the nature of the applicant’s sensitive health information, the applicant’s request is allowed. The applicant will be referred to by his initials in the style of proceedings and in Tribunal decisions including any past decisions.

delay

7Section 34 of the Code states:

(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.

8The applicant argues the delay in bringing this Application was incurred in good faith because his mental health condition prevented him from filing his Application any earlier.

9The applicant filed medical evidence and made submissions with respect to his mental health status from February 11, 2011 to the time he filed the Application. He also filed a narrative that set out steps he took to assert his rights after his discharge from the respondent facility.

10Within three days of his discharge, the applicant contacted the Tribunal and the Human Rights Legal Support Centre (“HRLSC”) and tried to contact a lawyer. In March, 2011 he called the Human Rights Commission and called the HRLSC again. Before getting an appointment with the HLRSC the applicant went out of the country for a couple of months, during which time he stated his mood changed to anxiety and depression. He returned home in June 2011.

11He stated he felt unable mentally to proceed with anything until May 2013, almost two years later. Even then, though, he did not contact the respondent facility until August 2013 about an internal procedure available to address his rights. After he made these inquiries, he determined that procedure would not resolve his issues and he then filed this Application.

12The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for delay in filing a human rights application. To show good faith there must be more than simply an absence of bad faith. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

13I accept the applicant’s medical condition may have precluded his immediately filing an application with the Tribunal and for the sake of this decision that this situation persisted until at least May 2013. However my difficulty is with the approximately four month period between May and September 2013 when the applicant admits he was able to pursue his claim and took steps to do so. He provided no medical evidence to support a claim he was unable to file his Application as of May, 2013. See Reid v. Ontario March of Dimes, 2009 HRTO 2207; Dionne v. Toronto (City), 2011 HRTO 317.

14The applicant argued he did not have medical evidence because he avoided seeking medical attention as a result of his experiences at the respondent facility. However, even if I were to accept this, his subjective description of his mental state in the four months prior to filing his Application supports a finding he was able to pursue his claim since May, 2013 and failed to do so.

15The applicant filed some Facebook messages to show he was unable for a time even to communicate. One of the gaps in messages is from February, 2012 to May, 2013, which the applicant states demonstrated he lacked motivation, but it is still four months until the applicant proceeds with this Application. His only explanation is that he tried the internal route first, which he did in August, 2013.

16Not only does this not show good faith, but the Tribunal also has repeatedly rejected the submission that waiting for another legal proceeding to conclude before pursuing one’s rights under the Code constitutes a good faith reason for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Mu v. Cargill Foods, 2011 HRTO 846, at paragraph 42 and others. While the applicant was not waiting for another legal proceeding to conclude, his situation is analogous because of his decision to inquire about an internal resolution first. His decision to do this does not constitute a good faith reason for delay.

17Accordingly, I find that the applicant has not met the onus on him to demonstrate that the delay in filing this Application was “incurred in good faith” as required under s.34(2) of the Code, and I decline to exercise my discretion to consider the otherwise untimely Application.

18Given my finding with respect to delay I need not determine whether this Application has no reasonable prospect of success.

order

19This Application is dismissed.