Hinsley v. Ontario (Community and Social Services), 2014 HRTO 587

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Megan Hinsley

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services (Ontario Disability Support Program)

Respondent

A N D B E T W E E N:

Trevor Hinsley

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services (Ontario Disability Support Program)

Respondent

DECISION

Adjudicator: Brian Eyolfson Date: April 25, 2014 Citation: 2014 HRTO 587 Indexed as: Hinsley v. Ontario (Community and Social Services)

APPEARANCES

Megan Hinsley and Trevor Hinsley, Applicants Self-represented

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community and Social Services (Ontario Disability Support Program), Respondent Michelle M. Schrieder, Counsel

Introduction

1These 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"), and allege discrimination on the basis of disability.

2More particularly, the applicants, who are in receipt of Ontario Disability Support Program ("ODSP") benefits, allege that they were subjected to discrimination when the respondent denied them funding to apply for a criminal pardon, which is available to recipients of Ontario Works ("OW") benefits.

Procedural background

3The applicant, Megan Hinsley, filed her Application with the Tribunal on November 29, 2011. By Case Assessment Direction dated June 8, 2012 the Tribunal granted the respondent's Request for Summary Hearing with respect to Ms. Hinsley's Application, and a summary hearing was held on November 19, 2012. Following the summary hearing, the Tribunal issued an Interim Decision, 2012 HRTO 2169, concluding that the matter should move forward to a full hearing.

4The applicant, Trevor Hinsley, filed his Application with the Tribunal on December 14, 2012, along with a Request for an Order During Proceedings ("RFOP") to consolidate or have his Application heard together with Ms. Hinsley's Application. On January 10, 2013, Ms. Hinsley also filed an RFOP to consolidate or have her Application heard together with Mr. Hinsley's Application, as well as to amend her Application with respect to the remedy sought and her statement of how the alleged events affected her.

5On March 5, 2013, the respondent filed a Request for Summary Hearing with respect to Mr. Hinsley's Application, and a second Request for Summary Hearing with respect to Ms. Hinsley's Application. On March 14, 2013, the applicants filed materials opposing the respondent's Requests for Summary Hearing.

6By Interim Decision dated June 5, 2013, 2013 HRTO 1004, the Tribunal granted the applicants' RFOPs to consolidate their Applications, as well as Ms. Hinsley's RFOP to amend her Application. The respondent's Requests for Summary Hearing were denied.

7On June 28, 2013, the respondent filed an RFOP to amend its Response to Mr. Hinsley's Application, which was opposed by the applicants in a Response filed on July 8, 2013. On July 16, 2013, the applicant filed an RFOP for production of their ODSP files. The respondent filed a Response on July 18, 2013, indicating that all relevant and admissible documents from the applicants' ODSP files had been disclosed to the applicants. On July 22, 2013 the applicants filed another RFOP to amend their Applications, which the respondent indicated it did not oppose.

8At a conference call on September 11, 2013, the Tribunal heard further submissions from the parties with respect to the above RFOPs. By Interim Decision dated September 19, 2013, the Tribunal granted the applicants' RFOP to amend their Applications, as well as the respondent's RFOP to amend its Response to Mr. Hinsley's Application. The Tribunal did not determine the applicants' RFOP for production as the applicants confirmed on the conference call that a decision with respect to that RFOP was no longer necessary.

SUMMARY OF EVIDENCE

9The applicants, who are siblings, gave evidence at the hearing. The respondent called Heather Lucas, an ODSP Manager with the respondent, as a witness. The parties also provided the Tribunal with a considerable number of documents.

Assessment of credibility

10While the relevant facts set out below are largely not in dispute, where I assess credibility I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 356-357:

...Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (...) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

11I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses' evidence, and observations as to the manner in which the witnesses gave their evidence.

Megan Hinsley's Application

12On June 2, 2011, Ms. Hinsley wrote to her ODSP caseworker asking if it was possible to access "employment support funds" to help her cover costs associated with obtaining a pardon. She attached a copy of an ODSP Directive, "Directive 9.1 Employment and Training Start-Up Benefit (ESUB) & Up Front Child Care Costs" ("ODSP Directive 9.1"). This Directive explains that ODSP recipients may receive up to $500 in any 12-month period in order to assist with start-up costs related to employment or an approved employment activity. The Directive also explains that recipients may receive Employment and Training Start Up Benefit ("ESUB") for initial costs or expenses that must be met in order to begin employment, or an approved employment activity, which can include beginning employment, training, an employment assistance activity under OW, or any other activity intended to assist a person to become and stay employed, that is approved by the Director, such as job search or preparation activities. In addition, the Directive states that written verification of employment, self-employment, or an approved employment activity must be on file to support the decision and the amount paid.

13The applicant also included with her letter to her ODSP caseworker a copy of an OW Directive, "7.4: Employment and Participation Benefits" ("OW Directive 7.4"), which explains that discretionary benefits for "employment-related expenses" are provided to support participants as they progress toward sustainable employment. OW Directive 7.4 also states that employment-related expenses are also available for ODSP recipients who are participating in OW "employment assistance activities", and that payments may cover expenses associated with participation in employment assistance activities, including costs associated with obtaining a pardon where a criminal record may be a barrier to employment. The Directive explains that the maximum average that is provided for each eligible participant is $250 per month, with a maximum advance of $500.

14By letter from the respondent dated June 7, 2011, Ms. Hinsley was advised that her request for ESUB had not been approved because the item that she was asking for is not covered under ESUB. Ms. Hinsley was advised that she could request an internal review of that decision, and if the decision was not changed she could appeal to the Social Benefits Tribunal ("SBT").

15Ms. Hinsley testified that she also had a telephone conversation with her ODSP caseworker at the time, and her caseworker referred her to the John Howard Society ("JHS"). In a letter dated June 9, 2011, Ms. Hinsley thanked her ODSP caseworker for referring her to the JHS, and stated that the cost of a criminal pardon through the JHS is $350.00. She also requested an internal review.

16By letter dated July 22, 2011, Ms. Hinsley was advised by another ODSP caseworker that her request to have an internal review for ODSP funds to pay for a pardon was denied, as ODSP does not pay for pardons. The respondent's decision on the internal review was reiterated in a revised letter to Ms. Hinsley dated August 30, 2011.

17The respondent's August 30, 2011 letter to Ms. Hinsley also advised her that the internal review decision could not be appealed to the SBT because the SBT is not allowed to hear appeals about discretionary income support. Ms. Lucas testified that it was incorrect to say that the internal review decision could not be appealed to the SBT. Ms. Lucas explained that OW issues "discretionary" benefits, whereas the ESUB benefits that were denied to Ms. Hinsley are considered "mandatory". She also explained that, although ODSP benefits are considered mandatory, this does not mean that anyone who applies for these benefits receives them, as the respondent looks at the circumstances to decide if the applicant is eligible.

18In a letter to the SBT dated August 7, 2011, Ms. Hinsley commenced an appeal of the respondent's internal review decision.

19In submissions to the SBT and Ms. Hinsley dated August 30, 2011, the respondent stated that its ESUB directive does not mention the costs of pardons being covered, but that OW Directive 7.4 states that OW may pay for costs associated with obtaining a pardon where a criminal record may be a barrier to employment. The respondent also stated in its submissions that Ms. Hinsley's caseworker recommended that she contact the JHS, and that when Ms. Hinsley applied for an internal review, she attached a copy of a JHS brochure. The respondent noted in its submissions that the JHS brochure states that some OW offices will pay for part or all of the cost of obtaining a pardon. The respondent stated in its submissions that OW offices, and not ODSP offices, have the discretion to pay for fees associated with trying to obtain a criminal pardon. The respondent also stated in its submissions that Ms. Hinsley could ask her caseworker to forward her name to the OW "Special Needs Unit" to see if they would provide discretionary funds to assist in her pardon process.

20Ms. Lucas testified that ODSP benefit recipients can apply to OW for discretionary employment-related benefits under OW legislation, including employment-related expenses associated with obtaining a pardon where a criminal record may be a barrier to employment. She also testified that OW benefit recipients do not have any better chance of receiving OW discretionary benefits as compared to ODSP benefit recipients applying for OW discretionary benefits.

21By letter to Ms. Hinsley dated January 20, 2012, and copied to the respondent, the SBT acknowledged that Ms. Hinsley had withdrawn her appeal to the SBT, and stated that the file was closed. Ms. Lucas confirmed that the SBT never determined Ms. Hinsley's appeal as the appeal was withdrawn.

22Ms. Hinsley confirmed in her evidence that she never went to OW to ask for funding for a pardon. She stated that if her ODSP caseworker would have told her that she could have done that, she would have, but nobody said that she could go to OW until it came up in the respondent's "justification". Ms. Lucas testified that, to her knowledge, Ms. Hinsley never applied to OW for discretionary benefits for obtaining a pardon. Ms. Hinsley did not explain in her evidence why she did not apply to OW for funding after she was made aware that she could.

23By letter from the respondent dated June 20, 2013, Ms. Hinsley was advised that she would be receiving $500 from ESUB to assist with the costs of a criminal pardon. At the hearing, Ms. Hinsley acknowledged that she received the letter and testified that she also received an email advising her that the money would be deposited directly into her bank account.

Trevor Hinsley's Application

24In a letter to his ODSP caseworker dated November 15, 2011, Mr. Hinsley indicated that he would like to get a criminal pardon. He asked if ODSP would help him with the cost.

25By letter dated December 5, 2011, Mr. Hinsley was advised that his request had not been approved because criminal pardons are not covered under ODSP. He was advised that he could apply for an internal review, and if the decision was not changed, he could appeal to the SBT.

26By correspondence dated December 10, 2011, Mr. Hinsley requested an internal review. The respondent confirmed its original decision by letter dated December 21, 2011.

27In a letter to his ODSP caseworker dated August 8, 2012, Mr. Hinsley indicated that it was his understanding that funding for criminal pardons was not available under ODSP, but was available under OW. He asked what the process was for an ODSP recipient to access funding for criminal pardons under OW. In a further letter dated August 17, 2012, he asked his caseworker if there were other options that might assist him with the cost of a pardon.

28By letter dated August 20, 2012 from his caseworker, Mr. Hinsley was advised that the cost of a criminal pardon was not covered by ODSP, and that he could contact the JHS for assistance.

29By correspondence dated August 28 and September 6, 2012, Mr. Hinsley again asked his caseworker if he could apply for the cost of pardon through OW.

30By letter dated September 10, 2012, Mr. Hinsley was advised by his ODSP caseworker that he was not able to access OW funding as he was in receipt of ODSP benefits at the time. He was again referred to the JHS.

31Ms. Lucas testified that the respondent's September 10, 2012 letter to Mr. Hinsley advised him in error that he was not able to access OW funds. By letter dated January 29, 2013, Mr. Hinsley's ODSP caseworker advised him that he could apply for assistance with a pardon through OW. He was provided with an OW address and telephone number.

32Mr. Hinsley was also advised by letter from the respondent dated June 20, 2013, that he would be receiving $500 from ESUB to assist with the costs of a criminal pardon. Ms. Lucas testified that the applicants were given the maximum amount available under ODSP for funding for criminal pardons.

33In cross-examination, Mr. Hinsley was asked if he applied to OW for funding. He testified that it is not possible. He also testified that he was told by the respondent that he could apply to OW for funding, but that he was still waiting for an explanation from the respondent as to the mechanism. He testified that he presumed there was no mechanism. After Mr. Hinsley had given his evidence-in-chief, he interjected while Ms. Hinsley was giving further evidence to say that he and Ms. Hinsley tried to get funding from OW and that it is not possible.

34Ms. Hinsley confirmed in her evidence that she never went to OW to ask for funding for a pardon. She also queried why those in receipt of ODSP benefits must go to the OW program, as those in receipt of OW benefits are not required to go elsewhere.

35Ms. Lucas testified that, to her knowledge, neither Ms. Hinsley nor Mr. Hinsley ever applied to OW for discretionary benefits for obtaining a pardon.

36I find Mr. Hinsley's assertion that he and Ms. Hinsley tried to get funding from OW and that it is not possible to be lacking in credibility. Mr. Hinsley made this assertion for the very first time late in evidence. His assertion is also inconsistent with Ms. Hinsley's evidence that she never asked OW for funding for a pardon, and Ms. Lucas's understanding that neither applicant ever applied to OW for benefits for obtaining a pardon. In addition, Mr. Hinsley provided no particulars with respect to trying to get funding from OW, and no other evidence to support his assertion. In the circumstances, I find that the applicants did not try to get funding from OW.

ANALYSIS AND DECISION

Relevant Code provisions

37Sections 1, 9, and 11 of the Code state as follows:

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

2. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

3. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

38In addition, "disability" is defined in section 10(1) of the Code, in part, as follows:

10. (1)(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device...

Were the applicants subjected to discrimination on the basis of disability in the provision of services?

39The applicants are in receipt of ODSP benefits and it is not disputed that they have disabilities within the meaning of the Code. However, whether or not the applicants have disabilities as defined by the Code, for the reasons that follow, I do not find that the applicants were subjected to discrimination on the basis of disability within the meaning of the Code.

40I also note that while the applicants allege discrimination in the social area of "services, goods and facilities", they also allege discrimination in the area of "employment". In addition, Mr. Hinsley also alleges discrimination in the areas of "housing" and "membership in a vocational association". The parties did not address in their submissions what Code social areas may be engaged by the Applications. While the allegations in the Applications appear to be with respect to services, I need not determine if any other social areas are engaged, in light of my findings below.

41In her Application, Ms. Hinsley alleges that the respondent discriminated against her by denying her equal access to funds for a criminal pardon, which is available to able-bodied people. She alleges that this benefit is only available to able-bodied OW recipients and that this is discrimination based on disability. Similarly, in his Application, Mr. Hinsley alleges that the respondent discriminated against him by excluding him and other ODSP recipients from accessing employment benefits for the purpose of obtaining a pardon, which is available to OW recipients. At the hearing, the applicants also argued that it is discriminatory to require an ODSP recipient to go to OW for a benefit.

42Based on the evidence before me, I find that the applicants' allegation that funding for a criminal pardon is only available to OW recipients is simply incorrect. Section 31.1 of O. Reg. 134/98 under the Ontario Works Act, 1997, S.O. 1997, c. 25 provides that employment assistance may be provided to an applicant or recipient under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25 (the "ODSPA"). OW Directive 7.4 also clearly states that discretionary benefits for employment-related expenses are available to ODSP recipients who are participating in OW employment assistance activities. This includes costs associated with applying for a pardon where a criminal record may be a barrier to employment. The Directive states that the maximum average that is provided for each eligible participant is $250 per month, with a maximum advance of $500.

43I have found, as set out above, that the applicants never requested discretionary OW benefits from OW to assist with the costs of obtaining pardons. I also find that they did not apply to OW for assistance with obtaining a pardon despite being advised by the respondent, at different points in time, that OW funds could be available to them. Ms. Hinsley testified that nobody said that she could go to OW for funding, but that it came up in the respondent's "justification". The respondent's submissions in Ms. Hinsley's SBT appeal, dated August 30, 2011, clearly stated that OW may pay for costs associated with obtaining a pardon, and that Ms. Hinsley could ask her caseworker to forward her name to OW to see if they would provide discretionary funds to assist in her pardon process. It also appears from Mr. Hinsley's August 8, 2012 correspondence to his ODSP caseworker that he was aware that ODSP recipients could access funding for a pardon under OW. Although he was incorrectly advised by letter dated September 10, 2012 that he was not able to access OW funding, this was corrected by letter dated January 29, 2013, wherein he was advised that he could apply for assistance with a pardon through OW.

44While it is not clear if the applicants would have been provided with discretionary OW funds to assist with the costs of applying for pardons, had they requested such funds from OW, OW Directive 7.4 explicitly states that such benefits are available to both OW and ODSP recipients.

45In addition to OW discretionary benefits, s. 44(1)6 of O. Reg. 222/98 made under the ODSPA provides ESUB for ODSP recipients who begin or change employment, begin an employment assistance activity under OW, or begin any other activity intended to assist the person to become and stay employed that is approved by the Director. ODSP Directive 9.1 explains that ODSP recipients may receive up to $500 in ESUB in any 12-month period to assist with start-up costs related to employment, or an approved employment activity. While this Directive does not specifically mention costs associated with applying for a pardon, the Directive explains that recipients may receive ESUB for initial costs or expenses that must be met in order to begin employment, or an approved employment activity. This can include beginning employment, training, an employment assistance activity under OW, or any other activity intended to assist a person to become and stay employed, such as job search or preparation activities. While it is clear that the applicants were initially denied ESUB to assist with costs associated with applying for a pardon, I find that the respondent eventually provided the applicants with $500 each in ESUB to assist with the costs of pardons.

46In the circumstances, I find that with respect to the ODSP and OW benefit scheme, there is no differential treatment on the basis of disability. While ODSP and OW are administered by different offices, both ODSP and OW recipients can apply for discretionary OW benefits to assist with the costs of applying for a pardon. In addition, ODSP recipients can also apply for ESUB benefits under ODSP for assistance with obtaining a pardon. It appears, therefore, that the applicants, as ODSP recipients, have two sources of funding that they can apply to for assistance with the costs of obtaining a pardon. Further, in my view, the applicants have also not established how it is discriminatory for them, as ODSP recipients, to have to apply to OW if they want to apply for OW discretionary benefits to assist with the costs of obtaining a pardon, as they baldly asserted at the hearing.

47The applicants were initially denied ESUB under ODSP. They were also provided with incorrect information by the respondent concerning their appeal rights. Both applicants were advised that they could not appeal the respondent's decisions on internal review to the SBT. As set out above, Ms. Lucas testified that this was incorrect.

48Mr. Hinsley was also advised in error on September 10, 2012 that he was not able to access OW funds with respect to his request for funding for a pardon. This information was corrected by letter January 29, 2013, wherein Mr. Hinsley's ODSP caseworker advised him that he could apply for assistance with a pardon through OW, and provided him with an OW address and telephone number.

49To the extent that the applicants allege that the denial of ESUB benefits and the provision of incorrect information resulted in discrimination against them on the basis of disability, I note that the Tribunal stated as follows in a previous case involving the provision of ODSP benefits, Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797, at para. 16:

... there must be more than a simple allegation that a program was misapplied to establish discrimination, and I do not agree that even a clearly wrong application of a program in an individual case establishes discrimination.

50The applicants are in receipt of ODSP benefits because, like all other ODSP recipients, they have conditions that meet the definition of "disability" for the purposes of ODSP. In my view, however, the applicants have not established how the initial denial of ESUB to assist with applying for pardons, or the provisions of incorrect information concerning their appeal rights and the availability of OW discretionary funds, could have resulted in any discrimination against them on the basis of disability within the meaning of the Code by the respondent.

51The Applications are dismissed.