Outhonesavan Bounpraseuth v. York University, 2016 HRTO 374

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Outhonesavan Bounpraseuth Applicant

-and-

York University Respondent

DECISION

Adjudicator: Laurie Letheren Date: March 23, 2016 Citation: 2016 HRTO 374 Indexed as: Bounpraseuth v. York University

WRITTEN SUBMISSIONS

Outhonesavan Bounpraseuth, Applicant Self-represented

Introduction

1This Application alleges discrimination with respect to on a number of prohibited grounds of discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On February 19, 2016, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) this Application because it appeared to be outside of the Tribunal’s jurisdiction on the basis of delay. The incidents of discrimination complained of occurred more than one year prior to the Application being filed.

3A NOID is issued before the Tribunal delivers an application to the respondent. The Tribunal will only dismiss an application following a NOID if it is plain and obvious that the application is not within the Tribunal’s power to consider.

4The applicant has provided submissions in response to the NOID. For the reasons that follow, I find that the Tribunal does not have power to consider this Application.

5This Application was filed on January 20, 2016. The date of the last incident, as indicated in his Application, is October 26, 2009; therefore, the alleged incidents occurred six (6) years and three (3) months prior to the filing of the Application.

6Section 34 of the Code requires that a person wishing to pursue a claim of discrimination bring the claim forward by filing an application within one year of the alleged incident of discrimination, or where there is a series of incidents, within one year of the date of the last incident of discrimination. The provision has been found to be mandatory subject to section 34(2) which permits a person to apply to the Tribunal after the expiry of the one-year period 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 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 of the last incident of discrimination. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.)

8The alleged incidents are clearly out of time; however, the Tribunal may deal with otherwise untimely allegations where the applicant is able to establish a good faith explanation for the delay and satisfy the Tribunal that there would be no substantial prejudice to any other party in the proceeding. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing the application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. See Miller, above.

9The applicant submits that he filed a civil claim against the respondent which was dismissed by the Superior Court in February 2013. His appeal of the Superior Court’s decision was dismissed by the Court of Appeal for Ontario in May 2014 and his leave to appeal that decision was denied by the Supreme Court of Canada in May 2015.

10The applicant states that the fact that he pursued a civil action against the respondent should be seen as his good faith reason why he did not file this Application before January 20, 2016. He states that he did not get advice from the paralegal he retained about filing an Application and that once he filed the civil action he “may have forgotten about the discrimination factor”. He states that since he thought the civil action was more important, he then focussed on educating himself about the laws that were at issue in the civil action. He submits that the reasons for the delay should be considered good faith because if his paralegal and then lawyer that he retained in 2010 had advised him about filing an Application at the Tribunal, it would have been filed on time.

Analysis and Decision

11There are a number of Tribunal decisions in which it has been determined that efforts to pursue one’s rights elsewhere, without more, have been found not to justify delay, see: Richards v. Ryerson University, 2015 HRTO 1210; Chen v. Toronto Police Services Board, 2012 HRTO 1889, 2010 HRTO 508.

12The Tribunal has determined that waiting for another legal proceeding is not generally a reasonable explanation for a delay. In Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, the Tribunal stated:

The applicant essentially submits that the delay was incurred because she was waiting to see how other legal proceedings would unfold before she ascertained how to pursue her rights under the Code. However, the applicant could have filed a timely Application under the Code while she continued to pursue her statutory and contractual rights at the OLRB and at arbitration. Although the Tribunal may defer consideration of Applications where legal proceedings are ongoing in other for a relating to the same facts and issues as the Application, by filing timely Applications under the Code, even while other proceedings are ongoing, applicants ensure that they will not be prevented from applying to the Tribunal on the basis of delay. Waiting for other legal proceedings to conclude before pursuing one’s rights under the Code will generally not constitute a valid explanation for delay in filing an Application.

13The good faith reasons submitted by the applicant are very similar to those submitted by the applicant in Cartier, above: that he was waiting for civil action to reach their end.

14I find that the applicant has not established any good faith reasons for the significant delay in filing this Application. The Application is, therefore, dismissed.