Anderson v. Centre for Independent Living in Toronto Inc., 2016 HRTO 1010

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kory Anderson Applicant

-and-

Centre for Independent Living in Toronto Inc. Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: July 29, 2016 Citation: 2016 HRTO 1010 Indexed as: Anderson v. Centre for Independent Living in Toronto Inc.

WRITTEN SUBMISSIONS

Kory Anderson, Applicant Self-represented

Centre for Independent Living in Toronto Inc., Respondent Safia Lakhani, Counsel

1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”)

2The respondent argues that the Application should be dismissed on several grounds. In the Response, it asked that the Application be dismissed under s.45.1 of the Code, on the basis that the issues were also raised in an appeal to the Health Services Appeal and Review Board (“HSARB”). It further argues that the Tribunal is not the appropriate forum, as the issue is with respect to whether the respondent’s decision refusing to approve the applicant’s request for funding was correct. It further claims that the Application should be dismissed as it is untimely.

3For the reasons below, the respondent’s request to have the Application dismissed under s.45.1 of the Code is denied. However, on review of the materials filed, the Tribunal directs that a summary & preliminary hearing be held to determine whether:

a. the Application has no reasonable prospect of success, as it is seeking a review of the correctness of a decision to deny benefits under a statutory program, and / or

b. the Application is outside the jurisdiction of the Tribunal as it was filed more than a year after the last alleged incident of discrimination, and is therefore untimely under s.34 of the Code.

Background

4The respondent administers the “Direct Funding” program, which, under s.11.1 of the Ministry of Community and Social Services Act, R.S.O. 1990, c.M.20, and O.Reg. 367/94 “Grants for Persons with Disabilities, (“the Regulation”), provides grants to individuals with physical disabilities to permit them to manage their own attendant services. The applicant applied to the respondent for Direct Funding. The respondent sent the applicant a decision letter, dated March 5, 2015, refusing his request. The applicant sought a review of that decision under s.39 of the Home Care and Community Services Act, 1994, S.O. 1994, c 26 (“HCCSA”). The respondent affirmed its original decision by letter dated September 25, 2015.

5On September 29, 2015, the applicant commenced an appeal of the decision to the HSARB, pursuant to s.40 of the HCCSA. During those proceedings, on or about March 25, 2016, he submitted a new application for Direct Funding to the respondent. On March 29, 2016 he withdrew the HSARB appeal. On March 30, 2016, the respondent sent a second decision letter to the applicant, again affirming the original decision letter of March 5, 2015, noting that his March 25, 2016 application did not indicate there had been any change in his circumstances. On the same day, the applicant filed a second HSARB appeal.

6On May 5, 2016, the HSARB issued an order, K.A. v. Centre for Independent Living in Toronto Inc., HSARB File #16-HCC-008, May 5, 2016 (S. Jovanovic) (unreported), (the “HSARB Order”) which read, in its entirety:

ORDER

The Applicant, having advised the Board, following a telephone Pre-hearing Conference today, that he intends to proceed with an Application to the Human Rights Tribunal of Ontario against the Respondent, and that he wants the Board to close this file, the Board orders:

1. The Appeal is dismissed.

7The present Application was initially filed with the Tribunal on April 11, 2016, alleging that the refusal to approve his application for Direct Funding was discriminatory. The application indicated that the last event giving rise to the claim of discrimination occurred on September 29, 2015, the date the first HSARB appeal was filed. The only remedy sought in the Application was that he be given a further interview in order to receive Direct Funding. The Application was delivered to the respondent on May 16, 2016.

Has the Substance of the Application been Appropriately Dealt with in the HSARB Proceeding?

8The respondent takes the position that, based on the HSARB Order, the Application should be dismissed pursuant to s.45.1 of the Code. That section reads:

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.

9Assuming that the HSARB appeal was a “proceeding” for the purposes of the above section, it is clear to me that that proceeding did not deal with the substance of the Application. The HSARB Order made no decision at all on the issue raised in the Application. Though the HSARB Order indicated that the appeal was “dismissed”, it is clear that this was not a decision based on the merits of the case. Rather, it was simply an order indicating that the applicant had withdrawn the appeal so he could pursue the substantive issues at the Tribunal. There is no indication that the withdrawal was part of a settlement, or was intended to be with prejudice.

10The Tribunal has held that simply withdrawing another proceeding will not normally raise s.45.1 of the Code. See Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10 at para. 10, and Llewellyn v. Hamilton Wentworth District School Board, 2009 HRTO 2223. I agree that where the other proceeding has not dealt with the substance of the application at all, s.45.1 would not normally be engaged, and there is no basis to engage in the circumstances of this case. For these reasons, the respondent’s request to dismiss the Application under s.45.1 of the Code is denied.

Summary and Preliminary Hearing

11As noted, I find it is appropriate to schedule a summary & preliminary hearing to address the other issues raised by the respondent, pursuant to the following directions.

Does the Tribunal have the jurisdiction to review the correctness of a decision to deny benefits under the Regulation?

12The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Under Rule 19A of the Tribunal’s Rules of Procedure, the Tribunal may dismiss an application if it determines that the allegations have no reasonable prospect of success under the Code. If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed.

13In this case, the Tribunal has decided to hold a summary hearing because the claim appears to be challenging a decision under a benefit program. The Tribunal has held that it does not have the power to review such decisions, 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.

14As noted, the allegation is that the applicant was unfairly refused Direct Funding. The Application may be found to have no reasonable prospect of success if the applicant is unable to explain how this decision could amount to discrimination. The focus of this inquiry is on the legal basis for the applicant’s claim and whether or not there is any reasonable prospect the respondent’s decision to refuse Direct Funding may amount to a Code violation.

Are Allegations Untimely (delay)?

15It appears that some or all of the allegations may be untimely. Section 34(1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

16The respondent takes the position that the last allegation of discrimination raised in the Application was the March 5, 2015 letter refusing to approve the applicant for Direct Funding. The Application was filed on April 11, 2016, more than one year later. The applicant indicates that the last event was September 29, 2015, the date he filed the first appeal to HSARB, following receipt of the respondent’s September 25, 2015 letter affirming its March 5, 2015 decision.

17The parties may make submissions on whether the Application is outside the Tribunal’s jurisdiction because of delay. The parties may wish to refer to Tribunal case law on the issue, including Garrie v. Janus Joan Inc., 2012 HRTO 1955 at paras. 33-43, and Worley v. Ontario Cycling Association, 2016 HRTO 952 at paras 106-124. The parties may also make submissions with respect to whether, if there was a delay, it was incurred in good faith for the purposes of s.34(2) of the Code, including Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at paras. 12-28.

Next Steps AND DIRECTIONS

18The Registrar will schedule a half-day hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the summary & preliminary hearing. Although scheduled for a half-day, not all preliminary hearings require a half-day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

For the Summary Hearing on whether the Tribunal has jurisdiction to review the decision of the respondent

19The 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 available on the Tribunal’s website at www.sjto.gov.on.ca/hrto/.

20No witnesses will be called during the summary portion of the hearing but the Tribunal will hear the parties’ arguments about whether the Application should be dismissed because it has no reasonable prospect of success. The applicant will proceed first during the summary hearing, and must be prepared to address the issues discussed in paras 12 - 14 above.

21The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this Interim Decision.

For the Preliminary Hearing on Delay

22If the Tribunal determines that all or a part of the Application should be dismissed for delay, it will be dismissed and the parties will receive a decision containing the reasons for the dismissal.

23If the parties wish to rely on any evidence, witnesses or case law with respect to the issue of delay, they must deliver any additional documents, witness lists or case law they wish the Tribunal to consider to each other and file them with the Tribunal no later than 35 days after the date of this Interim Decision. If any party intends to call witnesses for this portion of the hearing, a summary of the witness’ intended evidence must also be filed and delivered.

Order

24The request to dismiss the Application under s.45.1 of the Code is denied.

25I am not seized.