Pugliese v. Algonquin College of Applied Arts and Technology, 2017 HRTO 962

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gordon Pugliese

Applicant

-and-

Algonquin College of Applied Arts and Technology and Jennifer King

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: July 28, 2017

Citation: 2017 HRTO 962

Indexed as: Pugliese v. Algonquin College of Applied Arts and Technology

APPEARANCES

Gordon Puliese, Applicant

Self-represented

Algonquin College of Applied Arts and Technology and Jennifer King, Respondents

Porter Heffernan and Larissa Schieven, Counsel

1This Application alleges reprisal and discrimination with respect to services because of sex and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Application was filed on October 5, 2016 and relates to allegations said to have occurred prior to March 2, 2010. The applicant's allegations pertain to his enrollment in and expulsion from the organizational respondent's Veterinary Technician Program (the "Program").

2By Case Assessment Direction ("CAD") dated April 25, 2017, the Tribunal directed that a preliminary hearing be held in this matter by teleconference. The parties were directed to make arguments relating to whether some or all of the Application was outside of the Tribunal's jurisdiction by reason of delay under section 34(1) and (2) of the Code.

3The hearing took place by teleconference on July 12, 2017.

4For the reasons that follow, I find that the Application must be dismissed because the applicant has failed to provide a good faith explanation for the delay in filing his Application.

5Section 34 of the Code provides:

34(1) If a person believes that any of his or her rights under Part 1 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.

6These provisions have been found to be mandatory subject to section 34(2). The 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 seek to pursue a human rights claim. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

7This Application is clearly out of time. I accept the applicant's assertion that the last event of alleged discrimination occurred March 1, 2010 when he was expelled from the Program. Accordingly, the Application was filed approximately 6 ½ years after the last alleged incident of discrimination. Thus, it falls to the applicant to satisfy the Tribunal that the delay was incurred in good faith.

8The Tribunal has held on many occasions that where an applicant seeks to establish that the delay in filing their application was "incurred in good faith" the applicant must show something more than the absence of bad faith and must provide a reasonable explanation for the delay.

9Essentially, the applicant posits that his experience at the College was so traumatic that he did not have the emotional or mental capacity to make his Application within the limitation period and that it was not until October, 2016 that he was fit enough to file his Application.

10The applicant asserts that his incapacity was a disability and that this contributed to the delay. Assuming without deciding that the applicant is a person with a disability, this fails to meet the standard required by the Tribunal's case law. The test to establish a good faith explanation for failure to file a timely application is a high one and requires evidence of a substantial inability to initiate the process

11In Dionne v. Toronto (City), 2011 HRTO 317, the Tribunal commented on what was required of an applicant seeking to establish a good faith explanation on the basis of disability:

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 disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see for example, Reid v. Ontario March of Dimes, 2008 HRTO 2207; Downer v. Little & Jarrett, 2010 992; and, Savage v. Toronto Transit Commission, 2010 HRTO 1360.

12In this case, there is no such evidence. The applicant filed a "Psychiatric Consult Report" which indicates that the applicant has a "depressive disorder" and "generalized anxiety disorder". The Report, however, does not indicate that his condition is so debilitating that it prevented him from pursing his legal rights. Moreover, the Report is current in that it is dated June 7, 2016. It does not, and could not address the applicant's condition during the one year period following the last alleged incident of discrimination, which is the period during which he was required to file his Application if it was to be timely.

13As an aside, I would note that in April, 2014, 2 ½ years prior to filing his Application with the Tribunal, the applicant investigated the possibility of receiving income support from the Ontario Disability Support Program, made the appropriate application and succeeded in obtaining income support. In my view, this is evidence that the applicant had capacity to pursue his legal rights long before he filed his Application.

14During the hearing the applicant suggested that he "did not know how" to make an application to the Tribunal until 2016 when the Premier's office sent him a letter suggesting that he contact the Human Rights Legal Support Centre. This essentially is an assertion that the applicant was ignorant of human rights laws and its requirement that an application be filed within the mandatory one-year limitation period. However, the Tribunal has said in many cases that ignorance of the law is no excuse in matters relating to delay in asserting one's rights. See, Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339 at para. 10 and Lutz v. Toronto (City), 2009 HRTO 1137 at para. 8.

15For these reasons, I find that this Application must be dismissed because it is out of time and the applicant has not provided a good faith explanation for the delay.

16Given this conclusion, there is no need to address the issue of substantial prejudice.

17The Application is dismissed.