HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Steven McKinnon Applicant
-and-
City of Toronto Respondent
AND B E T W E E N:
Steven McKinnon Applicant
-and-
Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Community and Social Services and the Social Benefits Tribunal Respondents
DECISION
Adjudicator: Eric Whist Date: July 10, 2014 Citation: 2014 HRTO 1011 Indexed as: McKinnon v. Toronto (City)
APPEARANCES
Steven McKinnon, Applicant Self-represented
City of Toronto, Respondent Antonella Ceddia, Counsel
Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Community and Social Services Michelle Schrieder, Counsel
Social Benefits Tribunal, Respondent Baaba Forson, Counsel
INTRODUCTION
1These two Applications were filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Application 2009-03181-I, filed on August 10, 2009, alleges discrimination in relation to the provisions of services based on sexual orientation, marital status and family status and names the City of Toronto (the “City”) as the respondent. It alleges that the City wrongly determined that the applicant and his spouse’s level of income made him ineligible for Ontario Works (“OW”) benefits. It alleges that the City failed to accept that the applicant was married to a same sex partner and that their student loans should not be considered a form of income. It further alleges that the applicant’s OW caseworker initially did not know the applicant was in a same sex marriage and that when she did learn this she was disgusted.
2Application 2010-5102-I, which was filed on March 11, 2010, alleges discrimination in relation to the provisions of services based on marital status and family status. It names the City, the Social Benefits Tribunal (“SBT”) and Ministry of Community Social Services (the “Ministry”) as respondents. In February 2010 the SBT determined that the City would no longer be required to provide the applicant with Interim Assistance, which is income support that may be provided when an OW recipient is appealing a decision to the SBT related to his or her OW benefits. The SBT indicated that this was because it had determined that the applicant was no longer under financial hardship. The applicant alleges this decision was discriminatory.
3The applicant filed a Request for an Order During Proceedings (“RFOP”) along with this Application asking the Tribunal to order that his Interim Assistance be reinstated and continued as an Interim Remedy.
4On May 10 2010, the Tribunal issued Interim Decision, 2010 HRTO 1044, denying the applicant’s request for an Interim Remedy and deferring both Applications pending the conclusion of several appeals that the applicant had made to the SBT.
5On May 7, 2012, the SBT issued a final decision dismissing the applicant’s appeals.
6On August 15, 2012, the applicant filed two RFOPs asking that the Tribunal reactivate the deferred Applications and to also stay the SBT May 7, 2012 decision dismissing his appeals until the Tribunal decided his Applications.
7The City and Ministry filed responses opposing the applicant’s requests to reactivate on the basis the requests were untimely. The respondents also argued that the applicant’s allegations concerning his rights under the Code were appropriately dealt with by the SBT in its May 7, 2012 decision. They further asserted that the Tribunal lacks jurisdiction to stay or review decisions of other tribunals.
8On November 7, 2012, the Tribunal issued a Case Assessment Direction (CAD) directing that a preliminary hearing be held to consider whether the Applications should be reactivated given that the requests to reactivate were made beyond the time limit the Tribunal sets for such requests. The CAD also indicated that there was an issue of whether the Tribunal should dismiss the Applications pursuant to section 45.1 of the Code on the basis that the SBT had already appropriately dealt with the substance of the Applications.
9The Tribunal asked for and received written submissions from the parties. A preliminary hearing was held by teleconference on February 27, 2014.
DECISION
10The Applications are reactivated.
11Application 2009-08131-I is dismissed pursuant to section 45.1 of the Code.
12Application 2010-5102-I is dismissed as outside the Tribunal’s jurisdiction because it is subject to the doctrine of judicial immunity.
REQUEST TO REACTIVATE
13The applicant filed requests to reactivate his Applications on August 15, 2012. This is approximately 100 days after the SBT rendered its decision on May 7, 2012. Rules 14.3 and 14.4 of the Tribunal’s Rules of Procedure provide that where a party wishes to proceed with an Application which has been deferred, the party must file a request for an order with the Tribunal and deliver it to the other parties within 60 days after the conclusion of the other proceeding, and must include a copy of the decision or order in the other proceeding, if any.
Submissions
14The applicant initially submitted that the only reason for the delay in the filing of his requests to reactivate was because he did not receive the SBT’s May 7, 2012 decision in the mail on a timely basis. The applicant was unable to indicate exactly when he did receive the SBT’s decision.
15The City then submitted that any delay must have been brief because it identified an email from the applicant to the Tribunal dated May 15, 2012 indicating he was providing a copy of the SBT’s May 7, 2012 decision to the Tribunal. This email was before me. The City submitted that, accordingly, the applicant had not adequately explained the delay in filing his requests to reactivate.
16The City submitted that the applicant was aware of the need to file his requests to reactivate within 60 days of the SBT’s decision as the Tribunal had written him on July 14, 2010, May 13, 2011 and December 2, 2011 of the need to meet the requirements of Rules 14.3 and 14.4 if he wished to reactivate his Applications. The Ministry submitted that the applicant’s requests to reactivate should be denied given that the applicant had failed to provide a good reason for the delay.
17The respondents were asked to identify the prejudice to them arising from the applicant failing to file his requests within the 60 day time limit. The City submitted that the delay led it to believe that there would be no request to reactivate and subsequently it was obliged to make additional efforts to respond to the request when it was eventually made. The Ministry submitted that it was prejudiced by the fact that the applicant could continue the process notwithstanding that his requests were late and that the Ministry had to continue to act without any predictable finality to this process. The SBT submitted that the Tribunal’s Rules were in place for a reason, and that extending an established time limit is, by its nature, prejudicial. In his reply submissions the applicant briefly referred to the difficulties he had in meeting the time limits set out in the Tribunal’s Rules given he was unrepresented and had a learning disability.
Analysis
18In Marc-Ali v. Graham, 2012 HRTO 502, the Tribunal helpfully stated the following principles when considering whether to allow a request for reactivation made beyond the 60 day time limit (paras. 20, 26 and 27):
The principles to apply in extending time limits under the Rules should be similar to the principles established under section 34 of the Code: has the delay in meeting the time limits in the Rules been incurred in good faith (in Baker, this requirement was worded slightly differently, but I see no significant difference between “good faith” and “a good reason”); and will any substantial prejudice to the respondents result from extending the time limit. The length of the delay is a factor in assessing the potential prejudice to the respondents. In addition, the Tribunal should be mindful of Rule 1.1, which sets out the need to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of an Application.
In cases involving timeliness under section 34 of the Code, the Tribunal has concluded that it does not need to examine the prejudice to the respondents in allowing an application to proceed, in the absence of a good faith reason for the delay. See Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579. However, in the case of timeliness under the Rules, adjudicators have considered the prejudice to the respondents in coming to a determination on whether to exercise discretion to extend the time limit. In Vinodolac, the adjudicator accepted that some prejudice for the respondents might result from the late notice of the reactivation Request (in that case more than five months). In this case, the delay is two and a half months. In Vonella, the adjudicator allowed the extension because the delay was short (2 days) and because the respondents had not alleged any specific prejudice to their ability to respond to the Application.
Although delay, by itself, may result in a deemed prejudice to the respondent, in my view, such a delay would need to be significant. In most cases, the respondent should have to demonstrate specific or actual prejudice to its ability to respond to the Application. In this case, I do not find that a delay of two and a half months is sufficient, by itself, to demonstrate prejudice. The respondent has relied on the fact that a witness is no longer employed by it and may be difficult to reach, as a specific prejudice. This is not a prejudice that arises out of the delay in the reactivation Request. It may be a prejudice that arises out of the deferral itself. However, that is not a relevant factor in determining whether or not prejudice will result from extending a time limit for reactivation.
19The applicant initially submitted that the only reason for the delay was because he did not receive a copy of the SBT’s May 7, 2012 decision on a timely basis. I do not find this to be a good reason given that the information before me was that he provided a copy of the SBT’s decision to the Tribunal on May 15, 2012. I further find that the applicant’s brief added reference to not having counsel and to having a learning disability does not, absent further information, explain the delay.
20On the other hand I find that the delay in the filing of the requests to reactivate of approximately 40 days is not particularly lengthy. And, importantly, I do not find that the respondents have established that they were prejudiced in any meaningful way by this delay. I agree with the Tribunal in Marc-Ali v. Graham that delay, by itself, may result in a deemed prejudice to a respondent but that in most cases, a respondent should have to demonstrate specific or actual prejudice to its ability to respond to an Application. I do not find that the respondents in the present case have demonstrated such a prejudice. Given all the circumstances, I am prepared to grant applicant’s request to reactivate his Applications.
APPLICATION 2009-08131-I
21The issue is whether Application 2009-08131-I should be dismissed on the basis that a proceeding before the SBT has already appropriately dealt with the substance of this Application.
Background
22According to the materials before me the applicant began receiving OW benefits in 2005. In May 2009 he informed his City of Toronto OW caseworker that he was receiving Ontario Skills Development Training Program (“OSDTP”) funding. This funding included a designated amount for living expenses. The caseworker considered the applicant’s ODSTP funding for living expenses to be income and subsequently determined that the applicant’s monthly income exceeded the income that he was entitled to as a single person receiving OW benefits. The applicant was informed he would no longer be eligible for OW assistance.
23The applicant then informed his caseworker that his status had changed, that as of February 7, 2009, he was in a marriage with a same sex spouse and that he requested that his eligibility for OW benefits be reassessed on the basis of being part of a family unit. The applicant and his spouse were subsequently required to submit information about their combined income to determine their eligibility. The OW case worker determined that the OSDTP funding the applicant received for living expenses and the Ontario Student Assistance Program (“OSAP’) funding his spouse received for living expenses constituted income and that their combined income exceeded their monthly entitlement and that this made them ineligible for OW assistance effective July 1, 2009.
24The applicant appealed these decisions to the SBT contending that they were discriminatory. He appealed the decisions that he was ineligible for assistance due to his income as a single person exceeding his OW entitlement and that his OW was being cancelled because the applicant and his spouse’s combined income as a married couple exceeded their OW entitlements.
25Pursuant to the SBT rules and procedures the SBT held separate hearings; first a Stage 1 hearing to consider the applicant’s entitlement to benefits and then a Stage 2 hearing that was specifically scheduled to consider the applicant’s claims that he was subject to discriminatory treatment. The City participated in these hearings as the respondent.
26The SBT issued its Stage 1 decision on January 11, 2011, and its Stage 2 decision on May 7, 2012. The SBT dismissed the applicant’s Stage 1 appeal finding that the applicant was not entitled to OW benefits as a single person or as part of a married couple given his and his partner’s level of income. The SBT was satisfied that the applicant and his spouse’s incomes were correctly calculated. It did not accept the applicant’s arguments that the amounts he and his spouse received from their ODSTP and OSAP funding for living costs should be exempt as income as it was satisfied that this type of funding was defined as income under the Ontario Works Act (“OWA”) and its Regulations.
27The SBT dismissed the applicant’s Stage 2 appeal concluding that the applicant had not met the burden on him to establish differential treatment on the basis of a ground of discrimination identified in the Code. It determined that the applicant’s fundamental claim was that the funding he and his partner received as students should not have been considered income and that this does not constitute discrimination under the Code. It noted that the applicant was essentially restating the issue that was raised and addressed at his Stage I hearing. It noted that when the applicant was asked to identify a specific Code related ground that he was relying on he indicated “financial” and when provided with a copy of the Code the applicant was unable to identify a Code ground for his complaint.
28In its decision the SBT also noted that under the OWA’s Regulation 1 a spouse is defined to include a same sex partner. It further noted that the applicant explicitly acknowledged that he was not arguing that any differences in the way single and married persons might be treated under the OWA and its Regulations is discriminatory. The SBT went on to state that while the applicant did not raise this issue that it was prepared to find, based on SBT jurisprudence and the arguments before it, that the distinction in how income is considered for single persons and spouses corresponds to their different needs and circumstances and is non-discriminatory.
29The applicant did raise a further issue at his Stage 2 hearing. He told the SBT that when he told his caseworker that he was in a same sex marriage she seemed appalled by this news. The SBT’s decision records the following:
The appellant said that when he first told the Ontario Works worker about his same sex marriage it became a “huge issue” and she seemed “appalled” by it. He said that his worker told him that he would have to combine his file with his spouse’s file. The Tribunal panel asked the Appellant to clarify whether his discrimination claim was against this particular worker to which he replied “yes”. The Tribunal asked whether the same sex marriage was accepted once he took in all requested verification information. He replied, “yes” noting that the supervisor became involved. When asked if he had brought any documentation or evidence to the hearing to support this particular claim he replied “no”, noting that while his worker acted “appalled” about his marriage, ultimately this had nothing to do with the decision regarding his benefit unit’s financial eligibility for Ontario Works (p.5)
30The SBT further noted that the applicant had not previously raised this issue at any time in the SBT process leading up to his Stage 2 hearing, that the applicant had failed to give notice of this issue to the SBT and that the applicant had failed to provide any particulars of this allegation, all steps that are required by the SBT appeals process. It concluded its decision by stating that it was not making a specific finding in regards to the applicant’s claim of discrimination against his caseworker as this matter was not properly before the SBT.
Submissions
31The parties rely on both their oral and written submissions. I note the parties referred to written submissions dating back to 2009 that contain relevant arguments. I further note the respondents share and rely on many of the same submissions. That said, I need only refer briefly to these submissions for the purposes of making my decisions.
32The applicant submits that the SBT’s May 7, 2012 decision did not deal with his allegation that his OW case worker was appalled by the fact he was in a same sex marriage, an allegation that he submits forms part of Application 2009-03181-I. He submits he should be allowed to proceed with this Application or alternatively his specific allegation that his caseworker was appalled when she learned he was in a same sex marriage.
33The respondents submit that the SBT appropriately dealt with the substance of Application 2009-03181-I and that, accordingly, it should be dismissed pursuant to section 45.1 of the Code.
34The respondents submit that the SBT has the mandate and responsibility to consider allegations of discrimination under the Code. They submit that the SBT held a hearing specifically to consider the applicant’s allegations of discrimination related to how his and his spouse’s incomes were considered, the central allegations in Application 2009-03181-I. They submit that this hearing afforded the applicant ample opportunity to bring forward his allegations of discrimination before the SBT. They submit that the SBT heard and considered the applicant’s human rights claims and that the decision shows that the SBT had a firm understanding of the applicant’s claim and the human rights issues it raised.
35The respondents submit that the SBT did determine that the case worker properly applied the rules that would apply to both same sex and opposite sex households and that the applicant’s allegation that his case worker looked appalled is simply a bald assertion that the applicant failed to substantiate at his hearing before the SBT and that the nature of this allegation did not warrant further consideration by the Tribunal.
36The respondents rely on a number of cases, in particular the Supreme Court of Canada’s decision in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”).
Analysis
37Section 45.1 of the Code states:
The Tribunal may dismiss an Application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.
38Two issues arise under section 45.1. One, whether there has been another “proceeding”; and two, if so, whether it has appropriately dealt with the substance of the Application.
39There was no dispute that the applicant’s proceedings before the SBT constituted a proceeding for the purposes of section 45.1. The issue is whether the applicant’s proceedings before the SBT appropriately dealt with the substance of some or all of the applicant’s allegations in Application 2009-03181-I.
40In assessing whether the substance of an Application already has been “appropriately dealt with” in another proceeding, the Supreme Court of Canada in Figliola identified the following three factors (at para. 37):
. . . whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself.
41The SBT constitutes a concurrent jurisdiction authorized to decide human rights issues. This is clearly confirmed in the Supreme Court of Canada’s decision in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, 2006 SCJ No. 14. I am satisfied that the applicant’s principal complaint to the Tribunal that he was somehow differentially treated when he and his spouse were determined to be ineligible for OW benefits because of their student related income was the legal issue that was duly considered by the SBT who determined that there were no violations of the applicant’s rights under the Code. I am further satisfied that the applicant had ample opportunity to bring forward and explain his allegations to the SBT and to explain why he was allegedly treated in a discriminatory manner. For these reasons these allegations are dismissed pursuant to section 45.1.
42I further find that the applicant’s additional complaint to the Tribunal, that his case worker was disgusted by his informing her that he was in a same sex marriage has been appropriately dealt by the applicant’s proceedings before the SBT even if the SBT did not ultimately render a formal finding in relation to this issue.
43The SBT conducted a special hearing to specifically address the applicant’s human rights issues. It is significant in my view that the SBT process allows for and indeed requires a party making an allegation of discrimination to specify what their allegations are. The SBT’s May 7, 2012 decision identifies the specific, comprehensive steps it took in order to ensure that the applicant did present his allegations of discrimination:
As per the Social Benefits Tribunal’ Practice Direction 6-Procedure Regarding Human Rights Issues or Challenge, the Tribunal wrote to the Appellant on February 5, 2010 confirming that his appeal was proceeding to his human rights challenges to the Tribunal within 30 days. The letter requests that he provide certain information as referred to in Practice Direction 6 including
The listed area(s) of the alleged discrimination under the Code;
The listed ground(s) of the alleged discrimination under the Code;
The relationship between the claim of the alleged discrimination and the ground(s) selected;
The reason(s) for the alleged discrimination;
The evidence to be relied upon in support of the claim of the alleged discrimination and:
The desired remedy or resolution
44The SBT’s Decision goes on to indicate that three prehearing conferences were held with the applicant to clarify what allegations the applicant wished to proceed with. The Decision identifies that on March 1, 2010 the applicant identified the following allegations:
- Discriminatory unfairness for Post-Secondary Students in receipt of Ontario Skills Training Funding
- Discriminatory of Spouse OSAP income;
- Cancelling Assistance not as a single person and discriminatory for Same Sex Marriage
45Then at the hearing the applicant raised the further allegation that his case worker was appalled when he revealed that he was in a same sex marriage. Even though this was not previously identified as an allegation of discrimination the applicant was afforded the opportunity at his hearing to refer to evidence he had in support of this allegation. He indicated he had no further evidence. According to the SBT’s decision the applicant also indicated that this allegation had no bearing on the decision to deny him OW benefits based on his and his partner’s income, the act of alleged discrimination he did identify to the SBT.
46The Tribunal has held that a party is normally expected to bring their entire case forward and not split it up into several pieces, adding to the cost and uncertainties associated with duplicative litigation. See Cunningham v. CUPE 4400, 2011 HRTO 658 at para. 58. I am of the view that the SBT through its prehearing process and at its hearing provided the applicant with ample opportunity to raise all his human rights concerns including his allegations of discrimination about his case worker. And at the hearing it did consider the applicant’s allegation that his case worker appeared appalled by his being in a same sex relationship. It did determine that the applicant was not offering further evidence in relation to this allegation and that this allegation was not linked to the applicant’s central claim that his and his spouse’s income was not appropriately considered. In my view any failure to have this allegation more comprehensively considered was that of the applicant’s not the SBT or its hearing process. In my view the SBT appropriately dealt with this allegation as it was presented and there is no basis for this part of the Application to proceed before the Tribunal.
Application 2010-05102
47Application 2010-05102-I alleges that the SBT’s decision in February 2010 to no longer provide the applicant with an Interim Allowance was discriminatory based on his family and marital status.
Background
48The SBT may, pursuant to Section 30 of the OWA, order an administrator (in this case this would be the City) to provide an OW applicant or recipient who has appealed a decision to the SBT regarding his or her benefits or eligibility with financial assistance in the form an Interim Allowance. The SBT may make such an order if it is satisfied that the person will suffer financial hardship during the period needed for the SBT to complete its review and issue its decision. An applicant/recipient may receive this interim assistance only so long as they continue to meet all the conditions of eligibility for assistance other than a condition relating to the issue under appeal. In the event the applicant/recipient is unsuccessful in their appeal their Interim Assistance payments can be reclaimed as overpayments.
49It appears from documents that were before me that the applicant initially did receive an Interim Allowance after he appealed several decisions including the decision that he and his spouse would no longer be eligible for OW benefits after July 1, 2009.
50In February 2010 the SBT issued an Interim Assistance Cancellation Order to the applicant having determined that the applicant was no longer in financial hardship. The applicant subsequently requested that his Interim Assistance be reinstated. This request was denied as was a further request by the applicant that the SBT reconsider its decision. The SBT indicated in its correspondence with the applicant that it remained of the view that the applicant was no longer in financial hardship. I further note that there were documents submitted by the City to the SBT in response to the applicant’s request for Interim Assistance that opposed the applicant’s request.
51The applicant filed his Application on March 11, 2010. The respondents have not been required to file Responses to this Application given the Tribunal’s May 10, 2010 Interim Decision, 2010 HRTO 1044 deferring both his Applications.
Submissions
52The applicant submits that he should be allowed to pursue Application 2010-05102-I before the Tribunal. He submits that since the SBT has not previously dealt with his allegations of discrimination related to its decision to deny him Interim Assistance there is no basis to dismiss this application pursuant to section 45.1 of the Code.
53The respondents submit that the Tribunal should dismiss this Application as it does not have the jurisdiction to review decisions made by other Tribunals. The respondents rely on several Tribunal decisions for this proposition including McKinnon v Ontario (Community and Social Services), 2009 HRTO 1161 and Christianson v. Attorney General (Ontario), 2009 HRTO 840.
Analysis
54The applicant is alleging that the SBT’s decisions denying him Interim Assistance are discriminatory. In making this allegation the applicant is contending that the SBT denied him a benefit allowed under the OWA and in so doing denied him a service under Section 1 of the Code.
55However, the Tribunal has stated that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity: see Cartier v. Nairn 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial and quasi-judicial actors are free to execute their decision-making duties with independence and without fear of consequences. The Tribunal has found that decisions made by tribunal such as the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) and the Ontario Labour Relations Board (“OLRB”) are protected by the doctrine of judicial immunity, See, for example, Higginson v. Workplace Safety and Insurance Appeals Tribunal, 2010 HRTO 111, Thomson v. Ontario Secondary School Teachers’ Federation, 2011 HRTO 116.
56More recently in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, (“Seberras) a three person panel reviewed the Tribunal’s case law to consider whether the provision of a statutory benefit might be considered a service. In Seberras the Tribunal did conclude that the provision of a statutory benefit can be a service and that the denial of that benefit may violate the Code. But the panel in Seberras went on to state that “The Tribunal does not have jurisdiction over an Application against a neutral third party deciding a dispute between others when the doctrine of judicial immunity applies.”
57I am satisfied that in the present instance the SBT’s decision to deny the applicant’s request for Interim Assistance was an adjudicative decision made as a neutral third party. It determined the City would not be required to provide this assistance to the applicant. As such the SBT’s decision is protected by the doctrine of judidical immunity and consequently Application 2010-5102-I is dismissed as outside the Tribunal’s jurisdiction.
ORDER
58The Tribunal makes the following order:
Applications 2009-03181-I and 2010-05102-I are reactivated
Application 2009-03181-I is dismissed pursuant to section 45.1 of the Code
Application 2010-05102-I is dismissed as outside the Tribunal’s jurisdiction because of the doctrine of judicial immunity.
Dated at Toronto, this 10th day of, July 2014.
“Signed by”
Eric Whist Member