Hunter v. YMCA, 2017 HRTO 1546

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lamont Hunter Applicant

-and-

YMCA Respondent

DECISION

Adjudicator: Douglas Sanderson Date: November 23, 2017 Citation: 2017 HRTO 1546 Indexed as: Hunter v. YMCA

WRITTEN SUBMISSIONS

Lamont Hunter, Applicant Self-represented

1This Application, filed on August 9, 2016 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods, services and facilities. The applicant alleges that one of the respondent’s members made an explicit sexual advance to the applicant at the respondent’s premises on June 4, 2014.

2By letter dated January 24, 2017 the Tribunal provided the applicant with a Notice of Intent to Dismiss the Application (the “Notice”) because:

the Application was filed more than one year after the last incident of discrimination described in your Application and you do not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law [s.34(1)]. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of “good faith”.

The HRTO does not have the power to consider claims filed more than one year after the last incident of discrimination or the last in a series of incidents of discrimination unless the delay in filing was incurred in good faith and no substantial prejudice will result to any person affected by the delay [s.34(1)]. You do not appear to have cited facts that constitute “good faith” within the meaning of the HRTO’s case law. See for example Thomas v. Toronto Transit Commission, 2009 HRTO 1582 and see for example Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 for a discussion of “good faith”.

3In the Notice, the Tribunal directed the applicant to file written submissions addressing these issues by February 22, 2017. The applicant asked for an extension to the deadline and the Tribunal granted an extension to March 24, 2017. On March 21, 2017, the applicant filed materials to provide information that was missing from the Application. The applicant did not make any submissions regarding his delay in filing the Application.

Analysis and Decision

4Section 34 of the Code provides as follows:

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.

5The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year 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.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.

6The Tribunal has stated that ignorance of one’s rights may in some circumstances amount to good faith, but the applicant must also establish that he had no reason to make inquiries about his rights. See, for example, Ramnath v. Peel Regional Police, 2010 HRTO 548 at paragraphs 12 and 14, and Thomas v. Toronto Transit Commission, 2009 HRTO 1582.

7At this stage in the processing of the Application, the Application may be dismissed if it is plain and obvious that it was not filed in accordance with section 34 of the Code. The one year time limit set in section 34 is a mandatory limitation period and the Tribunal does not have jurisdiction to deal with application that do not meet the requirements of that section.

8The applicant alleges that he was subject to a sexual advance on the respondent’s premises in June 2014. He did not file this Application until August 9, 2016, more than one year later. The only explanation offered by the applicant (in the Application) was that he did not know he could commence a legal claim against the respondent. The applicant filed the Application after he consulted a lawyer regarding a different incident. In other words, the applicant was ignorant of his rights under the Code. The applicant clearly found the alleged sexual advance to be offensive and worthy of redress. In these circumstances, the applicant had every reason to inquire about his rights, but chose not to. The applicant was obviously capable of such inquiries, since he sought legal advice regarding another matter. In my view, it is plain and obvious that this Application was filed after the expiry of the limitation period set in section 34 of the Code and that the applicant has not provided a good faith explanation for the delay.

Order

9The Application is dismissed for delay.