Khadijah Brooks v. Social Benefits Tribunal, 2015 HRTO 1070

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Khadijah Brooks Applicant

-and-

Social Benefits Tribunal, Sonja Bozovic-Oczak and Beverly Moore Respondents

DECISION

Adjudicator: Maureen Doyle Date: August 11, 2015 Citation: 2015 HRTO 1070 Indexed as: Brooks v. Social Benefits Tribunal

APPEARANCES

Khadijah Books, Applicant Self-represented

Social Benefits Tribunal, Sonja Bozovic-Oczak and Beverly Moore, Respondents Chantelle Blom, Counsel

Introduction

1This Application alleges discrimination with respect to services because of race, colour, disability, sex, sexual orientation, family status, marital status, age, association with a member of a protected group and alleges reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant named a number of individuals as respondents to her Application. In an Interim Decision dated November 27, 2014, 2014 HRTO 1708, the Tribunal dismissed the Application as against a number of individuals, finding that it was "plain and obvious" that the allegations against those individuals were outside the Tribunal's jurisdiction. In particular, it noted that one individual, L. Freedman, was named in connection with her actions as an adjudicator at the Social Benefits Tribunal ("SBT"), having authored a Decision denying benefits under the Ontario Disability Support Program Act, 1997. The Tribunal found that as the applicant was seeking to challenge that individual's quasi-judicial decision, the doctrine of adjudicative immunity applied, and the Application as against L. Freedman was dismissed.

3Allegations against other individuals included allegations against an individual referred to below as M, and also included allegations against individuals identified by the applicant as "every director, supervisor and manager employed at the SBT who has been employed during March 2012 and February 2014 at all offices involved". The allegations against "every director" etc. were dismissed on the basis that the applicant failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by these individuals. Also in the Interim Decision, the Tribunal stated time limits for the applicant to provide addresses for certain remaining personal respondents, including M, and stated that if such information was received, those respondents would be provided with information on file including the Application and Interim Decision, and a summary hearing would be ordered.

4On January 20, 2015, the Tribunal issued a further Interim Decision, 2015 HRTO 79, dismissing the Application as against several personal respondents, including M, as the applicant did not provide the necessary addresses, and was deemed to have abandoned her Application as against those personal respondents. The Tribunal also ordered that the Application as against the SBT, Sonja Bozovic-Oczak, and Beverly Moore proceed to a summary hearing.

5In a Case Assessment Direction dated January 20, 2015, the Tribunal ordered that a summary hearing be held to determine whether the Application should be dismissed in whole or in part, on the basis that the allegations against some or all of the respondents may be covered by the doctrine of adjudicative immunity and/or that there may be no reasonable prospect that the Application or part of the Application would succeed.

6The summary hearing was scheduled for May 13, 2015, via teleconference, and all parties participated.

DECISION

7For the reasons which follow, this Application is dismissed.

Background

8The applicant identifies herself as a black woman, and indicates that she is of "three races, Black, white and native Indian (Canadian)" and that she was born in 1977. She states that she has a painful disability which prevents her from performing certain kinds of work. She alleges that her claim for benefits under the Ontario Disability Support Plan ("ODSP") has been denied due to her disability, her race, her age, her high school transcript and her refusal to pay "them" for "disability entitlement".

9She alleges that she has been denied ODSP benefits because she is a black woman who "refuses to participate in the criminal organizations called the ADU [sic], SBT, SBJT [sic] of Bay St." She also alleges that M told her that "black girls pay for Disability checks" and that M told someone else that she was a "F'n black bitch [sic]". She also alleges that M was arrested for fraud and told a prison guard that "If that black b_____ [sic] would of [sic] paid me I would of given her a disability check" . She also alleges that M threatened to have her killed because she is an "f' Black B [sic]" and asserts that she has complained to the Ontario Ombudsman's office and the SBT office on Bay Street about this.

10She alleges that when she applied for ODSP benefits, government employees harassed her doctors about the health of her sex organs.

11She also alleges that the most recent decision she received mentions her age and she believes that because she is "young looking", she has not been granted financial support by the "province of Ontario".

12With respect to her allegation of reprisal, she states that she was threatened to stop calling the Ombudsman's office, or "they" would send her file to the Social Benefits Tribunal (SBT) "where if I didn't pay there my application would be denied". She alleges that M "got away with fraud for ten plus years because those contacting me with denial letters…helped her and have been benefitting financially in the fraud she had been committing". She alleges that when she mentions taking action regarding her human rights, "obviously negative" notes are entered into the computer about her.

13With respect to the delay in filing her Application, she submits that her Application was filed more than one year after the last event because M refused to process her legitimate claim for benefits and she would not pay M's friends at the SBT.

14She alleges that a fugitive, who she identifies as a friend of hers, was allowed to collect disability benefits for a number of years due to M and her friends, but that her legitimate claim is disallowed because she will not break the law and because she is black. She also alleges that she was discriminated against because of her relationship with the fugitive. She also alleges that she had the fugitive deported and that M and her coworkers were displeased with her for having done so.

15She alleges that "those involved say they weren't supporting me and my adult children".

16The applicant alleges that the respondent Beverly Moore has supported M in her denial of benefits to the applicant. On April 8, 2014, the respondent Beverly Moore wrote confirming the SBT Decision of L. Freedman which denied benefits to the Applicant, and refused the applicant's Request for Reconsideration of that Decision.

17At the summary hearing, the applicant submitted that the respondents do not have judicial immunity, as they participated in criminal activities with their co-workers. She submitted that she feels she is being racially discriminated against and that when she first spoke with M, she was advised that if she did not pay M, she would not get benefits. She submitted that the "whole process was all about personal vendetta and discrimination". She submitted that M was committing criminal offences in permitting the fugitive to remain in Canada and in paying him government benefits, and that because the applicant had him deported, her claim for benefits was denied.

18She also submitted that she has known M since childhood, and that she knows that M has always been a racist. She submitted that M altered documents because she is a racist and that she influenced other peoples' decisions because she is a racist. She submitted that M does not like black people and that she will not give black people benefits unless they pay for them.

19The applicant also asserted at the summary hearing that she called M one day to ask why she was not receiving disability benefits and M said because "black girls pay for disability cheques". She asserted that this conversation took place sometime between April 2012 and February 2014. She also asserted that M told another individual that she considers the applicant to be an "F'n black bitch". She stated that she heard this from someone else, and that someone else also told her about the above-noted statement she alleges M made to a jail guard. She asserted that she had a conversation with respondent Sonja Bosovic-Oczak, who told her she should have paid M in order to have her claim allowed.

20With her Application, the applicant submitted a March 1, 2013 letter from M which indicates that M was an employee of the Ministry of Community and Social Services assigned to the Ontario Disability Support Program.

is there a reasonable prospect of success for the allegations against the remaining respondents?

Test on a Summary Hearing

21Rule 19A of the Tribunal's Rules provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 ("Dabic") at paras. 8-10:

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.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

Respondents' Position

22At the summary hearing, the respondents submitted that there are two components to the Application: the applicant challenges the finding of the SBT that she is not a person with a disability and therefore is ineligible for benefits; the second is an allegation that individuals who worked for the SBT refused to approve her for benefits because she refused to pay them bribes, and they therefore abused their authority. The respondents submitted that the Tribunal does not have jurisdiction to address either component.

23With respect to the applicant's challenge to the SBT decision denying her benefits, and denying her request for reconsideration, the respondents submitted that these decisions were quasi-judicial decisions to which the doctrine of judicial immunity applies. In support of their submission, they cited Brooks v. Social Benefits Tribunal of Ontario, 2014 HRTO 1708, Sebarras v. Workplace Safety and Insurance Board, 2012 HRTO 115 ("Sebarras"), and McKinnon v. Toronto (City), 2014 HRTO 1011. They submitted that accordingly, the Application as against the SBT and Beverly Moore, who is the Associate Chair of the SBT, should be dismissed.

24The respondents noted that there were no specific allegations of discrimination made against Sonja Bosovic-Oczak, and that on that basis, the Application as against her should be dismissed.

25With respect to the allegations that the applicant was denied benefits because certain employees were engaged in criminal activities and were abusing their power, the respondents denied the allegations and submitted that in any event, even if true, these issues are not within the jurisdiction of the Tribunal to address, as there is no evidence linking the alleged abuse of power and the grounds of discrimination cited in the Application. They submit that accordingly, this second component of the Application should also be dismissed.

26With respect to the allegations regarding statements made by M, the respondents submitted that if M was an employee of the SBT, any of the alleged comments made by M would clearly have been made outside the scope of her employment, and that accordingly the corporate respondent is not liable for such comments. The respondents also noted that M was not the author of any of the decisions denying benefits to the applicant.

Relevant Sections of the Code

27With respect to the provision of services, the Code states as follows:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Analysis and Decision

28To the extent to which the applicant challenges the quasi-judicial SBT decision denying her benefits and the quasi-judicial decision of Beverly Moore to not grant her request for reconsideration of that decision, the applicant's allegations regarding the decisions to deny her benefits are dismissed on the basis of judicial immunity. As the Tribunal stated at paragraph 61 of Taucar v. University of Western Ontario, 2013 HRTO 597, the Tribunal has consistently found that,

the doctrine of adjudicative immunity applies to exempt quasi-judicial decision-makers from the application of the Code due to their functional comparability to judges….in general, quasi-judicial decisions should not be subject to collateral attack through the human rights process, but should instead be challenged by whatever avenues of review and appeal may be available.

29Though she has also alleged that a decision made reference to her age, it is unclear how she would establish that making reference to her age in a decision which considers whether she is a person with a disability for purposes of a statutory benefit program is discriminatory. Accordingly this allegation is dismissed as having no reasonable prospect of success.

30The applicant has also made several allegations which she has not particularized in any meaningful way. Her allegation that M and other individuals made contact with her doctor and inquired about her sexual health is devoid of particulars. While the applicant feels such an inquiry was an affront to her privacy, in the absence of particulars, it is not possible to find that the applicant has pointed to evidence which would link the alleged actions of the respondents with the grounds of discrimination she has cited. In such circumstances, the unparticularized allegation of discrimination has no reasonable prospect of success, and is dismissed.

31Similarly, she has provided no particulars with respect to her allegation that certain un-named individuals advised her that benefits would not be paid for her and her adult children. Here again, in the absence of particulars, it is not possible to find that the applicant has pointed to evidence which would link the alleged actions of the respondents with the grounds of discrimination she has cited. In such circumstances, the unparticularized allegation of discrimination has no reasonable prospect of success, and is dismissed.

32Though the applicant has alleged discrimination on the basis of association with an individual who is a member of a group protected by the Code, she has not indicated what evidence she would be able to provide to establish a link between the respondents' alleged actions and her relationship with the individual. She appears to refer to the individual she says was a fugitive and whom she had deported, but she has not indicated how she would make a link between the alleged actions of the respondents and the grounds of discrimination she cites. In particular, she claims discrimination in the provision of services, contrary to section 1 of the Code, but she has not indicated of which protected group the fugitive is a member. In the absence of these particulars, therefore, the applicant's allegations have no reasonable prospect of success, and are dismissed.

33At the summary hearing, the applicant did not indicate any evidence she would rely upon in to establish a link between any of the respondents' other alleged actions and her disability, sex, sexual orientation, family status, marital status, age or association with a member of a protected group, nor did she indicate what evidence she would rely upon to establish the respondents' intention to reprise against her contrary to the Code. The applicant only makes allegations about reprisal on the part of the Ombudsman's office, which office is not a respondent in this Application. Accordingly, those allegations are also dismissed as having no reasonable prospect of success.

34The applicant also alleges that M and unspecified coworkers withheld benefits from her because "black girls pay for disability cheques", that M referred to her as "that f'in black bitch [sic]", and that M threatened to kill her because she is an "f' Black B [sic]". It must be noted that the Application as against M was dismissed as abandoned in 2015 HRTO 79. The March 1, 2013 letter from M provided by the applicant clearly states that M was, at the time of writing, an employee of the Ministry of Community and Social Services. M was not, however, an employee of the respondent SBT and the applicant has pointed to no evidence to the contrary. In these circumstances, there is no reasonable prospect of success as against the SBT with respect to the alleged comments made by M. Accordingly, these allegations are also dismissed.