HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vazgen Gyulkhandanyan
Applicant
-and-
Ryerson University
Respondent
DECISION
Adjudicator: Bruce Best
Date: July 26, 2016
Citation: 2016 HRTO 985
Indexed as: Gyulkhandanyan v. Ryerson University
WRITTEN SUBMISSIONS
Vazgen Gyulkhandanyan, Applicant
Self-represented
Introduction
1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The Application indicated that the last incident of discrimination occurred in February 2011, some 5 years before the Application was filed on March 22, 2016. The explanation provided in the Application for the delay was that the applicant was involved in “inter-university legal processes.”
2On April 13, 2016 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appeared to be out of time. The NOID required that the applicant provide some missing information from the Application form, and provide further written submissions on why the Application should not be dismissed for delay. The NOID noted that the applicant had not cited any facts that may constitute good faith within the meaning of section 34(2) of the Code.
3The applicant provided further information on May 9, 2016, but did not address the issue of delay. Following a further letter from the Tribunal, the applicant filed submissions on July 21, 2016 indicating that she had filed three internal appeals with the respondent, the first in January 2011, the second in February 2011, and a third in 2015. She indicated that she believed that only after the third appeal had been decided was she able to pursue the matter at the Tribunal, though she has not provided any indication as to why she believed this to be the case. She further claims she had limited financial means, and that she had consulted a lawyer in 2014 with respect to the issues in the Application. She also indicates that she had health issues, from which she was recuperating from 2011 to 2014.
Jurisdiction
4Under 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. Sections 34(1) and (2) of the Code provide as follows:
Application by person
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.
Late applications
(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.
5The Tribunal has held that failure to meet the required timelines means the Tribunal does not have jurisdiction to hear an application. The limitation period is consistent with the objective that human rights claims should be dealt with expeditiously. Thus, the Code requires that an individual who wishes to pursue a human rights matter at the Tribunal to act with all due diligence and file their application within one year of the incidents giving rise to the claim. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
6The applicant acknowledges that the Application was filed more than 5 years after the incidents that initially gave rise to it. In order for the Tribunal to have jurisdiction, the applicant must be able to point to further incidents in a series for the purposes of s.34(1)(b), or must be able to point to circumstances that would constitute “good faith” under s.34(2).
Series of Incidents
7As noted, the incidents that form the basis of the Application occurred in 2010 and 2011. The applicant indicated that she waited until the December 2015 refusal of her academic appeal to file this Application with the Tribunal. However, in order to be a separate incident of discrimination that could extend a series, the incident must be able to, on its own, support a finding of discrimination; there is a distinction between an incident of discrimination and the continuing effects of an incident or incidents. See Garrie v. Janus Joan Inc., 2012 HRTO 1955, at paras. 38-43.
8The Tribunal has generally held that pursuing internal appeals, including academic appeals, would not be considered separate incidents of discrimination that could extend the time limits under s.34(1) of the Code. See Huo v. University of Western Ontario, 2012 HRTO 198 (“Huo”), at para. 13.
9I see no reason in this case to depart from the Tribunal’s case law on this issue. The applicant has not provided any information which would point to any incidents of discrimination beyond 2011. In my view, it is plain and obvious that the Application is not timely for the purposes of s.34(1) of the Code.
Good faith
10The second question is whether the applicant has raised any circumstances that could support a finding that the delay was incurred in good faith for the purposes of s.34(2) of the Code. As noted, the applicant has made it clear that the reason for the delay was that she was waiting for the outcome of her academic appeals.
11The Tribunal case law is, however, also clear that pursuing other avenues to address the issues is not in and of itself sufficient to establish “good faith” for the purposes of s.34(2) of the Code. This again includes a number of cases where an individual has been pursuing academic appeals. See Huo at para. 18, Richards v. Ryerson University, 2015 HRTO 1210 at para. 22, and Peixoto v. University of Ottawa, 2013 HRTO 150 at para. 39.
12As noted, the applicant also indicated that she was dealing with health issues from 2011 to 2014. The Tribunal has found that “good faith” may be established where the nature of the applicant’s disability is closely connected to the failure to file an application on time. See Lutz v. Toronto (City), 2010 HRTO 769, at paras. 15-19, and Kelly v. CultureLink Settlement Services, 2010 HRTO 977, at paras. 61-72. However, even assuming that the applicant had disability-related reasons which prevent her from filing an application between 2011 and 2014, she has provided no indication that her health prevented her from pursuing the matter after that time period. As noted, the Application was not filed until March 22, 2016, at least a year later.
Decision
13The Application is clearly out of time under s.34(1) of the Code, as the last incident of discrimination claimed was in February 2011. The applicant has further not pointed to any circumstances that could be found to constitute “good faith” to extend the limitation period for the purposes of s.34(2) of the Code. Even if she were able to establish that she was unable to file between 2011 and 2014 because of her disability, she has provided no basis to explain the further delay between 2014 and March 2016.
14For all of these reasons I find that it is plain and obvious that this Application is outside of the jurisdiction of the Tribunal under s.34 of the Code, and accordingly it is dismissed.
Dated at Toronto, this 26th day of July, 2016.
“Signed By”
Bruce Best
Vice-chair```