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
RECONSIDERATION Decision
Adjudicator: David A. Wright
Indexed as: Taylor v. Ontario (Revenue)
WRITTEN SUBMISSIONS
Isobel Taylor, Applicant ) Self-represented
1The applicant seeks reconsideration of the Tribunal’s Decision, 2011 HRTO 1522, dismissing this Application on the basis that it is outside the Tribunal’s jurisdiction. The Tribunal found that the Ontario Sales Tax Transition Benefit (“OSTTB”), a payment made by the government to individuals as part of the transition to the Harmonized Sales Tax (“HST”) was a “levy, fee, tax or other periodic payment imposed by law” under s. 10(1) of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) and therefore fell outside the social area of “services” in s. 1 of the Code. The Request for Reconsideration is dismissed.
2The applicant relies upon Rule 26.5 (c), which provides:
A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:
(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance.
3The applicant’s submissions make clear her view that the Tribunal’s Decision is incorrect. Her principal arguments are as follows:
The Tribunal did not correctly apply the principle that in interpreting the Code, rights are to be construed broadly and exceptions narrowly;
The OSTTB is not a “tax” because it is not a payment to government, and is not “imposed by law” because a payment from government is not “imposed” but “conferred”. In s. 147 (2) of the Taxation Act, S.O. 2007, c. 11 which deals with sharing of information between federal and provincial tax authorities, it refers to other legislation that “imposes a tax or confers a benefit”;
The Taxation Act relates to income tax, not sales tax. Various Tax Court of Canada cases have suggested that a “deemed overpayment of tax” is a fiction. The Ontario government is merely using a tie-in with income tax in order to have access to the required data from the Canada Revenue Agency; and,
The Tribunal did not explicitly refer to some of the jurisprudence and other statutory provisions cited by the applicant.
4Reconsideration is not an appeal, and is granted only in limited circumstances. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, 2008 HRTO 34, at paras. 56-57:
As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.
Secondly, assertions of a “conflict” must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a “conflict” can only be made taking into consideration the full context of the decisions.
5As Sigrist makes clear, a “conflict with established jurisprudence” cannot be based merely on an alleged misapplication of general principles of statutory interpretation, tax law, or previous general statements when interpreting a specific Code provision. That would be to turn reconsideration into an appeal. Rather, the alleged conflict must be based on an established line of case law applying a particular provision in a context that is directly applicable. That is not the case here. This and its companion case, Landau v. Ontario (Finance), 2011 HRTO 1521 are to my knowledge the first cases dealing with the question of whether payments by government to offset tax revenue collected elsewhere fall within the exemption in s. 10(1). The Tribunal applied established principles of statutory interpretation, in particular the purposive and contextual approach the Supreme Court has directed should always be used, but reached a different conclusion on the basis of those principles than that the applicant favoured. That difference does not establish a conflict with established jurisprudence.
6The principles the applicant relies upon do not, as she suggests, lead clearly to the conclusion that her Application falls under the Code. The determination of Legislature’s intention requires a purposive analysis in the statutory context, and the fact that the Tribunal reached a conclusion that excluded her claim does not mean that the relevant principles were not applied. It is neither required nor necessarily desirable for an adjudicator to address in reasons each and every case or argument put forward by a party in reaching its decision. In this case some of the decisions the applicant referenced were not directly on point nor necessary to or in conflict with my reasoning.
7There is no significance to the use of the word “imposed” in s. 10(1) as opposed to “conferred”. I understand it to be a reference to being enshrined in legislation. Section 147 (2) of the Taxation Act, which relates to sharing of information regarding programs other than the Taxation Act, in no way establishes a general principle that in the statutes of Ontario, the word “imposed” can only apply to a payment by individuals to government. It is, in my view, of little or no assistance in a purposive interpretation of s. 10 of the Code.
8For all these reasons, the Request for Reconsideration is dismissed.
Dated at Toronto, this 10^th^ day of November, 2011.
“signed by”
David A. Wright
Associate Chair