Taylor v. Ontario (Revenue), 2011 HRTO 1522

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isobel Taylor

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Revenue

Respondent

Decision

Adjudicator: David A. Wright

Date: August 15, 2011

Citation: 2011 HRTO 1522

Indexed as: Taylor v. Ontario (Revenue)

WRITTEN SUBMISSIONS

Isobel Taylor. Applicant ) Self-represented

Her Majesty the Queen in Right ) of Ontario ) Lori Patyk and Jessica Fiore, Counsel as represented by the ) Minister of Revenue, ) Respondent

INTRODUCTIOn

1The issue in this Decision, as in the companion case of Landau v. Ontario (Revenue), 2011 HRTO 1521, released concurrently, is whether the Application, which alleges that the Ontario Sales Tax Transition Benefit (“OSTTB”) is a “service” within the meaning of the Code. Section 10(1) of the Code provides that services “does not include a levy, fee, tax or periodic payment imposed by law”. For the reasons given in Landau, I find that the OSTTB, provided for in s. 104.12 of the Taxation Act, S.O. 2007, c. 11 (the “Act”), does not fall within the social area of “services” because of s. 10(1) and the Application is therefore outside the jurisdiction of the Tribunal.

SUBMISSIONS OF THE PARTIES

2The respondent’s submissions are similar to those it made in Landau. The applicant notes that the Code takes precedence over other legislation and that it must take priority over the Taxation Act. She notes that the Ontario Human Rights Commission’s Guide to Your Rights and Responsibilities Under the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) states that “benefits” provided by government are protected by the Code. She notes that under the Act, both the Ontario Child Benefit and the OSTTB are paid to eligible recipients and are deemed to be an overpayment of tax. She states that in Vegh v. Ontario (Finance), 2009 HRTO 2005, the Tribunal suggested that the Ontario Child Benefit was a “service” under the Code. She also notes that in Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595 and in Ball v. Ontario (Community and Social Services), 2010 HRTO 360, the Tribunal found that benefit payments were a service. The applicant relies upon various Workplace Safety and Insurance Appeals Tribunal decisions, which found that workplace safety and insurance benefits were not excluded from the Code because of s. 10(1). She also relies upon Hotte v. Ontario (Finance), 2009 HRTO 458, noting that although that Application was dismissed, the Tribunal did not hear submissions on the argument that the income tax provision was not a service and appeared to assume jurisdiction over the Application.

ANALYSIS

3In Landau, I held as follows at paras. 12-19:

While it may be helpful to refer to particular rules of statutory interpretation, the fundamental principle in interpreting any statute, including the Code, is to take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Rizzo v. Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42. In applying this principle in the context of the Code, rights are to be interpreted broadly and exceptions narrowly.

Quotations from legislative debates are of limited use. The Supreme Court of Canada has relaxed the previous rule prohibiting the admission of such evidence entirely, finding that it can have a limited role in “as relevant to both the background and purpose of legislation”: R. v. Morgentaler, [1993] 2 S.C.R. 463 at p. 484; Rizzo, supra at para.35. The Tribunal must treat such evidence carefully because the intent of the legislature cannot be gleaned merely from the statements of one of its members, even if that member is the Minister who introduced a bill or the member who introduced an amendment. In my view, it is important to tread particularly carefully in the context of human rights legislation, which is quasi-constitutional, and should not be interpreted in a manner that attempts to reflect what was in the mind of those who drafted it.

In my view, the statements cited are of limited use in interpreting the meaning of the exception in s. 10(1). The quotation from committee debates relied upon by the respondent merely speaks to one person’s opinion of what was said by “treasury” and I cannot draw any useful conclusions from it. As for the quotation from the Minister of Labour relied upon by the applicant, it reflects a broad view of the interpretation of the word services, but in my view this adds little to the presumption that Code rights will be interpreted broadly.

I do not accept the respondent’s argument that s. 10(1) exempts all payments from government to individuals from the application of the Code. It is well established that periodic benefit payments by governments to individuals fall within the definition of “services” in the Code: see, for example: Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593; Ball v. Ontario (Community and Social Services), Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482; Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595. The WSIAT cases cited above are consistent with these principles. Section 10(1) does not exempt all payments from the government to individuals from the application of the Code.

However, that does not resolve the question at issue in this case. The OSTTB is a payment made as part of the government’s transition to the HST, is provided for under the Taxation Act through a deemed overpayment of tax for the year, and is administered through the tax system. In my view, s. 10(1) applies in this situation and the OSTTB is not a “service” within the meaning of the Code.

I agree with the applicant that the interpretation should take into account the list of words in the exemption: levy, fee, tax or periodic payment imposed by law. In my view, however, taking into account this list does not suggest that the exemption applies only to payments flowing from individuals to governments and can never apply to a payment flowing from government. Rather, they suggest an intention to exempt payments from government to individuals from the application of the Code, where those payments are reasonably considered part of the tax system. In my view, s. 10(1) applies when the tax system includes a periodic payment imposed by law, whether flowing from government or to government. This interpretation ensures that the purposes of the Code in general and the prohibition of discrimination with respect to services are fulfilled by including government benefits in s. 1 of the Code, while also respecting the intention of s. 10(1) to exempt taxation, recognizing the many ways in which tax policy can be implemented in a complex modern society.

Applying this approach, I find that every indication is that the OSTTB is an integral part of taxation and tax policy. It was implemented as a temporary measure as part of the transition to the HST, because the government believed that higher amounts of sales tax would be paid by individuals during the transition period as prices adjusted. The payment is made on account of a deemed overpayment of taxes. It is a general payment which is paid to residents of Ontario who have filed a tax return (except relatively high income earners) based upon the individual’s adjusted income for the previous year. In my view, considered in its full context, the OSTTB is a periodic payment imposed by law that is an integral part of the system of taxation. Accordingly, it is not a “service” under s. 1 of the Code and the Application is outside the Tribunal’s jurisdiction.

4The analysis in Landau applies equally to the present case. It explains the difference between the government benefit cases relied upon by the applicant and this case. In Vegh, relied upon by the applicant, the adjudicator merely found that it was not “plain and obvious” that the Child Tax Benefit is not a “service”. In the Tribunal’s process, a decision at a preliminary stage that it is not plain and obvious that an Application is outside its jurisdiction is not a final decision on the issue of jurisdiction. Moreover, it does not appear that s. 10(1) was argued in that case. In Hotte, the issue of s. 10(1) was also not addressed as the matter was dismissed on a different basis. I do not find either of these cases of assistance.

5Accordingly, I find that this Application is outside the Tribunal’s jurisdiction and it is dismissed. A copy of Landau will be sent to the applicant with this Decision.