HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Carswell
Applicant
-and-
The Queen in Right of Ontario as represented by the Ministry of Community and Social Services
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Carswell v. Ontario (Community and Social Services)
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which he alleges discrimination on the basis of age in the provision of goods, services or facilities.
2In essence, the applicant states that, to supplement the income he receives from Ontario Disability Support Program (“ODSP”), he elected to receive Canada Pension Plan (“CPP”) benefits prior to age 65. He states that he is disadvantaged as a result of his decision because the CPP benefits are treated as income for the purpose of calculating ODSP entitlements. The result is that the applicant’s ODSP payments are lower than they would have been had he not elected to receive CPP prior to age 65. As I understand it, the applicant also alleges that his CPP benefits are reduced as a result of his election to receive CPP benefits prior to age 65.
3The respondent denies that the ODSP scheme draws a distinction on the basis of age or that it is discriminatory within the meaning of the Code. The respondent also argues that:
a. the Application should be dismissed because the applicant has failed to make out a prima facie case of discrimination. It states that any difference in treatment is based on income, not age; and
b. the Application essentially targets the CPP scheme, which is administered by the federal government. The respondent states that it is not the appropriate party to the Application and that, in any event, the Tribunal does have jurisdiction over the federal CPP scheme.
4The applicant filed a Reply in which he states that he feels marginalized, ignored and devalued as a result of the operation of the ODSP scheme. He maintains that the scheme is discriminatory on the basis of age.
NEXT STEPS
5In the circumstances, it is appropriate to address the following two issues as preliminary matters:
a. does the Application contain allegations that are within the Tribunal’s jurisdiction (power to decide)?
b. has the applicant established a prima facie case of discrimination?
6Section 43(2)1 of the Code provides that, where an application is within the Tribunal’s jurisdiction, the Tribunal must provide parties with an opportunity to make oral submissions before making a final determination.
7In the circumstances, the fairest and most expeditious way to address the two preliminary matters is by way of a telephone conference hearing, which will be scheduled by the Registrar. At the hearing, the Tribunal will accept submissions on the issues identified in paragraph 5.
8The following directions shall apply to the hearing:
a. the applicant should be prepared to proceed first at the hearing, by responding to the written arguments of the respondent and the questions set out in paragraph 5 above; and
b. any party wishing to rely on written materials not already filed with the Tribunal or any facts not contained in the Application, Response or Reply must deliver such documents or information to the other party and file them with the Registrar within 21 days of the date of this Interim Decision.
9In preparing for the hearing, the parties may wish to consider King v. Enersource Hydro Mississauga, 2010 HRTO 699, which discusses the meaning of a “prima facie case” and Pierre Louis v. Ottawa Police Services Board, 2010 HRTO 863, which discusses the Tribunal’s jurisdiction in terms of the principles of Canadian federalism. These and other Tribunal decisions are freely accessible and searchable at www.canlii.org.
10I am not seized of this matter.
Dated at Toronto, this 3rd day of June, 2010.
“Signed By”
Michelle Flaherty
Vice-chair