Eleanor Freeman v. March of Dimes Canada, 2013 HRTO 129

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eleanor Freeman

Applicant

-and-

March of Dimes Canada, Corporation of the Municipality of Chatham-Kent and The Corporation of the County of Lambton

Respondents

DECISION

Adjudicator: Mark Hart

Date: January 24, 2013

Citation: 2013 HRTO 129

Indexed as: Freeman v. March of Dimes Canada

APPEARANCES

Eleanor Freeman, Applicant

Self-represented

March of Dimes Canada, Respondent

Lee Harding, Representative

Corporation of the Municipality of Chatham-Kent, Respondent

Colin Osterberg, Counsel

The Corporation of the County of Lambton, Respondent

David Cribbs, Counsel

1This is an Application dated March 7, 2012 and 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 housing and services because of disability and age.

2The Application arises from the applicant’s applications for housing services in Chatham-Kent and the County of Lambton, and the denial of her application for supportive housing services from the March of Dimes Canada (“MODC”). The applicant has multiple medical issues that limit her mobility. She was 48 years old at the relevant time.

3By Case Assessment Direction dated May 24, 2012 (the “CAD”), the Tribunal directed, on its own initiative, that a summary hearing be held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

4Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

5Details about the nature of a summary hearing were set out in the CAD as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

6The CAD stated that the Tribunal does not have the general power to deal with allegations of unfairness, but 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 discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. The CAD expressed concern as to the applicant’s ability to prove a link to the grounds alleged and indicated that a summary hearing would be held to address this issue.

7A summary hearing in this matter was held by teleconference on September 11, 2012, and was attended by the applicant and all respondents. I stated my understanding of the issues raised in the Application and described the nature of the submissions I required from the applicant, and confirmed that she understood. I then afforded the applicant the opportunity to make oral submissions, followed by oral submissions from all respondents, and an opportunity for the applicant to reply.

8At the summary hearing, I explained to the applicant that, while I am aware from the materials filed that she would like to challenge the policies of the respondents on behalf of a broader group of individuals with various kinds of disabilities, issues relating to persons other than the applicant herself are not a proper basis upon which to file a section 34(1) application with this Tribunal alleging a violation of the Code. Rather, the issue before this Tribunal is whether the applicant herself has personally experienced discrimination because of her particular disability and/or her age as a result of the actions of the respondents. This results from the wording of section 34(1), which requires that a person believe “that any of his or her rights….have been infringed….” (emphasis added).

Allegation against March of Dimes Canada

9MODC provides supportive housing services for individuals who live in social housing. It was stated by MODC in its Response and acknowledged by the applicant at the summary hearing that MODC does not apply any age criteria in relation to a request for supportive housing services. Rather, MODC applies certain eligibility criteria established by the Ministry of Health and Long-Term Care, which include the requirement for individuals:

• To have a permanent disability which results in the inability to complete personal care routines, such as toileting, hygiene, bathing, dressing, or transfers, and

• To require MODC assistance with personal care as a result of her/his disability.

10The documentation filed by MODC indicates that the applicant was denied supportive housing services on the basis that she acknowledged that at the time she applied, she was able to independently complete all of her personal care routines, and did not require MODC assistance at that time with any of those activities. This is not disputed by the applicant. Rather, the applicant states that she was asked to identify whether she required assistance with personal care within a specific 72 hour period. Because her disability is of a fluctuating nature, the applicant states that she did not require assistance with personal care during that particular 72 hour period. She also raised the issue that her disability may deteriorate in future, which may give rise to personal care needs.

11The applicant’s position at the summary hearing appeared to be that she does at times requiring support for personal care but did not require such support during the 72 hour period she was asked by MODC to report on, although this is not entirely clear. The material indicates that, at the applicant’s request, there was an internal review done by MODC during which the applicant does not appear to have raised this issue. Rather, the issue of being restricted to the 72 hour period emerged for the first time at the summary hearing. Further, the applicant is free to re-apply to MODC if her circumstances change.

12In my view, the applicant has not established that she has a reasonable prospect of successfully proving that she experienced discrimination because of her disability by MODC. Rather, it appears that supportive housing services were denied by MODC because the applicant acknowledged that she did not require assistance with personal care, which was one of the eligibility criteria. While I appreciate that there are wait lists for supportive housing services and the applicant would like to have her application accepted now so that she may be at the top of the list when her disability deteriorates and she requires assistance with her personal care needs, the fact that MODC bases its assessment of an applicant’s present-day needs is not a basis upon which to allege discrimination because of disability under the Code.

Allegations against Chatham-Kent

13The Corporation of the Municipality of Chatham-Kent (“Chatham-Kent”) provides rent-geared-to-income (or “RGI”) housing for eligible applicants. Chatham-Kent is not involved in any decision about whether to provide an individual with supportive housing services or in the provision of any such services.

14The applicant applied to Chatham-Kent for RGI housing and her application was considered complete as of May 12, 2011. Her application was approved on June 30, 2011 and she was added to the wait list for 13 identified buildings. Based upon further material received from the applicant regarding her needs, Chatham-Kent subsequently identified one specific building as being the applicant’s best option for housing. This was discussed with the applicant on February 16, 2012. As of the date of the summary hearing, the applicant was number 44 on the wait list for this building.

15MODC does not provide supportive housing services for the building identified by Chatham-Kent as the applicant’s best option. Rather, services for this building are provided by the Red Cross. While not responsible for providing supportive housing services, Chatham-Kent states that it has contacted the Red Cross to inquire about the applicant’s potential eligibility and has received a positive response. Chatham-Kent states that it has been encouraging the applicant to apply to the Red Cross for supportive housing services, but understands that at least to the date of the summary hearing, she has not done so. The applicant states that she has tried calling the Red Cross on a number of occasions, but her calls have not been returned.

16In any event, regardless of the state of her application for supportive housing services, that is not a basis upon which to allege discrimination against Chatham-Kent. Rather, the applicant’s allegation of discrimination because of disability against Chatham-Kent relies upon her allegation that she requires hand rails in the hallways of any building where she obtains housing, and the building which has been identified as the best option for her does not have hand rails.

17First, in my view, this allegation is premature, as the applicant has not yet been placed in this particular building and it is not certain whether she ever will be. At such time as the applicant is placed in this building, then the applicant can make a request for accommodation with appropriate support, and Chatham-Kent can consider and address any such request. If there is a denial or a failure to provide accommodation required for needs arising from a disability, then this could be the subject of a future application to this Tribunal.

18Second, based upon the medical documentation submitted by the applicant in support of this request, I am not satisfied that she has a reasonable prospect of proving that hand rails are a need required by her disability. The applicant’s disability requires her to use a walker and/or arm braces. The applicant submitted a letter from Dr. Freeman dated November 14, 2011, which states:

Ideally, Ms. Freeman could be placed in a location that has adequate safety protocols in place both within the apartment and building. For example, within the apartment, having bath seats, and rails; and within the building, potential for staff support in times of urgency. If possible, a building that has hallway handrails to encourage safe ambulation on the ground level also. (emphasis added)

19This, in my view, is far from a sufficient basis to establish that hallway hand rails in the building is supported as a need for accommodation. Accordingly, at the end of the day, I am not satisfied that the applicant has a reasonable prospect of proving that a hand rail is a need required by her disability.

20The applicant’s allegation of discrimination because of age relates to the Christian Senior Citizen’s Home of Chatham, which is administered by Chatham-Kent. This facility is generally available only to individuals aged 65 years and older, but there also is a cascading age policy which allows individuals in a series of age categories to be considered for vacancies where there is no eligible person aged 65 or older. The lowest age category considered is from 50 to 55 years of age.

21The applicant stated at the summary hearing that, when she applied to Chatham-Kent for social housing, she specifically indicated an interest in the Christian Senior Citizen’s Home and was told that she was not eligible because she was not 50 years old. In response, Chatham-Kent raises two issues. First, the Christian Senior Citizen’s Home is a three-story apartment building for seniors. Chatham-Kent states that this building would not be appropriate for the applicant, as supportive housing services such as those provided by MODC or the Red Cross would not be available to her at this location. As the applicant’s position in this Application is that she requires supportive housing services, it is hard for me to understand how she has a reasonable prospect of success in establishing that she ought to have been considered for the Christian Senior Citizen’s Home.

22Second, Chatham-Kent takes the position that its cascading age policy is a “special program” within the meaning of s. 14 of the Code. In my view, it is not necessary to determine that issue in order to decide this Application. In order to constitute a violation of the Code, an applicant must be able to prove discrimination in a substantive sense: see Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 73 to 91. In the context of the protected ground of age, this means that not every distinction on the basis of age necessarily will be regarded as discriminatory. From a substantive discrimination viewpoint, the question is whether the particular distinction has a negative impact on an identifiable group that has experienced historic, political or social disadvantage by perpetuating prejudice or stereotyping. In this context, it is hard for me to see how the applicant has a reasonable prospect of being successful in proving that the group of persons under 50 is an identifiable group that has experienced historic, political or social disadvantage relative to the group of persons 50 and over, or that limiting eligibility to be on a list for access to senior’s housing to persons 50 and older perpetuates prejudice or disadvantage. In fact, from a substantive discrimination standpoint, it would appear to me that the opposite is more accurate: see Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 SCR 497, Ontario Human Rights Commission, “Policy on Discrimination Against Older People Because of Age”.

Allegation against County of Lambton

23With regard to The Corporation of the County of Lambton (“Lambton”), the applicant clarified at the summary hearing that the basis of her allegation against Lambton is that it denied her eligibility for RGI housing on the basis of the MODC’s decision that she did not require supportive housing services.

24The material before me indicates that the applicant initially applied for medically assisted housing. The application form she submitted to Lambton has been filed with the Tribunal, and on it, the applicant responded “yes” to the question of whether she required support services in order to live independently. Lambton determined that the applicant was ineligible for medically assisted housing as she did not enjoy the support services necessary to live independently, due to the MODC’s denial of service. However, Lambton subsequently has put the applicant on the list for economically assisted housing, where she remained at least to the date of the summary hearing.

25As I already have found that the applicant does not have a reasonable prospect of proving that MODC’s decision to deny eligibility for supportive housing services is discriminatory, there similarly is not basis to support a violation of the Code as against Lambton for its reliance on the MODC’s decision.

26The applicant clarified at the summary hearing that no allegation of age discrimination is raised as against Lambton.

27For all of the foregoing reasons, I find that the applicant has failed to establish that she has a reasonable prospect of proving a violation of the Code on the grounds alleged. Accordingly, the Application is dismissed.