Elizabeth Efthymiadis v. London Police Services, 2015 HRTO 875

Human Rights Tribunal of Ontario

B E T W E E N:

Elizabeth Efthymiadis

Applicant

-and-

London Police Services

Respondent

DECISION

Adjudicator: Eli Fellman

Date: June 30, 2015

Citation: 2015 HRTO 875

Indexed as: Efthymiadis v. London Police Services

WRITTEN SUBMISSIONS

Elizabeth Efthymiadis, Applicant

Self-represented

1This Application was filed on April 2, 2015, and alleges discrimination with respect to goods, services and facilities because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The issues in this Application arise out of an incident which is alleged to have occurred on December 13, 2012, as well as a statement attributed to the applicant and her brother contained in the respondent's Response to an earlier Application which the applicant states she received on April 4, 2014 and which also arose out of the 2012 incident. The previous Application was dismissed on the ground that it had no reasonable prospect of success: 2014 HRTO 1305.

3On May 22, 2015, after reviewing this Application, the Tribunal issued a Notice of Intent to Dismiss ("NOID") because the alleged incidents of discrimination appeared to have occurred outside the time for making an Application to the Tribunal. The Application has not yet been served on the respondent.

4Section 34 of the Code provides:

(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.

5Section 34 means that the Tribunal will not exercise its discretion to consider deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

6The applicant provided written submissions addressing the NOID on June 18, 2015. The applicant asserts that the respondent's April 4, 2014 Response to her earlier Application is a discriminatory event and it is part of a series of events that includes the December 13, 2012 incident. The applicant also asserts the doctrine of discoverability may provide an exception to the statutory limitation period and she did not discover her potential case under the Code until April 4, 2014.

7As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at para. 24, "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." 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.

8This Application does not comply with section 34(1) of the Code. The only incident of alleged discrimination which occurred within the one year limitation period is the statement contained in the April 4, 2014 Response. The statement in question indicates that the applicant and her brother told a police officer employed by the respondent during the December 13, 2012 incident that "they tap on the floor to communicate with people who live underground". The applicant denies making this statement and perceives this statement to be falsely suggesting that the applicant and her brother identify with the Spiritualist Church which, according to the Application, engages in a practice of communicating with spirits.

9The statement in the April 4, 2014 Response cannot constitute discrimination within the meaning of the Code. The statement is simply the police officer's recollection of what the applicant and her brother said during the December 13, 2012 incident. There is no evidence to suggest that the recording of this alleged statement and its inclusion in the April 4, 2014 Response was in any way connected to the respondent's perception of the applicant's religious beliefs. The applicant's assertion that the respondent created a false record of the applicant's statements during the December 13, 2012 incident due to an incorrect belief that the applicant identifies with the Spiritualist Church is entirely speculative.

10As I have found that the statement attributed to the applicant and her brother contained in the respondent's Response does not constitute an act of discrimination, it cannot form part of a series of discriminatory events for the purpose of section 34(1)(b) of the Code. Therefore, the December 13, 2012 incident is untimely because it took place more than two years before the Application was filed and cannot be considered part of a series of incidents with the last incident in the series occurring within one year of the Application filing date.

11The applicant has not clearly explained why she believes the doctrine of discoverability may provide an exception to the statutory limitation period. Her assertion that she did not discover that she had a potential case under the Code until April 4, 2014 is contradicted by the fact that she filed the earlier Application with the Tribunal concerning the December 13, 2012 incident on December 12, 2013. The current Application is substantially the same as the earlier Application, but claims a different ground of discrimination, namely creed. As discussed above, the respondent's April 4, 2014 Response does not provide any evidence the respondent discriminated against her on the basis of creed during the incident on December 12, 2012. The statement contained in the Response does not suggest the respondent perceived the applicant to be a member of the Spiritualist Church in December 12, 2012. Therefore, the doctrine of discoverability cannot be relied upon by the applicant in these circumstances.

12Therefore, the Application can only be considered if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and no substantial prejudice will result to any person affected by the delay in accordance with section 34(2) of the Code.

13At para. 24 of Miller, above, the Tribunal held that 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. Further, the applicant bears the onus of proving that any delay was incurred in good faith and must provide a reasonable explanation as to why she did not pursue his rights under the Code in a timely manner. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241.

14I find that the applicant has not established that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code. The applicant was clearly aware of her right to file an Application within one year of an alleged incident of discrimination because, as noted above, she filed the earlier Application respecting the December 13, 2012 incident on December 12, 2013. As discussed above, I do not accept the applicant's assertion that she only became aware that she was the subject of discrimination on the basis of creed once she received the respondent's Response to the earlier Application on April 4, 2014. Therefore, the applicant has not provided a good faith reason for waiting for more than two years from the event in question to file this Application. The applicant could have made her allegations respecting discrimination on the ground of creed in the earlier Application filed on December 12, 2013.

15Given my finding that the delay was not incurred in good faith, it is not necessary for me to consider the question of whether the respondent has been substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579 at para 16.

16Therefore, this Application is dismissed.