Discrimination under Ontario’s Human Rights Code is Restricted to Enumerated Grounds: A Reminder in Stukanov v Paypal Canada Inc.

Yona Gal, J.D., LL.MAdministrative Law, Tribunals0 Comments

A recent decision of the Human Rights Tribunal of Ontario (“HRTO”) serves as a reminder that grounds for discrimination under Ontario’s Human Rights Code (“Code”) are restricted to those enumerated in the Code.  Analogous grounds are not prohibited.

In Stukanov v Paypal Canada Inc., 2019 HRTO 386, the HRTO dismissed an application alleging that Paypal discriminated against Canadian residents.

Facts

The applicant wanted to close his U.S. dollar account with Paypal and have the account money sent to him in U.S. dollars, either by cheque or by direct deposit into his U.S. dollar account at his Toronto bank.

Paypal, apparently, would not send a cheque to Canada, and would only deposit money into a Canadian dollar account when sending money to a bank located in Canada.

The applicant’s primary allegation was that he cannot receive his Paypal funds in U.S. dollars because he is a Canadian resident.  He claimed that this amounted to discrimination on the basis of his place of residence.  Although “place of residence” is not an enumerated ground under the Code, the applicant argued that it should be read in as an analogous ground of discrimination based on case law decided under s. 15(1) of the Canadian Charter of Rights and Freedoms (“Charter”).

Law

Although Section 15 of the Charter specifies grounds of discrimination, it introduces the particular grounds with a general prohibition against discrimination.  It reads:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

In Andrews v Law Society of British Columbia, 1989 SCC 2, the Supreme Court of Canada held that the general prohibition in Section 15 of the Charter is not exhausted by the enumerated grounds, but may include analogous grounds which may be “read in” to Section 15.

(The Supreme Court stated: “Furthermore, and this is a distinction of more importance, all the Human Rights Acts passed in Canada specifically designate a certain limited number of grounds upon which discrimination is forbidden.  Section 15(1) of the Charter is not so limited.  The enumerated grounds in s. 15(1) are not exclusive and the limits, if any, on grounds for discrimination which may be established in future cases await definition.”)

As indicated, Section 1 of the Code does not include a broad general prohibition against discrimination.  Rather, it prohibits discrimination in services only with respect to the specifically enumerated grounds in Section 1.  It states:

“Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.”

Ontario’s Code “does not cover every form of discrimination in every circumstance” but rather reflects the choices legislature has made about what forms of discrimination should be prohibited and in which social areas [Pelham v Myrtrak Health Systems, 2009 HRTO 172].

Consequently, “place of residence” is not an enumerated ground and cannot be read in under the Code.

(The applicant also argued that Paypal’s actions amounted to discrimination based on citizenship, as most people who live in Canada are Canadian citizens.  The HRTO rejected this argument, holding that it is merely a different way of stating the primary claim of discrimination based on place of residence.)

Conclusion

Accordingly, the HRTO concluded that there was no reasonable prospect of success for the applicant’s allegation of discrimination and dismissed the application on that basis.

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Yona Gal, J.D., LL.M

Yona Gal, J.D., LL.M

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