David Martel v. Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services, 2014 HRTO 1367

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Martel

Applicant

-and-

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

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: September 15, 2014

Citation: 2014 HRTO 1367

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

APPEARANCES

David Martel, Applicant

Self-represented

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

Mimi Singh, Counsel

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.

Background

2The applicant identifies himself as a person who receives benefits from the Ontario Disability Support Program (“ODSP”), including coverage for prescription drugs. The applicant alleges that in late November 2012 he informed his ODSP caseworker that he had a pending complaint before this Tribunal for which there was a potential financial settlement. The applicant alleges that the caseworker required the applicant to sign a form to assign any funds he may receive from a settlement to the ODSP and informed him that his ODSP benefits would be cut off if he declined to sign the form. The applicant declined to sign any forms assigning to ODSP any funds he received pursuant to his application to the Tribunal that was ongoing at the time. As a result, the applicant’s benefits were placed on hold until he completed the necessary forms.

3The applicant states that he explained his circumstances to an employee at the Social Benefits Tribunal and he was provided with financial assistance and a drug card. The applicant states that as a result of the hold placed on his ODSP benefits he received his drug card eight days late, which, given his medical conditions, was potentially very serious.

4The applicant alleges that the letters the respondent sent to him informing him that his benefits were cut off were difficult for him to understand in light of his disabilities and amounted to a barrier in contravention of the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”). The applicant also alleges that the respondent’s policy of cutting off ODSP benefits for no legitimate reason also amounts to a barrier contrary to AODA.

5In its Response, the respondent noted that to be eligible for ODSP benefits a person must be a “person with a disability” as defined in the Ontario Disability Support Program Act, 1997, S.O. 1997, c.25 (the “Act”) and also meet financial eligibility criteria. The respondent states that pursuant to the Act and its regulations the Director may require a recipient, as a condition of eligibility, to agree to reimburse all or part of his or her income support when money that was due and owing or may become due and owing to the recipient becomes payable. Failure to comply with a condition of eligibility requires the Director to take steps under section 9 of the Act, which could include suspending or cancelling ODSP benefits.

6In October 2012, the applicant advised his ODSP caseworker that he had commenced an application to the Tribunal seeking compensation from the Ministry of Health and Long-Term Care. The respondent states that the applicant refused to provide further information about this application. The respondent also states that the applicant refused to sign an Agreement and Assignment of any money he might receive pursuant to the application based on legal advice he had received. The respondent submits that a request to sign Agreement and/or Assignment forms on the basis of anticipated income as a condition of eligibility for ODSP benefits does not amount to discrimination under the Code. The respondent further submits that the standards under the AODA are not separately protected rights under the Code.

Summary Hearing

7By Case Assessment Direction (“CAD”) dated April 24, 2014, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success. The Tribunal noted that the Tribunal does not have a general power to deal with allegations of unfairness and that the applicant must be able to show that he experienced disadvantageous treatment because of disability. The Tribunal also directed the parties to be prepared to address the respondent’s arguments that the Application does not make out a prima facie case of discrimination and that the Application should be dismissed because it has been appropriately dealt with by the Social Benefits Tribunal and/or as an abuse of process. The Tribunal held the summary hearing on July 22, 2014 by teleconference.

Submissions

8The applicant submitted that the respondent is aware of his cognitive limitations arising out of his medical conditions and the treatment of those conditions. In that regard, the applicant stated that he sent a neuropsychological report, dated June 14, 2011, to the respondent. The applicant also stated that he received several letters regarding the cessation of his benefits and that he was unable to understand them and did not receive an explanation. The applicant pointed to a letter he wrote to the Minister of Community and Social Services asking him to investigate the hold placed on his benefits and to inform the applicant when he could expect it to be removed. The applicant submitted that the Minister “refused to accommodate” him and never addressed his issues. The applicant submitted that he requested a copy of his ODSP file to try to understand the respondent’s actions, but was required to pay a fee for the copies. The applicant stated that he had no money to pay this fee and that the requirement to pay a fee to access one’s file was a barrier.

9When I asked the applicant how the suspension of his benefits was connected to his disability, he stated that it was unreasonable for the respondent to require him to assign funds that he might receive in his application to the Tribunal because he did not expect to receive anything. Moreover, the applicant submitted that any payment he received pursuant to his application to the Tribunal would have been exempt from assignment. The applicant submitted that the only reason the respondent treated him this way was because of his disability and that the Tribunal should have accommodated him.

Analysis and Decision

Reasonable Prospect of Success

10Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

11In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

12The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

13At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

14To prove discrimination the applicant must prove on a balance of probabilities that his or her disability was a factor in the respondent’s impugned actions. For the purposes of a summary hearing, the applicant must be able to point to some evidence in his possession, or to evidence that may be reasonably available to him that his or her disability was a factor in the respondent’s impugned actions. There is no dispute that the applicant is a person with a disability, as all ODSP recipients are, or that the respondent’s decision to place his benefits on hold was a negative experience for him. However, the applicant did not point to any evidence that he has or has reasonably available to him that suggests that his disability was a factor in the respondent’s decision. The respondent withheld the applicant’s benefits because he refused to agree to assign any money he might receive pursuant to an application to this Tribunal. The applicant pointed to no evidence that would indicate that his particular disabilities were a factor in this decision. The applicant obviously does not agree with the respondent’s decision to place a hold on his benefits and it may be that this decision was unreasonable or unfair. However, without evidence that the decision was connected to his disability it is an issue that is outside of the Tribunal’s power to decide.

15The Tribunal’s jurisdiction is to enforce the Code and, as the respondent noted, it has no jurisdiction to enforce the AODA. The applicant submitted that he had difficulty understanding some of the correspondence the respondent sent him because of cognitive difficulties arising out of his disabilities. The applicant, however, did not point to any evidence that he has or has reasonably available to him that indicates that he requested accommodation of his cognitive impairments.

16In these circumstances, I find that the Application has no reasonable prospect of success. Given this finding, it is unnecessary to address the respondent’s arguments related to the proceeding before the Social Benefits Tribunal.

17The Application is dismissed.