Diaz v. Ontario (Attorney General), 2017 HRTO 1091

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcos Diaz

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of the Attorney General, Durham Regional Police Services Board, Oshawa Courthouse and Taran Boodoosingh

Respondents

DECISION

Adjudicator: Leslie Reaume

Date: August 21, 2017

Citation: 2017 HRTO 1091

Indexed as: Diaz v. Ontario (Attorney General)

APPEARANCES

Marcos Diaz, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of the Attorney General, Respondent

Tamar Friedman, Counsel

Durham Regional Police Services Board, Respondent

Ian B. Johnstone and Angela J. Khoury, Counsel

1The applicant alleged that the respondents discriminated against him because of race and place of origin contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondents refused to assist him in bringing criminal charges against a former business partner.

2By Case Assessment Direction (“CAD”), the Tribunal directed to join the two Applications and directed that a preliminary hearing would be held to address whether the Applications should be dismissed for the following reasons: (1) on the basis that the Applications are untimely and/or (2) on the basis that there is no reasonable prospect that the Applications will succeed. In this case, the issue of prosecutorial immunity was also raised by the respondents. I conducted the preliminary hearing on June 6, 2017 and heard submissions from all parties on the outstanding issues.

3Interpretation services were provided although at the outset of the hearing the applicant indicated that he wished to rely on interpretation on an “as needed” basis. In the end, he did not require interpretation during the hearing. I also confirmed with the applicant that he had understood both the process and the submissions of the parties throughout.

4At the conclusion of the submissions I advised the parties that I would be dismissing the Application for lack of timeliness and providing written reasons as soon as possible. I took this step primarily to provide the applicant with an opportunity to ask questions and clarify the basis for my decision with the interpreter present.

Factual Background

5The applicant filed this Application on January 6, 2016 in response to events involving a former business partner and interactions with the respondents which occurred between 2008 and 2013.

6The applicant states that he discovered in 2008 that his business partner had been fraudulently forging his signature on business cheques, misappropriating funds and evading the Applicant’s efforts to obtain financial documents for the purpose of filing taxes.

7In 2009, the applicant presented his evidence of fraud to the Durham Regional Police who concluded that the matter was civil in nature and lacked a reasonable prospect of conviction. This evaluation was confirmed by an Assistant Crown Attorney. The applicant acknowledged during his submissions that the involvement of the Durham Regional Police ended at this stage.

8In 2010 the applicant attended a pre-enquette hearing hoping to lay private charges against his business partner. The Justice of the Peace who presided over the pre-enquette declined to issue process, gave reasons for that decision, and characterized the dispute as civil in nature.

9Later in 2010, the applicant retained a handwriting expert to prove that his signature had been forged on cheques.

10In 2013, the applicant commenced a new pre-enquette process, with the benefit of counsel, relying on the report of the handwriting expert as fresh evidence. The Crown did not oppose the applicant’s reliance on the three-year old report, but communicated to the Court the opinion that there was no reasonable prospect of conviction and indicated that should the Court issue process, the Crown expected that the charges would be withdrawn. The matter was adjourned and, according to a letter from the applicant’s counsel on August 13, 2013, the applicant felt there was no purpose in proceeding in light of the Crown’s position.

11The applicant sent a letter to the Attorney General on July 21, 2014, stating that he was the victim of identity fraud and complaining of mistreatment by the police and Crown Attorneys involved in his case. He did not raise any allegations of discrimination in this letter. His complaint was referred to the Director of Crown Operations who investigated, found no evidence of Crown misconduct and responded to the applicant on September 8, 2014. In May, 2015, the applicant responded that he disagreed with the results of the investigation. In July, 2015, the Director replied that the Attorney General has no power to direct police forces to investigate, but invited the Applicant to take any new information to the police.

12The applicant argued that the limitation period under the Code runs from the date of the last letter he received, which is within the one-year time period. He also argued that he has a good faith reason for the delay because he took what he considered to be appropriate steps to exhaust other avenues of redress before coming to the Tribunal.

Analysis

13Section 34(1) of the Code requires the filing of an application within one year of the “incident to which the application relates”. This means that the application must be filed with one year of the incident the applicant alleges to be discriminatory. Where there are a series of incidents which occur over time, the application is to be filed within one year of the last incident. To apply this to the applicant’s timeline, the last incident of discrimination against the Durham Regional Police occurred in 2009. The applicant therefore had until 2010 to file an application of discrimination against that respondent. The last allegation of discrimination against the remaining respondents arose, at the latest (and arguably sooner), on August 13, 2013, when the applicant decided not to pursue the pre-enquette process. The Tribunal has consistently found that the limitation period runs from the date of the discriminatory incident and not communications which are exchanged between the parties about that incident at a later date. (See: Abdul v. Inside Out Toronto, 2011 HRTO 824). To findotherwise would permit an applicant to revive old allegations by simply sending a communication to the party alleged to have engaged in discrimination.

14The Tribunal may extend the time for filing in the limited circumstances where 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. The meaning of this good faith provision was considered by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. The Tribunal found that applicants have an obligation to act with due diligence in pursuing a human rights claim, that they must show something more than simply an absence of bad faith and that there is a fairly high onus on applicants to provide a reasonable explanation for the delay.

15In this case, the applicant believes that the limitation period should be extended because he attempted to exhaust other forms of redress before filing with the Tribunal. Again, the Tribunal has consistently stated that this explanation is not sufficient to extend the time for filing with the Tribunal. (See: Cort v. Suncor Energy, 2010 HRTO 852).

16For the above reasons, I find that the applicant has failed to provide a reasonable explanation for his failure to file his Application within the one year time frame set out in s. 34(1) of the Code. As a result, it is not necessary for me to determine whether his delay caused prejudice to the respondents.

17Given these findings, I do not need to address whether the Application should be dismissed on the basis that it lacks a reasonable prospect of success or the issue of prosecutorial immunity, although that doctrine would clearly apply to the circumstances of this case.

order

18For the reasons set out above, the Application is dismissed.