McPhee v. The Regional Municipality of Durham, 2011 HRTO 2150

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa McPhee on behalf of Matthew Smith and Derek Smith

Applicant

-and-

The Regional Municipality of Durham, and Jody Collins-Bonskill

Respondents

Decision

Adjudicator: David Muir

Date: November 30, 2011

Citation 2011 HRTO 2150

Indexed as: McPhee v. The Regional Municipality of Durham

1This is an Application filed pursuant to section 34 Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In a Case Assessment Direction dated May 9, 2011 the Tribunal directed, on its own initiative, pursuant to Rule 19A of the Tribunal’s Rules of Procedure that a summary hearing be held in this Application to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The respondents have also argued that the Application is out of time having been filed more than 12 months after the events giving rise to Application.

2Rules 19A.1 and 19A.2 read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

3In Dabic v. Windsor Police Service, 2010 HRTO 1993, the Tribunal stated:

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 analyzing whether the Application has no reasonable prospect of success under this test, the Tribunal ascertains whether on the face of the allegations contained in the Application the applicant has failed to set out factual assertions that might be considered discriminatory under the Code.

4A summary hearing was held by teleconference on October 4th 2011. Ms McPhee participated as did one of her two sons on whose behalf the Application was filed. Another individual who identified themselves as the applicant’s third son J.S. participated as well and shared information with respect to the events surrounding the Application. The respondents were represented by counsel. The summary hearing lasted a little more than two hours with a 15 minute break. Although evidence is not normally entertained at a summary hearing, a tape recording of a converstation between J.S. and the personal respondent was played. The applicant believes that the contents of the conversation established a clear discriminatory intent on the individual respondent’s part.

Background and Submissions

5The application is brought on behalf of two of the applicant’s adult sons. Both have been in receipt of Ontario Works benefits as independent claimants. For periods of time they have both been in disputes over entitlement to Ontario Works benefits. The applicant claims discrimination in respect of employment, housing and services on the basis of her sons’ age, family status, disability, receipt of social assistance and association with a member of a protected group. This Application relates to a decision of the respondent Region to terminate benefits for Matthew Smith from January to July 2009 and for Derek Smith from April 2009 to July 2009. The Appplication was filed on May 5, 2010.

6The applicant states that Matthew Smith is a person with a disability and unable to work. The applicant relies upon a physician’s note dated June 8, 2007 from a physician which states that Mr. Smith was unable to work at that time. His entitlement to benefits was terminated long after the physician’s note for failure to provide income information.

7Derek Smith did not participate in the conference call. His entitlement to benefits was terminated for failure to provide income information. The applicant alleges that Derek Smith is a person with a disability and is unable to work.

8In each case the applicant’s sons were denied benefits because they had failed to provide income information as requested. In Matthew Smith’s case he states that he had found work and informed the the respondents about this. Mr. Smith stated that he could not do the work and the employment ended after four days. He also states that he did not get paid for the four days of work. Apparently the respondents required that he provide income information before his benefits would be reinstated. The respondents repeatedly requested this information. The problem was that he was unable to provide income information, he claims, because the work was short-lived and the employer would not provide the required information. Mr. Smith and J.S. state that they repeatedly told the individual respondent of these facts but that the respondents “did not care”. When I asked them how the dispute was resolved and the benefit reinstated they were uncertain. Mr. Derek Smith also apparently failed to file income information required to maintain his entitlement to benefits. It is not clear why he did not, and it is similarly not clear how the dispute was resolved.

9As indicated the applicant played a tape J.S. had made of a conversation between himself and the individual respondent. The conversation relates to Derek Smith – it is not certain when it was made but was during a period of disputed entitlement to Ontario Works benefits – there has been more than one such dispute. The respondent was unable to respond to the tape recording having heard it for the first time.

10The applicant contends that the tape recording establishes beyond a doubt a blatantly “ignorant” and discriminatory attitude on the individual respondent’s part in relation to applicant’s age and sex. The applicant states that the tape recording established without any doubt the discriminatory treatment of her sons. I note that sex is not one of the grounds claimed by the applicant in the Application. In any event, the applicant states that in this telephone conversation the individual respondent told J.S. that because Mr. Derek Smith was a male and over the age of 18 he should go out and find a job – the applicant’s suggestion being that the individual respondent was saying that Mr. Smith should “man up”. Leaving aside the question of whether the suggestion that an Ontario Works claimant should go and find a job would constitute discrimination under the Code this was clearly not the tenor of the remarks made by the individual respondent. The call was a conversation about, amongst other things, Derek Smith and his problems in providing the respondents with the information required to maintain entitlement to benefits. The individual respondent queries how Mr. Smith is able, as an independent person, to care for himself with no income. J.S. states that he will feed Mr. Smith, he will not starve. The individual respondent later asked J.S. if Mr. Smith was able to be independent and care for himself. J.S. responded that he was not sure that his brother was able to be independent and offers his general view of his brother’s childhood and the parenting he received that may have affected Mr. Smith’s ability to function. In response to this very general information, the individual respondent then suggests that maybe Mr. Smith should be making application for ODSP benefits but advised J.S. that medical information would be required to support such an application. There is nothing in this conversation that supports the applicant’s view that the personal respondent held discriminatory views of the applicant’s sons.

Analysis and Findings

11For the reasons that follow, I find that this Application has no reasonable prospect of success.

12There are no allegations that engage any of the grounds of the Code alleged. The applicant’s sons were not employed by the respondent. The applicant made no submissions in support of the housing claim and it is not clear how it is engaged, except potentially as a consequence of the decision of the respondents to terminate benefits. As such, housing does not appear to be a social area engaged by this Application.

13As regards the claim of discrimination on the basis of disability, whether or not either of the applicant’s sons on whose behalf this Application is made is a person with a disability is unclear. However, even assuming that the applicant’s sons are persons with a disabilitiy, the decision of the respondents is not even alleged to be related to any disability. Rather the decisions were made because the applicant’s sons were unable to provide the necessary documentation to establish entitlement to the benefits claimed. The complaint is essentially that the Ontario Works program was not administered properly by the respondents.

14Although there is no allegation of discrimination on the basis of sex, the applicant states that the evidence will be that her sons are male, over the age of 18 and living together at the time of the impugned decisions. These facts were stated to support the claim of discrimination on the basis of family status and association with a member of a protected group. These facts are not in dispute but there is no evidence that any of these facts played a role in the decision making of the respondents. These undisputed facts on their own are not sufficient to establish discrimination on the grounds claimed. The only allegation made in respect of the ground of receipt of social assistance is that the applicant’s sons claimed entitlement to Ontario Works benefts. There is no allegation that they were differentially treated by the respondents because they were previously in receipt of Ontario Works benefits or sought to be re-instated with Ontario Works benefits.

15The applicant and her family are deeply unhappy with the manner in which Ontario Works is administered by the respondents. However, to succeed in this Application, the applicant must be able to show a link between the alleged actions of the respondent and the identified grounds of discrimination. For the reasons set out above I am satisfied that this Application has no reasonable prospect of success because there is no nexus between the decisions taken by the respondents and any of the grounds alleged, and the Application is therefore dismissed.

16Having concluded that there is no reasonable prospect of success and dismissing the Application on that basis, there is no need to address the delay issue.