Meiri v. York Region District School Board, 2016 HRTO 881

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Smadar Meiri Applicant

-and-

York Region District School Board and Richard Williamson Respondents

DECISION

Adjudicator: Keith Brennenstuhl Date: July 4, 2016 Citation: 2016 HRTO 881 Indexed as: Meiri v. York Region District School Board

APPEARANCES

Smadar Meiri, Applicant Self-represented

York Region District School Board and Richard Williamson, Respondent Evelyn E. Dormer, Counsel

Introduction

1This Application, filed with the Tribunal on October 30, 2015, alleges discrimination with respect to employment because of race, ancestry, ethnic origin and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Decision is to determine whether the Application is within the jurisdiction of this Tribunal.

3The applicant is a teacher who was employed by the respondent School Board. The narrative of the Application details incidents that occurred between 2006 and October, 2014. On the completion of her teaching contract in June 2006 the applicant requested a written reference from the individual respondent who was her supervising principal. A decision was made, consistent with School Board policy, not to give a reference. Apparently, without the reference, the applicant’s attempts to find other teaching positions were hampered. In October 2014, the applicant again asked the personal respondent for a reference which she allegedly needed for a prospective teaching position. Allegedly the personal respondent again refused to provide a reference.

4On October 30, 2015 the applicant filed her Application alleging discrimination. In answer to the question on the Tribunal Application of when the last event of discrimination happened, the applicant filled in October, 2014.

5On December 22, 2015, the Tribunal’s Registrar issued a Notice of Intent to Dismiss (“NOID”), which informed the applicant that her Application appeared to be outside this Tribunal’s jurisdiction for the following reason:

• The Application was filed more than one year after the last incident of discrimination described in your Application and you do not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law [s.34(1)].

6On January 20, 2016 the applicant filed written submissions in response to the NOID.

7On April 20, 2016 the Tribunal issued a Notice of Preliminary Hearing by conference call to deal with the issue of delay. The hearing took place on June 20, 2016.

analysis

8The statutory deadline for filing an Application with the Tribunal and the circumstances under which a late Application will be accepted are set out in ss. 34(1) and (2) of the Code:

34(1) If a person believes that any of his or her rights under Part 1 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.

9The applicant argues that the last incident of discrimination occurred when the personal respondent again refused to give her a reference in October 2014. Presumably, in the applicant’s view, the alleged violation of the Code would recur every time her request for a reference from the personal respondent was denied.

10Assuming but without deciding, that the School Board’s policy in not providing references is discriminatory, does the continuing effect of the policy constitute a new act of discrimination whenever a reference is requested?

11In my view it does not.

12I am of the view, the last incident of discrimination, (although the applicant has not linked any of her allegations to the grounds pleaded) was June, 2006 when the request for a reference was first denied in accordance with the School Board’s policy. I cannot accept that the repeated denial of a request for a reference in October 2014 is a separate or further act of discrimination or a separate contravention of the Code.

13In Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (“Visic”), at para. 45, the Ontario divisional Court adopted the test for a “continuing contravention” applied by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission), (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117, 5 C.H.R.R. at para. 19:

To be a ‘continuing contravention’, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects re consequences

14In Visic, the Divisional Court upheld a decision of the Ontario Human Rights Commission (the “Commission”) which declined to deal with a complaint on the basis that it had been filed beyond the time limit then in the Code. The Commission did not accept the complainant’s argument that a university’s repeated refusal to change her official transcript, which refusal was claimed to be discriminatory, extended the limitation period.

15In Mafinezam v. University of Toronto, 2010 HRTO 1495, this Tribunal adopted the test in Visic and stated at para. 13 that “the continuing effects of an act of alleged discrimination do not in themselves constitute further acts of discrimination.” In that case, the respondent refused to allow the applicant to attend events at a centre at the university on an ongoing basis after issuing a trespass notice. The Tribunal found at para. 14 that the continuing effect of the trespass notice did not constitute further incidents of discrimination or a series of incidents with the meaning of s. 34(1).

16The test in Visic has also been adopted by the Tribunal in Mordares v. Professional Engineers of Ontario, 2011 HRTO 1606 and Lloyd v. Wellington Catholic School Board 2011 HRTO 258.

17In my view, the facts of this application are similar to those in the cases cited above and I find that the continuing effect of a policy not to give references does not constitute further incidents of discrimination or a series of incidents within the meaning of s. 34(1). If it did, then there would effectively be no time limit on filing the Application.

18Turning to the issue of delay in filing the Application. The Tribunal has ruled in dozens of cases on the one-year limitation period, and in particular what is required for an applicant to establish that a delay beyond the one-year period is incurred in good faith. It is clear that the Tribunal has imposed a heavy onus on applicants who wish to pursue their cases despite filing beyond the one-year mark.

19In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at para. 24 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 are 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.

20The applicant’s one-year time limit began running after the June 2006 refusal to provide the applicant with a reference. It is clear there was nothing preventing the applicant from pursuing her human rights concerns at any time within a year of June 2006. She indicated that she had many things going on, that she is a single parent, that she was looking for another position and that everyone has “different prerogatives”. In my view, this is not a reasonable explanation for the applicant’s failure to file this Application within the limitation period. I cannot conclude that her delay was incurred in good faith.

21Given this conclusion, there is no need to address the issue of substantial prejudice.

22For the reasons above, the Application is dismissed.