Roma Community Centre on behalf of Penny Williams v. North York General Hospital, 2014 HRTO 835

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roma Community Centre on behalf of Penny Williams

Applicant

-and-

North York General Hospital

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: June 5, 2013

Citation: 2014 HRTO 835

Indexed as: Williams v. North York General Hospital

WRITTEN SUBMISSIONS

Roma Community Centre on behalf of Penny Williams, Applicant

Jennifer Danch, Representative

1This is an Application filed on February 19, 2014 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of ethnic origin and creed. The Application was filed on the applicant’s behalf by the Roma Community Centre (“RCC”).

2The applicant, who identifies herself as a person of Romani origin, alleges that the respondent’s personnel subjected her to discriminatory treatment because of her ethnic origin when she was a patient at the respondent hospital between September 16, 2009 and December 20, 2009. The applicant states that the respondent’s staff made discriminatory comments to her and her husband; that she was given personal care by a male nurse contrary to her ethnic and religious beliefs; that security personnel treated her family unfairly and suspiciously; and that staff treated the applicant in an uncompassionate and abusive manner.

3Section 34 of the Code provides as follows:

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.

4By letter dated April 28, 2014, the Tribunal provided the applicant with a Notice of Intent to Dismiss the Application (the “Notice”) because it appeared that the Application was filed more than one year after the last alleged incident of discrimination. The Notice also advised that the applicant did not appear to have cited facts that constitute “good faith” within the meaning of the Tribunal’s case law. In the Notice, the Tribunal directed the applicant to file written submissions addressing these issues.

5On May 28, 2014, the applicant filed submissions in response to the Notice. The applicant submitted that she filed the Application within one year of the first possible date on which she could have known of a potential Code against the respondent. In that regard, the applicant submitted that a former employee of the respondent contacted the RCC in February 2013 and advised that the applicant had been subject to discriminatory behaviour because of her ethnicity. The same former employee provided a copy of a document purported to be from the applicant’s patient file that contained a negative comment about the applicant’s family because of their ethnicity. The applicant alleges that this comment amounts to another incident of discrimination. The applicant states that it was only in February 2013 that the applicant learned that she had been subject to discrimination because of her ethnic origin, at which point she and the RCC worked expeditiously to file the Application. Accordingly, the applicant submitted there was no delay in filing the Application.

6The applicant also submitted, however, that she believed she had been treated poorly by the respondent’s staff during her stay in the hospital and that this treatment may have been because of her status as Roma and/or her socio-economic status.

7In the alternative, the applicant submitted that any delay was incurred in good faith. The applicant submits that she has not been able to file an application because of her disabilities and has only now been able to file this Application with the assistance of the RCC. The applicant states that she suffered a brain injury that has cause permanent impairments. The applicant states that as a result of her injury she cannot recognize letters or numbers, dress herself, use a telephone unassisted or leave her home unaccompanied. The applicant states that she experiences difficulty with memory and decision-making. The applicant states that she cannot read or write and suffers from other disabilities that greatly restrict her mobility. The applicant submitted that the respondent will not suffer prejudice if the Tribunal permits the Application to proceed.

8At this stage in the processing of the Application, the Application may be dismissed if it is plain and obvious that it was not filed in accordance with section 34 of the Code. The applicant relies on the discoverability doctrine to maintain that she did not have knowledge of the material facts to identify a breach of the Code. At this point it is not plain and obvious that the applicant could have uncovered the evidence that came to the RCC before February 2013 and it is not plain and obvious that the alleged comment on the document purportedly from her patient file does not amount to discrimination under the Code. Consequently, it is not plain and obvious that there has been any delay regarding this allegation.

9The applicant’s own submissions, however, indicate that the applicant was aware of the other alleged incidents of discrimination, described in paragraph 2 above, when they occurred and believed them to violate her Code rights. As a result, it appears, on the materials before me, that there has been considerable delay in bringing these issues forward. The applicant has identified, however, significant disability related deficits that she states prevented her from filing an Application until she received assistance from the RCC. In my view, it is not plain and obvious that there is not a good faith explanation for the delay in filing the Application. I am unable at this point to assess any prejudice to the respondent. Accordingly, the Tribunal shall continue to deal with the Application.

10A decision to continue to deal with an application in these circumstances is not a final decision regarding the Tribunal’s jurisdiction in respect to the Application (Rule 13.5).

Order

11The Tribunal shall proceed with the processing of the Application. Pursuant to Rule 13.4 of the Tribunal’s Rules of Procedure, the Application, a copy of this Interim Decision, the applicant’s submissions on the jurisdiction issue, and all correspondence between the Tribunal and the applicant on the jurisdiction issue, together with a Notice of Application, will be provided to the respondent.

12I am not seized of this matter.