Goldman v. Ontario (Community and Social Services), 2011 HRTO 910

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Celia Goldman

Applicant

• and-

Her Majesty the Queen in Right on Ontario as represented by the Minister of Community and Social Services and Disability Adjudication Unit Adjudicator #25

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: May 10, 2011

Citation: 2011 HRTO 910

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

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on October 30, 2009, alleging discrimination on the basis of disability in the area of goods, services, and facilities. The applicant sought disability income support benefits under the Ontario Disability Support Program (“ODSP”). The applicant alleges that the respondents employ discriminatory policies and practices with respect to the condition of fibromyalgia.

2The respondents filed a Response on August 18, 2010 denying the allegations of discrimination. The respondents filed a Request for Order During Proceedings (“Request”) on January 10, 2011 and an amended Request on March 10, 2011. The respondents request that the Tribunal dismiss the Application on the basis of judicial immunity, absence of any service and no prima facie case. The respondents point out that the applicant was ultimately granted ODSP benefits shortly before she filed her Application.

3The applicant opposes the Request. The applicant indicates that she is not questioning her eligibility for benefits, but rather seeks to the challenge the respondents’ attitude towards and summary rejection of fibromyalgia as a disability.

DECISION

Judicial Immunity

4The respondents submit that the Tribunal does not have jurisdiction to deal with this Application because of the doctrine of judicial immunity, which protects the independent decision-making of courts and quasi-judicial adjudicators. The respondents argue that judicial immunity shields the respondents’ initial denial of benefits because that initial denial was determined by an adjudicator of the Disability Adjudication Unit.

5The applicant points out that the Disability Adjudication Unit is a multi-disciplinary team of staff, medical and occupational professionals who apply the Ministry’s policies and guidelines. The applicant argues that judicial immunity does not apply because the Disability Adjudication Unit adjudicators are not judicial actors and do not carry out judicial functions. The applicant further argues the Legislature did not intend to give judicial immunity to the Disability Adjudication Unit as there is no immunity provision in the governing statute, nor security of tenure, financial security or institutional independence. The decisions of the Disability Adjudication Unit are deemed to be the decision of the Director, which at a later stage, after internal reviews, can be appealed before an adjudicative tribunal.

6While it is correct that the adjudicative functions of a quasi-judicial tribunal are protected by judicial immunity (see for example, Hazel v Ainsworth Engineered, 2009 HRTO 2180 and Cartier v. Nairn, 2009 HRTO 2008), the respondents’ materials indicate that this was a decision about entitlement to a benefit from the respondent and no hearing was held to adjudicate the applicant’s benefits application. It appears that the initial denial which is at the heart of this Application was made at a preliminary, administrative level prior to any quasi-judicial adjudicative stage. I am not satisfied that the doctrine of judicial immunity applies to the circumstances alleged in the Application.

Service

7The respondents submit that the Tribunal does not have jurisdiction over this Application because the content and reasons of an adjudicator’s decision is not a service within the meaning of the Code: Ballieram v. Workplace Safety and Insurance Board, 2010 HRTO 712.

8In Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595 (“Zaki”), the Tribunal discussed the difference between an allegation that a person had been unable to access benefits and services from a statutory body and an allegation that an adjudicative decision itself is wrong. The Tribunal concluded that the provision of the benefit is a service, but the content, reasons or result of an administrative decision maker is not a service.

9The applicant indicates she is not challenging the content, reasons or result of an adjudicative decision, but rather the Disability Adjudication Unit’s alleged discriminatory approach towards fibromyalgia as a disability. The applicant alleges that discriminatory stereotypes about her condition were relied upon in assessing her eligibility for disability income support benefits. The applicant alleges that she was stereotyped as lazy because she suffers from fibromyalgia and that, because of the nature of her condition, her disability was not viewed as serious or significant as other disabilities.

10Without making any findings regarding the merits of the Application, I find that the applicant’s allegations of discriminatory considerations/policy being applied by a front-line decision-maker about the provision of benefits fall within the social area of services. I note that in Ball v. Ontario (Community and Social Services), 2010 HRTO 360, the Tribunal considered whether provisions of the special diet program, established under the Ontario Disability Support Program and the Ontario Works program, are discriminatory because certain disabilities are treated differently than other disabilities.

Prima Facie Case

11The respondents allege that the Application fails to raise a prima facie case of a contravention of the Code because she was determined eligible for benefits and that there was no discriminatory treatment or disadvantage. The respondent submits that the initial decision was appropriate given the medical information it had at that time.

12The applicant contests the facts and information relied upon by the respondents in alleging there is no prima facie case.

13The applicant perceives that she was subjected to differential treatment that had adverse effects, which the respondent denies. The question of whether the Application raises prima facie allegations within the Code protected social area of services should not be determined at this preliminary stage.

14Accordingly, the respondents request to dismiss is denied. The Application will be scheduled for hearing.

15I am not seized of this matter.