Hendershott v. Ontario (Community and Social Services) (No. 1)

TR-0340-09,TR-0339-09,HR-1263-07

2011-03-10

2011 HRTO 482

Ontario Human Rights Tribunal

CHRR Doc. 11-0982

Meghan Hendershott Complainant

and

Ontario Human Rights Commission Commission

v.

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services — Ontario Works Program Respondents

and

Mel Hendershott Applicant

and

Ontario Human Rights Commission Commission

v.

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services — Ontario Works Program Respondents

and

Darlene Hendershott Applicant

and

Ontario Human Rights Commission Commission

v.

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services — Ontario Works Program Respondents

Date of Decision: March 10, 2011

Before: Human Rights Tribunal of Ontario, Leslie Reaume

File Nos.: HR-1263-07; TR-0339-09; TR-0340-09

Appearances by:

Mel Hendershott, for the Complainant and for Darlene Hendershott and himself

Daniel Guttman and Geoffry Baker, Counsel for the Respondents

Anthony Griffin, Counsel for the Commission

FAMILY STATUS — financial assistance program discriminatory for single minor parent and to children — family status definition includes having a parent-child relationship — BENEFITS — PUBLIC SERVICES AND FACILITIES — social assistance benefits denied — family allowance benefits denied — eligibility criteria for services discriminatory — AGE DISCRIMINATION — social assistance benefits denied to persons aged 18 and under

DISCRIMINATION — association with persons identified by a prohibited ground of discrimination — differential treatment based on a prohibited ground of discrimination — stereotypes — definition of discrimination — Kapp test — EQUALITY — definition of equality — equal treatment — BURDEN OF PROOF — point at which onus shifts — elements of a prima facie case — HUMAN RIGHTS — nature and purpose of human rights legislation — difference between human rights proceedings and Charter proceedings

Summary: The Human Rights Tribunal of Ontario ruled that the Minister of Community and Social Services and the Ontario Works Program discriminated against Meghan Hendershott because of her family status.

Ms. Hendershott gave birth to twin boys when she was 15 years old. At the time she was living with her parents and was dependent on them. Because of this she was ineligible for social assistance benefits under the Ontario Works Program for herself. She was eligible for benefits for her children as a minor parent, but she received less because she was living with her parents than she would have, had she not been living with her parents. Ms. Hendershott challenged both the denial of benefits to her personally and the difference in the benefits she received for her children.

The Tribunal found that there was no discrimination involved in denying Ms. Hendershott benefits for herself. Ontario Works does not provide benefits to minors who are still under the control of their parents, as Ms. Hendershott was. However, the Tribunal found that Ms. Hendershott was discriminated against on the ground of family status because she received lesser benefits for her children only because she was living with her parents. Had she been living with the children's paternal grandparents, other family members, or a friend, she would have received a higher monthly benefit for support of the children. The Tribunal calculated the difference as approximately $279 per month.

The Tribunal rejected the claim by the respondent that it was a "perfectly natural assumption" to make that grandparents would support their grandchildren when they are living together. Ms. Hendershott was disadvantaged by the assumptions that were made about her relationship with her parents and their ability and willingness to support her children. In fact, the Hendershotts' financial circumstances were not easy, and had become more precarious. In order to accommodate their grandchildren, the Hendershotts had to give up a room in their home from which they had previously derived $924 a month in income by participating in a family home program for adults with developmental disabilities. Rather than promoting attachment to the family that would give the complainant her best opportunity for financial independence later in her life, the distinction in benefits raised the real possibility that she would have to leave home in order to provide for her children.

The Tribunal ordered the respondents to pay Ms. Hendershott her lost benefits in accordance with the calculation provided by the Ontario Human Rights Commission from September 28, 1998, to March 31, 2002, when she moved out of her parents' home. In addition, the Tribunal ordered the respondents to cease considering whether a minor parent is living with her own parents in the calculation of benefits for the minor parent's children.

See also (No. 2) (2011), CHRR Doc. 11-1738, 2011 HRTO 1238.

CASES CITED

Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719, 1989 CanLII 2: 42, 98

Armstrong v. British Columbia (Ministry of Health) (2010), 2010 BCCA 56, 283 B.C.A.C. 167, 67 C.H.R.R. D/332, 2010 BCCA 56: 43, 50

B. v. Ontario (Human Rights Comm.), 2002 SCC 66, [2002] 3 S.C.R. 403, 44 C.H.R.R. D/1, 2002 SCC 66: 28, 47, 66, 71

Ball v. Ontario (Community and Social Services) (No. 10) (2010), CHRR Doc. 10-1503, 2010 HRTO 1277: 109, 128

Canada (Attorney General) v. Walden (No. 1) (2010), CHRR Doc. 10-1285, 2010 FC 490: 67

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 1999 CanLII 675: 63

Lovelace v. Gross, 80 N.Y. 2d 419 (1992): 102

Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13: 108, 113

Montréal (Communauté urbaine) c. Québec (Comm. des droits de la personne et des droits de la jeunesse), 2004 SCC 30, [2004] 1 S.C.R. 789, 49 C.H.R.R. D/129, 2004 SCC 30: 108, 113

Ontario (Attorney General) v. Ontario (Human Rights Comm.) (2007), 62 C.H.R.R. D/315, 2007 CanLII 56481 (Ont. Div.Ct.): 108, 116

Ontario (Disability Support Program) v. Tranchemontagne (2010), 71 C.H.R.R. D/1, 2010 ONCA 593: 23, 33, 38, 48, 56, 63, 72

Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781: 57

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102, 1985 CanLII 18: 42, 58, 98

R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41: 35, 50

Tranchemontagne v. Ontario (Dir., Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, 56 C.H.R.R. D/1, 2006 SCC 14: 19

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.),1982, c. 11

s. 11(d): 110

s. 15: 8

s. 15(1): 35, 54

s. 15(2): 54

s. 24(1): 112

Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.),1982, c. 11, Preamble: 110

British Columbia

Human Rights Code, R.S.B.C. 1996, c. 210: 53

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43: 135

Human Rights Code, R.S.O. 1990, c. H.19

Preamble: 68

s. 1: 69

s. 10(1): 25

s. 45.2: 126

s. 45.2(1): 105, 117

s. 45.2(2): 105

s. 46.1: 112

s. 47(2): 112

s. 53(5): 6

Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B: 19

Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A

s. 1: 20

O. Reg. 134/98

s. 10: 70, 81

s. 59: 123

s. 59(2): 124

Quebec

Charter of Human Rights and Freedoms, R.S.Q. c. C-12: 113

OVERVIEW

1This decision involves a woman named Meghan Hendershott (the "complainant") who gave birth to twin boys when she was 15 years of age. Her complaint concerns the level of assistance she received from the respondent under the Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A (the "OWA").

2There are two separate benefits at issue in this case: benefits the complainant claims for the support of herself and benefits she claims for the support of her children. At the time of the birth of her children, the complainant was living with and dependent on her parents. As a result, she was ineligible for benefits under the OWA for her own support. She was eligible for benefits for her children as a minor parent, but those benefits were limited by the fact that she was living with and dependent on her own parents. The complainant is challenging both the denial of benefits for her personally, and the difference in benefits she received for the support of her children.

3The complainant alleges discrimination on the basis of family status. She also alleges that the grounds of age and sex are engaged by her complaint. I have considered those factors, not as separate grounds, but as part of the overall context of the complainant's experience.

4Because she was a minor, the complainant's father, Mel Hendershott, filed a complaint on her behalf with the Ontario Human Rights Commission ("Commission") alleging discrimination in respect of services under the Human Rights Code, R.S.O. 1990, c. H.19 (the "Code"). By the time of the hearing, the complainant had reached the age of majority; however, her father continued to act on her behalf.

5In addition to the complaint filed on behalf of Meghan Hendershott, Mr. and Mrs. Hendershott filed two complaints with the Ontario Human Rights Commission in their own names alleging that they also experienced discrimination because they were disadvantaged by the level of assistance that the complainant received.

6The complaint filed on behalf of Meghan Hendershott was referred by the Commission to the Tribunal and pre-dates the substantial amendments to the Code which came into force June 30, 2008. The applications filed on behalf of Mel and Darlene Hendershott fall with the time-limited transitional provisions of the Code. The original complaints to the Commission were abandoned when Mr. and Mrs. Hendershott filed transitional applications on the same subject-matter with the Tribunal pursuant to s. 53(5) of the Code.

7For clarity, where I use the words complaint and complainant, I am referring to Meghan Hendershott. Where I use the word applications, I am referring to those applications filed by Mr. and Mrs. Hendershott with the Tribunal on their own behalf. Where I am referring to Mr. and Mrs. Hendershott in their capacities as representatives, witnesses and applicants in their own right, I have referred to them by name.

8At an earlier stage in the proceeding, I declined the complainant's Request to have the Tribunal adjudicate the same facts under s. 15 of the Charter as well as under tort law and other provincial statutes which govern the safety and welfare of children. The jurisdiction of the Tribunal is statutory and does not extend to adjudicating tort cases and cases under other provincial legislation. With respect to the Charter, the complainant is not challenging a provision of the Code itself under the Charter and therefore my jurisdiction is limited to adjudicating this matter in accordance with the provisions of the Code.

9During the hearing, I made one further ruling of note: the case analysis dated January 27, 2004, and the reconsideration analysis dated January 30, 2007, prepared by staff at the Commission and filed at the hearing by the respondent, were irrelevant to my decision-making. The documents were put to me for the purpose of bolstering the respondent's position that the regulations in question do not breach the Code. Those documents represent the opinions of staff and Commissioners in the execution of a different mandate, which, before June 30, 2008, was to determine whether a matter warranted further inquiry by the Tribunal. The documents may technically be admissible; however, I have attached no weight to them in these circumstances since it is the role of the Tribunal, and not the Commission, to make the ultimate determination as to whether the Code has been breached.

DECISION

10For the reasons that follow, I have made the following determinations:

1. The complainant's claim for benefits for herself is dismissed. Children under 18 years of age are not generally entitled to apply for benefits under the OWA for their own support while they are living with and dependent on their parents. I have refused to extend those benefits to the complainant's circumstances.

2. The complainant's claim for benefits for her children is upheld. Benefits for the children of minor parents are generally available under the OWA. I have found that providing the complainant with fewer benefits for the support of her children because she lives with and is dependent on her parents constitutes a breach of the Code.

3. The applications filed by Mr. and Mrs. Hendershott on their own behalf in relation to the same benefits are dismissed.

Summary of the Arguments

11The complainant alleges that as a result of her decision to remain living with and dependent on her parents after the birth of her children, she received less support for her children than if she had been living independently. She also alleges that she received no support for herself for the same reason. This, the complainant and the Commission allege, constitutes discrimination on the basis of family status.

12The complaint was filed against the Ontario Government as represented by the Minister of Community and Social Services (the "respondent"). The respondent is engaged in the difficult exercise of providing subsistence benefits to a diverse population of people in need. The respondent denies that the ground of family status is engaged by this complaint. The respondent argues that the distinction at issue was not based on the "status" of being in a parent-child relationship, but rather on where and with whom the complainant chose to live with her children.

13While the respondent admits that the OWA technically provides fewer benefits to minor parents who live with and are dependent on their parents as compared to minor parents who live independently of their parents, they argue that the distinction is not discriminatory. There is, for example, no real disadvantage in receiving fewer benefits when one considers the overall context of the complainant's life. If the complainant lived independently of her parents she would have additional expenses which would not be fully covered even by an increase in OWA support. The respondent argues that the complainant is, in fact, advantaged by living with her parents because she receives both monetary and non-monetary forms of support not available to minor parents living independently of their parents.

14The respondent argues that in determining benefits for the complainant and her children, the respondent is entitled to rely on the assumption that the complainant's parents will comply with their legal obligation to provide the complainant with support. The respondent argues that the complainant and her children come as a "package", and that the legal obligation to provide shelter to the complainant necessarily involves providing shelter to the grandchildren. In addition, the respondent argues that the impugned regulations are based on the economies of scale which exist in a three-generation household. The respondent also relies on the "natural affinity" between the complainant, Mr. and Mrs. Hendershott, and the twins for the assumption that they will be supported financially while they all remain living under the same roof.

15The complainant argues that her parents have no legal obligation to support her children and that the assumptions underlying those provisions of the OWA which are at issue in this case are discriminatory. The complainant argues that the OWA deprives her of benefits and downloads responsibility for supporting her children to her parents without assessing whether they are willing and able to provide that support. In the complainant's view, the affection her parents demonstrate toward her own children is immaterial to the question of whether the complainant is entitled to benefits for her support as a minor parent and the support of the twins. Both Mr. and Mrs. Hendershott testified that they felt they had no choice but to have the complainant and her children live with them, given the limited and perilous options available to her. However, they also testified that supporting the complainant and her children without the benefit of financial assistance, including the basic cost of their shelter, put a tremendous strain on the entire family.

EVIDENCE

16The Commission and the respondent filed an agreed statement of fact in relation to the complaint involving Meghan Hendershott. Mr. Hendershott, on behalf of himself, Mrs. Hendershott and the complainant, did not agree to any of the facts set out by the other parties and as a result, all three testified at the hearing of this matter. However, having reviewed the agreed statement of fact, and having heard the evidence of the complainant and Mr. and Mrs. Hendershott, it is my view that the agreed statement of fact is an appropriate place to start in setting out the background to the complaint.

17The following paragraphs contain the full text of the agreed statement of fact, including footnotes, which was filed by the Commission and the respondent. The only changes I have made involve the removal of the names of the complainant and her children.

Agreed Statement of Fact

1. The complainant gave birth to twins on July 29, 1998. The complainant was then 15 years old. She and her children lived with the complainant's parents, Mel and Darlene Hendershott, from the time that her children were born until March of 2002, when the complainant, who was then 18 years old, moved out of her parents' house with her children.

2. On September 28, 1998, when she was still 15 years old, the complainant applied for social assistance under the provisions of the OWA as a single parent with two children. She was not eligible for income assistance in her own right because she was under 18 years of age and had not withdrawn from parental control.

3. However, income assistance was available to be paid on behalf of the complainant's children in accordance with subsection 11(2) of O. Reg. 134/98 ("the Regulation"), promulgated pursuant to the Ontario Works Act, 1997:

11(2) A person who is a dependent adult or a dependent child and who has a dependent child may apply for income assistance on behalf of the dependent child but is not eligible for income assistance on his or her own behalf.

4. Subs. 44(2) of the Regulation set the budgetary requirements for the complainant's children as follows: $201 for the first child and $86 for the second, for a total of $287 per month. (This paragraph is footnoted as follows: The dependent child provisions (ss. 11(2) and 44(2) (1-3 of the Regulation) have not been amended, except that the amounts set out in s. 44(2) (1-3) have increased in subsequent years. As of December 1, 2009, the amounts will be $228 and $97).

5. When the complainant turned 18 on July 15, 2001, she did not qualify for income assistance in her own right because she was still living at home with her parents and was not financially independent. (See s. 11(3), O. Reg. 134/98 and s. 2(2), O. Reg. 134/98) (This paragraph is footnoted as follows: The criteria for "financial independence" were amended in 2005).

6. However, the same amount of income assistance continued to be available on behalf of her children. (See s. 11(4) O. Reg. 134/98 and s. 44(2), O.Reg. 134/98).

7. Thus, from September of 1998 to February 2002, assistance was provided on behalf of the children in accordance with the Regulation. Payments were as set out at Tab 2 of the Commission's Book of Documents, columns 1 and 2. During 1998 the full amount came from Lanark County, the delivery agent for Ontario Works (the Ontario Works program is not directly delivered by Ontario; but through delivery agents). From January 1999 to February 2002, a portion of that amount came from Lanark County and a portion came from the National Child Benefit Supplement. (This paragraph is footnoted as follows: The National Child Benefit was launched in 1998 as a partnership between the federal, provincial and territorial ministers responsible for social services. The NCB has three goals: to help prevent and reduce child poverty; to promote attachment to the workforce by ensuring that families will be better off as a result of working; and to reduce overlap and duplication between federal and provincial/territorial programs. The NCBS, which is one component of the program, is a payment that is provided to families with children whose income falls below a specified level, regardless of whether they are on social assistance. The federal/provincial/territorial agreement provides that provinces may deduct some or all of the NCBS from social assistance as income, and that any money so deducted is to be invested in benefits and services for low income families. Initially in Ontario, the full amount of the NCBS was deducted as income. Since 2004, increases to the NCBS have not been deducted. A significant portion of the money deducted by Ontario is used to fund the Child Care Supplement for Working Families. Money is also provided to municipalities, to fund programs for children at risk. Note that, pursuant to recent regulatory amendments, beginning on July 1, 2008 the full amount of the NCBS payment is no longer deducted from social assistance as income in Ontario.)

8. The payment history chart also indicates that the complainant, herself, received other monies including more than $1000 per month to cover childcare costs while she participated in the Ontario Works Learning, Earning and Parenting Program ("LEAP"), in order to allow her to complete high school. Other benefits included an annual winter clothing allowance and money for medical transportation.

9. The complainant appealed the amount of income assistance she was receiving from Lanark County on behalf of her twins to the Social Benefits Tribunal on January 24, 2000.

10. Lanark County filed a written response to the appeal, dated March 10, 2000.

11. By decision dated October 19, 2000, the Social Benefits Tribunal dismissed the appeal. Member Collins concluded that Lanark County correctly interpreted and applied the legislation to the facts of the case. As this was a pre-Tranchemontagne decision, the Tribunal considered it did not have the jurisdiction to hear human rights issues. It also cited section 67 of the OWA in support of its decision not to deal with questions of the constitutional validity of any provision of the Act or regulation. (The parties are referring here to Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 [56 C.H.R.R. D/1]).

12. Pursuant to subs. 31(1) of the Family Law Act, Mel and Darlene Hendershott had an obligation to provide support for the complainant. That obligation would not have extended to Meghan once she turned 16, if she had withdrawn from parental control.

13. If the complainant had withdrawn from parental control at the age of 16, she would have been required to meet the requirements of section 10 of the Regulation in order to be eligible for income assistance as a recipient in her own right and for the benefit of her dependent children. The complainant lived with her parents and did not withdraw from parental control while she was under 18 years of age.

14. Under the Regulation, between 1998 and 2002, an adult single mother who was eligible for income assistance in her own right, and was provided that assistance for her benefit and for the benefit of two dependent children under the age of 12, would have received the following amount for income assistance for the purposes of basic needs and shelter, assuming she was living on her own: $532 per month as an amount payable for basic needs (not including possible special dietary amounts and other benefits); plus an amount payable for shelter equal to the lesser of rent (and certain utilities not included in the rent) and the maximum shelter allowance for a benefit unit of 3 persons of $554 per month. (See Regulation, ss. 41 and 42)

15. Under the Regulation, between 1998 and 2002, a single adult with no dependent children, who was living alone and who was eligible for assistance in her own right, would have received the following amount: $195 per month as an amount payable for basic needs (not including a possible special diet and other benefits); and a shelter allowance equal to the lesser of rent (and certain utilities not included in the rent) and the maximum of $325 per month. See Regulation ss. 41 and 42)

Additional Evidence

18No further evidence was called by the respondent or the Commission, although the Commission relied on the testimony of the complainant and Mr. and Mrs. Hendershott. Their testimony was largely related to the significant impact on the family of the decision to have the complainant and the twins reside with them and the difference in OWA support that the complainant received as a result. The impact on the family was significant and I note that even during the hearing, they found the experience of testifying about these issues difficult and embarrassing. I refer to their testimony throughout the analysis below.

19In Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 [56 C.H.R.R. D/1] ("Tranchemontagne SCC"), the Supreme Court of Canada found that the OWA and Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B ("ODSPA") are the "twin components of the Ontario Government's program for delivering social assistance", although they serve different goals [at § 3]:

It is clear that the ODSPA and the OWA are meant to serve very different goals. The former statute is meant to ensure support for disabled applicants, recognizing that the government shares in the responsibility of providing such support (ODSPA, s. 1). The latter statute, on the other hand, seeks to provide only temporary assistance premised on the concept of individual responsibility (OWA, s. 1).

20In addition, the purpose of the OWA is contained in s. 1 of the Act and reads as follows:

1. The purpose of this Act is to establish a program that,

(a) recognizes individual responsibility and promotes self reliance through employment;

(b) provides temporary financial assistance to those most in need while they satisfy obligations to become and stay employed;

(c) effectively serves people needing assistance; and

(d) is accountable to the taxpayers of Ontario.

ISSUES

21I have no doubt, having heard the complainant's evidence, that giving birth to twins at the age of 15 raises a host of issues and puts a tremendous strain on the family. Many issues were put to me on behalf of the complainant which arise from a genuine sense of being treated unfairly, including the sufficiency of the benefits available under the OWA. However, my role is to examine the complainant's circumstances in light of a potential breach of the Code, and not for any other purpose. With that purpose in mind, I have determined that the core issue in this case is whether the regulatory distinctions in basic needs and shelter allowances for the complainant and for the benefit of her children, which are based on the fact that she was living with and dependent on her parents, breach the Code.

22There was some discussion during the hearing of this matter about who could be described as the recipient of the benefit. The respondent argued, for example, that if the intended recipients were the twins and they received less benefits because they were living with their grandparents, the ground of family status would not be engaged because it does not extend to grandparents and grandchildren. Without determining the validity of that argument, in my view what is at issue here is not the relationship between the grandparents and the grandchildren — it is the manner in which the respondent relied upon the complainant's relationship with her parents in the determination of benefits for the twins. The provisions of the OWA, cited in the agreed statement of fact, provide the minor parent with the opportunity to apply for benefits from the respondent which she then applies to the support of her children. I have proceeded, therefore, on the basis that the complainant is the recipient of the benefit and it is her relationship with her parents which is the subject of the family status analysis.

23In addition to those issues, the Court of Appeal for Ontario recently released its decision in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 [reported 71 C.H.R.R. D/1] ("Tranchemontagne"). Both the Commission and the respondent participated in that appeal. The issues the parties raised in final submissions before this Tribunal were directly before the Court of Appeal and as a result, the parties were invited to file submissions on the implications of Tranchemontagne in this case. Submissions were received from the Commission and the respondent. No submissions were received on behalf of the complainant or Mr. and Mrs. Hendershott.

ANALYSIS

24I deal first with the respondent's argument that the prohibited ground of family status is not engaged by the complainant's allegations. That is followed by an analysis of the submissions of the parties on the implications of Tranchemontagne and finally, I apply those findings to the facts of this case in determining the extent of the breach and appropriate remedies.

Family Status

25Family status is defined under the Code as the status of being in a parent and child relationship (s. 10(1)).

26The Commission and the complainant take the position that the complainant's allegations are clearly captured by the ground of family status. The complainant was denied benefits because of two factors: she was living with her parents and she was financially dependent on them. They argue that both of these elements engage family status and that the ground covers both the status of being in a parent-child relationship and the identity and the circumstances of the parent and child in question.

27The respondent argues that the distinction in benefits is not based on the parent-child relationship, but on where the complainant chose to live. In that sense, they argue in favour of a restrictive interpretation of family status.

28The decision of the Supreme Court of Canada in B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403 [44 C.H.R.R. D/1] ("B") clearly endorsed a broad interpretation of the ground of family status. The Court found that it was consistent with the overall context of the Code as well as the broad, liberal, purposive interpretation accorded to human rights legislation, that the prohibited ground of family status be construed so as to include both the absolute and relative status of the parent and child in question (at § 44 and 46).

29The relative status of the parent-child relationship is illustrated in B by reference to the actual identity and discrete circumstances of the parent and child in that case. The claimant was fired from his employment because his daughter made allegations of a sexual nature against her uncle (her mother's brother), one of the owners of the business. The claimant was terminated because he was presumed to lack, among other things, sufficient loyalty to the organization because of the claims advanced by his daughter.

30In this case, absolute status describes the fact that the complainant and Mr. and Mrs. Hendershott are in a parent-child relationship. Relative status describes the circumstances associated with that relationship, namely that the complainant was, at the material time of the complaint, a minor parent who lived with and was dependent on her own parents. At § 53 of B, the Supreme Court stated that relative status will be caught by the Code "where there is some rule of general application that results in differential treatment of a particular sub-group". The complainant in this case is caught up in a rule which applies, not to everyone who is in a parent-child relationship (absolute status), but to minors with children of their own who are living with and dependent on their parents (relative status).

31The distinction in the benefits provided to the complainant is clearly based on the fact that there is a parent-child relationship between the complainant and the individuals with whom she has chosen to live. That is the only thing which distinguishes her from other minor parents who receive the benefits she is seeking. If she was independent of her parents and lived with anyone else, including other family members, friends, even the paternal grandparents of her children, she would be eligible for the benefits she seeks. Ironically, if anyone else in the complainant's circumstances lived with Mr. and Mrs. Hendershott, the Hendershotts could be reimbursed for shelter costs from the benefits that the minor parent would be eligible to receive.

32I find further support for my finding that family status is engaged by this complaint in the respondent's explanation, which is based entirely on the parent-child relationship between the complainant and Mr. and Mrs. Hendershott. The respondent argued that it was entitled to rely on the expectation that Mr. and Mrs. Hendershott would support the complainant and her children. That expectation was attributed to both the legal obligation owed to the complainant while she was dependent on her parents (the benefit of which would flow to the grandchildren as part of the "package") and the natural affinity between parents and their children and grandchildren.

Tranchemontagne

33During final argument of this case, the Commission and the respondent underscored the importance of the issues to be addressed by the Court of Appeal in Tranchemontagne, including the test for determining discrimination under the Code.

34In its submission, the Commission argued that the focus of the decision of the Court of Appeal is on substantive discrimination. The Commission's position is that it is clear that the complainant received less assistance on behalf of her children because of her relationship with her parents and as a result, she experienced discrimination in the substantive sense. The Commission took the position at the hearing that there is a social stigma attached to being a single teenage mother who requires the support of the state to support her children and that the difference in benefits exacerbates these circumstances.

35In its submission, the respondent argues that the test for discrimination under the Code is now the same two-step test for determining a breach of s. 15(1) as set out by the Supreme Court of Canada in R. v. Kapp, 2008 SCC 41 ("Kapp") [at § 17]:

(1) Does the law create a distinction based on an enumerated/analogous/prohibited ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

36The respondent interprets this test as imposing an obligation on the complainant to show that the receipt of fewer benefits creates not just a disadvantage, but one which perpetuates prejudice or stereotyping. The respondent states that "it is incumbent upon the complainant to identify the prejudice and or stereotypes associated with being a child whose parents have a legal obligation to support her".

37The respondent also argued at the hearing of this matter that prejudice or stereotyping should be construed as synonymous with bigotry.^* The respondent defends the regulation on the basis that it actually promotes a positive view of family relationships, relying as it does on the assumption that the complainant will be able to rely on her parents, who will naturally provide support to their daughter and grandchildren while they are all living together. The Commission argued against this interpretation and suggested that prejudice should be considered in the broader sense as a form of disadvantage.

Focus on Substantive Equality

38The decision in Tranchemontange affirms that the focus of statutory human rights legislation is on achieving substantive equality (at § 79):

... the focus of the discrimination analysis is on the effect of the differentiation on the claimant(s), and it is only where making a distinction on a prohibited ground has the effect of creating a disadvantage that concerns about substantive inequality are engaged.

39The decision also affirms the factors historically relied upon to determine whether there has been a breach of the Code (at § 90):

In the human rights context, in most instances, it will be evident that a prima facie case of discrimination has been established based solely on the claimant's evidence showing a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others). An inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone.

40In my view, this paragraph sets out the clearest articulation of the test to be applied in most cases under the Code. The prima facie case describes the claimant's initial burden. The same principles are sometimes expressed as "adverse treatment on the basis of a prohibited ground" in those cases that do not lend themselves to proof of distinctions or comparisons (e.g.: sexual harassment and pregnancy cases). The respondent has a corresponding burden to prove a statutory defence or exemption.

41The discussion by the Court of Appeal about the concepts of disadvantage, prejudice and stereotyping appears to arise from the decision under review which raised questions about the role of disadvantage in applications under the Code. The discussion of these concepts, when considered in the historical context of statutory human rights law, emphasizes the long-standing principle that there must be a connection between the treatment alleged by the claimant, the disadvantage that flows from it and the prohibited ground with which the claimant identifies.

42These historic principles have their origins in cases like Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18, [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102] ("O'Malley") and Andrews v. Law Society of British Columbia, 1989 CanLII 2, [1989] 1 S.C.R. 143 [ 10 C.H.R.R. D/5719] ("Andrews"), both of which are recognized by the Court of Appeal as landmark decisions in the context of discrimination. The Court of Appeal relies on these decisions to emphasize the core purpose of anti-discrimination legislation, which is not to remedy all distinctions, but to remedy substantive inequality. Prejudice, stereotyping, historical disadvantage, pre-existing disadvantage, the imposition of burdens, and the withholding of benefits, are all concepts which have been used to separate mere distinctions from discriminatory ones.

43On the face of the decision, these words appear with some variation as "disadvantage by perpetuating prejudice or stereotyping" (at § 82, 84), "perpetuating prejudice, pre-existing disadvantage or stereotyping" (at § 8, 83), "perpetuating prejudice, disadvantage or stereotyping" (at § 69), "an inference of stereotyping or perpetuating disadvantage or prejudice" (at § 90). The words are not defined and the Court of Appeal clearly endorses alternative ways of expressing what is meant by these concepts: see for example the original decision of the Social Benefits Tribunal in Tranchemontagne as well as the decision in Armstrong v. British Columbia (Ministry of Health) (2010), 283 B.C.A.C. 167, 2010 BCCA 56 [67 C.H.R.R. D/332]; leave to appeal refused [2010] S.C.C.A. No. 128 (QL), 2010 CanLII 39671 ("Armstrong"). In addition, the Court of Appeal says explicitly that proof of prejudice or stereotyping are not free-standing evidentiary requirements (at § 95).

44It is not necessary, therefore, to use the precise language of prejudice or stereotyping in determining whether the Code has been breached — what is important is that the test is articulated in a manner which captures the elements of substantive discrimination in the statutory human rights context.

45An inference of stereotyping or of perpetuating disadvantage or prejudice will arise where the claimant is able to make a connection between their own identity and the prohibited ground and where the subject-matter of the claim is connected to the underlying purpose of the Code. In those cases, it will be sufficient for the applicant to prove that they have been adversely affected on the basis of a prohibited ground, by some action on the part of the respondent. For example, if a woman proves that her pregnancy was a factor in her termination, she does not need to prove or even argue that terminating a pregnant woman is a form of disadvantage which perpetuates prejudice or stereotyping. It is inherent in both the subject-matter of her allegation and her identification with the prohibited ground that the complaint falls within the range of human experiences which were intended to be captured by the Code.

46Prejudice or stereotyping will most often be inferred where the claimant's identification with a prohibited ground arises from experiences of historical disadvantage, as was the case in Tranchemontagne. However,family status and marital status claims can cut across gender, race and class lines and are not always imbued with the same sense of history. Nevertheless, the Code provides for remedies for claimants who experience disadvantage which flows from distinctions made on this basis.

47In B, for example, the Supreme Court upheld the breach of the Code on the basis that the claimant, a father, was able to trace his termination to his relationship with his daughter. The Supreme Court explicitly found that it was not necessary for the claimant in that case to identify himself as a member of a historically disadvantaged group nor was the claimant required to demonstrate prejudice or stereotyping (at § 47):

Much was made at the hearing about groups and the apparent requirement that the impugned conduct must, at least potentially, affect an identifiable sub-group within the enumerated ground in order to make out a claim of discrimination. As earlier discussed, we find this approach to be in error. While a category of persons is often identifiable given the existence of historically disadvantaged groups in Canadian society, it is not a necessary requirement to a finding of discrimination.

48The concepts of historical disadvantage, prejudice or stereotyping are used, in my view, to distinguish between those allegations which raise implications for substantive equality and those which may not. I agree with the Court of Appeal that in most statutory human rights cases the existence of historical disadvantage, prejudice or stereotyping will be readily inferred. In Tranchemontagne, for example, the Court inferred prejudice or stereotyping from both the identity of the claimants and the subject-matter of the claim (at § 121):

It is well-known that addicts and welfare recipients have been, and continue to be, the subjects of stigma and prejudice. Moreover, an examination of the legislative scheme of the ODSPA and the OWA fails to reveal any obvious explanation for why the sole impairment group was excluded from ODSP benefits. In my view, these factors were sufficient to create an inference that s. 5(2) of the ODSPA discriminates against the respondents by perpetuating prejudice and disadvantage and by stereotyping through depriving the respondents of the benefits available to other disabled people because of their specific disability.

49On the other hand, the Court of Appeal raised the possibility that in some cases, although the complainant is able to demonstrate a distinction which creates a disadvantage, the allegations may not give rise to concerns about substantive equality. For those cases, the Court of Appeal suggested a more nuanced approach, including the search for prejudice or stereotyping, which might assist in distinguishing between mere distinctions and human rights concerns.

50I agree that in some cases it may be necessary to engage in further examination of the extent to which a claim engages the principles of substantive equality. The Court of Appeal cites, for example, Kapp and Armstrong, two cases involving claimants who could not be described as "historically disadvantaged" in relation to the prohibited ground under which their claims were advanced. In Armstrong, a gender-based claim was advanced by a man seeking publicly funded cancer-screening tests on comparable terms with women. In Kapp, a group of primarily non-Aboriginal fishers advanced a race-based claim against a fishing limitation which was directed at supporting Aboriginal fishers.

51At the risk of over-simplification, the Court of Appeal appears to be suggesting that some cases will beg the question "is this really a human rights issue?" In those rare cases where the identity of the claimant and/or the subject-matter of the claim do not appear to be consistent with the purpose of statutory human rights legislation, the case may require evidence of prejudice or stereotyping to engage the principles of substantive equality.

52In Armstrong, for example, the case was advanced by a relatively privileged man and was dismissed on the basis that gender was not a factor in the government's decision to deny funding. The denial of funding was purportedly based on the fact that cancer-screening tests for men are less effective than the ones available for women. A more nuanced approach, as suggested by the Court of Appeal, might have revealed that despite the claimant's privilege, he represented a group of men, many of whom were disadvantaged by poverty, illness and lack of education. Unlike the claimant, many of the men he represented were unable to take advantage of whatever benefit the cancer-screening tests could provide even if the efficacy of those tests was not perfectly comparable to the tests provided to women. Notwithstanding the fact that this was a gender-based claim advanced by a man, it is possible that prejudice or stereotyping could exist where the underlying rationale for denying the benefit is the prejudicial assumption that men can take care of themselves and do not need the assistance of the state in protecting their health.

53The Court of Appeal does not describe how a more nuanced approach would be conducted in an adjudication under the Code and the cases cited by the Court may prove difficult to apply in the statutory context. The cases relied on to illustrate this concept arise in contexts which are not necessarily compatible with the Ontario Code: the Charter; civil wrongful dismissal; labour relations in the province of Quebec and an adjudication under the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, as amended.

54In addition, in Kapp, the Supreme Court was dealing with the interplay between ss. 15(1) and 15(2) of the Charter. The s. 15(1) analysis, which might have usefully informed the analysis of discrimination under the Code, was incomplete. Once the claimants proved a distinction on the basis of a prohibited ground, the analysis turned to consideration of the government's defence that the legislation in question had an ameliorative purpose. Having found the government successful on that issue, the Supreme Court declined to continue the s. 15(1) analysis. As a result, the concepts of prejudice or stereotyping as they relate to a full s. 15(1) analysis were never explored.

55I would not interpret the discussion of prejudice or stereotyping as adding a new element to the traditional human rights analysis. I adopt the reasoning of the Court of Appeal that in most cases under the Code, prejudice and stereotyping will be inferred where the claimant is able to link their identity to the prohibited ground and prove that the ground was a factor in the disadvantage they experienced. In those cases where the claimant's identity and/or the subject-matter of their claim appear inconsistent with the purposes of the Code, consideration of issues such as prejudice and stereotyping may be useful in clarifying whether or not the allegations raise concerns for substantive equality.

The Prima Facie Case

56In Tranchemontagne, the context for almost the entire discussion of the concept of disadvantage, prejudice or stereotyping is the prima facie case. It is only much later in the decision that the Court of Appeal makes reference to the complainant's overall burden to prove the case. The Commission argues that the complainant in this case has established a prima facie case which has not been rebutted by the respondents.

57In the context of most adjudications under the Code, there is little practical difference between the prima face case and the complainant's overall burden. The complainant proves the distinction (or treatment), the connection to the prohibited ground and the disadvantage that flows from it. The respondent proves the statutory defence or exemption. As part of that process, the complainant may challenge the respondent's explanation as false or pretextual. This process is often referred to as the "shifting burdens" in the human rights context. See Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 [3 C.H.R.R. D/781] ("Etobicoke").

58The establishment of a prima facie case under human rights legislation was discussed at some length in O'Malley and was defined in this way (at § 28 [C.H.R.R. § 24782]):

... A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer.

59The definition arises from the circumstances of the case in O'Malley and specifically the fact that the respondent called no evidence. The Board of Inquiry, at first instance, had failed to follow the rule in Etobicoke and placed the burden on the Commission to prove that the respondent had acted unreasonably in the steps which it took to accommodate the claimant.

60The decision in O'Malley does not direct a statutory human rights adjudicator to conduct an analysis of the prima facie case as a water-tight compartment. In other words, the Tribunal is not required to hear the complainant's evidence first, determine that it meets the test in O'Malley, and only then call on the respondent to provide an explanation. Indeed, it is not uncommon for elements of the complainant's burden to be met through the evidence tendered by the respondent since the respondent is often in the position of having more access to the relevant information.

61In addition, the Tribunal operates under the Code and Rules which empower it to promote and apply non-traditional forms of adjudication and dispute resolution. The Tribunal may, for example, decide on a different order of witnesses and issues to be addressed than what might be expected in a traditional adjudication. These innovations make the concept of the prima facie case and the shifting evidentiary burdens less useful from a practical perspective although they retain their conceptual importance.

62Both parties were given the opportunity to call all of the evidence they required to support their respective burdens. I have considered the case before me on the totality of the evidence and as a result, I have not found it necessary to distinguish between the evidence which goes to the prima facie case and the evidence which goes to the complainant's overall burden to prove the case.

The Relationship between the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

63In final argument before me, the Commission and the respondent referred to the question of the relationship between the Charter and the Code. Both parties commented on the history of overlap between those two equality instruments, particularly the use of the test in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675, [1999] 1 S.C.R. 497 ("Law"), in the statutory human rights context. Their respective arguments on this subject were directly before the Court of Appeal in Tranchemontagne.

64The Court of Appeal (at § 8) concluded that the test from the decision in Law has been overtaken in the Charter context by the decision of the Supreme Court of Canada in Kapp:

... In Kapp, the Supreme Court of Canada refocused the test for establishing a breach of the equality guarantee in s. 15 of the Charter from assessing whether there has been a violation of human dignity, as was required by Law, to determining whether the case involves discrimination that creates disadvantage by perpetuating prejudice, pre-existing disadvantage or stereotyping.

65The Court of Appeal also concluded that the meaning of discrimination should be consistently construed in both the Charter and statutory contexts as a guarantee of equal treatment in the substantive sense. However, there is clear acknowledgement by the Court of Appeal of the differences between the Charter and statutory human rights legislation at various points in the decision:

At § 84:

... the precise nature of the evidence to be led and the stringency of the test to establish discrimination may depend on the context.

At § 88:

However, fundamental differences exist between the Charter and the Code, including differences in: the nature of the legislation (constitutional versus quasi-constitutional); the scope of the guarantees provided (the Charter contains a broad equality guarantee while the Code creates a limited right to be free of discrimination in prescribed areas); the circumstances in which the guarantees will apply (the Charter is restricted to government conduct while the Code applies to both private and public actors); and, finally, the specific exemptions or defences that are available (s. 15 of the Charter contains an absolute prohibition against discrimination but s. 1 of the Charter provides a limited defence of justification, while the Code prohibits discrimination absolutely but also contains some absolute exemptions and defences): see Andrews at pp. 175—176.

At § 89:

Because of these differences, the precise nature of the evidence to be led and the stringency of the test to be applied to establish discrimination may vary and ultimately will depend significantly on the context.

66These findings support the view that although they are directed at the same goal, the Charter and the Code are different instruments with their own unique contexts. The Supreme Court made similar observations in B (at § 46):

In common with all federal and provincial human rights legislation and with the equality guarantee in the Canadian Charter, the primary purpose of the Ontario Code is to eradicate discrimination on the basis of enumerated and (in the case of the Charter) analogous grounds...

Despite this observation, the Supreme Court did not impose on the claimant in B the prevailing test in the Charter context which was the decision in Law.

67The Court of Appeal's observations about the nature of the evidence to be led in adjudications under the Code are also consistent with a recent decision of the Federal Court of Canada upholding a decision of the Canadian Human Rights Tribunal (Canada (Attorney General) v. Walden, 2010 FC 490 [CHRR Doc. 10-1285] at § 105—07):

As the Federal Court of Appeal observed in Morris [2005 FCA 154, 55 C.H.R.R. D/1], the legal definition of a prima facie case does not require the complainant to adduce any particular type of evidence to prove the facts necessary to establish that he or she was the victim of a discriminatory practice within the meaning of the Canadian Human Rights Act: see para. 27.

Indeed, the Federal Court of Appeal has specifically rejected the appropriateness of having a precise formula or test for the establishment of a prima facie case, noting that a flexible legal test is better suited to advance the broad purpose underlying the Canadian Human Rights Act. The Court noted that "[d]iscrimination takes new and subtle forms" and that it was "now recognized that comparative evidence of discrimination comes in many more forms than the particular one identified in [the jurisprudence]": Morris at para. 28.

Moreover, the determination of what type of evidence will establish a prima facie case in a given set of circumstances is a matter more within the expertise of the Canadian Human Rights Tribunal than that of the Court: Morris at para. 29.

68Perhaps most importantly, the Code contains a preamble which reflects the kinds of experiences the legislation is directed at remedying. It speaks not just to equality in relation to the law, but also to the values of understanding, mutual respect and dignity and the necessity to ensure that every citizen has the opportunity to contribute fully to the community. In my view, the analysis of a claim of discrimination under the Code must be animated by these important principles:

Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province...

Is there a Breach of the Code?

69The Code prohibits discrimination in the provision of services on the basis of the prohibited ground of family status. There is no dispute that the provision of government benefits is a service. Section 1 reads as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

70The statutory provisions in issue are those set out in the agreed statement of fact. I have also considered the complainant's arguments in relation to s. 10 of the regulations [O. Reg. 134/98] which I comment on below.

71In this case I have adopted the reasoning in B in concluding that the complainant is not required to demonstrate that she is a member of a historically disadvantaged group in order to make out a breach of the Code on the ground of family status. I note, however, that when one considers the context of the complainant's allegations, there are elements of historical disadvantage at the root of her experience as a teenage mother who is dependent on her parents and the state for the support of her children.

72I also conclude that there is no reason to depart from the general principle established in Tranchemontagne that prejudice or stereotyping may be inferred from the complainant's ability to establish that the prohibited ground is a factor in the adverse treatment she experienced. I would therefore not adopt the respondent's argument that the applicant must point out the prejudice or stereotyping which flows from her experience. The complainant was, at the material time of her complaint, a teenage mother of twins, struggling to support her children while she was finishing high school. The benefits she sought under the OWA were subsistence benefits, which is also illustrative of the complainant's vulnerable circumstance. If she is able to establish that her relationship with her parents is a factor in the denial of the benefits, prejudice or stereotyping would be inferred from those circumstances. The Court of Appeal made similar findings in relation to the claimants in Tranchemontagne.

73I also disagree with the respondent that the words prejudice or stereotyping necessarily invoke the concept of bigotry.^* In my view, that limited interpretation is inconsistent with the general requirement to construe human rights legislation expansively and in a manner which advances the underlying purposes of the legislation. Defending the legislation on the basis that it is not motivated by bigotry allows for consideration of the respondent's intent, which has long been eradicated as a relevant consideration in determining whether there is a breach of the Code.

Benefits for the Complainant Herself

74I begin first with the claim that it was discriminatory to fail to provide the complainant with benefits for herself because of her choice to live with her parents. With respect to this allegation, I am not convinced that the complainant has met the threshold requirement to prove a distinction.

75As the Commission pointed out, while the government may not be obliged to provide benefits at all, once it does it must do so without discrimination. However, the OWA does not provide benefits to children under the age of 18 who are living with and dependent on their parents. Those children have a legal entitlement to child support under a different statutory regime.

76The respondent has established that it does not provide OWA benefits directly to individuals under 18 who have not withdrawn from parental control; those individuals are assessed as part of a household and the head of that household receives the benefit. I conclude that, in relation to benefits for the complainant herself, the legislation creates no distinction because it treats the complainant no differently than it treats other persons under 18 who have not withdrawn from parental control. She is not entitled to be assessed as an individual for social assistance purposes.

77By contrast, the respondent does provide minor parents with benefits to meet the needs of their children, whether or not those minor parents are living with and dependent on their own parents. The respondent admits that minor parents like the complainant are treated differently if they live with their parents — they receive less financial support to meet the needs of their children. There is a distinction in the benefits provided to parents in the complainant's circumstances.

78In Tranchemontagne, the applicants were able to establish that they met the basic eligibility criteria for benefits because of the extent of their disability. They were deprived of benefits on the basis of the nature of their disability and how it was acquired. This is not to suggest that complete exclusion from a legislative scheme, or the inability to find a comparator, would make it impossible to prove that legislation or some part of it is discriminatory. However, I adopt the finding of the Supreme Court of Canada that the purpose of the OWA is to provide temporary assistance premised on the concept of individual responsibility. I have concluded that this purpose does not include support to children under 18 who are living with and dependent on their parents who have a legal obligation to support them.

79I note here that I have taken into consideration what was intended by the legislation for the narrow purpose of determining whether the complainant has proven a distinction which would lead to the next stage in the discrimination analysis. This is a delicate exercise, given the fact that the Code does not provide the respondent with a statutory justification in the context of this particular service (Tranchemontagne at § 41). However, it is not a justification, in my view, to argue that providing support to minors, who have a legal entitlement to support from their parents, is inconsistent with the purpose of the legislation. It is an important part of the overall context for assessing the complainant's allegations, just as it was an important contextual factor in Tranchemontagne that disentitling the applicants to benefits undermined the purpose of the legislation.

80However, if the focus on the purpose causes the legislation to be justified on the very basis upon which is being impugned, then the analysis has gone too far. In Tranchemontange for example, the legislation could not have been justified on the basis that it was never intended to extend to people whose disability is attributed to substance dependence. Similarly, a non-disabled person could hardly argue that the ODSP discriminates by providing benefits to persons living with disabilities and none to persons living without disabilities. In the case before me, I agree with the respondent that Mr. and Mrs. Hendershott owe a legal duty of support to the complainant while she is living with and dependent on them, and only if they fail in that obligation, or she withdraws from their control, is the complainant able to engage the provisions of the OWA.

81The complainant argued that s. 10, which provides benefits to a person under the age of 18 in extremely limited circumstances, should be read to include circumstances where a minor becomes a parent whether or not they are living with their own parents. To interpret s. 10 in the manner suggested by the complainant would require the Tribunal to accept the assumption that becoming a young parent automatically triggers a need for the bare minimum social support provided by the legislation. There was no evidence to support this assumption.

82I recognize that the position adopted by the complainant in relation to benefits for herself is based on comparison with other minor parents who are independent of their parents. They receive benefits for themselves as well as their children. However, the feature of their lives which brings them within the eligibility requirements of the OWA for the benefit of themselves personally is the fact that they are in financial need because they are not living with or dependant on their parents, not the fact that they have become parents. In that sense, the impugned regulations correspond with the actual circumstances of the complainant, which is an important consideration in assessing discrimination.

Benefits for the Complaint's Children

Distinction

83I have already found that there is a distinction in benefits, for both basic needs and shelter, that the complainant would have received for her children but for the fact that she remained living with and dependent on her parents after she began to parent her own children.

Disadvantage

84The Commission and the complainant argued that the distinction in benefits caused considerable disadvantage and imposed on the complainant the burden of having to engage her parents in the support of her children.

85The respondents argued that the complainant was not disadvantaged and that even if she received lesser benefits, this is not the form of disadvantage which is tantamount to a denial of substantive equality. The respondent argued that the government was entitled to rely on the assumption that when they are living together, grandparents will provide support including rent-free living space to the minor parent and her children.

86It is important to acknowledge that the respondent is not responsible for all of the stressful reverberations experienced by the complainant as a result of her decision to give birth and raise her children and to remain living with and dependent on her parents. What I am concerned about in this case is the manner in which the distinction in benefits exacerbated the disadvantage the complainant was already experiencing.

87The evidence of the complainant, as well as Mr. and Mrs. Hendershott, clearly established that the complainant was economically disadvantaged by receiving less money than she would have received for the benefit of her children if she had not been treated differently because of her relationship with her parents. The difference, which I consider in detail below, was close to $300 per month. The complainant testified that to a 15-year-old mother of new twins, trying her best to finish high school so that she would be in a position to support her children through paid work when she graduated, every dollar was significant to her in the care and support of her children.

88Mr. Hendershott testified that the benefits received by the complainant were insufficient to cover the basic cost of their formula. The complainant also testified about the stress of not having enough money to feed her twins and put diapers on them and how inadequate she felt having to rely on her parents for the support of her children.

89Mr. Hendershott and Mrs. Hendershott testified about the impact on the entire family. In order to accommodate their grandchildren, the Hendershotts were required to give up a room in their home from which they derived $924 a month in income by participating in a family home program providing shelter for adults with developmental disabilities in their community. Those circumstances gave them less ability to support the complainant, her children, and a son who was in post-secondary education. The complainant felt responsible for putting her parents in the position of having to forgo this important source of income.

90Mrs. Hendershott testified that she could not ask her daughter to move out of the family home. She testified that it was not safe, in her view, to put her daughter in an apartment of her own.

91There was no individual assessment of the Hendershotts' willingness and ability to support their grandchildren and as a result, the entire family was rendered more economically vulnerable because of the expectation that they would provide support for the grandchildren while they were living together. That disadvantage flowed directly to the complainant who expressed a sense of humiliation at having "caused" these difficulties for her family.

92The complainant argued, and I agreed, that to understand her vulnerability, it was important to consider her experience as person with multiple, intersecting identities: at the time of the birth of her children she was a young woman, a new mother, a mother of twins and a high school student. She was without the ability to support herself and her children and dependent on her parents and the limited benefits provided to her by the respondent.

93The respondent offered no evidence to refute this testimony, including evidence which might establish that the complainant was in fact advantaged in comparison to other minor parents not living with their parents. There was no evidence that minor parents living at home have greater access to unpaid child care and other forms of assistance than minor parents living independently of their parents. The only evidence which could support the argument that the complainant was better off came from Mrs. Hendershott who testified that, in her opinion, there were no safe housing options for her daughter and her grandchildren. However, given the myriad arrangements which could exist for the care of a minor parent and her children, and the actual disadvantage this assumption created for the complainant and her family, I am not prepared to accept the assumption that minor parents who live with and depend on their parents are better off than minor parents living independently as the basis for the distinction in benefits for their children.

94The respondent argued that the regulations have two purposes: the first is to ensure that the needs of the children of minor parents are met in a manner that is appropriate to their circumstances; the second is to assess the need for assistance appropriately by looking at the overall context of the economic resources available to the applicant. Neither of these purposes are stated in the legislation and it was not clear to me what was meant by "appropriate to their circumstances". However, I have no difficulty with the proposition that the government is entitled to know whether or not the complainant has alternative sources of support available to her. I would suggest, however, that these purposes are not advanced by replacing individual assessment with the assumption that grandparents will be willing and able to support the children of a minor parent while they are all living under the same roof.

95In final argument, counsel for the respondent argued that it was a "perfectly natural assumption" to make that grandparents would support their grandchildren when they are living together. He argued, however, that there was nothing stereotypical about that assumption. As I have already concluded, it is not necessary for the complainant in this case to prove that the conduct of the respondent either arises out of or contributes to negative or prejudicial stereotypes. However, a "positive" assumption of an idealized family providing support for their pregnant teenager is no less a stereotype than a negative one. What is important is to examine the stereotype for the damage it can do when it becomes the basis for the respondent's action or inaction.

96The respondent does not make assumptions about the other people in a minor parent's life who may contribute to their well-being and the well-being of their children, out of a sense of affinity and obligation. This assumption, that individuals like the complainant will receive monetary and non-monetary forms of support, is made exclusively in cases where minor parents are living with their own parents.

97The complainant was disadvantaged by assumptions made about her relationship with her parents and their ability and willingness to support her children. Those assumptions do not correspond with the complainant's actual circumstances. Mr. and Mrs. Hendershott were not in a position to support their grandchildren while they were living together. Rather than promoting attachment to the family which would give the complainant her best opportunity for financial independence later in her life, the distinction in benefits raised the possibility that the complainant may have to withdraw from parental control in order to provide for her children.

98There is clearly a disadvantage associated with the distinction in benefits and it is the kind of disadvantage contemplated in O'Malley and Andrews and affirmed by the Court of Appeal in Tranchemontagne. The distinction imposed burdens on and withheld benefits from a young woman who was vulnerable and marginalized, exacerbating her circumstances and rendering her more economically dependent on her parents.

99I note here that it may appear to be a contradiction to accept that the economic dependence of a minor on her parents is generally appropriate while at the same time suggesting that the complainant in this case was disadvantaged by her dependence on them. The complainant's testimony confirmed that her experience as a minor parent thrust her into the world of adult responsibilities, including the necessity to provide economic support to her children to the extent that she was able. In those circumstances, I have found it to constitute a burden on the complainant that she was forced to ask for even more support from her parents for the basic necessities of life for her own children, which the complainant described as an affront to her sense of dignity as a mother.

Justification

100The Commission and complainant argue that there is no defence of justification available to the respondent in the circumstances of this case. The Court of Appeal in Tranchemontagne made the same observation at § 41:

Notably, unlike the human rights legislation in some other provinces, the Code does not include a defence premised on justification. For example, s. 8 of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, prohibits discrimination "without a bona fide and reasonable justification" in relation to services.

101The respondent did not take issue with this proposition. The respondent argued that in light of the fact that there is no justification available, the traditional framework for human rights applications, which requires a broad, liberal, purposive interpretation, be applied with less rigour. Although it is not completely clear to me how that alternative analysis might unfold, it appeared that the respondent was calling on the Tribunal to consider evidence of justification in any event. For example, the respondent argued that there was no discrimination because the respondent was justified in relying on economies of scale and the legal obligation which was owed to the complainant by her parents which would inevitably flow to the grandchildren.

102In support of this proposal, the respondent relied on the Lovelace v. Gross, 80 N.Y. 2d 419 (1992) ("Lovelace") decision, an American case which upheld the government's justification for including a deeming provision in social benefits legislation affecting grandparents in the Hendershotts' circumstances. That provision is based on the economies of scale of a three-generation household where a portion of the grandparents' income is deemed to be available for the support of the grandchildren.

103I have chosen not to apply the decision in Lovelace to the facts of this case. It was adjudicated in an entirely different context with a presumption of validity which the plaintiffs were required to overcome. There was no evidence tendered by the respondent to establish what, if any, economies of scale might exist in these circumstances. In addition, the assumption that there are economies of scale in a three-generation household which support a difference in benefits is a justification which is not available to the respondent under the Code.

104For all of those reasons, I find that the respondent has breached the Code in differentiating, in respect of the benefits provided for the needs of the children of minor parents, between minor parents who are living with and dependent on their own parents and those who are not. There is no statutory justification for the respondent to rely on. I turn now to consider the appropriate remedies.

REMEDY

105The Tribunal's remedial powers are set out in s. 45.2(1) and (2) of the Code, which reads as follows:

45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

106The Code is remedial and not punitive and remedies should be crafted to reflect that remedial purpose.

Monetary Compensation and Government Legislation: Mackin, Larocque and Braithwaite

107There are two forms of monetary compensation that have been sought by the Commission and the complainant under the Code: lost benefits and compensation for injury to dignity, feelings and self-respect.

108The respondent argued that the Tribunal should not order compensation for injury to dignity, feelings and self-respect in accordance with the reasoning in the Supreme Court of Canada decisions in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405 ("Mackin") and Québec (Comm. des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789 [49 C.H.R.R. D/129] ("Larocque") both of which were adopted by the Divisional Court in Ontario (Attorney General) v. Ontario (Human Rights Comm.), 2007 CanLII 56481 [reported 62 C.H.R.R. D/315) (Ont. Div.Ct.) ("Braithwaite").

109The Tribunal dealt with this issue in Ball v. Ontario (Community and Social Services) (No. 10), 2010 HRTO 1277 [CHRR Doc. 10-1503] ("Ball") and declined to order compensation for injury to dignity, feelings and self-respect. I note, however, that in Ball, the parties were in agreement on the principles to be applied to this issue. In this case, the parties are at odds on whether the Tribunal should award compensation in the circumstances of this case.

110Mackin involved legislation enacted by the Province of New Brunswick which eliminated the office of Supernumary Judge, engaging a challenge on the basis of judicial independence under s. 11(d) of the Charter and the preamble to the Constitution. The legislation in question was declared invalid and the declaration was suspended for a period of six months to allow the government to create a solution which complied with its constitutional obligations.

111On the question of damages, the Supreme Court applied the general rule of public law that the courts should not award damages against the government in circumstances where the government has enacted or acted upon legislation which is subsequently declared unconstitutional. The exception to this general rule arises in circumstances where the conduct is clearly wrong, in bad faith, or an abuse of power (at § 78). The Court found that the reasons underlying this doctrine applied to the Charter context at § 79—81:

However, as I stated in Guimond v. Quebec (Attorney General), supra, since the adoption of the Charter, a plaintiff is no longer restricted to an action in damages based on the general law of civil liability. In theory, a plaintiff could seek compensatory and punitive damages by way of "appropriate and just" remedy under s. 24(1) of the Charter. The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances. Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the "established and indisputable" laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), 1986 CanLII 2725 (ON HCJ), 26 D.L.R. (4th) 41 (Ont. Div.Ct.)).

Thus, it is against this backdrop that we must read the following comments made by Lamer C.J. in Schachter, supra, at p. 720:

An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52, that will be the end of the matter. No retroactive s. 24 remedy will be available. [Emphasis added.]

In short, although it cannot be asserted that damages may never be obtained following a declaration of unconstitutionality, it is true that, as a rule, an action for damages brought under s. 24(1) of the Charter cannot be combined with an action for a declaration of invalidity based on s. 52 of the Constitution Act, 1982.

112The Commission argued that the Tribunal does not have jurisdiction to declare legislation unconstitutional, that compensation for injury to feelings, dignity and self-respect is not comparable to civil damages or s. 24(1) damages under the Charter, and that there is nothing in the Code which directs the Tribunal to refrain from awarding compensation where legislation is found to breach the Code. The Commission pointed out that even under s. 46.1 of the Code, where a finding of discrimination has been found by a Court rather than the Tribunal, the concept of civil damages has been replaced by a provision which limits the Court to providing the same compensation available under the Code for injury to feelings, dignity and self-respect. In addition, s. 47(2) gives the Code primacy over all other legislation in Ontario unless expressly exempted.

113In 2004, the Supreme Court applied the analysis from Mackin to a case under the Quebec Charter (Charter of Human Rights and Freedoms, R.S.Q. c. C-12 [Larocque]). The case involved an individual who had been denied employment as a municipal police officer because of a hearing impairment. The City of Montreal had adopted minimum hearing requirements which were enshrined in a bylaw made pursuant to the city's regulatory powers in its enabling legislation.

114The Supreme Court determined that the Court of Appeal was correct in declining to award damages but incorrect in having settled on a purely declaratory order in Mr. Larocque's case at § 25—26:

... The Court ruled that no [translation] "order compelling the cessation of the infringement can be made, since there is no fault..." (para. 19). With respect, this position ignores the diversity and flexibility of remedies for enforcing fundamental rights. The restoration of these rights must not be reduced to a choice between applying the general civil liability regime or rendering declaratory judgments that recognize the right but give it no practical effect. This approach is perhaps indicative of an undue focus upon a single, albeit important, question in the analysis of the issue of remedies under the Quebec Charter, that is, the issue of the question of the relationship between the law of civil liability in the jus commune and the fundamental freedoms guaranteed under the Quebec Charter.

Despite occasional disagreements over the appropriate means of redress, the case law of this Court, although the law is undoubtedly still in its early stages of development in this area, stresses the need for flexibility and imagination in the crafting of remedies for infringements of fundamental human rights (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, 2003 SCC 62, at paras. 24—25 and 94). We should also not lose sight of the fact that enactments such as the Quebec Charter occasionally require intervention that is in no way related to the law of civil liability. It is sometimes necessary to put an end to actions or change practices or procedures that are incompatible with the Quebec Charter even where there is no fault within the meaning of the law of civil liability. The law of civil liberties may draw upon the law of civil liability where circumstances warrant. The law of delict does not set limits on the enforcement of the law of civil liberties. Thus, in the context of seeking appropriate recourse before an administrative body or a court of competent jurisdiction, the enforcement of this law can lead to the imposition of affirmative or negative obligations designed to correct or bring an end to situations that are incompatible with the Quebec Charter.

115The findings of the Supreme Court in Larocque preclude the payment of damages but endorsed the necessity to craft a remedy which is effective and in keeping with the remedial provisions of statutory human rights legislation. This is the basis for my decision to award compensation for lost benefits as well as my direction to the respondent to remedy the discriminatory practice.

116Although Larocque involves the import by the Supreme Court of Canada of Mackin into an adjudication under the Quebec human rights legislation, in Braithwaite, the Divisional Court applied both Mackin and Larocque, to preclude damages under the Code. While I understand the Commission's concern that Braithwaite does not contain an analysis of why the Divisional Court chose to apply Mackin and Larocque, I am nevertheless bound by this decision and I decline to award damages in this case for injury to feelings, dignity and self-respect.

Compensation for Lost Benefits

117Pursuant to s. 45.2(1), the complainant is entitled to receive compensation for the loss arising out of the infringement or in this case, the benefits she would have been entitled to, on behalf of her children, had the discrimination not occurred. There were three different calculations proposed by the parties to resolve this issue. These benefits are not analogous to civil damages and therefore not precluded by the analysis in Mackin. The respondent is directed to provide the service which was denied. In this case, the service happens to be in the form of monetary benefits.

118It is well established that the complainant is not required to prove the loss with exact precision in order to obtain damages. The Tribunal is required to do the best that it can do with the evidence and arguments provided by the parties. There will be variables that cannot be accounted for in this calculation, including, for example, the fact that a shelter allowance comprises the lesser of the maximum benefit and actual rent. In addition, the numbers are all based on a benefit unit with a parent who is receiving an individual benefit, which would not be the case here.

119The Commission's calculation of the sum payable to the complainant is $279 per month. That figure is based on the following factors:

(a) $195 is the amount a person would receive without children and $532 is the amount that a parent with two children would receive in basic expenses — subtract $195 from $532 for a total of $337 attributable to two children for basic needs;

(b) $325 is the maximum shelter allowance for a person without children and $554 is the maximum amount that a parent with two children would receive for shelter — subtract $325 from $554 for a total of $229 attributable to two children for shelter;

(c) The total is $566. Subtract from that what the complainant received $287, for a shortfall of $279 per month.

120The complainant suggested a different approach. In her view the calculation should not be done by subtracting the individual portion of the benefit unit for basic needs and shelter. The complainant asked the Tribunal to calculate the portion attributable to the children on the theory that the children's needs would come first and should be weighted more heavily. One option would involve a comparison with a benefit unit of one adult and one child, subtracting the adult component and then doubling the child component to recognize that there are no economies of scale with twins. On the other hand, I have already found that the issue of the sufficiency of the benefits for twins is not something I am prepared to deal with. Another option would be to take the figures for a benefit unit of three people, divide that number into thirds and calculate the portion for the twins at two-thirds. There is some sense in this proposal since the portion for the children in the Commission's calculation presupposes that the parent will be receiving an individual benefit, which in this case, the complainant is not.

121The respondent also suggested that the calculation should be done taking into consideration the economies of scale of the entire family. In other words, if one looks at the entire family, moving from four to six members has less economic implications that moving from one to three members. The respondent argued that such an approach is supported by the legislation which provides less benefits for the transition from four to six people then from one to three.^** The respondent would take the figure of $566, which is based on the calculation of a three-person benefit unit minus the parent, and give the complainant one-third on the theory that the economies of scale in a six-member family would support such a percentage. On that theory, the complainant was actually better off with the benefits she did receive since this calculation would have given her less.

122I prefer the Commission's calculation because it is the most precise, it is based on the figures in the regulation and it has the least theoretical assumptions associated with it. In my view, the Commission's argument comes closest to a rational and supportable basis for calculating the lost benefits, drawing concretely as it does on the provisions of the legislation which existed at the time of the facts giving rise to the complaint.

123I note here that the respondent argued that s. 59 of the regulations, which allows for individual assessment by the administrator or delivery agent, is "designed to cure any defects which exist in that legislation". The purpose of that section, according to the respondent, is to look at the individual circumstances of the complainant and, where appropriate, provide her with additional monies. In the respondent's view, the complainant could have applied for additional support and that if she wanted to specify that some of that money could go to pay her parents as a shelter allowance or for diapers or the special dietary needs of her twins, she would be free to do that.

124There were no Director's decisions put before the Tribunal which might have assisted in understanding how bullet point number 7 under s. 59(2) "any other special service, item or payment in addition to those set out in paragraphs 1 to 6 authorized by the Director". Items 1 through 6 include dental, prosthetic appliances including eye-glasses, vocational training and retraining, travel and transportation, moving expenses, funeral and burial expenses.

125In addition to that, the suggestion that the complainant could have asked Lanark County for discretionary funds to pay her parents for shelter, when the legislation specifically precludes her from making such an application, is untenable. The complainant gave evidence that she disclosed her circumstances to Lanark County, that she asked for further funds for the support of her children for necessities such as formula and diapers and she was denied that assistance.

Apology

126The complainant asked the Tribunal to order an apology from the respondent pursuant to s. 45.2, which permits the Tribunal to direct

45.2(1) ... the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

The Commission argues that wording of this provision supports the request.

127I am not prepared to say that it would never be appropriate to order an apology under this provision of the Code. Much would depend on the circumstances, the relationship between the parties, the meaningfulness of the apology to the complainant and the implications for the respondent in providing it, including issues associated with freedom of expression. However, in these circumstances I am satisfied that a forced apology would be ineffective and perceived as both an admission and a punishment which is inconsistent with the remedial focus of the Code.

Promoting Future Compliance with the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

128As was the case in Ball, the appropriate order to remedy the breach is to direct the respondent to disregard the fact that a minor parent is living with her or his own parents in the calculation of the benefits for the minor parent's children.

Pre-Judgment Interest

129The respondent argues that pre-judgment interest should be reduced by three years, a delay that is not attributable to the government, during which the Commission was considering a request for reconsideration of its decision not to refer the case in 2004. I am not in a position to fully examine or comment on the various factors which may have caused the delay in the resolution of this matter prior to the referral to Tribunal. I decline to make the deduction requested by the respondent.

The Applications of Mr. and Mrs. Hendershott

130Mr. and Mrs. Hendershott filed applications in their own names alleging that they were adversely affected by the denial of benefits to their daughter. The respondent and the Commission take the position that there is no service relationship between the applicants and the respondent and therefore the applications should be dismissed.

131The Code prohibits discrimination "in relation to a service" which, given the necessary broad and liberal interpretation, may include Mr. and Mrs. Hendershott, who were clearly affected by the denial of benefits for the twins.

132I have determined that it is not necessary for me to answer this question. There is only one benefit in question which is now the subject of a finding of discrimination. I have declined to award compensation for injury to dignity, feelings and self-respect in the circumstances of this case and I would decline to award any financial compensation other than the lost benefits. I would decline, for example, to award compensation to Mr. and Mrs. Hendershott for making the choice to forgo rental income because this is a consequence of their personal decision to extend shelter to their daughter and her children and not a consequence of the denial of the benefits.

133Even if I concluded that Mr. and Mrs. Hendershott were sufficiently affected to bring themselves within the phrase "in relation to a service", their applications are duplicative in light of the fact that they filed a complaint on behalf of their daughter while she was a minor. The original complaint reflects the impact of the discrimination on the entire family and where appropriate, I have taken that into consideration.

134It is important to point out that my jurisdiction does not permit me to review all of the issues put to me by Mr. Hendershott on behalf of the complainant, himself and Mrs. Hendershott during the hearing. I agree with the respondent, for example, that the general sufficiency of the benefits payable by the respondent to a mother of twins as compared to a mother of two children who are not twins is not something that I can address or remedy in this case. Other issues which I was asked to consider include the pressure on the complainant to return to school too quickly, the failure to provide her with an electric breast pump, the provision of discretionary benefits which are delivered by Lanark County and arguments related to abuse of power, neglect and children at risk. Those issues I would describe as related to the scope and sufficiency of the legislation or a general sense of unfairness. I have not taken into consideration the issues related to the exercise of discretion by Lanark County because Mr. Hendershott refused to make Lanark County a respondent in this matter.

ORDER

1351. Within 30 days of the date of this decision, the respondent shall pay the complainant lost benefits in accordance with the calculation provided by the Commission and the dates set out in the agreed statement of fact: from September 28, 1998, when the complainant applied for benefits for her children, until March 31, 2002, when the complainant moved out of her parents' home;

2. Pre-judgment interest is payable on all monetary payments from the date of the complaint, to the date of this decision and post-judgment interest is payable on any amount not paid within 30 days of the date of this decision in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended;

3. Within 30 days of receipt of this decision, the respondent will cease to consider the fact that a minor parent is living with her or his own parents in the calculation of benefits for the minor parent's children.

NOTES

^*. Ed. note: See CHRR Doc. 11-1738, 2011 HRTO 1238 at § 11 for clarification of the use of the word "bigotry".

^**. Ed. note: Corrected in CHRR Doc. 11-1738, 2011 HRTO 1238 at § 10.