Denis Barchet v. City of Greater Sudbury, 2017 HRTO 1563

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denis Barchet Applicant

-and-

City of Greater Sudbury Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: November 27, 2017 Citation: 2017 HRTO 1563 Indexed as: Barchet v. Greater Sudbury (City)

WRITTEN SUBMISSIONS

Denis Barchet, Applicant Shawn Mason, Paralegal

City of Greater Sudbury, Respondent Michel R. Carré, Counsel

Introduction

1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code") on September 6, 2016, alleging discrimination on the basis of disability in services.

2A hearing is scheduled for January 23 and 24, 2018 in Sudbury. This Interim Decision addresses several procedural issues raised by the parties.

Background

3The respondent has several different transit passes for its municipal transit system. These including monthly colour-coded passes, offered at various different rates, including "Adult", "Senior", "Student", and "Special". The latter pass is, according to the respondent, for children and for individuals who qualify because they are in receipt of certain disability benefits or pensions.

4The applicant claims that the pass was changed in 2011, and that it now specifically labels a user as being a person with a disability in receipt of social assistance. He claims that when he goes to purchase or use the "Special" pass, he is publically humiliated and marginalized. Amongst the remedies he is seeking is to have a pass that does not readily identify the holder as a person with a disability.

5The respondent denies that the "Special" bus pass specifically identifies the holder as being in receipt of any particular disability benefit, and further denies that its bus pass system is in any way marginalizing, degrading, or humiliating.

Preliminary issues

6The respondent raises two preliminary issues. First, it argues that the preferential transit pass rates is a special program for the purposes of s.14 of the Code, and is therefore not discriminatory. Second, the respondent argues that the Application is untimely under s.34 of the Code. It notes that the applicant first raised his concerns respecting the bus pass in 2011, but that this Application was not filed until September 2016. The applicant has also requested that the respondent provide certain particulars. I will address each of these issues in turn.

Special Program

7Section 14(1) of the Code reads as follows:

A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

8I do not see that s.14 has any application in the present case. The law respecting s.14 was addressed by the Tribunal in Ball v. Ontario (Community and Social Services), 2010 HRTO 360 at paras. 110-124, and Abbey v. Ontario (Community and Social Services), 2016 HRTO 787, at paras. 137-143, both citing Ontario (Human Rights Commission) v. Ontario (1994), 1994 CanLII 1590 (ON CA) ("Roberts"), at p. 407, where the Court of Appeal held:

In this case, the Board of Inquiry and the Divisional Court erred in law in finding that the inquiry ends when "special program" status is proven. The inquiry should have considered: (1) whether a particular provision or limitation of a special program results in discrimination against a person or group with the disadvantage the program was designed to benefit, and (2) whether the provision or limitation is reasonably related to the scheme of the special program.

9This Application is not a challenge to the respondent's decision to offer a reduced rate transit pass to certain groups. If it were, it may well be protected under s.14(1). The allegation is, rather, that the specific manner in which the program has been implemented results in discrimination against individuals, such as the applicant, for whom the program was designed to benefit.

10The Tribunal will have to determine, then, as in Roberts, whether this allegation can be substantiated. The Application, however, does not fall within the scope of s.14(1), and the respondent's request to dismiss the Application under this section is therefore refused.

Delay

11The next issue is whether the application is timely. Sections 34(1) and (2) of the Code read as follows:

(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.

12The Application was filed on September 6, 2016. The respondent argues that the time limit under the Code began to run in March 2011 when the applicant first raised his concerns respecting the bus pass with the respondent. The applicant argues that as the practice is ongoing, the limitation period has not run out.

13The situation in this case is analogous to that in Garrie v. Janus Joan Inc., 2012 HRTO 1955 ("Garrie"), which held, at para. 39,

First, as the Divisional Court stated in [Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768 ("Visic")], supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

14Garrie went on to hold, at paras. 43 and 44, that in a case of ongoing wage payments which were alleged to be discriminatory, each payment would constitute a further incident of discrimination. In my view, the same analysis would apply to each issuance of a transit pass. As such, each the applicant purchased and used the "Special" bus pass could be considered an incident in a series for the purposes of s.34(1)(b). The last incident of alleged discrimination would, therefore, be the last month the applicant held a "Special" transit pass. Assuming that he had held a "Special" bus pass for any given month in the year prior to filing the Application, it is therefore timely.

2011 Allegations

Section 34(2)

15The above finding does not mean, however, that the allegations with respect to how the applicant was treated in 2011 when he first raised concerns about the transit pass in 2011 are also timely. These, in my view, are separate allegations that do not form part of a series with the timely allegations for the purposes of s.34(1)(b).

16The applicant has, however, also raised s.34(2), and argues that any delay was incurred in good faith. Based on my finding above, this argument is not necessary to permit the allegation respecting whether the "Special" transit pass itself discriminated against the applicant on the basis of disability. However, if the applicant intends to pursue the allegation that he was subject to discrimination in the manner in which his initial complaint was addressed by the respondent in 2011, he must be prepared to provide the necessary evidence to substantiate his position that the delay in pursuing these allegations was incurred in good faith, as that term has been interpreted under the Code.

17The Tribunal's approach to what constitutes "good faith" is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 ("Miller"), at paras. 24-25, where the Tribunal stated:

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).

18There is no indication of bad faith in this case, but, as noted in Miller, the absence of bad faith alone is not sufficient to exercise the Tribunal's discretion under s.34(2) to hear otherwise untimely allegations.

19The Tribunal has also generally held that medical evidence is required in order to establish a claim of good faith based on disability, as is being raised here. See Dionne v. Toronto (City), 2011 HRTO 317, at para. 9, and James v. York University, 2015 ONSC 2234 (Div. Ct.) at paras. 45 – 50.

20Even if the applicant is able to establish that the delay in raising the 2011 allegations was incurred in good faith, in order to permit the allegations to proceed the Tribunal would still have to be satisfied that no significant prejudice would result to any person as a result of the 5-year delay.

21If the applicant intends to pursue the 2011 allegations he must be prepared to address the above issues, including the appropriate supporting medical documentation. The applicant shall clarify, within seven days of the date of this Interim Decision, if he is intending to pursue the 2011 allegations. If so, the parties will be given an opportunity to make further submissions or submit further evidence relating to this issue, based on the principles and case law set out above.

Contextual Evidence

22The Tribunal has held that, though they may not result in a finding of liability or a remedy under the Code, untimely allegations may nonetheless be raised for the purpose of putting timely allegations in context. See Killeen v. Soncin Construction, 2013 HRTO 350, at para 38, Franceschina v. Essar Steel Algoma Inc., 2012 HRTO 1634, at paras 6-7, and Sandhu v. Regional Municipality of Peel Police Services Board, 2014 HRTO 1394, at para 8.

23As such, even if the applicant does not pursue the 2011 incidents as separate allegations, or if the Tribunal should find that the 2011 incidents are untimely, the parties may nonetheless refer to the 2011 allegations to the extent they are relevant to the timely issue.

Request for Particulars

24The applicant also filed, on May 16, 2017, a Request for the production of certain documents and for certain particulars respecting investigations or other matters related to the applicant's 2011 contact with the respondent respecting his concerns about the bus pass. In response, the respondent provided a number of documents to the applicant on May 30, 2017. On September 8, 2017, and again on November 15, 2017, the applicant renewed his request for particulars.

25Depending on whether the applicant intends to pursue the 2011 allegations, the particulars being requested do not appear to be related to the central issue in this case, namely whether the "Special" transit pass program as implemented discriminates against the applicant on the basis of his disability. At best, they may provide context to the timely allegations.

26The parties have already exchanged arguably relevant documents in accordance with Rule 16.1. The next stage in the production process is that the parties are required to provide to each other and file with the Tribunal the documents on which they intend to rely under Rules 16.2 and 16.3, and witness statements setting out the anticipated testimony of the individuals who will testify at the hearing. The due date for this disclosure, December 11, 2017, has not yet passed.

27Particulars and details respecting the incidents raised in the pleadings, where not otherwise documented, would be included in the witness statements provided under Rule 17. As the date for the latter has not yet passed, I am not persuaded that it is necessary at this point to make an order for the respondent to provide the particulars requested. If, following the filing of the documents and witness statements on December 11, 2017, the applicant believes that further particulars are required, he may raise the issue again at that time.

Orders and Directions

28The respondent's request to dismiss the Application under s.14 or s.34(1) of the Code is refused.

29The applicant is directed to advise the respondent and the Tribunal, within seven days of the date of this Interim Decision, whether he intends to argue that the 2011 allegations are timely under s.34(2).

30The applicant's request for particulars is refused, without prejudice to his being able to raise the issue again following subsequent disclosure by the respondent.