Barksey v. Health Science North or Ramsay Lake Health Case, 2015 HRTO 1670

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Curtis Barksey

Applicant

-and-

Health Science North or Ramsay Lake Health Case; Pavan Koka; Angelita Sanchez; Kuppuswami Shivakumar and Elandu Okowonkro

Respondents

DECISION

Adjudicator: David Muir

Date: December 10, 2015

Citation: 2015 HRTO 1670

Indexed as: Barksey v. Health Science North or Ramsay Lake Health Case

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 disability. The Application was filed on September 15, 2015 and relates to allegations said to have occurred in the latter part of 2013.

2On October 6, 2015, 2015, the Tribunal issued a Case Assessment Direction (“CAD”) in which, amongst other issues raised, the applicant was directed to make submissions on whether or not the Application was outside of the Tribunal’s jurisdiction because it was filed beyond the one year time limit in section 34(1) of the Code.

3Under 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 and Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

4For the reasons that follow, I find that the Application must be dismissed because it is plain and obvious that the applicant has failed to provide a good faith explanation for the delay.

5Sections 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.

6These 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.

7This Application is clearly out of time. Although it is not entirely clear from the lengthy narrative of the Application, for purposes of this Decision, I accept the applicant’s assertion that the last event of alleged discrimination occurred on October 22, 2013. Accordingly, the Application was filed almost 23 months after the last alleged incident of discrimination. Accordingly, it falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith. 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 and must provide a reasonable explanation for the delay.

8The applicant made lengthy submissions in response to the CAD. The applicant argues essentially that he was too busy with other legal proceedings including a prior Application before the Tribunal which concluded on July 7, 2015. He also asserts that he is a person with a disability and this fact combined with the extensive litigation he asserts he was involved in made it impossible for him to file the Application before he did. The applicant provided voluminous documentation related to his other proceedings to substantiate the fact that he has been busy with other matters in the months since the events described in the Application. The applicant does not appear to have provided medical evidence which would speak to the delay issue.

9There is no indication of bad faith on the applicant’s part in this case but it is also the case that the Tribunal has consistently concluded that the pursuit of other legal proceedings in respect of the issues raised in an Application is not good faith. See Damiani v. Sobeys Capital Incorporated, 2014 HRTO 1397 and the case cited there In my view, the rationale of those cases applies with equal force to a situation where because an applicant is involved in what the applicant here has characterized as “non-stop litigation since January 2013”.

10The applicant asserts that he is a person with a disability and this also contributed to the delay because as he says he was involved in extensive litigation with a number of other parties. Assuming without deciding that the applicant is a person with a disability, this also fails to meet the standard required by the Tribunal’s case law. The test to establish a good faith explanation for the failure to file a timely Application is a high one and requires evidence of a substantial inability to initiate the process.

11In Dionne v. Toronto (City), 2011 HRTO 317, the Tribunal commented on what was required of an applicant seeking to establish as a good faith, a disability:

While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see for example, Reid v. Ontario March of Dimes, 2008 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

12In this case, there is no such evidence and indeed the applicant does not submit that he was prevented from filing this Application because of a disability.

13For all of these reasons, I find that this Application must be dismissed because it is out of time and it is plain and obvious that the applicant has not provided a good faith explanation for the delay.