Pennington v. Peterborough (City), 2012 HRTO 1851

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Pennington Applicant

-and-

The Corporation of the City of Peterborough and Director, Ontario Works Respondents

DECISION

Adjudicator: Michelle Flaherty Date: September 28, 2012 Citation: 2012 HRTO 1851 Indexed as: Pennington v. Peterborough (City)

Appearances

Paul Pennington, Applicant ) Self-represented Director, Ontario Works ) Micheal Dunn, Counsel and ) Megan Howatt, Student-at-law The Corporation of the City of Peterborough ) Alan Barber, Counsel

INTRODUCTION

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 in the provision of goods, services, and facilities based on disability.

2The applicant is a disabled person in receipt of income support under the Ontario Disability Support Program Act, 1997 (“ODSPA”). I understand that his disabilities prevent him from working or seeking work.

3The applicant argues that he has been discriminated against because the respondents denied him discretionary benefits to cover the costs of dentures. They did so because he did not meet the requirements under the Ontario Works Act, S.O. 1997, ch.25 (“OWA”), of being “employable”. The applicant submits that the decision to “exclude all unemployable individuals [from discretionary benefits related to dental costs] most certainly excludes a very large segment of disabled individuals.”

4The respondents have filed Responses in which they deny the allegations of discrimination. They also argue that the Application is moot because the applicant ultimately did receive funding for dentures. Further, the policies of the Corporation of the City of Peterborough (“Peterborough”) have now been amended and the discretionary benefits to cover dental costs are available to recipients of social assistance, regardless of employability.

5The Director, Ontario Works (“Director”), asks that the Application be dismissed against it because: a) under s. 45.1 of the Code, its subject matter has been appropriately addressed in a proceeding before the Social Benefits Tribunal; and b) the Peterborough is the administrator and delivery agent of discretionary benefits under the OWA and the Director had no involvement in the decision to deny the applicant’s request for funding.

6For the reasons that follow, the Application is dismissed. I find that the issues raised in the Application are moot and that, in the circumstances, it is not appropriate for me to exercise my discretion to determine a moot case.

OVERVIEW OF PROCEEDINGS

7Following a Case Assessment Direction dated January 10, 2012, the Tribunal held a telephone conference hearing to address the following issues:

a. should the Application be dismissed as moot?

b. should the Application be dismissed under s. 45.1?

c. should the Application be dismissed against the Director, Ontario Works?

8The applicant and representatives for the respondents participated in the hearing and made oral submissions. At the hearing, the Director’s representatives stated that they wished to rely on the Tribunal’s recent decision in Hansen v. Workplace Safety and Insurance Board, 2012 HRTO 608 (“Hansen”), a case that they had not provided to the other parties in advance of the hearing.

9In a Case Assessment Direction dated April 20, 2012, I confirmed the directions I gave to the parties at the hearing. I gave all parties an opportunity to provide written submissions regarding Hansen. As I explain in more detail, below, I also directed the applicant to provide additional written submissions regarding where, in the pleadings, he has alleged prejudice because the initial refusal to fund his dentures.

10The respondents have filed written submissions, as directed. The applicant has not provided any submissions and the time for doing so has elapsed.

11In addition to filing this Application, the applicant has also pursued a claim before the Social Benefits Tribunal (“SBT”). In that claim, as in the Application, he names Peterborough and the Director as respondents and he alleges a violation of s. 1 of the Code.

12In a decision rendered on September 22, 2010, the SBT concluded that it did not have jurisdiction to determine the Code-related issues raised in the applicant’s claim. It also concluded that, even if it had jurisdiction, the issues raised in the claim are moot because: a) Peterborough has repealed the policy in question; and b) the applicant ultimately received funding for his dentures.

THE FACTS

13At the outset of the hearing, the parties agreed that the facts giving rise to this matter are accurately described in the SBT’s decision. While the applicant disputes the SBT’s conclusions, he accepts its characterization of the material facts. These are as follows:

The [applicant] was advised by his dentist to have his upper row of teeth removed and scheduled a surgery date of September 11, 2007. His dentist suggested he purchase his dentures prior to the surgery.

The [applicant] initially inquired about coverage for the costs associated with dentures at his local Ontario Disability office but was advised they did not cover such items and that he would have to go to the local Ontario works office to apply.

In approximately June 2007 the [applicant] submitted his application to the Ontario Works office in Peterborough, Ontario for discretionary benefits to cover the costs associated with dentures. On June 27, 2007, the Administrator of Ontario works advised the [applicant] in writing that his request was being denied. The [applicant] requested that the Administrator complete an internal review of this decision.

On July 9, 2007 the Administrator advised the [appellant] in writing that an internal review had been completed and that the original decision to deny his request for discretionary benefits for dentures had been upheld. The Administrator goes on to state:

Assistance with the cost of dentures is discretionary, meaning that it is at the discretion of each municipality to determine which additional benefits it is willing to pay for in addition to the mandatory benefits provided by Ontario Works and ODSP. Not all municipalities offer discretionary benefits. The City of Peterborough (who is the service provider for Ontario Works in P. City and County) approved assistance with some of the cost of dentures in certain classes (those taking part in Ontario Works employment supports, with a goal of exiting social assistance.) Assistance with the cost of dentures is considered an employment support (since it can help people be more employable), rather than a medical necessity.... Therefore, I must confirm the original decision... This is supported by Section 59 of the Ontario Works Regulation.

The Respondent includes section 59 in the internal review letter and goes on to explain,

Where the legislation states “A delivery agent may pay or provide one or more of the benefits...” local policy determines which of the list of items that may be provided will be provided. In the area of discretionary benefits, services are not required to be consistent throughout the province, which outlines the differences between mandatory and discretionary benefits. Mandatory benefits are legislated; discretionary benefits are at the discretion of each municipality.

While you make an excellent argument for the fact that dentures should be considered a medical necessity, Ontario Works is an employment support agency and therefore the discretionary benefits policy approved by City Council is geared toward employment in regards to how spending for dentures was approved.

Therefore, the decision to deny discretionary benefits to cover the cost of your dentures was correct. I regret that our office was not able to assist you at this time.

Discretionary benefits are not appealable to the Social Benefits Tribunal. [Emphasis added.]

14In its decision, the SBT went on to explain that the applicant appealed Peterborough’s decision and it cited the essence of the applicant’s arguments before the SBT as follows:

The policy set out by Peterborough City Council discriminates completely against the severely disabled and unemployable. The city’s defence is that they believe it not to be discriminatory because they will provide dentures for ODSP clients but they must be employable. They also argue that services do not need to be consistent throughout the province and they also argue that because it is a discretionary benefit they do not need to abide by the Human Rights Code. They are, in my opinion, incorrect.

15As the SBT also explains in its decision, the applicant underwent dental surgery on September 11, 2007. He ultimately received funding for dentures through the ODSPA’s Employment Supports Program. Further, Peterborough amended its policy for administering dental benefits. As of October 1, 2008, Peterborough no longer requires that recipients be “employable” to be eligible for discretionary benefits to cover the cost of dentures.

16The applicant states that, while he had received his dentures by the time he underwent surgery, he was prejudiced by the initial denial of benefits and the delay this occasioned. While the surgery proceeded as scheduled, the applicant states that he did not have an opportunity to undergo a proper fitting prior to surgery. He alleges that this caused a number of problems with fitting that remain ongoing today.

THE STATUTORY SCHEME

17The statutory scheme engaged in this Application is somewhat complex. While I set out the relevant legislation in general terms, given my conclusions that the Application is moot, is it not necessary for me to describe the statutory scheme in more detail.

18Two forms of income replacement schemes are referred to in this Application: ODSP and Ontario Works. Each is created under a separate statute, each serves a somewhat different purpose, and each scheme is administered separately.

Ontario Works

19It is clear from s.1 of the OWA that this act’s main purpose is to provide temporary assistance to persons in need, provided they satisfy “obligations to become and stay employed.” As the applicant explains, the OWA is aimed at persons in need who are “employable”.

20Sections 38 and 39 of the OWA state that the province may, by regulation, designate a municipality as delivery agent, responsible for administering the OWA in a particular geographic area. There is no dispute that Peterborough has been designated as a delivery agent under the OWA.

21The OWA and O.Reg. 134/98 (“Regulation”) provide for both mandatory and discretionary benefits. Section 55 of the Regulation set out a series of benefits that must be paid, where an applicant meets the statutory criteria. Section 59 of O.Reg. 134/98 (“Regulation”) of the OWA sets out the delivery agent’s powers regarding discretionary benefits. Section 59 states:

Discretionary Benefits

59. (1) A delivery agent may pay or provide one or more of the benefits set out in subsection (2) to or on behalf of a person referred to in section 8 of the Act in the amount determined by the administrator. O. Reg. 134/98, s. 59 (1).

(2) For the purposes of subsection (1), the benefits are the following:

1. The cost of dental services.

2. The cost of one or more prosthetic appliances, including eye-glasses.

3. The cost of vocational training and retraining.

4. The cost of travel and transportation.

5. The cost of moving.

6. The cost of a funeral and burial and the extraordinary costs of transporting a deceased person.

7. Any other special service, item or payment in addition to those set out in paragraphs 1 to 6 authorized by the Director. O. Reg. 134/98, s. 59 (2).

(3) An application for discretionary benefits shall be in the form and manner approved by the Director and shall be made to the administrator for the geographic area where the applicant resides.

22Peterborough has developed a policy manual to administer discretionary benefits pursuant to s. 59 of the Regulation. As I have already explained, Peterborough took the position that dental costs fall within the rubric of “discretionary benefits” (as opposed to “mandatory benefits”), and it initially declined to award them in the applicant’s case. More specifically, in its letter of July 9 2007, Peterborough declined to assume these costs because the applicant was not employable.

ODSP

23Conversely, the ODSPA’s main purpose is to provide income and employment supports to eligible persons with disabilities: s.1. There is no requirement that such individuals be “employable” or take steps to seek employment. In sum, while the OWA seeks to assist persons looking for employment, the ODSPA is about supporting persons with disabilities.

24Although s. 39 of the ODSPA also provides that some elements of the administration of the ODSPA can be delegated to, among others, a municipality, the City of Peterborough states (and the applicant does not dispute) that Peterborough is not the delivery agent or administrator of the ODSP benefits at issue in this Application.

25As I have indicated, the applicant was advised that dental costs were not covered under the ODSPA.

ANALYSIS

Is the Application moot?

26The respondents argue that the Application raises no live legal issue: the dental benefits were ultimately provided to the applicant by the time he underwent surgery; and Peterborough’s policy was revised so that employability is no longer a condition for receipt of discretionary dental benefits. To the extent that the applicant seeks changes to the legislative scheme, counsel for the Director argues that there is no basis to conclude that the scheme, itself, is discriminatory. Nor would it be appropriate for this Tribunal, absent a finding of discrimination, to dictate how a particular benefit program should be administered.

27Counsel for the Director referred me to Borowski v. Canada (Attorney general), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 (“Borowski”), at para. 15, where the Supreme Court of Canada states:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.

28In Borowski, supra, the Supreme Court of Canada also explained some of the rationale underlying the doctrine of mootness. Among these is the fact that the courts’ role in resolving legal disputes is rooted in and relies upon the adversary system. An adversarial context helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It also ensures that adjudicators are not rendering decisions that could be viewed as an encroachment on the broader and more policy-oriented legislative function.

29Counsel for the Director also relied on Hansen v. Workplace Safety and Insurance Board, 2012 HRTO 608 (“Hansen”), where the Tribunal explained that the essence of the mootness doctrine is to conserve adjudicative resources and to avoid expounding on purely theoretical issues or questions that do not truly require a legal resolution. See also Borowski, supra, and J.C. v. Canadian Hockey Association, 2011 HRTO 385.

30The applicant argues that the Application is not moot and, in this regard, he relies on Schafer v. Toronto District School Board, 2009 HRTO 785 (“Schafer”). In that case, the applicant alleged that the respondent school board had disciplined him improperly and had failed to provide accommodation measures. Among other things, the school board asserted that the accommodation issues were moot because the applicant had withdrawn from the respondent school board.

31The Tribunal did not accept his argument. Instead, at para. 21, it found:

The fact that the passage of time has made it impossible to provide the educational supports sought for the years 2005/06 to 2008/09 does not mean that no remedy is available. There is considerable importance to a declaration with respect to a breach of the Code and the possibility of general damages. In addition, the applicant has claimed special damages in the form of the cost of attending a private independent school as a result of the respondents’ inability or unwillingness to provide him with an appropriate special education program. The applicant is currently in grade 12 and is not expected to graduate this year. He asserts that he is entitled to register with the respondent school board until he reaches the age of 21 and that he may yet do so, if the appropriate educational supports are put into place.

32The facts in Schafer are quite different from those here. In this case, not only is there no longer a live legal issue between the parties, but it appears that any remedy the Tribunal could award to the applicant has already been provided.

33While the applicant seeks compensation for injury to dignity, feelings and self-respect, I cannot see any basis for this claim. As I have indicated, he received the dentures before his surgery and the policy has now been revised. Further, as I explain below, the Application contains no allegation that the applicant was prejudiced by the delay in providing the dentures or that he should receive general damages as a result. Thus, in my view, the Tribunal’s determination of the issues raised in the Application would have no practical effect on the applicant.

34In her written submissions, the representative of the Director argued that Hansen, supra (at para. 20) should be read to mean the doctrine of mootness applies even if an applicant is seeking additional remedies. This is because the Tribunal in Hansen stated that the possibility of obtaining further remedies is not, in and of itself, a reason to litigate a denial of benefits afresh.

35I do not accept this interpretation of Hansen, supra. In my view, the Tribunal’s comments at paragraph 20 of Hansen, supra, concern the application of section 45.1 of the Code, which provides that an application should be dismissed if its subject matter has been appropriately dealt with in another proceeding. I note that the cases cited at paragraph 20 of Hansen relate specifically to section 45.1

36I accept that the possibility of further remedies, while immaterial to the application of section 45.1, is a relevant consideration under the doctrine of mootness: see Schafer, supra. When I asked the applicant in this case to identify any remaining remedies that might be available to him, he stated that he was asking the Tribunal to order: 1) damages in relation to the approximately three-month delay in approving his request for dental costs; and 2) legislative change to ensure that, in the future, discretionary benefits are applied uniformly throughout the province and in compliance with the Code. The applicant explained that he wished to prevent Peterborough and other municipalities from breaching the Code in the future by changing their policy or otherwise denying discretionary benefits to disabled persons.

37I have no difficulty accepting that the delay and the multiple steps the applicant had to face caused him considerable frustration. However, I do not think these allegations help the applicant establish that there is a live issue between the parties. Nor do I believe that, even though they are not moot, the allegations based on delay are a basis to proceed with the Application.

38First, although he was asked to do so, the applicant did not point to any such allegations in the actual Application. Nor did he identify where, in the Application, he seeks a remedy in relation to the delay. The applicant raised these allegations for the first time in response to the mootness argument. Thus, although he does not actually allege discrimination because of delay in the Application, the applicant argued that this was sufficient basis to proceed with the Application. I cannot accept this argument.

39Second, when I asked him for particulars of his allegations regarding delay, the applicant responded that these allegations were “not important”, intimating that they were beside the point of the Application. Based on this comment and given that the applicant did not file further submissions on the delay issue, as directed, it is not clear to me that the applicant seeks to proceed with the allegations concerning delay.

40The applicant also argues that the Application is not moot because he is seeking a prospective remedy, an order that the respondents take steps to prevent similar denials of benefit in the future. The difficulty with this argument is twofold.

41First, while the applicant’s desire to ensure future compliance with the Code is understandable, it fails to identify a “live controversy” that “affects the rights of the parties”: see Borowski, supra. The issue of prospective compliance with the Code is not a “live controversy”, it is a conjectural issue that may or may not arise in the future. Moreover, should the issue arise in the future, the matter could be dealt with in an application filed at the material time.

42Second, I cannot accept that the Tribunal could appropriately order the changes to the legislative scheme sought by the applicant. The Tribunal’s role is limited to determining whether the legislation is administered in a discriminatory manner: see Ball v. Ontario (Community and Social Services), 2010 HRTO 360 (at paras. 72-76). In this case, because the policy has been amended, there is no live controversy as to the administration of the legislation or the legislative scheme.

43I find that the issues raised in the Application are moot. There is no live controversy between the parties and the additional remedies identified by the applicant either relate to allegations that are not contained in the pleadings or are not within the Tribunal’s power to award in the circumstances.

44I must now consider whether I should nevertheless exercise my discretion to hear the case. As the Supreme Court of Canada explained in Borowski, supra, at paras. 26 to 42, and para. 45, in exceptional circumstances, it may be appropriate to determine a moot case. The Supreme Court set out the factors that militate in favour of hearing a case, even though it is moot, as follows:

(a) where there are collateral consequences to the outcome such that the rights of the parties or an intevenor may nonetheless be affected;

(b) where there is a need to resolve a legal question that is both persistent and evasive of review;

(c) where the social cost of continued uncertainty outweighs the interest of judicial economy:

45The applicant has provided no basis to establish that any of these circumstances are present in this matter. First, it does not appear that the rights of any parties would be practically affected by the Tribunal’s consideration of the Application. Second, the legal issues raised in the Application are not persistent: they no longer exist. Third, the applicant has not pointed to any other alleged discriminatory application of discretionary benefits. He has simply stated that, absent the Tribunal’s intervention, such discrimination might be possible in the future. There appears to me to be little or no social cost of continued uncertainty in this matter. The possibility that a respondent could, at some point in the future, breach the Code exists in most circumstances. I am satisfied that the interest of judicial economy is more pressing in the case before me.

46I note that the applicant has argued he has a right to have his claim determined. He states that the SBT merely dismissed the matter for want of jurisdiction and that no decision-maker has yet addressed the merits of his claim.

47The applicant has clearly put a great deal of effort into this matter and his case before the SBT. Although he is a lay person, the applicant has addressed the complicated legal issues raised in this matter with considerable skill. I appreciate that the wishes to finally have the Application dealt with on the merits. Importantly, however, for the reasons I have set out above, there is no right to adjudication of a moot issue.

CONCLUSION

48The Application is dismissed because it is moot.

49To the extent that the applicant alleges discrimination because of a delay in funding, while that issue is not moot, I find that it is not appropriate for the Application to proceed on this basis. These allegations were first advanced in response to the mootness arguments raised by the respondents and are not contained in the Application. The applicant has also stated that these allegations are “not important” and has suggested that they are tangential to the issues raised in the Application.

50Given these conclusions, it is not necessary for me to determine whether the subject matter of the Application has been appropriately dealt with in the SBT proceeding. Nor is it necessary for me to determine whether the Director should be removed as respondent.