Ernst Goetze v. Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services (Family Responsibility Office), 2014 HRTO 836

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ernst Goetze

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services (Family Responsibility Office)

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: June 11, 2014

Citation: 2014 HRTO 836

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

APPEARANCES

Ernst Goetze, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services (Family Responsibility Office), Respondent

Sharlene Ziniuk, Counsel

BACKGROUND

1This Application, filed on October 15, 2013, alleges discrimination with respect to services because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges the Family Responsibility Office (the “FRO”) enforced support orders against him in a discriminatory manner because of his gender.

2By Case Assessment Direction dated November 7, 2013 (the “CAD”), the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

3The summary hearing was conducted by teleconference on April 24, 2014.

4After the summary hearing, the applicant continued to send documents to the Tribunal. These documents were not considered in this decision because the hearing concluded on April 24, 2014 and the decision was under reserve.

Summary Hearing Process

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

6The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code was a factor in the treatment the applicant experienced.

7The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary.

8However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the evidence the applicant is able to point to, either in his possession or evidence that may be reasonably available to him, which tend to support the applicant’s belief that he has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support his allegations, there are no findings made at the summary hearing stage in relation to that evidence.

9The 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 adverse treatment allegedly experienced by the applicant with the grounds of discrimination alleged in the application or in the Code’s reprisal provision. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated or reprised against. In such a situation, applications may be found to have no reasonable prospect of success. For an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show reprisal or discrimination on the basis of one of the grounds alleged in the Code.

10Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this case as set out in this Application.

The Facts

11On April 19, 2006, a support order was made in the State of Michigan requiring the applicant’s former spouse to pay child support to the applicant in the amount of $311.78 US dollars per month. The applicant had custody of his three children at this time.

12On March 5, 2008, the Ontario Superior Court of Justice made an order requiring the applicant to pay child support. This order was made final on June 4, 2008. The Court ordered the applicant to pay $939.00 per month to his former spouse for the support of one child that was in her custody. The applicant had custody of two children.

13On June 2, 2009, the applicant filed the April 19, 2006 order for enforcement with the FRO to collect arrears in the amount of $3,188.00 to him under the order. The FRO garnished Federal monies from the applicant’s spouse until October 2010 when the arrears were paid.

14The applicant failed to consistently pay the support owing under the June 4, 2008 order and arrears accrued.

15Since 2009, the FRO has been taking enforcement measures against the applicant to collect outstanding arrears under the June 4, 2008 order. In his written submissions on the summary hearing, the applicant states that in 2009, the FRO collected the arrears by garnishing the applicant’s income and severance benefits. In 2009 and 2010, the FRO garnished the applicant’s Employment Insurance benefits. It later garnished his Canada Pension Plan benefits. In May 2013, the FRO began to garnish the applicant’s Old Age Security (“OAS”) benefits.

16The June 4, 2008 order for support has terminated. However, the FRO continues collect the arrears. As of March 31, 2014, arrears in the amount of $11, 136.60 were outstanding.

17The applicant concedes that the FRO enforces court orders and that it has no discretion to modify the court orders.

18The applicant argues the FRO calculates support owing under court orders, and in his case, made that calculation in a discriminatory manner. The applicant submits that every calculation made by the FRO was in favour of his former spouse and against him. For example, the applicant argues the FRO ignored the Divorce Judgment which prohibited certain expenses being incurred. In 2009, unauthorized expenses were added to the amount owing by the applicant even though they were contrary to the terms of the Divorce Judgment. The applicant argues further that the FRO could have continued to enforce the Michigan support order in his favour, but elected not to. FRO stopped enforcing this order in 2010.

19The applicant complains further about the inequity between the support he was required to pay to his former spouse for one child ($939.00) and the support he received when three children were in his care ($311.78 USD). This last allegation concerns the amount of the court support orders, which the applicant concedes the FRO has no discretion to modify. As this allegation is not against the FRO, it will not be considered by the Tribunal.

20Finally, in his written submissions on the summary hearing, the applicant makes general complaints about how the FRO operates, and specific complaints concerning the suspension of the applicant’s driver’s license and an attempt by the FRO to cancel his passport. The Tribunal has no jurisdiction to inquire into the general functioning of the FRO, nor does it have jurisdiction over complaints of unfairness relating to enforcement mechanisms employed by FRO that are not alleged to be discriminatory. For this reason, these allegations will not be considered.

ANALYSIS

21Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondent.

22The applicant complains about the FRO’s exercise of discretion when deciding what orders to enforce and calculating the amount owing under the orders. He points to two examples: the adding of unauthorized expenses by the FRO in January 2009 to the support owing, and the decision of the FRO in 2010 to not continue to enforce the Michigan support order. The applicant asserts that both of these decisions were in favour of the applicant’s former spouse and against him, thereby demonstrating a gender bias on the part of the FRO.

23This Application was filed on October 15, 2013. The events the applicant complains about occurred in 2009 and 2010 and are clearly outside of the one-year time limit under section 34(1) of the Code.

24Under section 34(2) of the Code, the Tribunal can accept an Application that is untimely if it is satisfied that the delay was incurred in good faith and no substantial prejudice would result from accepting the Application. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for his failure to pursue his rights under the Code in a timely manner.

25During the summary hearing, the applicant was asked why he waited to file his Application. He stated he had no reason to file an Application because he was happy to pay the support. He stated further that it had never occurred to him that the FRO would discriminate against him on the basis of sex. He said he was busy raising his family and was not worried about it. The applicant complained that the FRO was attacking his OAS to get arrears that do not exist at law. The applicant said he did not have any more money. In my view, the likely catalyst for the applicant’s decision to file the Application was when the FRO began to garnish his OAS in May 2013.

26None of the reasons provided by the applicant for his delay in filing the Application amounts to a good faith reason. I do not accept that being busy with family and not being worried about the support payments satisfies the good faith requirement in section 34(2). Although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must establish that he had no reason to make inquiries about his rights. See Simmons v. Ontario (Transportation), 2010 HRTO 1884. In this case, the applicant has failed to provide any explanation for why he did not, or could not have, made inquiries about his rights in order to ensure that his Application was filed in a timely manner.

27The applicant has failed to establish a good faith explanation for his delay. In light of this finding, it is not necessary to address the issue of prejudice.

28The applicant may argue that the decision to garnish his OAS in May 2013 is timely. The difficulty with this argument is that the alleged discrimination in this case relates to how the FRO calculated the support owing (allegedly in a gender-biased way), not the mechanism used (the garnishment) to collect the support and subsequently, the arrears. Even if the applicant is complaining about the OAS garnishment itself, there is no evidence that the applicant has or that is available to him that links the decision to garnish the OAS with the applicant’s gender.

29This Application is dismissed for delay and is therefore outside of the Tribunal’s jurisdiction.

ORDER

30The Application is dismissed.