CITATION: Landau v. Ontario (Minister of Finance), 2012 ONSC 6926
DIVISIONAL COURT FILE NO.: 144/12
DATE: 20121212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hackland R.S.J., Aston and Lederer, JJ.
BETWEEN:
Reva Landau
Applicant
– and –
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Finance and the Human Rights Tribunal of Ontario
Respondents
COUNSEL:
Reva Landau, self-represented
Brian A. Blumenthal, for the Respondent, Human Rights Tribunal of Ontario
Lori E.J. Patyk, for the Respondent Her Majesty the Queen in Right of Ontario as Represented by the Minister of Finance
HEARD: December 4, 2012
aston j.
[1] Ms. Landau brings this judicial review application to quash decisions of the Human Rights Tribunal of Ontario (the “Tribunal”) dated August 15, 2011 (the “original decision”) and November 10, 2011 (the “reconsideration decision”), both decided by its Associate Chair, D. Wright.
[2] The applicant had applied to the Tribunal to challenge the Ontario Sales Tax Transition Benefit (the “OSTTB”) under s. 1 of the Human Rights Code (the “Code”) as a discriminatory service. Ms. Landau alleged she was discriminated against on the basis of marital and family status. The original decision dismissed her application.
[3] The OSTTB involved a three-installment payment from the Government of Ontario during the transition to the harmonized sales tax, under s. 104.12 of the Taxation Act, 2007. For single individuals with an income of less than $80,000 annually the total of the three payments was $300. For individuals with a spouse and/or children who had a family income of less than $160,000 the total of the three payments was $1,000. The practical effect is that married individuals within a certain income bracket received $500 per person whereas single individuals with comparable per capita income received just $300.
[4] The Tribunal did not decide the matter on the merits. On a preliminary basis it held that the Tribunal did not have jurisdiction to consider the application because the OSTTB did not constitute a “service” within the meaning of the Code.
[5] Section 10(1) of the Human Rights Code provides that “services” does not include “a levy, fee, tax or periodic payment imposed by law”. The threshold question was whether or not the OSTTB fell within that statutory exclusion.
[6] The Tribunal first found that s. 10(1) does not exclude all payments flowing from governments from the definition of “services” under the Code, but that this did not mean that such payments can never be excluded under that section. It went on to find that the OSTTB is an “integral part of taxation and tax policy”. It accepted the rationale of the payment as a “deemed overpayment of taxes”.
[7] In the decision of November 10, 2011, the Tribunal denied Ms. Landau’s reconsideration request on the basis that she was simply re-arguing her case without demonstrating that the earlier decision was in conflict with established jurisprudence.
[8] On this application Ms. Landau submits that the Tribunal erred in law in its conclusion that the OSTTB is not a “service” within the meaning of the Code. She also submits that it failed to give adequate reasons. With respect to the reconsideration decision, she submits there is a reasonable apprehension of bias.
[9] I will address each of these issues, but begin with an articulation of the standard of review on each of them.
[10] A reasonable apprehension of bias allegation raises an issue of natural justice and procedural fairness. This does not involve any standard of review analysis because if the applicant can establish a reasonable apprehension of bias the decision must be set aside without regard to whether it is reasonable or not. See Ahmed v. Criminal Injuries Compensation Board, (2008) 2008 30297 (ON SCDC), 90 O.R. (3rd) 475 (Div.Ct.) at para. 18.
[11] Inadequacy of reasons is not a free standing basis for setting aside a decision. Either no reasons are given where they are required, in which case there has been a breach of procedural fairness, or some reasons have been given in which case the adequacy of the reasons simply forms part of the review analysis of the decision on a reasonableness standard. See Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, 2011 S.C.C. 62 at paras. 20-22.
[12] The applicant submits that on the question of whether the Tribunal erred in law in an exercise of statutory interpretation, the standard of review is correctness. We disagree. The Tribunal has specialized expertise with respect to the interpretation and application of human rights law and it was interpreting its own home statute. There is a presumption that deference applies. See Alberta (Information and Privacy Commissioner) v. Alberta Teachers Association 2011 SCC 61, 2011 S.C.C. 61 at paras. 34 and 39.
[13] With respect to the reconsideration decision, the Tribunal was not only interpreting its own Rule, it was exercising a discretionary function. Apart from the question of bias, the reconsideration decision is therefore to be reviewed on a reasonableness standard as well.
[14] The key issues then on this application are as follows:
(i) Was there a reasonable apprehension of bias with respect to the reconsideration decision?
(ii) In the reconsideration decision, did the Tribunal unreasonably interpret and apply Rule 26.5 of the Tribunal’s Rules?
(iii) In the original decision, was the Tribunal’s analysis of s. 10(1) of the Code, and its jurisdictional conclusion, unreasonable?
(i) Was there a reasonable apprehension of bias with respect to the reconsideration decision?
[15] The applicant submits no one should sit in appeal on a review of his or her own decision. She submits that the Tribunal’s Practice Direction on reconsideration, specifically allowing adjudicators to reconsider their own decisions, is insufficient to avoid the reasonable apprehension of bias. The well known test for “reasonable apprehension of bias” is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly.
[16] We agree with the Tribunal submission on this point. The mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme.
[17] A reconsideration is not an appeal or a hearing de novo. More importantly perhaps, there is no right to have a decision reconsidered. Under s.45.7(2) of the Code “the Tribunal may reconsider its decision” but is not bound to do so. The original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions. In this case, the applicant has not established anything more than the fact that the Associate Chair was reviewing his own decision. By itself that does not constitute a breach of procedural fairness under this legislative scheme. We would therefore not give effect to this ground of appeal.
(ii) In the reconsideration decision, did the Tribunal unreasonably interpret and apply Rule 26.5 of the Tribunal’s Rules?
[18] Though there is no right to have the original decision reconsidered, the Tribunal does have to follow its own rules and practice directions concerning reconsideration requests.
[19] Rule 26.5(c), which the applicant relies on, provides that a Request for Reconsideration will not be granted unless the Tribunal is satisfied that … “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”.
[20] The Tribunal has published a Practice Direction on reconsideration requests. The Practice Direction clarifies that reconsideration is not an appeal process, nor is it an opportunity for a party to re-argue her case. The Practice Direction also points out that reconsideration is a discretionary remedy; that there is no right to have a decision reconsidered by the Tribunal. As a first hurdle on this ground, the applicant must establish that the Associate Chair’s determination that the original decision was “not in conflict with established jurisprudence or Tribunal procedure” is untenable because it is unreasonable. We are not satisfied that that threshold has been achieved. Different outcomes on fact specific cases do not necessarily establish a conflict with established jurisprudence.
[21] Moreover, the applicant has failed to demonstrate how the discretion in refusing reconsideration was unreasonably exercised.
[22] The challenge to the reconsideration decision is therefore dismissed. We turn next to the original decision of August 15, 2011 and the third issue.
(iii) Was the Tribunal’s analysis of s. 10(1) of the Code, and its jurisdictional conclusion, unreasonable?
[23] The applicant submits that while the OSTTB is “loosely associated” with a tax, it is not itself a tax. It is not “imposed” on individuals and does not require them to pay money to the government. She submits the OSTTB is not excluded by the language of s. 10(1) of the Code and that claims of discrimination should only be excluded by clear language, lest protection against discrimination be eroded. Though the OSTTB is described in the Taxation Act, 2007 as a “deemed overpayment on account of tax” she contends this does not make it a tax for other purposes, such as the Code. The applicant submits that this deeming provision does not extend beyond the Taxation Act, 2007.
[24] The basic issue in this case of whether the OSTTB is a “tax” for the purposes of the Code is a question at the heart of the Tribunal’s expertise. At paragraph 17 of its Reasons the Tribunal expressly considers and recognizes the purpose of the Code and its prohibition against discrimination in providing services. It balances that against the government’s need to implement tax policy in a complex society.
[25] Section 10(1) of the Code recognizes the government’s ability to impose taxes that discriminate on the basis of family or marital status. The OSTTB is the mirror image of that. The Taxation Act, 2007 identifies it as a payment tied to a “deemed overpayment” of tax. It is not insignificant, as observed by the Tribunal, that the OSTTB benefit is administered through the tax system. There was a sound basis upon which the Tribunal could conclude “the OSTTB is an integral part of taxation and tax policy” for the reasons given in paragraphs 17 and 18 of the decision.
[26] The reasons in this case adequately explain the decision maker’s awareness of the need to balance competing considerations. The reasons are adequate if this court, as the reviewing court, is able to understand the reasoning process. They meet that requirement.
[27] The ultimate conclusion that the OSTTB was exempt from the definition of “services” in the Human Rights Code is not unreasonable. Quite the opposite. In examining the purpose and context of s.10(1) of the Code the Tribunal preferred a broad and sensible interpretation over a more narrow literal interpretation.
[28] The application is therefore dismissed.
Aston J.
Hackland R.S.J.
Lederer J.
Released: December 12, 2012
CITATION: Landau v. Ontario (Minister of Finance), 2012 ONSC 6926
DIVISIONAL COURT FILE NO.: 144/12
DATE: 20121212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RSJ Hackland (E), Aston and Lederer, JJ.
BETWEEN:
Reva Landau
Applicant
– and –
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Finance and the Human Rights Tribunal of Ontario
Respondents
REASONS FOR JUDGMENT
Aston J.
Hackland, RSJ (E)
Lederer J.
Released: December 12, 2012