W.S. v. Ontario (Health and Long-Term Care), 2016 HRTO 1382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

W.S.

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: October 26, 2016

Citation: 2016 HRTO 1382

Indexed as: W.S. v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

W.S., Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Respondent

Beth Beattie, Counsel

1The purpose of this Decision is to decide whether the Tribunal should dismiss the Application on a preliminary basis as outside the Tribunal’s jurisdiction because it was filed outside the one-year time limit in s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is a person with mental disabilities. On the Tribunal’s initiative, I have anonymized his name in this case for the following reasons. Rule 3.11 of the Rules of Procedure permits the Tribunal, where it considers it appropriate to do so, to make an order to protect the confidentiality of personal or sensitive information. I recognize that anonymization is a rare and extraordinary step because of the importance of openness and transparency in legal proceedings. However, in my view, because of some of the facts of this case, which are set out below, this is one of those exceptional cases where there is an overriding need to protect privacy interests.

3Between February 26, 2011 and April 18, 2012, the applicant was detained in the maximum security division of a mental health care facility.

4In 2013, Dr. P., who is a psychiatrist, assessed the applicant’s mental capacity within the meaning of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, and found that he was incapable of managing his property. The applicant appealed this finding to the Consent and Capacity Board (the “CCB”), who overturned it, and found that the applicant was capable of managing his property.

5In 2012 and 2013, the applicant acted as a self-represented party in a family law matter before the Superior Court of Justice (the “Superior Court”). Given the applicant’s mental health history, an issue was raised about his capacity to represent himself. In 2013, the Superior Court found that the applicant’s mental health had improved, and that he was able to participate in the trial and represent himself.

6On February 3, 2016, the applicant filed an Application under s. 34 of the Code with this Tribunal, which alleged that the respondent discriminated against him with respect to services because of his disability. Specifically, he alleged that he was supposed to be detained in a minimum security setting, but was detained for 14 months in a maximum security setting between February 26, 2011 and April 18, 2012.

7On April 6, 2016, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss (“NOID”), which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed outside the one-year time limit in s. 34(1) of the Code. The Registrar directed the applicant to provide written submissions in response to this issue.

8On April 7, 2016, the applicant filed written submissions in response to the NOID, which stated his delay in filing his Application was incurred in good faith because Dr. P. found that he was mentally incapable of filing his Application. He also stated that he is taking a medication, and when the dose was increased in 2015, he became stable enough to file his Application. He further stated that when he was discharged from detention in 2016, he filed his Application as soon as possible.

9On April 14, 2016, the Tribunal decided that it was not plain and obvious that the Application does not fall within the Tribunal’s jurisdiction, and that it would continue to be processed, but that this was not a final decision with respect to the Tribunal’s jurisdiction to consider it.

10On May 18, 2016, the respondent filed a Response to the Application, which denied the allegation of discrimination, and requested, among other things, that the Application be dismissed on a preliminary basis because it is untimely.

11On September 7, 2016, the applicant filed a Reply to the Response, which stated that there was a delay in filing his Application because he was too ill to do so. In support of this submission, he pointed again to the finding of Dr. P. Alternatively, he stated, his Application is timely because the annual decisions of the Ontario Review Board (the “ORB”) upholding his detention, the most recent of which was in November 2015, constitute a series of incidents.

12The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

13I do not accept the applicant’s submission that his Application is timely because the annual decisions of the ORB upholding his detention, the most recent of which was in November 2015, constitute a series of incidents. The subject matter of his Application is his allegation that his detention in the maximum security division of a mental health care facility between February 26, 2011 and April 18, 2012 was discriminatory. A “series of incidents” has to be a series of incidents of discrimination. In his Application, the applicant clearly alleged that the 14-month detention was discriminatory. By contrast, in his Application and his submissions, there is no clear allegation that, and certainly no explanation as to how, the ORB decisions were discriminatory. In my view, the applicant is trying, unconvincingly, to characterize the ORB decisions as a series of incidents to fit his Application within the one-year time limit in s. 34(1) of the Code.

14In the circumstances, I find that the last alleged incident of discrimination occurred on April 18, 2012. Given that the last alleged incident of discrimination occurred on April 18, 2012, but the Application was not filed until February 3, 2016, I find that the Application was filed approximately two years and nine months outside the one-year time limit in s. 34(1) of the Code.

15The main issue to determine is whether the applicant’s delay in filing his Application was incurred in good faith.

16In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained, at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

17In Lafleur v. Kimberley Scott, 2009 HRTO 1141, the Tribunal also stated at para. 8:

To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) 2002 CanLII 44920 (ON CA), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

18I find that the applicant’s delay in filing his Application was not incurred in good faith. In 2013, Dr. P.’s finding that he was incapable of managing his property was overturned by the CCB following an appeal by him, and the Superior Court found that his mental health had improved, and that he was able to participate in a family law trial and represent himself. These facts about his mental capacity along with the basic fact that he was an active participant in legal proceedings before the CCB and the Superior Court contradict his claim that he was unable to file his Application with this Tribunal in a timely manner.

19In view of my finding that the applicant’s delay in filing his Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

20The Application is dismissed.