Alexander v. Right at Home Realty Inc. Brokerage, 2014 HRTO 1817

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cleopatra Alexander (aka Sylvia Bourgeois)

Applicant

-and-

Right at Home Realty Inc. Brokerage, Rasko Vuckoski, and Slavica Vuckoski

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: December 22, 2014

Citation: 2014 HRTO 1817

Indexed as: Alexander v. Right at Home Realty Inc. Brokerage

WRITTEN SUBMISSIONS

Cleopatra Alexander, Applicant

Self-represented

Right at Home Realty Inc. Brokerage, Respondent

Michael Weber, Representative

Introduction

1The purpose of this Decision is to decide whether the Application should be dismissed on the basis of jurisdiction because it is untimely.

2The time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”):

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.

BACKGROUND

3The applicant was a tenant in a rental unit in a house. In 2011, the individual respondents purchased the house, and sought to terminate the tenancy. On December 3, 2011, the applicant vacated the unit.

4Following the applicant’s vacation of the unit, the individual respondent, Rasko Vuckoski (the “respondent Vuckoski”) filed claims against her with the Landlord and Tenant Board and the Superior Court of Justice (“Superior Court”). The applicant also filed a claim against the respondent Vuckoski with the Superior Court.

5On April 25, 2013, the Superior Court issued the following order:

1. On consent plaintiff’s claim [the respondent Vuckoski’s claim] is withdrawn without costs on the basis that the subject of the claim was dealt with by the Amended Order of the Landlord and Tenant Board dated February 8, 2012.

2. Defendant’s claim [the applicant’s claim] is stayed until defendant completes application to the Ontario Human Rights Tribunal for the subject matter of defendant’s claim – i.e. discrimination by the landlord.

6On June 21, 2013, the applicant filed an Application with this Tribunal under s. 34 of the Code, which alleged that the respondents discriminated against her with respect to housing because of her sex and marital status. Specifically, she alleged that the respondents harassed her and evicted her from her rental unit because she was single female living on her own. She stated that the housing dispute between her and the individual respondents was then the subject of proceedings before the Landlord and Tenant Board and the Superior Court.

7In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: “April 25, 2013”. In section 7(d) (“If you are applying more than one year from the last event, please explain why:”), she wrote: “No.”

8On December 20, 2013, the organization respondent filed a Response, which denied the allegations of discrimination, and stated that the Application is barred because the last alleged incident of discrimination occurred outside the one-year time limit in s. 34(1) of the Code. The individual respondents did not file Responses to the Application.

9On January 22, 2014, the Tribunal delivered the organization respondent’s Response to the applicant, and notified her that, pursuant to Rule 9.1 of the Tribunal’s Rules of Procedure, unless her position was already contained in the Application, she was required to file a Reply if she intended to prove a version of the facts different from those set out in a Response.

10The applicant did not file a Reply to the organization respondent’s Response.

11On June 18, 2014, the Tribunal issued a Case Assessment Direction (“CAD”), which noted that there appears to be an issue as to whether the Application is timely, and stated the following with respect to the applicant’s answer in section 7(c) of the Application:

… April 25, 2013 appears to be the date that the Superior Court issued an order, which stayed a claim that the applicant had against the individual respondents. The Application does not characterize this incident as an incident of discrimination. Based on the narrative in the Application, the last alleged incident of discrimination appears to have occurred on December 3, 2011 when the applicant vacated her rental unit.

12The CAD then directed the parties to provide more fulsome written submissions on whether the Application should be dismissed on the basis of jurisdiction because it is untimely, and to specifically address the following issues:

1. When did the last alleged incident of discrimination occur?

2. If the last alleged incident of discrimination occurred outside the one-year statutory time limit, was the applicant’s delay in filing her Application incurred in good faith?

3. If the last alleged incident of discrimination occurred outside the one-year statutory time limit, will substantial prejudice result to any person affected by the delay?

13The applicant filed submissions, but none of the respondents did.

ANALYSIS

14The first issue to determine is when the last alleged incident of discrimination occurred.

15In her submissions, the applicant stated that the entire narrative of her Application sets out what she believes was discriminatory, including the hearing before the Superior Court on April 25, 2013. Alternatively, she stated, the last incident of discrimination occurred on December 3, 2012 when she received “Court papers” from the respondent Vuckoski. She stated that he initiated legal proceedings against her because she was a single female living on her own.

16I find that the last alleged incident of discrimination occurred on December 3, 2011, when the applicant vacated her rental unit. I do not accept that the hearing before the Superior Court on April 25, 2013 was an alleged incident of discrimination. The applicant did not explain, and I do not see, how a hearing can be characterized as an incident of discrimination. I also do not accept that the respondent Vuckoski’s initiation of legal proceedings against her after she vacated her rental unit were alleged incidents of discrimination. She did not characterize his initiation of legal proceedings against her as incidents of discrimination in her Application, and it is insufficient to baldly state, in response to the Tribunal’s CAD, that he initiated legal proceedings against her because she was a single female living on her own. In my view, the applicant is simply trying to characterize non-discriminatory incidents as discriminatory incidents in order to fit her Application within the one-year time limit in s. 34(1) of the Code.

17In view of the fact that the last alleged incident of discrimination occurred on December 3, 2011, but the Application was not filed until June 21, 2013, I find that the Application was filed approximately six and a half months outside the one-year time limit in s. 34(1) of the Code.

18The second issue to determine is whether the applicant’s delay in filing her Application was incurred in good faith.

19In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25 what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

20The applicant simply took the position that her Application was filed in a timely manner. As such, she did not address why she filed her Application approximately six and a half months outside the one-year statutory time limit, or explain how her delay in filing her Application was incurred in good faith. She indicated that the Superior Court judge informed her on April 25, 2013 that she had a human rights claim against the respondents, but, even if this is an explanation for the delay, the Tribunal has repeatedly found that ignorance of the law is not a good faith explanation for delay. See Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339; Desauliniers v. Canadian Auto Workers, 2009 HRTO 1743; and Winston v. University Health Network, 2011 HRTO 1648.

21Furthermore, the applicant has failed to explain why she did not file her Application within a reasonable period of time after April 25, 2013. On that date, approximately 16 months and three weeks had passed since the last alleged incident of discrimination, and approximately four months and three weeks had passed since the expiry of the one-year time limit in s. 34(1) of the Code. At that point, she should have filed her Application immediately. Taking almost two months to prepare and file the Application was not reasonable, particularly in the absence of any extenuating circumstances.

22Accordingly, I find that the applicant has not established that her delay in filing her Application was incurred in good faith.

23In view of my finding on this point, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

ORDER

24The Application is dismissed.