Stukanov v. Human Rights Tribunal of Ontario, 2021 ONSC 262
CITATION: Stukanov v. Human Rights Tribunal of Ontario, 2021 ONSC 262
DIVISIONAL COURT FILE NO.: 251/20 JR
DATE: 2021/01/11
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Lederer and Sheard JJ.
BETWEEN:
IGOR STUKANOV
Igor Stukanov, acting in person
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO
Jason Tam and Katia Snukal, counsel for Respondent Human Rights Tribunal of Ontario
Respondent
– and –
PAYPAL CANADA CO.
Tanya Walker, counsel for the Respondent, PayPal Canada Co.
Respondent
HEARD by videoconference: January 11, 2021
Oral Reasons for Judgment
Sachs, J. (Orally)
[1] This is an application for judicial review of a decision by the Human Rights Tribunal of Ontario (“HRTO” or “Tribunal”) dismissing the Applicant’s complaint that he had been discriminated against by Paypal.
[2] The HRTO’s original decision dismissing the Applicant’s complaint was made on March 5, 2019. On May 8, 2020, the HRTO issued a decision declining to reconsider its original decision.
[3] The Applicant’s complaint against Paypal arises from the fact that Paypal refused to issue a cheque to him in US dollars for the amount that he had in a Canadian Paypal account that he wished to close.
[4] Payment by cheque was not a feature available to Canadian Paypal accountholders pursuant to the terms of its contract with those accountholders. Paypal offered the Applicant other options for withdrawing the funds, all of which the Applicant refused.
[5] Before the HRTO, the Applicant alleged that Paypal’s actions in refusing to issue him a cheque discriminated against him on the basis of ethnic origin, place of residence and citizenship. The HRTO dismissed his complaint by way of a summary hearing for lack of jurisdiction. Specifically, the HRTO found that the essence of the Applicant’s claim was an assertion of discrimination on the basis of residence and that residence is not an enumerated ground of discrimination under the Human Rights Code, R.S.O. 1990 c.H. 19. Further, the Code did not allow the Tribunal to establish analogous grounds of discrimination.
[6] Before us, the Applicant alleged that the Tribunal’s decision was not “legal”, was procedurally unfair and was unreasonable. In essence, he argued that the Tribunal failed to appreciate the nature of his complaint, which was not limited to residence; failed to consider other forms of discrimination other than direct discrimination (e.g. constructive discrimination) and failed to consider or deal with the “mathematical proofs” that he had filed that established this discrimination to the requisite standard of proof namely, balance of probabilities.
[7] The Applicant argued that the HRTO was biased and denied him procedural fairness when it failed to consider his “mathematical proofs”. He also submitted that the Tribunal’s decisions should be set aside on the basis of delay. Finally, he maintained that the Tribunal’s decisions did not meet the threshold of transparency, intelligibility and justifiability inherent in the concept of reasonableness.
[8] The Tribunal appeared primarily for the purpose of making submissions on the standard of review. According to the Tribunal, the Court of Appeal’s recent decision in Longueépée v. University of Waterloo, 2020 ONCA 830 lends support to its view that the applicable standard of review is patent unreasonableness. In Longueépée, the Court of Appeal found that the decision it was reviewing was both unreasonable and patently unreasonable. In view of this, the Court found at para. 10 that “It is both unnecessary and unwise in this appeal to determine whether, post-Vavilov, decisions of the HRTO are subject to a “patent unreasonableness” standard of review, and indeed whether, in this context, a review for “patent unreasonableness” is something different from a “reasonableness” review.”
[9] In the case at bar, for the reasons that follow, we find that the Tribunal’s decisions were reasonable. Thus, there is no need for us to go further to consider whether the applicable standard is patent unreasonableness. In saying this, we are consciousness of the fact that this Court has already issued several decisions on this subject, at least one of which is preceding to the Court of Appeal.
[10] The Tribunal’s finding that the Applicant’s compliant of discrimination was essentially one based on residence was a reasonable one. There was no evidence before the Tribunal of any discrimination based on ethnic origin, place of origin or citizenship. As found by the Tribunal in its reconsideration decision, the Applicant’s “mathematical proofs” do not constitute such evidence.
[11] The Tribunal also reasonably found that residence was not an enumerated ground under the Code. The Applicant asserted that residence could be considered an analogous ground. First, unlike in Charter litigation, the Tribunal has no jurisdiction to identify analogous grounds under the Code. Second, in several decisions, the Supreme Court of Canada has found that residence is not an analogous ground under Section 15 of the Charter (see for example, Siemens v. Manitoba (Attorney General) 2003, SCC 3).
[12] With respect to procedural fairness, there is no evidence that the Tribunal was biased or failed to consider the Applicant’s arguments. The Tribunal listened to and considered the Applicant’s submissions. It just did not accept them. This does not constitute bias or a breach of natural justice.
[13] On the issue of delay, this issue was not raised by the Applicant in his factum. Further, there is no evidence of any prejudice to the Applicant by virtue of the delay, let alone any prejudice that would justify the setting aside of the Tribunal’s decisions.
[14] In short, we find that the Tribunal’s decisions were both reasonable and made in accordance with the rules governing procedural fairness. For these reasons, the application is dismissed.
[15] The Applicant is to pay to the respondent, Paypal, its costs of this application fixed in the amount of $5,000 all inclusive.
___________________________ Sachs, J.
I agree
Lederer, J.
I agree
Sheard, J.
Date of Oral Reasons for Judgment: January 11, 2021
Date of Release: January 21, 2021
CITATION: Stukanov v. Human Rights Tribunal of Ontario, 2021 ONSC 262
DIVISIONAL COURT FILE NO.: 251/20 JR
DATE: 2021/01/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Lederer and Sheard JJ.
BETWEEN:
IGOR STUKANOV
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondent
– and –
PAYPAL CANADA CO.
Respondent
ORAL REASONS FOR JUDGMENT
Sachs, J.
Date of Oral Reasons for Judgment: January 11, 2021
Date of Release: January 21, 2021