Rauch v. Ontario (Community and Social Services), 2012 HRTO 1116

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurie Rauch on behalf of Erwin Rauch

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Community and Social Services – Ontario Disability Support Program

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: June 6, 2012

Citation: 2012 HRTO 1116

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

APPEARANCES

Laurie Rauch on behalf of Erwin Rauch, Applicant

Self-represented

Her Majesty The Queen In Right Of Ontario As Represented By The Ministry Of Community And Social Services – Ontario Disability Support Program, Respondent

No one appearing

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services, or facilities because of disability. The Application also alleges reprisal or threat of reprisal.

2For the reasons that follow, the Application is dismissed. I find that it has no reasonable prospect of success.

OVERVIEW

3In the Application, the claimant states that he was treated unfairly and inappropriately by the respondent. He alleges that:

a. The respondent provided misleading information regarding the need to cash in a retirement savings plan. The applicant cashed in her savings plan based on this information, but later learned that this would not have been necessary because retirement savings plans are “exempt items”;

b. When the claimant moved cities, his new caseworker required him to provide surgical supply receipts. In the 15 years that he has received Ontario Disability Support Plan (ODSP”) benefits, the claimant states that he had never before been required to provide surgical supply receipts;

c. Some of the claimant’s benefits were reduced and the respondent provided incorrect information about what his ongoing monthly benefits would be;

d. The respondent required numerous forms from the claimant’s doctor and the doctor has now refused to fill out more paperwork;

e. The claimant is sometimes advised orally about important changes to his benefits and sometimes receives no information at all; and

f. Some documents were not sent to him in a timely manner.

4Finally, the claimant states that he did not immediately take legal action in regards to the allegedly misleading information regarding the retirement savings plan because he feared reprisal.

5In a Case Assessment Direction (“CAD”) dated February 13, 2012, the Tribunal directed that this matter proceed by way of a summary hearing. The CAD stated:

The Tribunal does not have the general power to deal with allegations of unfairness or error in the provision of government benefits: see Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797 and Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115. The Tribunal can only deal with alleged discrimination or harassment on the grounds set out in the [Code]. To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, that there was discrimination on a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove discrimination.

6In its CAD, the Tribunal stated that the respondent need not file any materials or Respond to the Application. However, it directed the respondent to provide contact information by February 28, 2012.

7The respondent complied with the CAD, and provided contact information on February 28, 2012.

8The Tribunal issued a Notice of Hearing to the parties on February 23, 2012, before it received the respondent’s additional contact information. The Notice of Hearing was delivered to the respondent at the address contained in the Application.

9A summary hearing took place by telephone conference on May 18, 2012. The applicant attended the summary hearing, but the respondent did not. Following the telephone conference hearing, administrative staff at the Tribunal contacted counsel for the respondent. He indicated that the Notice of Hearing had been delivered to his client, but that it had not been forwarded to him. Counsel requested that the summary hearing be rescheduled.

In light of my conclusion that the Application is dismissed because it has no reasonable prospect of success and given that the Notice of Hearing was delivered to the respondent, I find that it is not necessary to reschedule the summary hearing. ANALYSIS

10In Seberras, supra, (para. 5) the Tribunal held that:

This Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program. An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success. In addition, under s. 45.1 of the Code, the Tribunal cannot reevaluate the substantive or procedural correctness of a decision under another statutory scheme.

11I explained these principles to the applicant at the outset of the summary hearing. I then invited her to explain why she felt the claimant’s disability was a factor in how the respondent had treated him. The applicant stated that the respondent had been unfair and that it had made mistakes, but she did not point to any argument, evidence or prospective evidence that could show that the applicant’s disability was a factor in the respondent’s decisions or actions.

12I understand that the applicant disagrees with how the respondent treated the claimant and the way it has administered his benefits, but she has provided no basis to suggest a breach of the Code.

13The Application raises a further issue as to whether or not the claimant has a reasonable prospect of establishing that the respondent reprised against him in the sense that it acted or made a threat with the intention of retaliating against the claimant because he had asserted rights under the Code: Noble v. York University, 2010 HRTO 878, at paras. 33-34.

14While the applicant states that the claimant feared reprisal, she has not asserted that the respondent acted or made any threats with the intention of retaliating against the claimant. Further, she has provided no basis to suggest that the applicant asserted rights under the Code before filing the Application, that any reprisal occurred since the filing of the Application, or that the fear of reprisal related in any way to the assertion of the claimant’s Code rights.

15I find that the Application has no reasonable prospect of success. Accordingly, the Application is dismissed.