Kaibin Qiu v. Kingston Police Service, 2016 HRTO 1649

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kaibin Qiu

Applicant

-and-

Kingston Police Service

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: December 21, 2016

Citation: 2016 HRTO 1649

Indexed as: Qiu v. Kingston Police Service

WRITTEN SUBMISSIONS

Kaibin Qiu, Applicant

No one appearing

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of disability. The applicant alleges that he was wrongfully arrested and mistreated while in police custody.

2By letter dated September 13, 2016, the Tribunal provided the applicant with a Notice of Intent to Dismiss the Application (the “Notice”) because it appeared that the Application was filed more than one year after the last alleged incident of discrimination. The Notice also advised that the applicant did not appear to have cited facts that constitute “good faith” within the meaning of the Tribunal’s case law. In the Notice, the Tribunal directed the applicant to file written submissions addressing these issues by no later than October 13, 2016. This deadline was extended to December 12, 2016.

3The applicant filed submissions on December 12 and 13, 2016. Unfortunately, these submissions do not address the issue of delay. Rather, the applicant’s submissions essentially reiterate the allegations made in the Application and included information about how the applicant sought redress from the police and the Office of the Independent Police Review Director (“OIPRD”). The only explanation the applicant offered for the delay was set out in the Application. The applicant stated that he suffered a severe brain injury in 2011 and has been taking rehabilitation treatment since then. The applicant stated that his disability prevents him from concentrating and focussing.

Analysis and Decision

4Section 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.

5The 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.

6At 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 alleges that the incident in question allegedly occurred on January 8, 2015, but did not file this Application until August 24, 2016, i.e., more than one year after the alleged incident of discrimination. Accordingly, the Tribunal may only deal with the Application if it is satisfied that the delay was incurred in good faith and no prejudice will result to any party affected by the delay.

7The applicant submitted that his medical condition caused the delay. An applicant’s disability may be a good faith explanation for delay, but there must be medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code: Pedro v. Homestead Land Holdings, 2014 HRTO 767; Dionne v. Toronto (City), 2011 HRTO 317; Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; and Savage v. Toronto Transit Commission, 2010 HRTO 1360. The applicant provided no such medical information. I also note that the applicant was able to pursue a complaint to the OIPRD before he filed this Application. In these circumstances, I find that it is plain that is plain and obvious that the applicant does not have a good faith explanation for the delay in filing the Application.

8The Application is dismissed for delay.