Zaki v. Ontario (Community and Social Services) (No. 1)
2009-01248-I
2009-10-02
2009 HRTO 1595
Ontario Human Rights Tribunal
CHRR Doc. 09-2130
Ali Zaki
Applicant
v.
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and Alodia Scott
Respondents
Before: Human Rights Tribunal of Ontario, David A. Wright
HUMAN RIGHTS TRIBUNALS — review actions of another administrative tribunal — PUBLIC SERVICES AND FACILITIES — INTERPRETATION OF STATUTES — adjudicative function — definition of services
Summary: The Human Rights Tribunal of Ontario dismissed an allegation of discrimination against the Social Benefits Tribunal of Ontario and Frank Miclash. However, it will proceed with allegations of discrimination based on disability, race and ethnicity against the Ministry of Community and Social Services.
Mr. Ali Zaki alleged that he was discriminated against by the Ministry when his Mandatory Special Necessities ("MSN") benefits were terminated. He alleges that after he moved to Guelph from Toronto in early 2007, the Guelph office of the Ministry discriminated against him in making that decision, and he believes that his race, ancestry, ethnic origin and disability were among the reasons that the benefit was removed. Mr. Zaki also alleged that the Social Benefits Tribunal ("SBT"), which upheld the termination of his benefit, discriminated against him on the basis of disability. He was unable to participate in the oral hearing of his appeal because of his disability and he argues that the SBT "invariably dismisses the appeals of persons who cannot attend the hearing, regardless of the reason for the absence or the merit of the appeal". The SBT upheld the termination of the benefit on the grounds that Mr. Zaki had not provided a new form filled out by a physician to justify his MSN benefit.
The Human Rights Tribunal found that it must examine whether the complaint is about the adjudication or the denial of benefits. The provision of the MSN benefit is a service within the meaning of the Code. However, the content of the adjudicative decision is not a service. It is not the content of the decision or reasons that is the alleged violation of the Code, but the inability of the applicant to obtain services because of discrimination. The SBT has no ability to provide MSN funding. Consequently, the complaint against the SBT and Frank Miclash was dismissed.
The complaint will proceed against the Ministry. The complainant must show that there was discrimination in requiring him to provide a new physician's form in order to maintain his MSN benefit.
CASES CITED
Baird v. Ontario (Workplace Safety and Insurance Appeals Tribunal) (2009), CHRR Doc. 09-0154, 2009 HRTO 99: 7, 12
Barker v. S.E.I.U, Local 1 (No. 2) (2009), CHRR Doc. 09-1711, 2009 HRTO 1253: 10
Campbell v. Toronto Dist. School Board (No. 1) (2008), 65 C.H.R.R. D/211, 2008 HRTO 62: 16
Christianson v. Ontario (Community Safety and Correctional Services) (No. 2) (2009), CHRR Doc. 09-1013, 2009 HRTO 752: 8
Christianson v. Ontario (Social Benefits Tribunal) (No. 1) (2009), CHRR Doc. 09-1259, 2009 HRTO 886: 10
Dann v. Wallace (No. 2) (2009), CHRR Doc. 09-0556, 2009 HRTO 392: 12
Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, 2001 SCC 80; (2000), 48 O.R. (3d) 329 (C.A.): 9
Gibson v. Ontario (Attorney General) (2009), CHRR Doc. 09-1243, 2009 HRTO 870: 10
Hogan v. Ontario (Ministry of Health and Long-Term Care) (No. 4) (2006), 58 C.H.R.R. D/317, 2006 HRTO 32: 11
Jacob v. Workplace Safety and Insurance Board of Ontario (No. 1) (2009), CHRR Doc. 09-1997, 2009 HRTO 1483: 10
Kentebe v. Haggerty (2009), CHRR Doc. 09-1605, 2009 HRTO 1163: 10
Lindberg v. Workplace Safety and Insurance Board of Ontario (No. 1) (2009), CHRR Doc. 09-0367, 2009 HRTO 250: 10
Ontario (Attorney General) v. Ontario (Human Rights Comm.) (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455, 62 C.H.R.R. D/315 (Div.Ct.): 11
Ontario (Disability Support Program) v. Tranchemontagne (2009), 2009 CanLII 18295 (ON SCDC), 95 O.R. (3d) 327, CHRR Doc. 09-2271 (Div.Ct.): 11
S.B. v. Children's Aid Society of Toronto (No. 1) (2009), CHRR Doc. 09-1257, 2009 HRTO 884: 10
LEGISLATION CITED
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 1: 1, 11
s. 34: 1
s. 34(11): 9
s. 45: 9
s. 45.1: 9, 16
Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B: 2
1This interim decision addresses the issue of statutory decisions and the meaning of "services" under s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The application, filed under s. 34 of the Code, names four respondents: the Ministry of Community and Social Services ("Ministry"), Alodia Scott, the Social Benefits Tribunal ("SBT"), and Frank Miclash. The SBT and Miclash have filed a request for order during proceedings asking that the application be dismissed, or, in the alternative, that it be dismissed as against them. They also ask, in the further alternative, that Mr. Miclash be removed as a personal respondent.
THE APPLICATION
2The applicant is a recipient of benefits under the Ontario Disability Support Program, which is administered by the Ministry under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, sched. B. The applicant alleges that he was discriminated against by the Ministry when his Mandatory Special Necessities ("MSN") Benefits were terminated. He alleges that after he moved to Guelph from Toronto in early 2007, the Guelph office of the Ministry discriminated against him in making that decision, because he believes his race, ancestry, ethnic origin and disability were among reasons that the benefit was removed. In relation to disability, he argues that "his disability-engendered need for a high level of MSN supplies" was considered by the Ministry and in relation to the other grounds, he argues that he "is an ethnic minority, and his minority status is more obvious in a community like Guelph, which is more homogenously Caucasian than Toronto".
3Mr. Zaki also argues that the SBT discriminated against him on the basis of disability. He argues that he was unable to participate in the oral hearing of his appeal of the Ministry decision because of his disability, and he states his belief that the SBT "invariably dismisses the appeals of persons who cannot attend the hearing, regardless of the reason for the absence and regardless of the merit of the appeal".
4The Ministry terminated the applicant's MSN benefit, it says, because the applicant did not provide a new MSN Benefit Request Form as it required of him. The applicant takes the position that he should not be required to submit the form completed by his physician, since the physician had previously indicated that the applicant's condition was permanent.
5On February 7, 2007, the applicant was sent a letter on behalf of the Ministry that stated that he needed to complete a new MSN form by May 1, 2007, in order to avoid disruption in his benefits. On May 2, 2007, he was advised that the form had not been received and that the benefit would end on June 30, 2007, unless a new form completed by a qualified medical professional was received. On September 4, 2007, the applicant was again advised, in a letter signed by the personal respondent Ms. Scott, that he was required to provide the form. On August 8, 2007, the applicant was advised that the benefit ended on June 30, 2007, as a result of the fact that he had not completed the required form. Mr. Zaki then requested an "internal review". By letter dated August 31, 2007, the applicant was advised by letter signed by Ms. Scott that the internal review had been completed and the decision was not changed.
6The applicant appealed the Ministry's decision to the SBT, which has statutory authority to determine such matters. A hearing was held on August 21, 2008. The applicant was unable to attend the hearing, he says, because of his disability, and so he made representations by written submissions. The appeal was denied by decision dated August 29, 2008, signed by a Member of the Tribunal. The applicant applied for reconsideration of this Decision. By letter dated December 2, 2008, the Acting Chair of the Social Benefits Tribunal, Frank Miclash, denied the application for reconsideration.
ANALYSIS
Adjudicative Functions and the Definition of "Services"
7In a series of cases, the Tribunal has considered whether statutory decision making, or aspects of it, fall under the definition of "services" in the Code. In Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 [CHRR Doc. 09-0154], the Tribunal explained as follows, at § 12:
The application of the Code and the powers of the Tribunal are specifically enumerated in the Code. Pursuant to s. 1, every person has the right to equal treatment "with respect to services, goods and facilities". While a statutory decision-making process is a "service" for the purposes of the Code, there are elements of that process that are not encompassed by the Code's meaning of "service", such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the "service" a statutory Tribunal is providing to the public. The decision is, therefore, not subject to the Tribunal's jurisdiction.
8In Christianson v. Ontario (Community Safety and Correctional Services), 2009 HRTO 752 [CHRR Doc. 09-1013], the Tribunal expanded upon these principles, noting that aspects of a tribunal's functions do fall within the definition of "services". At § 8—12, it stated:
It is true that within the Tribunal's jurisprudence, the scope of what may constitute a service within the meaning of the Code, as it pertains to the activities of adjudicative bodies is not yet fully developed. For example, in Dann v. Wallace, 2009 HRTO 392 [CHRR Doc. 09-0556] the Tribunal held that an adjudicator's comments at a hearing, about her findings, are an element of the decision making process that is not a "service" under the Code. However, in Lindberg, the Tribunal suggested the possibility that some actions of an adjudicative body might be subject to the Code:
The Tribunal has ruled that the services offered by statutory tribunals do not extend to their final adjudicative decisions: Baird v. Workplace Safety and Appeals Tribunal, 2009 HRTO 99 [CHRR Doc. 09-0154] at para. 13. This does not mean, however, that statutory tribunals enjoy blanket immunity from complaints grounded in the Code. In providing their services to the public, it is possible that statutory tribunals could run afoul of the Code.
In the present case, the applicant has failed to allege incidents or actions that involve the services of the OCCPS, within the meaning of the Code. Rather, the allegations all fall squarely within the adjudicative function of the OCCPS and specifically to its interpretation and application of its enabling legislation.
Whatever aspects of a tribunal's functions may fall within the scope of the Code, I am satisfied that in this case, the Application relates to the adjudicative functions of OCCPS.
The Application takes issue with OCCPS decision, and the fact that by dismissing the complaint, OCCPS is denying the applicant the right to a full and proper investigation by the police of the various allegations of perjury and misconduct. The applicant has not alleged any facts which suggest that OCCPS, as an agency, in the exercise of its administrative functions, denied him services based on a prohibited ground of discrimination. Neither is there anything in the Application which alleges that the adjudicative process was exercised in a discriminatory way, or posed barriers to him because of a disability, even assuming that such a claim would fall within the scope of the Tribunal's jurisdiction.
9Adjudicative decision-makers must make decisions independently based upon the law, and the law generally does not impose civil liability on adjudicators for the decisions they make: see Edwards v. Law Society of Upper Canada (2000), 48 O.R. (3d) 329 (C.A.); aff'd 2001 SCC 80, [2001] 3 S.C.R. 562. The Code and the Tribunal rules include various provisions dealing with the existence of other proceedings about the same matter and the circumstances in which an application will be deferred or dismissed: see especially ss. 45, 45.1, s. 34(11) of the Code. This scheme, in my view, is inconsistent with the imposition of Code liability against a statutory decision-maker for the content of a decision.
10These principles have been applied in various other cases: see, for example, Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 250 [CHRR Doc. 09-0367]; Gibson v. Ontario (Attorney General), 2009 HRTO 870 [CHRR Doc. 09-1243]; S.B. v. Children's Aid Society of Toronto, 2009 HRTO 884 [CHRR Doc. 09-1257]; Christianson v. Social Benefits Tribunal, 2009 HRTO 886 [CHRR Doc. 09-1259]; Kentebe v. Haggerty, 2009 HRTO 1163 [CHRR Doc. 09-1605]; Barker v. Service Employees International Union, 2009 HRTO 1253 [CHRR Doc. 09-1711]; Jacob v. Workplace Safety and Insurance Board, 2009 HRTO 1483 [CHRR Doc. 09-1997].
Government Programs and "Services"
11It is well-established that government programs of various types constitute "services" within the meaning of s. 1 of the Code: see, for example, Director, Ontario Disability Support Program v. Tranchemontagne (2009), 2009 CanLII 18295 (ON SCDC), 95 O.R. (3d) 327 [CHRR Doc. 09-2271] (Div.Ct.); Ontario (Attorney General) v. Ontario (Human Rights Commission) (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 [62 C.H.R.R. D/315] (Div.Ct.); Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32 [reported 58 C.H.R.R. D/317]. In some cases, entitlement to such benefits will be determined in a decision in which statutory criteria are applied.
12This Tribunal's leading cases involve circumstances in which the decision-maker adjudicated disputes between others and did not provide benefits itself. The applications related exclusively to the content and reasons of the decision. For example, the Workplace Safety and Insurance Appeals Tribunal, the respondent in Baird, hears appeals from decisions of the Workplace Safety and Insurance Board, but does not itself provide benefits. The Landlord and Tenant Board, where the respondent in Dann [CHRR Doc. 09-0556] was an adjudicator, determines disputes between landlords and tenants but does not itself provide rental housing. The Ontario Civilian Commission on Police Services, the respondent in the Christianson case quoted above, was dealing with complaints about police services but does not provide such services itself.
13Other circumstances involve not merely the adjudication of rights between others but also the provision of a benefit or other privilege by the agency itself. The social area of "services" clearly covers the underlying benefit. Therefore, in determining whether an application relates exclusively to the "content, reasons or result" of an administrative decision under the Baird analysis, the Tribunal must examine whether the claim is exclusively about the adjudication or decision or whether the applicant is making a claim about his or her inability to obtain benefits or other services from the respondent. In the latter case, while there is a statutory decision involved, the provision of the benefit or privilege is a "service" within the meaning of s. 1 of the Code, and the applicant may argue that he or she has experienced discrimination in the provision of that service. However, the content of the decision itself is not a service within the meaning of the Code. It is not the content of the decision or reasons that is the alleged violation of the Code, but the alleged inability of the applicant to obtain the services, but for the alleged discrimination.
14This is not to say that an institution that provides dispute resolution, including adjudication, can never be found to have violated s. 1. There may be cases in which the manner in which the institution provides aspects of its services amounts to discrimination on a ground in the Code. However, in those cases, the claim against the institution cannot be that the decision is wrong, that the adjudicator failed to reach the appropriate outcome because he or she misapplied the Code or human rights jurisprudence, or that the result was different because of discrimination.
15Whether the allegation against the respondent relates exclusively to the decision or to a service under the Code can often be determined by examining the remedy requested, and whether the respondent would provide the benefit or service that the applicant ultimately seeks.
16I add that this does not mean that the Tribunal has any general power to review the exercise of discretion by ministries or agencies administering benefits schemes, nor that the Tribunal will sit on appeal from or review such decisions. The Tribunal only has the power to determine whether there has been discrimination in the provision of services on one of the grounds set out in the Code. Moreover, s. 45.1 of the Code permits the Tribunal to dismiss an application, in whole or in part, where another proceeding has appropriately dealt with the subject-matter of the application: see generally, Campbell v. Toronto District School Board, 2008 HRTO 62 [reported 65 C.H.R.R. D/211] (I note, parenthetically, that in this case neither respondent has relied upon s. 45.1).
APPLICATION TO THIS CASE
17I now turn to the application of these principles to this case. The application against the Ministry alleges that, for discriminatory reasons, the applicant did not receive the MSN benefit the Ministry provides. In my view, this aspect of the application does relate to "services" provided by the Ministry. The applicant is not merely challenging an adjudicative decision, but the denial of a benefit the Ministry controls. Accordingly, it would not be appropriate to dismiss the application as a whole.
18The application against the SBT and Mr. Miclash, in contrast, relates exclusively to the content of the SBT's adjudicative decisions. The applicant argues that the substantive decision was different because he did not appear in person. This is an allegation about the content and result of the decision and does not relate to "services" within the meaning of the Code. The SBT has no ability to provide MSN funding, the benefit the applicant seeks,. Accordingly, the application against the Social Benefits Tribunal and Mr. Miclash is dismissed as outside the Tribunal's jurisdiction.
THE HEARING
19A hearing in this matter is currently scheduled for December 15 and 16, 2009. In view of the removal of the SBT and Mr. Miclash, only one day of hearing is necessary and the December 16 date is cancelled.
20Although the application against the Ministry is within the Tribunal's jurisdiction, the applicant's narrative is primarily a challenge to the substance of the decision. He focuses on the fact that he does not believe that the requirement to provide a form from his physician is justified by the regulations. This is not a matter that, even if proven, is a violation of the Code.
21To succeed in this application, the applicant must prove, on a balance of probabilities, that there was discrimination on one or more of the grounds set out in the application through the requirement that he provide the MSN form. At the outset of the hearing, the applicant shall be prepared to explain all the evidence he intends to use to prove discrimination and argue why and how, if proven, such evidence would establish a violation of the Code.
22I note that Ministry and Ms. Scott have asked, in their joint response, that Ms. Scott be removed as a personal respondent. In the circumstances of this case, this issue will be dealt with at the hearing if necessary.
23I am not seized.