Chamberlain v. Ontario (Community and Social Services), 2014 HRTO 790

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mildred Chamberlain

Applicant

-and-

Her Majesty the Queen in right of the Province of Ontario as represented by the Minister of Community and Social Services, Income Maintenance Windsor Local Office

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: June 3, 2014

Citation: 2014 HRTO 790

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

APPEARANCES

Mildred Chamberlain, Applicant

Chris Surowiak, Representative

Her Majesty the Queen in right of the Province of Ontario as represented by the Minister of Community and Social Services, Income Maintenance Windsor Local Office, Respondents

Daniel Huffaker, Counsel

The Corporation of the City of Windsor, Former Respondent

Patrick Brode, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability, creed, marital status and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2By Case Assessment Direction, dated October 18, 2013, the Tribunal directed a Summary Hearing to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect of success, with specific reference to an unreported decision of the Social Benefits Tribunal (the "SBT case") in File No. 1112-11224, dated May 15, 2013, which all the parties had reviewed prior to this hearing. The Summary Hearing took place on March 19, 2014 with all parties participating.

3At the conclusion of the hearing, in response to brief submissions from the Corporation of the City of Windsor only with respect to whether it properly was a party to the Application, the applicant consented to the withdrawal of the Application against the Corporation of the City of Windsor. It therefore is removed as a party and the title of proceedings amended accordingly.

BACKGROUND

4In or about January, 2009, the applicant reported to the Ontario Disability Support Program that she had remarried her former spouse on October 11, 2008. The Director of ODSP subsequently found her ineligible to receive income support retroactively to November, 2008 because the income of her benefit unit exceeded its budgetary requirements taking into consideration her and her husband's income. An overpayment of $2249.50 was assessed against her for the period from November, 2008 to January, 2009 during which she had continued to receive income support although not entitled based on her budgetary requirements.

5The applicant appealed that decision to the Social Benefits Tribunal ("SBT") and in November, 2009 the SBT released a decision on the merits ("Stage One hearing") confirming the Director's decision. The SBT Stage Two hearing which would deal with the human rights issues ("Stage Two hearing") remained outstanding.

6On June 17, 2010 the applicant commenced this Application, which was deferred because of the SBT Stage Two hearing. On February 13, 2013, the applicant abandoned her SBT application before a Stage Two hearing was held, and this Application was reactivated.

7The applicant alleges that the Ontario Disability Support Program Act, 1997, S.O. 1997 (the "ODSPA"), and O. Reg. 222/97 (the "Regulation") made under the Act, discriminate against her on the basis of disability, marital status, creed and reprisal contrary to the Code because her income support was reduced when she married due to the inclusion of her spouse's income in the Director's calculations, despite the applicant's desire and intention to keep her finances separate from her husband's.

the law

No Reasonable Prospect of Success

8Rule 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.

9In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraph 8:

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.

SBT Decision – File No. 1112-12244

10The panel decision in SBT File No. 1112-12244 (the "SBT decision") was made on May 15, 2013. The applicant was not a party to this matter, although it did raise virtually identical legal issues to those raised by her in both her abandoned SBT Stage Two hearing and the instant Application before the HRTO. The appellant in SBT File No. 1112-12244 had argued that he was discriminated against because his income support was significantly reduced as a result of his spouse's income being taken into account in calculating his entitlement. The effect of section 1(1) of the Regulation combined with sections 30 and 31 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA") is that married persons automatically are considered "spouses" and therefore are part of the same benefit unit, meaning that both their incomes are considered in determining entitlement to income support.

11Among other findings, the SBT panel held that the definition of "spouse" did not discriminate because of marital status.

analysis and decision

12I find for the reasons that follow that the Application should not be dismissed as having no reasonable prospect of success at this stage of the proceeding.

13While this Application is based on almost identical facts as the SBT case, and even though to some degree this appeared to be the focus of the parties' submissions, this preliminary hearing is not a hearing to determine if it would be an 'abuse of process' to allow it to continue because the applicant's issues were determined at the SBT or whether, pursuant to s. 45.1 of the Code, the issues in this Application were appropriately dealt with in another forum. The question in this preliminary hearing is whether or not the applicant has any reasonable prospect of success in this Application.

14The parties are not precluded from raising the arguments they made in this summary hearing at the merits hearing, but at this stage, I am not prepared to dismiss the Application merely on the basis that essentially the same legal issues were determined before different parties by another Tribunal. No matter how persuasive the reasoning may or may not be in the SBT proceeding referred to above, those results remain the non-binding authority of another administrative tribunal.

15It also is important to note that the applicant in this case exercised a choice of jurisdiction. She could have had the legal issues determined by the SBT or HRTO. The applicant made a legitimate choice of venue to have her human rights issues decided at this Tribunal. This Tribunal has often remarked that one of the effects of s.45.1 of the Code is that it encourages parties to make a choice where there is more than one venue that may have jurisdiction to determine their issues. In my view, allowing this Application to be determined on the merits is more consistent with the Tribunal's jurisprudence on choice of venue than dismissing it on the basis that there is no reasonable prospect this Tribunal would come to a different result than that reached at another Tribunal.

order

16This Application is not dismissed and will continue in the Tribunal process.