Yuli Zhang v. The Guarantee Company of North America, 2015 HRTO 1534

Human Rights Tribunal of Ontario

B E T W E E N:

Yuli Zhang

Applicant

-and-

The Guarantee Company of North America

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: November 13, 2015

Citation: 2015 HRTO 1534

Indexed as: Zhang v. The Guarantee Company of North America

WRITTEN SUBMISSIONS

Yuli Zhang, Applicant

Changchun Xing, Representative

The Guarantee Company of North America, Respondent

Gregory J. Van Berkel, 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 (the “Code”):

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 January 22, 2015, the applicant filed an Application under s. 34 of the Code, which alleged that the respondent discriminated against her with respect to services because of her race. In section 7(c) of the Application (“What was the date of the last event?”), the applicant answered December 16, 2014. 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.

4Specifically, the applicant alleged that she was injured in a car accident on May 15, 2004, and was denied benefits by the respondent, which provided insurance coverage for her, because she was a new immigrant whose English was poor. She also alleged that in July 2008, she discovered that her lawyer was colluding with the respondent to deny her benefits, so she filed an unsuccessful civil claim against him. She further alleged that in November 2014, she filed a complaint against the respondent with the Financial Services Commission of Ontario (“FSCO”), which alleged that the respondent had unfairly denied her benefits and discriminated against her, but that the respondent sent her a letter dated December 11, 2014, which denied her complaint, and FSCO then sent her a letter dated December 16, 2014, which upheld the respondent’s denial of her complaint.

5On March 9, 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 there is no alleged incident of discrimination in the Application which falls within the one-year time limit in s. 34(1) of the Code.

6On April 10, 2015, the Tribunal delivered the Response to the applicant, and specifically directed her to file a Reply with written submissions addressing, among other things, the respondent’s request to dismiss her Application because of delay.

7On April 23, 2015, the applicant filed a Reply, which denied that her Application is untimely. She stated that her Application is timely because the last incident of discrimination occurred on December 11, 2014, when the respondent sent her a letter denying her complaint to FSCO.

8On September 8, 2015, the respondent filed a Request for Summary Hearing, which, among other things, reiterated its request that the Application be dismissed on a preliminary basis because it is untimely. The respondent stated that the applicant’s last claim for benefits was denied on August 14, 2008, the applicant’s counsel made inquiries about resolving her claim for benefits between July and October 2010, and the next time the respondent heard from the applicant was in November 2014 when it received her complaint from FSCO. The respondent stated that the applicant’s claim for benefits occurred between 2004 and 2008, and that its December 11, 2014 letter denying her complaint was not an alleged incident of discrimination.

9In support of its submissions, the respondent attached and referred to paras. 21 and 22 of Power v. Ontario (Community and Social Services), 2015 HRTO 26, which stated, with respect to an applicant’s allegation that the respondent discriminated against her by reducing her eligibility for Ontario Disability Support Program benefits and then regularly reducing the amount of benefits paid to her to repay overpayments assessed against her:

It appears that the repayment has been imposed to recover various overpayments assessed against the applicant only some of which may be related to her relationship to her spouse. The reductions also relate to the interim assistance provided by the SBT pending the SBT appeal that was withdrawn by the applicant. Finally, the reductions relate to benefits paid to the applicant for a period of time for which she was later found ineligible because she was found not to be disabled within the meaning of the ODSP. Overall, I find that the continued reductions to the applicants Ontario Works benefits to repay the overpayments assessed against her are not continuing contraventions of the Code. At most, the reductions are the continued effects of the alleged contravention in this case. See Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768. For this reason, I find that the incident of alleged discrimination in this case was the Director’s decision to cancel the applicant’s benefits in 2008 which occurred more than one year before the Application was filed.

As noted above, a person may apply to the Tribunal more than one year after the incident to which his or her application relates if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant 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. The mandatory one-year limitation period for filing an application 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 an application within one year when pursuing a human rights claim.

10On September 16, 2015, the applicant filed a Response to the Request for Summary Hearing, which opposed the respondent’s request to dismiss her Application on a preliminary basis because of delay. The applicant maintained that the last incident of discrimination occurred on December 11, 2014 when the respondent denied her complaint that it had unfairly denied her benefits and discriminated against her.

11The first issue to determine is whether the Application was filed within the one-year time limit in s. 34(1) of the Code. I find that, at the very latest, the last alleged incident of discrimination occurred on August 14, 2008 when the respondent formally denied the applicant’s last formal claim for benefits. I disagree with the applicant that the respondent’s December 11, 2014 letter denying her complaint to FSCO constituted the last alleged incident of discrimination. The respondent’s denial that its decision to deny her claim for benefits between 2004 and 2008 was unfair and discriminatory cannot, even in the most liberal sense, be construed as an alleged act of discrimination. If that was the case, the applicant could extend the one-year time limit in s. 34(1) of the Code indefinitely by simply complaining about the respondent’s denial of her claim for benefits between 2004 and 2008, and then alleging that the respondent’s refusal to reverse its decision to deny benefits to her constituted a new act of discrimination.

12Given that the last alleged incident of discrimination occurred on August 14, 2008, but the Application was not filed until January 22, 2015, I find that the Application was filed approximately six years and five months outside the one-year time limit in s. 34(1) of the Code.

13In 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.

14The applicant has simply taken the position that she filed her Application in a timely manner, and failed to provide any explanation for the lengthy delay in filing her Application. Furthermore, the materials in the file show that for a number of years leading up to 2014, the applicant was pursuing a civil claim in the courts against her former counsel. In these circumstances, it is difficult to see how the applicant was unable to file her Application with this Tribunal in a more timely manner. Accordingly, I find that she has not established that her delay in filing her Application was incurred in good faith.

15In 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.

16The Application is dismissed.