Power v. Ontario (Community and Social Services), 2015 HRTO 26

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Power

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services – Ontario Disability Support Program

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: January 8, 2015

Citation: 2015 HRTO 26

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

APPEARANCES

Paula Power, Applicant

Charles Lugosi, Representative

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services – Ontario Disability Support Program, Respondent

Byron Marrello and Bruce Ellis, Counsel

Introduction

1By Application filed June 18, 2013, the applicant alleged that the respondent discriminated against her on the basis of disability, family status and marital status in the provision of services contrary to the Human Rights Code, R.S.O. 1990 c. H.19, as amended (the “Code”). Specifically, the applicant alleged that the Ontario Disability Support Program Act, 1997 S.O. 1997, c. 25, Schedule B and its regulations discriminated against her by making her eligibility for Ontario Disability Support Program (“ODSP”) benefits dependent on her spouse’s income or lack thereof. The applicant also claimed that the ODSP legislation and regulations are unconstitutional under the Canadian Charter of Rights and Freedoms (“Charter”) and unwritten constitutional principles.

2By Case Assessment Direction (“CAD”), the Tribunal directed that the matter be scheduled for a preliminary hearing to determine whether the Tribunal should dismiss the Application as untimely. The Tribunal held a preliminary hearing by teleconference in which I heard submissions from the parties and obtained additional information from the applicant and her spouse.

3I have considerable sympathy for the applicant in the circumstances. However, for the reasons set out below, I must find that the Application is untimely.

Background

4The applicant received ODSP benefits until they were cancelled effective July 1, 2008. The respondent cancelled her benefits and she was assessed an overpayment when an investigation revealed that she had failed to provide information regarding her income and her spouse’s income. The applicant appealed the decision to cancel her benefits to the Social Benefits Tribunal (“SBT”) on August 14, 2008. The SBT granted her interim assistance pending the conclusion of her appeal. The applicant ended up withdrawing her appeal. As a result, the SBT upheld the decision to cancel her benefits and assess the overpayment on January 18, 2010. The ODSP Director referred the overpayment matter to the police. The police charged the applicant and her spouse with fraud. These charges were eventually stayed.

5The applicant re-applied for ODSP benefits in November 2012 after she separated from her spouse. The applicant’s re-application for ODSP benefits was denied by the Director on September 4, 2013 due to a finding that she was not disabled for the purposes of ODSP. This decision was confirmed following an internal review by the Director and then upheld by the SBT on August 6, 2014.

6The applicant was granted Ontario Works benefits in January 2013 and since that time her benefits have been reduced to recover the overpayments assessed while she was receiving ODSP benefits.

Parties’ submissions

7The applicant and her representative submitted that her Application is timely for several reasons. In written submissions in response to the CAD, the applicant submitted that her Application was timely because the respondent continues to make deductions from her OW cheques. Her spouse made this same submission at the hearing. The applicant’s representative advanced an alternative basis upon which he argued the Application was timely. He submitted that the time limit set out in s. 34 of the Code does not apply when an individual is challenging legislation but instead it applies only to “incidents” of discrimination. He argued that no time limits apply when an individual is challenging legislation as being contrary to the Code.

8The applicant’s representative also submitted that, if the one year time limit does apply in this case, the Tribunal should not dismiss the Application because the applicant had good faith reasons for filing her Application after the time limit. The applicant’s representative argued that the applicant was not aware that she could bring a human rights claim in this matter nor is there any basis to find that she ought to have been aware that she could bring such a claim. In particular, he argued that the applicant was not aware, until she consulted with him, that she could bring a claim challenging the ODSP legislation itself under the Code and/or the Charter.

9The respondent submitted that the Application is untimely. It argued that, to the extent that the applicant is challenging the cancellation of her ODSP benefits, the date from which the time limit began to run was the date these benefits were cancelled – that is, July 1, 2008. The respondent noted that the Application was filed over five years from this date. It argued that the applicant has provided no good faith explanation to justify the delay in filing her Application. The respondent also submitted that the Tribunal does not have jurisdiction to consider a stand-alone challenge to legislation. The respondent argued that the Tribunal’s jurisdiction to hear applications is predicated on a claim relating to a timely denial of a service. According to the respondent, absent a timely claim being put forward, the Tribunal’s jurisdiction to decide the validity of legislation is not engaged.

Analysis

10I find that the applicant cannot escape the application of the time limits set out in s. 34 of the Code by framing her Application as a challenge to the legislation being applied to deny or restrict her ODSP benefits. As discussed in the next two sections, the Tribunal has held that it does not have the authority to consider stand-alone challenges to legislation under the Charter or the Code. The Tribunal only has authority to determine such challenges in the context of a valid Application before it alleging discrimination in one of the social areas covered by the Code.

11To the extent that the Application is also challenging the application of the ODSP legislation to the applicant, I must find that the Application is untimely for the reasons set out below.

Tribunal’s jurisdiction over Charter claims

12The Tribunal has held in a series of cases that it does not have the authority to decide a stand-alone constitutional issue unless it is necessary to the Tribunal’s decision making under the Code. See MacLennan v. Ontario (Transportation), 2013 HRTO 714 at paras. 10-11; Barber v. South East Community Care Access Centre, 2010 HRTO 581 at para. 7; Wilson v. Toronto Catholic District School Board, 2011 HRTO 1040 at para. 19; Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 at para. 8; and Kostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388 at para. 18.

13This conclusion flows directly from the Supreme Court of Canada’s jurisprudence on the issue of a tribunal’s authority to apply the Charter. A tribunal with power to decide questions of law has the power to decide the constitutional validity of provisions that are relevant to decisions it must make (Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at para. 36) and to “grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate”: R. v. Conway, 2010 SCC 22 at para. 22.

14For the above reasons, I find that the Tribunal does not have jurisdiction to determine, as a stand-alone matter, whether the ODSP legislation and/or regulations violate the Charter. If the applicant wishes to challenge the constitutionality of the ODSP legislation and regulations, she must do so before the courts, rather than the Tribunal.

Tribunal jurisdiction over claims challenging legislation under the Code

15Similarly, various cases establish that the Tribunal does not have the power to rule on the bare question of whether legislation breaches the Code. See, for example, Freitag v. Penetanguishene (Municipality), 2009 HRTO 1712 at para. 17; Lee v. Toronto (City), 2012 HRTO 412 (“Lee); Ball v. Ontario (Community and Social Services), 2010 HRTO 360 at para. 154 (“Ball”); Malkowski v. Ontario Human Rights Commission, 2006 CanLII 43415 (Ont. Div. Ct.).

16As found in these cases, the bare question of whether legislation breaches the Code is not a matter that falls within the Tribunal’s jurisdiction unless the applicant has alleged that he or she has experienced an adverse effect due to the application of the legislation to him or her. If an applicant alleges that he or she has suffered adverse effects due to the application of legislation, the Tribunal has the power to evaluate whether the legislation is inconsistent with the Code. If the legislation is inconsistent with the Code, the Tribunal has the power to order as a remedy that it not be applied or enforced due to the primacy provision in s. 47(2) of the Code. See, for example, Ontario (Attorney General) v. Ontario Human Rights Commission (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 at para. 42 (Div. Ct.); Lee, above at para. 12; Ball, above at para. 172; Ivancicevic v. Ontario (Consumer Services), 2011 HRTO 1714 at paras. 136-150.

17In light of the above, I do not agree that the timelines set out in s. 34 of the Code do not apply to challenges to legislation. Based on the case law cited above, I find that the Tribunal does not have jurisdiction to hear a challenge to legislation under the Code in the absence of a claim challenging the application of the legislation to a particular applicant. In order for the Tribunal to have authority over such a claim, it must have been filed in a timely way in accordance with s. 34 of the Code.

Timeliness of Incidents of Discrimination in this Case

18Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed.

19The incident of discrimination in this case is a claim that the ODSP discriminated against the applicant when it took into account her spouse’s income in calculating her benefits. This incident occurred when the respondent cancelled the applicant’s benefits and assessed her overpayment. This occurred in July 2008, approximately five years before the applicant filed her Application. In my view, the fact that the applicant continues to be required to repay certain ODSP overpayments that were assessed against her is not relevant to determining the one year time limit in this case.

20I have carefully considered and sought submissions from the parties on the question of whether these continuing deductions constitute continuing contraventions of the Code which would make her Application timely according to the principles set out in Garrie v. Janus Joan Inc. 2012 HRTO 1955. The applicant submitted that the continuing deductions from her Ontario Works cheques amounted to a continuing contravention of the Code since the reduction is imposed to recover an overpayment due to her relationship with her spouse. The respondent submitted that this reduction was not a continuing contravention but instead a continuing effect of the decision the Director made to cancel her benefits in 2008.

21It appears that the repayment has been imposed to recover various overpayments assessed against the applicant only some of which may be related to her relationship to her spouse. The reductions also relate to the interim assistance provided by the SBT pending the SBT appeal that was withdrawn by the applicant. Finally, the reductions relate to benefits paid to the applicant for a period of time for which she was later found ineligible because she was found not to be disabled within the meaning of the ODSP. Overall, I find that the continued reductions to the applicants Ontario Works benefits to repay the overpayments assessed against her are not continuing contraventions of the Code. At most, the reductions are the continued effects of the alleged contravention in this case. See Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC), [2008] O.J. No. 1768. For this reason, I find that the incident of alleged discrimination in this case was the Director’s decision to cancel the applicant’s benefits in 2008 which occurred more than one year before the Application was filed.

22As noted above, a person may apply to the Tribunal more than one year after the incident to which his or her application relates if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith. The mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file an application within one year when pursuing a human rights claim.

23The applicant submitted that if she had known that she had grounds for a human rights claim, she would have applied to the Tribunal sooner. Although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must establish that he or she had no reason to make inquiries about his or her rights. See Simmons v. Ontario (Transportation), 2010 HRTO 1884 and Selkirk v. Trillium Gift of Life Network, 2014 ONSC 7174 (Div. Ct.) In this case, the applicant has not persuaded me that she had no reason not to inquire about her rights sooner. At the preliminary hearing, her spouse candidly stated that it did cross his mind that the applicant might have been discriminated against but at the time he and the applicant were in a struggle against the government to obtain a copy of the applicant’s ODSP file in order to defend the criminal charges that had been brought against them.

24The applicant and her spouse both stated that they did not realize that they actually might have a valid human rights claim until they consulted their current representative shortly before they filed the Application. However, they did not provide any persuasive information as to why they could not have consulted with their current representative or other legal counsel earlier. The applicant was represented by counsel for the purposes of her SBT appeal. The applicant had all the information necessary to make inquiries and did not take any steps to ascertain if the conduct complained of was contrary to the Code in the context of her ongoing litigation with the respondent in which she was represented by counsel.

25The applicant’s representative also submitted that the applicant should not be faulted for not knowing that she could frame her application as a challenge to the ODSP legislation itself. He argued that this would require a level of knowledge that exceeds that of most persons who are not legally trained. I cannot accept this argument. As noted above, the Tribunal does not have the authority to consider stand-alone challenges to legislation, under either the Code or the Charter.

26As a final point, the applicant’s representative argued that the time limits should be applied flexibly in this case since the applicant is a person with mental and physical disabilities. While the Tribunal has accepted that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that a disability was so debilitating to prevent an applicant from pursuing his or her legal rights under the Code: see, for example Reid v. Ontario March of Dimes, 2009 HRTO 2207; Downer v. Little & Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

27In this case, although the applicant referred to certain health issues in the preliminary hearing, I have no medical evidence before me that the applicant was unable to proceed with her Application for a the full five year period of delay in this case due to these health issues. I note in particular that the applicant’s health issues were not considered to constitute a disability within the meaning of the ODSP legislation in September 2013, a decision that was upheld by the SBT in 2014. Overall, in these circumstances, I am not persuaded that the applicant’s disabilities prevented her from filing a timely application in this case. In my view, it was clear from the information the applicant provided at the preliminary hearing that her delay was in fact due to a lack of awareness of her rights and her failure to look into her legal rights sooner.

28I have considerable sympathy for the applicant in the circumstances of this case. However, for the reasons set out above, I must find that the applicant has failed to satisfy the requirements of good faith as that term is used in s. 34(2) of the Code. It is therefore not necessary for me to consider whether substantial prejudice would result from the delay.

order

29For the above reasons, the Application is dismissed.