HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paul Conway
Applicant
-and-
Penetanguishene Mental Health Centre Oakridge Division
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Conway v. Penetanguishene Mental Health Centre Oakridge Division
APPEARANCES
Paul Conway, Applicant
Self-represented
Penetanguishene Mental Health Centre Oakridge, Respondent
Beth Beattie, Counsel
1The Tribunal directed that a preliminary hearing via telephone conference would be held to determine whether the Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), should be dismissed on the basis that it was not filed within one year of the last incident of discrimination.
2A preliminary hearing was convened but an adjournment was granted because the applicant indicated that he needed some time to consult with counsel.
The applicant’s conduct
3The preliminary hearing was reconvened on a later date at 1:30 p.m. The applicant did not call in at 1:30 p.m. but eventually a representative from the Psychiatric Patient Advocate Office called in to advise that the applicant wanted to participate but that he had gone out for the morning and should be coming back soon. I stood the matter down for 30 minutes. The applicant eventually called in at 2 p.m.
4During the conference call the applicant refused to comply with the Tribunal’s various directions. He failed to provide me with an explanation for the fact that he was 30 minutes late. He constantly yelled and interrupted the Tribunal. At one point the applicant stated that he would not answer any questions unless he was granted an in-person hearing in Toronto. He stated that it was unfair that the parties were calling in from Toronto and he wanted to come to Toronto also.
5I refused his request for an in-person hearing and I advised him that the Tribunal had already granted him one adjournment request and that if he refused to participate in the conference call then I would decide the matter based solely on the written materials that were before me.
6The applicant eventually agreed to participate in the conference call.
Background
7The Application relates to events that occurred in 1991, the last event occurring on July 8, 1991. The applicant states that someone wrote a derogatory comment in the room in which he was going to stay. This comment was removed by staff prior to the applicant seeing it. However, within a few weeks other people told him that this comment had been written in the room. It is unknown who wrote this comment. The applicant explained that he did not know if he should trust the individual who told him about the derogatory comment.
8The applicant states that in September 2012 that he had a conversation in which someone confirmed that the derogatory comment had been written on the wall in 1991. The applicant states he has applied within one year of the conversation with this individual. He believes this individual to be more credible than then the other individual that he had a conversation with in 1991.
Decision
9The Code states at section 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.
10The first issue that the Tribunal must determine is the date of the last incident of discrimination. In this case it is clear that the date of the last date of the alleged discrimination is July 8, 1991. The applicant filed this Application on September 16, 2013, over 22 years later. The delay in the filing of this Application is extreme.
Good Faith
11The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. The applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. The Tribunal has also stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See, for example, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. A reasonable explanation must substantiate that the applicant acted with all due diligence. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
12In this case I find that the applicant has not provided the Tribunal with a reasonable explanation for the delay in the filing of the Application. The applicant was made aware that a derogatory comment had allegedly been made on his wall in 1991. He therefore had the necessary information to file a timely application at that time. The fact that the applicant believes that he has more credible information to support that the derogatory comment was made is not a reasonable explanation for the delay. The applicant could have sought this information in a timely and diligent fashion.
Prejudice
13Further, I find that the respondent is prejudiced by the delay in filing the Application. First, there is at least one witness to the event which is deceased. Second, the facility ceased operating in 2008, and third, the passage of over 20 years of time will significantly prejudice the respondent from filing a Response to the Application.
Order
14I find that the Application does not fall within the Tribunal’s jurisdiction because it was not filed within one year of the last incident of discrimination, and both that the delay was not incurred in good faith and the respondent would be prejudiced by the delay if I allowed it to proceed.
15The Application is dismissed.
Dated at Toronto, this 19^th^ day of December, 2014.
“Signed by”
Geneviève Debané
Vice-chair