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Human Rights (Ont) - Insurance Exceptions [s.22]. Opara v. Human Rights Tribunal of Ontario
In Opara v. Human Rights Tribunal of Ontario (Div Court, 2023) the Divisional Court considered (and allowed) a human rights JR application relating to the insurance provision [s.22 HRC]:[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 CanLII 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. ...
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