HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lubov Volnyansky
Applicant
-and-
The Regional Municipality of Peel
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: Volnyansky v. Peel (Regional Municipality)
APPEARANCES
Lubov Volnyansky, Applicant
Self-represented
The Regional Municipality of Peel, Respondent
Ann Dinnert, Counsel
1This Application alleges discrimination with respect to services because of family status, marital status, and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2Specifically, the applicant alleges that the respondent, in assessing her entitlement to benefits under the Ontario Works Act, 1997, S.O. 1997, c. 25, Schedule A, as amended (“OWA”) did not recognize her as a separated parent with three dependents, and in that regard improperly calculated her shelter allowance which created an overpayment which it then threatened to collect. The issue went before the Social Benefits Tribunal (“SBT”) which denied both her appeal in decision no. 0712-13291 on February 2, 2009 (“the SBT decision”) and her request for reconsideration of the SBT decision in decision no. 0712-13291R on November 4, 2009 (“the SBT reconsideration decision”). During the SBT reconsideration hearing, the applicant raised Code issues before the SBT.
BACKGROUND
3Initially, the applicant named the respondent and Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services (“the Ministry”) as respondents. In Interim Decision, 2010 HRTO 1171 (“the first Interim Decision”), the Tribunal removed the Ministry as a respondent.
4In Interim Decision, 2010 HRTO 1771, the Tribunal stated that it would schedule a half-day conference call to determine whether the Application should be dismissed in accordance with section 45.1 of the Code on the basis that the SBT had already appropriately addressed the substances of the Application. The conference call hearing was converted to an in-person hearing and scheduled for September 17, 2010. The parties were directed to file submissions in advance of the hearing. Included in the respondent’s submissions were a Notice of Appeal and Factum which the applicant had filed with Ontario’s Divisional Court in relation to the SBT reconsideration decision.
5Upon review of those submissions, the Tribunal issued a Case Assessment Direction (“CAD”) prior to the hearing in which it advised the parties to be prepared to address the additional issues of deferral because of the applicant’s proceedings before Divisional Court, and whether the Application was filed outside the one-year limitation period required by section 34(1) of the Code, and, if so, whether the applicant’s delay in filing her Application was made in good faith as required by section 34(2). The Tribunal would also hear the section 45.1 submissions.
6Both parties attended the hearing and made submissions pertaining to these three issues. The applicant had requested a Russian interpreter for her participation in the hearing, which was provided by the Tribunal.
7Following the hearing on these preliminary issues, the Tribunal deferred the Application pending the conclusion of all the Divisional Court proceedings. See Volnyansky v. Peel (Regional Municipality), 2011 HRTO 833.
8The applicant filed a Request for Order During Proceedings (“RFOP”) advising that the Divisional Court proceedings had concluded, as well as her subsequent appeals to Ontario’s Court of Appeal (“OCA”) and to the Supreme Court of Canada (“SCC”) and requesting that her Application be re-activated. The respondent filed a Response to the RFOP opposing the applicant’s request to re-activate. The applicant filed submissions responding to the respondent’s Response to the RFOP.
9The Tribunal granted the applicant’s request to re-activate in Interim Decision, 2013 HRTO 738 (“the re-activated Interim Decision”). In granting this request, the Tribunal noted, at para. 8:
While the applicant did not file her Request to Re-activate within 60 days of the conclusion of the Divisional Court proceedings, she did file them within 60 days of the conclusion of the Supreme Court of Canada proceedings. Given that the applicant sought leave to appeal the Divisional Court’s decision to the Court of Appeal and to the Supreme Court of Canada, in these circumstances the Tribunal would have continued to defer the Application pending completion of the leave applications. As those proceedings are now complete, it is appropriate to re-activate the Application.
10The Tribunal also noted, in para. 9 of the re-activated Interim Decision, that since the hearing, the SCC had issued British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, which had been applied by the Tribunal in section 45.1 determinations, including Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297. The SCC had also issued Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 which addressed issue estoppel in multiple proceedings. The Tribunal also drew the parties’ attention to the SCC decision of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 which also addressed issue estoppel.
11The Tribunal stated that it was appropriate to schedule a further hearing date to hear the parties’ submissions on the applicability of Figliola and issue estoppel to the Application. It directed the parties to file any additional submissions prior to the scheduled hearing date.
12The applicant subsequently filed a RFOP seeking to add the Minister of Community and Social Services and the Director of Ontario Works as respondents to her Application. The Tribunal denied the applicant’s request in Interim Decision, 2014 HRTO 520. In doing so, the Tribunal noted that it had dismissed the Application against the Ministry in the first Interim Decision, that there was no distinction between the applicant naming the Ministry as a respondent versus naming the Minister as a respondent, and that to allow the applicant to add the Minister at this stage would amount to an abuse of process. It also determined that it would be inappropriate for the applicant to name the Director of Ontario Works again as a respondent given that it had been identified earlier in her Application and grouped with the Ministry as a respondent.
13An in-person hearing was scheduled for August 29, 2014 for the Tribunal to hear submissions about the SCC decisions and issue estoppel and both parties participated. A Russian interpreter was provided. The applicant told the Tribunal that she wanted the Tribunal’s opening comments to be translated, which they were, and would only require further interpretation when she did not understand. She would indicate when she did not understand. The applicant’s submissions were made, by herself, in English, and the respondent’s submissions were translated.
14The applicant expressed some concern about the Tribunal hearing delay submissions at this hearing. After some discussion, I stated that I would only hear submissions about section 45.1 of the Code and issue estoppel and then issue a decision pertaining to those issues. I explained that in the event that the Application was permitted to continue, submissions about delay (that being, whether the Application was filed beyond the one year limitation period required by section 34(1) of the Code, as identified in the CAD) could be made at a later time. There had been no ruling about possible delay as the Application had been deferred because of the court proceedings.
15The applicant also queried who submitted the SCC decisions that were referenced in the re-activated Interim Decision. I responded that the Tribunal is bound to follow decisions that have been issued by the SCC and that during the period between when the Application was deferred and the applicant’s request to re-activate the Application, 2 SCC decisions, Figliola and Penner, were issued. The Tribunal brought these decisions, and the others noted above, to the parties’ attention so that they would have an opportunity to make submissions about these SCC decisions.
16The applicant stated that she was missing two pages of the respondent’s Response to her RFOP seeking re-activation. When I reviewed the Tribunal copy of the respondent’s Response to the RFOP, I noted that the submissions were double-sided, but the applicant’s copy had only captured one of the sides. Notwithstanding that the Tribunal had already granted the applicant’s request to re-activate over the respondent’s objections, the respondent’s complete Response to the RFOP was copied for the applicant and she was given time to review it prior to proceeding further. The applicant agreed that 15 minutes was a sufficient period of time for her to review the two missing pages.
17Just after providing the applicant with these missing pages, and approximately one hour into the hearing, I noticed that the applicant appeared to be recording the proceeding. I asked the applicant if she was recording the hearing to which the applicant said, “Yes, of course”. The applicant had not previously requested permission to record the hearing despite my opening comments confirming that the hearing was not recorded or transcribed and despite the Tribunal’s Practice Direction on Recording Hearings which states that a party who wishes to record the hearing must first obtain the consent of the Tribunal. The respondent did not oppose the applicant’s recording the proceedings. I permitted the applicant to record the hearing subject to the following restrictions, which are from the Practice Direction and which were identified as such and read out:
If a party wishes to record a hearing to supplement his or her notes, he or she must get the permission of the panel and provide a copy or any recording or transcription to the other parties and the HRTO (on a USB device or CD). Such recordings or transcriptions do not form part of the HRTO’s record of proceedings, including the record filed in court in respect of any application for judicial review. The recording or transcription may not be publicized or used for any purpose other than in the proceeding before the Tribunal.
18At this point, I heard the parties’ submissions, starting first with the applicant, then the respondent, and then the applicant responding to the respondent’s submissions. The applicant interrupted the respondent’s submissions several times. Each time I reminded her that she could not interrupt and she would have the opportunity to make reply submissions following the respondent’s submissions. The applicant filed additional materials prior to the hearing; the respondent had not. Both parties had filed materials prior to the September 2010 hearing date. All of this has been considered by the Tribunal, including the submissions that were made during the September 2010 hearing pertaining to the section 45.1 issue.
The applicant’s submissions
19The applicant submits that the administrator of Ontario Works, as directed by the respondent, discriminated against her on the basis of family status, marital status, sex, and reprisal when it treated her, a mother with four children, three of whom were dependants, as a single person in determining her eligibility for Ontario Works. It also discriminated against her because it treated her as one quarter of a single person and then one third of a single person.
20The applicant requests that the Tribunal not dismiss her Application pursuant to section 45.1 of the Code. She seeks protection under the Code because the discrimination was not resolved in civil procedures and she does not have a court decision finding that she was treated fairly by the administrator of Ontario Works.
21She submits that the common law doctrine of estoppel does not apply to the OWA. The OWA acts in a different regime from the British Columbia legislation which was discussed in Figliola, and Danyluk.
22The applicant recognizes that the SBT has the jurisdiction to apply the Code pursuant to Ontario (Director of Disability Support Program), v. Tranchemontagne, 2010 ONCA 593. She submits that she brought her human rights issues to the SBT’s attention during the reconsideration hearing, but the SBT reconsideration decision did not address her human rights issues. Therefore, she submits, the human rights issues that are raised in her Application have not been judicially determined and there is no issue estoppel.
23Further, she submits that the issue before SBT was about an overpayment which, on paper, indicated that she was responsible for paying as it was based upon Ontario Works treating her as a single person and not recognizing her as a parent with three dependants. While the SBT decision affirmed that while there was an overpayment, it should not be collected. The SBT reconsideration decision calculated a different overpayment amount and then decided that it should be collected. The applicant has subsequently received correspondence from Ontario Works to collect the overpayment amount. She submitted that this is very unfair and she was shocked that Ontario Works did not accept the SBT decision. The applicant also submits that the decision to collect the overpayment is inconsistent with the recent OCA decision in Surdivall v. Ontario (Disability Support Program), 2014 ONCA 240 (“Surdivall”). It was later determined that she was ineligible for Ontario Works. She submits that as a former recipient of Ontario Works benefits, she has no right to appeal the SBT decision or the STB reconsideration decision for recovery of the overpayment. She filed her Application for protection from the Tribunal because Ontario Works does not recognize the SBT decision that the overpayment amount should not be collected.
24There is a right of appeal to the courts from SBT decisions on questions of law. The applicant made a mistake of filing a claim in the Superior Court about the SBT reconsideration decision. That claim was dismissed because the judge determined that he did not have the discretion to hear it. Therefore, if Figliola applies, the applicant submits, the fact that she chose the wrong forum in which to pursue her human rights issues should not be fatal to her Application.
25The applicant also submits that the court proceedings were unfair, and that apart from the OCA decision which she claims reduced the amount of the overpayment, she received bad judgments from them. She claims that the administrator of Ontario Works has not accepted the OCA’s decision and she has obtained some legal assistance with respect to this issue. The court proceedings were about the overpayment, not about the human rights issues, and therefore no decisions have been made about the human rights issues. The principle of estoppel cannot occur because Ontario Works did not accept the decision of the OCA.
The respondent’s submissions
26The respondent commenced its submissions by noting that the applicant raised a number of new issues that had not been previously raised or identified in her Application, but its submissions would focus on the issues raised in the Application. The respondent submitted that Ontario Works did not recognize the applicant as having three children as dependants is the main issue in the Application and as stated in the applicant’s submissions.
27The respondent pointed out that the applicant appealed that determination to the SBT. The SBT decision determined that the administrator was correct to determine that the rent calculation should be adjusted to reflect the fact that the applicant’s children were also on her lease, but that the children were not dependants under the OWA. The SBT decision found that the administrator calculated the benefits properly and, the respondent agrees that the SBT decision also ruled that the overpayment should not be collected.
28The applicant then sought a reconsideration of the SBT decision and a reconsideration hearing was held. In the SBT reconsideration decision, the respondent submits, the SBT concluded that Ontario Works was correct to divide the shelter costs among the number of people who were living in the unit and the SBT ruled that the overpayment, which was recalculated to be divided by three rather than four residents, should be collected.
29To the extent that the applicant has an issue with whether or not her children are considered dependents, the respondent submits, that is an issue with the application of the OWA and not the actions of the respondent. The respondent simply applied the provisions of the OWA.
30The respondent submits that the SBT, which by statute has jurisdiction to interpret and oversee the application of the OWA, has dealt with the substance of the issues that the applicant has raised in her Application. The SBT also has the jurisdiction to consider human rights issues. The Application should be denied pursuant to section 45.1 of the Code.
31Furthermore, the respondent submits that the conditions for issue estoppel are also met. The parties before the SBT were the same as those before the Tribunal; the SBT proceeding was a judicial proceeding where the applicant had the opportunity to present her case and be heard; and the SBT decision was a final decision within the expertise of the SBT. Appeals from SBT decision go to Divisional Court on questions of law, not to this Tribunal.
32The respondent takes the position that the Tribunal should not exercise its discretion to allow the Application to continue as there is no real injustice revealed in the SBT proceedings. The SBT decision and SBT reconsideration decision indicate that the SBT heard the applicant and considered her position; it rendered its decisions and there is no evidence to impugn or criticize their procedure.
The applicant’s submissions responding to the respondent’s submissions
33In her reply submissions, the applicant repeated that she was satisfied with the SBT decision that did not require the overpayment to be collected, and did not proceed with the SBT reconsideration with the intent or wish to be told that the overpayment would now be collected. She filed her Application with the Tribunal for protection after receiving correspondence from Ontario Works stating its intention to collect on the overpayment amount. She noted that the OCA has confirmed her requirement to pay the overpayment.
34She reiterated her previous submission that she raised human rights issues during the SBT reconsideration hearing, specifically that it was discriminatory to treat a single person as a third of a person (to reflect her children). She is the mother of four children, three of whom were dependants, and it is a human rights issue not to be recognized on this basis. The SBT reconsideration decision did not address the human rights issues she raised.
35Further, the applicant stated that she had raised concerns about the SBT reconsideration decision not reflecting her human rights issues with the SBT’s chair, but received no response.
Law and Analysis
Section 45.1
36Section 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.
37There are two issues to be determined here: whether hearings before the SBT constitute proceedings within the meaning of section 45.1; and, if they do, whether the SBT decision and SBT reconsideration decision appropriately dealt with the substance of the allegation of discrimination because of marital status or family status.
Are SBT proceedings a “proceeding” within the meaning of section 45.1 of the Code?
38I am satisfied that the SBT proceedings were proceedings within the meaning of section 45.1 of the Code. The SBT is an independent adjudicative tribunal, established pursuant to the OWA, to adjudicate appeals filed by people who disagree with a decision that affects the amount of their eligibility for the social assistance they receive under the OWA (or the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Schedule B). At the SBT merits hearing and the reconsideration hearing, the applicant attended in person, was given the opportunity to make submissions, was heard, and received written decisions addressing her issues raised in her appeal and reconsideration request. Also see Lewis v. Ontario (Community and Social Services), 2014 HRTO 1242 at para. 14.
Did the SBT proceedings appropriately deal with the substance of the Application?
39The SBT has the jurisdiction to interpret and apply the Code. This was confirmed in Tranchemontagne, above, referred to by the applicant, and upheld by the SCC. See Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14. At paras. 40 – 42, the SCC determined that the SBT had the jurisdiction to consider and apply the Code when determining an applicant’s entitlement to benefits.
40In order to determine whether the SBT proceedings appropriately dealt with the substance of the Application, it is important to consider the principles expressed by the SCC in Figliola, Penner, and Danyluk, and apply them to the issues before the Tribunal.
a) Figliola
41In Figliola, several workers in British Columbia received workers’ compensation benefits pursuant to British Columbia’s Workers’ Compensation Board’s (“the Board”) chronic pain policy. The workers also filed an appeal with the Board’s Review Division and claimed that the chronic pain policy breached British Columbia’s Human Rights Code, R.S.B.C. 1996, c. 210, as amended (“the B.C. Code”). The Board’s Review Division determined that the chronic pain policy did not violate the B.C. Code.
42The workers then filed a complaint with British Columbia’s Human Rights Tribunal (“the B.C. Tribunal”) repeating the same allegations. The Board objected to the complaint proceeding before the B.C. Tribunal and claimed that pursuant to section 27(1) of the B.C. Code, that issue had been appropriately determined by the Board’s Review Division. The B.C. Tribunal disagreed and determined that the complaints could proceed to a full hearing.
43On judicial review, the B.C. Tribunal’s decision was set aside. On appeal, the Court of Appeal concluded that the B.C. Tribunal’s decision was not patently unreasonable and restored its decision. The Board appealed to the SCC.
44The majority of the SCC summarized the interpretation of section 27(1) of the B.C. Code in the following terms at paragraphs 36 to 38:
Read as a whole, s. 27(1)(f) does not codify the actual doctrines or their technical explications, it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay. That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.
Relying on these underlying principles leads to the Tribunal asking itself 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. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.
What I do not see s. 27(1)(f) as representing is a statutory invitation either to ‘judicially review’ another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome. The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate.
b) Penner
45In Penner, released after Figliola, the SCC addressed the situation where Mr. Penner had filed a complaint under the Police Services Act (“PSA”) against two police officers alleging unlawful arrest and unnecessary use of force. He also started a civil action claiming damages arising out of the same incident. The complaints under the PSA were dismissed against the officers by both the original hearings officer and Divisional Court. The judge hearing the civil action and the Ontario Court of Appeal exercised their discretion to apply issue estoppel to bar the applicant’s civil claims on the basis of the hearing officer’s determination in the PSA complaints.
46The SCC majority held that Mr. Penner should be permitted to proceed with his civil action and found that the application of issue estoppel would result in unfairness. At para. 39, the SCC stated:
Broadly speaking, the factors identified in the jurisprudence illustrate that unfairness may arise in two main ways which overlap and are not mutually exclusive. First, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim.
47The SCC concluded that unfairness would result in Mr. Penner’s case for a number of reasons. Those reasons were summarized by a panel of the Tribunal, in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298, a case similar to Penner, although in Claybourn the applicant had filed a complaint under the PSA and the Code, rather than a civil action. At paras. 61 to 62 of Claybourn, the majority summarize the reasoning in Penner as follows:
The majority stated that unfairness in applying the doctrine of issue estoppel may arise in one of two main ways: first, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings; and second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim: para. 39.
The majority held that the facts of the case before the Court fell into the latter category. The majority found that it would be unfair to use the results of the police disciplinary process to preclude Mr. Penner’s civil action for the following reasons:
there were several provisions in the PSA that expressly contemplate parallel proceedings (paras. 50 to 52)
the reasonable expectations of the parties would not be that a disciplinary hearing where Mr. Penner had no access to a personal remedy would preclude a civil action for substantial damages (paras. 53 to 58)
Mr. Penner had no “financial stake” in the disciplinary hearing (paras. 59 to 61)
there were important policy considerations at stake in these circumstances, namely the risk of adding to the complexity and length of disciplinary proceedings by attaching undue weight to their results through applying issue estoppel or the significant risk that potential complainants will simply not come forward with public complaints in order to avoid prejudicing their civil actions (paras. 62 to 63)
applying issue estoppel against Mr. Penner would have the effect of permitting the chief of police to become the judge of his own case, with the result that his designate’s decision had the effect of exonerating the chief and his police service from civil liability, which the majority regarded as a serious affront to basic principles of fairness (paras. 64 to 68).
c) Danyluk
48In Danyluk, the SCC considered a situation where an employee filed a complaint under the Ontario Employment Standards Act (“ESA”) for unpaid commissions and wages and commenced a civil action raising the same issues before a determination of the ESA complaint was made. The ESA complaint was decided, against the employee, by an Employment Standards Officer (“ESO”) who spoke with the employee over the telephone. The employee did not appeal the ESO’s determination, but instead continued with her civil action. The motions judge and the Ontario Court of Appeal found that the civil action was barred by application of issue estoppel.
49The SCC disagreed and stated that it would not exercise its discretion to apply issue estoppel in this case as the applicant’s claim for unpaid wages and commissions, which were considerable, had never been properly adjudicated. In coming to this conclusion, at para. 24, it identified the following preconditions required for the application of issue estoppel:
(1) the same question has been decided;
(2) the judicial decision which is said to create the estoppel was final; and,
(3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
50However, the SCC also opined that there should be finality to litigation and cautioned against relitigation on the same issues. At para. 18, it stated:
The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. The appellant chose the ESA as her forum. She lost. An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.
Finality is thus a compelling consideration and judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal. However, estoppel is a doctrine of public policy that is designed to advance the interests of justice. Where as here, its application bars the courthouse door against the appellant’s $300,000 claim because of an administrative decision taken in a manner which was manifestly improper and unfair (as found by the Court of Appeal itself), a re-examination of some basic principles is warranted.
d) Application of these principles to this Application
51It is true, as the applicant submits, that the legislation that the SCC considered in Figliola was the B.C. Code and not the Ontario Code. However, the Tribunal has recognized that section 45.1 of the Code, which is set out above, is very similar to section 27(1) of the B.C. Code and the principles of Figliola can be applied to applications before the Tribunal. See, for example, Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297 at para. 4; Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443 at paras. 25 – 26; and Claybourn at paras. 76 – 77.
52According to Figliola and Penner, once it has been confirmed that concurrent jurisdiction exists to decide the human rights issues, there are three primary questions to consider in order to determine if another proceeding has appropriately dealt with the substance of the Application. These are:
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;
whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and
would it be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?
53I have carefully reviewed the materials that have been filed by the parties in this matter and I conclude that the human rights issues raised by the applicant in her Application have been appropriately determined by the SBT.
54The first of these questions has been met. The applicant had an opportunity to know the case that she had to meet in the SBT proceedings, both at the initial appeal stage which resulted in the SBT decision and at the reconsideration stage which resulted in the SBT reconsideration decision. The parties to the SBT proceedings are the same ones as those before the Tribunal.
55The second question is also met. The previously decided issue, that of whether the applicant was a single unit for the purposes of application of the OWA and whether her children were dependants and part of her unit, was squarely before the SBT both at the appeal hearing and on the reconsideration. Furthermore, the issue about the overpayment was also squarely before the SBT particularly on the reconsideration as reflected in the SBT reconsideration decision.
56The third question is also met. It would not be unfair for issue estoppel to be applied in this situation. The SBT is a specialized tribunal established by statute to address the very issues that the applicant was claiming – that of entitlement under the OWA, the amount of entitlement and upon what basis, and the issue of overpayment. The decisions of the SBT are final, subject to appeal to the courts.
57It is very clear that the applicant is upset with the SBT decisions, particularly the SBT reconsideration decision which stated that the overpayment amount would not only be recalculated but would be recovered. The principles in Surdivall do not appear to apply to the issues in dispute before the Tribunal. The applicant, in my view, has gone to considerable lengths to have that SBT reconsideration decision ruled ineffective, quashed, or overruled.
58In addition to filing her Application, she filed statements of claim before the Ontario Superior Court. One of those claims specifically pertained to the SBT reconsideration decision, including the issues of her dependants and the overpayment. From the materials filed by the parties, her statements of claim, which pertained to both the SBT reconsideration decision and another, subsequent decision of the SBT, were struck by the Superior Court as it determined that it had no jurisdiction to hear the claims. Instead, the Superior Court found that the claims should have been brought as appeals to Divisional Court. See Volnyansky v Ontario (Minister of Community and Social Services), 2010 ONSC 3084.
59Then, the applicant appealed the Superior Court decision to Divisional Court. Divisional Court dismissed this appeal, noting that an appeal of a final order of the Superior Court is to go to the Court of Appeal and transferred the applicant’s appeal to the Court of Appeal. See Volnyansky v. Ontario (Community and Social Services), 2010 ONSC 6013 (Div. Ct.).
60The Court of Appeal also dismissed the applicant’s appeal from the Superior Court’s dismissal as well as another appeal. See Volnyansky v. Ontario (Community and Social Services), 2011 ONCA 434. It is unclear what the second appeal is about. In dismissing these appeals, the Court of Appeal stated, at paras. 2 to 4:
Ms. Volnyansky expressed many complaints to us this morning about the way she has been (allegedly) mistreated in the social welfare system generally and in particular with respect to the calculation of benefits and deductions respecting her claims under the Ontario Works Act. On these appeals, however, these issues are not properly before us and cannot be decided.
The only question properly before us is whether Justice Gray erred in dismissing the two actions that Ms. Volnyansky commenced in Superior Court. We are satisfied that he did not.
On the issues as pleaded in the two statements of claim, Ms. Volnyansky’s real complaints relate to a decision of the Statutory [sic] Benefits Tribunal requiring her to repay $1,314 in benefits received under the Ontario Works Act. The Tribunal’s decision cannot be reviewed in an action. The proper procedure is to appeal the decision on a question of law to the Divisional Court or to seek judicial review of the reconsideration order, before the Divisional Court. Justice Gray was correct in striking out the statements of claim on the basis that the Superior Court of Justice has no jurisdiction by way of action over decisions of the Social Benefits Tribunal.
61The applicant sought leave to appeal from the judgment of the Court of Appeal to the Supreme Court of Canada. This was denied on March 29, 2012. See Lubov Volnyansky v. Regional Municipality of Peel, 2012 CanLII 16582 (SCC). In her Notice of Appeal for Leave to Appeal, which the applicant filed with the Tribunal, the applicant stated as a specific ground of appeal, Ground 4, “The Social Benefits Tribunal violated the order of the Supreme Court of Canada by declining to exercise jurisdiction under the Ontario Human Rights Code”.
62A separate appeal to Divisional Court about another subsequent decision from the SBT which found that the applicant was no longer entitled to Ontario Works benefits was dismissed as the court found no errors of law. See Volnyansky v. Peel (Regional Municipality), 2010 ONSC 6008 (Div. Ct.).
63In each of the above-noted court matters, the respondent in this Application was named as a defendant or a respondent.
64I am aware of yet another decision, Volnyansky v. Regional Municipality of Peel, 2014 ONSC 6193, dated October 23, 2014, that was issued by Divisional Court after the Tribunal’s hearing in August 2014 was held. While this decision was not brought to the Tribunal’s attention by the parties, it is available on, a public database, and it shows that the applicant has continued to challenge the overpayment issue addressed in the SBT reconsideration decision.
65The applicant cannot circumvent the appeal route in place for SBT decisions, either its internal process or appeals to the court, by filing an Application with this Tribunal. The Tribunal has stated in many cases that its function in a section 45.1 analysis is not to judicially review a decision by another tribunal. See, for example, Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 58.
66The applicant has submitted that she raised human rights issues before the SBT during the reconsideration, but that this issue is not referred to in the SBT reconsideration decision. I agree that the Code is not specifically referred to in the SBT reconsideration decision. However, the issue of her family status, of having three adult dependent children, and of her marital status (by referencing her single person status, her ex-spouse and child support payments) are referred to in the SBT reconsideration decision. Tranchemontagne confirms that the SBT has the ability to interpret and apply the Code to situations before it. If the applicant felt the SBT failed to adequately consider or apply the Code in its proceedings that was an issue to be raised on appeal to the Court rather than by filing an Application with the Tribunal. In fact, as noted above, in her Notice of Leave to Appeal to the Supreme Court of Canada, the applicant specifically states that she raised Code issues before the SBT. Accordingly, the Application appears to be a collateral attack on the SBT reconsideration decision.
67In my opinion, it would be unfair to permit the Application to proceed because of section 45.1 of the Code or by issue estoppel. Accordingly, it would be an abuse of this Tribunal’s processes to permit the Application to continue and accordingly it is dismissed.
Dated at Toronto, this 27th day of November, 2014.
“signed by”
Alison Renton
Vice-chair