Arsenault v. Ontario Provincial Police, 2014 HRTO 773

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Tory on behalf of Joseph Arsenault

Applicant

-and-

Ontario Provincial Police and Near North District School Board (Former WPSEB)

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: May 30, 2014

Citation: 2014 HRTO 773

Indexed as: Arsenault v. Ontario Provincial Police

WRITTEN SUBMISSIONS

John Tory on behalf of Joseph Arsenault, Applicant

Self-represented

1This Application alleges discrimination with respect to employment and contracts because of sex, including sexual harassment, association with a person identified by a ground of discrimination and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On May 12, 2014, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) this Application because it appeared to be outside of the Tribunal’s jurisdiction on the basis of delay. The incidents of discrimination complained of occurred more than one year prior to the Application being filed and it was not quite clear on the face of the narrative how the incident described as happening on October 3, 2013, and therefore occurring less than one year prior to the filing of the Application constitutes an incident of discrimination within the meaning of the Code.

3A NOID is issued before the Tribunal delivers an application to the respondent. The Tribunal will only dismiss an Application following a NOID if it is plain and obvious that the Application is not within the Tribunal’s jurisdiction.

4The applicant has provided submissions in response to the NOID. For the reasons that follow I find that the allegations in the Application are out of time and that the October 3, 2013 event is not an incident of discrimination within the meaning of the Code.

5This Application was filed on November 6, 2013. It relates to alleged incidents of discrimination that occurred prior to 2003, more than 10 years prior to the filing of the Application. On October 3, 2013, the Superior Court of Justice ruled that certain criminal charges that had been laid against the applicant prior to 2003 would be stayed under the Charter of Rights and Freedoms due to the delay in prosecuting those charges. In my view, this event does not constitute discrimination on the basis of any Code-protected ground, nor does it fall within a social area covered by the Code.

6Section 34 of the Code requires that a person wishing to pursue a claim of discrimination bring the claim forward by filing an Application within one year of the alleged incident of discrimination, or where there is a series of incidents, within one year of the date of the last incident of discrimination. The provision has been found to be mandatory subject to section 34(2) which permits a person to apply to the Tribunal after the expiry of the one year period 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.

7The 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 of the last incident of discrimination, when they may seek to pursue a human rights claim. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.)

8In my view, it is plain and obvious that the October 3, 2013 incident is not an instance of discrimination and that the alleged instances of discrimination which arose prior to 2003 are clearly out of time.

9As indicated earlier the Tribunal may deal with otherwise untimely allegations where the applicant is able to establish a good faith explanation for the delay and satisfy the Tribunal that there would be no substantial prejudice to any other party in the proceeding. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing the application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. See Miller, above.

10The applicant made no submissions addressing this point. I find that there is no good faith explanation offered for the extremely lengthy delay in this case. As the applicant has failed to demonstrate that the delay was in good faith, it is not necessary to make a determination as to whether anyone has been substantially prejudiced by the delay: Gagne v. Maximum Mining, 2010 HRTO 689.

11In light of my finding about the absence of a good faith explanation, coupled with the facts that the discriminatory events complained about occurred over ten years prior to the filing of this Application and that the October 3, 2013 event is not discriminatory in nature, the Tribunal is without jurisdiction to deal with the Application. The Application is, therefore, dismissed.