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Lawyer joins ORWP fray, files complaints with Human Rights Tribunal of Ontario

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Lawyer Adam Chisholm has plunged into the blowup around the polarizing mandatory insurance plan that the Ontario Real Estate Association (OREA) is set to put in place for all 96,000 realtors in the province at the beginning of 2024. 

Chisholm, a partner with McMillan LLP in Toronto, was hired this fall by a group of concerned realtors who banded together to potentially launch a legal challenge to the Ontario Realtor Wellness Program (ORWP). Says Liz Polak, one of the organizers of a GoFundMe campaign for legal efforts: “Many members feel that OREA is still not addressing their concerns around the ORWP.”

Chisholm took action and filed complaints about the ORWP with the Human Rights Tribunal of Ontario, alleging age and disability discrimination. The group is asking the tribunal “to make changes that could affect all OREA members regarding the mandatory fee/ORWP policy. They’re also asking that OREA create a policy on human rights and provide training for its leaders,” Chisholm states.*

 

Lawyer’s letter to OREA

 

A couple of weeks ago, Chisholm sent a formal letter to OREA president Tania Artenosi regarding his client group’s views. “We are raising these issues now to avoid unnecessary possible legal implications,” he noted in the letter.

The following day, he received a response stating that the concerns would be put before the OREA board of directors for consideration at their next meeting.

Chisholm’s challenge with that response is that it’s not necessarily a commitment to take action. At a minimum, Chisholm’s group had hoped OREA would consider pushing the ORWP implementation back so that there’s time for further discussion. There’s apparently been no word on that, though.

“The plan is going into effect January 1,” Chisholm points out. “There’s not a lot of time left.”

 

Anger and activism persist among Ontario realtors

 

As a recent Globe and Mail article noted, the ORWP has stirred up a hornet’s nest of anger and activism rarely seen among Ontario realtors. Some have gone so far as to call for the end of organized real estate in the province.

Realistically, the consensus seems to be that most of the dissenters would be satisfied with seeing the program be made a choice which they could opt in or out of, rather than a dictate. OREA, though, is sticking to its guns, insisting that those who don’t enroll in the program will forfeit association membership. 

With OREA seemingly not giving member concerns top priority, Chisholm’s group felt the time had come to take action and file official complaints.

 

Human rights infringement claims

 

The purported human rights infringements centre around the potentially discriminatory or prejudicial effects of the ORWP on various members, who, due to factors such as age (benefits are reduced for seniors, but the annual fee is not), disability or marital status/spousal benefits, may wind up with lost or inferior coverage.

This includes impact on drug coverage and loss of access to pre-existing insurance packages of superior quality – although OREA has assured members that the ORWP can generally complement existing plans. 

 

Not buying it

 

Chisholm’s clients aren’t buying OREA’s assurances. They believe that the ORWP repercussions could potentially negatively impact affected realtors “many thousands or even tens of thousands of dollars per year,” Chisholm told REM. 

He added that human rights complaints could be just the beginning. He anticipates that further actions potentially may be in the areas of non-profit or competition law.

 

OREA’s SGM – November 29

 

Notably, a significant number of realtors in the province seem pleased with the package, particularly those who don’t already have coverage. Others somehow know nothing about it. Then there’s the hefty percentage uneasy with the details. That includes a contingent of 10 Ontario boards that have pushed for a special general meeting with OREA (now scheduled for November 29). 

 

Impact on member fees

 

The ORWP will be included in members’ OREA dues and will hike these by about $660 annually, reportedly raising member fees to around $770 altogether. The program was officially approved this past June by OREA’s governing assembly, comprised of delegates from the province’s boards. (There’s some contention that the voting structure itself is problematic, as the Toronto Regional Real Estate Board has almost 50 per cent of the votes.)

 

Process lacks transparency and effort to address member concerns

 

In his letter to OREA, Chisholm describes the ORWP’s fast-tracked trajectory in 2023 from a concept to a mandated reality. His clients feel that the process has lacked transparency – particularly around the mandatory piece – and that OREA hasn’t made reasonable efforts to hear and address member criticisms and accommodate concerns about the aspects of the plan that could be construed as ageist, punitive and/or constituting unfair differential treatment to certain groups. 

“OREA may not have considered the legal implications of imposing such a program,” Chisholm asserts in the letter. “Ontario’s Human Rights Code protects individuals from discrimination and requires equal treatment in relation to services and contract … The increase in member dues in exchange for benefits, insurance, wellness and healthcare services results in adverse effects on certain individuals within enumerated groups and may be held to be constructive discrimination.”

Chisholm acknowledges that there’s a ‘statutory carve-out’ permitting insurers to offer group insurance to associations. But “we are not aware of any established legal precedent under human rights law for the mandatory imposition of a wellness plan by an association in exchange for increased dues,” he continues. “In our view, it is not necessary or reasonable.” 

OREA’s tying of the program to membership (the stated purpose being that all members need to be on board to keep premiums low) is unusual, in Chisholm’s opinion. 

 

Legally challenged as “oppressive”

 

Loss of membership disadvantages members – causing them to lose access to MLS and standard forms – and “unnecessarily jeopardizes” their ability to practice real estate, he notes in the letter to OREA. In his opinion, this aspect and the ORWP, in general, could potentially be legally challenged as “oppressive” in that members’ reasonable expectations around the scope of the association’s objectives are breached. The same, in his view, goes for OREA putting the bulk of members’ annual dues toward ORWP purposes.

“We ask that OREA reconsider its implementation of the mandatory plan … and take all possible steps to avoid harm to any of its members,” his letter to the organization concludes.

 

*Since the complaints were recently filed, OREA may not be aware of them yet.

The content of the Human Rights Tribunal applications are merely allegations which have yet to be proven at the Tribunal or otherwise. Until a decision is reached, the allegations have not been upheld and are subject to response by OREA. The Tribunal has significant discretion in its process and may impose different or no remedies even if the applications are made out.

 


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