HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michèle Grignon
Applicant
-and-
The Ottawa Hospital, Dr. Eric Spindler and The Ottawa Police Service
Respondents
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Grignon v. The Ottawa Hospital
APPEARANCES
Michèle Grignon, Applicant
Self-represented
The Ottawa Hospital, Respondent
Jacquie Dagher, Counsel
Dr. Eric Spindler, Respondent
Jennifer Katsuno, Counsel
The Ottawa Police Service, Respondent
David Patacairk, Counsel
1This Application, filed on November 3, 2014 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods, services and facilities because of disability.
Background
2In the Application, the applicant complains of incidents occurring in October 2013 involving the respondents that she alleges violated her Code rights. The respondents deny any violation of the applicant’s human rights. The respondents each take the position that the events in question occurred in 2012, not 2013.
Summary Hearing
3By Case Assessment Direction (“CAD”) dated May 11, 2015, the Tribunal ordered a summary hearing and a preliminary hearing to determine whether the Tribunal should dismiss the Application for delay or because it has no reasonable prospect of success. The Tribunal held the summary hearing and preliminary hearing by teleconference on December 1, 2015.
Submissions
4With respect to delay, the applicant submitted that the date of the incidents in question were inaccurately recorded as October 2013. The applicant stated that this incident actually occurred in September 2012. The applicant submitted that someone at the Tribunal advised her that there was no issue with the timeliness of her Application. The applicant did not remember the name of the Tribunal employee who made this statement to her. The Tribunal has no record of giving any such advice to the applicant.
Analysis and Decision
5As I find that the Application shall be dismissed for delay, it is unnecessary to address whether the Application has a reasonable prospect of success.
6Sections 34(1) and 34(2) of the Code provide:
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.
7The applicant filed this Application on November 3, 2014 more than one year after either the date of the alleged incident of discrimination set out in the Application, October 2013, or the date the applicant adopted in her submissions, September 2012. Consequently, the applicant must provide a good faith explanation for the delay. The 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.
8The only explanation provided by the applicant was that an unnamed employee of the Tribunal advised her that there was no issue with the timeliness of her Application. Tribunal personnel, however, are not permitted to give legal advice to parties or make determinations about legal issues, which is an adjudicative function. Accordingly, it would be very unusual, and incorrect, if in fact Tribunal personnel gave the applicant the advice she asserts. The Tribunal has no record of any such advice. The applicant’s vague assertion is not in my view sufficient to conclude that the Tribunal advised her that her Application is timely, when it clearly is not. Consequently, I find that the applicant has not provided a good faith explanation for the delay in filing the Application.
9The Application is dismissed.
Dated at Toronto, this 23rd day of February, 2016.
“signed by”
Douglas Sanderson
Vice-chair