Judy Hoffman obo Jesse Mateo Hoffman v. Community Living British Columbia, 2024 BCHRT 237
Date Issued: August 14, 2024
File: CS-001494
Indexed as: Judy Hoffman obo Jesse Mateo Hoffman v. Community Living British Columbia, 2024 BCHRT 237
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Judy Hoffman obo Jesse Mateo Hoffman
COMPLAINANT
AND:
Community Living British Columbia
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), (c) and (d)(ii)
Tribunal Member: Kylie Buday
On behalf of the Complainant: Judy Hoffman
Counsel for the Respondent: Justin Mason
I INTRODUCTION
[1] Jesse Hoffman is an adult living with multiple mental and physical disabilities, including cerebral palsy, epilepsy, and autism. He lives with his mother Judy Hoffman, who brings this complaint on her son’s behalf. The complaint alleges Community Living British Columbia [CLBC] discriminated against Mr. Hoffman in services contrary to s. 8 of the Human Rights Code because of his family status. Mr. Hoffman says CLBC provides less funding to clients living with family members than to clients who do not live with family members. He also alleges CLBC’s funding scheme has presented a discriminatory barrier to him. He alleges that if he applies to become a CLBC client, he risks losing his funding through the Vancouver Island Health Authority [VIHA] Choice in Supports for Independent Living program [CSIL]. He says he has been denied access to CLBC Community Inclusion support as a result.
[2] CLBC denies discriminating against Mr. Hoffman and applies to the Tribunal to dismiss the complaint against it under ss. 27(1)(b), (c) and/or (d)(ii) of the Code. Under s. 27(1)(b), CLBC says Mr. Hoffman has not yet applied for its services and so the complaint is premature and does not allege an arguable contravention of the Code . Under s. 27(1)(c), CLBC submits Mr. Hoffman asked it for information on the supports and services he might receive if he became a client, but he has not yet applied for those services or been assessed by CLBC. CLBC says it provided Mr. Hoffman with information on estimated levels of funding to assist him in deciding whether to apply for CLBC services and that this information cannot form the basis of a complaint of discrimination. Therefore, it says, the complaint is speculative and has no reasonable prospect of success.
[3] CLBC also asks the Tribunal to dismiss the complaint under s. 27(1)(d)(ii). CLBC submits the Tribunal dealt with the allegations against it in Hoffman and another v. B.C. (Ministry of Social Development) and another, 2012 BCHRT 187 [Hoffman] and argues it would not further the purposes of the Code to proceed with a complaint that has already been litigated.
[4] For the following reasons, I allow the application under s. 27(1)(c) and dismiss the complaint. I am persuaded that Mr. Hoffman’s complaint has no reasonable prospect of success at a hearing.
[5] To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[6] Mr. Hoffman is an adult living with multiple developmental disabilities as defined in the Community Living Authority Act .CLBC is a provincial crown agency mandated under the Act to deliver community living supports and services to adults with developmental disabilities. Mr. Hoffman is a former client of CLBC. Some of his history with CLBC is outlined in Hoffmanat paras. 10 to 43 and so I do not repeat it here.
[7] For reasons related to the events described in Hoffman , Mr. Hoffman ended his client relationship with CLBC sometime in 2013. He says he did so because of under-funding. In 2015, Ms. Hoffman was appointed as Mr. Hoffman’s Committee under the Patients Property Act.
[8] In May 2017, Mr. Hoffman began to receive support and funding through the VIHA’s CSIL program. Mr. Hoffman says VIHA assessed him as eligible for their maximum level of funding, which at that time amounted to approximately $158, 608.00 per year. He says CSIL funding is intended to provide him with essential personal care assistance only.
[9] After learning the results of VIHA’s assessment of his personal care support requirements, Mr. Hoffman contacted CLBC to find out what funding he would receive if he reactivated his CLBC client status. Mr. Hoffman says he wanted to understand what funding he would be entitled to receive prior to applying for services so that he would not jeopardize his VIHA funding contract. In the complaint, Ms. Hoffman explains she is “trying to protect [him] from further harm and discrimination from CLBC.”
[10] I note, the discriminatory “harm,” or adverse impacts, Mr. Hoffman alleges he experienced in relation to acts or omissions of CLBC while he was a CLBC client is not within the scope of this complaint. However, I acknowledge that the alleged harm is important context; it explains why Mr. Hoffman says he is reluctant to apply to return to CLBC as a client, without detailed information on the funding and support he will receive should he do so.
[11] On July 25, 2018, Ms. Hoffman and Mr. Hoffman met with his former facilitator from CLBC, who collected information and assessed him at CLBC’s highest category of need – Level 5 – and as having four areas of exceptional need.
[12] CLBC initially refused to provide Ms. Hoffman with further information about the level of funding Mr. Hoffman might receive if he became a CLBC client again. However, on October 18, 2018, CLBC sent Ms. Hoffman a letter that states:
There are several models of support that could be outlined depending upon the final planning of what services would be fit for Jesse and that would ultimately create the funding amount that CLBC would provide. I will provide 2 options for your review.
[13] The letter then outlined two options. Option 1 was for home share funding and not of interest to Mr. Hoffman. Option 2 was for 72 hours per week of support worker funding, totalling $112,320.00 per year. This amount was calculated based on a wage of $30 per hour. The letter further provided:
Also we have clarified that when CLBC funded services are put into place, as per the Guidelines for Collaborative Service Delivery, notification to VIHA would occur so they could complete their assessment of Jesse’s needs for Added Care Funding. Added Care Funding would replace the CSIL arrangement for Jesse as the Guidelines specify when CLBC is providing services, the role of the health authority is to provide funding to augment the CLBC services. We cannot speak to what amount the health authority would provide.
[14] Mr. Hoffman alleges the options outlined by CLBC are discriminatory. He says CLBC fully funds 100% of the cost for personal care/activities of daily living for its clients through home sharing or staffed living but not for clients who live in a family home. He says CLBC cuts personal care funding by over 50% for clients like him because he lives with his mother in the family home.
III SCOPE OF COMPLAINT
[15] On October 18, 2018, Ms. Hoffman filed the present complaint of discrimination on behalf of Mr. Hoffman. The Tribunal did not immediately accept the complaint for filing; rather, it sought further clarifications on the complaint. On March 25, 2019, Ms. Hoffman filed an amendment, amending the complaint on behalf of Mr. Hoffman.
[16] In a screening decision, issued June 4, 2019, the Tribunal declined to accept for filing the parts of the complaint alleging discrimination based on mental and physical disability. However, the Tribunal accepted parts of the complaint alleging discrimination based on family status. The Tribunal set out the scope of the complaint as follows:
The information you provided about the respondent providing lower funding levels to clients living with family members sets out facts that, if proven, could be a violation of the Human Rights Code. The part of your complaint on the ground of family status is accepted for filing.
[17] The Tribunal also stated the following on the scope of the complaint:
Your original complaint form refers to events taking place from 2010 to 2013 when Jesse was last a client of the respondent, and you also reference your previous complaints against the respondents. Those complaints were dismissed by the Tribunal June 4, 2012.
The current complaint will not revisit issues in the decision to dismiss the earlier complaints, and the scope of this complaint is limited to whether Jesse was discriminated against because of his family status regarding CLBC funding levels to clients living with family members.
[18] I have read the Tribunal’s screening decision, the complaint, and the complaint amendment. The allegations that fall within the scope of the complaint can be summarized as follows.
[19] Mr. Hoffman alleges the funding CLBC says he would receive for personal care and support while living at home with his mother is discriminatory. He says it is not equivalent to the funding he would receive if he lived with a home share provider, which CLBC refers to as “Shared Living,” or in a CLBC group home, which CLBC refers to as “Staffed Residential Support.” Mr. Hoffman further alleges CLBC’s discriminatory funding scheme has created a barrier that prevents him from resuming an active status file with CLBC, and therefore accessing community inclusion support services, which are not available under VIHA’s CSIL program.
IV DECISION
[20] For the following reasons, I allow the application under s. 27(1)(c) and dismiss the complaint.
[21] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[22] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942at para. 77.
[23] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[24] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[25] There does not appear to be any dispute that Mr. Hoffman is protected under the Code for reasons related to his family status. To prove his complaint at a hearing, Mr. Hoffman would have to prove that he was adversely impacted in services and his family status factored into that adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If he does this, the burden will shift to CLBC to justify the impact. If the impact is justified, there is no discrimination.
[26] Though it was not framed this way, the crux of CLBC’s submission under s. 27(1)(c) is that there is no reasonable prospect Mr. Hoffman would succeed with his case because the alleged adverse impacts are mere conjecture. CLBC did not make any submissions on whether Mr. Hoffman would be able to prove a connection between his family status and any adverse impacts.
[27] CLBC makes several arguments that fall under s. 27(1)(c). I first address CLBC’s submission that Mr. Hoffman has no reasonable prospect of proving his allegations on funding levels. In his complaint, Mr. Hoffman says CLBC funds 100 percent of the costs for personal care/activities of daily living for CLBC clients who live with a Private Paid Home Share provider or in CLBC Group Care Homes. He alleges CLBC cuts this funding by 50 percent when a person lives in their family home.
[28] In response, CLBC argues Mr. Hoffman has not pointed to any evidence to prove his assertions on funding. Though CLBC has not framed its submissions on funding levels within the test for discrimination set out in Moore, I infer that CLBC’s submission is that Mr. Hoffman has no reasonable prospect of proving the second element of the test for discrimination because his assertions on funding are speculative.
[29] CLBC says, and Mr. Hoffman does not dispute, that when it provided Mr. Hoffman with information on what he might receive if he returned to CLBC, it presented two potential options for consideration: Option 1 and Option 2 described earlier in this decision. As noted earlier in this decision, in its letter to Mr. Hoffman, CLBC states:
There are several models of support that could be outlined depending upon the final planning of what services would be fit for Jesse and that would ultimately create the funding amount that CLBC would provide. I will provide 2 options for your review.
[30] Both of these options fall under the shared living model. For Option 1, CLBC estimated that if Mr. Hoffman lived in a Level 5D home share, he would receive $110,208.00 of annual funding broken down as follows:
Option 1
– 30 hours per week of support worker x 52 weeks x $30 per hour = $46,800.00 per year
– Level 5D home share rate = $51,408 per year
– Level 5D support to home share = $12,000 per year
– TOTAL annual funding = $110,208.00
[31] CLBC also estimated that if Mr. Hoffman continued to reside with his mother, he would receive the following:
Option 2
– 72 hours per week of support worker x 52 weeks x $30 per hour = $112,320
– TOTAL annual funding = $112,320.00
[32] CLBC submits the above figures show the funding levels for each service type is equivalent and argues Mr. Hoffman has also not pointed to any evidence that would prove otherwise.
[33] In his particulars to the complaint, Mr. Hoffman explains the basis for his allegation that the options are not equivalent. He states:
The stated total yearly funding amount of $112,320, using […] living with family Option 2, minus the $46,800 cost of Community Inclusion (per Option 1), for an individual assessed at a CLBC Level 4 with 4 flags funding category leaves only $65,520 to purchase necessary personal care supports that cost $158,608 according to costing done by the Ministry of Health who provides the majority of personal care supports, in community, needed by residents of BC.
CLBC is therefore only providing partial funding for personal care supports when the individual lives with their family, $93,000 short fall is significant underfunding.
[34] Based on this, Mr. Hoffman alleges CLBC “will fund the total cost of personal care supports required by a CLBC client when the CLBC client lives in a residence that is not the CLBC client’s family residence.”
[35] I first note that the scope of Mr. Hoffman’s complaint does not include any allegations about differences in funding through VIHA’s CSIL program as compared with CLBC. As such, I have not considered Mr. Hoffman’s allegations that the quoted funding rate of $112,320.00 is discriminatory because it is lower than the amount of funding he receives under the CSIL program, and does not meet his basic personal care support needs as identified by the Ministry of Health. I can only consider his allegations on the amounts to which he is entitled under the three different models of CLBC funding.
[36] My understanding of the particulars is that Mr. Hoffman is alleging that under Option 2, $46,800.00 of the $112,320.00 would not be available to him for personal care support. In my view, this assertion is speculative. CLBC’s figures suggest the entire $112,320.00 would be allocated for personal care support (72 hours per week for a support worker). In addition, CLBC has not provided Mr. Hoffman with final sums but rather, two options to review. CLBC stated in its letter that there are several models of support that could be outlined depending upon the final planning of what services that could be.Instead of seeking further information, Mr. Hoffman filed a complaint of discrimination. In my view, it was premature for him to do so.
[37] There does not appear to be any dispute that when he filed the complaint, Mr. Hoffman had not applied for CLBC services and had not been assessed by CLBC for such services. The information shared with Mr. Hoffman was based on incomplete information. In essence, Mr. Hoffman’s complaint is about discrimination he anticipates he will experience based on his prior experiences with CLBC, and the information on funding CLBC has provided him since he made a request for this information. On the information before me, I am satisfied there is no reasonable prospect he would prove that CLBC discriminated against him when it provided him information on possible funding options should he become a CLBC client.
[38] On adverse impacts, Mr. Hoffman also alleges CLBC has adversely impacted him by creating a barrier to him from resuming an active status file with CLBC, and therefore accessing community inclusion support services, which are not available under VIHA’s CSIL program.
[39] I agree with CLBC that those alleged adverse impacts are based on speculation. Mr. Hoffman argues he has been prevented from resuming his status with CLBC based on the information CLBC set out in its October 18, 2018 letter. However, as CLBC notes in that letter, in addition to funding for personal support, Mr. Hoffman would also be assessed for Added Care Funding, which would replace the CSIL arrangement he currently has with VIHA. Again, with no information on what that funding would be, the alleged adverse impacts at this point are speculative.
[40] Though I have dismissed the complaint, I acknowledge that Mr. Hoffman has faced and continues to face many disability-related barriers in life. He identifies numerous ways in which he says the province is failing to serve adults with intellectual disabilities. Mr. Hoffman, and Ms. Hoffman acting on his behalf, have laudable goals advocating for the rights of adults with intellectual disabilities. Some of those goals are evident in the list of remedies Mr. Hoffman seeks in this complaint. That list of remedies includes requests for the province to establish a commission to conduct a comprehensive review of CLBC’s mandate and operations, and an independent advocate for adults with developmental disabilities. Mr. Hoffman also seeks amendments to the province’s Adult Guardianship Act , as well as new legislation, regulations, and provincial principles to protect the rights and entitlements of adults living with intellectual development disabilities.
[41] The Tribunal is not the forum through which Mr. Hoffman can seek the above-summarized remedies. They are beyond the Tribunal’s remedial powers, which are set out s. 37 of the Code. The remedies sought have played no part in my decision to dismiss the complaint. I mention them only to provide some guidance on the remedies the Tribunal has jurisdiction to order.
V CONCLUSION
[42] I dismiss Mr. Hoffman’s complaint under s. 27(1)(c). For the reasons set out above, I am satisfied he has no reasonable prospect of success.
Kylie Buday
Tribunal Member