Risk v. Ontario (Community and Social Services), 2010 HRTO 1861

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Risk

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community and Social Services

• Ontario Disability Support Program

Respondent

DECISION

Adjudicator: Mark Hart

Date: September 10, 2010

Citation: 2010 HRTO 1861

Indexed as: Risk v. Ontario (Community and Social Services)

1The purpose of this Decision is to address the preliminary requests made by the respondent that the Application be dismissed on two grounds: (1) that the Application was not filed by the June 30, 2009 statutory deadline; and (2) that the Application does not disclose grounds to support a violation of the Human Rights Code, R.S.O. 1990 c. H.19 as amended, (the “Code”).

FILING OF APPLICATION

2As of June 30, 2008, the system for enforcing rights under the Code has been significantly amended. Before, individual complaints were only heard by the Tribunal if the Ontario Human Rights Commission (the “Commission”) decided to refer them for a hearing. Now, applicants may file their claims (now called applications) directly with the Tribunal. The Legislature made provision for complainants who had filed complaints with the Commission prior to June 30, 2008 to file transitional Applications with the Tribunal during the period June 30, 2008 to June 30, 2009.

3The transition provisions are set out in section 53:

53(1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint.

(4) The Tribunal shall make rules with respect to the practices and procedures that apply to an application under subsection (3) in order to ensure that the applications are dealt with in an expeditious manner.

(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.

(6) The new Part IV applies to an application made under subsections (3) and (5) ….

(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

4From June 30, 2008 until December 31, 2008, applicants could file section 53(3) applications and from January 1, 2009 to June 30, 2009, applicants could file section 53(5) applications with respect to “continued” complaints. The statutory deadline for making a transitional application was June 30, 2009.

5The Tribunal’s Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Human Rights Code set out the steps required to file a transitional application:

12.1 To file a section 53(5) Application an Applicant must complete the Application (Form TR-1), deliver it to the Respondent(s) and file it with the Tribunal. A complete Application must provide the information requested in every section of the Application form and must include all required attachments.

12.2 The completed section 53(5) Application (Form TR-1) must be filed between January 1 and June 30, 2009 and must include:

a) the complaint or the amended complaint filed at the Commission; and,

b) the Commission complaint file number.

6Section 53(5) set a deadline of June 30, 2009 for when a transitional application may be “made” to the Tribunal. While June 30, 2009 is a statutory deadline and the Tribunal no discretion to waive or extend that deadline, the Tribunal does, however, have to determine when an application is “made” to the Tribunal and in doing so the Tribunal has the discretion to waive the Tribunal Rules: see Malvar v. Toyota Motor Manufacturing Canada, 2009 HRTO 2022.

7As stated in Malvar, supra at para. 11:

. . . an application is made to the Tribunal if an applicant has filed sufficient material with the Tribunal by June 30, 2009 to indicate their intention to make a transitional application.

8In the instant case, the applicant filed her Application with the Tribunal by fax on June 26, 2009. However, she filed her Application using the wrong form and did not serve it on the respondent.

9By letter dated August 20, 2009 and copied to the respondent, the Tribunal acknowledged receipt of her Application but advised the applicant that she needed to file her Application using the TR-1 form that applies to applications under s. 53(5) of the Code. The respondent was advised that it did not need to take any action until the TR-1 form had been served on it. The Tribunal further advised the parties that it had opened a file for this Application as a s. 53(5) application.

10Having not heard further from the applicant, the Tribunal wrote again to the parties by letter dated February 15, 2010 stating that it had not received a TR-1 form from the applicant and requiring her to provide this material within 21 days.

11On February 23, 2010, the applicant filed the correct form with the Tribunal by fax. However, the applicant once again failed to serve the respondent with this material.

12Accordingly, the Tribunal wrote again to the parties by letter dated March 8, 2010, confirming receipt of the correct form but advising the applicant that she was required to serve this material on the respondent and file a Form C to confirm delivery.

13Ultimately, on March 26, 2010, the Tribunal wrote to the parties to state that upon further review, the material filed by the applicant was substantially complete and so should not be dismissed for incompleteness at this stage. The Tribunal directly provided a copy of the Application to the respondent.

14In my view, the applicant had filed sufficient material with the Tribunal by June 30, 2009 to indicate her intention to make a transitional application. Her error was that she did not file the correct form and did not serve the respondent. However, I find that the filing of her Application on June 26, 2009 even without service is sufficient basis to regard her as having “made” an application to the Tribunal prior to the June 30, 2009 statutory deadline.

15In the circumstances of this case, I exercise my discretion to relieve against the technical requirements of Rule 12 regarding the filing of an application, having regard to the fact that the respondents were aware of the complaint since 2004 and were aware as of the Tribunal’s letter dated August 20, 2009 that a transitional application had been filed by the applicant. I find that these are appropriate circumstances to relieve against the strict application of the Rules and to permit the applicant to file the proper form after June 30, 2009 and for formal service of the Application on the respondent to be completed after June 30, 2009.

DOES THE APPLICATION DISCLOSE GROUNDS TO SUPPORT A CODE VIOLATION?

16The applicant is a person with disabilities who was in receipt of benefits from the Ontario Disability Support Program (“ODSP”) at the relevant time. Her complaint states that she believed herself to be employable, so she contacted an agency within the respondent Ministry for employment assistance.

17Her complaint states that in or around August 2003, she was interviewed by a Ministry representative who suggested that she contact an agency funded by the Ministry to assist her in finding employment.

18The applicant contacted the agency (“CVE”) and was sent for a psychiatric assessment, which took place on October 31, 2003. The complaint states that the interview with the psychiatrist lasted no more than 15 minutes, after which the psychiatrist identified the applicant as having a specific mental health issue and expressed his opinion that as a result she was unemployable.

19The complaint further states that on November 11, 2003, the applicant was told by a CVE representative that the psychiatrist had deemed her to be unemployable. As a result, the complaint states that the respondent Ministry would not help her further with her job search. The complaint states that the applicant requested a copy of the psychiatric assessment, which appears to have been obtained by her family doctor. The complaint states that the applicant’s family doctor did not agree with the assessment, and felt that the applicant could be suitably employed.

20The complaint states that the applicant believes that the respondent Ministry discriminated against her by using independent consultants to assess whether she was suitable for employment or not. She believes that this approach has had a great negative impact on her and her ability to gain employment.

21The ODSP is established pursuant to the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched, B (“ODSPA”). The Program serves persons with disabilities. The applicant qualified under the ODSPA at the relevant time as she was a disabled recipient of income support under the Act.

22The purpose of the ODSP is to remove “barriers to the person’s competitive employment and assist the person in attaining his or her competitive employment goal”: s. 32(1) of the ODSPA.

23In order to be eligible for “employment supports” under the ODSPA, which is what the applicant was seeking, a disabled person must fulfil certain specific eligibility criteria under s. 33 of the ODSPA, including that “the person intends to and is able to prepare for, accept and maintain competitive employment”.

24The employment supports component of ODSP is based on a brokerage model involving the use of third party suppliers, one of which was CVE. As part of the process of seeking employment supports, the applicant entered into an Employment Supports Funding Agreement on September 2, 2003, which sets out the terms for eligibility and funding and states that the applicant could be found to be ineligible if at any stage there could not be satisfactory progress toward competitive employment. The agreement also indicates that decisions of suspension or cancellation may be reviewed by an independent Dispute Resolution Committee.

25The respondent sent a letter to the applicant dated January 9, 2004 confirming the decision that she was not ready for employment and indicating that her file would be closed. The letter also indicated that if the applicant felt more ready for employment activity in the future, she could re-apply to the program with a note from her doctor confirming her readiness for employment.

26On the basis of the complaint filed by the applicant, it appears that she is taking issue with the use of independent consultants by the respondent Ministry in order to assess a person’s readiness for employment. Whatever the wisdom or otherwise of the brokerage model utilized by the respondent Ministry to deliver employment supports under the ODSP, upon which I express no opinion, the mere use of independent consultants in this role does not provide any basis to support an allegation that the Human Rights Code has been violated. Independent or third-party medical assessments are a regular part of the landscape in a variety of contexts, including by employers in assessing their obligations under the duty to accommodate and by insurers in assessing an insured’s eligibility for benefits, and are not in and of themselves a basis to allege a violation of the Code. To the contrary, these independent or third-party medical assessments, when utilized appropriately and reasonably, are often of assistance to the parties and to this Tribunal in clarifying and understanding the parties’ respective rights and obligations.

27From the material filed by the applicant, it appears that she also takes issue with the conclusion of the psychiatric assessment, particularly on the basis of what she states was a very time-limited interview and what she states is her own family doctor’s disagreement with the assessment. This to me appears to be a medical issue, and not a human rights issue. The psychiatric assessment concluded that the applicant had a specific mental health issue and was therefore unemployable. The psychiatrist may have been wrong in identifying the applicant as having that specific mental issue, or the psychiatrist may have been wrong in concluding that because of that mental health issue the applicant was unemployable. But that was the psychiatrist’s assessment. No basis is provided to support any allegation by the applicant that the psychiatric assessment was discriminatory for some reason. Her allegation appears to be that it was wrong.

28It appears that at least two avenues were open to the applicant to challenge the conclusions of the psychiatric assessment. First, under the Employment Supports Funding Agreement, the applicant could have requested a review of the cancellation of the agreement by the Dispute Resolution Committee, at which she could have presented contrary medical and other evidence to support her employability. Or second, she could have re-applied to the employment supports program with support from her family doctor confirming her readiness for employment. The applicant apparently did neither of these things.

29In my view, the Application does not set out any basis upon which a violation of the Code could be found, and accordingly is not within this Tribunal’s jurisdiction. As a result, the Application is dismissed.

30The hearing date currently scheduled for November 2, 2010 is cancelled, and all pre-hearing obligations as set out in the Tribunal’s Rules and in its letter dated June 17, 2010 no longer apply.