Chamberlain v. Ontario (Community and Social Services), 2016 HRTO 691

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maurice Chamberlain, Helder de Freitas, Kaila Feldman,

Morgan Holdsworth, Michael Holdsworth, and Dan Aucoin

Applicants

-and-

Her Majesty the Queen in Right of Ontario as represented

by the Ministry of Community and Social Services

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: May 20, 2016

Citation: 2016 HRTO 691

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

APPEARANCES

Maurice Chamberlain, Helder de Freitas, Kaila Feldman, Morgan Holdsworth, Michael Holdsworth, and Dan Aucoin, Applicants

Eric Letts, Counsel

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

Mimi Singh, Counsel

Introduction

1These Applications each allege discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), with respect to contracts and services. For different reasons, the applicants in each of the Applications allege that they have been discriminated against by the operation of the provisions of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (“ODSPA”).

2The Tribunal issued several Case Assessment Directions (“CAD”) directing summary hearings in these Applications to determine whether these Applications had any reasonable prospect of success.

3In all of these Applications, the Tribunal directed a summary hearing for the following reason:

• Assuming the allegations to be true, whether the applicant’s allegations may reasonably be considered to amount to a Code violation – the applicant’s attention was drawn to Chamberlain v. Ontario (Community and Social Services), 2015 HRTO 31 (“Chamberlain”) and to 1112-11224 (Re), 2013 ONSBT 6001 (the “SBT case”), both of which dealt with similar facts and issues.

4In addition, in 2015-20985-I and 2015-20986-I, the Tribunal directed a summary hearing on the following issues:

• Whether the applicants would be able to prove a connection between what the respondent is alleged to have done and the grounds of sex, sexual orientation, disability, marital status and family status cited in the Applications; and

• Some of the allegations the applicants raise do not appear to fall under the Code.

5The Tribunal’s September 8, 2015 Interim Decision, 2015 HRTO 1187 (“Interim Decision”), consolidated the Applications for the purpose of the summary hearing.

6The applicants and the respondent provided written submissions and also made oral submissions on the January 27, 2016 summary hearing by teleconference.

preliminary issues

Conduct of Summary Hearing

7The respondent’s representative did not join the call at the outset of the hearing. She joined after approximately one hour, partway through the applicants’ submissions. She indicated only that it was due to a scheduling error in her office. She made her submissions following the completion of the applicants’ submissions. None of the parties raised any concern about the respondent’s ability to participate in the hearing as a result of counsel missing the first hour of the proceedings. Before beginning the hearing, the Tribunal had waited half an hour to allow the respondent time to join.

8Prior to the respondent’s representative joining the call and prior to my hearing any of the applicants’ submissions, the applicants’ representative questioned whether I should be involved in the hearing because I had been a “witness” in a prior decision, specifically referring to Chamberlain. I advised the respondents’ representative I had not been a witness but an adjudicator, and that as an adjudicator my role is to hear cases objectively and make decisions. He was concerned that I would not be able to distinguish these Applications from Chamberlain, and I advised him that as an adjudicator I am called upon all the time to hear parties’ submissions and make decisions, based on the facts of the case before me. He asked for reassurance that I would not use in this hearing any facts I had learned in the Chamberlain case and I assured him I would not do so, and that I would refer only to the Chamberlain decision itself. When I advised him I would note his objection to my participation as the adjudicator, he stated it was not an objection but a clarification.

Anonymization Request

Submissions

9The applicants asked that their Applications be anonymized, a request to which the respondent objects.

10The Interim Decision found that the issue of anonymization was more appropriately dealt with by the adjudicator at the summary hearing. Therefore I heard the parties’ submissions.

11The applicants submit that they have a right to privacy, which they lose because these Applications have been processed together for the purposes of a joint summary hearing. They submit that these Applications deal with the intimate details of people’s disabilities, financial resources and relationships.

12Specifically with respect to Mr. Chamberlain and Mr. and Ms. Holdsworth, these applicants submit that decisions made at the Social Benefits Tribunal (SBT) anonymized their names and if their Code Applications before this Tribunal are not anonymized, this would not make sense. They submit that a recent Tribunal decision granted anonymization because of a Family Court proceeding that also was anonymized. The applicants did not, however, provide a copy of this decision or its citation to the Tribunal.

13The respondent counters that the Tribunal is committed to the concept of open justice in Rule 3.1 of the Tribunal’s Rules of Procedure and it will depart from that only in exceptional circumstances. The respondent submits that the reasons the applicants give for anonymization do not fall into any recognized reason for anonymization, and that to grant it on these grounds would mean everything should be an exception to the rule. Further, the respondent submits the applicants have given no reason that would constitute exceptional circumstances and justify anonymization.

14On the respondent’s submission, the fact that another Tribunal anonymizes its decision is not persuasive because different Tribunals have different rules for different reasons. The SBT proceedings are intended to be confidential, and its rules set that out specifically, but these proceedings are entirely different and do not warrant anonymization.

15The applicants reply that the biggest concern in this case is that these files were processed together for the purposes of this summary hearing, and that these applicants are completely independent strangers. In addition, the applicants submit that this Tribunal should not disrespect the rules of another Tribunal.

Analysis and Decision

16The Tribunal’s Practice Direction on Anonymization of HRTO Decisions (Effective April 2014) provides that the Tribunal may anonymize the name of a party to protect the confidentiality of personal or sensitive information where it is appropriate to do so. However, such an order is only made in exceptional circumstances.

17Rule 3.11 of the Rules of Procedure states:

The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

18The relevant principles in considering requests for anonymization and publication bans are set out in C.M v. York Region District School Board, 2009 HRTO 735 (“C.M.”). In C.M., the Tribunal emphasized the importance of an open justice system and stated that without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity. See also: Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230.

19In Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974, the HRTO noted that “human rights applications often include personal information” and thus it will look for “exceptional conditions of sensitivity or privacy necessitating anonymity” before granting such an order. Some of the principles underlying this approach were discussed in C.M.:

…this Request raises important issues about the openness of the Tribunal process. An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. …it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

20The Tribunal has granted a request for anonymization where there were specific threats to personal safety; where there were parallel criminal proceedings arising from the same facts and relating to an alleged sexual assault; and where there was highly sensitive medical information or particularly sensitive information relating to an acute mental health crisis. The Tribunal also has anonymized decisions in cases like the one to which the applicants referred, when there were concurrent Family Court proceedings involving children which were subject to a statutory requirement to protect the identity of the children and their family. See e.g., D.D. v. CAS (Nipissing and Parry Sound), 2016 HRTO 104.

21In this case, the fact that some of these applicants had prior SBT hearings in which their names were anonymized is in my view not determinative. The SBT anonymizes all of its decisions and it, because of its very nature, routinely deals with sensitive medical information. These Applications on the other hand contain no discussion whatsoever of any of the applicants’ medical information, nor is there any necessity for doing so. The only information in these Applications is that the applicants either are in receipt of income support or they are the spouse of an income support recipient, which in my view does not reach the level of sensitivity that disclosure of sensitive medical information may reach.

22The fact that the Applications were consolidated for the purposes of this summary hearing also is not determinative of the issue for the same reason. The applicants did not explain what loss of privacy they would experience just by virtue of the consolidation that would constitute exceptional circumstances. Given these reasons and the Tribunal’s support for an open and transparent justice system, I find no reason to anonymize these applicants.

background

23Section 1 of the ODSPA sets out its purpose, as follows:

1. The purpose of this Act is to establish a program that,

(a) provides income and employment supports to eligible persons with disabilities;

(b) recognizes that government, communities, families and individuals share responsibility for providing such supports;

(c) effectively serves persons with disabilities who need assistance; and

(d) is accountable to the taxpayers of Ontario.

24One of the criteria in order to establish who is an “eligible person” as set out in ss. 1(a) of the ODSPA is financial eligibility. This is calculated in accordance with the requirement in ss. 5(1)(c) of the ODSPA, as follows:

5. (1) No person is eligible for income support unless,

(c) the budgetary requirements of the person and any dependants exceed their income and their assets do not exceed the prescribed limits, as provided for in the regulations […]

25More specifically s. 29 of O. Reg. 222/98 made under the ODSPA states:

The amount of income support for a benefit unit shall be calculated on a monthly basis by determining the budgetary requirements of the benefit unit in accordance with sections 30 to 33.1, reducing that amount in accordance with sections 33.2 to 36.2 and subtracting from that amount the income of the benefit unit, determined in accordance with sections 37 to 43.

26Section 2 of the ODSPA states that a person’s “benefit unit” means “a person and all of his or her dependants on behalf of whom the person receives or applies for income support”. I refer to the sections 2 and 5 of the ODSPA and section 29 of O.Reg. 222/98 collectively as the “income support rules”.

27In Tribunal Files Nos. 2015-20848-I, 2015-20985-I and 2015-21126-I, the applicants, Maurice Chamberlain, Helder de Freitas and Michael Holdsworth, were not income support recipients under the ODSPA, but became spouses of an income recipient and therefore part of the income recipient’s benefit unit. As such, the income and assets of these applicants became part of ODSP’s calculation of their spouse’s entitlement to income support, which inclusion they allege is discriminatory. As a result of the ODSP’s application of the income support rules, the spouses of these applicants were no longer eligible for income support as their respective benefit unit’s income exceeded their budgetary requirements.

28In Tribunal File No. 2015-20986-I, the applicant, Kaila Feldman, became financially ineligible for income support when she became Mr. de Freitas’ spouse for the purposes of the ODSPA when she began living with him in a condominium that they bought together as a “joint venture” with a third, unrelated person. Their benefit unit’s income, once Mr. deFreitas’ income was included, exceeded their budgetary requirements.

29In Tribunal Files Nos. 2015-21125-I and 2015-21137-I, the applicants, Morgan Holdsworth and Dan Aucoin, were former income recipients prior to becoming spouses with non-income recipients. Once they became spouses with these non-income recipients, in both cases, their benefit unit’s income exceed its budgetary requirements and they were no longer eligible for income support.

Applicants’ Submissions

General Submissions

30The applicants submit that it appears the Tribunal is screening this type of case because the summary hearing was directed by the Tribunal, although they concede this is done in other cases as well.

31The applicants’ main submissions are as follows:

1. The fact that ODSP assesses both spouses’ incomes to determine financial eligibility is discriminatory because it offers to the spouse of an income recipient none of the procedural safeguards, such as applying to a judge to review a marriage or domestic contract to determine any support obligations, that are provided to spouses under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”);

2. The fact that ODSP can charge the debt of an income support recipient (arising from an overpayment by the ODSP) to the spouse that was not the income support recipient is discriminatory;

3. The income support rules impose financial obligations on the spouse of a former income recipient that he did not have before marriage and that are contrary to the substantive and procedural protections available within the FLA, and the rules arbitrarily impose these financial obligations on a spouse as opposed to any other individuals obligated to provide financial support to a person, such as that person’s adult child;

4. The income support rules frustrate the applicants’ ability to either have or enter into a marriage contract that sets out the terms of their support and property obligations to each other as they are able to do under the FLA;

5. The income support rules merge individuals’ legal personalities thereby depriving them of the opportunity to enjoy independent personhood while choosing to pursue life within a family;

6. These Applications are distinguishable from Chamberlain because that decision was decided solely on the basis of discrimination in services on the basis of disability, whereas these cases raise the area of contracts, and the grounds of one or more of marital status, family status, association, sex and sexual orientation – the reconsideration decision in Chamberlain stated that the grounds raised in the reconsideration request were broader than what had been before the Tribunal in Chamberlain.

Submissions re: Mr. Chamberlain

32Specific to Mr. Chamberlain in this case, the applicant states that he was married to Mrs. Chamberlain in 1964 and had a child. They separated in 1983, divorced in 1987, and the child remained with him and Mrs. Chamberlain paid support. The parties remarried but in the intervening years, Mrs. Chamberlain had become disabled and was in receipt of income support. On their remarriage, Mrs. Chamberlain’s income support was terminated, and ODSP issued a notice of overpayment to both Mr. and Mrs. Chamberlain even though he had just married Mrs. Chamberlain and had nothing to do with her income support. He alleges the rules discriminate against him on the basis of marital status, family status and association with a person with a disability.

33He further asserts the rules interfere with his right to contract because the parties’ prior agreement said he owed nothing to the applicant and in fact she owed him child support. I asked the applicant’s representative how that fact related to the obligation to provide spousal support in a spousal relationship and he responded that the child support obligation affects the amount to be paid in spousal support, that this goes before a judge and that it is not determined by ODSP. In his view, there is a conflict between ODSPA and the FLA, which is a human rights issue.

34I also asked the applicant’s representative about the difference between the purposes of the ODSPA and the FLA in that ODSPA provides for an income support program of last resort, and whether that in fact affected his whole argument. He disputed that, arguing that because Mr. Chamberlain, as the spouse of a now former income recipient, is being adversely affected by the income support rules. He now has financial obligations to support his spouse and is getting charged for any ODSP overpayment, which is not just a normal debt but is considered a debt to the Crown, and the applicant has no due process and no protection as in the FLA to determine spousal support obligations. Under the FLA a person can go to a judge and have support determined or a marriage contract reviewed whereas ODSP determines this itself.

35On the applicant’s submission, he is discriminated against because he is unable to contract with his spouse the same way every other Ontario couple can with respect to assets and income. He points out some people may have property earmarked for children from prior relationships or for siblings and whereas there is a whole individualized scheme under the FLA to determine financial obligations, if ODSP is involved then ones contract no longer is valid and ODSP makes the determination without giving the spouse due process.

36This applicant also argues that he is affected as a non-ODSP recipient because he loses the enjoyment of the marriage and relationship because of the lack of independence.

Submissions re: Michael Holdsworth

37Specific to Michael Holdsworth, while his submissions are very similar to Mr. Chamberlain’s because he also is a spouse of a former income support recipient, he also argues that if he and Morgan Holdsworth were to separate, their support obligations to each other would be determined under the FLA, with its procedural protections, rather than arbitrarily through the ODSPA. He is deprived of the rights that other Ontario spouses have because of his association with someone with a disability.

38I asked whether it was not because he is associated with a person with a disability but is because he is associated with someone with a disability who is in receipt of income support, but he submits it does not matter where the person’s income originates because each of these individuals should be independent people so that one of them does not have control over the other’s source of income. In his view, the situation where one person could be sued for another’s debt was something that was left behind with the Married Women’s Property Act.

39He also submits that even though ODSP is a “program of last resort”, the issue is not that someone has to pursue every last source of income; the issue is that the way ODSP does that has to be in accordance with the Code. In his view, the problem is not that a person has to ask for income support, but the fact that a financial obligation is deemed to exist with no due process or protection for the individuals, and without respect for the effect it has on a person’s autonomy and independence to be able to ensure they are safe from domestic violence and that they are independent people.

40While this applicant did not make any specific submissions with respect to sex and sexual orientation, I asked counsel about these grounds in relation to the applicants who claimed these grounds, namely Mr. de Freitas, Ms. Feldman, and Mr. and Ms. Holdsworth. These applicants allege that they have been discriminated against because if two people of the same sex live together, ODSP does not initiate a review of their circumstances whereas if they are not of the same sex, then ODSP does initiate such a review.

Submissions re: Helder de Freitas

41Mr. de Freitas purchased a home with two income support recipients, one of whom is the applicant in Tribunal File No. 2015-20986-I, Kaila Feldman, and entered into a contract with them, which outlined their respective financial obligations. The income support of one of the income support recipients (Ms. Feldman) was terminated because of the alleged boyfriend/girlfriend relationship, and ODSP did not ask him for his perspective or for any details of this alleged relationship, nor did ODSP give him any reasons for the termination. Mr. de Freitas submits that ODSP placed him in jeopardy of financial obligations to ODSP he would not have had under the FLA, which is discrimination on the basis of his real or perceived marital or family status.

Submissions re: Kaila Feldman

42Ms. Feldman argues that despite entering into a contract with two others to purchase a home, ODSP terminated her income support because she disclosed she was in a boyfriend/girlfriend relationship with one of the other co-owners of the home (Mr. de Freitas), which violated her right to contract free from discrimination on the basis of her perceived family or marital status because she was not married, nor in a relationship recognized under the ODSPA or the Regulations. Terminating her income support was based on ODSP’s prejudice toward people who co-habit in a boyfriend/girlfriend relationship. The other income support recipient’s income support was not terminated even though he had the same relationship to the other owners of the home, but for the boyfriend/girlfriend relationship. She argues that the issue to be determined in this case is very different from what was decided in Chamberlain.

Submissions re: Morgan Holdsworth

43Ms. Holdsworth argues she wishes to be treated as an independent person, and section 64 of the FLA gives her a separate legal personality. In her view, every other Ontarian who is not disabled is treated as an independent person in every other relationship, including in commercial relationships, and yet ODSP merges her legal personality with her spouse’s by including his income in the calculation of her entitlement to income support. If not in a spousal relationship, her income support would not be reduced. She also submits the amount of the reduction is different than it would be if determined under the FLA.

44I asked the applicant about the fact that the source of money is entirely different under the ODSPA and the FLA. In response the applicant submitted that the amount of the reduction in income support is determined randomly and not in accordance with the determination that would be made in the FLA. In other words, the way the support that Mr. Holdsworth would pay to Mrs. Holdsworth is calculated in an arbitrary manner under the ODSPA Regulations, whereas under the FLA, there are other factors taken into consideration in addition to the support guidelines.

45This applicant submitted also that she is unable to contract freely with her spouse.

Submissions re: Dan Aucoin

46Mr. Aucoin’s submissions mirror Ms. Holdsworth’s except he does not argue discrimination on the basis of sex or sexual orientation.

Respondent’s submissions

47The respondent submits that these Applications should be dismissed because the issues already were decided in Chamberlain; Falkiner v. Ontario (Minister of Community and Social Services), (2002) 59 O.R. (3d) 481, 2002 CanLII 44902 (“Falkiner”); Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 (“Hendershott”); and others. Because these Applications raise nothing new, they have no reasonable prospect of success.

48The respondent further submits this is not about the ODSP discriminating on the basis of one’s status as a spouse, but instead is about the criteria for certain benefits based on certain indicia of a relationship and whether a person becomes financially eligible when in such a relationship.

49In the respondent’s view, the fact that some of the applicants are current or former income support recipients and some are spouses of current or former income support recipients is irrelevant. The purpose of the ODSPA is to provide benefits to those who are eligible. To determine eligibility the income of “proximate” people is combined, as in Chamberlain. People then are found to be eligible for different amounts. The Tribunal dealt with this issue properly in Chamberlain as did the Court of Appeal in Falkiner.

50With respect to the applicants’ submission that they are not able to enter into a marriage contract because of the ODSPA, the respondent denies this and avers that a person can in fact enter into a marriage contract, but it could be a factor that is considered when determining if a person is entitled to income support. On the respondent’s submission, a marriage contract could be considered in determining eligibility, at the discretion of the caseworker.

51Finally, the respondent submits that the two regimes under the FLA and the ODSPA are entirely distinct with very different purposes. One should not be judged in light of the other. ODSP is a program under which all people are provided with income support as long as they meet certain criteria, one of which is not whether the person is a spouse or not.

Applicants’ Reply Submissions

52The applicants in reply agree that what they are arguing is not dissimilar to Falkiner, but that Falkiner did not delve into the FLA protections, specifically the protection of section 64, which states:

64. (1) For all purposes of the law of Ontario, a married person has a legal personality that is independent, separate and distinct from that of his or her spouse.

(2) A married person has and shall be accorded legal capacity for all purposes and in all respects as if he or she were an unmarried person and, in particular, has the same right of action in tort against his or her spouse as if they were not married.

(3) The purpose of subsections (1) and (2) is to make the same law apply, and apply equally, to married men and married women and to remove any difference in it resulting from any common law rule or doctrine.

53In addition, the applicants submit that it is important to recognize the individual legal identity of each person to protect a person from abusive situations, and also to respect contracts parties make within their marriage if one of them ends up in receipt of income support.

54The applicants also submit that another issue not dealt with in Chamberlain is the conflict of laws issue, in that the ODSP Regulations conflict with the provisions of the FLA. ODSP simply disregards all domestic contracts, whereas the FLA is a total system that deals with spousal obligations.

analysis and decision

55I reiterated to the applicants during their submissions that this was not just a summary hearing on the basis of Chamberlain, but that they also should make submissions with respect to whether the Applications had any reasonable prospect of success. The applicants’ representative assured me he would make arguments with respect to both of these.

56This hearing was conducted pursuant to Rule 19A of the Tribunal’s Rules of Procedure. Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9, the Tribunal provided the following guidance:

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.

57In 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 each of Mr. Chamberlain’s, Mr. Holdsworth’s and Mr. de Freitas’ Applications, the applicant is not a recipient of income support, but became the spouse of an income support recipient.

58These applicants allege they have been discriminated against on the basis of disability, family status, marital status and association, as well as sex and sexual orientation in all but 2015-20848-I. They argue that because their spouses were no longer financially eligible for income support, they have become financially obligated to their spouses and also responsible for their debts to ODSP in a way that is different than under the FLA.

59In summary, this argument has no reasonable prospect of success and fails for the following reasons:

a. These applicants were not deprived of any benefit under the ODSPA through discrimination because they were not income support recipients in their own right;

b. The purposes of the FLA and the ODSPA in any event are entirely different and not comparable, and there is no conflict between how these two pieces of legislation determine financial obligations;

c. The income support rules do not prevent these applicants from entering into a marriage contract;

d. Chamberlain answered the question of whether spouses should be allowed to choose to be supported by their spouse or by income support from ODSP, which is recognized as a program of last resort;

e. The court in the Falkiner case, cited in Chamberlain, stated that “the government is legally entitled to deliver social assistance benefits to an individual or to a couple, that is, a spousal benefit unit. Therefore, if the definition of spouse captures only co-residency relationships that are functionally similar to a marriage, that are truly spousal or marriage-like, then I do not see how it can be constitutionally vulnerable”.

60These applicants were not personally denied benefits under the ODSPA and therefore have not been discriminated against on any grounds.

61Further, their argument that both spouses’ income is assessed to determine financial eligibility which offers no procedural safeguards that exist under the FLA has no reasonable prospect of success.

62If I understand the applicants’ argument correctly, they object to the fact that their income is included in the calculation that is done to determine their spouses’ financial eligibility for income support because if that combined income is over a certain amount, their spouses are not eligible for income support. The effect of this is that these applicants then become financially responsible for their spouses, whereas if they and their spouses were dealing with the support obligations under the FLA, they would have procedural safeguards, as the applicants call them, such as access to a judge who could take into consideration other financial factors, such as other obligations a person might have. No such right exists under the ODSPA, which in their view is discriminatory.

63This argument has no reasonable prospect of success. It does not raise a new issue. As indicated in Chamberlain, the two regimes under the FLA and the ODSPA serve entirely different purposes. ODSP is a program of last resort, which means that families share responsibility with the government for the financial support of eligible persons with disabilities. ODSP therefore recognizes the obligation on spouses to support one another financially, and as set out in Chamberlain, it does not discriminate in doing so.

64In addition, the definition of “spouse” for the purposes of ODSP includes some people who, for other purposes, are not considered spouses. See, 1112-11224 (Re), 2013 ONSBT 6001 (“1112-11224”) at para. 21. As the SBT went on to say in that case:

The definition of “spouse” ensures that ODSP benefits are targeted to those who require them because of lack of other sources of income. In spousal relationships, it captures circumstances in which others have a legal obligation to support a partner and those in which, even though there is no legal obligation to do so, financial support is provided by a cohabiting partner. Its purpose or underlying rationale is to include in income and assets what is available to a life partner who supports the recipient or who ought to do so by law, as a result of the nature of the relationship.

65With respect to Mr. de Freitas’ and Ms. Feldman’s situations, the SBT in 1112-11224 specifically dealt with the difference between the support obligations under the FLA versus the ODSPA regime and stated that it was not for the SBT to determine whether the imposition of support obligations under the FLA on a differential basis for unmarried cohabiting spouses and married couples was discriminatory. The SBT stated that “the question was whether ODSP was entitled to rely on that support obligation in determining who is a spouse and part of that benefit unit in the social assistance regime” (para. 25).

66While the applicants referred to this paragraph as proof that the SBT had not dealt with an issue they now raise, I disagree with their characterization of the SBT’s statement. In my view, it is not that the SBT decided not to deal with whether this was discriminatory but that it decided that it was not the issue to be determined in such cases. The SBT’s legal analysis in 1112-12244 does not differ from the legal analysis in these cases.

67The SBT further stated in 1112-12244, which is applicable to Mr. Chamberlain, Mr. Aucoin and Mr. and Mrs. Holdsworth, that “[e]ntering into a formal marriage means that both members of a couple accept a set of benefits and responsibilities, which include support of the other when there is a need to do so.” (para. 26).

68Finally, 1112-12244 also summed up the legal analysis in both Falkiner and Hendershott, which is applicable to these Applications, by stating in para. 32:

Falkiner and Hendershott make clear that it is not discriminatory for the respondent to consider the support obligations to the benefit claimant or recipient in determining whether they have needs that fall within the purpose of a social assistance program of last resort.

69With respect to the parties’ argument that the rules discriminate on the basis of contracts by interfering with their ability to enter into a marriage contract, this simply is not the case. Section 3 of the Code provides that, “[e]very person having legal capacity has a right to contract on equal terms 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.”

70The applicants are not prevented from entering into marriage contracts. They potentially are, however, prevented from using those contracts to avoid their financial obligation under the ODSPA to support their spouses in the same way an income recipient is prevented from choosing to obtain income support rather than support from their spouse. This is not a choice an income recipient or their spouse is allowed to make. See, 1112-11224 at para. 39:

The appellant wants the choice to call on either the government or his spouse for support, but such a choice is inconsistent with the purpose of ODSP as a program of last resort.

71Ms. Holdsworth and Ms. Feldman argue that they are discriminated against on the basis of sex because they are unable to maintain independent financial identities, which may put them in a vulnerable situation, such as in the case of abuse. However, what this overlooks is that the calculation being done with respect to these applicants, which includes their spouses’ income, is done because they are spouses and part of a benefit unit. They are not in a situation where they have left or are trying to leave a relationship. This argument also has no reasonable prospect of success.

72Furthermore, with respect to the applicants’ claim that they have been discriminated against on the basis of sex, the applicants Ms. Feldman and Ms. Holdsworth have not established that they are treated differently than men who are income support recipients and then become the spouses of persons who have an income which exceeds the limits set out in the ODSP legislation. Mr. de Freitas and Mr. Holdsworth also have not established any discrimination on the basis of their sex.

73With respect to the claim of discrimination on the basis of sexual orientation made by Mr. de Freitas, Ms. Feldman, Ms. Holdsworth and Mr. Holdsworth, the only submission made by the applicants appeared to apply only to Mr. de Freitas and Ms. Feldman, who are the only couple who are not married but who live together. The argument they make is that if they were of the same sex, ODSP would not inquire into the nature of their cohabitation and ultimately their financial obligations to each other. In fact, however, the applicants pointed to no proof that could establish that this is the case. Furthermore, they do not appear to be alleging that same-sex couples, whether married or common law, would be treated differently from the way that they have been treated by the income support rules. In any event, they did not point to any evidence that they had or could be reasonably available to establish that they are treated differently from same-sex couples. As indicated, the financial obligations arise out of the existence of a spousal relationship, and sexual orientation is not a consideration.

74Finally, some of the applicants argue that it is discriminatory that ODSP can charge an income support recipient’s debt to the income support recipient’s spouse. Mr. Chamberlain in particular argues he has been charged with an overpayment even though his spouse’s income support had nothing to do with him. Again, however, this argument has no reasonable prospect of success as an overpayment charge is assessed as a result of income in excess of budgetary requirements having been received by a benefit unit, of which Mr. Chamberlain was part. There is nothing discriminatory about it. Mr. Chamberlain has not demonstrated that the facts, as alleged, give rise to a Code violation based on his association with a person with a disability. While it is true that through his joint liability for the overpayment, Mr. Chamberlain is treated differently than a person who is not in a spousal relationship with an income support recipient, this different treatment is not discriminatory as explained in Chamberlain. The other applicants who argued this gave no evidence that they had been charged with any such overpayments, and therefore in my view they point to no evidence that would link their claims to the Code.

75In view of the above, the Applications are dismissed because the applicants have not set out allegations that may be reasonably considered to amount to a Code violation, or they have no reasonable prospect of success.

order

76These Applications are dismissed.