News Update – September 28, 2022

In this Breaking News edition, we feature a case wherein the Tribunal finds that the Schedule infringes upon the Human Rights Code, although ultimately there was no remedy available for the Applicant within the jurisdiction of the Tribunal.

Tribunal Finds Schedule Infringes Upon Human Rights Code

Infringement Upon Human Rights Code – In 20-001143 v Allstate the Tribunal was tasked with determining amongst other things, whether the calculation provided for in s. 4(3) of the Schedule infringes upon the Ontario Human Rights Code (the Code). And if so, whether it was appropriate for the Tribunal “to craft an individual remedy which does not infringe the Code?” The Tribunal found that “section s.4(3) of the Schedule infringes the Code on the ground of sex/pregnancy”, however “the Code does not authorize me to craft the remedy sought by the applicant.”

In the within matter, the Applicant Eid, injured in a May 2017 accident, was self employed, and had been on maternity leave in October 2015, returning to work August 15, 2016. As a result, Eid submitted that “her pre-accident fiscal year income was negatively affected by her pregnancy and maternity leave. The calculation of the IRB on the basis of the last fiscal year results in unfairness and discrimination.” Eid further submitted that were she an employee, she would have the option of selecting her prior four or 52 weeks pre-accident as per s.4(2) of the Schedule. Were the Tribunal not to consider time off work due to maternity/paternity leave, it would “ignore the Code and create a breach of their fundamental human rights.” Specific reference was made to s.10(2) of the Code, which states “The right to equal treatment without discrimination of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.”

Eid submitted that a calculation using the prior 52 weeks “would be a proper contextual interpretation of section 4 of the Schedule and would be consistent treatment with individuals who do not become pregnant or take maternity or paternity leave and therefore would not infringe the Code.” Allstate in response submitted that s.4(3) “treats self-employed persons equally. For all self-employed persons, leaves of absence will affect their income.” After considering a number of arguments with respect to the method of calculating Eid’s IRB, the Tribunal found that s.4(2) applies only to self – employed persons who were also “employed” during the qualifying period. Therefore, Eid’s last completed taxation year as per s.4(3) of the Schedule was to be used.

However, the Tribunal then found that “section 4(3) of Schedule has a discriminatory effect on the applicant because of her pregnancy, which is found under the protected ground of sex. This is prohibited under section 10(2) of the Code.” Finding submissions by Allstate as “equivocal”, they did state that “if a leave relates to a protected ground, such as family status, such an impact could potentially be considered discriminatory under the Code.” Despite this finding, the Tribunal further found that it was unable to grant the remedy sought by Eid.

It was then confirmed that “there is no express and implied authority which allows the Tribunal to amend the Schedule.” Further, “there must be a reason as to why the Legislature set out different criteria regarding how the IRB is to be calculated when one is employed, not employed or self-employed. I am required to respect the Legislature’s clear intention even though it may result in unfairness to the applicant.”

After an extensive review of applicable case law, “the key takeaway from the case law is that there are limits to the Code.” The Tribunal “can exercise the power specifically given to it to apply the Code as prevailing over the actual enactment in the Insurance Act, where the latter has a discriminatory effect”. However, “the Code does not authorize the remedy sought by the applicant, which would require reading in or amending the language in section 4(3) of the Schedule. Moreover, the wording in the Schedule and Insurance Act do not authorize the Tribunal to add language to what has been enacted by the Legislature. The applicant asks me to do just that, a power which I find to be usurping the role of the Legislature and therefore outside of the Tribunal’s jurisdiction.”

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