Vegh v. Ontario (Finance), 2009 HRTO 2005

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Vegh

Applicant

-and-

Her Majesty the Queen in the Right of Ontario

(Minister of Finance and Minister of Revenue)

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: November 24, 2009

Citation: 2009 HRTO 2005

Indexed as: Vegh v. Ontario (Finance)

1This is an Interim Decision in respect of an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that he was discriminated against with respect to goods, services and facilities on the grounds of race, sex, family status and marital status. At issue is a question of payment of the Child Tax Benefit, specifically the right of a non-resident female spouse to file a waiver on behalf of her spouse that attests that he is primarily responsible for the care and upbringing of their children in their household. In addition to this Application, the applicant has filed a complaint with the Canadian Human Rights Commission.

2On October 7, 2009, the respondent filed a Request for an Order During Proceedings. The respondent requests early dismissal of the Application on the grounds that it does not concern “goods, services and facilities” for the purpose of the Code or that another proceeding has appropriately dealt with the substance of the Application. In the alternative, the respondent requests that the Application be deferred pending the conclusion of the applicant's related complaint before the Canadian Human Rights Commission.

Services

3In my view, it is not plain and obvious that the administration of the Child Tax Benefit is not a service for the purposes of the Code: Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 at para. 81; Braithwaite v. Ontario (Attorney General), 2005 HRTO 31, rev’d on other grounds, 2007 CanLII 56481 (Div. Ct.); Hotte v. Ontario (Finance), 2009 HRTO 458.

Appropriately dealt with in another proceeding

4The respondent cites jurisprudence arising from challenges in the Federal Court of Canada to the constitutionality of the “female caregiver presumption” to support its request that the Application be dismissed as appropriately dealt with in another proceeding. Section 45.1 of the Code states:

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.

5Well-established principles of statutory interpretation applicable to human rights legislation specify a broad, policy-based and liberal interpretation. In Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, Chief Justice Dickson stated:

...in the construction of such legislation, the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. (at 1134)

While a hearing before a court is certainly a “proceeding”, I cannot conclude that litigation concerning parties other than the applicant and not dealing with the Code meets the requirements of section 45.1.

Deferral

6Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure, the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. In each case, the Tribunal must consider, in light of the particular circumstances, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

7The Tribunal has insufficient information to determine whether it would be fair just and expeditious to defer to the Canadian Human Rights Commission process. However, there is information on the file concerning the applicant's appeal with the Canada Revenue Agency (“CRA”).

8Materials filed with the Response include a letter of September 28, 2009, from the Director General of the Benefit Programs Directorate of the CRA to the Canadian Human Rights Commission. The letter indicates that, effective August 12, 2009, the CRA will no longer prevent a non-resident female spouse from filing a waiver on behalf of her spouse that attests that he is primarily responsible for the care and upbringing of their children in their household. The letter states that the CRA is now preparing to accept a waiver submitted by the applicant’s spouse, and to reconsider his application for retroactive benefits.

9The applicant’s Reply indicates that he has an appeal in the system, and has received correspondence from the Appeals Division. He objects to deferring on the basis that he has waited years, and that “it would take a further six months for them even to get back to me”.

10In the circumstances, the Tribunal agrees that it would be appropriate to defer this Application until the applicant's appeal is dealt with. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the other proceeding has been concluded.

ORDER

11Tribunal orders the deferral of the Application pending the conclusion of the CRA appeal process.

12I am not seized of this matter.