Court File and Parties

CITATION: Opara v. Human Rights Tribunal of Ontario, 2023 ONSC 6594

DIVISIONAL COURT FILE NO.: 222/23

DATE: 20231127

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MICHAEL OPARA, Applicant

AND:

human rights tribunal of ontario, meridian credit union limited, collabria financial services inc., and desjardins financial security life assurance company, Respondents

BEFORE: Backhouse, Matheson and Doyle JJ.

COUNSEL: Wade Poziomka and Nick Papageorge, for the Applicant

Noah Bonder, for the Respondent Desjardins Financial Security Life Assurance Company

Brian A. Blumenthal, for the Human Rights Tribunal of Ontario

HEARD at Toronto: November 21, 2023

Endorsement

[1] The applicant seeks judicial review of the decision of the Human Rights Tribunal of Ontario (“HRTO”) dated December 16, 2022 (the “Decision”) and the reconsideration decision dated March 17, 2023 (the “Reconsideration decision”). The underlying human rights application alleged that the travel insurance included in the applicant’s credit card benefits discriminated based on age. The human rights application was dismissed after a preliminary hearing on the basis that s. 22 of the Human Rights Code, R.S.O. 1990, c. H.19 applied. Section 22 of the Code permits differentiation in insurance if it is based on reasonable and bona fide grounds.

[2] We conclude that this application should be granted, as set out below.

[3] The core error in this matter relates to the onus of proof under s. 22 of the Code. The adjudicator wrongly placed the onus on the applicant. This error is not saved by applying the standard of review of reasonableness, or by regard for the expertise of the HRTO.

[4] By way of brief background, the applicant obtained a credit card through Meridian Credit Union. Collabria Financial Services owned the licence to provide a Visa credit card, Meridian made the card available to its members and Desjardins Financial Security Life Assurance Company underwrote the insurance products associated with the credit card. Desjardins appears on this application for judicial review.

[5] The credit card offered travel insurance with coverage that differed depending on the age of the cardholder. There were limitations on coverage for people over 65 years of age that applied to the applicant. The applicant applied to the HRTO alleging discrimination based on age.

[6] The applicant had brought another application to the HRTO as well, with overlapping parties. In a Case Assessment Direction dated April 6, 2020, the HRTO dealt with a number of issues regarding the two applications. For this one, directions were given for a preliminary hearing to address the issue of whether the application should be dismissed under s. 22 of the Code.

[7] At the preliminary hearing, two witnesses were called – the Chief Marketing Officer of Collabria and an actuary from Desjardins. The applicant called no witnesses.

[8] In the Decision, the adjudicator discussed some of the evidence and the general legal principles that applied to s. 22 of the Code, including Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 67 (SCC), [1992] 2 S.C.R. 321. The adjudicator then gave these reasons:

After listening to the testimony and analyzing the written submissions, I agree with the respondents’ submission that the provisions of the travel insurance contract fall within the scope of s. 22 of the Code and the applicant’s rights to equal treatment have therefore not been infringed.

[9] There was no further analysis in the reasons for the Decision.

[10] The applicant sought a reconsideration. The adjudicator denied the request for reconsideration. Among other things, the adjudicator said as follows:

The onus is on the applicant to prove that s. 22 of the Human Rights Code, does not apply to the applicant and that his Code protect [sic] rights were infringed. The applicant failed to make the case…

[11] There is no issue that the onus regarding s. 22 is on the respondent seeking to benefit from that section: Zurich, at pp. 381-382 (McLachlin J. as she then was, dissenting on other grounds). The HRTO fairly acknowledges the error in the above statement by the adjudicator in the Reconsideration decision. The respondent suggests that the above statement may refer to the threshold for a reconsideration. We disagree.

[12] This plain error by the adjudicator is compounded by the cursory nature of that same adjudicator’s reasons for the Decision. It is generally not good practice to simply adopt one side’s submissions without more, although not always fatal: Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357. However, it is not necessary to consider the question of the adequacy of the reasons for the Decision in any detail here. There is no mention of the onus in the Decision at all and, considering the reasons for the Decision, or lack thereof, the reasons for the Reconsideration decision and the related context, we conclude that the error regarding onus taints the Decision as well.

[13] We therefore conclude that this adjudicator made a fundamental error in this case and the Decision and the Reconsideration decision should be quashed. No recording was made of the preliminary hearing evidence. There is no practical alternative to beginning again. We do not, however, quash the Case Assessment Direction of April 6, 2020. There will be another preliminary hearing as contemplated in that direction.

[14] In addition to the above, the applicant submits that there was a breach of procedural fairness because he was given no disclosure prior to the preliminary hearing. However, it is more accurate to say that the applicant was given some disclosure, but not everything he sought in his request for production of documents.

[15] As set out in the above Case Assessment Direction, the HRTO required that the parties provide witness statements and documents that they intended to rely on at least 45 days before the preliminary issue hearing. Collabria and Desjardins did so. There was also some voluntary disclosure as set out in emails between the parties that form part of the record.

[16] However, the applicant also submitted an extensive request for an order for the production of documents dated July 8, 2020, which was denied. That request included, for example, requests for considerable data for all Meridian credit cards that Desjardins provides insurance for and all notes, emails, minutes or notes of meetings and correspondence, both internal and external, about policies and terms related to Desjardins’ review of the insurance on its credit cards.

[17] The interim decision on the document request indicated that the applicant did not explain why the documents were requested at that stage, but the applicant had provided some submissions. Before this Court, the applicant submits that all of this data/documents was needed to permit the applicant to retain an expert actuary for the purposes of the preliminary hearing. We are not persuaded that is the case. Nor are we persuaded that such an extensive production request is required for the fair determination of the issues on the preliminary hearing. However, it may be that some production is needed. We need not rule on the production request in isolation. Given our decision to require a new hearing, the applicant may make a fresh request for an order for production in accordance with the HTRO process and it will be for the HRTO to address whatever request is made in the first instance.

[18] This application is granted. The Decision and Reconsideration decision are quashed. The preliminary hearing directed in the Case Assessment Direction of April 6, 2020 shall be re-heard, by a different adjudicator, in accordance with the principles set out in this endorsement.

[19] The respondent Desjardins shall pay the applicant costs in the agreed upon amount of $7,500, all inclusive.

Backhouse J.

Matheson J.

Doyle J.

Date: November 27, 2023