Le Page v. Ontario (Community and Social Services), 2010 HRTO 1776

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Le Page Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community and Social Services Respondent

DECISION

Adjudicator: Mary Truemner Date: August 31, 2010 Citation: 2010 HRTO 1776 Indexed as: Le Page v. Ontario (Community and Social Services)

APPEARANCES BY

Deborah Le Page, Applicant ) On her own behalf Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community and Social Services, Respondent ) Michelle Schrieder and Arif Virani, Counsel

Background

1This is an Application filed on January 27, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2In her Application, the applicant alleges that the respondent discriminated against her on the basis of disability, sexual orientation and marital status in the provision of services, specifically, the provision of financial benefits under the Ontario Disability Support Program ("ODSP"). The applicant withdrew the allegation based on disability at the hearing of this matter.

3The applicant also alleges discrimination in housing, because, as a result of the respondent's determination that she was living with a spouse and the consequent discontinuation of her benefits, the applicant lost her housing with a non-profit housing provider.

4The respondent filed a Request for Order During Proceedings (the "Request") seeking a dismissal of the Application for the reasons that a) it is not properly a discrimination claim because it is merely a complaint about the application of a statutory definition to the applicant's circumstances; b) it is out of time; and c) it fails to make out a prima facie case of discrimination.

5I was concerned that the applicant was not able to articulate her allegations clearly in her Application and in her response to the Request. I therefore issued a Case Assessment Direction on January 25, 2010 directing the parties to be prepared to address the Request at the commencement of the hearing to be held on February 3, 2010.

Hearing and Decision

6At the commencement of the hearing, the respondent pursued its Request to dismiss the Application. I provided the applicant with an opportunity to more fully explain how she thought the respondent had discriminated against her and to clarify her allegations and her position in response to the Request.

7After hearing from the parties, I adjourned the hearing in order to make a decision on the Request. I find that the Application must be dismissed because the facts described in the Application and clarified by the applicant at the hearing do not raise an arguable claim of discrimination under the Code. The following are my reasons.

Reasons

Background Discussion of Relevant Income Security Legislation

8The Ontario Disability Support Program Act, 1997, S.O. 1997, c.25, Sch. B, as amended (the "ODSPA") provides for social assistance for persons with disabilities and their families who are in financial need. The Ontario Works Act, 1997, S. O. 1997, c. 25, Sch. A, as amended, provides for social assistance for persons in need who are not disabled within the meaning of ODSPA.

9The respondent administers the ODSPA. A recipient and his or her dependents (the "benefit unit") must qualify financially and provide the information and the verification of information required to determine eligibility. If the benefit unit is not sufficiently in need, then the benefit unit will not qualify for benefits. In general terms, the respondent increases financial support as the household size increases (depending on factors like the ages of dependents), but decreases the amount as the household's income from other sources, such as employment, increases. A recipient may have a spouse or any other dependent, and remain eligible, but the recipient and his or her spouse must provide information concerning the income, assets, and other financial circumstances of both spouses.

10The definition of "spouse" includes:

a) a person, if the person and the applicant or recipient have together declared to the Director or to an administrator under the Ontario Works Act, 1997 that they are spouses.

Allegations and Positions of the Parties

11The applicant does not dispute the following facts:

• The applicant has lived with Edward Rodrup for many years, and they have previously received benefits, as spouses, from various sources.
• In 1997, based on their joint representations, Mr. Rodrup was identified as the applicant's spouse and included in the applicant's benefit unit for benefits paid pursuant to the Family Benefits Act, R.S.O.1990, c.F.2, (predecessor legislation to the ODSPA). As a result, the applicant received an increase to her entitlement.
• In 1998 after the ODSPA came into effect Mr. Rodrup was also determined to be a person with a disability, and, with both spouses being now identified as disabled, they received an increase in benefits.
• From 2000 onwards, there were disputes between the applicant and the respondent with respect to cancellation of benefits because Mr. Rodrup received employment income and because the applicant was not verifying his earnings.
• The applicant and Mr. Rodrup applied again as spouses for ODSP benefits in June 2005, and signed a statutory declaration stating that they are spouses. They received ODSP benefits on the basis that they were spouses from 2005 onwards.
• In November 2008, the respondent advised the applicant that, as a result of an increase in Mr. Rodrup's income, the benefit unit no longer met the financial qualifications for support and would no longer receive ODSP benefits. She filed her Application to this Tribunal approximately two months later.

12The applicant explained that she felt pressured by the respondent in 2005 to sign documents indicating that she and Mr. Rodrup were spouses when she felt that they should not be considered spouses given that they were not married, but she did not disagree that their application to receive ODSP benefits again as spouses was granted and that she agreed to be treated afterwards as someone with an increased entitlement as a result.

13The applicant alleges that the respondent "cut" her income because she lives with a man, Mr. Rodrup, whom the respondent wrongly assumed was her spouse. The applicant describes herself as "single". She explained that she alleges discrimination on basis of sexual orientation "because I am a woman and I have a man for a roommate."

14The applicant confirmed she did not challenge the practice of including a spouse or a dependent in the benefit unit for the purpose of calculating the income of the benefit unit and eligibility for benefits is a violation of the Code.

15The applicant further clarified that she did not seek to expand her allegations to include discrimination because of sex or heterosexuality. She appeared to agree with the respondent that the legislation governing determinations of spousal status does not consider the sex of the recipient or the possible spouse.

16It is the applicant's position that Mr. Robdrup cannot be her spouse because she had never married him. Also, he had never divorced his estranged wife with whom he had not lived for years.

17It appears the applicant believes that the identification as spouse depends on whether roommates are married. In contrast, the definition of spouse found in the ODSPA (O.Reg.222/98, s.1), does not consider formal marital status, treat married people differently from common law couples, or treat same-sex couples differently from opposite sex couples.

18Given the applicant's assurances at the hearing, I am satisfied that the applicant is not seeking to challenge the ODSPA and its regulation which determine the level of financial support for recipients taking into consideration, amongst other factors, whether they have spouses and spousal income. I am satisfied that the applicant challenges only the factual determination by the respondent that she has a spouse.

Conclusion

19It appears the applicant believes the respondent assumes she has a sexual relationship with Mr. Rodrup although she offers no basis for this belief. She is clearly offended by that assumption.

20However, the fact is that the applicant and Mr. Rodrup have identified themselves as spouses to the respondent on numerous occasions in support of their applications for benefits. They have made a statutory declaration to that effect and have received benefits as a result. The respondent is not required to look behind those declarations when applying the provisions of the ODSPA to the calculation of the applicant's benefits.

21Neither the Application nor the applicant's argument at the hearing provides a foundation to indicate that the reasons for the respondent's decision to treat the applicant as a person with a spouse were related to a ground under the Code. The applicant has not described any action or communication by the respondent which would lead me to believe that its decision to treat her and Mr. Robdrup as spouses was related to anything but the application of the legislation to her situation, in particular, her declarations that she and Mr. Robdrup are spouses. The facts described in the Application, and clarified by the applicant at the hearing do not, therefore, raise an arguable claim of discrimination under the Code.

ORDER

22The Application is dismissed.