Makhlouf Chabane v. Toronto Police Services – Police Officers Division 51, 2016 HRTO 651

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Makhlouf Chabane

Applicant

-and-

Toronto Police Services – Police Officers Division 51

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: May 13, 2016

Citation: 2016 HRTO 651

Indexed as: Chabane v. Toronto Police Services – Police Officers Division 51

WRITTEN SUBMISSIONS

Makhlouf Chabane, Applicant

Self-represented

1The purpose of this Decision is to decide whether the Tribunal should dismiss the Application on a preliminary basis because it is outside the Tribunal’s jurisdiction.

2On January 11, 2016, the applicant filed an Application with the Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3In section 7(c) of the Application (“What was the date of the last event?”), the applicant wrote: “01/01/2015”. In section 7(d) (“If you are applying more than one year from the last event, please explain why:”), he wrote:

There was a delay in filing this application because my personal computer system has been malfunctioning and this prevented me from accessing your website continuously and allowing me to finish completing the forms for submission.

4The applicant also attached several documents, which show that he pursued a complaint with the Toronto Police Service (“TPS”) and the Office of the Independent Police Review Director (“OIPRD”) between January and May 2015.

5The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

6On February 19, 2016, the Tribunal issued the applicant a Notice of Intent to Dismiss (“NOID”), which informed him that the Application appears to be outside of the Tribunal’s jurisdiction because it was filed outside the one-year time limit in s. 34(1) of the Code. The Tribunal directed the applicant to provide written submissions in response to this issue.

7On March 21, 2016, the applicant filed written submissions, which stated that his Application was filed late because he was sick and had technical issues when he was filing his Application online.

8Rule 13.1 of the Tribunal’s Rules of Procedure provides that the Tribunal may dismiss an application that is outside the jurisdiction of the Tribunal. Rule 13.2 further states that where it appears to the Tribunal that an application is outside its jurisdiction, it shall, prior to sending the application to the respondent, issue a NOID. The NOID is only sent to the applicant, and requires him or her to file written submissions. Under 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 Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la fonction publique du Canada, 2008 HRTO 58; and Hotte v. Ontario (Finance), 2008 HRTO 63.

9Given that the last alleged incident of discrimination occurred on January 1, 2015, but the Application was not filed until January 11, 2016, I find that the Application was filed 10 days outside the one-year time limit in s. 34(1) of the Code.

10The main issue to determine is whether the applicant’s delay in filing his Application was incurred in good faith.

11In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:

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….

See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20; and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.

12In my view, it is plain and obvious that the applicant’s delay in filing his Application was not incurred in good faith.

13I do not accept that the applicant’s delay in filing his Application was incurred in good faith because he was sick. Although the Tribunal accepts that a delay may be incurred in good faith because of an applicant’s disability, it has consistently ruled that it requires evidence that a disability was so debilitating that it prevented the applicant from pursuing his or her legal rights under the Code. See Dionne v. Toronto (City), 2011 HRTO 317 at para. 9, and James v. York University, 2013 HRTO 633, reconsideration denied, 2014 HRTO 380, upheld by the Divisional Court, 2015 ONSC 2234. The applicant simply made a bald assertion. There is no evidence – medical or otherwise – that his illness rendered him incapable of filing the Application within the one-year time limit in s. 34(1) of the Code. Furthermore, between January and May 2015, he was pursuing a complaint with the TPS and the OIPRD, which contradicts his suggestion that he was unable to file his human rights Application because he was sick.

14I also do not accept that the applicant’s delay in filing his Application was incurred in good faith because he had difficulties filing his Application online on his personal computer. There are numerous alternatives to filing an Application online, including attending at the Tribunal, filling out the Application by hand, and filing it in-person. In the circumstances, I find that the applicant failed to act with all due diligence to ensure that his Application was filed in a timely manner.

15In view of my finding that the applicant’s delay in filing his Application was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

16The Application is dismissed.