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Poverty - Cases. 2517906 Ontario Inc. (o/a Temporary Personnel Solutions) v. Ontario (Director of Employment Standards)
In 2517906 Ontario Inc. (o/a Temporary Personnel Solutions) v. Ontario (Director of Employment Standards) (Div Court, 2024) the Divisional Court dismissed a JR of ESA officer (under the Ministry of Labour, Skills, Immigration, Training and Development) orders against an employer to pay unpaid wages, based on the finding that the applicants were employers of 'sub-contracted' employees.
Here the court considers 'impecuniousity', as argued against the applicant's ability to use ESA s.116 reviews (which can require the payment of ordered money into trust):[18] For these reasons, where an employer seeks judicial review because of its inability to meet the requirement to pay money into trust, courts should be wary of accepting bald statements of impecuniosity.[6] There must be a high evidentiary threshold, requiring financial disclosure with “robust particularity,” as in a motion for security for costs.[7] This high standard is especially important in the employment standards context, as the Act was created to remedy the unequal bargaining power that non-unionized employees face.[8] As noted by this court, the administrative process under the Act “is not meant to be readily avoided”.[9]
TPS Has Not Demonstrated Impecuniosity
[19] The high standard required for a corporation to establish impecuniosity was summarized in Grayker Corporation v. Fadalti, 2006 CanLII 18365 (Ont. Div. Ct.),[10] [“Grayker”] which, like the current application, was an attempt to bypass the statutory appeal process before the Board and go directly to judicial review:Impecuniosity is something more than having no assets. The plaintiff must establish that it and its shareholders cannot sell assets, borrow or otherwise raise the funds to post the security. That is… the claimant must show that money may not be available to it from its shareholders and associates. [20] In Grayker, Justice Ferrier concluded that, in addition to information about the employer itself, information about its shareholders’ and associates’ personal financial positions may also be relevant to a finding of exceptional circumstances.[11]
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[22] TPS also relies on Carillon Decorative Products Inc. v. Ontario (Employment Standards Officer) (2004), 2004 CanLII 1535 (ON SCDC), 71 O. R. (3d) 500 (Div. Ct.), where the court found that the unchallenged evidence was that Carillon did not have the funds or access to funds sufficient to meet the deposit required.
[23] These cases relied on by TPS are readily distinguishable from the facts in this case. This case does not raise an issue which has never been judicially construed nor is TPS’s evidence of impecuniosity unchallenged. While the amount involved is large, the record does not satisfy me that the high evidentiary threshold has been met to establish that the financial circumstances are such that the employer cannot pay or that doing so would amount to serious hardship that constitutes exceptional circumstances.
[24] No details have been provided of the finances or assets of TPS’s shareholders, directors, or any of their associated businesses. All four of the relevant directors had their own holding companies, none of which have provided any financial disclosure. Two of the directors, Mr. Zefkic and Mr. Venneri, were in a financial position to operate businesses that “engaged in secondary mortgage lending and small business investment”, suggesting that they have sufficient assets to loan sums of money as part of their business operations. The limited financial evidence indicates that one of Mr. Zefkic’s business accounts – the one that TPS was transferring its own account balances into at the time the Orders were made in January and February 2020 – had a balance in excess of $500,000 at the relevant time (and this does not account for his or any of the other directors’ personal or other business’ assets).
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[35] TPS has an adequate alternative remedy under s.116 of the Act which is part of a comprehensive scheme to provide an accessible and expeditious process for the investigation and adjudication of basic employments standards and rights. TPS has not established that it is unable to access the Board review due to impecuniosity. In the circumstances of this matter, a s.116 review is a more suitable and appropriate alternative than judicial review. The Board is in the best position to determine to what extent the Test Case decisions create issue estoppel or an abuse of process. It can also determine the issues raised of procedural fairness, decide the matter de novo and substitute its findings for those of the ESO. . Stamford Kiwanis Non-Profit Homes Inc. v. Municipal Property Assessment Corp.
In Stamford Kiwanis Non-Profit Homes Inc. v. Municipal Property Assessment Corp. (Div Court, 2023) the Divisional Court considered (and dismissed) an appeal by a non-profit housing provider of a dismissal of a Superior Court declaration application [under Assessment Act, s.46] that they were property-tax exempt as a charity.
In these quotes the court sets out statutory provisions governing this issue:[3] The appellant argues that the application judge erred in accepting the joint position of the City and the respondent Municipal Property Assessment Corporation (“MPAC”) that the appellant does not qualify for a municipal tax exemption available to certain charitable institutions: see Assessment Act, R.S.O. 1990, c. A.31, s. 3(1)12(iii). In reaching that conclusion, the application judge found, among other things, that the appellant was not “organized for the relief of the poor”, as those words have been interpreted in previous case law.
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[5] The appellant Stamford Kiwanis Non-Profit Homes Inc. (“Stamford Homes”) is a non-for-profit corporation incorporated in 1984. As stated in its letters patent, Stamford Homes’ corporate objects include the following:a. to acquire, construct, hold, supply, operate, manage and maintain housing accommodations and incidental facilities for the purpose of operating a non-profit housing project for lower income people, senior citizens, functionally handicapped person or others with special needs; and
b. to raise money through subscriptions, memberships. ....
III. Decision under appeal
[11] In November 2021, Stamford Homes brought an application to the Superior Court under s. 46 of the Assessment Act. It sought a declaration that commencing with the 2021 taxation year, the Properties were exempt from municipal taxation pursuant to s. 3(1)12(iii) of that Act. In prior years, Stamford Homes was assessed and paid municipal taxes relating to the Properties.
[12] The introductory language of s. 3(1) of the Assessment Act provides as follows:Property assessable and taxable, exemptions
3(1) All real property in Ontario is liable to assessment and taxation, subject to the following exemptions from taxation: ... [13] The remainder of s. 3(1) consists of a total of 42 clauses (ss. 3(1)1 to 3(1)29) setting out taxation exemptions available to specified types of institutions and organizations. The Court of Appeal for Ontario has recognized that many of such organizations “perform activities which are of great benefit to either discrete groups of disadvantaged persons or to society as a whole. Exemption from property tax allows these organizations to spend more of their limited resources on those activities”, consistent with the organizations’ social and economic purposes: see Ottawa Salus Corp. v. Municipal Property Assessment Corp. (2004), 2004 CanLII 14620 (ON CA), 69 O.R. (3d) 417 (C.A.), at para. 26.
[14] Land exempt from municipal land tax includes property held by charitable institutions specified in s. 3(1)12, which provides as follows:Charitable institutions
12. Land owned, used and occupied by,
i. The Canadian Red Cross Society,
ii. The St. John Ambulance Association, or
iii. any charitable, non-profit philanthropic corporation organized for the relief of the poor if the corporation is supported in part by public funds.
[Emphasis added.] [15] Some of the cases that the parties cite in their submissions were decided prior to the 1998 amendments to the Assessment Act. Prior to those amendments, s. 3(1)12 provided as follows:12. Land of an incorporated charitable institution organized for the relief of the poor, The Canadian Red Cross Society, St. John Ambulance Association, or any similar incorporated institution conducted on philanthropic principles and not for the purpose of profit or gain, that is supported, in part at least, by public funds, but only when the land is owned by the institution and occupied and used for the purposes of the institution. [Emphasis added.] . Falkiner v. Ontario (Minister of Community and Social Services)
In Falkiner v. Ontario (Minister of Community and Social Services) (Ont CA, 2022) the Court of Appeal held that receipt of social assistance was an analogous ground of discrimination under Charter s.15:[84] Additionally, however, I consider that the respondents have been subjected to differential treatment on the analogous ground of receipt of social assistance. Recognizing receipt of social assistance as an analogous ground of discrimination is controversial primarily because of concerns about singling out the economically disadvantaged for Charter protection, about immutability and about lack of homogeneity. Because of these concerns, the Divisional Court concluded that receipt of social assistance is not an analogous ground under s. 15 in Masse v. Ontario (Ministry of Community and Social Services) (1996), 1996 CanLII 12491 (ON SCDC), 134 D.L.R. (4th) 20, 35 C.R.R. (2d) 44 (Ont. Div. Ct.), leave to appeal denied without reasons, [1996] O.J. No. 1526 (C.A.); [1996] S.C.C.A. No. 373 (S.C.C.). These concerns have some validity but I think that recognizing receipt of social assistance as a ground of Charter protection under s. 15(1) is justified for several reasons.
[85] First, the main question in deciding whether a ground of discrimination should be recognized as analogous is whether its recognition would further the purpose of s. 15, the protection of [page507] human dignity. See Corbiere, supra. The nature of the group and Canadian society's treatment of that group must be considered. Relevant factors arguing for recognition include the group's historical disadvantage, lack of political power and vulnerability to having its interests disregarded. See Law, supra, and Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1.
[86] Here, the Divisional Court, relying on the record before the Board, found at para. 86 that there was "significant evidence of historical disadvantage of and continuing prejudice against social assistance recipients, particularly sole-support mothers". This evidence showed:-- Single mothers make up one of the most economically disadvantaged groups in Canada.
-- Social assistance recipients have difficulty becoming self- sufficient, in part because of their limited education and lack of employability.
-- Social assistance recipients face resentment and anger from others in society, who see them as freeloading and lazy. They are therefore subject to stigma leading to social exclusion.
-- All sole support parents are subject to stigmatization, stereotyping and a history of offensive restrictions on their personal lives, and these disadvantages are particularly felt by sole support mothers.
-- Sole support parents on social assistance are politically powerless. [87] These findings are reasonably supported by the evidence and I would not interfere with them. They support the conclusion that recognizing receipt of social assistance as an analogous ground of discrimination under s. 15(1) would further the protection of human dignity.
[88] Second, although the receipt of social assistance reflects economic disadvantage, which alone does not justify protection under s. 15, economic disadvantage often co-exists with other forms of disadvantage. That is the case here. The economic disadvantage suffered by social assistance recipients is only one feature of and may in part result from their historical disadvantage and vulnerability. I am comforted in this conclusion by two Nova Scotia decisions: R. v. Rehberg (1994), 1993 CanLII 3399 (NS SC), 111 D.L.R. (4th) 336, 19 C.R.R. (2d) 242 (S.C.) and Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 1993 NSCA 13 (CanLII), 101 D.L.R. (4th) 224, 119 N.S.R. (2d) 91 (C.A.). [page508]
[89] Third, immutability in the sense of a characteristic that cannot be changed -- race is an example -- is not a requirement for recognizing an analogous ground. The Supreme Court of Canada has taken a more expansive view of "immutability". A characteristic that is difficult to change, that the government has no legitimate interest in expecting us to change, that can be changed only at great personal cost or that can be changed only after a significant period of time may be recognized as an analogous ground. See Corbiere, supra; Granovsky, supra; Andrews, supra. Receipt of social assistance is a characteristic that is difficult to change, at least for a significant period of time. It fits the expansive and flexible concept of immutability developed in the cases. I thus generally agree with the following observation of the Divisional Court at para. 110:Examined, as it must be, from the perspective of the equity claimant, the status of being a social assistance recipient cannot be changed except over an extended period of time. At the point when the claimant experiences the impugned discrimination, she continues in financial need and cannot change her status except by foregoing state assistance, surely an unacceptable personal cost. The possibility of changing her status at some later time is irrelevant to her experience, and therefore irrelevant to the section 15 analysis. Her status is, therefore 'immutable' as that concept has developed in the authorities cited supra. [90] Fourth, an important indicator of recognition is whether the proposed analogous ground is protected in human rights statutes, which themselves are considered quasi-constitutional. See Miron, supra at p. 496 S.C.R. Here the evidence supporting recognition is compelling. Most provincial human rights codes prohibit, for some purposes, discrimination on a ground related to receiving welfare: discrimination is prohibited on the basis of "receipt of public assistance" in Ontario and Saskatchewan, on the basis of "source of income" in Alberta, Manitoba, Nova Scotia and Prince Edward Island, on the basis of "social condition" in Quebec and on the basis of "social origin" in Newfoundland. [See Note 11 at end of document]
[91] Finally, homogeneity has never been a requirement for recognizing an analogous ground. Thus, though some recipients of social assistance may be more disadvantaged than others, [page509] mere disproportionate disadvantage borne by one or more sub-sets of a group does not militate against recognizing membership in that group as an analogous ground.
[92] The Divisional Court also recognized that social assistance recipients deserved s. 15 protection. The Divisional Court, however, defined the analogous ground more narrowly as sole support parents on social assistance or single mothers on social assistance. The intervenor LEAF supported the Divisional Court's characterization. It seems to me, however, that recognizing the broader or more general category, receipt of social assistance, is preferable. It is more truly analogous to the enumerated grounds, which themselves are general; it conforms to the similar protection accorded to social assistance recipients in human rights legislation; it recognizes a group that is vulnerable to discrimination and that historically has been subjected to negative stereotyping; and it simplifies the equality analysis under s. 15. By contrast, recognizing as analogous a highly specific ground like sole support mothers on social assistance makes the s. 15 analysis, which is difficult enough, unnecessarily complex. Moreover single mothers on social assistance already receive two-fold s. 15(1) protection on the grounds of sex and marital status. What is novel about the respondents' position is that they seek recognition that their status as social assistance recipients is also relevant to the equality analysis. In my view, the most coherent way to achieve this is to recognize receipt of social assistance as an analogous ground.
[93] In summary, the definition of spouse has subjected the respondents to differential treatment on the basis of three prohibited grounds of discrimination: sex, marital status and receipt of social assistance. . Anderson v. Alberta
In Anderson v. Alberta (SCC, 2022) the Supreme Court of Canada considered rules around costs-funding by government parties of public interest litigation in the event of 'impecuniosity' of a party. Here, the funding applicant was a native band but the principles may be adaptable to public interest litigation generally [paras 16-52].
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