Carswell v. Ontario (Community and Social Services), 2010 HRTO 2014

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Carswell

Applicant

-and-

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

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: October 1, 2010

Citation: 2010 HRTO 2014

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

APPEARANCES

Robert Carswell, Applicant ) Self-represented

Her Majesty the Queen in right of Ontario ) Robert Donato, Counsel

As represented by the Ministry of Community )

And Social Services, Respondents )

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 support 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.

3The result is that the applicant’s ODSP payments are offset by the CPP benefits he receives. In addition, the applicant’s long-term CPP benefits are reduced as a result of his election to receive CPP prior to age 65.

4The 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 the Application should be dismissed because the applicant has failed to make out a prima facie case of discrimination.

5On September 24, 2010 the Tribunal held an oral hearing to determine whether the Application should be dismissed because there is no prima facie case of discrimination. The applicant and counsel for the respondent attended the hearing and made oral submissions to the Tribunal.

6For the reasons that follow, I find that the applicant did not make out a prima facie case of discrimination. The Application is dismissed on this basis.

WHAT IS A PRIMA FACIE CASE?

7To establish a prima facie case, the applicant must show that the allegations he has made (if they are made out) could form the basis of a finding of discrimination in his favour.

8It is well-established that the threshold for establishing a prima facie case of discrimination is not high; the Tribunal recognizes that discrimination is often not overt and it does not hold the applicant to an exacting standard of proof at this stage of the proceeding. The applicant’s allegations are presumed to be true and the question becomes whether the respondent’s behaviour (as alleged by the applicant) could constitute discrimination under the Code.

9The Tribunal does not have a general power to decide whether the applicant was treated fairly or appropriately. The Tribunal’s powers relate only to alleged discrimination and violations of the Code.

10In other words, while the applicant has clearly stated that he has been disadvantaged and that he finds himself in an unfortunate catch-22, to establish a prima facie case, he must also explain that this alleged mistreatment is based on a ground prohibited in the Code (such as age) and could form the basis of a finding of discrimination.

HAS THE APPLICANT ESTABLISHED A PRIMA FACIE CASE?

11Ontario Regulation 222/98, enacted pursuant to the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched B sets out eligibility for ODSP and the method of calculating amounts payable as income support.

12Section 29 of the Regulation stipulates:

The amount of income support of a benefit unit shall be calculated on a monthly basis by determining the budgetary requirements of the benefit unit in accordance with section 30 to 33.1, reducing that amount in accordance with sections 34 to 36.1 and subtracting from that amount the income of the benefit unit, determined in accordance with sections 37 to 43.

13Payments received pursuant to the CPP scheme are included as income under subsection 37(1) of the Regulation and are therefore subtracted from budgetary requirements for the purpose of calculating the amount of the ODSP benefit.

14It is clear to me that the applicant is in a difficult situation. To try to improve his living situation, the applicant elected to receive his CPP benefits at an early age. By doing so, he says that has effectively reduced the amount of long-term benefits he will receive from CPP. Further, he derives no benefit from his election because his ODSP benefits are offset by the CPP benefits he receives.

15It is very unfortunate that the applicant was not informed that his CPP election might have consequences for ODSP benefits.

16Although I appreciate the difficult circumstances the applicant finds himself in, I cannot conclude that they result from any breach of the Code. The distinction in entitlement is based on the applicant’s income (or his election to seek out a form of income), not on his age. Thus, the applicant’s entitlement under the ODSP is not based on a Code-related ground.

17Accordingly, the Application is dismissed.