McNulty v. Ontario (Community and Social Services), 2015 HRTO 1645

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly McNulty

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Community and Social Services

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: December 3, 2015 Citation: 2015 HRTO 1645 Indexed as: McNulty v. Ontario (Community and Social Services)

1In the original Application, the applicant disagrees with the respondent’s denial of payment for a cell phone and other items, alleging she has been discriminated against on the basis of family status, and in her request to amend her Application, on the basis of place of origin.

2In a May 15, 2015 Case Assessment Direction, the Tribunal advised it had decided to hold a summary hearing to determine whether this 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.

3The hearing is scheduled for a half day summary hearing by conference call on January 18, 2016.

4The applicant has filed several Form 10 Requests for an Order During Proceedings (“RFOP”) for the following reasons:

a. To add place of origin as a ground;

b. To add Her Majesty the Queen in Right of [sic] should be “Canada”, represented by Citizenship and Immigration Canada, as a respondent;

c. To obtain documents from Housing Connections;

d. To obtain from the respondent the name of the person and job title responsible for the overall budget and financial management of this Ministry allocated from the provincial Ministry of Finance who reports to the Deputy Minister, Janet Menard;

e. To obtain from the respondent the job description and job qualifications of the Administrator position administering the Ontario Works Act and the Director position administering the ODSP Act;

f. To obtain from the respondent information based upon the published statistics off the federal government website, as follows:

www.cic.gc.ca/english/resources/publications/annual-report-2013/section3.asp This website shows various classes being admitted by CIC(Citizenship and Immigration Canada). I would like following information for each of the last five years:

Table#7- Family Class(Spouses and Grandparents) receiving social assistance or socialized housing in Ontario

Table #7-Protected Persons(Each category including government assisted refugees) receiving social assistance or socialized housing) in Ontario

Table #7-Other(Humanitarian and Compassionate Classes and other humanitarian and compassionate cases outside the family class/piublic policy) receiving social assistance or socialized housing in Ontario.

g. To add the Ministry of Municipal Affairs and Housing as a respondent.

5In addition to the applicant’s RFOP’s, she also filed a Notice of Constitutional Question on June 8, 2015 and a revised Notice of Constitutional Question on October 2, 2015. The June 8, 2015 Notice of Constitutional Question states:

1. that the applicant was denied social assistance to return to work;

2. there is discretion with respect to the budget split between social assistance and Ontario Disability Support Program (“ODSP”) assistance and the dispersal of funds is based on the number of people even though rental costs are based on number of bedrooms and Citizenship and Immigration Canada (“CIC”) knows this and allows an entrant to sponsor his or her family using further social assistance funds; and

3. If foreigners come in and are labelled “disabled”, this occurs with the help of CIC and the respondent at the expense of those who are Canadian born.

6The revised Notice of Constitutional Question posed the following questions:

1. Does the administration of Ontario Works and ODSP infringe the applicant’s rights as a natural born citizen under ss. 5 & 7 of the Charter of Rights and Freedoms (“Charter”);

2. Does the administration of the Immigration and Refugee Protection Act infringe on the applicant’s rights as a natural born citizen under ss. 5 & 7 of the Charter;

3. If the applicant is correct with respect to numbers 1 and 2, have the federal and provincial governments nullified the Ontario Works Act and the Ontario Disability Support Program Act, pursuant to s. 33 of the Charter?

7The Attorney General of Canada has filed a Request to Intervene with respect to the applicant’s request to add Her Majesty the Queen in Right of Canada, represented by Citizenship and Immigration Canada, as a respondent.

8The respondent’s RFOP removing it as a party to this Application because it is the incorrect party also remains outstanding.

request for production

9The applicant’s RFOP’s as set out in subparagraphs 4(c) to (f) constitute requests for production of documents or information.

10Rule 16 of the Tribunal’s Rules of Procedure sets out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case.

11The Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances such as when production is necessary for the respondent to file a Response: see Hashi v. Toronto Transit Commission, 2012 HRTO 869. I find that the applicant in this case has failed to establish the exceptional circumstances necessary for the Tribunal to grant its request for early production.

12Therefore, I find it premature to order disclosure of the documents requested.

requests to amend Application

13The applicant’s requests in subparagraph 4(a), (b) and (g) constitute requests to be permitted to amend her Application, namely to add place of origin as a ground; and to add both Her Majesty the Queen in Right of Canada, represented by Citizenship and Immigration Canada and the Ministry of Municipal Affairs and Housing as respondents.

14The Attorney General of Canada has filed a Request to Intervene with respect to the applicant’s request to add Citizenship and Immigration Canada as a respondent.

15The Ministry of Municipal Affairs and Housing has filed a Form 11 Response to a Request for an Order objecting to the applicant’s request to add it as a party, submitting that the applicant’s original Application made no allegations with respect to housing and that by attempting to add it as a party, she inappropriately seeks to insert a new claim into her original Application.

16Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.

17In determining requests to amend applications under s. 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the timing of the request to amend, and prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926 and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

Request to Add the Ministry of Municipal Affairs and Housing

18With respect to the applicant’s October 22, 2015 Request to amend her Application to add the Ministry of Municipal Affairs and Housing, the applicant’s allegations appear to relate to the alleged priority she has been given for (social) rent-geared-to-income housing. These allegations appear to be unrelated to the allegations made in her original Application.

19The applicant does not explain how her new allegations against a different potential respondent relate to her original Application. The respondent, Her Majesty the Queen in right of Ontario as represented by the Minister of Community and Social Services, would be prejudiced by the addition of allegations and a respondent that do not relate to the applicant’s original allegations because it would complicate and lengthen the hearing.

20The applicant’s request to add the Ministry of Municipal Affairs and Housing is denied.

Request to Add the Attorney General of Canada - Citizenship and Immigration/Request to Intervene

21With respect to the applicant’s April 28, 2015 RFOP to add the Attorney General of Canada – Citizenship and Immigration, this proposed respondent’s Request to Intervene seeks to respond to the allegations of discrimination against it. It submits that the Tribunal has no jurisdiction to address such allegations.

22It is plain and obvious that this Tribunal has no jurisdiction over the government of Canada. See, for example: Menzel v. Canada (Citizenship and Immigration), 2008 HRTO 238. As such, the applicant’s request to add this party is dismissed. In light of this decision, it is unnecessary to deal with the Attorney General of Canada’s request to intervene.

Notice of Constitutional Question

23The parties should be prepared to address whether the Tribunal has jurisdiction to determine the Charter issues raised by the Applicant in her Notices of Constitutional Question. The Tribunal has previously observed that while administrative tribunals have the authority, in certain circumstances, to determine whether provisions of their enabling statute should be disregarded because of inconsistency with the Charter, they do not have the same jurisdiction as courts of general jurisdiction to determine stand-alone Charter challenges. See for example MacLennan v. Ontario (Transportation), 2013 HRTO 714 and Kostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388.

24If this proposed respondent wishes to intervene for the purpose of making submissions at the summary hearing with respect to the applicant’s Notices of Constitutional Questions, it shall advise the Tribunal and the applicant in writing by no later than December 15, 2015.

order

25The applicant’s requests for production of documents and information, as set out in subparagraphs 4(c) to (f) are dismissed.

26The applicant’s request to add the Ministry of Municipal Affairs and Housing is denied.

27The applicant’s request to add the Attorney General of Canada - Citizenship and Immigration is denied.

Next Steps AND DIRECTIONS

28The summary hearing will take place as scheduled on January 18, 2015.

29The proposed intervenor/respondent, Attorney General of Canada – Citizenship and Immigration, will be given notice of the January 18, 2015 telephone hearing details, if it advises the Tribunal by no later than December 15, 2015 that it wishes to make submissions at the summary hearing with respect to the Notices of Constitutional Question, in order that it can participate and make submissions as set out in paragraph 21, above, along with the applicant.

30If after the summary hearing, this Application continues in the Tribunal’s process, the RFOP of the respondent, Her Majesty the Queen in right of Ontario as represented by the Minister of Community and Social Services requesting it be removed as a party will be addressed.

31I am not seized.