2017 ONSC 2386, 2017 ONSC 2386

CITATION : Stepanova v. Human Rights Tribunal of Ontario, 2017 ONSC 2386 COURT FILE NO.: 49/16 DATE: 20170526 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT C. AITKEN, D.L. CORBETT and J. FREGEAU JJ.

B E T W E E N: ) ) VIKTORJA STEPANOVA ) Ms Stepanova , on her own behalf ) Applicant ) ) - and - ) ) HUMAN RIGHTS TRIBUNAL OF ) Jason Tam , for the HRTO ONTARIO, CORPORATION OF THE ) CITY OF WINDSOR EMPLOYMENT ) No one appearing for the City of Windsor AND SOCIAL SERVICES and MINISTRY ) or for the Ministry of Community and OF COMMUNITY AND SOCIAL ) Social Services SERVICES ) ) Respondents ) Heard at London: April 6, 2017 DECISION D.L. Corbett J.: [ 1 ] This is a judicial review from a decision of Vice-Chair Hart of the Human Rights Tribunal of Ontario (“HRTO”) dismissing the applicant’s complaint.

The applicant asks that we set this dismissal aside. [ 2 ] We did not call upon the respondent after hearing the applicant’s oral submissions. We advised the parties that the application was dismissed with these written reasons to follow.

Summary and Disposition [ 3 ] Ms Stepanova is aggrieved by the decision of the Social Benefits Tribunal (“SBT”) and the process that led up to that decision. [ 4 ] Ms Stepanova’s proper remedy was to appeal the SBT decision. [ 5 ] In oral argument Ms Stepanova said that an appeal was not practically available to her: she was self-represented, she was unable to obtain legal counsel or advice, her disabilities made it impossible for her to challenge the SBT decision in a timely way.

These arguments are no answer to the underlying concern: the difficulties Ms Stepanova faced in appealing the SBT decision might ground a request for an extension of time to bring and/or to prosecute an appeal. But Ms Stepanova did not pursue that option and so the SBT decision must now be taken as final. Ms Stepanova may not mount a collateral attack against the SBT decision in fresh proceedings before the HRTO. This basic principle disposes of most of the issues in this application. [ 6 ] The Vice-Chair’s decision to dismiss the complaint was reasonable.

Some of the applicant’s claims are barred by the principle of judicial immunity. Some are obviated by the decision of the SBT. It would have been an abuse of process to permit any of these claims to proceed. [ 7 ] The balance of the applicant’s claims were dismissed on the basis of factual assessments based on the record before the Vice-Chair. Those assessments are reasonable and so there is no basis for this court to intervene. Background Facts [ 8 ] This is an application for judicial review of the decision of Vice-Chair Hart dated February 29, 2016, dismissing the

applicant’s human rights complaint against the City of Windsor and the Ministry of Community and Social Services. [1] [ 9 ] The complaint arises from the applicant’s request for Ontario Works and Ontario Disability Support Program benefits. [2] The City of Windsor, which administers these programs in Windsor, concluded that the applicant was receiving or was eligible to receive a benefit of $120 per month from Ukraine as a result of her injuries in the nuclear accident at Chernobyl in the 1980’s. [ 10 ] The applicant disagreed with the decision to deduct the $120 per month and appealed to the SBT.

The SBT dismissed the appeal. The applicant did not appeal to this court from the decision of the SBT. [ 11 ] The applicant subsequently filed further evidence with the City. This additional information satisfied the City’s concerns prospectively, and the City stopped making the $120 per month deduction as of March 2015. [ 12 ] The applicant’s human rights complaint was commenced on January 20, 2015 against the SBT, the City, and the Ministry of Social Services.

In it the applicant complained that the decision of the SBT breached her rights under the Human Rights Code of Ontario (the “ Code ”), and that the manner in which she was treated by the SBT and the City in connection with her claim for benefits also breached the Code . (

a) Dismissal Against the SBT [ 13 ] By decision of Vice-Chair Fellman dated March 2, 2015, the application was dismissed as against the SBT. [3] The applicant sought reconsideration of this decision, which was denied by Vice-Chair Fellman on March 26, 2015. [4] The applicant did not seek judicial review of these decisions of Vice-Chair Fellman. (

b) Dismissal Against the City and the Ministry [ 14 ] At the instance of the HRTO, a hearing was conducted by teleconference before Vice-Chair Hart to determine: (1) whether the application should be dismissed in whole or in part pursuant to s.45.1 of the Human Rights Code on the basis that the proceedings before the SBT had already authoritatively decided that $120 per month should be deducted from the applicant’s benefits; and (2) whether the application should be dismissed in whole or in part as having no reasonable prospect of success.

During the course of this hearing the applicant also sought anonymization of the HRTO decision. [ 15 ] By decision dated February 29, 2016, Vice-Chair Hart dismissed the application on both bases and declined to grant the requested anonymization order. [5] The applicant sought reconsideration of this decision and when she received no response to her request for reconsideration she commenced this application for judicial review. [6] Jurisdiction of the Divisional Court [ 16 ]

Section 45.8 of the Human Rights Code of Ontario provides that a … decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside in an application for judicial review or in any other proceeding unless the decision is patently unreasonable. [7] Standard of Review [ 17 ] The standard of review in s.45.8 of the Code is “patent unreasonableness”. [ 18 ] Since the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick [8] only two standards of review have been used: “reasonableness” and “correctness”.

The applicant submits that the “reasonableness” standard described in Dunsmuir applies to judicial review of decisions of the HRTO. The respondent agrees with this submission. We accept this submission: “patent unreasonableness” in s.45.8 of the Code means the same thing as “unreasonableness” within the Dunsmuir framework. Issues on this Application [ 19 ] The applicant raises seven issues in her factum and in oral argument: (

i) The HRTO erred in its

interpretation and application of the principle of judicial immunity. (ii) The HRTO confused the subject-matter of HRTO proceedings and the proceedings before the SBT. (iii) The HRTO erred interpreting s.45.1 of the Code . (iv) The HRTO failed to acknowledge divergent purposes of Ontario Works and Ontario Disability Support Program. (

v) HRTO failed to acknowledge the nexus between discrimination, harassment and Code protections. (vi) HRTO erred interpreting and applying the principle of reasonable accommodation of disability. (vii) HRTO failed to accommodate the applicant’s disability as a Convention refugee by denying her request for anonymization. I consider a preliminary issue about the standard of review and then consider each of the arguments raised by the applicant.

Preliminary Issue: Standard of Review [ 20 ] The applicant’s statement of issues and much of her argument, both in the factum and in oral argument, was framed in the language of “error” and “failure”. The standard of review is reasonableness, not correctness. The question for this court to answer is whether the HRTO was reasonable in its decision, not whether it made an “error” or “failed” to do something. The applicant is self- represented, and I have analysed her arguments through the lens of reasonableness even where the applicant has used the language of correctness in her arguments.

Issue #1: Judicial and Adjudicative Immunity [ 21 ] It was the decision of Vice-Chair Fellman dated March 2, 2015 that dismissed the complaint against the SBT on the basis of adjudicative immunity. This issue is not raised properly in this application for judicial review of the decision of Vice-Chair Hart. However, I prefer to address this argument on the merits rather than procedurally. [ 22 ] When it decided the applicant’s claim for benefits, the SBT acted in its decision-making capacity as an adjudicative body.

The SBT is protected by the doctrine of judicial and adjudicative immunity when it acts in this capacity. [ 23 ] The doctrine of judicial and adjudicative immunity is an important aspect of judicial and quasi-judicial independence.

It helps to ensure that judicial and quasi-judicial actors may execute their decision-making duties independently, without fear of personal consequences. [9] The Tribunal has previously held that adjudicative immunity applies to adjudicators of the SBT and I agree with this conclusion. [10] [ 24 ] The decision of Vice-Chair Fellman dismissing the complaint against SBT on the basis of judicial immunity was reasonable.

There is no merit in the applicant’s submission that, somehow, judicial immunity should accommodate human rights norms by way of an exception to the comprehensive protection judicial decision-makers have from process. This ground of review is dismissed. Issue 2: Subject-Matters of HRTO and SBT Proceedings [ 25 ] The applicant argues that Vice-Chair Hart confused the different subject-matters of the hearing before the SBT and the complaint before the HRTO.

She notes that the SBT decision did not mention or decide any of the human rights concerns that she now wishes to pursue in her application. [ 26 ] The Vice-Chair did not confuse the subject-matters of the two kinds of proceedings. The Vice-Chair observed, reasonably, that any human rights dimensions to claims for social benefits can and should be raised in the process in which those claims are made.

So, for example, if Ms Stepanova took the position that the denial of $120 per month failed to accommodate her as a Convention refugee, or discriminated against her as a person from Ukraine, the time to make that argument was before the SBT. [ 27 ] Vice-Chair Hart cited the jurisprudence and applied the principles that guide an analysis under s.45.1 of the Code . He concluded, reasonably, that all issues related to the applicant’s benefits claims were included in the SBT’s decision and were finally and authoritatively decided by the SBT.

As was noted by the Tribunal in another case: … the Tribunal’s role is not to sit in appeal of other decision-makers in their determination of human rights issues. Nor is it appropriate for the Tribunal to use s.45.1 as a vehicle for a collateral attack on the merits of another decision-making process; the appropriate route for challenging another decision is through the appeal or judicial review routes available in the other decision-making process. [11] I agree with this statement of principle. I agree with the Vice-Chair’s analysis of the law set out in paragraphs 6 to 14 of his decision.

The Vice-Chair’s consideration of recent Tribunal jurisprudence and his application of this legal analysis to the facts of this case, set out in paragraphs 15 to 32 of his decision, are reasonable. This ground of review is dismissed. Issue 3: The Vice-Chair erred interpreting s.45.1 of the Code [ 28 ] For the reasons given respecting Issue 2, the Vice-Chair’s

interpretation and application of s.45.1 is reasonable. This ground of review is dismissed. Issue 4: Divergent Purposes of Ontario Works and Ontario Disability Support Program [ 29 ] As I understand the applicant’s position on this issue, she argues that the HRTO should not have confined itself to an analysis of the $120/month deduction from OW benefits. The applicant argues that her complaint also impugns the SBT decision to deny her claim to ODSP benefits. [ 30 ] From the record, it does not appear that this issue was made to the Vice-Chair, which would explain why he did not address it in his reasons.

Be that as it may, the analysis under both the principle of judicial immunity and under s.45.1 is unchanged, even if the focus is reset to include an SBT decision to deny ODSP benefits. The applicant’s remedy, if she disagreed with the SBT decision, was to appeal from that decision to this court, not to bring a complaint to the HRTO. This ground of complaint cannot succeed.

Issue 5: Nexus Between Discrimination, Harassment and Code Protections [ 31 ] The applicant characterizes the decision of the SBT as a mandatory order that she return to her place of origin (Ukraine) and engage with governmental authorities there who are hostile to her and to her family. She argues that such a decision discriminates against her on the basis of her place of origin, nationality, race, ethnic origin and citizenship.

She argues that the effect of the SBT decision is a form of harassment, because of its implicit requirement that she return to a place where she would be subject to adverse treatment. [ 32 ] These arguments could have grounded an appeal of the SBT’s decision. It cannot ground a separate proceeding before the

HRTO for the reasons given respecting Issues 1 and 2. Issue 6: Reasonable Accommodation of Disability [33] The applicant characterized the SBT’s factual findings as having reversed the burden of proof and as having caused her unduehardship and placed her under an undue burden to verify her lack of income in Ukraine. This is simply another way in which theapplicant could have argued that the decision of the SBT was unreasonable, a basis on which she could have appealed that decision.

Again, this assertion that the SBT acted unreasonably cannot ground a separate proceeding before the HRTO for the reasons givenrespecting Issues 1 and 2. Issue 7: The Anonymization Request [34] The Vice-Chair found that “the applicant has not provided… a sufficient basis to support anonymization and depart from the“open court” principle.”[12] This conclusion was grounded in the record and is reasonable. [35] The applicant came to Canada as a Convention refugee.

In oral argument she told us that, as a matter of common sense, itwould expose her and members of her family in Ukraine to harassment and danger for information about her to be posted on the interneton She argued that she was only asking that the decision be referred to by initials. [36] The “open court” principle is a cornerstone of accountability for decision-making tribunals and courts. Publication of legaldecisions is but one way in which the court system is open.

It is true that there is greater scope for the protection of the vulnerablethrough sealing orders or anonymity orders, a development that is reflected in the HRTO’s general approach to this issue.

But it remainsthe general principle that the open court principle trumps desires for anonymity, and to overcome this general principle, a litigant must domore than make bald assertions about potential risks for them if their names are published. [37] The Vice-Chair’s approach to this issue was reasonable and in keeping with the applicable general principles that govern anexercise of discretion to grant an anonymity order. There is no basis for us to intervene.

No Reasonable Prospect of Success [38] Vice-Chair Hart concluded that there were no allegations made against the Ministry that could possibly give rise to liability. Ms Stepanova did not address this issue in her written factum or in oral argument and we take it that she does not challenge this aspect ofthe decision.

In any event, the Vice-Chair’s decision on this issue is reasonable: no factual allegations are made against the Ministry andthus there could be no basis for a finding of liability against the Ministry. [39] Thus the only portion of the claim that remains are claims concerning the manner in which the applicant was treated by Citystaff. The Vice-Chair considered all of the applicant’s allegations and concluded that she would not be able to link the impugnedconduct to grounds protected under the Code.

These factual findings are entitled to deference in this court and the applicant was unableto show that these conclusions were unreasonable. Disposition [40] The application for judicial review is dismissed without costs. D.L. Corbett J. I agree: Aitken J. I agree: Fregeau J. CITATION: Stepanova v. Human Rights Tribunal of Ontario, 2017 ONSC 2386 COURT FILE NO.: 49/16 DATE: 201700526

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT C. AITKEN, D.L. CORBETT and J. FREGEAU JJ. BETWEEN: VIKTORJA STEPANOVA Applicant - and - HUMAN RIGHTS TRIBUNAL OF ONTARIO et al. Respondents DECISION D.L. Corbett J. Released: May 26, 2017