Wilson v. Klukach, 2015 HRTO 1531

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Wilson

Applicant

-and-

John Klukach

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: November 13, 2015

Citation: 2015 HRTO 1531

Indexed as: Wilson v. Klukach

WRITTEN SUBMISSIONS

Donna Wilson, Applicant

Self-represented

John Klukach, Respondent

Kara Smith, Counsel

1The purpose of this Decision is to decide whether the Tribunal should dismiss the Application on a preliminary basis because it is outside the Tribunal’s jurisdiction.

2The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended:

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.

3On October 31, 2014, the applicant filed an Application under s. 34 of the Code, which alleged that the respondent discriminated against her and her daughter with respect to services. In section 7(c) of the Application (“What was the date of the last event?”), the applicant answered November 5, 2013. In section 7(d) (“If you are applying more than one year from the last event, please explain why:”), she left the answer space blank. However, in section 8 (“What Happened”), the last date that she mentioned with respect to alleged incidents of discrimination was August 2013.

4On March 6, 2015, the respondent filed a Response, which requested, among other things, that the Application be dismissed on a preliminary basis because it is untimely. The respondent stated that the last interaction between the applicant and her daughter and the respondent was on July 22, 2013. On May 7, 2015, the respondent also filed a Request for Summary Hearing.

5On May 22, 2015, the applicant filed a Response to a Request for an Order, which admitted that the Application was untimely, but stated that she was under a lot of stress, and was not able to complete the Application until now.

6On June 4, 2015, the Tribunal issued a Case Assessment Direction (“CAD”), which directed the parties to file written submissions addressing whether the applicant’s delay in filing the Application was incurred in good faith.

7The respondent filed written submissions in response to the CAD, but the applicant did not, and the time for doing so has passed.

8There is no dispute that the Application was filed outside the one-year time limit in s. 34(1) of the Code. The main issue to determine is whether the applicant’s delay in filing her Application was incurred in good faith.

9In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

10In my view, the applicant’s mere statement that she was under a lot of stress, and was not able to complete the Application until now does not meet her onus of providing a reasonable explanation for the delay. There is no evidence – medical or otherwise – that the applicant’s stress rendered her incapable of filing the Application within the one-year time limit in s. 34(1) of the Code. See James v. York University, 2013 HRTO 633, reconsideration denied, 2014 HRTO 380, upheld by the Divisional Court, 2015 ONSC 2234. Accordingly, the applicant has not established that her delay in filing the Application was incurred in good faith.

11In view of my finding that the applicant’s delay in filing her Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

12The Application is dismissed.