Fuhgeh v. Ottawa Police Services Board, 2017 HRTO 1326

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Fuhgeh

Applicant

-and-

Ottawa Police Services Board and Francois Perron

Respondents

DECISION

Adjudicator: Yasmeena Mohamed

Date: October 6, 2017

Citation: 2017 HRTO 1326

Indexed as: Fuhgeh v. Ottawa Police Services Board

WRITTEN SUBMISSIONS

William Fuhgeh, Applicant

Self-Represented

Ottawa Police Services Board and Francois Perron, Respondents

David Patacairk, Counsel

Introduction

1This is an Application filed on July 31, 2012 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) that alleges discrimination in services because of race, colour, ancestry, place of origin, citizenship and ethnic origin.

2For the reasons set out below, the applicant’s request to reactivate his Application is denied and the Application is dismissed.

BACKGROUND

3By Interim Decision 2012 HRTO 2330, dated December 12, 2012, the Tribunal deferred the Application, pending the resolution of the applicant’s provincial offences proceeding before the Ontario Court of Justice (“Court proceeding”). The Interim Decision directed the parties’ attention to Rules 14.3 and 14.4 which outlined the procedure by which an Application may be brought back on before the Tribunal after the Court proceeding had concluded.

4On December 17, 2012, the applicant filed a Request for Order During Proceedings, seeking to reactivate the Application on the grounds that the Court proceeding was adjourned pending the conclusion of the human rights proceeding. The request to reactivate was denied in Interim Decision 2013 HRTO 296 and the Application remained deferred.

5Between October 2013 and June 2017 the Tribunal sent 4 letters to the applicant asking for an update about the status of the Court proceeding. By letters dated November 27, 2013, April 13, 2015 and July 6, 2016 the Tribunal confirmed that the Application remained deferred pending the conclusion of the Court proceeding. In each letter the Tribunal directed the parties' attention to its Rules 14.3 and 14.4 which describe the process for seeking reactivation and the timeline for doing so.

6The applicant filed a Request for an Order during Proceeding on June 30, 2017, in which he advised the Tribunal that the Court proceeding had concluded on November 8, 2016, and asked that the Application be reactivated.

7By Case Assessment Direction issued July 6, 2017, the Tribunal noted that the applicant had filed the request to reactivate the Application approximately 7 months after the conclusion of the Court proceedings. The applicant was directed to provide an explanation for his delay in filing the reactivation request within the timeframe required under Rule 14.4.

8The applicant provided the following reasons for the delay:

a. Following the November 8, 2016 Court decision, he had contemplated an appeal of the decision but abandoned it for financial reasons.

b. In December 2016 to January 2017, he was out of the country to address a private family issue in the Netherlands.

c. From January 2017 to the filling of his request to reactive, he was confronted with a tumultuous separation proceeding, which took him off his normal work routine and schedule.

d. He honestly forgot to request the reactivation of his deferred Application as he was completely carried away by the separation proceeding and efforts to transition from one home to another, arrange access and day care for his children.

e. He only remembered to reactivate, when he was reminded by the Tribunal to update the status of his provincial offences proceeding.

9The respondent objects to the reactivation of the Application on the grounds that the applicant has failed to demonstrate a good faith reason for the significant delay and it will suffer prejudice as a result of the delay.

ANALYSIS AND DECISION

10As indicated above, the Court decision was released on November 8, 2016 and the applicant’s Request to Reactivate was filed on June 30, 2017, well beyond the time frame prescribed in Rule 14. Rule 14.4 of the Tribunal’s Rules of Procedure provides as follows:

14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.

11The Tribunal has discretion to relieve against the strict application of the 60 day time limit. The Tribunal explained in Hudson v. Kingston (City), 2013 HRTO 2006, that pursuant to its Rules, the Tribunal has the authority to lengthen or shorten time limits in the Rules, or waive or vary their strict application in order to ensure the fair, just and expeditious resolution of matters before it. See Rules A4.2 and 1.7 and see also Oliver v. South Simcoe Police Services Board, 2012 HRTO 863. Rule A3.2 also states that the Rules are not to be interpreted in a technical manner.

12In Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal specifically discussed on what basis the time limit for reactivating a deferred application might be extended if there was “ good reason” to relieve against the time limits, namely whether the delay was incurred in good faith and whether any substantial prejudice would result if the time limit was extended. These factors are similar to those considered whether to exercise discretion to deal with an otherwise untimely application under section 34(2) of the Code.

13As the Tribunal has noted on many occasions good faith means more than the absence of bad faith and requires the applicant to provide the Tribunal with a reasonable explanation as to why he\she did not pursue his\her rights under the Code in a timely manner.

14The applicant says that following the release of the Court decision he honestly forgot to file a Request to reactivate his Application within the time frame prescribed under Rule 14.4 because he was out of the country for approximately one month addressing private family issues and then embroiled in separation proceedings with resultant child care issues. The applicant alleges that he only filed his Request for reactivation after he was reminded by the Tribunal’s letter requesting a status update of the Court proceeding.

15The delay here is a lengthy one of 7 months beyond the time limit contained in the Tribunal’s Rules. Although there is no evidence of bad faith, I am not satisfied that the applicant’s explanations meet the test for good faith, considering that he was given numerous reminders by the Tribunal regarding the reactivation process under Rule 14.4 and his own knowledge of the process. Given the length of the delay in this case it is incumbent on the applicant to provide a reasonable explanation for the delay. The reality is as the applicant conceded that he forgot about this matter entirely and was only reminded of it when he received correspondence from the Tribunal. In my view this is not a reasonable explanation for the delay.

16For all of the above reasons, including the length of the delay, I am not satisfied that the applicant has provided a good faith explanation for his delay and therefore I refuse to exercise my discretion to relieve against the requirement to request reactivation within 60 days of the conclusion of the other proceeding for which this Application had been deferred.

17In light of this finding, it is not necessary for me to address the issue of whether the respondent has suffered prejudice as a result of the delay.

Order

18The applicant’s request to reactivate is denied. The Application is dismissed.