Fisher v. Ontario (Community and Social Services), 2015 HRTO 116

Human Rights Tribunal of Ontario

B E T W E E N:

Mark Fisher

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: January 26, 2015

Citation: 2015 HRTO 116

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

WRITTEN SUBMISSIONS

Mark Fisher, Applicant

Self-represented

1In his Application filed February 5, 2014, the applicant alleges that the respondent discriminated against him because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically, the applicant alleged that the respondent discriminated against him when the Director of the Ontario Disability Support Program ("ODSP") considered him and his roommate to be co-habiting in a marriage-like relationship.

2In interim decision 2014 HRTO 1173, the Tribunal granted the respondent's request that the Tribunal defer this Application pending the conclusion of a parallel claim in the Small Claims Court. The Tribunal also made note of the fact that the applicant also challenged the Director of the ODSP's decision in an appeal to the Social Benefits Tribunal ("SBT"). The SBT found it lacked the authority to deal with the matter since the Director had not reduced the amount of the applicant's income support and there was no ongoing suspension of his income support.

3The applicant has filed a Request for Order During Proceeding seeking to reactivate this Application. The respondent has not responded to the Request although given an opportunity to do so.

4In support of his Request, the applicant filed the Decision of the Small Claims Court dismissing his civil suit.

5As there is no other ongoing proceeding to which this Application could be deferred, the applicant's Request is granted.

6Having reviewed the materials in this Application, the Tribunal also directs that a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed and/or pursuant to section 45.1 of the Code because the substance of the Application has been appropriately dealt with in the other proceedings noted above.

7Rules 19A.1 and 19A.2 of the Tribunal's Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

8Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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.

9First, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent's alleged actions and a Code ground. Having reviewed the Application, it appears that the applicant may be unable to prove a link to the ground or grounds alleged.

10Second, as indicated it may be appropriate to dismiss the Application pursuant to s. 45.1 of the Code, which reads as follows: "The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application". The applicant may wish to refer to the Supreme Court of Canada's decision in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52, and the Tribunal's decision in Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

11The applicant also alleges reprisal. The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one's human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the allegations of reprisal, there must be a reasonable basis to believe that the applicant could establish such intention and a link between the grounds cited and the respondent's alleged actions.

12Finally, I note that the Tribunal does not have the power to review decisions under benefit programs, including those based on disability, to determine if they are correct under the legislation, regulations, or policies governing the program. The Tribunal held as follows in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 5:

An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success.

It appears that this Application alleges merely the misapplication of the rules of the respondent's benefits program.

13The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent's actions and the grounds cited. The parties will also address the section 45.1 issue set out above No witnesses will give evidence during the summary hearing.

14If the Tribunal determines that the Application has no reasonable prospect of success or if the release is binding on the applicant, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

15A Notice of Summary Hearing will follow from the Registrar's Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

16The parties may wish to consult the Tribunal's Practice Direction on Summary Hearing Requests, available on the Tribunal's website at www.hrto.ca.

DIRECTION

17The Registrar will schedule a half-day summary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

18I am not seized.