Zaneefa Rooplall v. Trillium Health Partners, 2017 HRTO 1687

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zaneefa Rooplall

Applicant

-and-

Trillium Health Partners

Respondent

DECISION

Adjudicator: Mark Hart

Date: December 20, 2017

Citation: 2017 HRTO 1687

Indexed as: Rooplall v. Trillium Health Partners

APPEARANCES

Zaneefa Rooplall, Applicant

Self-represented

Trillium Health Partners, Respondent

Melissa Roth, Counsel

1This is an Application filed on January 27, 2017 alleging discrimination with respect to employment because of race and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) dated July 17, 2017, this matter was referred to a preliminary hearing to determine whether the Application should be dismissed for delay or as an abuse of process.

3The preliminary hearing was held by teleconference on October 12, 2017, at which time I heard oral submissions from the parties. I also have considered all material filed by the parties for the purpose of the preliminary hearing, as identified by me at the outset of the hearing.

BACKGROUND

4The applicant was hired by the respondent as a medical transcriptionist on December 12, 2014. Her employment was terminated on February 6, 2015.

5The applicant first filed an Application with this Tribunal on January 12, 2016 (the “first Application”) in which she alleged discrimination because of disability in relation to the termination of her employment by the respondent.

6Prior to serving the first Application on the respondent, the Tribunal sent correspondence to the applicant on February 23, 2016 asking her to clarify how her allegations related to Code grounds.

7The applicant replied by e-mail correspondence that same day. In her e-mail correspondence, the applicant failed to clarify the basis upon which she was alleging discrimination because of disability within the protection of the Code. However, the applicant did make reference to an “issue with race” that she alleges occurred on the first day of her employment with the respondent, but did not identify what this issue was. The applicant had not alleged discrimination because of race in her first Application.

8The first Application was dismissed by Decision dated April 24, 2016 (2016 HRTO 476) on the basis that the applicant had identified as having an intellectual disability, which she had described as “being smarter than most people”. The Tribunal found that it was plain and obvious that this was not a “disability” within the meaning of the Code. The Tribunal’s Decision also noted that the applicant had indicated that “race” was part of the problem, but had failed to describe how the respondent’s behaviour was related to discrimination because of race.

9The instant Application (the “second Application”) was filed nine months after the Tribunal’s Decision dismissing the first Application, and almost two years after the last alleged incident of discrimination. In the second Application, the applicant alleges discrimination in employment because of race and disability, and describes a specific racial comment that she alleges was made on her first day of employment with the respondent.

10At the preliminary hearing, I asked the applicant why she had not raised race as a ground of discrimination in the first Application. In response, the applicant stated that she was not a lawyer and was doing everything on her own, and had been told that she could rely on an intellectual disability to support her first Application. When asked why she did not provide the details or specifics of her allegation of the “issue with race” identified by her in her e-mail correspondence dated February 23, 2016, the applicant stated that it was her choice to proceed on the basis of an intellectual disability and that she wanted to have a hearing rather than having everything dealt with in writing.

11When asked about her delay in filing the second Application, the applicant stated that this was due to eye surgery that she had for cataracts. The applicant agreed that she was able to see sufficiently in January 2016 for the purpose of preparing and filing the first Application, and that she was still able to see sufficiently for the purpose of responding to the Tribunal’s correspondence in late February 2016. She was not able to recall when she had eye surgery, suggesting that it could have been in March or April or perhaps August of 2017, but that it was sometime after April 2016. The applicant was unable to provide any assistance as to the period during which she says she was unable to see sufficiently in order to file the second Application, whether before or after the eye surgery. No medical documentation was submitted by the applicant to indicate when the eye surgery occurred, or what restrictions she experienced as a result of the cataracts or the eye surgery or for what period of time.

DELAY

12Section 34 of the Code states, in its relevant part:

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 incidents to which the application relates; or

(b) if there was 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.

13In the instant case, the last alleged incident of discrimination is February 6, 2015, when the applicant’s employment was terminated, or perhaps December 12, 2014, when she alleges that the racial comment was made. In either case, the second Application was filed well beyond the one year time period for filing an application under the Code.

14Accordingly, the issue before me is whether the applicant’s delay in filing the instant Application was incurred in good faith, as that term has been interpreted by this Tribunal.

15The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

16The applicant submits that her cataracts and eye surgery are the reason why she did not filed the second Application in a timely fashion. However, while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating as to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992; Savage v. Toronto Transit Commission, 2010 HRTO 1360; Dionne v. Toronto (City), 2011 HRTO 317.

17In the instant case, as noted above, the Tribunal has no medical evidence to indicate when the eye surgery occurred, or what restrictions the applicant experienced as a result of the cataracts or the eye surgery or for what period of time. The applicant herself was unable to state when she had eye surgery, except to say that it was sometime after April 2016. In this regard, I note that at the very latest, the one year period under the Code expired in early February 2016, prior to the applicant’s eye surgery and at a time when the applicant has acknowledged that she could see sufficiently to file the first Application in January 2016 and to respond to the Tribunal’s correspondence in late February 2016.

18As a result, I find that during the entirety of the one year period following the last possible incident of alleged discrimination, the applicant was unaffected by any disability that prevented her from filing a human rights application in a timely manner. Rather, on the basis of the applicant’s own submissions, it appears that she deliberately chose to rely solely on an allegation of discrimination because of disability in the first Application and also chose not to share with this Tribunal the specifics of her allegation of any race issue at that time. Accordingly, I find that the applicant has failed to provide a reasonable explanation for her delay in filing the second Application, and therefore has failed to establish that this delay was incurred in good faith.

19As a consequence, the instant Application is dismissed for delay.

ABUSE OF PROCESS

20Pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended, this Tribunal has the power to make such orders as it considers proper to prevent an abuse of its processes.

21The issue with regard to the second Application is that it is an abuse of process for an applicant to re-raise issues that have already been raised and addressed by this Tribunal. To the extent that the applicant alleges discrimination because of disability in the second Application, this very allegation already had been raised by her in the first Application and had been dismissed by this Tribunal.

22With regard to the allegation of racial discrimination raised in the second Application, this very issue (although without any supporting details) had been raised by the applicant in the context of the first Application and also had been addressed and dismissed by this Tribunal. In these circumstances, I find that it would be an abuse of process to allow the applicant to raise an allegation of racial discrimination in the context of the first Application, not provide any details or specifics in support of her allegation at that time, have that allegation be considered and dismissed by this Tribunal, and then some 9 months later and over two years after the incident is alleged to have occurred, file the second Application in which she re-raises the same allegation but this time provides specifics.

23Accordingly, I also dismiss the instant Application as an abuse of process.

ORDER

24For all of the foregoing reasons, the Application is dismissed for delay and as an abuse of process.