CITATION: Selkirk v. Trillium Gift of Life Network, 2014 ONSC 7174

DIVISIONAL COURT FILE NO.: 123/14 DATE: 20141210

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, HORKINS AND D. M. BROWN JJ.

BETWEEN:

DEBRA SELKIRK ON BEHALF OF THE ESTATE OF MARK SELKIRK Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, AS REPRESENTED BY THE MINISTER OF HEALTH AND LONG-TERM CARE and UNIVERSITY HEALTH NETWORK Respondents

-and –

TRILLIUM GIFT OF LIFE NETWORK Affected Party

In Person

Padraic Ryan, for the Respondent, Her Majesty the Queen in Right of Ontario, as Represented by the Minister of Health and Long-Term Care

Brian A. Blumenthal, for the Respondent, Human Rights Tribunal of Ontario

Cindy D. Clarke and Logan B. C. Crowell, for the Respondent, University Health Network

HEARD at: Toronto: December 10, 2014

SACHS J. (orally)

Nature of Proceeding

1The applicant seeks judicial review of a decision of the Human Rights Tribunal of Ontario (the “Tribunal”) dated November 29, 2013, which dismissed her application for failure to comply with the time requirement of s. 34(1) (a) of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The application, alleging discrimination in the provision of goods and services on the basis of disability, was brought almost two years after the alleged discrimination took place. Section 34 of the Code states:

Application by person

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.

Late applications

(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 Tribunal held that it was not satisfied the applicant met the burden of establishing a good faith explanation for the delay pursuant to s. 34(2) of the Code. On January 14, 2014, the Tribunal also dismissed the reconsideration application.

3The facts giving rise to the applicant’s complaint under the Human Rights Code relate to her late husband Mark Selkirk. Mark Selkirk died in November of 2010 after being denied a liver transplant. It is alleged that he was denied a transplant due to a policy which required persons with alcoholism to abstain from the consumption of alcohol for six months before they would be considered for a transplant. On October 12, 2012, the applicant filed her Human Rights application alleging discrimination on the basis of disability. The decision by Mr. Selkirk’s treating physicians to deny a transplant was made using an application of principles found in the Trillium Gift of Life Network’s “Ontario Referral and Listing Criteria for Liver Transplantation” policy.

Issues Raised on this Application

4With respect to the decisions under review, the applicant submits that the Tribunal erred in failing to exercise its discretion to extend the limitation period given the Charter rights at issue in her application. Before us, the applicant also sought to challenge the constitutionality of the policy that resulted in her late husband’s failure to receive a liver transplant and of the limitation period set out at s. 34 of the Code.

Standard of Review

5To the extent that the applicant is challenging the Tribunal’s decision to dismiss her application for delay, the Tribunal was interpreting its home statute and applying its own jurisprudence to the facts at hand. Given this, the law is clear that the applicable standard of review is reasonableness. (Shaw v. Phipps, 2012 ONCA 155).

Was the Tribunal’s Decision to Dismiss for Delay a Reasonable one?

6Section 34(2) of the Code gives the Tribunal a discretion to allow an application to proceed after the expiry of the limitation period set out at s.34(1). In order to exercise that discretion, the Tribunal must be satisfied of two things:

(i) That the delay was incurred in good faith; and

(ii) That no substantial prejudice will result to any person affected by the delay.

7The applicant submitted written submissions to the Tribunal dealing with both issues. On the good faith issue she explained to the Tribunal (as she did to us) that while she knew what had happened to her husband at the time it was happening and she knew what policy was being applied at the time the events occurred, she did not know until almost two years later that what had transpired was discriminatory. As put by her at para. 12 of her written submissions to the Tribunal:

I discovered that the treatment, or lack thereof at the hospital, was a violation of his human rights on September 27, 2012; I filed within 14 days.

8The Tribunal considered this explanation in light of its well-established jurisprudence regarding what constitutes a good faith explanation for a delay. As the Tribunal correctly stated - that jurisprudence is clear – lack of knowledge of the law does not constitute good faith within the meaning of s.34(2).

9In this regard, the Tribunal’s jurisprudence is not inconsistent with the common law principles governing the extension of limitation periods - principles that allow for such extensions in cases where the plaintiff did not know and could not reasonably have ascertained the facts giving rise to his or her claim before the expiry of an applicable limitation period.

10In the human rights context, Canada (Attorney General) v. Galipeau, 2012 FC 1399, a case relied upon by the applicant, is a case where the limitation period was extended because the complainant was not aware of a crucial fact giving rise to his complaint until after the applicable limitation period had expired. As the Tribunal found, this is not the applicant’s situation. She was aware of the facts; she just did not know that those facts gave rise to a legal claim.

11The Tribunal then went on to consider whether the applicant had no reason to make inquiries about her legal rights. Again, the Tribunal examined the evidence on this issue and reasonably concluded that the applicant “had all of the information she required to make enquiries about her rights, if any.”

12Having reached this conclusion, which is entirely supported by the evidence and consistent with the law, the Tribunal reasonably dismissed the applicant’s application.

13In our view, the fact that the applicant’s application referred to violations of the Charter, did not require the Tribunal to undertake a different analysis than it was otherwise required to undertake.

14The Tribunal is a creature of statute and its discretion to act is prescribed by statute – in this case s.34 of the Code. Section 34 makes no exception for Charter claims.

15To the extent that the applicant seeks to challenge the constitutionality of s. 34 of the Code and the constitutionality of the policy underlying her complaint, we note that this issue has been raised before us for the first time. Thus, the applicant’s request runs contrary to the well-established rule that prohibits the practice of raising new arguments or issues on appeal or judicial review. It is only when the interests of justice demand otherwise, that the courts will make an exception to this rule. In this case, the applicant submits that because the Tribunal dismissed her application for delay she did not have the opportunity to file a Notice of Constitutional Question as provided for in Rule 4.1 of the Tribunal’s Rules of Procedure. In other words, the applicant is, in effect, relying on a decision that we have found was reasonable as the basis for us to exercise our extraordinary discretion to hear her Charter claims as a court of first instance. To yield to this request would result in a complete distortion of the fundamental principles underlying the judicial review exercise.

Conclusion

16For these reasons the application is dismissed.

Costs

17I have endorsed the Record, “This application is dismissed for reasons given orally by Sachs J. There will be no order as to costs as none of the respondents seek costs.”