HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dianne Nagee Burton
Applicant
-and-
Family and Children’s Services of Guelph and Wellington County and Oxford County Children’s Aid Society
Respondents
DECISION
Adjudicator: Geneviève Debané Date: September 9, 2015 Citation: 2015 HRTO 1189 Indexed as: Burton v. Family and Children’s Services of Guelph and Wellington County
APPEARANCES
Dianne Nagee Burton, Applicant Self-represented
Family and Children’s Services of Guelph and Wellington County and Oxford County Children’s Aid Society, Respondents Sheila C. Handler, Counsel
Introduction
1This Application alleges discrimination with respect to services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A telephone preliminary hearing was convened to address a number of preliminary issues.
2During the telephone hearing I made the following rulings:
a. I denied the applicant’s oral Request to amend the Application to include allegations of discrimination as contained in letters copied to the Tribunal, in December 2014 and March 2015. I made this ruling because, the applicant failed to file a Request to amend in advance of the hearing, the allegations contained in the letters involved a third-party agency (indeed they were sent to this agency), which is not a respondent to the Application and it had no notice that the applicant was seeking to amend the Application. I found that in these circumstances, it would be prejudicial to add these allegations at this late juncture, and it was not apparent to me that these involved any of the respondents’ actions; and
b. I ruled that any names of minor children would be anonymized. I note that the applicant had objected to anonymizing some of the children’s names however this objection was withdrawn at the preliminary hearing.
Background
3The applicant was a foster parent with the respondent Guelph Children’s Aid Society (“CAS”) from February 9, 2006 until February 3, 2010. The applicant alleges multiple violations of the Code during this time period.
4The applicant became a foster parent for other CAS agencies including the respondent Oxford CAS. In August 2012, the respondent Guelph CAS conducted an investigation into the care of a foster child placed by the Oxford CAS because the applicant’s home fell within its geographical jurisdiction. This investigation was concluded in November 2012. A letter was sent to the applicant detailing its findings on December 4, 2012. The applicant commenced a complaint with the Child and Family Services Review Board (“CFSRB”) in November 2012 in which the applicant raised her concerns that, amongst other things the respondents discriminated and harassed her contrary to the Code.
What is the last incident of alleged discrimination?
5The Code provides that in order for the Tribunal to have jurisdiction over the subject-matter of the Application that it must be filed within one year of the last incident of discrimination. The Tribunal has the mandate of adjudicating matters in a fair, just and expeditious manner. In this case the first incident of alleged discrimination occurred in September 2008, almost five years before the Application was filed. Section 34 of the Code states:
(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.
6I must first determine the date of the last incident of alleged discrimination. In order for the Application to be timely there must be an incident of discrimination that falls within one year of the date of the filing of the Application. The Tribunal does not have to accept the assertion of one party as to when the last incident of discrimination took place. The Tribunal must review the facts of each case to determine when the last incident of discrimination allegedly occurred, whether it is in fact an “incident” of discrimination and, in some circumstances, whether the applicant has no reasonable prospect of establishing that the incident is in fact discriminatory. See for example, Saxon v. Amherstburg Police Services Board, 2013 HRTO 681, and Papanicolopoulou v. University of Windsor, 2015 HRTO 754.
7The applicant indicated in her Application that the last incident of alleged discrimination occurred on November 22, 2013. However, during the telephone conference the applicant could not explain what happened on that date. Having reviewed the Application I am of the view that the last incident of alleged discrimination occurred on, at the latest, December 4, 2012. This is the date on which the Guelph CAS sent the applicant the letter with respect to its investigation. All of the other allegations appear to involve the other proceeding initiated at the CFSRB including the decision rendered by them in August 2013. The Application was filed on March 24, 2014 just over three months beyond the statutory deadline.
8I am also of the view that this Application relates to two separate issues. Recently in the case of Garrie v. Janus, 2012 HRTO 1955, the Tribunal canvassed in detail the law with respect to what constitutes a series of incidents and suggested, at para. 30, that the Tribunal should consider the following factors:
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
9Whether allegations in an application form a timely series of events is based on a case by case analysis. In this case I find that there are two distinct sets of allegations of discrimination. The first is with respect to the applicant’s relationship with the respondent as a foster parent which occurred from 2006 until February 3, 2010 when the Guelph CAS closed the applicant’s foster home and ceased its relationship with her. Central to these allegations was the conduct of a named employee, who is deceased. The second set of allegations, which involve both the Oxford CAS and the Guelph CAS, relate to later events and the investigation that occurred commencing in August 2012. I note that there is a gap of over 2.5 years between these two distinct sets of allegations of discrimination.
10Having considered the matter I am of the view that these two sets of allegations do not constitute a “series of incidents” as contemplated by the Code, in light of the fact that there is a significant gap, the nature of the allegations are different and that different individuals are involved in these sets of allegations. Therefore, with respect to the 2006 to 2010 allegations the Application was filed over three years beyond the statutory deadline. As noted above, the second set of allegations are also untimely, having been filed over three months beyond the one-year statutory deadline.
Good Faith
11The Tribunal has extensive case law which has addressed the issue of whether the delay in filing an application was incurred in good faith. An applicant must provide a reasonable explanation for the delay: Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. A reasonable explanation must substantiate that the applicant acted with all due diligence. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Pelletier v. Nortrax Canada, 2011 HRTO 1495.
12In this case the applicant takes the position that she was not aware of her rights under the Code and that the respondents did not advise her of her rights to file an application at the Tribunal.
13In this case I find that the applicant failed to satisfy me that she exercised due diligence in the pursuit of her rights under the Code. I note that the applicant was capable of filing an Application. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal relied upon a number of Ontario court decisions which considered what is required to establish that delay has been incurred “in good faith”. It wrote:
Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] O.J. No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.”
14In this case I am satisfied that the applicant failed to make any reasonable inquires of her rights under the Code. The applicant could have filed a timely Application with respect to both sets of allegations had she turned her mind to the matter.
15With respect to the second, more recent, set of allegations, the applicant also takes the position that it was proper for her to wait until the conclusion of the proceeding before the CFSRB which rendered its decision in August 2013. The Tribunal has stated that waiting for other legal proceedings to conclude before pursuing one’s rights under the Code, will generally not constitute a valid explanation for delay in filing an Application. See, for example, Abutalib v. Toronto Police Services Board, 2010 HRTO 1697. Similarly, in this case I do not find it a reasonable explanation that the applicant was waiting for another proceeding to conclude to constitute good faith.
16I find that the applicant failed to exercise diligence with respect to the filing of the Application and she has failed to provide me with a reasonable good faith explanation for the delay with respect to either of the two sets of allegations.
Prejudice
17Having considered the matter, though I need not consider the issue of prejudice, I am of the view that the Guelph CAS would have been prejudiced by the delay in filing the Application with respect to the 2006 to 2010 allegations. One of the key witnesses who was central to these allegations, passed away in 2011. I note that she was the employee who had a number of interactions with the applicant and is the one who made the decision to close her home. In these circumstances, I find that the loss of this key witness is “prejudice” as contemplated by the Code.
Order
18The Application is dismissed because of delay. In these circumstances, I need not consider any of the respondents’ preliminary objections.
Dated at Toronto, this 9th day of September, 2015.
“Signed by”
Geneviève Debané Vice-chair