HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Katherine Allen

Applicant

-and-

City of Ottawa, Debra Bradley and Mary MacIsaac

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: February 17, 2011

Citation: 2011 HRTO 344

Indexed as: Allen v. Ottawa (City)

Appearances

Katherine Allen, Applicant Self-represented

City of Ottawa, Debra Bradley and Mary MacIsaac, Respondents David Patacairk, Counsel

1This is an Application filed June 30, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint filed with the Ontario Human Rights Commission (Commission) on November 20, 2006 was abandoned upon the filing of the present Application.

2The applicant alleges that the City of Ottawa discriminated against her on the basis of disability from July 2004 until May 2005. The applicant has been diagnosed by a physician as a person with depression and other disabilities. She applied for benefits under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (“ODSP”). While waiting approval of these benefits, she received benefits under Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A (“OWA”).

3The purpose of this Decision is to address the respondent’s Request for Order during Proceedings seeking early dismissal of the Application.

4In December 2010, I heard the evidence of the parties on these preliminary issues. The applicant participated by telephone.

Nature of the Application

5The applicant asserts that she advised her claims advisors that she had learning disabilities and experienced depression, but they expressed scepticism about her disability. They were rude and abrupt. When she cried, they got annoyed. They threatened to terminate her benefits and at times her benefits were terminated. As a result of the loss of benefits she was unable to pay her rent and was evicted from her home in 2005.

Timeliness

6In July 2005, the applicant moved to Toronto. In 2006, she was assessed as eligible for ODSP benefits.

7The respondents assert that the last contact they had with the applicant was May 2005 when she requested that her file be transferred to Toronto. Accordingly, the time between the filing of her complaint in November 2006 and the last date of interaction with the respondents was 18 months.

8Section 34 of the Code sets a limitation period for bringing applications alleging infringements of the Code:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

9Section 34 of the Code allows applications alleging discrimination under the Code to be made within one year of the incident (or last incident) of alleged discrimination. While the original complaint underlying the present Application was filed when the old section 34 of the Code was in force, the Tribunal has found that the provisions of the current section 34 are applicable to applications, such as this one, filed under the transition provisions of the Code. See, for example, Boncori v. TRW Canada, 2009 HRTO 564; Marchand v. St. Michael’s Hospital, 2009 HRTO 566; and Chintaman v. Toronto District School Board, 2009 HRTO 1225.

10According to section 34(2) of the Code, an application made more than one year after the incident or last incident of alleged discrimination may only proceed before the Tribunal where the Tribunal is satisfied that the delay in filing the application was incurred in good faith and would not cause not substantial prejudice to any person affected by the delay.

11As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must demonstrate something more than simply an absence of bad faith, otherwise, there would be little meaning to the limitation period. In my view, the limitation period of one year is consistent with the policy objective, expressed elsewhere in the Code that human rights claims should be dealt with expeditiously. Accordingly, individuals must act with all due diligence and file their applications within one year when they seek to pursue human rights claims.

12The applicant testified that after being rendered homeless in Ottawa, she moved to Toronto and lived in precarious circumstances until her ODSP benefits were paid. She was suffering from a break down due to her mental illness. She was hospitalized four times. These circumstances explained the delay. In addition, she did attempt to contact the Commission in September 2006 to seek a complaint form. The delay since September 2006 was due to the Commission’s delay in sending her the forms.

13On cross-examination the applicant agreed that during this same period she sought the assistance of the Advocacy Resource Centre for the Handicapped, the Ombudsman and the Premier and she filed an appeal for ODSP benefits.

14I am troubled by the applicant’s delay in contacting the Commission when she was able to pursue her appeal for ODSP benefits and petition various agencies for assistance. Nonetheless, I feel the benefit of the doubt should be granted to the applicant in this case. As a person with a mental disability, she was, in her own words, not thinking coherently, which explains the delay in pursuing the Application.

15I am satisfied that the delay was incurred in good faith and therefore decline to dismiss the Application for delay.

16However, I am not satisfied that the applicant has set out any facts, or given any evidence that calls for a further response by the respondents. The respondents assert that the essence of the Application, even if timely, relates solely to her entitlement to OWA or ODSP benefits and that such assertions do not engage the definition of discrimination of “services” under section 1 of the Code

The applicant’s evidence

17The applicant is a self-employed as a fine artist. She lived in a three bedroom house in Ottawa which she rented for $700/month. She ran her business out of the home. Over the years she had accumulated a large amount of artwork.

18In November 2003 she approached the respondent seeking ODSP benefits. She was assessed as eligible for OWA. The caseworkers required her to come into the office from time to time to provide information. The applicant often broke down crying and felt that the respondent caseworkers did not believe in her mental health issues.

19When I questioned the applicant how she thought she had been discriminated against by the caseworkers with respect to her disability, she responded that they ought to have accommodated her disability. On further inquiry she stated that as an accommodation she needed them not to make her cry, not to send her suspension letters and not to make ridiculous demands for documents, such as an 18 year old divorce certificate and not cut her off from her OWA benefits. She felt that they should have left her alone until the ODSP benefit claim was accepted in December 2005.

20The OWA benefit was $520/month. The applicant was advised by one of her claims advisors that her rental accommodation was unnecessarily large for her needs and the cost exceeded the monthly benefit. They recommended that she seek less expensive accommodation. The applicant chose not to follow this advice. Instead her daughter began living with her and paying some portion of the rent, which led the applicant to hope that she would be able to meet her expenses.

21From time to time, the applicant was asked to provide information to support her claim for OWA benefits. If she did not supply the information in a timely fashion, she was issued a standard notice advising that her benefits would be suspended. From time to time her benefits were suspended, until she contacted the office to clarify the situation. At one time, the applicant was asked to provide a copy of her divorce certificate. The applicant had been divorced many years earlier and was unable to obtain a copy of this document in a timely fashion. Again, a notice of suspension was issued and her benefits were delayed.

22Matters came to a head in April 2005. As the applicant’s rent was $700 and the OWA benefit was $520, the applicant continued to be routinely behind in her rent, despite the daughter’s contribution. The landlord issued a notice of eviction for three months unpaid rent. In an attempt to obtain enough funds to satisfy the landlord, the applicant applied for a community start up fund benefit of $800. This benefit was denied.

23The applicant was unable to pay her rent and the landlord initiated eviction proceedings. The applicant’s possessions were summarily removed from the house and left on the lawn. She lost many of the possessions and art she had accumulated over the years.

24In desperation, the applicant sought the assistance of her family who drove her to Toronto in July 2005. In 2006 she was ultimately assessed as eligible for ODSP benefits.

25The applicant testified that she felt humiliated by the necessity to seek OWA benefits and that her humiliation was compounded by the insensitive attitude of the claims workers employed by the organisational respondent. In her view they were abrupt and dismissive of her, and made unreasonable demands for documentation. She perceived the letters warning her of suspension of her benefits as threatening and stressful. The eviction from her long term home was devastating.

Respondents’ Evidence

26A representative from the City of Ottawa testified that they administered the OWA benefit on behalf of the province. Their records reveal that the applicant was warned repeatedly that her rent exceeded the applicant’s OWA benefit and that she should make arrangements for less expensive accommodation. This witness confirmed that the applicant was routinely asked for financial or other information and that, if it was not provided, a notice of suspension of benefits would be issued. Her benefits would be paid upon receipt of the information or upon some explanation from the applicant.

27This witness confirmed that the applicant’s claim for ODSP was denied in February 2005. The respondent assisted the applicant to compete an internal review. In March, her claim was again denied. She appealed to the Social Benefits Tribunal which initially denied her claim for ODSP. This decision was reversed in December 2005, by which time the applicant was living in Toronto.

28The respondents confirmed that the applicant was advised in April 2005 that she was about to be evicted and that she sought a community start up benefit. The representative testified that this benefit of up to $800 was payable to assist persons to establish a new residence. As the applicant was not moving to a new residence she was not eligible for the benefits. The benefit could not be used to pay rent, arrears of rent or storage of goods, as the applicant wanted.

29I conclude that the essence of the applicant’s allegation of discrimination against the personal respondent caseworkers is that they made demands for information (an income statement, a divorce certificate) and that they were unsympathetic to her. In my view, there is no evidence upon which I could make a finding that the personal respondents discriminated against the applicant because of her disability. The form of accommodation sought by the applicant, to be left alone, is not compatible with their responsibility to administer the OWA benefit.

30Having questioned the applicant thoroughly, I am satisfied that the pith and substance of her allegation of discrimination against the respondent City of Ottawa relates solely to the administration of benefits from July 2004 and May 2005. In her written submission dated October 21, 2010 the applicant described her complaint “in a nutshell” as follows:

I was already receiving OW benefits while waiting for my ODSP. The workers discriminated against me even though they knew I was a person with mental health issues and then, they were instrumental in causing me to lose my house and everything in it, including my home-based business. That’s my complaint in a nutshell.

31I conclude that the essence of the applicant’s allegation of discrimination against the respondent City is that it initially denied her claim for ODSP, suspended her OWA benefits from time to time and denied her a community start up benefit. The applicant felt that these actions led to her eviction and the loss of her belongings.

32In my view, the applicant is alleging that the organisational respondent wrongfully threatened to suspend and wrongfully suspended her Ontario Works benefits, wrongfully denied her ODSP benefit and wrongfully denied her a community start up benefit.

33I see no allegation that the administration of these benefits or the content of these decisions was discriminatory. The applicant simply disagrees with them.

34There is a robust system of internal review and appeals within OWA and ODSP programs. If the applicant disagreed with the substance of any of their decisions, the proper course was for her to seek an internal review and appeal. I note that she did pursue this course with respect to her ODSP benefits and was ultimately successful.

35With respect to the suspension of her OWA benefits, it appears that the benefits were reinstated after she contacted the caseworkers and provided the information requested.

36The applicant seeks to challenge the respondent’s administration of her claim for benefits under the OWA. While the administration of benefits is a service within the meaning of the Code, the applicant has not set out any facts that could give rise to a finding that the administration of the benefits by the respondent itself was discriminatory.

37In essence the applicant is disputing the result of the decision made by various decision-makers within the OWA. The applicant has not named those decision-makers. Even if she had, the Tribunal has stated that it does not have jurisdiction to review decisions of other statutory tribunals on the basis that the “content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public”: see for example Baird v. WSIAT, 2009 HRTO 99; Christianson v. Social Benefits Tribunal, 2009 HRTO 886.

38The Application is dismissed..