Alan Spence v. Brantford Police, 2016 HRTO 507

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Spence

Applicant

-and-

Brantford Police

Respondent

DECISION

Adjudicator: David Muir

Date: April 19, 2016

Citation: 2016 HRTO 507

Indexed as: Spence v. Brantford Police

1This is an Application filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of goods and services on the basis of reprisal.

2In his Application the applicant refers to an event in November 2013. The Application was filed on November 4, 2015.

3On January 15, 2016, the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be outside the Tribunal’s jurisdiction.

4The NOID noted that from a review of the Application it appeared that it had been filed more than a year after the last incident of discrimination and that the applicant had not cited facts that constitute good faith within the meaning of section 34(1) of the Code. The NOID also noted that in his Application, the applicant had failed to identify any specific acts of discrimination within the meaning of the Code, and while claiming reprisal, had not identified how the respondent’s behaviour related to his having previously claimed or enforced a right under the Code.

5The applicant responded to the NOID.

6Under the Tribunal’s jurisprudence, an Application will only be dismissed at this preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within its jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381; Belcastro v. Metrolinx Go Transit, 2012 HRTO 2121.

7I find that the Application is out of time and it is plain and obvious that the applicant has plead no facts which would support a finding that the delay was incurred in good faith. I also find that that there are no allegations of discrimination or reprisal within the meaning of the Code.

8In his Application, the applicant alleges that in November 2013 he had reason to believe that a child was being molested at his school. The applicant reported this to the police but made it clear that he did not want to see the police. The applicant alleges that he was put on hold for a long time and then hung up. The applicant alleges that a short time later he heard a knock on the door and when he opened it saw an Asian police officer. The applicant would not speak to the police officer and the officer left.

9The applicant then states that he left his apartment and then returned. He describes how he felt about returning to his apartment. He recounts how he searched his apartment but found no one there and nothing amiss. The applicant also described a dream he had that night.

10Sections 34(1) and (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.

11These provisions have been found to be mandatory subject to section 34(2). The 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. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith”, the applicant must show something more than the absence of bad faith. The applicant must at a minimum provide a reasonable explanation for the delay.

12This Application is out of time. As indicated above, it appears to relate to events said to have occurred in November 2013.

13In my view it is plain and obvious that the Application is out of time and there is no reasonable explanation for the delay. The applicant argues that he could not find the appropriate place on the Form 1 for his circumstance. The applicant asserts that he is visually impaired but provides no details and no explanation for why it took two years to complete the Form 1. The applicant also states that he “believes” that a lawyer he spoke to told him he had two years. There is no substance to either explanation and I am not persuaded that either would be considered to be good faith. I would dismiss the Application on this basis.

14If this conclusion is incorrect it clearly plain and obvious that the Application contains no allegations of discrimination. In his Response to the NOID the applicant argued that the respondent sent an Asian police officer when he had clearly instructed them not to. It is not at all clear from the Application that such an instruction was made and even if it was, such an instruction would itself be a violation of the Code which the respondent would not have been obliged to honour. Finally, the applicant alleges reprisal but makes no allegation that he had previously raised a human rights issue with the respondent. In his response to the NOID, what the applicant articulates is his fear of reprisal in the future, not for any past incidents.

15For all of these reasons I find that it is plain and obvious that this Application is outside of the jurisdiction of the Tribunal to decide and accordingly it is dismissed.