Garaad v. Regional Municipality of Peel Police Services Board

HUMAN RIGHTS TRIBUNAL OF ONTARIO

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B E T W E E N:

Hodan Garaad

Applicant

-and-

Regional Municipality of Peel Police Services Board and

Office of the Chief of the Peel Regional Police

Respondents

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DECISION

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Adjudicator:            Ena Chadha

Date:                          October 18, 2010

File Number:            2010-05977-I

Citation:                    2010 HRTO 2101

Indexed as:              Garaad v. Regional Municipality of Peel Police Services Board

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[1]               This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination with respect to services on the basis of race, colour, ancestry, place of origin, ethnic origin, creed, sex, family status, and marital status. The Application was filed on June 15, 2010. The allegations in the Application concern a January 27, 2009 altercation involving the applicant and members of the respondent police service. 

[2]               On August 31, 2010, the respondents filed a Response and a Request for an Order During Proceedings. The respondents request the Tribunal dismiss the Application due to delay and under section 45(1) of the Code as appropriately dealt with by another proceeding.

[3]               On October 6, 2010, the applicant filed written submissions opposing the respondents’ Request.

Decision

[4]               Section 34(1) of the Code provides that a person may file an
application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

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.

[5]               The applicant acknowledges that, because the last incident alleged in her Application was January 27, 2009, her Application was filed outside of the one year deadline. The applicant states that she was unable to file her Application in a timely manner because she was initially unaware of her right to seek recourse from the Tribunal and that the legal advice she obtained after the January 2009 altercation recommended that she launch a civil lawsuit against the police. The applicant indicates that she subsequently sought advice from the Human Rights Legal Support Centre, at which time she was informed that she would need to select the forum in which she wished to seek redress. The applicant claims that, because of her limited English language skills, she did not understand what it meant to select a forum. The applicant further indicates that she “lacked motivation to do anything” as a result of developing severe depression due to the altercation. The applicant submits that she was only able to pursue this Application when she sought the advice of her current legal advisor.

[6]               The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241 (CanLII). As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 (CanLII), 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.

[7]               The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and 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. The fact that a person is pursuing other avenues is not generally accepted as a valid or good faith reason for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 (CanLII).

[8]               The Tribunal has stated that although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must also establish that he or she had no reason to make inquiries about his or her rights. See Stewart v. Mitten Vinyl, 2010 HRTO 1628 (CanLII).

[9]               Although the applicant alleges that she was too depressed to seek human rights recourse, the documentary material in the file indicates that in the year following the altercation the applicant explored several other legal avenues of pursuing her rights. The documentary materials confirm that the applicant was involved in an investigation of the altercation by the Ontario Police Service Special Investigation Unit (“SIU”). In March 2009, the applicant was informed by the SIU that there were no reasonable grounds to believe the subject police officer committed a criminal offence in relation to the applicant. Subsequently, on March 29, 2009, the applicant initiated a Public Complaint pursuant to the Police Services Act with the Public Complaint Investigation Bureau. The applicant filed a detailed two page handwritten letter describing the altercation and her allegations of mistreatment.

[10]           The documentary materials confirm that, on June 24, 2009, the applicant was interviewed by a lawyer with the Human Rights Legal Support Centre (“HRLSC”), an independent government agency that provides legal services to individuals who believe that they have experienced discrimination. On July 6, 2009, the applicant had a personal meeting with the HRLSC lawyer, who also communicated with a civil lawyer the applicant had retained. The documentary materials confirm that during this time the applicant was participating in the investigation of her public complaint and, specifically, that the applicant and her civil lawyer met with a member of the Public Complaint Investigation Bureau on July 9, 2009. The documentary materials also indicate that, on July 16, 2009, the applicant, through her civil lawyer, notified the respondent police service of her intention to sue in accordance with the Proceedings Against the Crown Act. Subsequently, in August 2009, the HRLSC lawyer wrote to the applicant to confirm that the HRLSC was ending its retainer with the applicant. In this correspondence, the HRLSC lawyer noted that the applicant had chosen to pursue her civil claim and, if she changed her mind and opted to pursue a human rights claim, the applicant could return to the HRLSC for services. The letter explicitly stated that the applicant “must file [her] application with the Tribunal by January 27, 2010.”

[11]           On review of the material before me, I am satisfied that this Application may not proceed. The applicant has not provided a reasonable explanation for the delay that leads to the conclusion that it was incurred in good faith. I do not accept the applicant’s contention that she was unable to file her Application in a timely manner due to lack of awareness of her legal rights and depression. The documentary materials provide ample examples of the applicant’s active pursuit of her legal rights and specific confirmation that the applicant was alerted to the Code’s one year timeline.

[12]           I note that the applicant provided medical documentation confirming that the applicant experienced psychological trauma as a result of the police altercation. However, the medical documentation does not address or provide any opinion as to why the applicant was unable to commence a human rights proceeding within one year following the incident, particularly when she consulted legal advisors during that timeframe and pursued other legal claims against the respondents regarding the concerns raised in her Application. I also note that all medical documentation provided from the summer of 2009 recorded that the applicant spoke adequate English and that she had reasonable insight and judgment and no cognitive impairment. While in her submissions the applicant suggests that because of her limited English she did not appreciate the meaning of selecting a forum, the applicant has provided no explanation for why she could not have had her civil lawyer explain the meaning to her, or have someone else explain it, between August of 2009 and the time this Application was ultimately filed.

[13]           Based on the information before the Tribunal, the applicant has not demonstrated why she could not meet the required deadline and that the delay in filing this Application was incurred in good faith as required under section 34(2) of the Code. Although the applicant may well have experienced mental health concerns following the incident, she has not established that she could not have pursued her rights within the timeline mandated by the Code. Accordingly, the Application, filed over one year later does not meet the requirements of section 34(1).

[14]           In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.  

[15]           Given the disposition with respect to delay, it is not necessary to determine the issue of whether or not this Application should be dismissed under section 45(1).

[16]           The Application is dismissed.

Dated at Toronto this 18^th day of October, 2010.

“Signed by”

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Ena Chadha

Vice-chair