Waterman v. Ontario (Community and Social Services), 2013 HRTO 609

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne Waterman

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services (Family Responsibility Office)

Respondent

DECISION

Adjudicator: Kathleen Martin

Date: April 12, 2013

Citation: 2013 HRTO 609

Indexed as: Waterman v. Ontario (Community and Social Services)

APPEARANCES

Wayne Waterman, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services (Family Responsibility Office), Respondent

Sharlene Ziniuk, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services on the basis of disability as well as reprisal. In particular, the applicant alleges that the Family Responsibility Office (“FRO”), a division of the Ministry of Community and Social Services, is discriminating against him on the basis of disability by taking steps to enforce a court order for spousal support by garnishing his disability income and putting a lien on his automobile. Among other things, the applicant seeks “arbitration for postponement as a remedy until this matter is before a judge for a final decision”.

2By Case Assessment Direction dated May 18, 2012 (the “CAD”), the Tribunal scheduled the Application for a summary hearing. The parties filed submissions before and made additional oral submissions at the summary hearing.

Analysis and Decision

3In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about the summary hearing process at paras. 8-10:

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.

4In this case, the Tribunal directed the applicant to address the issue of whether, assuming all of the allegations to be true, the applicant’s allegations may be reasonably considered to be a violation of the Code. Given the parties’ submissions, I have also considered whether the applicant can establish a link between the actions complained of and the ground of disability.

5In this respect, the applicant’s claim is based on section 1 of the Code and the allegation that he is being discriminated against on the basis of services. While the applicant also checked off the reprisal box in the Application, he did not complete the reprisal section in the Application, nor make submissions on reprisal in the summary hearing.

6Section 1 of the Code reads in part:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of ….disability.

7The applicant argues that he is being discriminated against on the basis of disability with respect to services. While acknowledging that the statutory mandate of the FRO is to enforce support orders, the applicant argues that the garnishment and other actions taken will put him in a “quandary”. The applicant states that if his disability income from Veterans Affairs is garnished he and his common law spouse will become homeless and he will be unable to afford the medication necessary for his current condition and future health. The applicant also states that the respondent’s actions will require him (a person with significant disabilities) to seek “unnecessary employment” in order to sustain themselves regarding issues of health and well-being and that this is part and parcel as a form of harassment.

8In support of his argument the applicant relies on Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143, where the Supreme Court of Canada defined “discrimination” as:

A distinction which, whether intentional or not but based on grounds related to personal characteristics of the individual or group, has the effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

9The respondent argues that the Tribunal does not have jurisdiction to hear the Application as the FRO does not provide a service as defined by the Code, given that the applicant is seeking to challenge the decision of an adjudicative process and the subsequent enforcement of the same. In support, the respondent relies on a number of cases including Majeed v. Ontario (Community and Social Services), 2011 HRTO 975.

10In the alternative, the respondent argues that the applicant has not established that he was treated any differently from any other person required to make payments based on an enumerated ground under the Code.

11The respondent highlights that if the applicant disputes the amount being garnished, section 27(1)(c) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (“FRSAEA”), allows a support payer to seek relief regarding the amount being deducted if the court is satisfied that the payer is, for valid reasons, unable to pay. In addition, the applicant may vary the amount owing by bringing a motion to change the spousal support through a motion to court.

12I find that there is no reasonable prospect that the applicant will be able to establish that he has been discriminated against on the basis of disability.

13In essence, the applicant is seeking to challenge the enforcement of a support order. Even assuming, without deciding, that services is engaged, I find there is no reasonable prospect that the applicant can establish that he is being treated any differently from other persons owing support payments based on his disability. The only difference highlighted by the applicant was the impact on him (suggesting that he is disadvantaged by the enforcement of the order because of his alleged inability to work and earn income due to his disability). Even accepting that claim, I do not find that the applicant will be able to establish substantive discrimination since the fact of the garnishment stems from a debt owed established by court order and not a difference resulting from disability.

14Further, I note that there are mechanisms for the applicant to address the impact of the garnishment on his particular circumstances; mechanisms which I understand the applicant to be pursuing at the time of the summary hearing.

15While not expressly particularized or argued, I also find that there is no reasonable prospect of the applicant establishing a reprisal. The applicant has not asserted nor can I reasonably find that the alleged conduct was a reprisal for claiming or enforcing his rights under the Code, or otherwise related to the exercise of any rights provided in section 8 of the Code.

16For all of the above reasons, the Application is dismissed as having no reasonable prospect of success.