T.P. v. St. Clair Catholic District School Board, 2017 HRTO 1622

Human Rights Tribunal of Ontario

B E T W E E N:

T.P. as represented by his Litigation Guardian, OP Applicant

-and-

St. Clair Catholic District School Board and Rachel Wallace Respondents

INTERIM DECISION

Adjudicator: Brian Cook Date: December 6, 2017 Citation: 2017 HRTO 1622 Indexed as: T.P. v. St. Clair Catholic District School Board

1This Decision considers whether the Application was filed in accordance with section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Section 34 reads 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.

2The Application is brought by a mother on behalf of her child. The mother is the applicant in this Application. The Application relates to things experienced by the child at a school operated by the organizational respondent, and in particular to issues in the classroom concerning the personal respondent which the applicant alleges were discriminatory. Following these events, the child was withdrawn from the school by the applicant. This occurred in May 2014.

3The applicant agrees that she had no further involvement with the respondents after May 2014.

4The Application was filed on October 4, 2016. This was more than one year after the last incident of alleged discrimination. The one year period after the last alleged incident of discrimination was from May 2014 to May 2015. The Application was filed approximately 17 months after the end of that one year period.

5Under section 34, the applicant must show that there is a good faith in filing the Application.

6The Tribunal scheduled a preliminary hearing to hear submissions from the parties about whether there is a good faith explanation for the delay. The hearing was held by telephone conference call on November 21, 2017. During the hearing the applicant was assisted by a friend who was familiar with the applicant's history and circumstances.

7The applicant explained that after she withdrew her son from school, she first had to find a new school. At the time she was living in a shelter because of ongoing family issues. She was required to relocate her residence twice in the months following May 2014. Her son is on the autism spectrum and does not adjust to change easily. He was very upset because of the change in school and in residence. He was also still upset about the events at school in May 2014. The applicant was naturally very affected by all of this and found it difficult to cope.

8In May 2014 she was involved in a motor vehicle accident. She was not significantly injured but had to deal with insurance issues. She was involved in another motor vehicle accident in May 2015. Her car was written off and she sustained injuries which are ongoing.

9The applicant's submissions in support of her submission that there is a good faith explanation for the delay include a letter from Family Service counselors who have assisted her. The letter explains that the applicant is experiencing symptoms of anxiety and depression related to her own life experiences and, in particular, to the challenges of being a single parent to a child on the autism spectrum and the need to ensure that he is in a safe school environment. A letter from support workers at a Women’s Centre confirm that the applicant has a great deal to contend with. Notes from her family doctor confirm that the applicant has symptoms related to anxiety and depression. A supportive letter from a Respite Care Provider states that the delay in filing the Application was incurred in good faith because the applicant had to concentrate on providing a safe and stable life for her son in the wake of many outside factors and stresses.

10The Tribunal’s approach to delay and the issue of what amounts to “good faith” for the purposes of section 34(2) 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).

11To establish that there is a good faith explanation for a delay, an applicant does not need to show that it was impossible for her to file an Application within the one year time period. However, she must be able to provide a reasonable explanation for the delay: M.C. v. London School of Business, 2015 HRTO 635.

12As noted by the respondents, the Tribunal has established a fairly high standard when it comes to the assessment of whether an applicant has established a good faith explanation for a delay. This is particularly true when the delay is over a year, as it was in this case.

13In this case, it is clear that that the applicant has had a great deal to contend with. The fact that she was unable to give priority to filing a human rights application is understandable because of the immediate needs of caring for her son and ensuring that he felt safe together with the other things that were happening in her life. In addition, the applicant has provided medical confirmation that she suffers from symptoms of anxiety and depression which affected her ability to function and to file an Application.

14Before reaching a final decision on whether the Application was filed in accordance with section 34 of the Code, I require submissions from the respondents about whether the delay resulted in any substantial prejudice. This matter was not canvassed at the hearing.

15The respondents may make written submissions on this question within two weeks of the date of this Interim Decision. If the respondent does not wish to make submissions on this issue it should advise the Tribunal and the applicant accordingly. The applicant is not required to reply to the respondents’ submissions unless directed to do so by the Tribunal.