Michaela King v. Brampton Memorial Garden/Arbor Memorial Services Inc., 2016 HRTO 549

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michaela King

Applicant

-and-

Brampton Memorial Garden/Arbor Memorial Services Inc. and Thomas King

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: April 26, 2016

Citation: 2016 HRTO 549

Indexed as: King v. Brampton Memorial Garden/Arbor Memorial Services Inc.

WRITTEN SUBMISSIONS

Michaela King, Applicant

Self-represented

Introduction

1The applicant alleges in this Application that she has been discriminated against with respect to services on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant alleges the last incident of discrimination took place on November 27, 2010.

3By letter dated March 11, 2016, the Tribunal sought submissions from the applicant advising her that the Application appeared to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of discrimination described and she did not appear to have cited facts that constituted “good faith” within the meaning of the Tribunal’s case law (s.34(1)).

4The applicant provided written submissions on April 11, 2016.

5For the reasons that follow, I find that the applicant’s allegations that pertain to events that occurred in 2010 must be dismissed as untimely.

delay

6The Tribunal has the power to dismiss an Application if it is untimely. Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident of a “series of incidents”) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed.

facts

7The applicant alleges the respondent funeral home and the personal respondent failed to include her in the 2010 funeral arrangements for her son. She alleges the respondent funeral home failed to interview her and did not respect her or communicate with her. She alleges the respondent funeral home should not simply have continued to make arrangements at the behest of the first person who contacted them to the exclusion of her.

8In response to the request for written submissions with respect to the delay issue, the applicant submitted that for the first year after her son’s death she could not focus. She further submits that she began contacting people in 2011 to try and seek redress to no avail. She did not contact the Tribunal until 2016 when she felt she had exhausted other avenues.

Law and analysis

9Sections 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 subsection 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.

10Section 34(1) is a limitation period established under the Code. If an applicant seeks to rely on untimely allegations, the applicant must establish, pursuant to subsection 34(2) that the delay was incurred in good faith, otherwise the Tribunal has no jurisdiction to deal with the allegations. The Tribunal considered the meaning of good faith in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and stated at paras. 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). […] 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 inquiries about options for pursuing the alleged wrong.

11Under 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; and Furtney v. Toyota Motor Manufacturing Canada Inc., 2014 HRTO 1343.

12Having reviewed the Application and the applicant’s submissions, I find that it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction, and the applicant has not provided a good faith explanation for the delay in filing her Application.

13Assuming the applicant’s allegations fall under the Code, they relate to incidents that occurred in 2010, which is more than four years before the one year prior to February 16, 2016, when the Application was filed. As such I must dismiss the Application if the applicant does not provide good faith reasons for the delay.

14The only explanation the applicant provides for why her Application was filed out of time is that she could not focus for the first year after her son’s 2010 death, and that she then began contacting people in 2011 to try and seek redress to no avail. She does not explain why she was not able to file her Application during the time she began contacting people seeking other forms of redress, beginning in 2011. Simply pursuing other avenues does not constitute a good faith explanation for her delay in filing her Application.

15Having considered the applicant’s Application and her subsequent filing, I find that the applicant has not met the onus on her to demonstrate that the delay in filing this Application was “incurred in good faith” as required under s. 34(2) of the Code, and the Tribunal has no jurisdiction to deal with this Application.

16Accordingly, it is plain and obvious that the Application is outside the Tribunal’s jurisdiction as it was filed outside the one-year limitation period in section 34(1) of the Code and the applicant has not provided a good faith explanation for the delay.

order

17The Application is dismissed.