2015 ONSC 2234
DIVISIONAL COURT FILE NO.: 206/14
DATE: 20150623
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Hambly and M. Edwards JJ.
BETWEEN:
Paul James
Applicant
– and –
York University and Ontario Human Rights Tribunal
Respondents
In Person
Lisa Constantine, for York University
Brian A. Blumenthal, for Human Rights Tribunal of Ontario
HEARD at Toronto: March 4, 2015
M. EDWARDS J.:
Overview
[1] Mr. Paul James is a distinguished soccer player who represented Canada at the World Cup and the Olympics, as well as other international venues. He has been inducted into the Canadian Soccer Hall of Fame. He is a well-educated individual holding both a Bachelor of Arts and an MBA.
[2] At the completion of his soccer career, he was employed as the master soccer coach of the York University Varsity Soccer Program where he coached York University soccer teams to six Divisional Titles, four Provincial Titles, and one National Championship. He was named the Canadian Interuniversity Sport (CIS) National Coach of the Year in 2007.
[3] Tragically, for Mr. James, with such an outstanding soccer pedigree, he succumbed to the vicious grip of an addiction to crack cocaine. Eventually, the depression and other physical and medical consequences of such an addiction resulted in Mr. James resigning from his position at York in December 2009.
[4] Mr. James argues that his resignation was forced on him as a result of what he describes as a pattern of discrimination and harassment by employees and colleagues at York, to whom he had confided his addiction and disability.
[5] Mr. James first went into rehabilitation to deal with his cocaine addiction in December 2008 and again in November 2009. When he returned from rehabilitation in December 2009, Mr. James was informed by officials at York that he was no longer the head coach of the men’s soccer team and that, in essence, his position as head coach of the women’s soccer team had been vacated, with a proviso that he could reapply for that position along with any other interested candidates. These events precipitated Mr. James’ resignation.
[6] Mr. James, like many who become addicted to crack, suffered from periods of depression, homelessness and encounters with the Criminal Justice System. He was in and out of rehabilitation and, eventually, in October 2012, applied to the Ontario Human Rights Tribunal alleging that York had discriminated against him on the basis of his crack addiction and that he had been forced to resign. The last incident of discrimination was alleged to have occurred in December 2009.
[7] The Human Rights Code, R.S.O. 1990 c.H.19 (the “Code”) and s. 34(1) thereof, requires that where someone like Mr. James believes that he has been discriminated against, he must file his application with the Human Rights Tribunal of Ontario (the “HRTO” or the “Tribunal”) within one year after the incident complained of – in this case by December 2010. Mr. James’ application was dismissed on the basis of his failure to comply with the one year limitation period. Mr. James sought reconsideration of that decision, which was also denied. Mr. James seeks judicial review of both the initial decision of the HRTO denying his application on the basis of the expired one year limitation, as well as judicial review of the decision of the HRTO denying his request for reconsideration.
The Facts
[8] Mr. James was employed by York from November 2003 through until his resignation in December 2009. In Mr. James’ affidavit sworn on July 2nd, 2014, filed as part of his application record before this Court, he deposes that he had suffered from a crack cocaine addiction and depression since “at least 2000”. There was nothing in the evidence filed before this Court that would suggest Mr. James had disclosed his addiction to crack cocaine to officials at York University prior to his acceptance of a position of employment in 2003.
[9] Between the time of Mr. James’ resignation, effective December 31, 2009, and his application to the HRTO filed on October 4, 2012, Mr. James deposes in his affidavit that he “struggled greatly with my addiction and depression”, and that he lost all of his savings. He indicates that he went into debt and became homeless and was arrested on July 2, 2010 for allegedly assaulting a peace officer and, again, on June 24, 2012 for alleged crack cocaine possession.
[10] Mr. James further deposes in his affidavit that he spent five weeks in drug rehabilitation commencing January 2011. His rehabilitation was unsuccessful. He also deposes that he spent time in temporary rooming houses. He states, in his affidavit, that his only source of income was writing short commentaries on soccer news as a part-time columnist for the Globe and Mail. He asserts that he left that position in October 2010 because his addiction, depression and other life circumstances made it impossible for him to keep his part-time writing commitment.
[11] Also, during the period of time after his resignation, he wrote a book titled “Cracked Open” which took him more than 26 months to write. This is the same time period when Mr. James argues he was unable to file his application with the HRTO within the one year limitation period – an inability he puts down to the crack cocaine addiction.
[12] Mr. James deposes, in his affidavit, that due to his impairment from crack cocaine addiction between 2010 and 2012 he was unable to file his application with the HRTO within the one year time period specified in s.34(1) of the Code.
[13] On February 15, 2013, York University filed its response to Mr. James’ application, which requested that the application should be dismissed for delay. York also denied Mr. James’ allegations of discrimination.
[14] On March 8, 2013, the HRTO advised Mr. James to file a reply by March 22, 2013 and to include “complete submissions and response to the respondent’s request to dismiss and…any documents relevant to the respondent’s request to dismiss which have not already been forwarded to the OHRT”.
[15] Mr. James filed his reply on March 22, 2013 and included written submissions on why he should be permitted to file his application despite the delay.
[16] Mr. James did not file the required “complete submissions” nor any relevant documents addressing the issue of delay as he had been instructed to in the letter from the HRTO on March 8, 2013. When York received Mr. James’ reply and discovered that no evidence had been filed to establish that his delay was caused by his disability, York filed supplemental submissions with the Tribunal on April 1, 2013. In these submissions, York took the position that Mr. James had failed to meet the test for establishing “good faith” delay caused by disability under s.34(2) of the Code, and as set forth in a decision of the Tribunal, Dionne v. Toronto (City) 2011 HRTO 317. York took the position that Mr. James had failed to meet the test in Dionne because he had failed to present sufficient medical evidence to establish that his alleged disability had caused his delay in filing his application.
[17] On April 8, 2013, Mr. James, having received York’s supplemental submissions, filed a letter through his lawyer with evidence that purported to deal with the reasons for his delay in filing his application.
[18] The evidence that Mr. James submitted to the Tribunal through his lawyer on April 8, 2013 consisted of a letter dated April 4, 2013 from Linda Perlis. Ms. Perlis is a social worker, who in her letter confirmed that she is not a psychologist nor a medical practitioner and further confirmed that she could “not make a formal diagnosis” of Mr. James’ medical condition.
[19] The letter from Ms. Perlis indicates that she began providing “professional services” to Mr. James on July 28, 2011. As such, Ms. Perlis would not have been providing services to Mr. James in the one year period immediately after his resignation from York. Nonetheless, Ms. Perlis, in her letter states:
I believe, on the basis of the information shared with me by Mr. James, that the year following his retirement from York University was a period of extreme crack use, interspersed with some intensive, but unsuccessful rehabilitation. It appears that only now, in a period of some stability and mental calm, that Mr. James has been able to reflect on the last few years and consider what, if anything, contributed to the difficulties he experienced during and after leaving York University.
[20] While Ms. Perlis, in her letter of April 4, 2013, states that the year following his “retirement” from York University was a period of extreme crack use for Mr. James, she does not offer any opinion that in this critical time period, because of his crack cocaine use, Mr. James would have been unable to file an application with the Tribunal, as he subsequently did on October 4, 2012.
[21] Having received the correspondence from Mr. James’ counsel on April 8, 2013, together with the letter from Ms. Perlis, the Tribunal released a decision, dismissing Mr. James’ application because he had failed to show that the “delay in filing an application was incurred in good faith” as required under s. 34(2) of the Code. The Tribunal found in its decision that Mr. James had failed to demonstrate that his alleged disability had caused the delay in filing his application.
[22] Mr. James filed for reconsideration of the Tribunal’s decision on February 18, 2014 (the request for reconsideration). The request for reconsideration was made under Rule 26 of the Tribunal’s Rules of Procedure which provides:
A request for reconsideration will not be granted unless the Tribunal is satisfied that:
a) There are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or…
d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of the Tribunal decisions.
[23] The Tribunal publishes a Practice Direction that deals with requests for reconsideration. The Practice Direction highlights the extraordinary nature of such a request as follows:
Decisions of the HRTO are final and are not subject to appeal. However parties may request that the HRTO reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Generally, the HRTO will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where the circumstances outweigh the public interest in finality of orders and decisions.
Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.
[24] Mr. James’ request for reconsideration was submitted to the Tribunal on the basis that there was new evidence which had been previously unavailable and that would have been determinative of his case, as well as on the basis that factors existed which outweighed the public’s interest in the finality of the Tribunal’s decision. In support of his request for reconsideration, Mr. James provided written submissions, together with a significant volume of previously undisclosed evidence that addressed his hardships, his financial circumstances and included correspondence from a number of individuals concerning his situation from the time of his resignation to the time of his initial application.
[25] The Tribunal considered Mr. James’ request for reconsideration and released its decision on March 17, 2014 (the “Reconsideration Decision”). The Tribunal determined in the Reconsideration Decision that Mr. James could have obtained and filed all of the new evidence which had been filed in his request for reconsideration prior to the original decision of the Tribunal which had been released on April 16, 2013. The Tribunal determined that there was no basis to reconsider the original decision and also concluded that Mr. James had failed to demonstrate the exceptional circumstances necessary to outweigh the public interest in the finality of its decisions.
The Position of Mr. James
[26] With respect to the Tribunal’s original decision, Mr. James argues that the Tribunal ignored medical evidence; specifically, the Perlis letter which addressed his inability to file an application to the Tribunal within the one year limitation period. Mr. James argues that the Tribunal fundamentally misunderstood the extent of his medical disability that was caused by his crack cocaine addiction. As such, Mr. James argues that the original decision of the Tribunal was unreasonable.
[27] With respect to the Reconsideration Decision, Mr. James argues that the Tribunal unreasonably denied his request and failed to properly consider his position; specifically, that he was unemployed without income and was in poor health, suffering from a crack cocaine addiction that explained his inability to file his application within the one year time period specified by s.34 of the Code.
[28] Mr. James was self-represented before this Court. Mr. James did, however, have the benefit of legal counsel at the time that he filed the evidence of Linda Perlis. In fact, Mr. James would have filed the letter of Linda Perlis at a point in time when he knew, from the respondent’s supplemental submissions filed with the Tribunal on April 1, 2013, that York took the position that he had failed to meet the test for establishing good faith delay and that this included the requirement to file medical evidence to establish that his disability had caused his delay in filing his application.
[29] Both in his well-reasoned written submissions, as well as in his compelling oral submissions, Mr. James argues that the Tribunal failed to consider how he could obtain “medical evidence” at a point in time when he was not being treated for his addiction, and when he was making efforts to rehabilitate himself, he was doing so anonymously. Mr. James argues that drug addicts are not always treated in what might be described as the traditional healthcare system and are often given treatment anonymously. Essentially, Mr. James argues that it was difficult, if not impossible, to obtain the medical evidence required.
[30] With respect to the question of the fairness of the Tribunal’s procedure, Mr. James submits that the process followed by the Tribunal was procedurally unfair. In his written submissions, Mr. James argues that neither York, nor the Tribunal, alerted him to the fact that “medical evidence” addressing the delay in the filing of his application was required under s.34 of the Code, and as such it was unfair for the Tribunal to require such evidence. Mr. James argues that he was entitled to rely upon his legitimate expectation that medical evidence was not required and, as such, he would be subject to a lower burden of proof when he prepared his submissions. Mr. James argues that the Tribunal’s departure from its own Rules was procedurally unfair and therefore demonstrated a bias. In his oral submissions, Mr. James did not pursue the issue of bias.
[31] Mr. James argues that the exception to the limitation period set forth in s. 34(2) of the Code recognizes that the Tribunal has a duty to accommodate complainants who come before it. Mr. James further argues that s.40 of the Code provides that the Tribunal may tailor its procedures on a case-by-case basis without being bound by its Rules to “offer the best opportunity for a fair, just and expeditious resolution of the merits of the application”. Finally, on the question of procedural fairness, Mr. James argues that s. 43(8) of the Code provides that an unreasonable exercise of the Tribunal’s discretion to choose its own procedures is reviewable if it “caused a substantial wrong - which affected the final disposition of the matter”.
[32] Dealing with the reasonableness of the Tribunal’s original decision, Mr. James argues that the Tribunal’s analysis, using the Dionne test, was unreasonable. Mr. James does not accept that a medical expert is best suited to provide evidence of the impact of the various factors that could explain the delay in filing his application with the Tribunal.
[33] With respect to the Reconsideration Decision, Mr. James argues that the Tribunal’s denial of his request was unreasonable because he was not obligated to seek medical evidence before the original decision, given that the issue of medical evidence was not raised at the time of the request to dismiss. Mr. James also relies on Rule 26.5(d) to argue that his request was a matter of general or public importance, in that it promotes access to justice and the dignity of marginalized disabled persons.
Position of York University
[34] York denies that Mr. James was denied fair process. York points out that Mr. James received notice of York’s intent to request a dismissal of his application on the basis of delay, and that Mr. James was given a full opportunity to file submissions with relevant evidence addressing the explanation for his delay. By receiving notice of York’s position, Mr. James should have known that he was required to file medical evidence within the definition of what has become known as the Dionne test. As such, York suggests that this completely satisfies the procedural fairness requirement.
[35] According to York, the Tribunal had made it clear, in its letter of March 8, 2013, that Mr. James had to file “complete submissions” and “all documents relevant” to the issue of York’s request for dismissal for delay. York submits that the Tribunal had flexibility to determine the appropriate procedure and that its discretion was only reviewable if a “substantial wrong” had been caused.
[36] York emphasizes that its supplemental submissions made explicit reference to Dionne and the medical evidence requirement (albeit, not that he had to submit a medical diagnosis). York points out that when Mr. James filed his reply and supplemental evidence he was represented by counsel and, therefore, should have known the significance of the Dionne test and its requirement to file medical evidence.
[37] As to the reasonableness of the Tribunal’s initial decision, York argues that the decision was reasonable and, as outlined in Shaw v. Phipps, 2012 ONCA 155, the decision of the Tribunal is owed deference where it makes findings of fact and applies its own jurisprudence in accordance with its specialized expertise.
[38] York submits that the Tribunal properly relied upon Miller v. Prudential Real Estate, 2009 HRTO 1241 and Dionne, supra, which make it clear that in order to establish that the delay in filing an application was incurred in good faith as a result of disability, the medical evidence must establish not only the disability, but also that the delay resulted from that disability. Only where the medical evidence establishes the necessary causal link between the disability and the delay will the delay be found to have been incurred in good faith.
[39] York submits that even if it was determined that Ms. Perlis’ evidence was medical evidence, that evidence did not address the causal link between Mr. James’ disability and the delay in the filing of his application.
[40] With respect to the Reconsideration Decision, York notes that the grounds for reconsideration are narrow. As such, the Tribunal acted reasonably when it denied Mr. James’ request for reconsideration. Specifically, York submits that Mr. James fails, under Rule 26.5(a), because the documentation that he filed in support of his request for reconsideration either was available, or could have been obtained by him, before the Tribunal’s original decision. As to Rule 26.5(d), York submits that the Tribunal reasonably found that there were no “compelling and extraordinary” circumstances that outweighed the public’s interest in the finality of the Tribunal’s decision.
Standard of Review
[41] The Code confers on the Tribunal the jurisdiction to determine all questions of fact or law that arise in any application before it. Decisions on applications to the Tribunal are final and binding and are only subject to judicial review as set forth in s.45.8 of the Code, which states:
A decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable.
[42] In addition to the privative clause contained in s.45.8 of the Code, the Code also contains a second privative clause that is specifically applicable to the review of the Tribunal’s decisions regarding the exercise of its discretion under its Rules. Section 43(8) of the Code provides:
Failure on the part of the Tribunal to comply with the practices and procedures required by the Rules, or in the exercise of a discretion by the Tribunal in a particular manner is not a ground for setting aside a decision of the Tribunal on an application for judicial review or any other form of relief, unless the failure of the exercise of discretion caused a substantial wrong which affected the final disposition of the matter.
[43] The parties before this Court agree that the question of whether the procedure adopted by the Tribunal was fair is not subject to a standard of review analysis. In that regard, as Swinton J. indicated at paragraph 10 of her decision in Iyirhiaro v. The Human Rights Tribunal of Ontario and Toronto Transit Commission 2012 ONSC 3015:
With respect to the issue of natural justice, the court need not determine the standard of review. Rather, the court must decide if the requisite fairness was afforded.
[44] Other than with respect to the question of fairness, the parties agree that the applicable standard of review is reasonableness.
Analysis
Was the Tribunal’s Decision Reasonable?
[45] The Code requires someone like Mr. James, who wishes to make a Human Rights application to the HRTO, to do so within one year of the last alleged incident that gives rise to the complaint. Section 34(2) of the Code allows for an extension of the one year limitation period if the HRTO is satisfied that the delay in filing the application was incurred “in good faith”.
[46] The fundamental question, which the HRTO must deal with when confronted with a request to extend the one year limitation period set forth in section 34(1) of the Code, is whether the applicant has presented a “reasonable explanation” for the delay. Something more than an absence of bad faith is required – hence the necessity for medical evidence.
[47] We can see nothing unreasonable in the practice that has developed from the HRTO jurisprudence (which was properly followed in this case), which has consistently required medical evidence that establishes that someone’s disability was so debilitating as to prevent an applicant like Mr. James from pursuing his or her legal rights under the Code – see Dionne, supra.
[48] It accords with common sense that if someone seeks to extend the one year limitation period set forth in section 34(1) of the Code, the applicant seeking such relief must put before the HRTO medical evidence that explains the applicant’s disability and how that disability prevented the applicant from filing his or her application in a timely fashion. Such a practice, as has developed within the HRTO jurisprudence, is entirely reasonable.
[49] On the facts of Mr. James’ case, while we leave open for another day whether the opinion of a social worker might be considered medical evidence, we see nothing unfair nor unreasonable in the Tribunal’s decision to reject the evidence of Ms. Perlis because of her failure to draw a causal link between Mr. James’ disability and his delay in the filing of his application. Ms. Perlis admitted that she was not qualified to give a medical diagnosis but, more importantly, nowhere in her letter does she state that Mr. James was so impaired by his cocaine addiction that he could not file an application with the HRTO in a timely fashion. The failure to draw such a causal link was fatal to Mr. James’ application.
[50] The Tribunal’s decision followed a consistent line of jurisprudence at the HRTO, which stands for the proposition that medical evidence which simply points to a disability is not enough to meet the good faith requirement of section 34(2). The medical evidence must establish a causal link between the disability and the inability to file an application within the one year limitation period set forth in section 34(1) of the Code. There is nothing unreasonable in the application of the Tribunal’s decision in requiring such a causal link.
Was the Tribunal’s Procedure Fair?
[51] Despite Mr. James’ eloquent arguments to the contrary, we cannot accept that the procedure adopted by the Tribunal was unfair. If the facts had been that Mr. James was not given the opportunity to put argument and evidence before the Tribunal addressing the issue of delay, the result may have been different.
[52] The fact remains that Mr. James knew, from the supplemental submissions filed by York with the Tribunal on April 1, 2013, that York relied on earlier decisions of the Tribunal, including Miller, supra, that the onus on applicants to provide a reasonable explanation for any delay in bringing forward his or her claim is a high one. Mr. James also knew from these supplemental submissions that York was relying on earlier decisions of the Tribunal that where delay was alleged to have been caused by disability, the Tribunal required medical evidence that addressed how and why the disability prevented someone like Mr. James from pursing his legal rights within the required the deadline. Mr. James knew from the supplemental submissions of York University that this requirement has been strictly applied by the Tribunal. He also knew from the supplemental submissions filed by York that he not only had to provide medical evidence of disability, but also that this evidence had to indicate that his disability prevented him from being able to file his application within the one year deadline.
[53] In response to the explicit position taken by York in its supplemental submissions, Mr. James, with the assistance of counsel, sent correspondence dated April 8, 2013 to the Tribunal along with the letter dated April 4, 2013 authored by Linda Perlis.
[54] We see nothing unfair in the procedure adopted by the Tribunal nor do we find anything unfair in the application of that procedure to the facts of this case. Mr. James had every opportunity, with the knowledge provided to him by the supplemental submissions filed by York, to know that he had an obligation to file medical evidence that not only addressed his disability, but also provided an explanation as to how that disability caused him to be unable to file his application within the one year limitation period provided by s. 34 of the Code.
[55] While it is not determinative of our decision in this regard, we also note that Mr. James had the benefit of the assistance of legal counsel when he filed the letter of Linda Perlis. Ms. Perlis’ letter failed to address the necessary causal link between Mr. James’ cocaine addiction and his inability to file his application with the HRTO in a timely fashion, thereby satisfying the requirements of the procedure well defined in the Tribunal’s jurisprudence. As well, again, while not determinative of this issue, we take note of the fact that neither Mr. James nor his counsel asked for further time to obtain more evidence to address the delay issue.
The Reconsideration Decision
[56] As to the Reconsideration Decision, it is important to note that the Tribunal’s decision is final and not subject to any right of appeal. A request for reconsideration therefore is not an appeal, nor is it an opportunity for someone like Mr. James to repair deficiencies in the original presentation of his case.
[57] The Supreme Court of Canada in Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487 at para. 35-37, has recognized that deference is particularly necessary when legislation like the Code calls for the expeditious resolution of applications before it. As the Supreme Court of Canada indicated in its decision in this regard, the failure to give deference in such circumstances can lead to “endless protraction” of disputes. It is clear from a review of the Code that the legislator has given a very clear direction that Tribunal decisions are to be given a high degree of deference so as to ensure that human rights disputes can be resolved in an expeditious manner.
[58] In my view, the Reconsideration Decision was both reasonable and fair. Further, I am satisfied that the Tribunal reasonably concluded that this was not an appropriate case for exercising its discretion to reconsider its original decision as there were no compelling and extraordinary circumstances for doing so and there were no circumstances which outweighed the public interest in the finality of orders and decisions of the Tribunal.
[59] While Mr. James did place before the Tribunal, in his request for reconsideration, new documentation that purported to explain the delay in his application and the causal link between that delay and his medical condition, there is nothing in the evidence to suggest that this evidence could not have been obtained earlier by Mr. James or his counsel, through the exercise of reasonable and due diligence.
[60] Mr. James was afforded every opportunity to provide the necessary medical evidence explaining the delay in his application and the causal link between the delay and his medical disability brought on by his addiction to crack cocaine. Mr. James did not put his best foot forward as required by the Tribunal, and it was not open to Mr. James, in his request for reconsideration, to essentially re-do his application with the benefit of evidence that was open to him to have provided to the Tribunal when he was given the opportunity to explain his delay. There was nothing unfair, nor was there anything unreasonable in the approach adopted by the Tribunal when it refused to reconsider its original decision.
Conclusion
[61] The application of Mr. James is therefore dismissed. The parties have agreed that, regardless of the outcome of this application, there would be no costs awarded. In accordance with this concession, the application is dismissed without costs.
M. Edwards J.
Sachs J.
Hambly J.
Released: June 23, 2015
2015 ONSC 2234
DIVISIONAL COURT FILE NO.: 206/14
DATE: 20150623
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Hambly and M. Edwards JJ.
BETWEEN:
Paul James
Applicant
-and-
York University and Ontario Human Rights Tribunal
Respondents
REASONS FOR JUDGMENT
M. Edwards J.
Released: June 23, 2015