M.C. v. The Grassy Narrows and Islington Bands Mercury Disability Board, 2013 HRTO 101

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.C. by her Litigation Guardian the Office of the Public Guardian and Trustee

Applicant

-and-

The Grassy Narrows and Islington Bands Mercury Disability Board

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: January 21, 2013

Citation: 2013 HRTO 101

Indexed as: M.C. v. The Grassy Narrows and Islington Bands Mercury Disability Board

APPEARANCES

M.C., Applicant

Vani F. Santi, Counsel

The Grassy Narrows and Islington Bands Mercury Disability Board, Respondent

Bernd M. Richardt, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability and age.

2The applicant was born on January 26, 1993 and describes herself as a person who suffers from the effects of mercury poisoning. The respondent, Mercury Disability Board, was established in 1986 in response to mercury poisoning of the English-Wabigoon River system. The Board oversees the administration of a trust fund from which benefits are paid to claimants showing symptoms of mercury poisoning.

3An application for benefits (“original application”) was filed with the respondent on the applicant’s behalf when she was a minor in 2001. The application was incomplete because the applicant did not attend an appointment with a neurologist in 2002. Prior to determining benefits, the applicant was required to file an application and mandatory medical report.

4The Public Guardian and Trustee (“PGT”) was appointed the applicant’s administrator on March 25, 2011.

5The PGT contacted the respondent on March 31, 2011 with respect to the original application for benefits. The PGT was informed that a new application would need to be filed on behalf of the applicant. A new application was filed by the PGT on April 28, 2011.

6The respondent rendered a decision in relation to the new application on February 12, 2012 awarding benefits retroactive to May, 2011. The applicant sought reconsideration as well as an appeal from the reconsideration, both of which were denied by the respondent. The applicant is seeking benefits retroactive to the date of her original application in 2001.

7In its letter to the applicant of June 26, 2012, the Board indicates that it is not possible to make payments retroactive to the 2001 application date because of Section 6(3) of its enabling legislation which states:

The Board may, in its discretion, make an award that takes effect on a day not earlier than the day the application relating to the award was made.

8In the same letter, the respondent provided an explanation that the applicant’s parent/legal guardian had filed the original application and was informed that the applicant was being removed from the wait list as she had not attended the May 8, 2002 neurological assessment. The letter states that: “The Board cannot be held responsible for the fault of any parent in filing applications at the earliest possible time and not ensuring any child attend their neurological assessment.”

9At issue in this case is the requirement that the applicant file a new application which had the effect of preventing the applicant from receiving benefits retroactive to the date of the original application. The applicant alleges that the requirement to file a new application prior to the adjudication of her entitlement to benefits was discriminatory.

10The Tribunal issued a Case Assessment Direction (“CAD”) dated August 2, 2012, seeking submissions on the doctrine of judicial immunity. The parties were advised that the doctrine of judicial immunity has been applied by this Tribunal to shield administrative tribunals and courts from Applications concerning the actions of judges and adjudicators while acting in their adjudicative capacity and they were referred to the decision in Cartier v. Nairn, 2009 HRTO 2208. The parties filed submissions in response to the CAD.

11The respondent takes the position that the applicant is challenging a decision of the Board made pursuant to its statutory authority. The respondent argues that the applicant is seeking to review or appeal and ultimately to reverse the decision to award benefits based on the date of the new application.

12The applicant relies on the Tribunal decision in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115. In Seberras the applicant alleged that the statutory scheme which lead to the decision to deny benefits was discriminatory. The Tribunal found that judicial immunity did not apply in those circumstances. Similarly, in this case the applicant alleges that the requirement to file a new application, which lead to the decision to grant benefits retroactive to the date of the new application rather than the original application, is discriminatory. The applicant alleges that the requirement to file a second application has adverse consequences for minors and individuals who are incapacitated and that the respondent has failed to incorporate appropriate accommodations for those individuals into the application process.

13At this early stage the Tribunal will not dismiss an application unless it is plain and obvious that the Tribunal is without jurisdiction to adjudicate the issues raised by the applicant. In my view, the applicant is not seeking to overturn the decision to award her benefits retroactive to May, 2011. The applicant is seeking compensation for allegations of discrimination associated with the requirement to file a second application which preceded the decision to award benefits to May, 2011. It is not plain and obvious that the requirement to file a second application is an adjudicative decision which would be protected by the doctrine of judicial immunity. However, this is an interim decision and may be the subject of further consideration by the adjudicator who conducts the hearing.

14The Application will continue in the hearing process. The respondent will have 35 days from the date of this Interim Decision to file a Response to the allegations. Dates for disclosure of documents will follow in accordance with the Rules and, as a result, it is unnecessary at this time to address the applicant’s request for disclosure.