HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gregory Thornton
Applicant
-and-
Family and Children’s Services of the Waterloo Region
Respondent
DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Thornton v. Family and Children’s Services of the Waterloo Region
WRITTEN SUBMISSIONS
Gregory Thornton, Applicant
Self-represented
1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Application was filed on May 2, 2016, and relates to allegations said to have occurred prior to June 2012.
2On June 17, 2016, the Tribunal’s Registrar issued a Notice of Intent to Dismiss (“NOID”), which informed the applicant that his Application appeared to be outside the Tribunal’s jurisdiction for the following reason:
- 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)].
3On June 23, 2016, the applicant filed written submissions in response 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, and Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.
5For 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.
6Section 34 of the Code provides:
34(1) If a person believes that any of his or her rights under Part 1 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 seek to pursue a human rights claim. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
8This Application is clearly out of time. Although it is not entirely clear from the narrative of the Application, for the purposes of this Decision, I accept the applicant’s assertion that the last event of alleged discrimination occurred May 3, 2012. Accordingly, the Application was filed four years after the alleged incident of discrimination. Thus, if 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.
9The applicant made submissions in response to the NOID. Essentially, the applicant argues that he was too busy with other legal proceedings. He also asserts that he is a person with a disability and, apparently, this fact, combined with the extensive legal proceedings with which he was allegedly involved, made it impossible for him to file the Application before he did. The applicant provided some documentation related to his other proceedings to substantiate the fact that he has been busy with other matters in the years since the events described in the Application. The applicant has not provided medical evidence which would speak to the delay issue.
10There is no indication of bad faith on the applicant’s part, but it is also the case that the Tribunal has consistently concluded that the pursuit of other legal proceedings in respect of issues raised in the Application is not good faith. See Damiani v. Sobeys Capital Incorporated, 2014 HRTO 1397, and the cases cited there.
11The applicant asserts that he is a person with a disability and that this contributed to the delay. 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.
12In Dionne v. Toronto (City), 2011 HRTO 317, the Tribunal commented on what was required of an applicant seeking to establish a good faith explanation on the basis of 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 992; and, Savage v. Toronto Transit Commission, 2010 HRTO 1360.
13In 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.
14For 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.
15Given this conclusion, there is no need to address the issue of substantial prejudice.
16The Application is dismissed.
Dated at Toronto, this 12th day of August, 2016.
“Signed by”
Keith Brennenstuhl
Vice-chair