Aria Javan v. Her Majesty the Queen in Right of Ontario as represented by the Attorney General (Ontario Works), 2013 HRTO 1312

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aria Javan

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General (Ontario Works)

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: July 26, 2013

Citation: 2013 HRTO 1312

Indexed as: Javan v. Ontario (Attorney General)

APPEARANCES

Aria Javan, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as Represented by the Attorney General (Ontario Works), Respondent

Fatema Dada, Counsel

Introduction

1This is an Application filed on August 13, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to contracts because of gender expression, family status and marital status.

2Following a review of the Application, a Case Assessment Direction (CAD) was issued on September 4, 2012, directing that a summary hearing take place. The respondents were not required to file a Response. The CAD directed that at the summary hearing, the applicant would be required to make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to evidence upon which he would rely to prove a link between the respondent’s actions and the grounds cited.

3The summary hearing was held by conference call and both parties participated.

DECISION

4For the reasons that follow, this Application is dismissed.

ANALYSIS

Summary Hearings

5In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Application to the Facts

7Though the applicant has identified the ground of “gender expression” in his Application, at the summary hearing, the applicant confirmed that his claim is in fact based on allegations of discrimination on the basis of sex.

8The applicant asserts that Ontario Works provided financial assistance to his ex-wife from 2007-2010 and that it claims that he owes it money as he had sponsored her to come to Canada. He alleges that because of his gender he was not believed by Ontario Works when he attempted to report that she was fraudulently in receipt of benefits. At the summary hearing, he alleged that when he spoke with someone at Ontario Works, that person stated that they do not investigate “complaints from husbands or wives”. He alleges that it was subsequently proven in court that his ex-wife was fraudulently collecting money from Ontario Works, and he points to a decision issued by the Ontario Superior Court of Justice on January 26, 2009, rendered regarding charges of assault. He asserts that she was in fact employed, but that Ontario Works has nonetheless made him financially responsible for the fact that they granted her financial assistance. He also asserted that he was not in breach of a sponsorship contract.

9Further, he alleges that his ex-wife received assistance from Ontario Works for their child, even though their child was living with him by order of the court. He alleges that he was refused such assistance on the basis of his gender and that an individual at Ontario Works stated that it is usually mothers who receive assistance in respect of their children. Materials he filed with his Application indicate that he and his wife had joint custody of their child, but at the summary hearing he alleged that she gave up full custody of their child to him. At the summary hearing, he indicated that someone at the office of Ontario Works told him that “she is the mother and she has rights”. He also stated that from January 2009-2010, she received financial assistance based on having her child living with her, and that though he called Ontario Works many times and provided them with documentation, they denied him such financial assistance. He indicated that after that period, he was able to convince Ontario Works that he should receive the financial assistance for child support and they gave her no such further support.

10The applicant’s ex-wife had made accusations of assault against him and he provided the above-noted January 2009 Superior Court of Justice’s judgement, where he was found not guilty of having assaulted her. He alleges that Ontario Works encourages women to come forward and accuse their spouses of assault in order to receive assistance and that his spouse made false accusations against him. He cited information posted on the internet by the Ministry of Community and Social Services, which states in part as follows:

Q. I am living in an abusive situation. Can Ontario Works help me?

A. Yes. If you are living in a violent or abusive situation, Ontario Works can help you by:

• Providing you with financial assistance, and

• Helping you find a job.

What can you do? Contact your nearest Ontario Works office.

When you contact your nearest Ontario Works office, you will be put in touch with someone who can help you.

Tell them that you are in an abusive situation.

They will meet with you within 24 hours at a location that is safe for you.

What can you expect when you call

• We will believe you and we will treat you with respect.

• We can help you develop a safety plan as a first step. We will help you to connect with supports and services like emergency shelter, legal help, affordable housing and counselling.

• We can help you move out immediately. Then we may be able to help you set up a new home in the community.

• You will not be asked to get financial support from your abuser.

• If you have a job, you may still be able to get some financial assistance from Ontario Works, depending on how much you are earning.

• You will receive services in French, if required. If you don’t speak either English or French, we will provide an interpreter.

11With its materials for the summary hearing, the respondent provided a copy of a blank sponsorship contract, which includes a statement confirming that by signing the sponsorship undertaking the sponsor promises “that the sponsored relative and his/her dependents will not need to apply for social assistance/welfare benefits”. It also alerts the reader to the fact that if a sponsored relative is being abused or assaulted by the sponsor, the relative should “seek safety away from their sponsors even if this means that they will have to apply for social assistance/welfare benefits.” It also states that “In this circumstance, sponsors will continue to be responsible for their relatives’ essential needs for 10 years from the date the sponsored relatives were granted permanent residence”.

12In submissions he filed prior to the summary hearing, the applicant asserts that the sponsorship contract is void and that the respondent violated his right to be heard and “acted by abusing a power without a court order and seized his income tax and demanded money based on a Void-Contract [sic]”.

13The respondent asserts that the applicant’s ex-wife applied for and was granted social assistance by the local Ontario Works Delivery Agent (the “Delivery Agent”) in January 2007, and that the Delivery Agent received a complaint from the applicant in October 2007, indicating that his wife was ineligible for such assistance. The respondent asserts that the Delivery Agent conducted an investigation and in November, 2007 determined that the applicant’s wife was eligible for such assistance and that no fraud had been committed. It asserts that the Overpayment Recovery Unit of the Ministry of Community and Social Services (the “ORU”) began to attempt to collect payment from the applicant in the spring of 2008, noting that he was in default of his sponsorship undertaking. The respondent asserts that in January 2009 the applicant disputed his responsibility for the social assistance debt and again accused his ex-wife of welfare fraud. The respondent asserts that efforts to collect the debt continued and that the applicant again asserted that his ex-wife was defrauding Ontario Works. The respondent asserts that the Delivery Agent conducted another eligibility review and determined in April, 2009 that the allegations of fraud were unfounded. The respondent asserts that on September 14, 2009, the applicant’s former wife ceased collecting social assistance based on income ineligibility and that on December 1, 2010 she withdrew from the program voluntarily based on full time employment. The respondent also asserts that the ORU and the applicant continued to exchange correspondence from April 25, 2012 to June 7, 2012 regarding the debt and the applicant’s position that he was not responsible for the debt.

14The respondent also provided a Statement of Claim filed by the applicant on August 29, 2012, which it asserts is in relation to this same set of facts, issued by the Ontario Superior Court of Justice, Small Claims Court (“Small Claims Court”).

15The respondent submits that the Application contains bald allegations of discrimination on the basis of gender expression, but that there is no evidence of differential treatment of the applicant based on a ground prohibited by the Code.

16The respondent also submits that the Application should be dismissed as the applicant has an ongoing Small Claims Court lawsuit against the respondent, in which he seeks the same relief from the same set of facts.

17At the summary hearing, I directed the applicant to s. 34(1) and (2) of the Code and asked him why he had delayed in filing his Application for more than one year after 2010, which is the latest date provided for his interactions with the respondent and the latest date at which he alleges the respondent refused to grant him financial assistance in respect of his child. He stated that he was trying to find out how the decision took place, and he ultimately determined that the decision took place based on gender. I provided him with the opportunity to file written submissions regarding the timeliness of this allegation in view of section 34(1) and (2) of the Code within seven days after the summary hearing.

18At the summary hearing, I also directed the applicant to s. 34(11) of the Code and asked him why his Application should not be dismissed in view of the Statement of Claim he filed with Small Claims Court. He stated that the Statement of Claim is about breach of contract, not discrimination. I provided him with the opportunity to file written submissions within seven days after the summary hearing, regarding the applicability of s. 34(11) and regarding whether the Application should be dismissed due to the Statement of Claim he filed.

19Due to an administrative error at the Tribunal, the applicant’s post-hearing submissions were not initially provided to me, but following issuance of a Case Assessment Direction (CAD) prompting the applicant to provide his submissions, the submissions were provided to me. I have now reviewed and considered those submissions, and my findings regarding delay are provided below.

20The applicant makes several allegations: he alleges that due to his gender, the respondent did not believe him when he tried to report that his wife was fraudulently in receipt of benefits and advised him that it would not conduct an investigation based on the complaint of a spouse and that it is usually mothers who receive assistance in respect of their children and that his child’s mother has rights; he alleges that due to his gender, the respondent refused to provide him with financial assistance in respect of his child; the respondent’s website encourages women to claim domestic assault by their husbands; his sponsorship contract is “void” and the respondent has abused its power in seizing his income tax and demanding repayment of money based on a contract which he alleges is void.

21With respect to the applicant’s allegation that the respondent encourages women to claim domestic assault by their husbands, the only evidence the applicant points to is the above-noted information posted on the internet by the Ministry of Community and Social Services. This information does not reference any gender, age, marital or family status and is merely a posting directed at individuals “living in a violent or abusive situation”. Based on this evidence, the applicant has not provided an explanation of how he will be able to connect the alleged actions of the respondent with discrimination on the basis of gender.

22The applicant must be able to show that the respondent has treated him differently as compared to others based on his gender for his Application to be successful. He has not, however, been able to identify any evidence which would, if proven, establish a connection between the respondent’s alleged actions and his gender. Without such evidence, this allegation in his Application cannot succeed.

23It is clear that the applicant is displeased with the respondent’s insistence that he owes money in respect of the financial assistance received by his ex-wife. As stated in the CAD, however, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. With respect to the applicant’s argument that the sponsorship contract relied upon by the respondent is void, the applicant has pointed to no evidence upon which he would rely to establish that the respondent’s actions in this regard are due to his gender. Without such evidence of a link between the respondent’s alleged actions and his gender, this allegation in his Application cannot succeed and must be dismissed.

DELAY

24Other than the allegation regarding information on the website of the Ministry of Community and Social Services and the allegation that the respondent relies upon a “void” contract and has abused its power, which as noted above, are dismissed due to no reasonable prospect of success given the lack of any link between the respondents’ alleged actions and the Code, the date of the most recent “allegation” stated by the applicant was 2010.

25With respect to the allegations that due to his gender, the respondent did not believe him when he tried to report that his wife was fraudulently in receipt of benefits and advised him that they would not conduct an investigation based on the complaint of a spouse, and with respect to the allegations that employees at Ontario Works made comments indicating that it is usually mothers who receive financial assistance in respect of their children and that his child’s mother has rights, I make no finding as to whether these allegations should be dismissed as having no reasonable prospect of success, as I find that they are untimely and are dismissed on that basis.

26Section 34 states, in part:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

27In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paras. 24-25, the Tribunal made the following general comments about untimely applications:

In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.

In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2).

28Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

29The applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner.

30The applicant has been clear that he had concerns regarding his interactions with Ontario Works when he tried to advise personnel there that his wife was fraudulently in receipt of benefits and when he tried to claim financial assistance from Ontario Works in respect of his child, but was refused. He indicates that his wife received financial assistance from 2009-2010. Though he has not provided exact dates for these interactions with or application to the respondent, it is evident that those alleged events took place prior to the end of the period where his wife was in receipt of benefits. He indicates that the alleged statement that the respondent does not investigate “complaints from husbands or wives” was made prior to the January 2009 decision from the Ontario Superior Court, as he says her fraud was subsequently proven in court. He alleges that he was refused assistance in respect of his child on the basis of gender, and that it was in this context that someone at the respondent stated that it is usually mothers who receive assistance in respect of their children and that someone at the respondent told him that “she is the mother and she has rights”. He has also indicated that subsequently, he was awarded financial assistance and his wife received no further support. It is evident, therefore, that whatever the dates of these alleged interactions and refusal of benefits, they occurred prior to the end of 2010.

31The Application was not filed within one year of the date of the last alleged incident of discrimination, and I therefore must determine whether the delay in filing this Application was incurred in good faith.

32With respect to the issue of timeliness, the applicant submits that prior to 2012, he “had no knowledge” that the respondent’s alleged actions could be “considered as a discrimination action based on gender”. Essentially, therefore, the only reason the applicant has provided for this delay is that he was not aware of his rights under the Code.

33In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal made reference to a number of court decisions and held that delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights and made no inquiries about options for pursuing the alleged wrong. At paragraph 8 of that decision, the Tribunal stated:

…Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v. Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The Courts have held that ‘failure to act in ignorance of one’s rights may, in some circumstances, amount to ‘good faith’. However…it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights’. (Busch v. Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).

34The applicant had concerns regarding the respondent’s alleged assertion to him that it would not conduct an investigation based on a spouse’s complaint, regarding the respondent’s alleged assertion that it is usually mothers who receive financial assistance in respect of their children, and regarding the respondent’s alleged assertion that his child’s mother has rights, and regarding the fact that he was denied financial assistance by the respondent in respect of his child. As noted above, the information provided by the applicant indicates that these alleged events would have transpired by the end of 2010. Given his stated concerns, I am not persuaded that he has established that he had no reason to make enquiries about his rights until 2012. I find, therefore, that the applicant has not satisfied the burden of demonstrating that the delay in filing this Application was incurred “in good faith” as required under s. 34(2) of the Code. These allegations in the Application are therefore dismissed.

35Given my finding regarding the lack of good faith, it is not necessary for me to address the question of prejudice to the respondent, nor is it necessary for me to address the parties’ arguments regarding the applicability of s. 34(11) of the Code.

36For all of the above reasons, I find that there is no reasonable prospect that the Application will succeed with respect to the allegation about the website of the Ministry of Community and Social Services, nor is there a reasonable prospect that the Application will succeed with respect to the allegation that the respondent relies upon a void contract, as there is no evidence linking those alleged actions to the Code, and they are dismissed on that basis. For all of the above reasons, I find that the remainder of the allegations are outside of the Tribunal’s jurisdiction, due to delay, and they are dismissed on that basis. Accordingly, the Application is dismissed in its entirety.

OTHER

37Subsequent to the summary hearing, the applicant filed a Request for Order During Proceedings (RFOP), indicating that he was requesting to “consolidate or have applications heard together”. There is no reference to any other Application at this Tribunal filed by the applicant against the respondent. He states the reason for his request as follows:

The reason is the respondent provided document to the HRTO (Undertaking of Sponsorship agreement), collected illegally, without consent and in violation of privacy act, and right of applicant, document should be excluded since collected illegally, and violation of applicant’s right under privacy act must be considered consider with the matter already filed by the applicant. [sic]

38It appears that the applicant objects to the fact that the respondent included in its materials a copy of the sponsorship agreement he signed. In his Application, the applicant indicated that he had sponsored his wife to come to Canada and that the respondent was seeking money from him, due to the sponsorship arrangement. The question at this summary hearing was whether the Application should be dismissed as having no reasonable prospect of success, and the CAD ordering the summary hearing directed the applicant to make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to evidence upon which he would rely to prove a link between the respondent’s actions and the grounds cited. The specific sponsorship agreement signed by the applicant has not been material to my decision to dismiss this Application as having no reasonable prospect of success, as he has pointed to no evidence upon which he would rely to prove a link between the respondent’s actions and the grounds cited. Accordingly, the RFOP which requests that the document be “excluded” is moot.

39The applicant also appears to request the Tribunal make a finding that the respondent has breached legislation related to privacy rights. As stated in the CAD ordering the summary hearing, however, the Tribunal does not have the general power to deal with allegations of unfairness. Whatever complaint the applicant has with respect to the fact that the respondent provided a copy of his sponsorship agreement to the Tribunal, the Tribunal has the authority only to consider alleged discrimination or harassment on the grounds set out in the Code. As noted above, his allegation that the respondent has breached his privacy in providing documentation to the Tribunal, does not alter the determination that this Application has no reasonable prospect of success, as he has pointed to no evidence upon which he would rely to prove a link between the respondent’s actions and the grounds cited. There is no additional Application before the Tribunal and no other decision will issue from the Tribunal regarding the applicant’s privacy rights.