HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zachary Bonnah by his litigation guardian Gregory Bonnah
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services
Respondent
DECISION
Adjudicator: Eric Whist
Date: April 11, 2013
Citation: 2013 HRTO 604
Indexed as: Bonnah v. Ontario (Community and Social Services)
APPEARANCES
Zachary Bonnah, Applicant
Gregory Bonnah, Litigation Guardian
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, Respondent
Geoff Baker, Counsel
Introduction
1The applicant’s litigation guardian filed this Application for Contravention of Settlement (Form 18) on behalf of the applicant on August 10, 2012, pursuant to section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). The Application alleges that the respondents breached a settlement entered into by the parties to resolve a previous complaint made by the applicant and his litigation guardian to the Ontario Human Rights Commission.
2The respondents filed a Response to an Application for Contravention of Settlement (Form 19) on August 17, 2012, denying that there had been a contravention of the settlement.
3On September 17, 2012, the Tribunal issued a Case Assessment Direction scheduling a teleconference hearing in order to hear submissions from the parties with respect to the alleged contravention of settlement. A teleconference hearing was held on April 11, 2012 during which I heard submissions from both parties.
BACKGROUND
4The applicant was born in November 1991. He has a developmental disability. The applicant’s litigation guardian applied to the respondent for financial support for the applicant under the respondent’s Special Services at Home program (“SSAH”). The SSAH program, according to the respondent, provides funding directly to families with a child with a developmental and/or physical disability and who resides at home, so that these families can purchase supports that cannot be met by a service provided elsewhere in the community. SSAH is not an entitlement program set out in legislation. It provides funds to families who submit receipts for admissible expenses incurred up to an approved level of funding.
5A Memorandum of Settlement (the “Memorandum”) was entered into by the parties on January 9, 2008. Because the Memorandum is confidential, I will provide its details only to the extent necessary to explain and decide the issues before me.
6The Memorandum contains a total of seven terms. The first term of the Memorandum resolves the amount of funding the applicant was to receive under the SSAH program for the period July 2007 to July 2008.
7The applicant’s litigation guardian alleges that the respondent has contravened Terms 3 and 4 of the Memorandum. Term 3 states:
The corporate respondent has also assured the complainant that SSAH funding continues beyond the age of 18 for individuals who continue to meet all eligibility criteria. Additional funding sources from the corporate respondent may also potentially be available such as Passport and ODSP Employment Services.
Term 4 states:
The corporate respondent has also assured the complainant that it is available to assist him in completing the SSAH re-application and will continue to endeavour to ensure that he is provided information about and connected with the appropriate persons for other relevant applications for funding when he becomes 18 years of age.
8The respondent has made changes to the SSAH program. Since April 1, 2012, only children with physical and/or developmental disabilities receive funding under the SSAH program. Eligible adults (persons over the age of 18) with developmental disabilities or their parent/guardians now receive direct funding under the Passport program. Passport is a program that provides funding directly to an individual or family of an individual who is seeking community participation supports. It is not an entitlement program set out in legislation. Participants are reimbursed for admissible expenses incurred up to their approved level of funding.
9The applicant turned 18 years of age in November 2009 and so, as of April 1, 2012, is no longer eligible for the SSAH program.
THE POSITIONS OF THE PARTIES
10The applicant’s litigation guardian submits that the Memorandum has been contravened because in doing away with the SSAH program for persons over 18 years of age the respondent no longer meets its commitments under Terms 3 and 4. He submits that Term 3 of the Memorandum has been contravened because it indicates that the SSAH program is a program available to eligible persons over the age of 18, but this is no longer the case. He submits that Term 4 of the Memorandum has been contravened because it indicates that the respondent is committed to assisting the applicant’s litigation guardian with re-applying to the SSAH program, something the applicant cannot do as the applicant is now over 18 years of age and ineligible for the program.
11The applicant’s litigation guardian submits that the Passport program is inadequate to meet the needs of the applicant and that he is requesting, as a remedy, that the SSAH program be re-instituted for adults.
12The respondent submits that there has been no contravention of the Memorandum either on a factual or legal basis. It submits that Term 3 is informational in nature, that it describes the nature of programs available to the applicant at the time the Memorandum was entered into. It submits that Term 3 does not indicate that the applicant is eligible for funding or will be provided funding under the SSAH when he turns 18 years of age.
13The respondent submits under Term 4 the respondent’s stated commitment to assisting the applicant with re-applying to the SSAH program refers to re-applying for the period of July 2008 to July 2009. It submits that it also commits the respondent to endeavouring to provide the applicant with program information in the future. The respondent submits that there is nothing in the wording of this term to indicate that the respondent was guaranteeing that the applicant would remain eligible for funding under SSAH or any other program, or that the applicant would receive funding in the future under the SSAH program. The respondent submits that the underlying intent of Term 4 was to assist the applicant by pointing the applicant in the right direction in the future in order to potentially access funding under the respondent’s support programs.
14The respondent further submits that the applicant is arguing, in effect, that the respondent committed in the Memorandum to continue to provide SSAH funding to the applicant and that this commitment should