HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Beau Cockburn
Applicant
-and-
Investors Group and Doug Robbins
Respondents
DECISION
Adjudicator: Bruce Best
Indexed as: Cockburn v. Investors Group
APPEARANCES
Beau Cockburn, Applicant
Self-represented
Investors Group and Doug Robbins, Respondents
Wendy Sun, Counsel
Introduction
1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on October 6, 2015. The applicant alleges that the respondents discriminated against him by failing to provide an American Sign Language (“ASL”) interpreter for a meeting on August 8, 2014.
2By Case Assessment Direction dated March 3, 2016 the Tribunal directed that a preliminary hearing be held to determine whether the Application was untimely. The applicant testified at the hearing on July 13, 2016 through ASL interpreters.
Analysis and Decision
3Sections 34(1) and (2) of the Code read as follows:
Application by person
- (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.
Late applications
(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.
When was the last incident?
4The applicant alleges that he asked for an ASL interpreter for a meeting with his financial advisor, the individual respondent, on August 8, 2014, and that this was not provided. The applicant pursued the matter with the corporate respondent through its internal complaint procedures, and also filed a complaint with the Mutual Fund Dealers Association of Canada (“MFDA”).
5By letter dated December 17, 2014, the corporate respondent advised that in its opinion the individual respondent had complied with its accessibility policy. The applicant argued that this was a further incident of discrimination for the purposes of s. 34(1) of the Code.
6I disagree. The Tribunal has generally held that an internal investigation or appeal does not extend the time limit under s. 34(1). See Huo v. University of Western Ontario, 2012 HRTO 198, at para. 13. The letter of December 17, 2014 is a response to the applicant’s complaint respecting the original incident, and is not a separate incident of discrimination.
7I find that the last alleged incident of discrimination was August 8, 2014. As the Application was not filed until October 6, 2015, it was therefore filed after the expiry of the limitation period in s. 34(1) of the Code.
Was the delay incurred in good faith?
8The applicant takes the position that even if the Application was not timely under s. 34(1), that the delay in filing was incurred in good faith for the purposes of s. 34(2) of the Code.
9The Tribunal’s approach to what constitutes “good faith” is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (“Miller”), at paras. 24-25, where the Tribunal stated:
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).
10There is no indication of bad faith in this case, but, as noted in Miller, that alone is not sufficient to exercise the Tribunal’s discretion under s. 34(2).
11The applicant gave a number of reasons for the delay in filing. First, he claimed that he found the incident emotionally challenging, and that he was avoiding dealing with the situation. He did not; however, appear to have any difficulty in raising the issue directly with the respondent shortly after the incident. As in Doyle v. Canarm, 2009 HRTO 674 at para. 26, I am not satisfied that this is a sufficient reason to explain the delay.
12He also claimed that he has attention deficit disorder (“ADD”), and that this made it more difficult for him to file in a timely fashion. The applicant did not, however, provide any medical evidence to substantiate the claim that his ADD was so debilitating as to prevent an applicant from filing an application. The Tribunal has generally held that such evidence is required in order to establish good faith. See Dionne v. Toronto (City), 2011 HRTO 317, at para. 9.
13The applicant also noted the linguistic and cultural differences that exist between ASL and English, and that he had difficulties with the Tribunal’s forms and information sheets because of his unfamiliarity with written language. The applicant also had surgery on his right shoulder in December 2014, and that his recuperation continued until May 2015, which limited his ability to prepare and file the Application.
14Though I accept that all the above factors above may have created additional difficulties for the applicant, I note that he also indicated he was involved in other legal proceedings in the spring and summer of 2015, including another application with the HRTO. The Tribunal has generally found that it will be difficult to establish good faith where, despite restrictions or limitations faced by the applicant, he or she is nonetheless able to undertake other legal proceedings. See Kelly v. CultureLink Settlement Services, 2010 HRTO 977, at para 70, and the cases cited therein.
15At best, the applicant has established that he was very busy during the timeframe in question, and that he had to prioritize where to focus his energy. However, being busy or stressed will not, in the absence of extraordinary or clear Code-based circumstances, be sufficient to establish good faith. See Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068, at para. 10.
16Considering all the above, I find that the applicant has not been able to establish that the delay in filing the application was incurred in good faith for the purposes of s. 34(2) of the Code.
17Given this finding, it is not necessary to determine whether any party will be substantially prejudiced by the delay. See Esanu v. Georgetown Non-Contact Hockey League, 2009 HRTO 579.
ORDER
18The Application is dismissed.
Dated at Toronto, this 21st day of October, 2016.
”Signed By”
Bruce Best
Vice-chair