CITATION: De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006
DIVISIONAL COURT FILE NO.: DC-11-00000196-00JR
DATE: 20111125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARK DAVID DE PELHAM Applicant
- and -
HUMAN RIGHTS TRIBUNAL OF ONTARIO, ONTARIO HUMAN RIGHTS COMMISSION, HUMAN RIGHTS LEGAL SUPPORT CENTRE, HER MAJESTY THE QUEEN Represented by THE ATTORNEY GENERAL OF Ontario, mytrak health systems inc. and ricoh canada inc. Respondents
Mark David de Pelham, Appearing in Person James Schneider, for the Human Rights Tribunal of Ontario Daniel J. Michaluk and E. Carla Zabek, for the Respondent Mytrak Health Systems Inc. Carolyn Johnston, for the Respondent RICOH Canada Inc.
HEARD: November 24, 2011
HOY J.
REASONS FOR DECISION
[1] Mytrak Health Systems Inc. (“Mytrak”) seeks an order dismissing the Applicant Mark David de Pelham’s application for judicial review of the Human Rights Tribunal of Ontario’s (the “HRTO”’s) February 19, 2009 decision (the “Decision”) on the basis of delay.
[2] RICOH Canada Inc. (“RICOH”) supports Mytrak’s motion.
Background
[3] Mytrak is a small technology company. It employs 42 individuals. In July 2008, the Applicant, who had been charged with two criminal offences, applied for a customer service position with Mytrak. Mytrak conducted a background check and learned of the charges. Its evidence was that it has hired persons with criminal records and it chose not to hire the Applicant on the basis of his failure to disclose the charges, as opposed to the fact of the charges.
[4] RICOH denied the Applicant employment on the basis of the pending criminal charges.
[5] The Applicant brought applications against both Mytrak and RICOH. In the case of RICOH, the Applicant also made allegations of reprisal.
[6] Mytrak moved for a preliminary order dismissing the application on the basis that the “record of offences” ground of protected personal characteristics in the Human Rights Code on which the Applicant relied does not protect individuals with pending criminal charges.
[7] In the Decision, the HRTO agreed with Mytrak. It dismissed the Applicant’s application against Mytrak in its entirety, and dismissed that portion of the application against RICOH relating to the pending criminal charges.
[8] By letter dated February 27, 2009, the HRTO explained to the Applicant that there were two ways of challenging the Decision: a request for reconsideration to the HRTO, which had to be made within 30 days of the Decision, or judicial review. It provided the Applicant with a link to information contained on the Court’s website about filing for a judicial review.
[9] The HRTO held a full hearing on the Applicant’s reprisal allegations against RICOH on October 1, 2009. In its decision dated December 1, 2009, it dismissed those allegations.
[10] In February 2011, Mytrak dismissed the individual who had interviewed the Applicant and determined not to hire him. Mytrak is currently in a dispute with that individual regarding his termination.
[11] The Applicant issued his Notice of Application on April 29, 2011 ‑ 26 months after the Decision. He perfected the application on August 8, 2011. He now seeks to argue that the definition of “record of offences” in the Human Rights Code violates the Canadian Charter of Rights and Freedoms.
Analysis and Conclusion
[12] Applications for judicial review may be dismissed for delay by a single judge. See United Food and Commercial Workers International Union, Local 617 P. v. Welling, [1997] O.J. No. 2704 2003 CarswellOnt refused, 195 O.A.C. 194(note), 328 N.R. 198 (note), 2004 CarswellOnt 246, 2004 CarswellOnt 247 (S.C.C.) Jan 22, 2004). However, as noted by Ferrier J. in 520247 Ontario Inc. v. Ontario Pipe Trades Council of U.A., Local 800, 2010 CarswellOnt 10091 (Div. Ct.), except where it is plain and obvious that the application should be dismissed for delay, a motions judge should not dismiss for delay and should leave the issue to the panel. Mytrak and RICOH submit that this is such a case. Mytrak also submits that the cost of proceeding to a hearing before a panel, on the issues of both delay and the merits, is an onerous burden for a small employer.
[13] I am in this case satisfied that, in all of the circumstances, it is plain and obvious that the application for judicial review should be dismissed for delay.
[14] The Court has repeatedly recognized that an applicant must commence and perfect his application for judicial review in a timely manner, and that failure to do so is an independent basis for the denial of the application, regardless of the merits of the case. See Balanyk v. Greater Niagara General Hospital, 2002 Carswell 1192, 161 O.A.C. 204 (Ont. Div. Ct.), Bettes v. Boeing Canada/DeHavilland Division, 2000 CarswellOnt 6207, [2000] O.L.R.B. Rep. 409 (Div. Ct.). In Bettes, the Court held that while each case turns on its own circumstances, a delay of six months or more in commencing an application, and twelve or more months in perfecting it, could be serious enough alone to warrant the dismissal of the application.
[15] The Applicant delayed 26 months in filing his application, and a further three months in perfecting it. Applications for judicial review have been dismissed for delay where the delay was less than 26 months: Zhang v. The University of Western Ontario, 2010 ONSC 6489, 2010 CarswellOnt 10065, 328 D.L.R. (4th) 289 (Div. Ct.) (11 months); Schorr v. Selkirk, 1977 1070 (ON SCDC), 1977 CarswellOnt 190, 15 O.R. (2d) 37 (Div. Ct.) (dismissed when commenced 13 months after bias issue raised and one month after decision); York University Faculty Assn. v. York University, [2002] O.J. No. 1665 (C.A.) (dismissed based on a 16-month delay); Balanyk, supra, (dismissed based on a 21-month delay); David Green v. Ontario Human Rights Commission, 2010 ONSC 2648, 2010 CarwellOnt 3309, 263 O.A.C. 270 (Div. Ct.) (dismissed based on a 22-month delay prior to perfection.)
[16] The Applicant has no cogent explanation for the delay. The Applicant indicated in his affidavit that he “endured periods of depression” following the Decision, suggesting that this was the reason for his delay. He clarified on his cross-examination that he did not believe that he has ever been clinically depressed and is “a pretty happy guy.” He simply says he was frustrated and lacked focus. In his cross-examination, he averted to substance abuse and a recent diagnosis of Attention Deficit Disorder, but did not say these were reasons for his delay. The Applicant has a four- year university degree and, before the events at issue, had twice run for Parliament. In the time that lapsed between the Decision and the filing for judicial review, he proceeded to a full hearing before the HRTO on the RICOH reprisal issue, prosecuted an application on the “record of offences” issue against the City of Mississauga, and in April of 2011 filed another application before the HRTO. As the Applicant’s pursuit of his legal rights in these other matters indicates, he was capable of bringing an application for judicial review.
[17] While proof of actual prejudice is not required, in this case there is actual prejudice. If the Applicant succeeded on his application for judicial review, and the matter was remitted for a hearing on the merits, Mytrak would no longer be capable of providing the evidence of its decision-maker, who has since been dismissed. At the time of the dismissal, Mytrak could have reasonably assumed that his testimony would not be needed. RICOH, which has already incurred the cost of a full hearing on the reprisal issue, would potentially be required to undergo a second full hearing. If the Applicant had brought an application for judicial review in a timely manner, the “reprisal” hearing would presumably have been deferred until the outcome of the judicial review, so that if necessary, the matters could be heard together.
[18] The Applicant argues that the issue he raises is of general interest. In oral submissions, he referred to others whom, he says, have also been denied employment on the basis of outstanding criminal charges. He submits that he does not seek relief against Mytrak or RICOH, and that he simply wants the issue addressed. While the issue is of general interest, in my view it would not be fair to do determine it on the backs of Mytrak and RICOH. As the Applicant’s litigation history demonstrates, there will be other opportunities for the issue to be addressed.
[19] With respect to Mytrak’s submission that a motion to dismiss an application for judicial review should be permitted to proceed before a single judge in the interests of cost, such a motion ‑ if agreed that it would be restricted to the issue of delay ‑ could proceed before a panel at no greater cost.
Costs
[20] Mytrak submits that costs on a partial indemnity scale, on an all inclusive basis, of $5,000 would be a fair and reasonable amount for the Applicant to pay. Its actual partial indemnity costs are much higher. RICOH seeks costs in the same amount. The HRTO, which appeared in the event it could be of assistance to the Court and took no position on the motion, does not seek costs. The Applicant, who has represented himself, says he does not have the ability to pay any costs award.
[21] In my view, $3,000, all inclusive, in the case of Mytrak, which had principal carriage of the motion, and $2,000, all inclusive, in the case of RICOH, are fair and reasonable amounts for the Applicant to pay and he is ordered to do so.
Hoy J.
Released: November 25, 2011
CITATION: De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006
DIVISIONAL COURT FILE NO.: DC-11-00000196-00JR
DATE: 20111125
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARK DAVID DE PELHAM Applicant
- and -
HUMAN RIGHTS TRIBUNAL OF ONTARIO, ONTARIO HUMAN RIGHTS COMMISSION, HUMAN RIGHTS LEGAL SUPPORT CENTRE, HER MAJESTY THE QUEEN Represented by THE ATTORNEY GENERAL OF Ontario, mytrak health systems inc. and ricoh canada inc. Respondents
REASONS FOR DECISION
Hoy J.
Released: November 25, 2011