Christian Chukwu v. Lakehead University, 2015 HRTO 1379

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christian Chukwu

Applicant

-and-

Lakehead University

Respondent

DECISION

Adjudicator: David Muir

Date: October 16, 2015

Citation: 2015 HRTO 1379

Indexed as: Chukwu v. Lakehead University

1The applicant filed an Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of goods and services on the basis of colour and race. The Application was filed on August 27, 2015, and relates in part to what the applicant claims was a failure to accept medical notes because of his race and colour in mid-2007.

2On September 8, 2015, the Tribunal issued a Notice Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be outside the Tribunal’s jurisdiction.

3The NOID noted that from a review of the Application it appeared that it had been filed more than a year after the last incident of discrimination and that the applicant had not cited facts that constitute good faith within the meaning of section 34(1) of the Code.

4In his Application, the applicant had indicated that he had not filed his Application in a timely manner because he hoped that the issues could be resolved internally. It was only when the respondent’s ombudsman advised that he did not believe that he could resolve the issue informally and suggested that if the applicant believed he had experienced discrimination, he should get legal advice and/or utilize the respondent’s procedure for such complaints, that the applicant decided to file this Application.

5Under 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.

6I find that the Application is out of time and it is plain and obvious that the applicant has plead no facts which would support a finding that the delay was incurred in good faith.

7Sections 34(1) and (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.

8These provisions have been found to be mandatory subject to section 34(2). The 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. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. The applicant must at a minimum provide a reasonable explanation for the delay.

9This Application is out of time. It was filed more than eight years after the events which the applicant claims were discriminatory.

10The Tribunal has interpreted to notion of good faith in section 34(2) as requiring more than the absence of bad faith. In my view the applicant has not advanced a reasonable explanation for the delay. He says he continued to hope that the respondent would change its view of his claim of a need for some accommodation of an alleged disability and describes a series of periodic interactions with the respondent in which it is asserted that he sought to have them come to a different conclusion. This is not a good faith explanation for such a lengthy delay in filing this Application. See Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ONSCDC). For all of these reasons, I find that it is plain and obvious that this Application is outside of the jurisdiction of the Tribunal to decide and accordingly it is dismissed.