Human Rights Tribunal of Ontario
B E T W E E N:
Jennifer McGuinness
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services – Family Responsibility Office
Respondent
DECISION
Adjudicator: David Muir
Indexed as: McGuinness v. Ontario (Ministry of Community and Social Services)
1This Application alleges discrimination with respect to services because of sex and family status under of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).
2In a Case Assessment Direction (“CAD”) issued to the parties on February 24, 2016, the Tribunal directed that a summary hearing be held pursuant to Rule 19A, 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 summary hearing was held by telephone conference call on May 31, 2016. All parties participated. Post hearing submissions were received from both parties.
4For the reasons that follow the Application is dismissed.
5As the Tribunal noted in the February 24, 2016 CAD, the 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. Discrimination in the legal sense requires proof that the respondent's adverse treatment of the applicant is based, at least in part, on the applicant’s sex, family status or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.
6In this case, the applicant is unable to point to any evidence which would tend to establish that a factor in the actions taken or not taken by the respondent was her sex or family status as a separated, non-custodial parent.
7This dispute arises from the failure of the applicant’s former partner and father of her child (“father”) to consistently meet his family support obligations and the respondent’s subsequent alleged action or inaction to enforce the support obligations. A number of Orders of the family court were made and not entirely complied with by the father.
8An Order was made in 2012 but it is not material to this dispute.
9An Order of the court in August 2013 (the “August 2013 Order”) required the father pay a certain amount of ongoing monthly child support. The father paid this amount as required by the Order, with some gaps in payment, apparently until May 2015 when he ceased making the payments.
10A further court order dated May 14, 2015 (the “May 2015 Order”) required the father to make a lump sum payment of arrears (for a prior period of time) within 30 days of the date of the order. The May 2015 Order also terminated any ongoing obligations of the father from May 2015 onwards. Although the endorsed May 2015 Order was received by the respondent on June 18, 2015, the final May 2015 Order was not issued and entered in Court and not sent to the respondent until November 5, 2015.
11The applicant’s central claim is that the respondent did not enforce the May 2015 Order requiring the payment of the lump sum, to the benefit of the father, and accordingly was discriminated against on the grounds of sex and family status. The respondent submitted that it continued to enforce the August 2013 Order in the normal course as it could not enforce the May 2015 Order until it was finally issued or entered in November 2015.
12The applicant’s contention is inaccurate as there is clear documentary evidence that the respondent continued to expect payment from the father pursuant to the prior August 2013 Order and took enforcement actions between May 2015 and November 2015 including reporting the father to the credit bureau and obtaining a writ of seizure and sale on property of the father in September 2015.
13The applicant argued that she only learned of these activities after she filed this Application; however the documents provided by the respondent clearly establish that these actions were taken in the period between the May 2015 endorsement and the respondent’s receipt of the entered Order in November 2015. As such, the applicant’s central claim of differential treatment, that the respondent did not rely on the endorsement of the May 2015 Order because the endorsement affected (and in a sense benefited) the father, is not accurate. Accordingly the alleged difference in treatment of the applicant as compared to the father cannot be substantiated.
14This leaves the applicant’s other overarching concern regarding why it would take months for the applicant to receive the payments pursuant to the Orders when the court’s intention was clear that the payments were to be due in mid June 2015. While it was no doubt frustrating for the applicant, and from her perspective bewildering, that the father could flout the court’s clear intentions for months, there is no indication that the respondent bears any responsibility for the delay between the endorsement and the final issuance and entry of the May 2015 Order. Further, as indicated above, there is no evidence that the applicant was treated any differently than any other person would have been in the same circumstances.
15The respondent also argued that the Tribunal had no jurisdiction over this dispute because the enforcement activities of the respondent are not a “service” within the meaning of the Code. The applicant disagreed with this submission and I am inclined to agree with her but having disposed of the Application on other grounds I will leave that issue to be resolved in a different case.
16For these reasons the Application is dismissed.
Dated at Toronto, this 20th day of June, 2016.
“Signed By”
David Muir
Vice-chair