Court File and Parties

CITATION: Volnyansky v. HMTQ in right of Ontario et al, 2017 ONSC 6234

DIVISIONAL COURT FILE NO.: DC-16-132-JR

DATE: 20171019

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Lubov Volnyansky, Applicant

AND:

Her Majesty the Queen in right of Ontario as represented by the Attorney General of Ontario, the Minister of Community and Social Services, the Director of Ontario Works Program of the Ministry of Community and Social Services, and the Regional Municipality of Peel, Respondents

BEFORE: Gordon, RSJ, Pattillo, Fitzpatrick, JJ.

COUNSEL: The Applicant is self-represented. Christopher Samson, counsel for the Respondent, The Regional Municipality of Peel Sabrina Fiacco, Counsel for the Human Rights Tribunal of Ontario

HEARD: October 16, 2017

Endorsement

[1] The Applicant seeks judicial review of the Human Rights Tribunal of Ontario (“HRTO”) decision dated November 27, 2014 and its reconsideration decision dated January 21, 2016.

[2] Although the Applicant names “Her Majesty the Queen in right of Ontario as Represented by the Attorney General of Ontario, the Minister of Community and Social Services and the Director of Ontario Works Program of the Ministry of Community and Social Services” as Respondents, it is clear from earlier decisions of the HRTO that her claims against these Respondents were either dismissed or found to be improper. The Applicant has not sought judicial review of those decisions. They are not proper parties to this application.

[3] The Applicant’s claim has its genesis in applications she made to The Regional Municipality of Peel (“Peel”) for social assistance in 2009. She was and remains unhappy with the results of those applications. It is her fervent belief that her shelter allowance was incorrectly assessed as a single adult, rather than as a separated parent with three dependent children. As a result of the assessments made, her entitlement to shelter allowance was reduced and an overpayment was assessed.

[4] The Applicant appealed the various decisions to the Social Benefits Tribunal (“SBT”). Aside from a finding that the overpayment should not be collected, the Social Benefits Tribunal dismissed her appeals.

[5] She requested reconsideration of all decisions. None were successful, but the Social Benefits Tribunal did calculate a different overpayment and held that it should be collected.

[6] The Applicant appealed one Social Benefit Tribunal decision (#0712-13291) to Divisional Court. The appeal was denied. Rather than appeal the two other decisions (0812-10542 and 0904-03055), she began two civil actions in the Superior Court of Justice. Both were dismissed on the basis that her recourse from the SBT decisions was by way of appeal, not by way of civil action. The Applicant appealed the dismissal to the Ontario Court of Appeal and the Supreme Court of Canada – all to no avail.

[7] She filed a Notice of Application for judicial review of the three SBT decisions. Her application was dismissed.

[8] Although the Applicant began her claims to the HRTO in 2009, the proceedings were put on hold pending outcome of her claims for judicial review from the decisions of the Social Benefits Tribunal. At her request, her claims to the HRTO were reactivated when those applications and appeals had been exhausted. At the HRTO the Applicant claimed that the Respondent Peel, as an administrator of the Ontario Works Act 1997 (the “Act”) had discriminated against her on the basis of family status, marital status, sex and reprisal or threat of reprisal.

[9] On November 27, 2014, the HRTO released a decision in which it held that her application was dismissed because of the application of section 45.1 of the Ontario Human Rights Code, which states as follows:

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.

[10] The HRTO held that the Applicant’s proceedings before the Social Benefits Tribunal had appropriately dealt with the substance of the application that was now before it. In particular, it found:

1. The Social Benefits Tribunal proceedings were proceedings within the meaning of section 45.1.
2. The Social Benefits Tribunal had the jurisdiction to interpret and apply the Ontario Human Rights Code [see Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14].
3. The Applicant had an opportunity to know the case that she had to meet in the SBT proceedings, both at the initial appeal stage and at the reconsideration stage and the parties to those proceedings were the same ones as those before it.
4. The previously decided issue, namely whether the applicant was a single unit for the purposes of application of the Act and whether her children were dependents and part of her unit, was squarely before the SBT at both stages of its proceedings, as was the issue of overpayment.
5. It would not be unfair for issue estoppel to be applied in this situation. The SBT is a specialized tribunal established by statute to address the very issues the applicant was claiming – that of the amount of entitlement and upon what basis, and the issue of overpayment.

[11] The Standard of Review for decisions of the HRTO is reasonableness. As such, the ultimate question is whether the result reached falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law. [See Shaw v. Phipps, 2012 ONCA 155, and Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190].

[12] Of the many arguments advanced by the Applicant, her position can really be distilled down to three main points:

1. That the proceedings before the Social Benefits Tribunal did not deal with the human rights issues raised before the HRTO; in particular, that notwithstanding that she raised human rights issues before the SBT on reconsideration, those issues were not addressed in the reconsideration decision;
2. That the Social Benefits Tribunal did not implement a Practice Direction giving it jurisdiction to hear human rights issues until February of 2010, sometime after her appeal and request for reconsideration were heard and therefore could not have considered her human rights claims;
3. That it would be unfair to apply the doctrine of issue estoppel in this case because an appeal from the decision of the STB lies only on a question of law, thereby limiting the extent of appellate review.

[13] Before the HRTO, the Applicant submitted that the administrator of Ontario Works, directed by Peel, discriminated against her on the basis of family status, marital status, sex and reprisal when it treated her, a mother with four children, three of whom were dependents, as a single person in determining her eligibility for Ontario Works, and in particular, her entitlement with respect to costs of shelter. The HRTO determined that this very issue was squarely before the SBT, as was the subsidiary issue of overpayment. On examination of the documentation pertaining to the SBT appeals, this was a reasonable conclusion for the HRTO to have come to.

[14] Although the Human Rights Code is not specifically referred to in the reconsideration decision, all of the issues that form the foundation of the human rights complaint are referred to and dealt with in the reconsideration decision. That the Code was not mentioned is of no consequence. The basis for its application was found not to exist.

[15] As to the practice direction, it did not have the effect of giving the SBT jurisdiction to determine Code issues that arose before it. That jurisdiction was recognized by the Supreme Court of Canada in Tranchemontagne. The practice direction is just that, a direction by the SBT concerning the manner in which such issues will be heard by the tribunal. It does not mean there was no jurisdiction previously.

[16] As to the limit of appellate review, litigants are taken to know and appreciate their rights of appeal in the various proceedings they elect to take. When an applicant raises human rights issues in the context of an appeal of eligibility for social assistance, they are taken to accept the limited appeal rights that flow from that appeal. It is the choice of the Applicant. They cannot thereafter complain because the route they chose did not work out for them.

[17] The only issue that has given us brief pause (an issue articulated for the first time by the Applicant in her oral submissions) is her contention that the co-residency rule governing eligibility for shelter costs results in discrimination against her on the basis of family status. This was not raised before the Social Benefits Tribunal and accordingly, was not determined by it. However, in our view, the co-residency rule does not create the discrimination complained of by the Applicant.

[18] The Applicant applied for income assistance under the Act as a single person without dependents. The result was that her “benefit unit” was deemed to include only her. A “benefit unit” under the Act is defined as “a person and all of his or her dependents on behalf of whom the person applies for or receives basic financial assistance”. She benefitted from applying in this manner as she did not have to include the child support she received for the children ($632 per month, at the time) as income to her benefit unit. Having taken the benefit of declaring that her children were not dependent she nonetheless maintained that they were dependents for the purposes of calculating her shelter costs. As the children were not included in her benefit unit, they were not entitled to shelter support under the co-residency provisions (Section 42(2)5 of Ontario Regulation 134/98). The manner in which the Applicant’s benefits were assessed was not the result of any discrimination towards her. Rather the benefits were assessed on the basis of the application that she submitted and a reasonable interpretation of the applicable regulations.

[19] There is no basis for a finding of discrimination under the Ontario Human Rights Code. There is no reasonable prospect of success before the Human Rights Tribunal of Ontario were the matter be returned to it.

[20] It follows that the Application must be dismissed.

[21] Peel is seeking a very modest costs award of $1,000. To date, all of the various appeals filed by the Applicant to the Divisional Court, Court of Appeal, and Supreme Court of Canada have been dismissed without costs. The time has come for Ms. Volnyansky to understand that her continued pursuit of relief arising out of her applications for public assistance in 2009 cannot continue without consequence.

[22] Peel has been successful in having this application dismissed. We have been provided with no good reason why it should not be awarded costs. It is ordered that the Applicant pay costs of $1,000.00 as requested.

R. D. Gordon, R.S.J.

I agree. L. A. Pattillo, J.

I agree. F. B. Fitzpatrick, J.

Released: October 19, 2017