Leonard Sterling v. City of London, Community Services, 2013 HRTO 1360

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leonard Sterling

Applicant

-and-

City of London, Community Services

Respondent

DECISION

Adjudicator: Brian Cook

Date: August 8, 2013

Citation: 2013 HRTO 1360

Indexed as: Sterling v. City of London, Community Services

APPEARANCES

Leonard Sterling, Applicant

Self-represented

City of London, Community Services, Respondent

Kelly Dawtrey, Counsel

Introduction

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant is a recipient of benefits under the Ontario Works program. The Application concerns his entitlement to a shelter allowance in July 2012.

3On the basis of the allegations in the Application, the Tribunal was not clear how the applicant would be able to show that the allegations, if true, provided evidence of an infringement of the applicant's Code-protected rights. In a Case Assessment Direction dated April 10, 2013, the Tribunal directed that a summary hearing would be held by telephone conference call. The summary hearing was scheduled for August 1, 2013. The applicant and the respondent participated and made submissions.

4In a summary hearing, the issue to be determined is if the Application should be dismissed in whole or in part because there is no reasonable prospect that the Application or part of the Application will succeed if it were to proceed to a full hearing before the Tribunal on the merits of the Application.

5The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. Details about the process are discussed in the Tribunal’s Practice Direction on Summary Hearings which states:

A summary hearing usually considers:

• whether, assuming all of the allegations are true, the Application has no 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; and/or

• whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

6The Tribunal does not hear evidence in a summary hearing. It instead hears what evidence the applicant expects to be able to call if the Application proceeds to a hearing on the merits. The Tribunal must then assess whether the evidence that the applicant proposes to call is likely to establish that the discrimination alleged occurred.

7The applicant received a shelter allowance from the respondent as part of his entitlement under the Ontario Works program. In June 2012 he intended to use the shelter allowance to pay for accommodation at a motel. He did not use the money for this purpose and instead stayed at an emergency shelter operated by the Salvation Army. The respondent advanced funds to cover the per diem costs of the emergency shelter but created an overpayment as a result of the advanced funds. In July 2012, the applicant again received a shelter allowance with the intention of staying at a motel and again did not use the funds for this purpose. The respondent advised that it would not advance the per diem cost of accommodation at the Salvation Army shelter.

8In the Application, the applicant alleged that these circumstances infringed his Code-protected rights because of discrimination on the grounds of receipt of public assistance. Under section 2 of the Code, every person has a right to equal treatment with respect to the occupancy of accommodation without discrimination because of a number of specific grounds, including receipt of public assistance.

9At the summary hearing, the applicant indicated that he would like to amend the Application to include disability as a ground of discrimination. He explained that he has a “gambling addiction” which the respondent is aware of. The applicant believes that this addiction is a disability under the Code. He explained that this addiction is the reason he did not have the funds available for accommodation at the motel in June and July 2012.

10The applicant clarified that he is not alleging that he was denied any benefit directly because of this disability. However, he believes that since the disability was the reason he did not have the funds available, the respondent should have provided additional funds to cover the per diem cost of staying at the emergency shelter.

11Counsel for the respondent noted that the decision about whether a person can stay at the emergency shelter is made by the shelter and not by the respondent. The shelter may have beds available for people who for various reasons do not have per diem funding. Counsel also noted that the respondent has in the past referred the applicant for addiction counseling but the applicant has not followed through. In addition, the respondent has offered to pay shelter costs directly to ensure that the funds are available for shelter but the applicant has not agreed to this arrangement.

12The Application indicated only that the applicant was alleging discrimination because of receipt of public assistance and did not indicate disability as a ground of alleged discrimination. The applicant would therefore have to request that the Application be amended to include disability. As discussed at the summary hearing, before that request could be considered by the Tribunal, it would be necessary for the applicant to explain why he did not include disability at the time he filed the Application. The applicant was asked to address this during the summary hearing. He explained that he had not included disability as a ground of alleged discrimination because he did not think that he had been denied anything because of his disability. He knew at the time that he would not be granted additional shelter allowance for July 2012 if the money allotted for that purpose was not available to cover his shelter costs.

13The applicant explained that he now believes that there was “constructive discrimination” because his experience and understanding is that the respondent does not have clear policies and that sometimes people can access emergency shelter facilities and sometimes they cannot.

14Counsel for the respondent agreed that in June 2012, the respondent did allow the applicant to access emergency shelter by granting additional per diem coverage. However, this was granted on compassionate grounds and resulted in an overpayment and the applicant was well aware that the same thing would not be permitted the following month. The applicant does not dispute this but believes that there still may be “constructive discrimination”.

Conclusions

15In my view there is no reasonable prospect that the applicant could successfully establish that he was discriminated against because he was in receipt of public assistance. It does not appear that the applicant believes that he was discriminated against on this basis since he clarified that the only reason the problem arose in July 2012 was that the money that was supposed to cover his shelter costs at the motel was not available due to his gambling addiction.

16In my view there is also no reasonable prospect that the applicant could successfully establish that he was discriminated against on the basis of disability even if he were permitted to amend the Application to include this ground of alleged discrimination. Assuming that the applicant has a disability within the meaning of the Code, the applicant agrees that he was not denied anything because of this disability and agrees that he was therefore not directly discriminated against because of this disability. He also agrees that the respondent has offered to assist him by referring him for counseling and by offering to pay shelter costs directly and that he has not followed through with the referral and has not agreed to the direct payment option. In my view the applicant would also not be able to establish discrimination or “constructive discrimination” under the Code on the basis that additional shelter allowance was advanced in June 2012 on a compassionate basis. The fact that another shelter allowance was not advanced in July 2012 may be evidence that the respondent felt that another advance was not appropriate but it is not evidence of discrimination.

17For these reasons, there is no reasonable prospect that the Application could succeed even if the applicant were permitted to add disability to the grounds of alleged discrimination and the Application is dismissed on that basis.