Age-based discrimination case given new preliminary hearing at Tribunal following judicial review.

In Opara v. Human Rights Tribunal of Ontario, 2023 ONSC 6594, a judicial review threw out two decisions of the Human Rights Tribunal of Ontario by an applicant alleging age-based discrimination. The applicant had alleged before the HRTO that the travel insurance included in the applicant’s credit card benefits was discriminatory. The coverage provided by the insurance policy was different based on the age of the cardholder, especially for individuals over the age of 65.

Elderly couple putting credit card information into a phone. Whether or not the benefits of a credit card constituted age-based discrimination was the subject at issue in the case of Opara v. Human Rights Tribunal of Ontario

Initial HRTO Decision:

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. Under Section 22, some kinds of insurance policies that are not part of an employment situation can make distinctions based on age, sex, marital and family status, or disability. However, these distinctions must be made on reasonable and bona fide grounds.

The applicant later requested a reconsideration of their dismissed hearing, which was also refused by the HRTO.

The Judicial Review Findings:

In its judicial review, the Divisional Court held that the HRTO erred in holding that the applicant was responsible for showing that section 22 did not apply and that his Code-protected rights had been violated. It is settled law that the legal onus for proving that s.22 did apply is on a respondent as the party seeking to benefit from a statutory defence under the Code: Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 CanLII 67 (SCC)

The Divisional Court further held that this fundamental error by the HRTO adjudicator was compounded by the nature of the reasons for the decision, noting that it is not good practice to simply adopt one side’s submissions in a Tribunal hearing without taking into consideration any additional discussion or analysis. The HRTO adjudicator had agreed in its reasons with the respondents’ submission that the provisions of the travel insurance contract fell within the scope of section 22 of the Code. This was the extent of the HRTO’s findings for its decision.

Judicial Review Decision

The Court therefore granted the application for judicial review and set aside the HRTO decisions. A new preliminary hearing was ordered to be held by a different HRTO adjudicator for the applicant, in accordance with the principles set out in the Court’s decision.