Wilson v. Ontario (Attorney General), 2015 HRTO 1341

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeff Wilson Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General and Cathy Hiuser Respondents

DECISION

Adjudicator: Kevin G. Cleghorn Date: October 7, 2015 Citation: 2015 HRTO 1341 Indexed as: Wilson v. Ontario (Attorney General)

APPEARANCES

Jeff Wilson, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, and Cathy Hiuser, Respondents Heather McIvor, Counsel

Introduction

1This is an Application brought under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging reprisal or threat of reprisal in goods, service and facilities. It was filed with the Tribunal on August 27, 2014.

2By Case Assessment Direction dated May 13, 2015, the Tribunal directed that a summary hearing be held in this matter by teleconference. It states as follows at paragraphs 1 and 7 (in part):

Having reviewed the materials filed in this Application, the Tribunal directs, on its own initiative, that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. The Tribunal will also hear submissions from the parties about whether the Application should be dismissed for delay and/or abuse of process.

…

The applicant shall make argument about why the Application should not be dismissed on the basis of delay, or abuse of process, or as having no reasonable prospect of success, and point to the evidence on which the applicant will establish a link to the respondent’s alleged actions.

ANALYSIS

Delay

3Prior to considering the issue of whether there is a reasonable prospect of success for this Application, it is fundamental that the Tribunal has jurisdiction over the Application. Subsections 34(1) and (2) of the Code provide 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.

Late applications

(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.

4If the events which give rise to this Application occurred more than one year prior to its commencement, it is necessary to consider whether the delay was incurred in good faith and has not resulted in substantial prejudice to the respondents.

BACKGROUND

5The applicant was once employed by the respondent, Ministry of the Attorney General (the “Ministry”). He worked in the Court Services Division, Central-West Region from May 1, 1995 to August 19, 2009. As an employee, he was involved in grievance proceedings with his employer from time to time. The applicant gained entry to the John Sopinka Court House (the “Court House”) outside of normal business hours in or around December, 2010. He was subsequently issued a Trespass Notice on February 11, 2011 on the basis that he improperly entered the premises.

6The applicant filed an Application (the “2011 Application”) with this Tribunal on July 29, 2011, alleging various breaches of the Code. The applicant linked the Trespass Notice to the labour issues which had been part and parcel of a hostile working environment that he indicates he had endured while employed with the Ministry. The 2011 Application was referred to a Summary Hearing following which all of the 2011 Application was dismissed with the exception of the allegation of reprisal. A number of procedural events occurred with respect to the 2011 Application, culminating in the applicant’s decision to withdraw it on October 10, 2012. The Tribunal accepted the applicant’s request to withdraw the 2011 Application on October 12, 2012.

7The applicant has brought this Application which is largely based on the facts and circumstances set out in the 2011 Application. He indicates, however, that there have been subsequent events which occurred after the withdrawal of the 2011 Application which shed new light on the matter. He believed that his prohibition from entering the Court House was for a one year period only, based upon information from a police officer who worked there. The ban on him entering the Court House was harmful in that he was attempting to establish a new business as a mediator. He needed to utilize contacts through persons who attended at and/or worked in the Court House for that business to grow. There were also concerns that his wife was impacted by his interactions with Ministry staff in terms of retaliation and perceived delays in granting her necessary leaves (the applicant’s wife is also employed by the Ministry at the Court House). The applicant also states that his family was quite involved with the care of his son who battled serious health problems from February, 2013 until spring of 2014.

8The applicant claims that he received new information on January 18, 2013 that his original Trespass Notice emanated from the respondent, Cathy Hiuser, directly. He believes that the Trespass Notice was issued as reprisal for the “labour dispute”, presumably the grievance process that he had availed himself of when he was employed by the Ministry. He was unable to act on the new information which he received in January of 2013 primarily due to his need to be there for his son during his health challenges.

9The respondents maintain that this is a veiled attempt to re-litigate the 2011 Application. The applicant withdrew his 2011 Application after receiving independent legal advice. There is, according to the respondents, serious prejudice if this matter is permitted to go forward, whether as a new Application or as reconsideration of the 2011 Application. In either event, the respondents state that continuation of this Application amounts to an abuse of process in terms of the timeliness (well in excess of one year since the original event occurred, or more than 30 days after withdrawal for reconsideration). The respondents submit that notwithstanding the delay in pursuing this matter that there is no merit in the claims advanced and therefore no reasonable prospect that the Application can succeed in any event.

THE LAW

10Section 34 of the Code prohibits an Application being brought before this Tribunal unless it is issued within one year from the incident that forms the subject matter of the complaint or, if there is a series of incidents, within one year of the last incident in the series. The exception to the general rule is if there is a good faith basis for the delay, provided that there is no substantial prejudice to the opposing parties arising from such delay.

11This Application stems from the issuance of the Trespass Notice to the applicant on February 11, 2011, which resulted in the applicant commencing the 2011 Application. The subject matter of the current Application is the desire of the applicant to have that Trespass Notice set aside, or to obtain compensation for the consequences of it having been in place since the date it was issued (which Trespass Notice he says, was issued for discriminatory reasons, contrary to the Code in the first place).

12The Application fails to meet the one year requirement set out in section 34(1) of the Code. The current Application is not before the Tribunal as a reconsideration of the withdrawal of the 2011 Application. As such, the applicant relies on section 34(2) of the Code submitting that the delay in filing his Application was incurred in good faith, primarily on the basis that he was not in receipt of relevant information in support of his 2011 Application until January of 2013. In addition, he states that he was pre-occupied, and necessarily so, with the protracted and serious health condition of his son throughout 2013 and into 2014.

13In Miller v. Prudential Lifestyles Real Estate 2009 HRTO 1241, the Tribunal sets out what is required to establish that delay has been incurred “in good faith” at para. 24 as follows:

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.

14There is a high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241 and Low v. Hanley Corporation (Tim Horton’s) 2011 HRTO 1012 (“Low”). The one-year limitation period is designed to ensure that human rights claims are dealt with fairly and expeditiously. It is incumbent on any person bringing a human rights claim to act with dispatch. The applicant brought the 2011 Application within the requisite time frame. He withdrew that 2011 Application. He now seeks to revive it at this time despite nearly two years elapsing from that withdrawal, or more than three years from the actual event which he alleges was a breach of the Code.

15I am not satisfied that the new information put forward by the applicant is either relevant or probative to the issues raised in the current Application. I am also not satisfied that the applicant has new information per se; by that, I mean that all of the information which he later uncovered could likely have been obtained through the disclosure process for the 2011 Application and/or through examination/cross-examination of witnesses at the hearing set for November 1, 2012 for the 2011 Application. The applicant chose not to proceed at that time for his own reasons and so failed to uncover such information through his own lack of diligence.

16I find that the delay in filing this Application is more than two years beyond the limitation period of February 11, 2012 (one year following the issuance of the Trespass Notice). The Tribunal’s jurisprudence establishes that, even if the delay may be relatively brief, the onus remains on the applicant to demonstrate that the delay in filing the Application was in good faith. The delay, in this instance, is excessive and prolonged. While some delay can be attributed to the applicant being preoccupied with his son’s care, that period of time amounts to only a fraction of the extended delay occurring in this matter. The real delay stems from the decision made by the applicant to discontinue the 2011 Application. The time for the applicant to pursue his rights under the Code was in the context of the 2011 Application, which had no issue of timeliness or delay associated with it. I cannot find that the applicant acted with any sense of urgency in the time subsequent to the withdrawal of the 2011 Application. I cannot find that the applicant has any basis, good faith or otherwise, to advance the claims made in the 2011 Application once again. The lack of a good faith explanation for the delay is, in my view, inextricably intertwined with the underlying notion of abuse of process. The delay in pursuing a complaint under the Code is ultimately an issue of fundamental fairness. In other words, any party must act diligently to pursue his or her rights under the Code, which may include completing a process which was begun in a timely manner. The failure to advance the 2011 Application to completion on the part of the applicant cannot be rectified by advancing the same claims in this Application. To put this in context, this Tribunal has held that a delay of as little as five days beyond the one year limitation period can be too much unless good faith can be shown: see Low, above, at paragraph 8.

17The applicant is suggesting that he has new information which must be considered in support of his Application. He argues that knowledge of that information, which he lacked at the time of the 2011 Application, would allow this Application to be considered in a different light.

18This Tribunal has held consistently that a lack of knowledge of the law does not constitute good faith within the meaning of s. 34(2). See, for example, Lutz v. Toronto (City), 2009 HRTO 1137; Winston v. University Health Network, 2011 HRTO 1648 and Hunter v. Thompson Electric Ltd. 2013 HRTO 2118. I do not consider that a lack of knowledge of the facts is inherently different. There is a positive onus on individuals to actively pursue information about their rights, unless there is a good faith reason which prevents that from happening. The applicant had every opportunity to pursue his rights and uncover all facts necessary in support of the 2011 Application at the time he advanced it. It would therefore, be an abuse of process to allow this Application to proceed under the guise of his acquisition of new information. He has not provided any good faith basis to justify the extensive and, in my view, highly prejudicial, delay in advancing his claims before this Tribunal. To be more specific, there are no new facts that are presented in support of the current Application. Any information that is being put forward as new facts was obtainable at the time of the 2011 Application through either the disclosure process or the conduct of the hearing itself. The prejudice, in this instance, is two-fold: it requires the respondents to resume defending a matter which occurred long ago which, they thought, was concluded upon the withdrawal of the 2011 Application.

19Based on the information before the Tribunal, the applicant has not demonstrated why he could not meet the required deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. While the applicant may have had personal issues that accounts for some of the delay, he has not established that he could not have pursued his rights within the timeline mandated by the Code by pursuing his 2011 Application. It would be an abuse of process to allow this Application to proceed further.

20I am satisfied that on a balance of probabilities the applicant has failed to establish that the delay in filing of the Application was incurred in good faith, within the meaning of the Tribunal’s jurisprudence. Having found that there is no good faith explanation for the delay there is no need to determine whether the respondent would be significantly prejudiced by the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident described in the Application and the delay was not incurred in good faith.

21Given my findings on the issue of delay, I need not comment in detail on the issue of whether there is a reasonable prospect for success on this Application.

DECISION

22The Application is dismissed.