HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Dryden
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance
Respondent
DECISION
Adjudicator: David Muir
Indexed as: Dryden v. Ministry (Finance)
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 contracts on the basis of disability. The Application was filed on May 21, 2015. In his Application the applicant alleges that Statutory Accident Benefits Schedule (“SABS”) in place at the time of a motor vehicle accident in 1997 was discriminatory because it required the use of the Glasgow Coma Scale (“GCS”) to assess certain kinds of injury. The applicant because of the particular circumstances of his motor vehicle accident the GCS was ineffective in identifying a traumatic brain injury.
2On June 16, 2015 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be outside the Tribunal’s jurisdiction. The NOID noted that from a review of the Application it appeared that it had been filed more than a year after the last incident of discrimination and that the applicant had not cited facts that constitute good faith within the meaning of section 34(1) of the Code.
3The applicant responded to the NOID.
4Under 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.
5I find that that this Application is out of time and the applicant has not provided a good faith explanation for the delay.
6Sections 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.
7These 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.
8In his Application the applicant states that he was in a motor vehicle accident in 1997. He believes that he suffered a brain injury in the accident but because of the use of the GCS to assess his injury he was denied benefits and treatment for 17 years. In response to the NOID, the applicant indicates that he contacted the Human Rights Legal Support Centre about seven years ago. He also states that someone told him to keeping pursuing his claim for SABS benefits which was settled according to the applicant, on June 17, 2014. The applicant argues that he filed the Application within one year of the day he settled his SABS claims. He argues that he was compelled to settle this case at the time and on unfavorable terms as a further consequence of the use of the GCS to assess his injuries.
DECISION
9The 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.
10There 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 this case, the event or incident the applicant complains of was the use of the GCS to assess his injury in 1997. Since that time he has pursued his claim for SABS benefits.
11The applicant argues that the final incident of discrimination was his decision to settle his case in June 2014 but in making the argument the applicant himself states his need to settle was a consequence of the use of the GCS in 1997. The Tribunal has determined on many occasions that there is a distinction to be made between an incident with ongoing consequences and the situation where there is a fresh act or decision repeated over a period of time. In this case the applicant relies on a consequence of a decision make many years before. See Garrie v. Janus Joan Inc., 2012 HRTO 1955.
12In the result the final act of discrimination by this respondent alleged by the applicant occurred in 1997. The applicant’s only explanation for the delay is his pursuit of his SABS claims. This is not a reasonable explanation for 17 years of delay.
13For all of these reasons I find that this Application must be dismissed because it is plain and obvious that it is out of time and the applicant has not provided a good faith explanation for the delay.
Dated at Toronto, this 20th day of July, 2015.
“Signed by”
David Muir
Vice-chair