Stennett v. Ontario (Community and Social Services), 2013 HRTO 1760

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danielle Stennett

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services

Respondent

DECISION

Adjudicator: Ruth Carey Date: October 17, 2013 Citation: 2013 HRTO 1760 Indexed as: Stennett v. Ontario (Community and Social Services)

WRITTEN SUBMISSIONS

Danielle Stennett, Applicant John Ross Done, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, Respondent Geoff Baker, Counsel

Introduction

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 goods, services and facilities because of disability. It concerns the administration of the Ontario Disability Support Program and two decisions by the Director to refuse the applicant an extension of time to request internal review.

2By way of Case Assessment Direction ("CAD") issued on June 12, 2013, the Tribunal directed the parties to file written submissions with respect to the issue of timeliness pursuant to s. 34(2) of the Code because the last of the two incidents complained of in the Application occurred in December of 2010, and the Application was filed with the Tribunal more than one year later, on July 13, 2012.

3For the reasons stated below I am not satisfied that the delay in filing this Application was incurred in good faith. Therefore the question of whether or not any person affected by the delay will experience substantial prejudice as a result need not be addressed. The Application is out of time and the Tribunal does not have the jurisdiction to consider it.

BACKGROUND

4The applicant self-identifies as intellectually disabled and illiterate. The respondent delivers income support and other services to disabled individuals in need who meet certain criteria under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B ("ODSP"). At various times the applicant has received ODSP income support from the respondent.

5The allegations in this Application revolve around the applicant's attempts to seek legal redress in order to change two decisions of the Director of the Ontario Disability Support Program concerning her entitlement to income support.

Rights of Appeal under the [ODSP](https://www.canlii.org/en/on/laws/stat/so-1997-c-25-sch-b/latest/so-1997-c-25-sch-b.html)

6Under the ODSP and its regulations, recipients have certain appeal rights with respect to decisions made by the Director affecting their financial entitlements. When a decision concerning entitlement is made, the Director is required to give the recipient written notice of the decision (ODSP, s. 19). If the individual disagrees with the Director's decision, he or she has 30 days to request an internal review (Ontario Regulation 222/98, s. 58(1)). This internal review step is mandatory (ODSP, s. 21). If a recipient does not request internal review, he or she has no further rights of appeal under the ODSP.

7If a recipient misses the 30 day time limit, it is possible to request an extension of time to file a request for internal review (O. Reg. 222/98, s. 58(3)). If a request for internal review is outside the 30 day time limit, the Director has the discretion to extend the time; but if the Director refuses to grant an extension of time to file the request for internal review, then the recipient has no further appeal rights under the ODSP. See Walsh v. Ontario (Disability Support Program), 2012 ONCA 463. The discretionary decision to refuse a request for extension of time for filing an internal review is not a decision that can be appealed to the Social Benefits Tribunal (ODSP, s.21(2) and O. Reg. 222/98, s. 57). It is this loss of appeal rights that is at the heart of this Application.

8When an internal review is filed, the Director is supposed to respond within 30 days (O. Reg. 222/98, s. 59(1)). If the Director responds but does not overturn the decision, the recipient then has 30 days to appeal the decision to the Social Benefits Tribunal (ODSP, s. 23(1), O. Reg. 222/98, s. 61(1)). If the Director does not respond to the internal review request, the recipient can then file an appeal with the Social Benefits Tribunal and essentially has 60 days from the date he or she filed the request for internal review to do so (ODSP, s. 20(3)(b), O. Reg. 222/98, s. 61(1)).

9At the time of the events relevant to this Application, some of the 30 day limitation periods were only 10 days. Nothing in this Decision turns on this distinction.

The Decisions that are the Basis of this Application

10In August or September of 2003 the Director issued the applicant a letter informing her that she had been overpaid ODSP benefits by several thousand dollars and would have to repay the amount. In March of 2006 the applicant's entitlement to ODSP ended when the Director determined that she was living with a spouse and had failed to declare that fact or his income. Sometime after March of 2006, the applicant either reapplied for ODSP or her benefit entitlement was otherwise restored.

11In May of 2010 the applicant visited her local community legal clinic and showed one of her monthly ODSP benefit statements to a caseworker who observed that the statement showed an overpayment balance of $6,239.39. In order to start the appeal process with respect to the overpayment, the legal clinic, acting on behalf of the applicant, then filed with the Director a request for an extension of time to file for an internal review along with a request for internal review. On May 27, 2010, the Director denied the request to extend time for the filing of an internal review. This decision refusing the extension of time for requesting internal review is the first incident of discrimination alleged in the Application.

12Despite the denial of the extension of time, with the assistance of the clinic the applicant then proceeded to file an appeal to the Social Benefits Tribunal. That appeal was subsequently dismissed on the basis that, as the Director had refused to grant the extension of time for filing an internal review, the applicant did not have the right to appeal the overpayment decision to the Social Benefits Tribunal.

13In November of 2010, again acting on behalf of the applicant, the legal clinic started the appeal process with respect to the decision made in March of 2006 to terminate the applicant's benefits. It wrote to the Director requesting an extension of time to file an internal review with respect to that decision. On December 2, 2010, the Director refused to grant the requested extension of time. This is the second incident of discrimination alleged in the Application. As with the earlier refusal to extend time for internal review, the applicant nonetheless filed an appeal with the Social Benefits Tribunal through the legal clinic. That appeal was dated December 9, 2010, and was disposed of for the same reasons as the first.

14The two appeals were heard together before the Social Benefits Tribunal on July 18, 2012. Five days prior to that, on July 13, 2012, the applicant filed this Application with the Tribunal.

ANALYSIS

15Section 34 of the Code says in part:

34. (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.

16This Application involves two allegedly discriminatory decisions or incidents, the last of which occurred on December 2, 2010. Assuming without finding that these two decisions constitute a series of events, as the Application was filed on July 13, 2012, it is out of time with respect to the limitation period set out in s. 34(1)(b) of the Code by more than 7 months.

17Pursuant to s. 34(2) the Tribunal has the jurisdiction to accept an out of time application where it is satisfied that the delay in filing the application was incurred in good faith, and will not cause substantial prejudice to a person like the respondent who is affected by the delay.

18As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner for the Tribunal to determine whether the delay was incurred in good faith. The applicant's submission states that the reason she did not file this Application within the limitation period is because of her intellectual disability and her illiteracy.

19In determining good faith the Tribunal will consider the question of whether or not Code-related reasons such as disability have impeded the applicant's ability to file an application. See Quimado v. S.A. Armstrong Ltd., 2009 HRTO 110, and Doyle v. Canarm, 2009 HRTO 674. This is consistent with the Divisional Court's decision in Pavon v. Ontario (Disability Support Program), 2013 ONSC 4309, which is about the limitation periods under the ODSP and says (at paras. 46-47):

Many disabilities have an impact on whether a person is able to respond in a timely way to various details of life. Sometimes the nature of that disability will require some accommodation for that person to respond to events or communications even where there are statutory restrictions mandating a prompt response. Some statutes explicitly recognize the need for such accommodation, For example, the Ontario Limitations Act provides that the limitation period does not run for persons who are "incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition." [Citation omitted.]

20However, in the circumstances of this Application, the assertion that the applicant was prevented from filing this Application within the limitation period for disability-related reasons is simply not supportable on the facts.

21I say this because within 7 days of the incident on December 2, 2010, the legal clinic provided the applicant with legal advice and, following her instructions, filed an appeal to the Social Benefits Tribunal. The applicant's submissions with respect to delay do not indicate why the applicant decided to wait until July 13, 2012, to give the legal clinic instructions to file this Application, but if she was capable of giving instructions to file an appeal to the Social Benefits Tribunal then she was capable of giving instructions to file this Application at the same time. Nothing in the applicant's submissions on delay would indicate otherwise. Therefore, neither the applicant's disability nor her illiteracy would appear to be related to the delay in filing this Application.

22The respondent speculates in its submission that the delay was incurred because shortly before the hearing before the Social Benefits Tribunal, the applicant realized her appeals there were likely to be unsuccessful.

23The Tribunal has stated on a number of occasions that delay incurred pursuing another legal avenue of redress will not usually be considered to be a delay incurred in good faith. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Manimalethu v. Kraft Canada Inc., 2012 HRTO 1406; Jovanovic v. City of Hamilton, 2012 HRTO 201; and Ghasemi v. 2261536 Ontario Inc., 2013 HRTO 624.

24Absent some other explanation from the applicant for the delay, it is not open to the Tribunal to conclude that the delay in filing this Application was incurred in good faith. Therefore, it is unnecessary to address the second requirement of s. 34(2) as to whether substantial prejudice will occur.

DECISION

25The Application is dismissed.