Volnyansky v. Peel (Regional Municipality), 2014 HRTO 520

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lubov Volnyansky Applicant

-and-

The Regional Municipality of Peel Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: April 11, 2014 Citation: 2014 HRTO 520 Indexed as: Volnyansky v. Peel (Regional Municipality)

WRITTEN SUBMISSIONS

Lubov Volnyansky, Applicant Self-represented

The Regional Municipality of Peel, Respondent No submissions filed

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of family status, marital status and reprisal or threat of reprisal.

2Specifically, the applicant alleges that the respondent did not recognize her as a separate parent with three dependants 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 and her request for reconsideration of that decision.

3An in-person hearing was held to address three preliminary issues. The first was whether section 45.1 of the Code applied on the basis that the SBT had already appropriately dealt with the substance of the Application. The second issue was whether the Application was filed outside of the one-year limitation period set 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) of the Code. The third was whether the Tribunal ought to defer the Application in light of the applicant’s proceeding before Divisional Court pertaining to the SBT appeal and reconsideration. Both parties attended the hearing and made submissions on these issues.

4Following the hearing on the preliminary issues, the Tribunal deferred the Application pending the conclusion of all the Divisional Court proceedings.

5In an Interim Decision, 2013 HRTO 738, the Tribunal re-activated the Application based upon the applicant’s request. It also drew the parties’ attention to the Supreme Court of Canada decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, which had been applied by the Tribunal in section 45.1 determinations, as well as Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, which addressed issue estoppel. The Tribunal stated that it would schedule another in-person hearing to hear the parties’ submissions on the applicability of Figliola and issue estoppel.

6The applicant filed a Request for Order During Proceedings (“RFOP”) in which she now seeks to add the Minister of Community and Social Services and the Director of Ontario Works as respondents to her Application. She sent the RFOP, by fax, to both the respondent and the Legal Services Branch of the Ministry of Community and Social Services and attached fax confirmation sheets confirming they had been successfully faxed.

7The applicant submits that the Minister of Community and Social Services (“the Minister”) is the minister responsible for the Ontario Works Act, 1997, S.O. 1997, c. 25, Sch. A, as amended, and, pursuant to this legislation, designated the respondent as a delivery agent of the Ontario Works program. Furthermore, the Minister appointed the Director of Ontario Works to supervise the administration of the legislation and the provision of assistance by delivery agents. The Minister is vicariously liable for the Director of Ontario Works and the delivery agent, the respondent, which failed to properly supervise the administration of the legislation, and failed to provide the essential public service of reasonable quality and violated the human rights of the applicant, as a mother with three dependent children.

8The proposed respondents, the Minister of Community and Social Services and the Director of Ontario Works, have not filed a Response to the RFOP and the time for doing so has now elapsed.

Law and Analysis

9Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. The Tribunal held in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

10In this case, it would not fair, in all the circumstances, to add these proposed respondents.

11Initially, the applicant named the Ministry of Community and Social Services (“the Ministry”) as a respondent and requested that her initial Application be sent not just to the director of the Ministry, but also to the Director – Ontario Works Branch. After the Tribunal obtained clarification from the applicant about the identity of the respondents she intended to name, and/or the individuals she thought should be sent the Application, the Tribunal sent a revised Application to the Ministry to the attention of the Director of Ontario Works Branch and its counsel, as well as the respondent, as the applicant had identified the respondent and the Ministry as respondents.

12The Ministry filed submissions taking the position that it should not be named as a respondent. The applicant had the opportunity to respond to those submissions, and filed submissions, although not responsive to the Ministry’s submissions. In an Interim Decision, 2010 HRTO 1171, the Tribunal dismissed the Application against the Ministry.

13Section 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, permits the Tribunal to make orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. See Nyonzima v. Human Rights Tribunal of Ontario, 2012 ONSC 5120 at para. 11. See also Shi v. Holcim (Canada) Inc., 2013 HRTO 306 at para. 14 where the Tribunal found that it would amount to an abuse of process to permit an applicant’s second application to proceed. The second application raised the same allegations as those raised in her first application, which had been dismissed by the Tribunal. See also Shi v. Holcim (Canada) Inc., 2013 HRTO 1865, where the applicant filed a third application with the same allegations such that the Tribunal determined that she was a vexatious litigant.

14In this case, there is no distinction between the applicant naming the Ministry as a respondent versus naming the Minister as a respondent. Indeed, I note that in sending her RFOP to the Minister, she used the same fax number as that used by the Ministry when it was a respondent. In this regard, the applicant is attempting to reinstate a party who was removed several years ago. If she objected to the removal of the Ministry in 2010 when the Interim Decision was issued, she ought to have challenged its removal at that point by filing a Request for Reconsideration, which she did not do. In her RFOP she does make reference to the Interim Decision and does not make any submissions challenging that decision. To allow her to add the Minister would amount to an abuse of process.

15Similarly, given the history in this Application of the applicant identifying the Director of Ontario Works earlier in her Application, and it being grouped with the Ministry as a respondent, it is inappropriate for the applicant to name the Director of Ontario Works again as a respondent.

order

16The Tribunal orders:

1. Neither the Minister nor the Director of Ontario Works shall be named as a respondent; and

2. The Tribunal will schedule an in-person hearing to address the issues identified in the Interim Decision, 2013 HRTO 738 with the same timetable set out in para. 13 of that decision.