Marlon Mark Andrews v. Canadian Chiropractic Examining Board, 2014 HRTO 471

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marlon Mark Andrews Applicant

-and-

Canadian Chiropractic Examining Board Respondent

DECISION

Adjudicator: Alison Renton Date: April 4, 2014 Citation: 2014 HRTO 471 Indexed as: Andrews v. Canadian Chiropractic Examining Board

WRITTEN SUBMISSIONS

Marlon Mark Andrews, Applicant Self-represented

Canadian Chiropractic Examination Board, Respondent Allan M. Freedman, Counsel

1This is an Application filed on September 3, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a vocational association because of disability. He self-identifies as having a learning disability on his Application and alleges that the respondent failed to accommodate him such that he was unable to successfully complete part of the respondent’s examination process.

the application

2The applicant has completed his doctorate of chiropractic in the United States, its national examinations, and has a physiotherapy diploma. Within the body of his Application before the Tribunal, the applicant states that he has unsuccessfully attempted to complete the respondent’s examination component B five times, at which point the respondent told him that he was ineligible to write the examination again. He wrote to the Ontario Chiropractic Association (“OCA”) which stated it would allow him to write an additional time along with taking an additional course, but the respondent stated that the OCA could not override the respondent’s decision. He also intended to take the examination again in 2012 after some tutoring and taking a learning disability assessment profile, but was told by the respondent in April 2012 that he was ineligible to do so.

3The applicant then initiated the respondent’s appeal process, but was denied at each of the respondent’s three levels of appeal. The third appeal was held on January 22, 2013, the date the applicant identifies as being the date of the last event upon which his Application is based. The applicant participated in the hearing by telephone from another country.

4Amongst the remedies that the applicant seeks, he requests that the Tribunal “grandfather” him into the system based upon his examination designation from the United States.

5The applicant asserts that he does not know the severity of his disability. After his fifth attempt, his learning disability was evaluated with his weaknesses illustrated. He submits that it demonstrates how and why he did so poorly on his examination and what accommodations could have been discussed. He suggests, in his Application, some examples of how he could have been accommodated. Attached to his Application was a document entitled “Reasonable Testing Accommodations Disability Documentation” which appears to be part of a portion of a larger document.

the response

6The respondent filed a Response. First, it clarified that the College of Chiropractors of Ontario (“CCO”), not the OCA, is the regulatory body for chiropractors in Ontario. The respondent is a non-for-profit non-share incorporated corporation whose members are chiropractic regulatory bodies of Canada’s provinces and it creates, maintains and conducts examinations for candidates who wish to become provincially licensed. The applicant, relocating to Canada, was required to successfully complete Parts B and C of the respondent’s examinations, in addition to other requirements necessary for registration as a chiropractor within Ontario.

7The applicant was unsuccessful at passing his examination on four attempts, with the fourth attempt made in September 2007. Prior to each attempt, he received a policy from the respondent stating that the maximum number of examination attempts was four, and a policy about an application for accommodation of disabilities. These were attached to the Response. After the fourth attempt, the applicant advised the respondent, for the first time, that he had a learning disability about which he had been diagnosed in 1989-1990. The respondent provided him with information regarding accommodation of disability.

8The applicant did not make any request for accommodation of disability when applying for his fifth and final examination attempt, which was held in September 2008. He was advised, by letter dated October 21, 2008 from the respondent’s executive director that he was ineligible to apply for any future sittings of the examination (“the October 2008 determination”). Despite this, the applicant submitted an on-line application for the June 2012 examination. Subsequently, the respondent again confirmed its October 2008 determination in an email dated April 12, 2012 and provided him with information about its appeals process, which the applicant then initiated.

9On October 26, 2012, the respondent’s appeals committee issued a decision denying the applicant’s appeal. The applicant submitted a further appeal which was heard by the respondent’s appeals panel on January 15, 2013. The appeals panel denied this appeal by decision dated January 17, 2013 (“the final appeal decision”).

the respondent’s request for order during proceedings

10The respondent also filed, along with its Response, a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal dismiss the Application as being untimely and without any good faith justification for the delay. It submits that date of the last event is the October 2008 determination.

11The applicant did not file a timely Response to the RFOP. On December 11, 2013, the applicant filed a Form 11, Response to the RFOP, but he did not file any submissions, or attach any submissions to the Form 11. In several emails to the Tribunal in November 2013, the applicant submitted over 200 pages of emails, email chains, and materials related to his interactions with the respondent and in relation to his appeals, but nothing responding to the delay issue. At this point, the Tribunal did not have any submissions filed by the applicant pertaining to the issue of delay.

12The Tribunal issued a Case Assessment Direction (“CAD”) setting out sections 34(1) and (2) of the Code, referencing a Tribunal decision pertaining to the good faith component of the delay issue, and directing that the applicant file a new Response to the RFOP including submissions addressing the potential delay argument advanced by the applicant. The Tribunal stated that upon receipt of the applicant’s Response to the RFOP submissions, the Tribunal may issue further case assessment directions or decide the delay issue based upon the parties’ written submissions.

13The applicant did not file a new Response to the RFOP, although he filed submissions, initially with the Tribunal and then with the Tribunal and the respondent. In these submissions, the applicant references sections 34(1) and (2) of the Code and submits that because the final appeal decision is January 17, 2013, which was communicated to him by letter dated January 20, 2013, he had until January 20, 2014 to file his Application. Since the Application was filed in 2013, it was filed in a timely manner. He also submits that when he returned to Canada in June 2013, his priorities were to enrol in post-secondary correspondence programs to assist himself while seeking employment outside of his professional field of expertise. He attached to his submissions a copy of the final appeal decision from January 17, 2013 and a letter dated January 20, 2013 from the chair of the appeals panel enclosing the final appeal decision. He did not file any submissions responding to the respondent’s submission that the October 2008 determination date was the last date.

law and analysis

14Sections 34(1) and (2) of the Code state:

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.

15The Tribunal has held in numerous decisions that if an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegations was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2008 HRTO 1241.

16The respondent submits that the one year limitation period starts in October 2008 when the applicant was provided with the respondent’s October 2008 determination. The applicant did not address this point in his submissions despite being directed to do so by the Tribunal in the CAD. Instead, the applicant submits that the date of the last event is the date that the respondent wrote to him enclosing the final appeal’s decision, January 20, 2013, and as such his Application is timely.

17I agree with the respondent that the date of the last event upon which the Application is based is October 2008. The essence of the applicant’s Application is his attempt to complete, for a sixth time, the examination after being told that he is ineligible to participate in further examination which was communicated to him by letter on October 21, 2008. All his subsequent interactions with the respondent are the applicant’s attempts to challenge or appeal the respondent’s October 2008 decision. Accordingly, the applicant had one year from October 21, 2008 to file his Application. Instead, it was filed approximately 4 years after the limitation period.

18The applicant has provided no submissions addressing the delay from October 2009, when his Application ought to have been filed, to at least 2012 when he filed internal appeals. Accordingly, there is no good faith explanation for his delay from October 2009 onwards.

19I also do not find that April 12, 2012 is the last date upon which the Application is based. April 12, 2012 is the date the respondent confirmed its October 2008 decision, again, to the applicant when he attempted, again, to enrol in the examination process. Therefore, it is a reiteration of the respondent’s previous determination.

20Even if I accept April 12, 2012 as the last date, which I do not, the Application was still filed five months after that one year limitation period as the Application would be required to be filed by April 2013 The Tribunal has held that a delay of even a few days requires a good faith explanation. See Gagne v. Maximum Mining, 2010 HRTO 689 at para. 9. The explanation provided by the applicant, that after closing his health clinics in another country and upon returning to Canada in June 2013, his priorities were to enrol in post-secondary programs and seek alternate employment do not constitute good faith. While I appreciate they may have been personal priorities for the applicant, they are not good faith explanations in themselves to justify relief against a mandatory one year limitation period.

21Being out of a country, as the applicant appears to suggest occurred sometime before June 2013, also does not constitute a good faith explanation for delay. See Leizer v. Knight, 2013 HRTO 1652 at paras. 28 and 33. I also note that in his Application, the applicant identified another country from which he participated by telephone in the January 2013 appeal. If he could participate in a telephone hearing in another proceeding, it is difficult to understand why he could not file an Application, particularly since he filed his Application electronically and by email.

22I do not accept that January 20, 2013 was the last date upon which the Application is based. January 20, 2013 is the date that the respondent sent a letter to the applicant enclosing the appeal panel’s decision dismissing his appeal challenging the respondent’s decision not to allow him to participate again in the examination, which occurred in October 2008. This shows that the applicant was pursuing his rights. However, efforts to pursue one’s rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2). See Kelly v. CultureLink Settlement Services, 2010 HRTO 508 at para. 6. The Tribunal has held that this also applies to pursuing one’s internal appeal rights. See Belamine v. Laurentian University of Sudbury, 2010 HRTO 1407 at para. 16 and Leizer, above, at para. 27.

23The circumstances of this Application are similar to the issues considered by the Tribunal in Mafinezam v. University of Toronto, 2010 HRTO 1495, in which the applicant attempted over the course of a number of years to have a trespass notice lifted and argued that the communications between him and the respondent constituted further incidents of discrimination in a series. In that case, the Tribunal held as follows:

Even accepting the applicant’s general assertions that he tried for many years to have the ban lifted, these interactions constitute, at most, attempts by the applicant to remedy or reverse the action taken against him in 2004, and the response of the University to those efforts. These interactions cannot be viewed as constituting independent acts of discrimination, or part of a “series of incidents” within the meaning of section 34(1).

24See also the discussion in Garrie v. Janus Joan Inc., 2012 HRTO 1955, especially at paras. 39-42 and Christie v. Lance Krasman Memorial Centre for Community Mental Health, 2014 HRTO 161 at paras. 15 – 17.

25The Tribunal has held in numerous decisions that in the absence of a finding of a good faith explanation for the delay, it does not have to consider whether the respondent is prejudiced by the delay. See Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para. 16. This principle has recently been endorsed by Ontario’s Divisional Court in Colhoun v. Hydro One Networks Inc., 2014 ONSC 163 at para. 12.

26Accordingly, the Application is dismissed as being untimely.