Farhan Hossein v. Anna Towlson, 2017 HRTO 1246

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farhan Hossein

Applicant

-and-

Anna Towlson

Respondent

DECISION

Adjudicator: Laurie Letheren

Date: September 21, 2017

Citation: 2017 HRTO 1246

Indexed as: Hossein v. Towlson

1In his Application, the applicant alleged that the respondent discriminated against him because of his race, colour, place of origin, sex and age contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). The Application was filed on October 18, 2016.

2The applicant retained the respondent as his legal representative in a family law matter involving issues of custody and access. He alleges that while he was in the respondent’s office discussing his family law matter, the respondent said to him, “This is Canada, mothers get custody”. He further alleges that later when he was in the respondent’s office discussing access to his child, the respondent asked him, “How old are you?” when he advised her that he wanted access to his child on his birthday.

3In a Case Assessment Direction dated January 17, 2017, the Tribunal ordered that a summary hearing would be held to determine whether, based on the allegations made in the Application, the applicant had a reasonable prospect of demonstrating that the actions of the respondent breached his Code rights.

4A summary hearing teleconference was held on June 29, 2017. During the hearing I heard submissions from the applicant and the respondent and I reviewed the documents filed.

Delay

5In his Application, the applicant did not indicate the date of when the respondent allegedly made the comment, “This is Canada, mothers get custody”. During the summary hearing, the applicant indicated that the respondent made this comment during their initial interview in late 2014. The respondent reviewed her calendar during the summary hearing and confirmed that this initial consultation would have been in late 2014.

6Since the applicant alleges that the respondent made this comment in late 2014 and the Application was filed on October 18, 2016, the issue of the Tribunal’s jurisdiction to hear this allegation arose. The Application was filed more than one year after this comment was allegedly made. As a result, it falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith.

7Sections 34(1) and (2) of the Code provide:

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.

8These 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 may seek to pursue a human rights claim. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. The 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. The applicant must at a minimum provide a reasonable explanation for the delay. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay.

9The applicant explained that he delayed in filing his Application because the respondent was still representing him. He said it is his view that it generally does not make sense to make problems with your legal counsel. He thought that the client and lawyer should try to work things out on their own in order to avoid increased costs and complications for the relationship.

10I find that the applicant has not satisfied his onus of establishing a good faith explanation for his delay in filing the part of the Application that is based on this alleged comment. Attempts to avoid a conflict that might arise when the Application was filed or to resolve conflicts less formally do not amount to good faith reasons for delay. The Tribunal has consistently found that fear of retaliation or reprisal is not sufficient to establish good faith for the purposes of extending the one year limitation period. See Ellis v. Ontario Secondary School Teachers’ Federation, 2010 HRTO 2162 and James v. The Regional Municipality of Waterloo Police Services Board, 2016 HRTO 206. The Code provides protections from reprisal for filing an application and the Tribunal has found that the fact of an ongoing relationship with a respondent is not sufficient explanation to justify delay in filing an application. See: Poursina v. Southern Lights Co-operative Homes Inc., 2016 HRTO 1551. This aspect of the application is dismissed for delay. In light of this finding, it is unnecessary to determine whether this allegation should also be dismissed on the basis of having no reasonable prospect of success.

How old are you?

11The applicant alleges that during a settlement conference discussion with the respondent he wanted to request that he be assured access to his child on his own birthday. He states that when he raised this with the respondent she asked him how old he was.

12It was explained to the applicant during the summary hearing that in order to succeed on this allegation he must demonstrate how this comment had an adverse impact on him because of his age. When he was asked what impact this comment had on him he stated that he did not see how his age would be a factor in a decision about access to his child. He confirmed that he continued to retain the respondent as his legal counsel. When the respondent stated that she had made a motion to be removed as the counsel of record because she felt their solicitor client relationship had broken down, the applicant agreed that he had opposed this motion.

13The applicant did not indicate that the question about his age had in any way resulted in adverse treatment by the respondent. He did not allege that the respondent had asked to be removed because of his age or that while she was retained she had treated him adversely because of his age.

14For the purposes of the summary hearing I have presumed, without actually finding, that the respondent did make this comment. However, I find that the applicant has no reasonable prospect of demonstrating that his rights as protected by the Code were breached even assuming the comment was made by the respondent.

order

15This Application is dismissed.