Debski v. Service Canada Government of Canada, 2016 HRTO 558

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wojciech Debski

Applicant

-and-

Service Canada Government of Canada and Her Majesty the Queen in Right of Ontario as Represented by the Minister of Finance

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: April 27, 2016

Citation: 2016 HRTO 558

Indexed as: Debski v. Service Canada Government of Canada

WRITTEN SUBMISSIONS

Wojciech Debski, Applicant

Self-represented

Introduction

1This Interim Decision explains why part of this Application is dismissed.

2The applicant alleges he has been discriminated against in services on the basis of age and disability. He takes issue with the amount of government benefits, including Old Age Security, Canada Pension Plan and Guaranteed Annual Income System (GAINS) that he and his wife are paid now that he is over 65 years of age, which he asserts is less than before he turned 66. He named the Government of Canada as the respondent in this matter.

3The Tribunal issued a Notice of Intent to Dismiss (“NOID”) dated March 22, 2016 advising the applicant that it intended to dismiss his Application because:

a. The respondent appears to be a federal government department, agency or a federally regulated employer or service provider. See for example Masood v. Bruce Power, 2008 HRTO 381 [“Masood”], and,

b. It appears that your Application does not raise a social area covered by the Human Rights Code. Section 10 (1) of the Human Rights Code states that the social area of services “does not include a levy, fee, tax or periodic payment imposed by law”. See Landau v. Ontario (Finance), 2011 HRTO 1521 [“Landau”].

4In response to the Tribunal’s NOID, the applicant provided written submissions.

applicant’s submissions

5The applicant submits that the events of which he complains are in Ontario. In addition, it is not just his federal benefits that are affected, but also his provincial benefits.

6He further submits that there is no mention of “federal” in the Code, and in the spirit of the Code, the respondent is not excluded from the area of “services” which is the area in which he claims discrimination in this case.

7He further submits that the government benefits in relation to which he takes issue are not a tax; are not a levy, which he understands pertains to the military; and are not a periodic payment because they are paid permanently, and therefore Landau should not apply.

8The applicant also submits that because the Tribunal has jurisdiction to exercise the power conferred on it by or under the Code and to determine all questions of fact or law that arise in any application before it, the Tribunal has jurisdiction to consider his Application.

ANALYSIS AND DECISION

Jurisdiction - Federal

9Rule 13 of the Tribunal’s Rules of Procedure states:

The Tribunal may, on its own initiative or at the request of a Respondent, filed under Rule 19, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal.

10A dismissal under Rule 13 occurs before an application is served on a respondent. At this preliminary stage, the Tribunal can only dismiss an Application where it is “plain and obvious” that it is outside the Tribunal’s jurisdiction. See, Masood, above.

11In this case, it is plain and obvious that this Tribunal has no jurisdiction over the government of Canada. See, for example: Menzel v. Canada (Citizenship and Immigration), 2008 HRTO 238. The Canadian Human Rights Commission has the power to deal with human rights matters that fall under federal jurisdiction.

12For this reason, the Application is dismissed with respect to the applicant’s allegations dealing with Old Age Security and Canada Pension Plan, both of which are administered by the federal government.

13Although the applicant did not name the Ontario provincial government as a respondent, in his narrative he did take issue with the payment of GAINS which is a provincial government payment. Therefore, the Application is not dismissed on this basis with respect to the issue of GAINS payments because it is not “federal”. I turn now to whether or not the portion of the Application dealing with the GAINS provincial payment will continue in the Tribunal’s process, or if it is dismissed in accordance with Landau.

Social Area of “Services”

14I must determine if the Application raises a social area covered by the Code. Section 10 (1) of the Code states that the social area of services “does not include a levy, fee, tax or periodic payment imposed by law”. See: Landau.

15The Tribunal in Landau also recognized however 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 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.

16At this preliminary stage given what appears to be the nature of the GAINS program, it is not plain and obvious that section 10(1) is a bar to this Application proceeding.

17The Application is not dismissed by virtue of section 10(1) of the Code and will continue as against Her Majesty the Queen in Right of Ontario as Represented by the Minister of Finance.

order

18The Application is dismissed as against the named respondent, Service Canada Government of Canada.

19The Application is not dismissed and will continue in the Tribunal’s process as against Her Majesty the Queen in Right of Ontario as Represented by the Minister of Finance with respect to the GAINS payment.

20A copy of this Application will be delivered by the Tribunal to the respondent, Her Majesty the Queen in Right of Ontario as Represented by the Minister of Finance.

21I am not seized of this matter.