Fuller v. Medi Mart Clinic, 2016 HRTO 1132

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clayton Fuller

Applicant

-and-

Medi Mart Clinic

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: August 24, 2016

Citation: 2016 HRTO 1132

Indexed as: Fuller v. Medi Mart Clinic

WRITTEN SUBMISSIONS

Clayton Fuller, Applicant

No one appearing

1This Application, filed on January 26, 2016 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect goods, services and facilities because of disability.

2The applicant states that the respondent clinic did not provide him with medication, caused his drivers’ license to be suspended and did not file for Ontario Disability Support Program benefits for him. The applicant states in the Application that the last incident occurred on March 10, 2014.

3On April 4, 2016, the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”) that advised him that “the Application appears to be outside the Tribunal’s jurisdiction because 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 Tribunal’s case law (s.34(1)) and because the applicant alleged discrimination based on “reprisal or threat of reprisal” but failed to explain how the respondent’s behaviour was related to any of the following: claiming or enforcing a right under the Code; instituting or participating in proceedings under the Code; or, refusing to infringe the right of another person under the Code (s. 8). The Tribunal directed the applicant to file written submissions in response to the NOID by May 4, 2016.

4The applicant filed submissions on April 21, 2016. The applicant submitted that he had been misdiagnosed with a mental illness and questioned about the possibility of having committed a serious crime, which he did not. The applicant stated that he denied the suggestion of committing a crime while in a psychiatric hospital and requested that he be able to speak to a lawyer. The applicant states that at this point he was described as “delusional”, a characterization he denies. The applicant states that his driver’s license was seized and he was unable to work in his profession. The applicant states that the hospital informed the respondent clinic of its diagnosis. The applicant states that he fell into a deep depression for which he has since received medication. The applicant also described his interactions with a lawyer who represented him, but these submissions have no bearing on this Application.

Analysis and Decision

5Section 34 of the Code provides as follows:

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.

6The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:

In my view, 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. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). 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. 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

7At this stage in the processing of the Application, the Application may be dismissed if it is plain and obvious that it was not filed in accordance with section 34 of the Code. In this case, the applicant’s allegations relate to an incident or incidents, the last of which occurred on March 10, 2014, which is well over a year before the applicant filed the Application. Consequently, the Application is untimely and the Tribunal may only continue to deal with it if it is satisfied that the applicant has a good faith explanation for the delay and no prejudice will result as a result of the delay. The applicant stated that he fell into a deep depression, but also that he received treatment for his condition. The applicant did not specifically submit that his depression was the reason for the delay in filing the Application. In any event, the Tribunal has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See Brissett v. Loblaw’s Real Canadian Superstore, 2013 HRTO 478. The applicant provided no medical evidence along with his submissions. In my view, the applicant has not provided a good faith explanation for the delay in filing the Application. In the absence of a good faith explanation it is unnecessary to consider the issue of prejudice. In these circumstances, I find that it is plain and obvious that the Application does not meet the requirements of section 34.

8The Application is dismissed for delay.