[1]         The applicant filed an Application alleging discrimination based on race, ethnic origin, sex with respect to goods, services, facilities contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). On November 1, 2019, the applicant alleged that as a Councillor for Fort William First Nation she attended at the Thunder Bay Police Services for a Tree of Hope meeting.  After signing in and upon exiting the elevator to the appropriate floor she encountered Staff Sergeant Dimini and Holly Walbourne “…in an obviously intimate conversation”.  The applicant alleged that the Staff Sgt. Dimini immediately moved toward her, in what she describes as a “threatening manner” demanding to know what business she had on the second floor.   She also alleged that Staff Sgt Dimini glared at her “in the familiar anti-Indigenous derogatory manner”.

[2]         The Application was filed on September 29, 2022.   

[3]         The Tribunal sent the applicant a Notice of Intent to Dismiss the Application dated October 5, 2022 (the “Notice”), advising that the Application appears to fall outside the jurisdiction of the Tribunal on the basis that the the Application appears to have been filed more than one year after the last incident of discrimination described in the Application and that the incidents set out in the Application fail to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondents.  

[4]         This decision was made following a hearing in writing. As noted by the Divisional Court in Iyirhiaro v. Human Rights Tribunal of Ontario and TTC, 2012 ONSC 3015, the Tribunal is not required to hold an oral hearing on the issue of its jurisdiction.

[5]           To proceed in the Tribunal’s process, an application must fall within the Tribunal’s jurisdiction. An adjudicative body either has jurisdiction or it does not. See G.-L. v. OHIP (General Manager), 2014 ONSC 5392.

[6]         Pursuant to section 34(1) of the Code, the Tribunal has no jurisdiction to address allegations that relate to incidents that occurred more than one year prior to the filing of the application or, if there was a series of incidents, where the last incident in the series occurred more than one year prior to the filing of the application, unless the Tribunal is satisfied that: 

[7]         As the Application was filed on September 29, 2022, to come within the one-year limitation period, the last alleged incident of discrimination must have occurred after September 29, 2021.  However, the applicant listed the date of the last event as November 1, 2019.

[8]         In determining the length of the delay, I have considered the Emergency Order (O. Reg 73/20) under the Emergency Management and Civil Protection Act, which suspended limitation periods and procedural time periods relevant to the Tribunal’s proceedings from March 16, 2020, to the date it was lifted on September 14, 2020. This means that the date to be used for the purposes of calculating the applicable one-year limitation period to this Application would be May 1, 2021 (136 days prior to March 16, 2020, and 229 days after September 14, 2020), rendering the Application 517 days late.

[9]           In this case the applicant concedes that the last incident of discrimination took place on November 1, 2019. As such, given the delay of 517 days, I find that the allegations are untimely. 

[10]      Section 34(2) of the Code provides that the Tribunal may accept an untimely application if the delay in its filing was incurred in good faith. The applicant has failed to set out a good faith explanation for the delay in filing the Application. 

[11]      The Tribunal has set a very high onus on applicants to provide a reasonable explanation for the delay.  See  African Canadian Legal Clinic v. Legal Aid Ontario, 2010 HRTO 1255, at para. 14; and Klein v. Toronto Zionist Council, 2009 HRTO 241.

[12]      The applicant does not provide details to support a good faith explanation for the 517-day delay.  Rather, they attempted to distinguish cases cited in the Notice, Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 and Thomas v. Toronto Transit Commission, 2009 HRTO 1582, from the applicant’s lived experiences.  The submissions were that these cases which dismissed the applications as extending beyond the one-year limitation period did not take into account the “…life of an Indigenous woman and her family struggling with trauma related impacts” and “continued bad faith by police leadership”.

[13]      The applicant also states that preventing an opportunity for adjudication of this complaint would affirm the bad faith action of the respondents. I appreciate and empathize with the applicant’s life experiences.  However, limitation periods are a critical part of administrative and civil proceedings. 

[14]      Pursuant to s. 40 of the Code, the Tribunal is tasked with disposing of Applications in a manner that is fair, just, and expeditious. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, paras. 24 & 25, the Tribunal explained the connection between this mandate and the statutory requirement for requiring a good faith reason to accept that delay was incurred in good faith as follows:

[15]      Further, the applicant refers generally to trauma related impacts and although she does not include a reference to or details of a disability to support a good faith explanation, I will nevertheless refer to Paul James v. York University and Ontario Human Rights Tribunal (“James”), 2015 ONSC 2234. In this case, a binding authority upon me, the Court found that there is nothing unreasonable with the Tribunal’s consistent practice of requiring medical evidence that establishes that someone’s disability was so debilitating to prevent them for pursing their legal rights under the Code.  Further, simply pointing to a disability is not enough to meet the good faith requirement of section 34(2).  “The medical evidence must establish a casual 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”. See James at para. 50.

[16]      I note that the applicant has not provided any facts or evidence that support a good faith explanation for the delay in filing the Application.  Given the finding of the absence of a good faith explanation, I need not address the issue of whether the respondents would be prejudiced by the delay.

[17]      As the Application is untimely, it is unnecessary to address whether the Application sets out incidents of alleged discrimination, committed by the respondents, that falls within the meaning of the Code. 

[18]      For the reasons set out above, the Application is dismissed as untimely as it falls outside the Tribunal’s jurisdiction.