Hoare v. Leahy, 2015 HRTO 1353

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Hoare

Applicant

-and-

Natalie Leahy

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: October 9, 2015

Citation: 2015 HRTO 1353

Indexed as: Hoare v. Leahy

WRITTEN SUBMISSIONS

Kenneth Hoare, Applicant

Self-represented

Introduction

1This is an Application filed on September 10, 2015, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleges reprisal and discrimination on the basis of disability with respect to services.

2On September 17, 2015, the Tribunal issued a Notice of Intent to Dismiss ("NOID") this Application as outside the Tribunal's jurisdiction for the following reasons:

while your response to question #7 of the Application alleges that the last incident of discrimination you experienced occurred on July 30, 2015, a review of your Application indicates that it is either not clear what incident of discrimination is alleged to have occurred on this date or how the incident described as occurring on that date constitutes an incident of discrimination within the meaning of the Code. See for example Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Mafinezam v. University of Toronto, 2010 HRTO 1495; and Garrie v. Janus Joan Inc., 2012 HRTO 1955.

The HRTO does not have the power to consider claims filed more than one year after the last incident of discrimination or the last in a series of incidents of discrimination unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay [s.34(1)]. You do not appear to have cited facts that constitute "good faith" within the meaning of the HRTO's case law. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of "good faith".

a civil proceeding has been commenced in a court in which you are seeking an order under section 46.1 with respect to the alleged Code infringement and the proceeding has not been finally determined or withdrawn, or the court has finally determined the issue of whether the right has been infringed, or the matter has been settled [s. 34(11)]. See for example Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282.

3The applicant responded to the notice on October 2, 2015.

4The Application was filed against the respondent, Natalie Leahy, whom the applicant identifies as a physician. The applicant states that he ended a doctor-patient relationship with the respondent on February 4, 2010. He states that in March, 2010, he received notice from the Ministry of Transportation that his licence would be suspended. From that point forward the applicant has been involved in various proceedings some of which the applicant claims have been initiated by the respondent, including claims to local police that the applicant was threatening and harassing the respondent.

5Section 34(1) of the Code which reads 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.

6Under the Tribunal's jurisprudence, an Application will only be dismissed at this preliminary stage if it is "plain and obvious" on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

7The applicant argues that his experiences constitute a series of incidents and that the last incident in the series took place on July 30, 2015, although his reason for citing this date is confusing. In his submission in response to the NOID, the applicant states:

It must be noted that the last event occurring with the Defendant was July 30, 2015. It is felt by the plaintiff that I "was" discriminated against on this date, for the lawyer "acting" as a Justice, found against my legal and lawful claim that the Defence had failed to serve paperwork necessary within lawful time controls as so stipulated, thereby which should have resulted in nullifying said Motion brought by the Defence: but as well found for the Defence in said action in regards to Rule 12.02 of Small Claims Action. A seriously questionable action on the part of the Bench; In that the Defence had failed at any time to produce one piece of defence material usable, in my initial claim for Defamatory Libel.

8I take from this submission that the applicant believes that the trial of a Small Claims Court action which appears to have occurred on July 30, 2015, is the last incident in the series.

9Section 34 permits the filing of an application where an applicant claims a series of discriminatory incidents against a respondent, the last of which falls within the one year time limit. In this case, the last interaction involving the provision of services by the respondent to the applicant occurred at the very latest on February 4, 2010, when the applicant ended the doctor-patient relationship with the respondent. Therefore, the last incident in the series of incidents took place on February 4, 2010 and not July 31, 2015. As a result, this part of section 34 cannot be relied upon by the applicant to extend the time for filing his Application.

10It appears that since 2010 the applicant has pursued his claims against the respondent in other forums. The Tribunal has stated that it does not constitute good faith to delay filing with this Tribunal while pursuing other remedies. The applicant has not offered an explanation for the delay which would establish good faith under the Code and therefore the time limit cannot be extended on this basis.

11Having determined that the applicant has failed to establish either a series of incidents or good faith, it is unnecessary for me to address the issue of prejudice to any person affected by the delay.

12Accordingly, the Application is dismissed.