Landau v. Ontario (Finance), 2011 HRTO 2058

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Reva Landau

Applicant

-and-

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

Respondent

RECONSIDERATION Decision

Adjudicator: David A. Wright

Date: November 10, 2011

Citation: 2011 HRTO 2058

Indexed as: Landau v. Ontario (Finance)

WRITTEN SUBMISSIONS

Reva Landau. Applicant ) Self-represented

1The applicant seeks reconsideration of the Tribunal’s decision of August 15, 2011, 2011 HRTO 1521, 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 resulting from 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 argues that the Decision is in conflict with established jurisprudence for the following reasons:

(i) It is inconsistent with the principle of statutory interpretation that if there is a list of items, and one item may have a broader or narrower meaning, then it is necessary to consider the general nature of the others to determine how broadly or narrowly the phrase with more than one meaning should be interpreted (which she notes is sometimes referred to as the noscitur a sociis principle);

(ii) It is inconsistent with the principle that human rights legislation should be given a broad and liberal interpretation and exceptions should be narrowly construed; and

(iii) The Tribunal’s statutory interpretation led to an absurd result. She states that the Tribunal’s interpretation would lead to the result that a one-time payment by the government would be covered by the Legislation whereas multiple payments would not.

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 in interpreting a specific Code provision. That would be to turn reconsideration into an appeal. Rather, the 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, Taylor v. Ontario (Revenue), 2011 HRTO 1522 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 the jurisprudence. The requirement of a conflict with the jurisprudence has not been met.

6The principles the applicant relies upon do not, as she suggests, lead inexorably to the conclusion that her Application falls under the Tribunal’s jurisdiction nor does the Tribunal’s reasoning lead to an absurd result, in my view. There is no need to decide here whether, as she suggests, a single payment like the HSTTB would fall under the exemption in s. 10(1) - that question was not addressed in this decision as it did not need to be. As for the implications of the proposed interpretations, in my view the applicant’s proposed interpretation would create an arbitrary and unprincipled distinction: a tax credit resulting in a reduction or refund of taxes would not be subject to the Code, while a separate payment on account of tax transitions such as the OSTTB would be. I can see no reason why the Legislature would intend such a distinction, and in my view, the consideration of the proposed implications of different interpretations favours the finding that s. 10(1) exempts the OSTTB from the Code.

7The Request for Reconsideration is dismissed.