Gallina v. Ontario (Child and Youth Services), 2014 HRTO 981

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louis Gallina

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Child and Youth Services

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: July 4, 2014

Citation: 2014 HRTO 981

Indexed as: Gallina v. Ontario (Child and Youth Services)

WRITTEN SUBMISSIONS

Louis Gallina, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Child and Youth Services, Respondent

Omar Shahab, Counsel

1This is an Application filed on May 28, 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 employment because of disability.

2In an Interim Decision in this matter, Gallina v. Ontario (Child and Youth Services), 2014 HRTO 390, the Tribunal dismissed all but one of the allegations set out in this Application as an abuse of process. The Tribunal allowed only one allegation to proceed, which was the allegation the applicant made in response to Question A29 in the application form regarding workplace harassment on prohibited grounds of discrimination, as follows:

During GSB hearing was made fun of and laughed at by ministry due to eye disability

3The Tribunal directed the applicant to provide particulars regarding this alleged incident and directed the respondent and applicant to file an Amended Response and an Amended Reply, respectively.

4On April 9, 2014, the applicant filed written submissions in response to the Interim Decision. The submissions included one paragraph that appears to relate to the remaining allegation. The applicant states that counsel for the Ministry asked a witness, Mr. Kerluck, a question about “Gogly (sic) Eyes” during the course of his testimony during a Grievance Settlement Board (“GSB”) proceeding. It appears that the applicant interpreted this to be a reference to himself, which caused him to feel disrespected and humiliated. In my view, the other allegations set out in the submissions had no connection to the remaining allegation in this Application.

5In its Amended Response filed on April 25, 2014, the respondent submitted that the witness to whom the applicant referred was a Mr. Kurlek who was examined by Ministry counsel, Mr. Shahab, on September 7, 2010 and cross-examined by Union counsel, Mr. Ryder, on September, 21, 2010. The respondent submitted therefore that the remaining incident occurred in September 2010, more than 20 months before the applicant filed the Application on May 28, 2012. Consequently, the respondent submitted that the remaining allegation should be dismissed for delay, pursuant to section 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

6The respondent also submitted that the remaining allegations do not amount to a prima facie case of discrimination, that the remaining allegation is barred by the doctrine of Absolute Privilege and because there was no service relationship between Ministry counsel and the applicant. The respondent also submitted that there was no employment relationship between it and the applicant at the time of the alleged incident and that the applicant was obliged to raise this issue with the Vice-Chair presiding at the GSB, who alone had the jurisdiction to determine whether any improper conduct occurred in the hearing before him. As I find that the Application must be dismissed for delay, it is unnecessary to set out these submissions in detail

7The applicant filed further written submissions on May 10, 2014. The applicant requested a quick date for these proceedings and made submissions that in my opinion have no connection to the remaining issues in this Application. The applicant also did not respond to the respondent’s arguments for dismissing the Application, summarized above. Given that the respondent’s arguments could result in the dismissal of the Application, the Tribunal afforded the applicant another opportunity to respond and, in a Case Assessment Direction dated May 26, 2014, directed him to make written submissions replying to these arguments. The Tribunal warned the applicant that should he not provide written submissions as directed, then the Tribunal may deal with the respondent’s submissions based on the material filed with the Tribunal or dismiss it as abandoned.

8On June 16, 2014, the applicant filed a Request for a Tribunal Ordered Inquiry, along with a narrative reiterating his complaints against the respondent, including a brief description of Mr. Kurlek’s testimony at the GSB proceeding. The applicant stated that this testimony made light of his visual disabilities. The applicant’s submissions did not address any of the respondent’s arguments for dismissing the Application.

Analysis and Decision

9As I find that the Application shall be dismissed for delay, it is unnecessary to address the applicant’s Request for a Tribunal Ordered Inquiry. The request is in any event premature, as this proceeding has not reached the stage where disclosure of documents is required under the Tribunal’s Rules of Procedure.

10Sections 34(1) and 34(2) of the Code provide:

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.

11The applicant filed this Application on May 23, 2013, more than one year after the last arguable incident of discrimination. Consequently, the applicant must provide a good faith explanation for the delay. The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:

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, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

12As is described more fully in my earlier Interim Decision in this matter, Galina, above, this Application arises out of a decision in a GSB proceeding between the parties, rendered by the presiding GSB Vice-Chair on February 24, 2011. The applicant states that the only remaining alleged incident of discrimination occurred during the testimony of Mr. Kurlek during the GSB hearing. The respondent states that Mr. Kurlek testified on September 7 and 21, 2010 and the GSB decision, filed with the Response, confirms that September 7 and 21, 2010 were hearing dates in the GSB proceeding. In any event, all testimony in the GSB proceeding would obviously have preceded the decision on February 24, 2011. In these circumstances, the incident in question clearly occurred more than one year before the applicant filed the Application on May 28, 2011. The applicant was clearly offended by Mr. Kurlek’s testimony and considered it to be a violation of his Code rights, but did not file his Application complaining about it in a timely manner. The applicant provided no explanation for this delay; therefore, I cannot find that the delay was incurred in good faith. As the delay was not incurred in good faith, it is unnecessary to address the issue of prejudice.

13The Application is dismissed.