Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ali Zaki

Applicant

-and-

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

Respondents

DECISION

Adjudicator: David A. Wright

Date: October 5, 2011

Citation: 2011 HRTO 1797

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

WRITTEN SUBMISSIONS

Ali Zaki, Applicant ) Self-represented

Her Majesty the Queen in Right of Ontario ) as represented by the Ministry of Community ) Geoffrey Baker, Counsel and Social Services and Alodia Scott, ) Respondents )

1Many types of benefits depend on the nature and extent of a person’s disability, and those administering such programs must make decisions about whether a person qualifies and the extent of benefits they will receive. Such decisions will often be connected with the person’s disability and be based on the nature and extent of that disability. Examples include payments by government, such as Workplace Safety and Insurance Board or Ontario Disability Support Program (“ODSP”) Benefits, and programs provided by private service providers, such as long-term disability and health benefits. In my view, the prohibition against discrimination because of disability in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code’) does not give this Tribunal the power to review decisions under disability-based benefit programs to determine whether they are correct under the legislation, regulations, or policies governing the program; this would be giving an appeal function to the Tribunal that the Legislature did not intend. Of course, as the Tribunal has recognized in other cases, discrimination in government and other benefit programs may be found in other ways such as policies, systemic practices, or considerations based on prohibited grounds irrelevant to the decision being made.

2The applicant alleges that a particular decision under the ODSP to require further documentation to establish eligibility for a disability-related benefit violates the Human Rights Code. In an Interim Decision (2009 HRTO 1595), the Tribunal found that the Application, which alleges that the respondent Ministry discriminated against the applicant because of race, ancestry, ethnic origin and disability when it terminated his Mandatory Special Necessities (“MSN”) benefits, fell within the social area of services.

3In this Decision, I find that the Application is dismissed because it has no reasonable prospect of success. In relation to disability, the applicant argues that the respondents’ reasons for seeking new medical documentation – the high or unusual level of his asserted needs for support – show discrimination or animus toward people with his disability. I find that this allegation has no reasonable prospect of success. In relation to race, ancestry and ethnic origin, I find that there is no reasonable prospect that the applicant could prove a connection between the ODSP decision and these grounds.

THE APPLICATION

4The applicant receives benefits under the ODSP, which is administered by the respondent Ministry under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, sched. B. The applicant alleges that he was discriminated against when his Mandatory Special Necessities (“MSN”) Benefits were terminated. He states that after he moved to Guelph from Toronto in early 2007, the Guelph office of the Ministry discriminated against him in making that decision, because his race, ancestry, ethnic origin and disability were among the reasons that the benefit was removed. In relation to disability, his Application states that “his disability-engendered need for a high level of MSN supplies” was considered by the Ministry in making its decision to require a new form from him and in relation to the other grounds, his Application states that he “is an ethnic minority, and his minority status is more obvious in a community like Guelph, which is more homogenously Caucasian than Toronto”.

5The Ministry terminated the applicant’s MSN benefit, it says, because the applicant did not provide a new MSN Benefit Request Form required of him. The applicant takes the position that he should not be required to submit a new form completed by his physician, since his physician previously indicated that the applicant’s condition was permanent. Some documentation suggests that the respondents’ request to require a new form was made because he had a high level of need for MSN supplies, and the applicant suggests that this consideration, which is not set out in the relevant policies, makes the request discriminatory.

6On February 7, 2007, the Ministry advised the applicant that he needed to complete a new MSN form by May 1, 2007, in order to avoid disruption in his benefits. On May 2, 2007, he was advised that the form had not been received and that the benefit would end on June 30, 2007, unless a new form completed by a qualified medical professional was received. On August 8, 2007, the applicant was advised that the benefit ended on June 30, 2007, as a result of the fact that he had not completed the required form. Mr. Zaki then requested an “internal review”. By letter dated August 31, 2007, the applicant was advised by letter signed by Ms. Scott that the internal review had been completed and the decision was not changed. On September 4, 2007, the applicant was again advised, in a letter signed by the personal respondent Ms. Scott, that he was required to provide the form.

7The applicant appealed the Ministry’s decision to the SBT, which has statutory authority to determine such matters. A hearing was held on August 21, 2008. The applicant was unable to attend the hearing, he says, because of his disability, and so he made representations by written submissions. The appeal was denied by decision dated August 29, 2008. The applicant applied for reconsideration, which was denied.

8The applicant originally named the Social Benefits Tribunal and its Acting Chair, in addition to the current respondents. The Interim Decision found that the Tribunal had no jurisdiction over the Application against them.

9A hearing was scheduled in relation to the Application against the remaining respondents, but did not proceed because of the applicant’s health. Following various other steps, the Tribunal directed by Case Assessment Direction dated October 22, 2010 that a summary hearing be held, pursuant to Rule 19A, on the issue of whether the Application should be dismissed as having no reasonable prospect of success. The applicant indicated that he would prefer to deal with this issue in writing and therefore, the summary hearing took place through written submissions. The deadline for these submissions was extended on various occasions at the applicant’s request and his submissions were made on April 30, 2011.

ANALYSIS

10Rule 19A.1 reads:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

11The inquiry during a summary hearing was set out as follows in Dabic v. Windsor Police Service, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the alleged prohibited ground. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

12As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

13The essence of the applicant’s arguments in relation to the ground of disability is captured in the following paragraphs from his written submissions on the summary hearing:

The original story used by the respondents to justify their termination of Mr. Zaki’s MSN benefits was that they had no documentation of Mr. Zaki’s MSN requirements, and because Mr. Zaki’s MSN needs are extremely high he had to provide documentation of his MSN needs or the respondents would terminate Mr. Zaki’s MSN benefits. And because Mr. Zaki was unable to provide the respondents with another MSN form, the respondents used this pretext to terminate Mr. Zaki’s MSN support.

We submit that Mr. Zaki has already provided very strong evidence that the documentation of Mr. Zaki’s MSN requirements, currently in the respondents’ possession, is valid. And although the respondents have been asked to do so, they have refused to explicitly state the contrary: the respondents have not clearly stated that Mr. Zaki’s MSN documentation is not valid.

We therefore hope that the Tribunal agrees with us that Mr. Zaki’s original MSN documentation is indeed valid. And because Mr. Zaki’s physician indicated that Mr. Zaki’s MSN needs are permanent, there is no legal justification for the respondents’ demand for additional documentation.

Mr. Zaki’s MSN needs are “extremely high” due to the nature of his disability. And what has been heretofore overlook is that under the ODSP Act, the local MCSS offices are to provide full coverage of these MSN costs…

It is undeniably discriminatory for the respondents to single Mr. Zaki out, and subject him to additional (unlawful) demands just because they personally feel that his MSN requirements are “extremely high”. The focus of the respondents’ discriminatory behavior is – precisely – the nature of Mr. Zaki’s disability. And as such the respondents’ discrimination is undeniably in violation of the Code.

[bold in original]

14I find that the allegations have no reasonable prospect of success. Even assuming that the requirement to provide additional documentation was not consistent with the program’s policies, it is not discrimination under the Code for a person or organization implementing a disability-based program to merely misapply that program in one particular case. The avenue for dealing with such issues under the ODSP is through an appeal to the Social Benefits Tribunal and, if a party is still not satisfied, proceedings in the Divisional Court. Numerous distinctions based on disability must be made in the course of applying disability based benefit programs and the mere fact that the context involves a disability or the decision involves a judgment about a disability does not mean that Code protections are triggered by every event, decision or interaction.

15The applicant does not provide a basis for a finding of discrimination because of disability within the meaning of the Code. Although having high MSN needs may be a result of a disability, it is not a disability in and of itself. The applicant has not shown or alleged differential treatment as compared with others with different disabilities as required to establish discrimination in this context; see Ball v. Ontario (Community and Social Services), 2010 HRTO 360, at para. 76. There must be something more than an assertion that the applicant’s particular disability was not dealt with properly in this case to establish such discrimination, such as systemic problems, policies, or considerations unrelated to the implementation of the program that differentiate based on Code grounds.

16The applicant also suggests that discrimination or animus toward people with his disability should be inferred because the respondents allegedly misapplied the relevant policies and legislation and based a request for further documentation on the level of his needs. There are several reasons why this argument has no reasonable prospect of success. In my view, there must be more than a simple allegation that a program was misapplied to establish discrimination, and I do not agree that even a clearly wrong application of a program in an individual case establishes discrimination.

17Moreover, even assuming it was determinative, the applicant’s allegation that the program was misapplied has no reasonable prospect of success because the Social Benefits Tribunal, an independent quasi-judicial body with the power to determine these precise questions has already ruled that there was no error in the Application of the program. The applicant’s case for the benefits is not as clear as he suggests.

18The applicant makes the analogy to a hypothetical decision to require additional MSN documentation because of an individual’s sexual orientation. However, this analogy is not apt. A person’s sexual orientation generally has no relation to the administration of a disability-related benefit program. The level of use of the program and a user’s particular disability and disability-related needs do.

19There is nothing other than the applicant’s bald allegations to support the assertion of bad faith and misconduct by the respondents in denying him the benefits in question. It is not inherently illegitimate or discriminatory for a benefit provider to confirm eligibility for benefits based on unusual use of the program. Moreover, the applicant’s argument that it is discriminatory to require him to confirm that he is eligible for benefits, when he says he cannot obtain the relevant documentation, is problematic; if he is eligible, why can he not obtain confirmation from his physician.

20I turn finally to the applicant’s claim based on race, ancestry and ethnic origin. In his submissions on the summary hearing, dated April 30, 2011 the applicant supplements his general allegations made in the Application as follows:

And there is another issue that we will now address. Although Mr. Zaki was initially reluctant to do so. In Mr. Zaki’s previous correspondence with the Tribunal Mr. Zaki noted that there is likely an ethnic and/or racial component to the discrimination perpetrated by the respondents against Mr. Zaki. And to flesh this out more fully, when Mr. Zaki originally moved to Guelph he overheard the office workers at the Guelph MCSS office use the term “diaper-head” while Mr. Zaki was waiting on the telephone. The gist of the comment was that a diaper-head was calling again.

At the time, Mr. Zaki was not certain of the meaning of the term “diaper-head”. Mr. Zaki thought that perhaps the employees of that office were making a stupid, uneducated reference to Mr. Zaki’s incontinence supplies. However, Mr. Zaki now knows that the phrase “diaper-head” is a racist term applied by bigots toward persons of middle-eastern origin.

21The comments that Mr. Zaki has now particularized allegedly were made in 2007. This Application was filed in 2009. In August 2010 the applicant filed letters making vague reference to an “ethnic/racial component to the discrimination” and stating that “a comment was made that could be construed as an ethnic/racial slur”. In the 2010 letter, the applicant stated, “because we want to focus on the disability-based discrimination, we will not dwell excessively on this aspect”. The first time the details of this allegation were provided was in May 2011 in his submissions on the summary hearing.

22The Rules of the Tribunal require an Application or Response to “set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened”. The applicant did not set out the details of this allegation until April 2011, and it would be unfair to the respondents to consider it now, in particular because the passage of time and the nature of the allegation would make it almost impossible to defend themselves against it. It is clear that the applicant recognized an “ethno/racial component to the discrimination” by August 2010 yet chose not to provide the details until the summary hearing in May 2011. The applicant has not shown that any delay in raising this significant component of his allegation was in good faith.

23The other aspects of the applicant’s allegations of race discrimination are bald allegations and speculation. There is no reasonable prospect that the applicant could prove discrimination on this basis.

ORDER

24The Application is dismissed.