Colville v. Ontario (Community and Social Services), 2017 HRTO 1444

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Colville

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services (Ontario Disability Support Program) and Kimberly MacGregor

Respondents

DECISION

Adjudicator: Yasmeena Mohamed Date: November 1, 2017 Citation: 2017 HRTO 1444 Indexed as: Colville v. Ontario (Community and Social Services)

APPEARANCES

Karen Colville, Applicant Self-represented

Cheryl Ellison, Counsel Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community and Social Services and Kimberly McGregor, Respondents

1The applicant filed an Application alleging discrimination with respect to goods, services and facilities and housing because of her receipt of public assistance and disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Specifically, the applicant alleges that the respondents discriminated against her by: enforcing a monetary penalty of approximately $7000.00 for leaving Ontario; by failing to provide her with nutritional and dietary support; access to mobility aides, alternative medical treatments, community resources, and by intentionally keeping her income support low.

3The applicant alleges that other entities and individuals have also discriminated against her on the grounds mentioned above, including: members of the Federal government, police officers, social workers, landlords, doctors, insurance representatives, lawyers, CSIS, and the CIA. However, none of these entities and/or individuals are named as respondents in this Application.

4By Case Assessment Direction (“CAD”) dated September 30, 2016, the Tribunal directed that a summary hearing be held to determine whether the 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.

5The summary hearing proceeded on August 24, 2017. Having heard the oral submissions from the parties and reviewed their written submissions, I dismiss this Application on the basis that it has no reasonable prospect of success. The following are my reasons.

SUMMARY HEARING PROCESS

6The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of the a summary hearing is to consider, early in the proceeding and usually before a response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

7The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389; Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201; and Abdi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as disability or receipt of public assistance. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics were a factor in the treatment the applicant experienced. The Tribunal's jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code

8At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or beliefs, the application may be found to have no reasonable prospect of success.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts alleged in this particular case.

FACTUAL BACKGROUND

10The applicant alleges that in 2015 she had a serious disability and her life was being physically and mentally threatened by various individuals and entities. In particular, the applicant alleges that she experienced a serious brain injury that required specialized treatments and care, which included: hyperbaric oxygen treatments (allegedly only available in BC); organic nutritional and dietary support; access to mobility aides, wheelchairs and walkers. The applicant further alleges that her life was being threatened by the Durham Regional Police; her landlord, social workers, doctors, insurance representatives, lawyers and she was constantly followed by CSIS and the “black” CIA.

11The applicant alleges that she moved to British Columbia (BC) in 2015 because the corporate respondent failed to provide her with the specialized medical, nutritional and mobility care and the appropriate community and housing resources she required to alleviate her life threatening circumstances. In addition, the applicant alleges that the corporate respondent intentionally kept her support payments low, preventing her from obtaining safer housing and appropriate legal representation.

12The applicant alleges that in 2016, she had informed the personal respondent, an Ontario Disability Support Program (“ODSP”) worker assigned to her case, that she had moved to BC to seek alternative medical treatments and to save her life. The applicant alleges that the personal respondent became irate with her, closed her ODSP file and fined her $7000.00 for leaving Ontario. The applicant alleges that the respondents' imposition and enforcement of this fine is harassment and discrimination under the Code and the Canadian Charter of Rights and Freedoms (“Charter”) because the respondents were aware of her disability and her Charter right to seek the appropriate treatment and to protect her life and liberty.

13The respondents do not agree that the applicant was fined $7000.00 for leaving Ontario. Rather, the applicant was asked to repay an overpayment of $6578.89 ODSP benefits that she had received while she resided in BC. The respondents allege that the applicant left Ontario in 2015 and did not notify the corporate respondent of her departure until 2016. The applicant received ODSP benefits for approximately one year on the assumption she was still a resident of Ontario. The respondents allege that ODSP benefits are restricted to Ontario residents and the applicant was not entitled to receive ODSP benefits for the period she resided in BC.

14The respondents further allege that the Social Benefits Tribunal is the appropriate forum to deal with any allegations relating to decisions regarding the enforcement of overpayments from ODSP recipients.

ANALYSIS AND DECISION

15Even if I accept the facts put forward by the applicant as true and provable, I find that the Application stands no reasonable prospect of success under the Code. The facts as alleged by the applicant cannot reasonably amount to a Code violation and the events set out in the Application fail to identify any connection between the conduct of the respondents and any ground protected under the Code

16As noted above, for an application to advance to a full hearing on the merits, an application must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find discrimination has occurred. See for example Leong v. Ontario (Attorney General) 2014 HRTO 311.

17At the summary hearing, the applicant was given the opportunity to clarify her allegations and to explain the connection between the respondents’ alleged misconduct and the grounds cited in the Application. The applicant was given the opportunity to point to evidence that she would rely on at a hearing to establish that the corporate respondent’s decision to enforce the overpayment of her ODSP benefits could have resulted in discrimination under the Code and how she could establish a link between the respondent’s decision and her disability and/or receipt of public assistance rights protected under the Code.

18The applicant submitted that the corporate respondent’s decision to enforce the overpayment of her ODSP benefits is harassment and discriminatory under the Code because she was compelled to leave Ontario to seek the specialized medical, nutritional, mobility and community support she required for her disability and life threatening circumstances, which the respondents refused to provide.

19The respondents submitted that the decision to enforce the overpayment of the applicant’s ODSP benefits was not due to any Code related ground. Rather it related to the applicant’s receipt of ODSP payments while residing in BC.

20The respondents' position is that that if any errors were made in the enforcement of the overpayment decision on the part of the personal respondent or in the administration of the applicant’s ODSP benefits, which is denied, the Tribunal does not have the jurisdiction to deal with such mistakes in the absence of a link to a Code ground.

21The applicant clearly disputes the way the ODSP rules were applied in her case and disagrees with the personal respondent’s handling of her file and with the decision to enforce the overpayment of ODSP benefits. The applicant explained that she suffered through a period of extreme hardship, particularly in light of her ongoing medical struggles and life threatening circumstances. I empathise with the applicant’s situation. However, even if I accept that the applicant’s move to BC was temporary and compelled by serious medical and life threatening personal circumstances and that the corporate respondent unduly enforced the overpayment of the ODSP benefits, this does not on its face disclose discrimination. The applicant has not pointed to evidence of any link between the respondents' alleged unfair treatment and a Code ground. The applicant’s allegations that the decision to enforce the overpayment of ODSP benefits because of a Code ground, are entirely subjective and speculative and not sufficient to point to any Code related grounds. As the Tribunal held in Glover v. Ontario (Community and Social Services), 2010 HRTO 2412 at para. 19,

The fact that the applicant is a person with a disability who was unsatisfied with the operation of the disability support program, found its rules difficult to know or understand, and disagreed with decisions of ODSP administrators does not on its face disclose a case of discrimination. There is nothing in the applicant’s pleading that could lead to inferring a discriminatory intent or effect on the part of the respondents. The applicant’s subjective belief, in the absence of any supporting facts to make a reasonable inference, is not sufficient. See: Belso v. Regional Municipality of York Police Services Board, 2010 HRTO 1229 at para. 17.

22In addition, the applicant’s issue with respect to the corporate respondent’s decision to enforce the overpayment of the ODSP benefits is not within the Tribunal’s jurisdiction. The SBT is the tribunal with exclusive jurisdiction to make decisions regarding ODSP benefits and the applicant’s remedy is with the SBT and not the Tribunal. See Zaki v. Ontario (Community and Social Services), 2011 HRTO 1797

23As a final point, I note that the applicant has alleged a violation of the Universal Declaration of Human Rights and the Charter, However, the Tribunal’s jurisdiction is to enforce the Code. It does not have the power to enforce the Universal Declaration of Human Rights or stand-alone violations of the Charter.

24In my view it is clear that this Application has no reasonable prospect of success and must be dismissed.

ORDER

25For the above reasons, the Application is dismissed.

Dated at Toronto, this 1^st day of November, 2017.

“Signed by”

__________________________________

Yasmeena Mohamed Vice-chair