Hyun Whan Kim v. Seneca College, 2015 HRTO 953

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hyun Whan Kim

Applicant

-and-

Seneca College

Respondent

DECISION

Adjudicator: Naomi Overend

Date: July 20, 2015

Citation: 2015 HRTO 953

Indexed as: Kim v. Seneca College

WRITTEN SUBMISSIONS

Hyun Whan Kim, Applicant

Self-represented

Introduction

1The applicant filed an Application on April 22, 2015 alleging discrimination in services, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application contains allegations relating to incidents, the last of which allegedly took place on September 20, 2013.

2On May 29, 2015, the Tribunal sent a Notice of Intent to Dismiss (“NOID”) for delay. The applicant filed submissions in response to the Notice on June 6, 2015.

decision and analysis

3Section 34 of the Code states in part:

(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.

4As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one’s Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why he did not pursue his Code rights in a timely manner.

5The applicant acknowledges that the last act of discrimination in his Application occurred outside the one-year time limit set out in the Code. However, he submits that the delay was incurred in good faith.

6In the Application, the applicant asserts that he did not file within the year of the last incident because he was ignorant of how to file an application with the Tribunal. He also states that he was suffering from depression and anxiety. He notes that he was afraid of retaliation because he continues to be student with Seneca College. Finally, he states that he has been trying to resolve the issue with the respondent for almost three years without going to the Tribunal.

7In his submissions to the NOID, the applicant further adds that he is suffering from a visual impairment and that, in combination with his mental health conditions made it difficult for him to think clearly. He adds that he was not aware of the new regime of filing directly to the Tribunal or the time limit in filing under the Code and that his English-language skills were a factor in the delay. Finally, he reiterates his concern about reprisal.

8The applicant has not stated why his disabilities or English-language skills interfered with his ability to file an application, or why, after this period of time he was able to file not only this Application, but two other applications on the same day. He has provided a medical note indicating that he may require a longer time to complete school tasks and assignments, but this evidence does not support his submissions or otherwise explain the five-year delay.

9His submissions state that the applicant was ignorant of his rights, but this Tribunal has found that a delay may be found not to have been incurred in good faith where a party simply says that they were not aware of their rights, and made no inquiries about options for pursuing their rights: Lutz v. Toronto (City), 2009 HRTO 113. This is particularly so in the circumstances here, where the applicant is not suggesting that he was unaware of his rights under the Code, but simply the means to pursue them.

10Applicants who file applications with the Tribunal may have concerns about reprisal, but this cannot be the basis, on its own, to justify the filing of an application outside the time limit. The applicant has not articulated a specific concern with this respondent, which demonstrates there was a greater risk of reprisal in this case. In any event, s. 8 of the Code contains a protection from reprisal in these very circumstances.

11Finally, the fact that the applicant has been attempting to resolve this situation with the respondent for close to three years, suggests that he has felt sufficiently safe to bring his concerns to the attention of the respondent. Moreover, it does not explain why he did not pursue a parallel proceeding before this Tribunal. Waiting for other proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697.

12Given the absence of evidence that the delay was incurred in good faith, the Tribunal is without the jurisdiction to deal with this Application.

13The Application is dismissed.