Johnson Aziga v. Ontario (Community Safety and Correctional Services), 2015 HRTO 1206

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Johnson Aziga

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Theren Beecroft, Kent Milligan and Dr. Anita Grewal

Respondents

DECISION

Adjudicator: Mark Hart Date: September 10, 2015 Citation: 2015 HRTO 1206 Indexed as: Aziga v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Johnson Aziga, Applicant

Self-represented

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Theren Beecroft and Kent Milligan, Respondents

Christina Donszelmann, Counsel

Dr. Anita Grewal, Respondent

Fred Tranquilli, Counsel

1This is an Application dated November 1, 2013 and filed with this Tribunal on January 10, 2014, alleging discrimination with respect to services because of race, colour, ancestry, place of origin, ethnic origin, disability, association with a person identified by a protected ground and reprisal or threat of reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Decision is to consider whether the Application should be dismissed due to delay.

Background

3By Case Assessment Direction (“CAD”) dated February 10, 2014, the Tribunal directed on its own initiative that a teleconference hearing be scheduled to hear submissions from the parties as to whether this Application should be dismissed in whole or in part on the basis of delay. This CAD also directed the applicant to provide particulars or details of the general allegations that he had made in the Application.

4The teleconference hearing in this matter was initially scheduled to proceed on May 26, 2014. By letter dated March 3, 2014, the applicant stated that he was unable to attend the hearing on that date and also stated that he was unable to comply with the deadline set out in the CAD to provide particulars. As a result of difficulties that he states he was experiencing due to his incarceration, the applicant requested at least six months from the date of his letter to prepare and produce the material for the hearing.

5This request was granted by Interim Decision, 2014 HRTO 609, dated April 30, 2014. The applicant was given until September 3, 2014, six months following the date of his request, to provide particulars as well as any written submissions. The teleconference hearing was thereafter re-scheduled to take place on October 20, 2014.

6The applicant subsequently filed a Request for Order dated July 10, 2014 and received by the Tribunal on July 30, 2014 seeking, among other things, production of documents from the respondents and certain third parties. The applicant’s request was granted, in part, by Interim Decision, 2014 HRTO 1227, dated August 18, 2014.

7The applicant ultimately filed the particulars and supporting documents in a 142 page package received by this Tribunal on September 22, 2014. As the applicant stated that he did not have the resources available to him to serve this material on the respondents, this package was forwarded to the respondents by the Tribunal. The respondents were given an opportunity to file written submissions in response to the applicant’s material in advance of the scheduled hearing, which they did.

8On October 20, 2014, the applicant failed to appear for the teleconference hearing. He subsequently explained that, as he is incarcerated, he is dependent on the correctional institution to allow him to leave his cell to attend proceedings of this nature. He states that, despite advising the appropriate authorities that he was required to attend the hearing by teleconference, no such arrangements were made and he was not released from his cell for this purpose.

9In addition to counsel for the respondents, two lawyers attended on the call and said they were acting as counsel for the applicant. The applicant later stated that neither of these lawyers had been retained to represent him in this proceeding, but had been invited by him to join the call as “intervenors”. No request to intervene was filed with the Tribunal by either of these lawyers.

10After considering submissions from the parties, I issued a further CAD dated October 20, 2014 directing that the delay issue would be dealt with in writing. Delay has been determined by this Tribunal to be a jurisdictional issue, such that oral submissions are not required under its governing legislation. Given the appearance of what I understood to be applicant’s counsel for the teleconference hearing and their understanding that the applicant also intended to appear, I was not prepared to proceed with the hearing in the applicant’s absence. At the same time, I noted that the applicant had been afforded a significant amount of time already in order to prepare and file submissions in this matter. As a result, I indicated in the CAD that I was only prepared to provide the applicant with one final opportunity to provide submissions on the delay issue, failing which I would proceed to consider and determine the delay issue in the absence of any further submissions from him.

11In the CAD dated October 20, 2014, I provided specific direction to the applicant regarding the nature of the submissions on the delay issue that I required. I afforded the applicant until November 17, 2014 in order to file his written submissions. The applicant subsequently sought and was granted further extensions to file his written submissions in response to my CAD, which he ultimately filed on January 7, 2015 in a 66 page document. The respondents were afforded an opportunity to file further written submissions in response, which they did.

12Subsequently, by letter dated March 23, 2015, the applicant’s former legal counsel in the criminal proceeding, Davies Bagambiire, filed correspondence with this Tribunal in response to the production order I had made against him as a third party by Interim Decision dated August 18, 2014. This letter was received by the Tribunal months after the September 1, 2014 deadline by which Mr. Bagambiire was supposed to have complied with the production order. Mr. Bagambiire’s letter indicated that he had conducted a search of his firm’s files from the criminal proceeding and had identified some documents that were responsive to the applicant’s requests. He also expressed concern about a password-protected USB key that had been requested by the applicant, and indicated that he would be continuing his search for any further documents.

13By CAD dated April 20, 2015, I addressed Mr. Bagambiire’s correspondence. As it was not clear from his letter whether he in fact had conveyed the documents he had found to the applicant, I directed Mr. Bagambiire to do so within 14 days. Within this same time period, I also directed Mr. Bagambiire to provide the applicant with the USB key and to complete any further search of his documents and provide any further documents to the applicant that were responsive to the production order I had made. I afforded the applicant until June 1, 2015 to provide any further submissions arising out of the production made by Mr. Bagambiire, and gave the respondents until June 15, 2015 to provide any submissions in response.

14The applicant filed further submissions dated May 29, 2015 and received by the Tribunal on June 4, 2015 indicating that Mr. Bagambiire had not complied with the direction I had given in my CAD dated April 20, 2015. No further submissions were filed by the respondents.

Nature of the applicant’s allegations

15The last incident of discrimination raised in the Application is alleged to have occurred on August 22, 2011, which I understand was just prior to the applicant’s transfer from provincial custody to a federal institution. In respect of many allegations, the Application identified a broad period of time during which the applicant alleges that the discriminatory acts occurred, covering the entire period of his detention in provincial custody, without providing any specifics or particulars regarding the specific dates when alleged incidents of discrimination occurred or what is alleged to have occurred on those dates.

16For that reason, I directed the applicant to provide particulars or details of his allegations, which the applicant ultimately did on September 22, 2014. I will briefly review the allegations raised in the Application and the particulars provided by the applicant:

a. The Application alleges that the respondents refused to provide the applicant with such information as his inmate / prisoner rights and Ministry policies and procedures throughout the entire period from August 30, 2003 to August 22, 2011 at four different facilities. In his particulars, the applicant states that Ministry policies and procedures were posted only at Hamilton Wentworth Detention Centre (“HWDC”) in a manner that he could not read them. He states that during the course of his criminal trial, he received a copy of these documents, which he put in boxes together with other legal documents. He states that when he attempted to review these documents sometime in 2010, he found that someone had removed or destroyed them along with other material in the boxes;

b. The Application alleges that the applicant was denied access to his own documents and had his documents removed or destroyed from his cell or from storage in his inmate personal property bag / box throughout the entire period from August 30, 2003 to August 22, 2011 at the same four different facilities. In his particulars, the applicant alleges that there were sporadic incidents during his time in provincial custody when various documents and personal property were removed or destroyed. In particular, when the applicant was transferred from the Don Jail back to HWDC on January 24, 2010, one of his “red bags” went missing. This was the subject of a detailed complaint made by the applicant to the Ombudsman Ontario in February 2010. The applicant also alleges that during the period from March 15, 2010 to August 24, 2011, the computer he was using was tampered with by HWDC staff and files he had created were improperly viewed, removed or modified;

c. The Application alleges that the applicant was denied receipt of his Toronto Star subscription between 2006 and August 22, 2011 at three different facilities. In his particulars, the applicant alleges that this occurred 90% of the time during the period from 2004 to August 24, 2011. This issue was the subject of numerous detailed complaints by the applicant to the Ombudsman Ontario up to and including December 2011 as well as internal complaints to Ministry officials;

d. The Application alleges that the applicant’s incoming and outgoing regular mail and telephone conversations were disrupted and he was denied access to his lawyers and his solicitor-client privilege was violated throughout the entire period from August 30, 2003 to August 22, 2011 at four different facilities. In his particulars, the only specific allegation raised by the applicant relates to difficulties that he had when a new telephone system was in use at HWDC in 2010, which was the subject of a complaint to the Ombudsman Ontario on October 1, 2010;

e. The Application alleges that the applicant was denied treatment for his HIV and that there were lapses in the administration of anti-retroviral therapy (“ART”) between February 2005 and April 22, 2010 at two facilities. These issues were the subject of detailed complaints to the Ombudsman Ontario during the period from February to April 2010. In his particulars, the applicant also raises a further issue regarding psychiatric medication that he had been prescribed, which was the subject of a detailed complaint to the Ombudsman Ontario on September 15, 2010; and

f. The Application alleges that the applicant was discriminated against on grounds of his disability by being subjected to excessive periods of segregation and close confinement throughout the entire period from August 30, 2003 to August 22, 2011 at HWDC. In his particulars, the applicant acknowledges that this did not occur during the entire period of his incarceration in provincial custody, but states that he cannot be more specific with regard to dates or times without further disclosure from the respondent Ministry or Mr. Bagambiire.

17As is clear from the foregoing, the allegations raised in the Application date back to 2003, over ten years before the Application was filed, with the most recent allegations dating to the time of the applicant’s transfer out of provincial custody on August 24, 2011, some two years and four months before the Application was filed. In relation to the personal respondent Dr. Grewal, the most recent allegations appear to date from either April or September 2010, some three and a half years before the Application was filed.

18In his submissions, the applicant repeatedly states that he is unable to provide further details or particulars of his allegations due to disclosure he says he needs from the respondent Ministry and other sources and due to Mr. Bagambiire’s failure to comply with this Tribunal’s order. With regard to the disclosure sought by the applicant from the respondent Ministry and other sources, the applicant’s request in this regard was considered and denied in my Interim Decision dated August 18, 2010, except for production orders made against the Ombudsman Ontario and Mr. Bagambiire. No issue is raised by the applicant that the Ombudsman Ontario failed to comply with my order, and I have before me extensive documentation from that office confirming their compliance.

19It does appear that Mr. Bagambiire is in non-compliance with my production order. I appreciate that there may be material or documentation in Mr. Bagambiire’s possession which potentially may have assisted the applicant in providing additional particulars of his allegations. However, I am not satisfied that any non-compliance by Mr. Bagambiire with my production order has prejudicially affected the applicant’s ability to make submissions on the delay issue, which is the only issue to be determined by me at this stage of the proceeding.

20Mr. Bagambiire acted as legal counsel for the applicant in the criminal proceeding. The applicant was convicted on April 4, 2009 and sentenced on August 2, 2011. Mr. Bagambiire subsequently attempted to obtain a legal aid certificate to represent the applicant for the purpose of an appeal in the criminal proceeding, but this was denied and Mr. Bagambiire was removed from the record.

21Given Mr. Bagambiire’s non-compliance with my production order, I am prepared to assume for the purpose of this Decision that there may be incidents of discrimination alleged in the Application that occurred as late as August 24, 2011. However, that is the last date on which any incident of alleged discrimination by these respondents could have occurred, as the applicant was thereafter transferred to a federal institution, with which the respondents have no involvement and over which I have no jurisdiction.

22The critical period of time during which I must consider whether the applicant has satisfied me that his delay in filing the Application was incurred in good faith is the period from August 24, 2011 until the Application was filed on January 10, 2014. During this period of time, Mr. Bagambiire’s only involvement with the applicant was for the purpose of seeking a legal aid certificate for the applicant’s appeal in the criminal proceeding, which was denied. Given Mr. Bagambiire’s extremely limited involvement with the applicant during the period relevant to the delay and the nature of the production order made against Mr. Bagambiire, which was directed towards assisting the applicant in providing particulars of his allegations, it is my view that the applicant is not prejudiced in making submissions on the delay issue due to Mr. Bagambiire’s non-compliance with my production order.

Delay

23Section 34 of the Code states:

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 incidents to which the application relates; or

(b) if there was 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.

24It is clear from a review of the applicant’s allegations that, even if the allegations dating back to 2003 were regarded as forming part of a “series of incidents” within the meaning of s. 34(1)(b) of the Code, the last alleged incident of discrimination by either of these respondents could not have occurred any later than August 24, 2011. It also is clear that the Application in this matter was filed on January 10, 2014, which is well over one year after the last alleged incident of discrimination.

25As a result, in accordance with s. 34(2) of the Code, I need to consider whether I am satisfied that the applicant’s delay in filing this Application was “incurred in good faith”, as that language has been interpreted and applied by this Tribunal.

26The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. This Tribunal has held that an applicant is required to show something more than simply an absence of bad faith. The one-year time limit in s. 34 of the Code is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim: see Law v. Hanley Corporation (Tim Horton’s), 2011 HRTO 1012.

27In my view, the essential facts relating to the period of delay are as follows. The applicant states in his Application that in or about May or June 2011, one of his criminal trial lawyers downloaded the Tribunal’s application form onto a USB device and thereafter printed a copy of the application form for the applicant on September 26, 2011. The applicant states that in the spring of 2012, this criminal lawyer brought the application form for the applicant to sign at Kingston Penitentiary, where he was then being held. The applicant states that this lawyer promised to file the application with this Tribunal but did not do so. The applicant states that the application was left with his other criminal lawyer, Mr. Bagambiire, to file. He says that in May or early June 2012, he inquired of Mr. Bagambiire as to whether the human rights application had been filed, and Mr. Bagambiire denied having received it from the other lawyer. The applicant states that in the fall of 2011, Mr. Bagambiire had asked him to sign a retainer before he would pursue a human rights application on the applicant’s behalf, which the applicant did not sign on the basis that he did not have the financial resources to afford a lawyer for this purpose.

28Accordingly, it was clear to the applicant as of May or early June 2012, that no human rights application had been filed on his behalf by that time. The applicant states that, as a result, he proceeded to file a human rights application on his own behalf, which was received by this Tribunal on June 26, 2012 (the “First Application”). The respondents identified in the First Application include the respondents named in this proceeding, among many others, and the First Application alleges discrimination on the same grounds as alleged in this proceeding, as well as some others. However, in the section of the First Application asking the applicant to describe each event that he believed to be discriminatory, including what happened, who was involved, when it happened and where it happened, the applicant had typed in “see attached” but then had written by hand “coming in another package”. There was no attachment included with the First Application and no “other package” was received by this Tribunal.

29Part of this Tribunal’s process upon receipt of an application is to review the application for completeness prior to service of the application on the respondents. After reviewing the First Application, the applicant was sent a Notice of Incomplete Application letter by this Tribunal dated August 13, 2012 requesting the information required to complete the application, including a description of the events that he alleged to be discriminatory. The applicant was asked to file this information with the Tribunal by September 4, 2012. There ensued an exchange of correspondence between the Tribunal and the applicant, in which the applicant stated that he was unable to provide the information requested due to the challenges he faced in custody and in which the Tribunal repeatedly extended the deadline for the applicant to provide the required information. The deadline for the applicant to complete the First Application ultimately was extended to December 21, 2012, almost six months after the First Application had been filed. By letter dated December 3, 2012 and received by this Tribunal on December 11, 2012, the applicant once again stated that he was unable to meet this extended deadline.

30As a result, by letter dated January 21, 2013, the Tribunal administratively closed its file in the matter and returned the incomplete First Application to the applicant. In this letter, the applicant was informed that this did not preclude him from filing a new Application at a later date, but if he did so, he needed to ensure that the new Application was complete. In addition, this letter specifically informed the applicant that the date of the last alleged incident that took place must have occurred no more than 12 months from the date of filing or be an on-going series of incidences.

31The applicant then filed two further applications, which he has described in this proceeding as sub-sets of the First Application. The first of these two further Applications was received by the Tribunal on April 11, 2013 and the second on May 6, 2013. Both of these Applications were dismissed for delay and other reasons by Decision, 2014 HRTO 144, dated January 31, 2014 upheld on reconsideration at 2014 HRTO 1465.

32As stated above, the instant Application was filed with this Tribunal on January 10, 2014.

33As is clear from the foregoing, the applicant was aware of his ability to file an application with this Tribunal as early as 2011, if not earlier. He purported to act on his intention to file a human rights application against the current respondents by filing the First Application in June 2012, but failed to provide any description of his allegations. He was given almost seven months to complete the First Application, which he failed to do. At that time, all that was required of the applicant was to do what he subsequently did when he filed the instant Application in January 2014, which was to attach a handwritten description of his allegations. Had he simply done so, as repeatedly requested by this Tribunal, the First Application may have been considered to have been “made” within the meaning of s. 34(1) of the Code when it was received on June 24, 2012 and may therefore have been considered to have been within one year of at least the last alleged incidents from the instant Application and perhaps may have saved other alleged incidents if they properly could be considered to have been part of a “series of incidents” that extended to and included an incident within the preceding year. But the applicant did not do so.

34The question for me to consider is whether the applicant has any reasonable explanation for his failure to provide the description of his allegations sought in relation to the First Application within the almost seven months allowed to him and/or for his further failure to file the instant Application for an additional year after the First Application had been dismissed.

35I appreciate that being in custody imposes challenges and barriers for applicants who wish to file a human rights application. But that does not account for the lengthy delay in filing the instant Application. In the material before me, I have numerous examples of detailed complaints that the applicant was able to make to the Ombudsman Ontario that date from February 2010 to December 2011, in which the applicant appears to have been very capable of providing a description of the nature of his complaints in exhaustive detail. Many of the allegations raised in these complaints to the Ombudsman Ontario also form the basis of the applicant’s allegations in the instant Application. It makes no sense to me how the applicant could, on the one hand, be capable of providing such detailed descriptions of his allegations to the Ombudsman Ontario, but on the other hand, claim that he was incapable of providing largely the same information to this Tribunal.

36In my CAD dated October 20, 2014, I specifically asked the applicant to address this point in his written submissions. His response is that the Ombudsman Ontario complaints are “simple” and made on two page pre-designed complaint forms, that the Ombudsman Ontario has a toll-free number where he can speak to a live person, and that the Ombudsman Ontario’s process is much more user-friendly than this Tribunal’s. I have seen the Ombudsman Ontario’s complaint forms as part of the materials submitted by the applicant. While they do not ask as many questions as are asked on this Tribunal’s application form, the reality is that when the applicant filed the First Application in June 2012, he did not appear to have trouble with answering the questions on the form. Rather, he simply failed to provide any description of his allegations, which he could have (and apparently initially intended to) simply attached to the application form. Indeed, this Tribunal’s application form expressly invites applicants to “add more pages if you need to”. In this regard, I note that in virtually all of his complaints to the Ombudsman Ontario, the applicant had no difficulty attaching multiple pages to the complaint form in which he provided detailed descriptions of his allegations.

37There is no issue in this case that correspondence sent to the applicant by this Tribunal, both in relation to the First Application and in relation to the instant Application failed to reach him, as he has been able to respond to all such correspondence. As a result, the applicant was fully aware of what was required of him in order to complete the First Application. He simply failed to do so within the seven months before the Tribunal’s file was administratively closed.

38In his written submissions, the applicant makes repeated reference to his lack of sufficient access to a computer and internet resources. That is not required in order to file an application with this Tribunal. Many applicants before this Tribunal file hand-written applications. That is not and never has been a problem, as long as the person’s handwriting is legible (which the applicant’s most assuredly is). Nor is internet research required in order to file a human rights application. What is required is for an applicant to describe the events that they believe amount to discrimination, which is a matter entirely within the applicant’s own knowledge. Clearly, the applicant was capable of doing this when he filed the instant Application in January 2014. He has provided no reasonable explanation as to why he could not have done so at any time prior to August 24, 2012 (which is one year from the last alleged incident) or in the almost seven months he was given to do so following the filing of the First Application.

39The applicant alleges that being held in protective custody rather than in the general population provides a good faith explanation for the delay. I fail to understand how. The applicant clearly was capable of filing detailed complaints with the Ombudsman Ontario while in protective custody. He has provided no basis to support that he could not have done the same with this Tribunal.

40The applicant alleges that his delay was incurred in good faith on the basis of his HIV-Associated Neurocognitive Disorder, HIV Episodic Disability, Adjustment Disorder and Anxiety Disorder or their combination, along with malnourishment, weight loss and non-adherence to his HIV anti-retroviral therapy. He states that between August 24, 2011 and September 9, 2014, his transfer to federal custody put him in a state of anxiety that was so intense that he could not turn it off and that he suffered prolonged serious sedation and blurred vision and stayed in bed most of the time. He supports this submission by quoting excerpts from his mental health reports during this period which describe him as severely anxious, withdrawn, panicked, vulnerable, hopeless, depressed, and stressed.

41While this Tribunal accepts that delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that any such disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code: see James v York University and Ontario Human Rights Tribunal, 2015 ONSC 2234 (Div.Ct.) at paras. 46 to 48; Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; Dionne v. Toronto (City), 2011 HRTO 317.

42The excerpts from the mental health reports provided by the applicant fall well short of this standard. Further, if the applicant was as severely debilitated as he alleges during the period from August 24, 2011 to September 9, 2014, this does not explain how he was nonetheless able to prepare and file human rights applications in April and May 2013 and then file the instant Application in January 2014, all during the very period when the applicant claims debilitation as a result of his medical conditions.

43The applicant also seeks to justify the delay due to his ignorance of the human rights system and his lack of sophistication. In my view, this submission has no merit. The applicant was aware of his ability to file a human rights application as early as 2011, and also acknowledges that in 2011 he knew that he must file any human rights application within one year. He filed the First Application in June 2012. But what he failed to do until he filed the instant Application in January 2014 was provide any description of his allegations, which is information known only to him. This does not require any detailed knowledge of human rights or high level of sophistication. It simply requires an applicant to describe in their own words what it is that they are alleging was done to them that was discriminatory.

44Accordingly, for all of the foregoing reasons, I am not satisfied that the applicant has provided a reasonable explanation for the delay in filing the instant Application and accordingly am not satisfied that the applicant has met his onus of establishing that this delay was “incurred in good faith” within the meaning of s. 34(2) of the Code.

45Given this finding, it is not necessary for me to address the issue of whether any substantial prejudice is caused to anyone affected by the delay.

ORDER

46For all of the foregoing reasons, the Application is dismissed for delay.