Svetlana Tracey v. Brockville Police Service Board and Michael Grant, 2016 HRTO 1652

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Svetlana Tracey

Applicant

-and-

Brockville Police Service Board and Michael Grant

Respondents

INTERIM DECISION

Adjudicator: Jennifer Khurana
Date: December 21, 2016
Citation: 2016 HRTO 1652
Indexed as: Tracey v. Brockville Police Service Board

WRITTEN SUBMISSIONS

Svetlana Tracey, Applicant

Self-represented

Brockville Police Service Board and Michael Grant, Respondents

Joël Dubois, Counsel

1This matter is scheduled for a hearing in Ottawa on January 31, 2017.

2The applicant filed a Request for an Order During Proceedings (“Request”) seeking to add an individual respondent. The respondents, who retained new legal counsel in November 2016, also filed a Request in which they ask to file an amended Response and seek an order from the Tribunal dismissing the Application for delay.

3This Case Assessment Direction (“CAD”) provides directions to the parties about their Requests and regarding the conduct of the hearing scheduled for January 31, 2017.

DELAY

4In the Application, the applicant indicated March 14, 2014 as the date of the last alleged incident of discrimination. At Question 8 of the Application, the applicant referred to events that occurred on March 15, 2015. The Application was filed on November 17, 2015. The applicant advises that her lawyer wanted to use the human rights allegations as part of a criminal proceeding on June 22, 2015 but then decided against it at the last moment.

5The respondents retained new legal counsel in November 2016 and filed their Request seeking, among other things, an order from the Tribunal dismissing the Application on the grounds that the allegations set out in the Application are untimely. The respondents submit that the allegations in the Application all relate to a single incident which occurred on March 14, 2014. The deadline for the Application to be made pursuant to section 34(1) of the Code was March 14, 2015, and they submit that the applicant did not provide a good faith explanation for the delay in her Application.

6In her response to the respondents’ Request, the applicant appears to recognize that she filed her Application outside the one-year time period. She submits that she would be prejudiced were the Tribunal to dismiss her Application at this stage as the hearing date is already scheduled and neither the respondents’ former legal counsel nor the Tribunal previously raised the issue of delay.

7The applicant also submits that the delay in filing her Application was incurred in good faith and that no prejudice would result to any party if the Application were to proceed. She argues that her health and personal difficulties worsened following the allegedly discriminatory events in March 2014 and that since that time she has been in a deep depression and unable to initiate any legal or Tribunal process. She notes that her criminal proceeding lasted more than a year after the alleged incident of discrimination in March 2014 and that her lawyer advised her to file an Application with the Tribunal.

8Having reviewed the parties’ submissions, the Tribunal has decided to hear submissions from the parties before it determines whether this Application should be dismissed, in whole or in part, on the basis that it appears that some or all of the allegations may be untimely. The parties will be asked to make submissions on whether the Application is outside the Tribunal’s jurisdiction for this reason.

9The applicant advises that she is not available for conference calls prior to the scheduled hearing date. In the circumstances, the hearing date scheduled for January 31, 2017 will be converted to a preliminary hearing to address the issue of delay. If the Tribunal determines that the delay was incurred in good faith and does not dismiss the Application, additional hearing dates for the merits hearing will be scheduled with the parties.

10Section 34 of the Code reads as follows:

(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.

11The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why she did not pursue her rights under the Code in a timely manner. If the applicant wishes to rely on a good faith argument, she will be required to provide medical documentation in support of her claim that was experiencing medical and other issues that rendered her incapable of filing her Application in a timely way. Any evidence must be delivered and submitted to the Tribunal in accordance with the deadlines set out below.

12The Tribunal has consistently ruled that it requires medical evidence that the medical condition was so debilitating that it prevented the applicant from pursuing his or her legal rights under the Code. In preparing their submissions, the parties may wish to review the decisions in Brissett v. Loblaw’s Real Canadian Superstore, 2013 HRTO 478, Lal v. Skechers USA Canada Inc., 2012 HRTO 1900 at para. 21, and James v. York University, 2015 ONSC 2234 (Div. Ct.). All decisions of the Tribunal can be accessed free of charge on the website of the Canadian Legal Information Institute at: www.canlii.org/en/on/onhrt/index.html.

DIRECTIONS

13It appears that the parties have complied with their disclosure obligations under the Tribunal’s Rules to deliver to each other and file with the Tribunal their hearing documents and witness statements by December 19, 2016.

14If the parties wish to rely on any evidence, witnesses or case law with respect to the issue of delay that they have not already submitted, they must deliver any additional documents, witness lists or case law to each other and file them with the Tribunal no later than January 20, 2017. If any party intends to call witnesses on the issue of delay and a summary of the witness’ intended evidence has not already been provided, the parties must also file and deliver any additional witness statements by the same date.

CONDUCT OF HEARING

15Rule 15A of the Tribunal’s Rules provides that the parties may agree to participate in mediation/adjudication on the scheduled hearing date. At the outset of the hearing, the assigned adjudicator, with the consent of the parties, may engage in discussions with the parties to try and resolve the matter before proceeding with the party. In such circumstances, the mediator may continue to hear the matter as adjudicator.

16If the parties are interested in attempting to settle the case through mediation-adjudication, they should advise the Tribunal of such an interest either prior to or at the outset of the preliminary hearing. They may also always engage in settlement discussions on their own prior to the scheduled hearing date.

17If the parties do not wish to participate in mediation/adjudication or are not able to resolve the matter, the parties should be prepared to make submissions on the issue of delay as set out above.

The applicant’s request to add a party and the respondents’ request to amend

18If the Tribunal determines that all or a part of the Application should be dismissed for delay, it will be dismissed and the parties will receive a decision containing the reasons for the dismissal.

19If the Tribunal finds that the Application should not be dismissed for delay, it will address the parties’ outstanding Requests. The parties should be prepared to make submissions on these Requests at the preliminary hearing if directed to do so by the hearing adjudicator.

Proper naming of the organizational respondent

20The respondents advise that the correct legal name of the organizational respondent is Brockville Police Service Board. The style of cause is amended accordingly.