Martin v. Orillia (City), 2017 HRTO 1191

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Martin

Applicant

-and-

City of Orillia and Ontario Provincial Police

Respondents

DECISION

Adjudicator: Keith Brennenstuhl

Date: September 12, 2017

Citation: 2017 HRTO 1191

Indexed as: Martin v. Orillia (City)

APPEARANCES

Andrew Martin, Applicant

Self-represented

City of Orillia, Respondent

Michael Miller, Counsel

Ontario Provincial Police, Respondent

Lynette D’Souza, Counsel

Introduction

1This Application alleges discrimination with respect to goods, services and facilities because of disability and association with a person identified by a prohibited ground of discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

Chronology

2The Ontario Provincial Police (“OPP”) attended on the residence of the applicant located in the City of Orillia (the “City”) on May 19, 2012, and executed a search warrant under the Controlled Drugs and Substances Act.

3On May 20, 2012, the OPP, pursuant to established protocols, advised the City that the OPP had investigated and dismantled an illicit marihuana grow operation at the applicant’s address.

4On May 22, 2012, the City performed a Building Code inspection at the applicant’s address and on June 1, 2012 the City issued an order to Remedy an Unsafe Building which required certain itemized deficiencies to be corrected by June 28, 2012. The Scotia Mortgage Corporation (“Scotia”) was copied on the Order as it had a security interest in the property.

5On September 21, 2012 the Unsafe Order was lifted by the City as the applicant had complied with the directives set out in the Order and on September 21, 2012 the City informed Scotia of this fact.

6The applicant engaged in legal proceedings with Scotia with respect to his mortgage which concluded with Scotia repossessing his home on April 29, 2014 and selling his home on April 29, 2014.

Procedural History

7The Application was filed with the Tribunal on November 4, 2015.

8On December 1, 2015 the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) as it appeared to be outside the one-year limitation period prescribed by section 34(1)(a) of the Code and therefore not within the Tribunal’s jurisdiction.

9By email dated December 15, 2015, the applicant made submissions to the Tribunal requesting that his Application not be dismissed for delay because the delay was incurred in good faith. He presented three grounds to support his good faith argument: disability; there was a series of incidents under section 34(1)(b) of the Code; and the “discoverability of damages.”

10On January 14, 2016, the Tribunal issued a Case Assessment Direction (“CAD”) scheduling a hearing on May 11, 2016 to consider whether the Application should be dismissed for delay. At this time the respondents were advised of the Application and advised that they were not required to file Responses at this time.

11By Notice of Preliminary Hearing dated February 9, 2016, the Tribunal Scheduled a Preliminary Hearing regarding the NOID. On May 2, 2016, the Applicant filed a note from his medical doctor (“MD”) dated April 15, 2016 which stated in part:

This patient suffered significant disability and had not been able to deal with his HRTO claim between the dates of May 22, 2012 and December 15, 2015.

12By CAD dated May 6, 2016, the Tribunal cancelled the preliminary hearing and directed the respondents to advise whether they accepted the MD’s note for the truth of its content and if not, if they were seeking production of the applicant’s medical records and if they sought to cross-examine the MD.

13The respondents confirmed that they did not accept MD’s medical note, that they sought production of the applicant’s medical records and sought to cross-examine MD.

14By CAD dated February 13, 2017, the Tribunal directed that an in-person preliminary hearing be held to determine whether the Tribunal should dismiss the Application for delay.

15On March 10, 2017, the applicant disclosed his medical file to the respondents.

16By Notice of Preliminary Hearing dated May 1, 2017, the preliminary hearing was scheduled for July 11, 2017.

17The preliminary hearing proceeded on July 11, 2017 and both the applicant and MD testified during the hearing.

New evidence

18In his written closing submissions the applicant introduced new evidence, both documents and facts, that were not previously submitted at the preliminary hearing. Additionally, the applicant raised issues in his submissions that are not relevant to the purpose of the preliminary hearing. The respondents have objected to the introduction of new evidence in closing submissions and submissions that are not relevant to the scope of the preliminary hearing.

19It is not proper to introduce new evidence during the course of closing submissions and as such I have not considered any new evidence offered in the applicant’s closing submissions. To do so would be procedurally unfair and prejudicial to the respondents. As well, I have not considered any closing submissions that are not relevant to these proceedings.

Decision

20For the reasons that follow, I find that the Application must be dismissed because the applicant has failed to provide a good faith explanation for the delay in filing his Application.

Analysis

21Section 34 of the Code provides:

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.

22These provisions have been found to be mandatory, subject to section 34(2). The 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 seek to pursue a human rights claim. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

23This Application is clearly out of time. In his testimony, the applicant conceded that, with respect to the OPP, his Application should have been filed between May 19, 2012, the day the OPP executed its search warrant, and May 19, 2013, one year following the incident. With respect to the City, the last alleged incident of discrimination was the issuance of the Unsafe Order on May 22, 2012. In either case, more than three years elapsed before the applicant filed his Application on November 4, 2015 naming the OPP and the City as respondents. Thus, it falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith.

24The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was “incurred in good faith” the applicant must show something more than the absence of bad faith and must provide a reasonable explanation for the delay.

Disability

25Essentially, the applicant posits that his experience with the OPP and the City was so traumatic that he did not have the emotional or mental capacity to make his Application within the limitation period and that it was not until November, 2015, that he was fit enough to file his Application. In his submissions the applicant wrote:

It should be noted that although Andrew suffers from chronic depression and anxiety, the events of May 19, 2012 and after relating to the original events, caused Andrew severe stress and greatly exacerbated his condition.

The time between May 19, 2012 and the filing of this application was a period of extreme suffering for Andrew. To have the major institutions of the OPP, City of Orillia and the Scotiabank act against Andrew caused great fear and heightened anxiety. This would likely be true even for a healthy person.

26The applicant asserts that his incapacity was a disability and that this contributed to the delay in filing the Application. Assuming without deciding that the applicant is a person with a disability, this alone fails to meet the standard required by the Tribunal’s case law.

27In Dionne v. Toronto (City), 2011 HRTO 317, (approved by the Divisional Court in James v. York University and the Human Rights Tribunal, 2015 ONSC 2234), the Tribunal commented on what was required of an applicant seeking to establish a good faith explanation on the basis of disability:

While the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see for example, Reid v. Ontario March of Dimes, 2008 HRTO 2207; Downer v. Little & Jarrett, 2010 992; and, Savage v. Toronto Transit Commission, 2010 HRTO 1360.

28In this case, there is no such evidence. MD’s note, referred to above, suggested that the applicant could not “deal with his HRTO claim” for almost three years. This contrasts with the applicant’s medical file which provided no evidence that the applicant was so debilitated during the limitation period that he could not file his Application with the Tribunal.

29A month prior to the OPP’s execution of the search warrant at the applicant’s home, the applicant attended MD’s office complaining of hearing issues, for which he was referred to a specialist. During that visit, the applicant also reported that he occasionally experienced panic attacks. There were no notations to suggest that the applicant was under extreme stress or depressed or debilitated in any way as a result of his anxiety.

30MD prescribed Ativan, 1 tablet a day for 30 days, with two refills, for a total of 90 tablets. There was no evidence that the applicant renewed the Ativan prescription after the 90 days or at any point during the limitation period.

31At the preliminary hearing, MD testified that Ativan did not affect the daily functioning of individuals taking it. Further, he testified that although the applicant suffered from panic attacks, severe panic attacks lasted about 20-30 minutes and there was nothing to suggest that panic attacks prevented the applicant from continuing on with his daily functioning.

32The applicant visited MD on September 17, 2012 because he was experiencing back pain. The applicant was prescribed a medication for pain and arthritis. There was no notation by MD on this day that the applicant was under extreme stress, depressed anxious or debilitated in any way as a result of these conditions. Indeed, MD testified that during this visit there was nothing demonstrating that the applicant was incapable of managing his day-to-day affairs at that time.

33The next time the applicant saw MD was on September 26, 2014, months after the limitation period expired. The reason for this visit was to address an eye infection. During this visit MD recorded for the first time that the applicant reported financial stress and noted that the applicant was generally unhappy. He also noted that the applicant was not depressed, was not suicidal and that he refused medication and psychiatric consultation. MD testified that it was after this visit that the applicant’s anxiety increased and his depression worsened.

34MD testified that during the limitation period the applicant did not experience any issues with communication, cognition or memory.

35MD testified that he had no knowledge of the HRTO process or of what was required to complete and file a human rights application at the time he wrote that the applicant “had not been able to deal with his HRTO claim.”

36I find that there is no medical evidence that the applicant’s disability was so debilitating so as to prevent the applicant from pursuing his rights under the Code in a timely manner.

37In my view, the applicant’s activities during the limitation period demonstrate quite conclusively that he was not debilitated. The applicant testified that he acted to ensure compliance with the Building Code and that he consulted a lawyer regarding the Unsafe Order. The applicant’s testimony was that he had also consulted with counsel with respect to applying for a medical license to possess marijuana; that on June 4, 2012 he authorized MD to provide a copy of his medical file to counsel; and, that in July 2012 he applied for a medical marihuana license which required him to fill out a great deal of paperwork. In July, 2012 the applicant made a complaint to the Canadian Human Rights Commission.

38In September 2012 he filed a privacy complaint against the City with the Information and Privacy Commissioner of Ontario. He wrote a page-and–a–half explanation detailing the complaint. The Applicant agreed that the allegations in the complaint against the OPP were the same allegations contained in his Application to the Tribunal. During cross-examination by both counsel for the City and the OPP, the applicant was unable to explain why he was able to file his privacy complaint in September 2012, but not able to file his human rights Application until November 2015.

39During the month’s following the execution of the search warrant, the applicant corresponded with Scotia’s legal counsel. The applicant’s evidence was that he did not have a lawyer to deal with Scotia but that he worked on the issues with Scotia himself including negotiations with the bank’s Ombudsman.

40The applicant testified that during the limitation period he acted as a caregiver for his common-law spouse and assisted her in completing disability applications during the limitation period.

41I find that the applicant was both mentally and physically capable of carrying out his day to day responsibilities during the limitation period and in my view, not in any way debilitated from pursing a human rights application in a timely manner.

Series of incidents

42The applicant suggests that the OPP’s conduct represented a series of discriminatory incidents within the meaning of section 34(1)(b) of the Code and that this justifies the late filing of the Application. He explains in his final submissions:

On the evening of May 19, 2012 the OPP were in possession of documentation indicating permission from a Doctor for the use of marijuana. The OPP confirmed that they had contacted Health Canada and that Health Canada was in possession of this information as well. From this moment on errors were made as the police made an illegal entry to the home, exercised a search warrant against a documented disabled person and seized the medication of that person.

43However, these allegations all relate to the OPP’s execution of the warrant on May 19, 2012 which is the incident at issue in the Application. The execution of the warrant is a discreet incident and does not form a part of a “series of incidents” within the meaning of section 34(1)(b) of the Code. Accordingly, the limitation period started on May 19, 2012 and expired a year later. The applicant was required to file his Application under section 34(1)(a) of the Code during this limitation period and he did not.

Discoverability of damages

44In his Application, the applicant stated that after he sold his house in spring 2015, the damages he had suffered from the alleged incident of discrimination became evident. The applicant further wrote that “the date of this filing is due to the discoverability of the damages.” He indicates that “[the] most valid reason for the delay is that the home was not sold until 2015 so it would be impossible to file a complaint until the full extent of the discrimination was realized.”

45In my view, the applicant’s discovery of damages beyond the limitation period is not a good faith reason for incurring delay under section 34(2) of the Code.

46In Klein v. Toronto Zionist Counsel, 2009 HRTO 241 the Tribunal found at para. 23:

The discoverability doctrine may provide an exception to a statutory limitation period in order to ensure fairness to parties who simply cannot know within the stipulated timeframe that they have a case. It does not exist to allow an aggrieved party to delay making a claim in order to gather evidence that confirms their suspicions or buttresses their case.

47In other words, the discoverability doctrine refers not to evidence that would strengthen a claim, but to a situation when a party cannot know within the limitation period that they have a potential claim under the Code. In my view, the applicant does not assert that he did not discover his human rights claim until 2015, but only he did not discover the quantum of damages arising from his allegations until 2015.

48The discoverability of damages is not a recognized good faith explanation for a delay in filing a human rights application.

Conclusion

49The applicant has not established that the delay in filing his Application was incurred in good faith, and as such it is not necessary for the Tribunal to consider whether the respondents would have suffered substantial prejudice.

50In the absence of a good faith explanation for the delay in filing the Application, the Tribunal does not have the jurisdiction to consider the Application pursuant to section 34 of the Code.

51Accordingly, for these reasons the Application must be dismissed.

Order

52The Application is dismissed.