McArthur-Calhoun v. Toronto Police Services, 2015 HRTO 923

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra McArthur-Calhoun

Applicant

-and-

Toronto Police Services Board; Office of the Independent Police Director; Constable Ghazarian, William Wardie and Chris Burge

Respondent

DECISION

Adjudicator: David Muir

Date: July 13, 2015

Citation: 2015 HRTO 923

Indexed as: McArthur-Calhoun v. Toronto Police Services

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 12, 2015 in which is she alleged discrimination in the provisions of services by the respondents on the basis of age, disability and reprisal.

2On June 8, 2015 the Tribunal issued a Notice of Intent to Dismiss (“NOID”) the Application because it appeared that the Applicant may be outside of the Tribunal’s jurisdiction to decide. The applicant has responded but did not address the issues in the NOID which were set out as follows in the NOID:

the Application was filed more than one year after the last incident of discrimination described in your Application and you do not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law [s.34(1)]. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of “good faith”.

In addition, it appears that the Application as against a certain named respondent, Office of the Independent Review Board, may be outside the HRTO’s jurisdiction.

A review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the Office of the Independent Review Board.

3The Application is dismissed. The applicant’s submissions do not address any of the issues identified in the NOID. Much of her brief response to the NOID appears to relate to another Application the applicant has recently filed which does not appear to be connected to this case.

4In her Application, the applicant alleges that on May 4, 2014 two police officers came to her home and despite being asked to leave they did not and they took her to a hospital. The applicant alleges that she went to the hospital against her will; she did not want to go because she had been there the day before.

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 this Application ought to be dismissed because as it relates to the Toronto Police Service and Constable Ghazarain it 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. The Application as against the remaining respondents is dismissed because there are no allegations made against any of them.

The Delay Issue

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 one year after the last alleged incident of discrimination. It falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith. The applicant offered no explanation for the delay in filing her Application.

10I find that it is plain and obvious that this Application as it relates to Toronto Police Service and Constable Ghazarain is outside of the jurisdiction of the Tribunal to decide because it is out of time and accordingly it is dismissed.

11I also find that it is plain and obvious that the remainder of the Application must be dismissed because there are no allegations made against these respondents. It appears that the applicant may have made a complaint under the Police Services Act and she suggests that it is ongoing but otherwise the Application contains no reference to the other respondents.

12For these reasons the Application is dismissed.