Smith Barry v. London Health Sciences Centre, 2017 HRTO 954

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Larena Smith Barry

Applicant

-and-

London Health Sciences Centre, Sandra Fisman and Beth Mitchell

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: July 27, 2017

Citation: 2017 HRTO 954

Indexed as: Smith Barry v. London Health Sciences Centre

APPEARANCES

Larena Smith Barry, Applicant

Self-represented

London Health Sciences Centre and Beth Mitchell, Respondents

Andrea Dias, Counsel

Sandra Fisman, Respondent

Kelly Tranquilli & Jacqueline Fortner, Counsel

Introduction

1This Application, filed on June 10, 2016, alleges reprisal and discrimination with respect to employment and services because of disability, family status, marital status and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Tribunal issued a Case Assessment Direction, dated April 21, 2017 that directed a summary and preliminary hearing to determine:

a. whether the Tribunal has jurisdiction to hear the Application as it appears that the Application was filed more than one year after the alleged incidents of discrimination;

b. whether the Application should be dismissed on the basis that the complaint proceeding before the College of Physicians and Surgeons of Ontario (“CPSO”) has appropriately dealt with the substance of the Application; and

c. whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3The preliminary and summary hearing was held by teleconference on July 11, 2017. All parties made submissions.

background

4The applicant’s claim is mainly about events she alleges occurred in 2011. Dr. Fisman states she had one interaction with the applicant and her son at a hospital on April 26, 2011.

5The applicant appears to allege that the respondents, more specifically Dr. Fisman, discriminated against her by failing to appropriately diagnose and treat her son.

6The applicant alleges she witnessed her son being abused by the respondents. This alleged abuse includes the applicant’s son being injected with a needle, being the only male in his ward at the hospital, and his being subjected to the sight of a stick figure of a female in the bathroom, which led him to say later that he was going to be denounced. The applicant further alleges when she attended the hospital her son was sitting on a seat as if he was forced to sit there.

7The applicant further alleges that Dr. Fisman reprised against her by criminally harassing her son by targeting her patients through Wifi. She was not clear when this was, but her prior Application to the Tribunal was filed in 2014 (“reprisal Application”).

8The applicant also alleged she lost her job in 2016 because of a mental health disability that Dr. Fisman caused.

9The respondents deny the applicant’s allegations. In addition, they argue the Tribunal has no jurisdiction to hear the Application because of the issues set out in paragraph 2, above.

finding

10I find that the bulk of the Application should be dismissed for delay, and the applicant’s allegation that she lost her job in 2016 should be dismissed as having no reasonable prospect of success. Given these findings, there is no reason for me to address the issue of whether any of the issues in this Application have already been appropriately dealt with in another proceeding.

legal principles

11Subsections 34(1) and (2) of the Code enable individuals to file applications to the Tribunal and set out the timeframes for doing so:

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.

No reasonable prospect of success

12In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground. [Emphasis added]

parties’ submissions

13All the parties made oral submissions. Dr. Fisman and the applicant provided written submissions with respect to all of the allegations, except the termination of the applicant’s employment. In this Decision, I have addressed only the issue of delay with respect to all the allegations raised in the Application, except for the employment issue arising from the applicant’s termination. Because I have found that all the allegations in the Application should be dismissed for delay, with the exception of the applicant’s claim that her employment was terminated in 2016, it is as I indicated above not necessary for me to address the other issues in relation to those allegations. With respect to the applicant’s claim that her employment was terminated in 2016, I find this allegation has no reasonable prospect of success.

14The applicant submitted she did not file this Application about the 2011 events until 2016 because at the time she was taking on too many files, which included another Application to this Tribunal, a CPSO complaint, complaints to the hospital and the police department, and this increased the probability she would miss deadlines.

15She further alleged she was afraid to complain. She also submitted her son at the time was mentally incapacitated, and she was the only one who knew about the events and was in shock because of the events.

16I asked the applicant why she was able to file a reprisal Application in 2014 but was not able to file this one. She responded that she had since compiled more evidence that she did not have back then. I asked her again specifically why she was able to bring a reprisal Application but not this one and she advised she is now on medications.

17The applicant further submitted a lot of the delay was due to her son’s disability, and he only wants to come forward now because some of the issues were traumatizing.

18I also asked the applicant about her allegations with respect to employment. She submitted she lost her job in 2016 because she has a disability caused by Dr. Fisman.

19When I asked the applicant about her reprisal allegations, she confirmed she had raised those in her reprisal Application.

20Counsel for Dr. Fisman and counsel for London Health Sciences Centre and Beth Mitchell made similar submissions. They submitted the Tribunal should dismiss the Application for delay. They stated the fact that the applicant commenced a myriad of complaints in the past belies her submission that commencing this Application was impeded by disability.

21Counsel for Dr. Fisman stated that the complaints, Applications and appeals filed by the applicant include:

a. A May 13, 2011 CPSO complaint;

b. A March 22, 2012 request for a review of the CPSO decision with respect to the 2011 complaint;

c. A Tribunal Application, filed on August 21, 2014;

d. Two requests for reconsideration of the Tribunal’s July 3, 2015 Decision with respect to the Tribunal Application filed on August 21, 2014 (the reconsideration decisions were issued by the Tribunal on August 26 and September 22, 2015);

e. A second CPSO complaint, dated January 20, 2016;

f. A second request for a review of the second CPSO decision (decision issued on February 6, 2017)

g. A Small Claims Court action that was dismissed in the week before this hearing, though the applicant has indicated she intends to appeal.

22Both respondents’ counsel submitted the applicant provided no good faith reason for the delay in filing this Application.

analysis and decision

23Section 34(2) of the Code states that 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.

24Because the alleged events occurred in 2011 and the Application was filed 5 years later in 2016, the applicant must show the delay in filing the Application was incurred in good faith.

25In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation of why he or she did not pursue his or her rights under the Code in a timely manner. As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant 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 mandatory one-year limitation period for filing an application 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 to file an application within one year when pursuing a human rights claim.

26In this case, I find no good faith reason for the delay in filing the Application.

27The applicant gave various reasons why she did not commence this Application within a year after the alleged events, including that she was afraid to complain, that she was not on medications at the time and that her son was mentally incapacitated and did not want to come forward until now. None of these explanations was consistent with the fact that the applicant was able to and did file other Applications, complaints and requests for review, including two of them during the one year period after the events in question that deal directly with the issues in this Application, namely her May 13, 2011 CPSO complaint and her March 22, 2012 request for a review of that CPSO decision. As a result, I do not accept these as good faith explanations.

28The applicant also submitted she has received new evidence since that time, but also argued the reason she did not file at that time was because she had too many other proceedings on the go. The applicant appeared to be arguing that she did not commence this Application because she adopted a “wait and see” approach. However, pursuing other avenues does not generally constitute a reasonable explanation for any delay. See: Kohar v. Hamilton-Wentworth District School Board, 2013 HRTO 1995.

29None of the applicant’s explanations for her delay in filing this Application in my view constitutes a good faith explanation. There is no reason for me therefore to consider whether there would be any prejudice to any party.

employment allegations

30I asked the applicant during the hearing about her allegation with respect to the area of employment.

31The applicant alleged she lost her job in 2016 because she has a disability because of Dr. Fisman.

32Even if I accept the applicant’s allegation as true, this allegation has no reasonable prospect of success not least for the reason that Dr. Fisman is not the applicant’s employer, she did not terminate the applicant’s employment and there is no evidence that she in any way influenced the decision of the applicant’s employer to terminate her.

order

33The Application is dismissed.