McKinnon v. Toronto (City), 2010 HRTO 1044

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven McKinnon

Applicant

-and-

City of Toronto

Respondent

A N D B E T W E E N:

Steven McKinnon

Applicant

-and-

Her Majesty the Queen as Represented by the Ministry of Community and Social Services and Social Benefits Tribunal

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: May 10, 2010

Citation: 2010 HRTO 1044

Indexed as: McKinnon v. Toronto (City)

INTRODUCTION

1This Interim Decision relates to two Applications filed by the applicant under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (“the Code”) that relate to the denial of Ontario Works (“OW”) benefits to him because the income of his benefit unit (which includes him and his spouse) does not qualify him for benefits. He appealed that decision to the Social Benefits Tribunal (“SBT”). In the context of those proceedings, the applicant has alleged that the relevant provisions violate the Code, and a stage 2 hearing will be held in this regard by the SBT on August 5, 2010. The applicant has also requested Interim Assistance in the context of that hearing, which was denied by the SBT. In the Applications to the HRTO, the applicant has asked that the Tribunal order, as an Interim Remedy, that he be paid OW benefits until the issue is determined.

JURISDICTION

2As a preliminary matter, I note that there is an issue about whether the Application as against some or all of the respondents falls within the Tribunal’s jurisdiction: see, for example, Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595. The approach to such issues has been the subject of differing approaches within the Tribunal: see, for example, Ballieram v. Workplace Safety and Insurance Board, 2010 HRTO 712 and Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765. The respondent City of Toronto has filed a Request for Order During Proceedings asking that the Application against it be dismissed as outside the Tribunal’s jurisdiction, and asks that this issue be determined prior to considering the question of deferral. In all the circumstances, and given the Tribunal’s jurisprudence, I find that it is preferable to consider the issues of Interim Remedy and deferral prior to the issue of jurisdiction.

INTERIM REMEDY

3I turn now to the issue of Interim Remedy. Rule 23 of the Tribunal’s Rules of Procedure reads as follows:

23.2 The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

4In TA v. 60 Montclair, 2009 HRTO 369 at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is:

whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.

At para. 29, the Tribunal noted that an applicant has a “significant onus” in establishing that an interim remedy request meets the conditions of Rule 23.2.

5I find that it would not be just and appropriate to order the interim remedy requested by the applicant. This matter is before the SBT, which has the statutory authority to deal with such matters, does so routinely, and has criteria to consider this issue. Moreover, an interim remedy is not necessary to ensure a complete and effective remedy at the end of the hearing as the applicant has other sources of income.

DEFERRAL

6Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

7The same human rights issues the applicant raises are currently before the SBT, which has the jurisdiction to hear them and will do so in August: see Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14. Accordingly, it appears that deferral pending the conclusion of the SBT proceedings may be appropriate.

8Any party that opposes deferral of these two Applications shall deliver to the other party or parties to the Application and file with the Tribunal submissions on this issue within two weeks of the date of this Interim Decision. If the Tribunal requires submissions from any party that supports deferral, it will advise the parties. The parties may wish to review the Tribunal’s Rules of Procedure and Guide to its processes, available on the Tribunal’s website at www.hrto.ca, before preparing the submissions.

9The Application in Tribunal File No. 2010-05102-I shall be delivered to the respondents to that Application together with this Interim Decision. These respondents need not take any steps unless directed to do so by the Tribunal. The respondent in Tribunal File No. 2009-03181-I need not take any further steps or file a full Response unless directed to do so by the Tribunal.

10I am not seized.