Denis A. Hotte v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance and the Minister of Revenue, 2008 HRTO 375

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denis A. Hotte Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance and the Minister of Revenue Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: December 8, 2008 Citation: 2008 HRTO 375 Indexed as: Hotte v. Ontario (Finance)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 6, 2008, which alleges that the respondent’s application of the provincial Income Tax Act, R.S.O. 1990, c. I.2, as amended, which incorporates by reference the pension income splitting provisions of the federal Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended, discriminates against him with respect to services on the basis of age because, as a person under 65 years of age, he is unable to split his pension income with his spouse in order to minimize taxation.

2The respondent filed a Response on November 18, 2008, which requests that the Application be dismissed because the Tribunal does not have jurisdiction to set aside or amend a valid legislative enactment, because the application of the provincial Income Tax Act is not a “service” within the meaning of the Code, and because section 15 of the Code allows for distinctions to be made on the basis of age when the effect is to grant preferential treatment to persons who are 65 years of age or older. The applicant filed a Reply on November 27, 2008, which states that the respondent’s request to dismiss his Application lacks merit.

3In my view, it is fair, just and expeditious to hear at this stage of the proceeding the issue of whether the Application should be dismissed because of section 15 of the Code. Section 15 states: “A right under Part I to non-discrimination because of age is not infringed where an age of sixty-five years or over is a requirement, qualification or consideration for preferential treatment.”

4Rule 3.5 states that no application that is within the jurisdiction of the Tribunal will be finally disposed of without affording the parties an opportunity to make oral submissions. Accordingly, unless the parties consent to waive their right to oral submissions, the parties are entitled to an opportunity to make oral submissions before the Tribunal with respect to this issue. The Registrar will schedule a half-day hearing by telephone, unless one of the parties requests that the Tribunal conduct the hearing in person.

5If the parties wish to rely on any supporting material for the purposes of the hearing of this issue, including written submissions, facts, or case law not already provided in the Application, Response and Reply, the parties are directed to deliver this material to each other and to the Tribunal by no later than two weeks before the date scheduled for the hearing.

6The applicant should note that if the Tribunal determines that the respondent has established a defence pursuant to section 15 of the Code, the Application will be dismissed. The applicant may wish to review the Tribunal’s Applicant’s Guide and its Rules of Procedure, which are available on the Tribunal’s website at www.hrto.ca, before preparing his oral submissions.

7I am not seized of this matter.