CITATION: Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593

DATE: 20100916

DOCKET: C50970

COURT OF APPEAL FOR ONTARIO

Simmons, Cronk and Rouleau JJ.A.

BETWEEN

Director, Ontario Disability Support Program

Appellant (Appellant)

and

Robert Tranchemontagne and Norman Werbeski

Respondents (Respondents)

Janet E. Minor, Sarah Kraicer and Shannon Chace, for the appellant

Lesli Bisgould and Terence Copes, for the respondents Fay Faraday, for the intervener Ontario English Catholic Teachers’ Association Cynthia Wilkey and Patty Robinet, for the intervener Income Security Advocacy Centre Dianne Wintermute and Laurie Letheren, for the intervener The Empowerment Council Melanie D. McNaught, for the intervener Dufferin-Peel Catholic District School Board Cathy Pike, for the intervener Ontario Human Rights Commission

Heard: March 10 and 11, 2010

On appeal from the judgment of the Divisional Court (Cunningham A.C.J, Bellamy J. and Gray J.) dated April 20, 2009, with reasons reported at (2009), 95 O.R. (3d) 327, upholding a decision of the Social Benefits Tribunal dated November 30, 2006.

Simmons J.A.:

I. Introduction

[1]               This is a case about two alcoholics, Robert Tranchemontagne and Norman Werbeski, who were denied disability benefits under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (the “ODSPA”), because of their dependence on alcohol.

[2]               For both men, the impact of their alcoholism was so severe that they satisfied the criteria in s. 4 of the ODSPA for being disabled.  However, the Director of the Ontario Disability Support Program (“ODSP”) denied the respondents’ applications for disability benefits based on s. 5(2) of the ODSPA.  That section disqualifies from eligibility for disability benefits one category of disabled people who would otherwise qualify: those who are disabled solely because of dependence on alcohol, drugs or some other chemically active substance (the “sole impairment group”).

[3]               The effect of the denial was to relegate the respondents to applying for welfare under the Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A (the “OWA”). At the time of their hearings, this meant a difference in benefits to each respondent of $423 per month: Ontario Works (“OW”) provided benefits of $536 per month, while the ODSP provided benefits of $959 per month.

[4]               Following an appeal to the Social Benefits Tribunal (the “SBT”), the SBT found that s. 5(2) of the ODSPA violates the respondents’ rights to “equal treatment with respect to services without discrimination because of … disability” under s. 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”) and ordered that s. 5(2) of the ODSPA should not be applied to them.

[5]               The SBT concluded that the respondents had established a prima facie case of discrimination under s. 1 of the Code based on the test set out in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, for establishing a violation of the equality guarantee in s. 15(1) of the Charter.

[6]               In reaching this conclusion, the SBT rejected the Director’s arguments, premised largely on expert social science evidence, that the purpose and effect of s. 5(2) is to assist people in the sole impairment group to recover from their disease. Instead, the SBT concluded, at p. 17, that s. 5(2) “denies income support and imposes restrictions because of assumed or unjustly attributed characteristics and therefore denies the essential human worth of the [respondents] and those like them and is therefore discriminatory.”

[7]               The Director appealed the SBT’s decision to the Divisional Court. The Divisional Court dismissed the appeal, holding that the SBT did not err in finding that the respondents had established discrimination. The Divisional Court also rejected the Director’s argument that the SBT’s findings concerning the Director’s social science evidence were not entitled to deference on appeal, and, in any event, went on to say that it agreed with the SBT’s conclusions.

[8]               Further, in the light of the Supreme Court of Canada’s intervening decision in R. v. Kapp, [2008] 2 S.C.R. 483, the Divisional Court proposed a revised test for determining whether a claimant has established a violation of s. 1 of the Code. In Kapp, the Supreme Court of Canada refocused the test for establishing a breach of the equality guarantee in s. 15 of the Charter from assessing whether there has been a violation of human dignity, as was required by Law, to determining whether the case involves discrimination that creates disadvantage by perpetuating prejudice, pre-existing disadvantage or stereotyping.

[9]               On appeal to this court, the Director argues that the Divisional Court erred in two respects.

[10]          First, by developing a novel legal test for determining whether legislation or a government benefit program is discriminatory under the Code that is inconsistent with the s. 15(1) Charter test for discrimination.

[11]          Second, by upholding the SBT’s approach to the Director’s expert social science evidence. According to the Director, that evidence amounted to “legislative fact” evidence. As a result, rather than determining which evidence it preferred, the SBT should have determined whether the government had a reasonable basis for its legislative policy choice in enacting s. 5(2) of the ODSPA -- and if the government did, the SBT should have deferred to it.

[12]          For reasons that I will explain, I would not adopt the post-Kapp test suggested by the Divisional Court for establishing a violation under s. 1 of the Code. 

[13]          Nonetheless, I would dismiss the appeal. Although I agree that the Director’s social science evidence was legislative fact evidence, I am sceptical that legislative fact evidence attracts deference to the government’s policy choice when the issue is whether the legislation is discriminatory. In any event, I am not persuaded that the Director’s social science evidence is sufficiently cogent to attract deference to the government’s policy choice in enacting s. 5(2) of the ODSPA. As the Director raised no other basis for challenging the SBT’s decision, the appeal must be dismissed.

II. Background

i)                  The Respondents

[14]          Robert Tranchemontagne is a 58-year-old man who suffers from chronic alcoholism. He also suffers from seizures related to alcohol withdrawal, depression and chronic backaches. Although he was once married and has two children, he lost contact with his family because of his alcoholism.

[15]          Mr. Tranchemontagne began drinking when he was 18 years old and he has suffered from alcoholism since his late thirties. At the urging of his employer, he entered treatment programs on two occasions. Although initially successful, both attempts at rehabilitation ultimately failed.

[16]          Mr. Tranchemontagne previously worked as a steelworker; he was last employed as a helper on a delivery truck in 1996. In his doctor’s opinion, he is not employable because of his alcoholism.

[17]          Norman Werbeski would have been 53 years old, but he died in September 2009 after being hit by a car. He began drinking when he was 16 years old and eventually became a heavy drinker and narcotics abuser. His only period of sobriety was during an eight-month period while he was incarcerated.

[18]          Mr. Werbeski had few social supports growing up. His parents separated when he was 17, and his mother suffered from mental illness. Mr. Werbeski quit school after grade 11 to look after his mother and continued to do so until her death in 1985.

[19]          Mr. Werbeski never had stable employment but he did work at a variety of jobs. He had a common law partner, and has two children, but lost both his employment and contact with his family due to his alcoholism.

[20]          Mr. Werbeski also suffered from depression, anti-social personality disorder, arthritis and rheumatism.

ii)               Prior Judicial History

[21]          In 2001, the SBT ruled that it did not have jurisdiction to entertain the respondents’ challenge to s. 5(2) of the ODSPA under s. 1 of the Code. That issue was litigated all the way to the Supreme Court of Canada. Ultimately, the Supreme Court held that the SBT has jurisdiction to entertain a challenge to legislation under the Code and remitted the matter back to the SBT to determine the issue.  The Supreme Court’s order led to the decision under appeal. As the Supreme Court was dealing solely with the question of the SBT’s jurisdiction to entertain a challenge under the Code, its decision does not govern the issues on this appeal.

iii)            The Legislative Scheme

a.      Overview

[22]          The ODSPA and the OWA came into force in 1998. In its decision concerning the SBT’s jurisdiction to decide challenges to legislation under the Code, the Supreme Court of Canada described the two acts as “twin components” of the Ontario government's program for delivering social assistance.  And the Court noted at para. 3 that it is clear that the ODSPA and the OWA are meant to serve “very different goals”: Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513.

[23]          In particular, while the ODSPA “is meant to ensure support for disabled applicants, recognizing that the government shares in the responsibility of providing such support”, the OWA “seeks to provide only temporary assistance premised on the concept of individual responsibility”: Tranchemontagne at para. 3.

[24]          The Minister of Community and Social Services described the divergent purposes of the two statutes in the following comments made in the Legislature:

[The ODSP] removes people with disabilities from the welfare system, where they should never have been in the first place, and it creates for them an entirely separate system of income support.[1]

…

[The ODSP] move[s] people with disabilities off the welfare system and provide[s] them with greater opportunities for independence.[2]

The proposed system would help people take advantage of employment opportunities.  It would allow people with disabilities to accept work without worrying about any delay in having their benefits reinstated if they could not continue with the job.[3]

…

The [OWA] would overhaul a welfare system that is 30 years out of date.  It would restore the welfare system to its original purpose: a transitional program of last resort that will provide people on welfare with a stepping stone back into the workforce.[4] [Emphasis added.]

            b. The ODSPA

[25]          Section 1 of the ODSPA sets out the four purposes of the program:

·        to provide income and employment supports to eligible persons with disabilities;

·        to recognize that government, communities, families and individuals share responsibility for providing such support;

·        to effectively serve persons with disabilities who need assistance; and

·        to be accountable to the taxpayers of Ontario.[5]

[26]          As is noted in s. 1, the ODSPA provides both income supports and employment supports to eligible persons with disabilities. Significantly, the ODSPA does not require recipients to seek or maintain employment or to participate in work-related activities.

[27]          In order to qualify for the ODSP, an individual must meet certain financial eligibility requirements and, as well, satisfy the criteria set out in s. 4(1) for being a person with a disability.

[28]          Subsection 4(1) requires that the individual have a substantial physical or mental impairment that is continuous or recurrent, and that is expected to last at least one year. In addition, the impairment must result in a substantial restriction in one or more of three areas of daily living: i) personal care; ii) functioning in the community; or iii) ability to work:

4. (1) A person is a person with a disability for the purposes of this Part if,

                    (a)  the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;

                    (b)  the direct and cumulative effect of the impairment on the person's ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and

                    (c)  the impairment and its likely duration and the restriction in the person's activities of daily living have been verified by a person with the prescribed qualifications.

[29]          Although s. 4(1) imposes a one-year timeline for eligibility relating to the expected duration of the impairment, it does not impose a similar timeline relating to the duration of the “substantial restriction”. However, an individual will cease to be eligible for income support when no longer “substantially restrict[ed]”. The ODSPA also contains mechanisms for reviewing eligibility on an ongoing basis.[6]

[30]          As noted above, s. 5(2) of the ODSPA disqualifies a single category of disabled people from eligibility to receive income support under the plan: those whose “only substantial restriction in activities of daily living is attributable to” substance dependence:

5. (2) A person is not eligible for income support if,

                    (a)  the person is dependent on or addicted to alcohol, a drug or some other chemically active substance;

                    (b)  the alcohol, drug or other substance has not been authorized by prescription as provided for in the regulations; and

                    (c)  the only substantial restriction in activities of daily living is attributable to the use or cessation of use of the alcohol, drug or other substance at the time of determining or reviewing eligibility.

[31]          However, s. 5(3) of the ODSPA makes it clear that s. 5(2) does not apply to individuals with a “substantial physical or mental impairment” in addition to substance dependence:

5. (3) Subsection (2) does not apply with respect to a person who, in addition to being dependent on or addicted to alcohol, a drug or some other chemically active substance, has a substantial physical or mental impairment, whether or not that impairment is caused by the use of alcohol, a drug or some other chemically active substance.

[32]          The combined effect of ss. 5(2) and (3) of the ODSPA is therefore to disqualify from eligibility for the ODSP those disabled people whose only substantial impairment is solely attributable to substance dependence.

[33]          Subsection 31(1) of the ODSPA provides a right to appeal a decision of the SBT to the Divisional Court on a question of law.

c.      The OWA

[34]          Like the ODSPA, the OWA sets out the purpose of the program in s. 1:

·        to recognize individual responsibility and promote self-reliance through employment;

·        to provide temporary financial assistance to those most in need while they satisfy obligations to become and stay employed;

·        to effectively serve people needing assistance; and

·        to be accountable to the taxpayers of Ontario.

[35]          OW provides both employment assistance and income assistance. Income assistance is provided to persons who satisfy all conditions of eligibility under the OWA and the regulations. Generally speaking, these conditions require that claimants: satisfy community participation requirements; participate in employment assistance activities such as basic education and training, literacy training, and treatment for addiction; and accept and maintain employment. Recipients who do not comply with these requirements may have their assistance reduced, suspended or cancelled.

[36]          Because OW is intended as only a temporary bridge to help people get back to work, the program does not provide income support at the same levels as the ODSP, which is aimed at assisting people with disabilities on a more long-term basis.

[37]          Notably, OW employment assistance is not exclusive to that program and may also be provided to persons eligible to receive income support under the ODSP.

d.      Relevant Provisions of the Code

[38]          Section 1 of the Code provides a guarantee of equal treatment with respect to services without discrimination on specified grounds, including disability:

1. 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, age, marital status, family status or disability. [Emphasis added.]

[39]          Other relevant provisions of the Code include: the preamble, which emphasizes the importance of recognizing the “inherent dignity ... of all members of the human family”; s. 9, which provides that “[n]o person shall infringe or do, directly or indirectly, anything that infringes a right under this Part”; s. 10, which defines “disability”; and s. 47(1), which makes the Code binding on the Crown.

[40]          Subsection 47(2) gives the Code primacy over other Acts. However, that primacy is subject to the government’s right to essentially opt out of the Code.

[41]          Notably, unlike the human rights legislation in some other provinces, the Code does not include a defence premised on justification.  For example, s. 8 of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, prohibits discrimination “without a bona fide and reasonable justification” in relation to services.

e.      Section 15 of the Charter

[42]          Among other things, s. 15 of the Charter provides every individual with a guarantee of “equal benefit of the law without discrimination…based on…mental or physical disability”:

15. (1) 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. [Emphasis added.]

III. The SBT’s Reasons of November 30, 2006

[43]          As a preliminary matter, the SBT ruled that its 2001 decision by a differently constituted panel had determined that both respondents met the test for being “a person with a disability” under s. 4(1) of the ODSPA. The SBT then turned to the central issue of whether s. 5(2) of the ODSPA violates the respondents’ rights under s. 1 of the Code.

[44]          Because the respondents were challenging a government benefits program, the first question was what test should apply in determining that issue. The Director asserted that the test for establishing a violation of the equality guarantee under s. 15 of the Charter should apply.  

[45]          At the time of the hearing before the SBT, the s. 15 Charter test was the three-part test set out in Law at para. 39:

(1) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society, resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristic?  

(2) Was the claimant subject to differential treatment on the basis of one or more of the enumerated or analogous grounds?

(3) Does the differential treatment discriminate in a substantive sense? 

[46]          Further, the third step of the Law test required consideration of the impact of the impugned law on the claimant’s human dignity, to be assessed through the lens of four contextual factors: (a) pre-existing disadvantage, (b) correspondence between the impugned law and the claimant’s actual characteristics or circumstances, (c) any ameliorative purpose or effect of the impugned law, and (d) the nature and scope of the interest affected: Law at paras. 62-74.

[47]          Before the SBT, the Director argued that the Law test should apply in this case, while the respondents argued that the governing test is the prima facie case test for establishing a violation of the Code, as set out in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536 (commonly referred to as “O’Malley”).

[48]          Relying on this court’s decision in Ontario (Human Rights Commission) v. Ontario (1994), 19 O.R. (3d) 387, in particular, the principle expressed at p. 405 that “where two pieces of remedial legislation … share the same purpose, it is desirable, in so far as possible [that] they are interpreted in a congruent manner”, the SBT concluded that the Law test applies to alleged infringements of the equal treatment guarantee set out in s. 1 of the Code.

[49]          However, relying on Gwinner v. Alberta (Human Resources and Employment), (2002), 321 A.R. 279 (Q.B.), aff’d (2004), 354 A.R. 21 (C.A.),  the SBT held that it is not always necessary to apply the elaborate human dignity analysis set out in the third step of Law in human rights cases.[7]

[50]          The SBT held that the respondents were denied a service available to other disabled people because of their particular disability (alcohol dependence), thus establishing substantively differential treatment between the respondents and others based on a prohibited ground of discrimination (steps one and two of Law). It was therefore unnecessary that they “establish a violation of human dignity” as required under the third step of Law.

[51]          Significantly, in reaching this conclusion, the SBT rejected the Director’s argument that the purpose and effect of s. 5(2) is to assist the disqualified group in recovering from their addictions and that it is not therefore discriminatory. However, the SBT cautioned, at p. 11, “that each case must be assessed and analyzed on its own merits regarding the engagement of the third step scrutiny under the Law test.”

[52]          Out of an abundance of caution, the SBT then went on to consider the third step of Law – whether the differential treatment constitutes discrimination in a substantive sense because it demeans the human dignity of the claimant – and found that the respondents satisfied that step as well.

[53]          In essence, the SBT rejected the Director’s arguments that the respondents are better served by OW than by the ODSP and concluded that s. 5(2) of the ODSPA denies disability benefits to individuals in the sole impairment group on the basis of assumed or unjustly attributed characteristics, therefore denying them their essential human worth.

[54]          I will return to the SBT’s specific findings in this regard later in these reasons.

IV. Analysis

1. The Divisional Court’s Post-Kapp Test for Establishing a Violation of s. 1 of the Code is not Correct

            i) The Divisional Court’s Decision

[55]          Before the Divisional Court, the Director argued that the SBT was required to apply all three steps of the Law test and, to the extent it purported to apply the four contextual factors in the third step, its application of the factors was flawed.

[56]          The Divisional Court concluded that the answer to whether the third step in Law must be applied in the human rights context is found in the Supreme Court of Canada’s decision in Kapp, which was released after the SBT’s ruling.

[57]          The Divisional Court observed that, in Kapp, the Supreme Court confirmed that Law did not impose a new and distinctive test for discrimination. Rather, Law simply affirmed the approach to substantive equality under s. 15 set out in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, which, according to Kapp at para. 17, established the following two-part test for showing discrimination under s. 15(1) of the Charter:

1)     Does the law create a distinction based on an enumerated or analogous ground?

2)     Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

[58]          Moreover, Kapp confirmed that the four contextual factors used in step three of Law for assessing whether there has been a violation of human dignity are not to be applied as a formulaic test for determining substantive inequality.

[59]          The Divisional Court also noted that, in the Supreme Court’s more recent decision in Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222, the Court did not refer to Law, “human dignity”, or the four contextual factors used in step three of Law.

[60]          Taking account of these factors, the Divisional Court concluded that the SBT did not err in deciding this case based on the first two steps in Law.

[61]          The Divisional Court then turned to the respondents’ argument that the Charter test for discrimination has wrongly displaced earlier tests developed under the various provincial human rights statutes and that Law should not have been applied at all.

[62]          After reviewing various decisions that have debated whether the Charter test is properly applied in the human rights context, the Divisional Court said at para. 102 that decisions that have held that the Law test is applicable “must now be viewed in light of the two subsequent decisions by the Supreme Court in Kapp and Ermineskin, neither of which require use of the more complicated Law test.”

[63]          Further, relying on O’Malley, Battlefords and District Cooperative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, at para. 21, and Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, at pp. 1236-1237, the Divisional Court noted at para. 103 that, “in the human rights context, the claimant is only required to put forward a prima facie case of discrimination, at which point the burden shifts to the responding party to demonstrate that either the prima facie case is rebutted or that one of the statutory exceptions applies.”

[64]          Finally, in the light of the Supreme Court’s “reaffirmation of Andrews” in Kapp, the Divisional Court concluded, at para. 104, “it is no longer necessary to apply a human dignity test”. Moreover, the Divisional Court opined that the appropriate test in the human rights context is “the test established by the Supreme Court in O’Malley, reaffirmed by that court in Meiorin and Grismer … informed by Andrews.”

[65]          Taking account of these principles and conclusions, the Divisional Court suggested at para. 105 that post-Kapp, the test for discrimination “[a]dapted for the present human rights context, in a case such as this involving the provision of services pursuant to a government benefit program,” might read as follows:

1. Has the complainant established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground under the Human Rights Code?

2. Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the respondent established a statutory defence under the Code?

            ii)The Director’s Submissions on Appeal

[66]          Particularly in the context of what is effectively a challenge to legislation, the Director submits that the test for discrimination under the Code should be the same as the test for discrimination under s. 15(1) of the Charter.

[67]          Relying largely on Kapp, the Director submits that the Divisional Court’s proposed test improperly limits the inquiry in its first step to whether the claimant has established a distinction based on a prohibited ground, without requiring proof of a disadvantage and, more specifically, without requiring proof of a disadvantage that perpetuates prejudice, pre-existing disadvantage or stereotyping. Further, the Director contends that the second step improperly places a burden on the responding party to disprove substantive discrimination.

iii) The Respondents’ Submissions on Appeal

[68]          The respondents (and the interveners supporting them) acknowledge that step one of the Divisional Court’s test is incorrect to the extent that it fails to refer to the requirement for a distinction, based on a prohibited ground that creates a disadvantage. Beyond that omission, they maintain that the Divisional Court’s test is correct.

[69]          In their view, because of the different context of human rights cases, there is no need to encumber the test for discrimination with complicating concepts about perpetuating prejudice, disadvantage or stereotyping. Although human rights codes have been described as fundamental law, in the sense that they have an elevated legal status, and are quasi-constitutional, they are not constitutional documents and cannot result in a law being declared invalid.

[70]          Moreover, because of the wider application of human rights codes and their more limited focus, proof of a distinction based on a prohibited ground that creates a disadvantage will invariably demonstrate a prima facie case of substantive discrimination.

[71]          Although they acknowledge that the Code is aimed at eradicating substantive discrimination, the respondents rely on the longstanding prima facie case test as developed in O’Malley, as being the proper test for establishing a violation of the Code.     iv) Discussion

[72]          As I explain below, I would not adopt the Divisional Court’s post-Kapp test for three reasons: (1) it overlooks the requirement that the claimant prove disadvantage; (2) it implies it is unnecessary for the claimant to show that the disadvantage perpetuates prejudice or stereotyping; and (3) it reverses the burden of proof by requiring the responding party to rebut a claim of discrimination. I will discuss each of my reasons in turn.

a) Discrimination requires disadvantage

[73]          First, all parties agree that step one of the Divisional Court test overlooked the requirement of proving a distinction based on a prohibited ground that creates a disadvantage.

[74]          I, too, agree that the test for establishing discrimination under the Code is consistently expressed in the jurisprudence as requiring a distinction based on a prohibited ground that creates a disadvantage.

[75]          In the Supreme Court of Canada’s seminal decision in O'Malley, McIntyre J. described discrimination (in that case adverse effect discrimination) as follows, at p. 551:

It arises where an employer ... adopts a rule or standard ... which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. [Emphasis added.]

[76]          In Andrews at p. 174, McIntyre J. expanded on the concept of disadvantage, albeit in the Charter context, and described it as a distinction based on one or more personal characteristics which has the effect of “imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.”

[77]          The concept of a distinction on a prohibited ground (or on an enumerated or analogous ground in the Charter context) that creates a disadvantage is integral to both Code and s. 15 Charter jurisprudence because both are aimed at achieving substantive equality as opposed to formal equality.

[78]          Formal equality essentially involves ensuring equal treatment for those in similar situations and different treatment for those in dissimilar situations – it is a concept that involves “treating likes alike”. On the other hand, substantive equality recognizes that not all differences in treatment are violations of equality rights and that differences in treatment are sometimes necessary to achieve true equality: see Andrews at p. 169.

[79]          Accordingly, the focus of the discrimination analysis is on the effect of the differentiation on the claimant(s), and it is only where making a distinction on a prohibited ground has the effect of creating a disadvantage that concerns about substantive inequality are engaged.  

b) Perpetuating prejudice or stereotyping

[80]          Second, in my opinion, the Divisional Court’s test also improperly rejects the notion that, to establish a prima facie case of discrimination, a claimant must demonstrate a distinction on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping.

[81]          As I have said, step one of the Divisional Court’s test makes no mention of the claimant’s obligation to prove a distinction based on a prohibited ground that creates a disadvantage. Rather, step two of the test places an obligation on responding parties to prove that the distinction does not create a disadvantage by perpetuating stereotyping or prejudice.

[82]          By framing the test in this way, the Divisional Court implied, erroneously in my view, that to establish a prima facie case of discrimination, it is unnecessary for the claimant to demonstrate a distinction based on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping.

[83]          As indicated above, the respondents and some of the interveners contend that claimants do not have an obligation, in the human rights context, to demonstrate treatment that perpetuates prejudice or pre-existing disadvantage or stereotyping, as part of establishing a prima facie case of discrimination.

[84]          I do not accept this argument.  I can see no principled reason for adopting a different meaning for the term discrimination as it appears in s. 1 of the Code than has been ascribed to that term in the Charter context. That said, as I will explain, the precise nature of the evidence to be led and the stringency of the test to establish discrimination may depend on the context. Further, while showing a prima facie case of discrimination involves demonstrating a distinction based on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping, that does not mean that is a freestanding requirement.

[85]          As I have said, like s. 15 of the Charter, s. 1 of the Code involves a guarantee of equal treatment in a substantive sense: Brooks at pp. 1242-1249, and Gibbs at para. 39. And proof of discrimination on a prohibited ground (or, in the case of the Charter, on an enumerated or an analogous ground) is the key to establishing unequal treatment in a substantive sense under both provisions.

[86]          The term “discrimination” is not defined in either s. 1 of the Code or s. 15 of the Charter. In the Charter context, the Supreme Court of Canada confirmed in Kapp at para. 17, that the test to be applied for determining whether discrimination exists is the two-step test set out in Andrews:

1. Does the law create a distinction based on an enumerated or analogous ground?

2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

[87]          Andrews has been referred to with approval consistently in the human rights context since it was decided: see, for example, Brooks at p. 1238 and Gibbs at para. 20.

[88]          However, fundamental differences exist between the Charter and the Code, including differences in: the nature of the legislation (constitutional versus quasi-constitutional); the scope of the guarantees provided (the Charter contains a broad equality guarantee while the Code creates a limited right to be free of discrimination in prescribed areas); the circumstances in which the guarantees will apply (the Charter is restricted to government conduct while the Code applies to both private and public actors); and, finally, the specific exemptions or defences that are available (s. 15 of the Charter contains an absolute prohibition against discrimination but s. 1 of the Charter provides a limited defence of justification, while the Code prohibits discrimination absolutely but also contains some absolute exemptions and defences): see Andrews at pp. 175-176.

[89]          Because of these differences, the precise nature of the evidence to be led and the stringency of the test to be applied to establish discrimination may vary and ultimately will depend significantly on the context.

[90]          In the human rights context, in most instances, it will be evident that a prima facie case of discrimination has been established based solely on the claimant’s evidence showing a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others). An inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone.

[91]          However, in other instances a more nuanced inquiry may be necessary to properly assess whether a distinction based on an enumerated ground that creates a disadvantage actually engages the right to equal treatment under the Code in a substantive sense.

[92]          I find support for my conclusion about the meaning of discrimination in the human rights context in the concurring reasons of Abella J. in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal,  [2007] 1 S.C.R. 161.

[93]          In that case, an employer dismissed an employee in accordance with the terms of a collective agreement after she had been absent from work on disability for more than three years. The majority of the Supreme Court of Canada upheld the dismissal based on the arbitrator’s finding that the employer had sufficiently accommodated the employee. However, Abella J., concurring in the result, relied on the arbitrator’s finding that the employee failed to establish a prima facie case of discrimination. In doing so, she observed that not every distinction that creates a disadvantage is discriminatory:

[48]  At the heart of these definitions is the understanding that a workplace practice, standard, or requirement cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics. The goal of preventing discriminatory barriers is inclusion. It is achieved by preventing the exclusion of individuals from opportunities and amenities that are based not on their actual abilities, but on attributed ones. The essence of the discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed, whether intentionally or unwittingly.

[49]  What flows from this is that there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer's conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact, that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.

[50]  If such a link is made, a prima facie case of discrimination has been shown. It is at this stage that the Meiorin test is engaged and the onus shifts to the employer to justify the prima facie discriminatory conduct. [Emphasis added.]

[94]          Paragraph 49 quoted above was referred to with approval by the Supreme Court majority in Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, at para. 71. In my opinion, Abella J.’s comments make it clear that finding discrimination in the human rights context entails more than simply identifying a distinction based on a prohibited ground where a negative impact is the result.

[95]          However, although I have concluded that establishing a prima facie case of discrimination involves demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping, that does not mean that it is a free-standing requirement.

[96]          In Armstrong v. British Columbia (Ministry of Health) (2010), 283 B.C.A.C. 167 (C.A.), leave to appeal refused [2010] S.C.C.A. No. 128, at para. 10, the British Columbia Court of Appeal endorsed a three-part test used by an adjudicator for determining whether a prima facie case of discrimination had been established. That test does not make specific reference to the requirement of demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping:

i) is the claimant a member of a group possessing a characteristic protected under the Code?

ii) did the claimant suffer some adverse treatment?

iii) is it reasonable to infer that the protected characteristic played some role in the adverse treatment?

[97]          In that case, Mr. Armstrong claimed that the province discriminated against him because it did not pay for his prostate cancer (PSA) screening test but it did pay for two types of cancer screening tests related to women’s reproductive systems (mammograms — a screening test for breast cancer for women between the ages of 40 and 79 – and Pap tests — a screening test for cervical cancer for women of all ages).

[98]          An adjudicator rejected the claim of discrimination because he found that gender was not a factor in the Ministry’s decision not to pay for PSA screening tests. That was because research had not yet shown that PSA tests were medically effective as a cancer screening tool.

[99]          On appeal to the Supreme Court of British Columbia, the Court found that the adjudicator erred by conflating the issue of the Province’s justification into the question of whether Mr. Armstrong had established a prima facie case of discrimination.

[100]      However, the British Columbia Court of Appeal reversed the trial court’s decision, holding that the adjudicator determined that Mr. Armstrong had not established the necessary nexus between the protected ground (gender) and the adverse treatment. Accordingly, Mr. Armstrong had not proved discrimination and the adjudicator never reached the issue of justification.

[101]      Although he did not refer to Kapp, Tysoe J.A., speaking for the Court, did refer to McGill and, relying on that case, emphasized the importance of establishing a link between the prohibited ground of discrimination and the adverse treatment: see Armstrong at para. 25.

[102]      Moreover, Tysoe J.A. rejected the argument that there is now a separate requirement to show that the adverse treatment was based on arbitrariness or stereotypical presumptions. Rather, he concluded at para. 27 that “the goal of protecting people from arbitrary or stereotypical treatment is incorporated in this third element of the prima facie test” as expressed by the adjudicator.

[103]      So long as it is understood that the prima facie case test involves establishing substantive discrimination and that demonstrating a distinction that creates a disadvantage by perpetuating prejudice or stereotyping is the foundation of substantive discrimination, in my view, that is sufficient.

[104]      However, in my opinion, the goal of protecting people from arbitrary or stereotypical treatment or treatment that creates disadvantage by perpetuating prejudice is actually incorporated into two stages of the prima facie case analysis: i) determining whether the treatment in issue truly creates a disadvantage; and ii) determining whether the protected ground or characteristic truly played a role in creating the disadvantage.

[105]      In Armstrong, the essence of the respondent’s position was that the protected characteristic (gender) did not play a role in causing the adverse treatment. Put another way, the respondent claimed that the decision not to fund was not based on an irrelevant personal characteristic. Tysoe J.A. concluded that the goal of protecting people from arbitrary or stereotypical treatment was incorporated into determining whether a distinction based on a prohibited ground truly played a role in creating the disadvantage.

[106]      In this case, the essence of the Director’s position is that s. 5(2) of the ODSPA does not create a true disadvantage. Put another way, the Director asserts that s. 5(2) directs the respondents to OW, a program better suited to their needs, and therefore does not create a disadvantage by perpetuating prejudice or stereotyping. The SBT found the opposite when it concluded that s. 5(2) “denies income support and imposes restrictions because of assumed or unjustly attributed characteristics.” I agree with the SBT’s conclusion.

[107]      Moreover, the Director’s argument and the SBT’s conclusion demonstrate that the goal of protecting people from discriminatory conduct is also incorporated into determining whether a distinction based on a prohibited ground creates a true disadvantage.

                        c) The burden of proving discrimination always rests with the claimant

[108]      The third reason why I would not adopt the Divisional Court’s test is that, in my opinion, step two of that test reverses the burden of proof by requiring a responding party to effectively disprove discrimination on a balance of probabilities.

[109]      I agree that the responding party in a human rights case has the onus of establishing statutory defences on a balance of probabilities. But I do not agree that a responding party must ever disprove discrimination on a balance of probabilities. Rather, in my opinion, the onus of proving discrimination on a balance of probabilities remains on the claimant throughout. If a claimant proves discrimination on a balance of probabilities and the responding party fails to prove a statutory defence or exemption, then the claimant will have proved a violation of the Code.

[110]      The prima facie case test was established in O’Malley. However, it is important to remember that O’Malley was a case in which an employee alleged adverse effect discrimination after her employer adopted a rule requiring all full-time employees to work on Saturdays and the employee declined to do so for religious reasons. The employer did not call evidence, and the issue for the Court was who should bear the onus of demonstrating whether the employer acted reasonably in its efforts to accommodate the employee.

[111]      McIntyre J., speaking for the Supreme Court of Canada, concluded that the employer should bear the burden. In doing so, at p. 558 he referred to the decision in Ontario Human Rights Commission v. Etobicoke, [1982] 1 S.C.R. 202, in which the rule was established that, in cases involving direct discrimination against an employee, the onus falls on the employer to “justify” a discriminatory rule:

It was held in [Etobicoke] that at least in direct discrimination cases, where the complainant has shown a prima facie case of discrimination on a prohibited ground, the onus falls on the employer to justify if he can the discriminatory rule on a balance of probabilities. The question then is whether this rule should apply in cases of adverse effect discrimination.

...

Therefore, under the Etobicoke rule as to burden of proof, the showing of a prima facie case of discrimination, I see no reason why it should not apply in cases of adverse effect discrimination. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer. [Emphasis added.]

[112]      However, neither the rule in O’Malley nor the rule in Etobicoke stand for the proposition that the responding party must disprove discrimination on a balance of probabilities. Rather, they stand for the proposition that a responding party must prove defences and exemptions, such as reasonable accommodation and justification, on a balance of probabilities.

[113]      Further, in my opinion, neither Gibbs nor Brooks squarely address the issue of the burden of proof.

[114]      I find support for my conclusion that the Divisional Court’s test reverses the burden of proof in Armstrong.

[115]      In that case, the adjudicator found that gender was not a factor in the Ministry’s decision not to pay for PSA screening tests because he found, based on a consideration of the whole of the evidence, including evidence led by the respondent, that it had not been established that PSA tests were medically effective as a cancer screening tool.

[116]      The adjudicator stated, “Mr. Armstrong has not met the prima facie test because he has not established that the Ministry made a distinction on a prohibited ground ... therefore, the onus has not shifted to the Ministry to provide a reasonable justification for its policy”: Armstrong at para. 12.

[117]      As I have said, the British Columbia Court of Appeal upheld the adjudicator’s decision because Mr. Armstrong had not established the necessary nexus between the protected ground (gender) and the adverse treatment.

[118]      I note as well that in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R. 3, the Supreme Court of Canada held that Ms. Meiorin had discharged the burden of establishing that an aerobic standard was prima facie discriminatory by showing that most women could not meet the standard. In reaching this conclusion, the Supreme Court of Canada noted that the arbitrator rejected the evidence of the government’s expert witness that most women could achieve the aerobic standard with training.

[119]      In my opinion, although an evidentiary burden to rebut discrimination may shift to the responding party once the claimant has led sufficient evidence, if believed, to support a finding of discrimination in the absence of an answer from the responding party, the onus of proving discrimination remains on the claimant throughout.

[120]       Two final comments. First, I am inclined to think that the respondents led sufficient evidence to support a finding of discrimination had their claim of discrimination remained unanswered merely by showing that they were deprived of the same level of income support available to other disabled claimants based on the nature of their disability.

[121]      It is well-known that addicts and welfare recipients have been, and continue to be, the subjects of stigma and prejudice. Moreover, an examination of the legislative scheme of the ODSPA and the OWA fails to reveal any obvious explanation for why the sole impairment group was excluded from ODSP benefits. In my view, these factors were sufficient to create an inference that s. 5(2) of the ODSPA discriminates against the respondents by perpetuating prejudice and disadvantage and by stereotyping through depriving the respondents of the benefits available to other disabled people because of their specific disability.

[122]      However, once the Director led evidence attempting to rebut the respondents’ claim of discrimination, the SBT had to determine whether the respondents established their claim based on the whole of the evidence adduced.

[123]       Second, I observe that the SBT explained its reasons for rejecting the Director’s evidence using the full Law framework, and that its reasons are entirely consistent with Kapp.

[124]      In essence, the SBT concluded that OW is actually less suited to the respondents’ needs than the ODSP because: (1) the respondents’ financial needs are more likely to be long-term rather than short-term; (2) the ODSP has a mechanism for ensuring support money is not spent on alcohol; and (3) the ODSP offers most of the same employment supports as OW. Equally, if not more important, the SBT concluded that, unlike OW, the ODSP did not place the respondents at risk of losing their benefits if they were unable, because of their disability, to comply with OW’s mandatory participation requirements.

[125]      In the end, the SBT stated at p. 17 that s. 5(2) “denies income support and imposes restrictions because of assumed or unjustly attributed characteristics and therefore denies the essential human worth of the [respondents] and those like them”. At its core, this is a finding that s. 5(2) of the ODSP creates a disadvantage by stereotyping.

[126]      In addition, based on the evidence of the respondents’ experts, the SBT found that addiction is a disability that carries with it great social stigma and that this stigmatization is compounded where an addicted person is also part of another stigmatized group, such as those on social assistance.

[127]      At the end of the day, although the SBT did not have the benefit of Kapp, in my view, its reasons fall squarely within Kapp, and I see no basis for interfering with its decision based on the precise test it used to analyze the issues before it.

2.  The SBT did not err in its Approach to the Expert Social Science Evidence

            i) The Director’s Social Science Evidence

[128]      Although I accept the Director’s argument that the Divisional Court’s post-Kapp test is not correct, counsel for the Director fairly conceded in oral argument that in order to succeed on this appeal the Director must also demonstrate legal error in the SBT’s analysis of s. 5(2) of the ODSPA.

[129]      In support of its claim that the SBT erred in finding that s. 5(2) of the ODSPA is discriminatory, the Director relied primarily on the evidence of Dr. William Jacyk, a physician specializing in addictions at the Homewood Health Centre. The essence of Dr. Jacyk’s opinion was that disqualifying persons whose sole impairment is substance dependence from eligibility for the ODSP, but leaving them potentially eligible for OW, is appropriate from a medical perspective.

[130]      According to Dr. Jacyk, substance dependence is a disease characterized by a progression in which the individual increasingly loses autonomy and control over the use and consequences of use of the substance. Although he describes substance dependence as “a chronic relapsing disorder”, he maintains that it is “a totally treatable disease” and that the chronic relapsing nature of the condition “is a result of non-compliance with ongoing treatment rather than ... a disease process that is progressive and totally uncontrollable.”

[131]      From Dr. Jacyk’s perspective, a key distinction exists between persons with simple or “uncomplicated” addictions, and those who suffer from additional mental health or physical conditions, which he called “concurrent disorders”. In his view, all persons with uncomplicated addictions are capable of recovery. Moreover, with this group, there is an expectation of a timely return to work and “long-term disability is not a consideration”.

[132]      In Dr. Jacyk’s opinion, although a variety of treatments are available, all successful treatments are based on the promotion of personal responsibility, accountability and self-esteem. Key factors in assisting recovery are providing external motivators that promote feelings of self-esteem and self-worth (for example, an early return to the workforce) and avoiding negative influences and enablers that inhibit internal motivation to change (for example, third parties paying off debts or providing loans or handouts when disposable funds have been spent on drugs or alcohol).

[133]      According to Dr. Jacyk, for individuals in the sole impairment group, disqualifying them from eligibility for the ODSP promotes their recovery in four ways:

·        it removes a financial disincentive to recovery (enhanced ongoing benefits through ODSP eligibility);

·        it avoids promoting a spirit of long-term infirmity (through participation in a plan that implies that they have less potential to recover than they in fact have); 

·        it limits the money they have available to spend on alcohol or drugs; and

·        it directs them to OW, a program that promotes accountability, self-sufficiency and self-esteem by requiring that claimants participate in employment assistance activities.

[134]      On the other hand, Dr. Jacyk opined that, depending on the degree of impairment, the ODSP may be the appropriate program for people with a concurrent disorder. Despite treatment, such individuals may relapse and progress further into their illness. They may therefore require a greater concentration of energy on treatment and recovery, accompanied by relief from their everyday responsibilities.

            ii) The SBT’s Decision of November 30, 2006

[135]      For the purpose of this issue, the SBT’s crucial determination is its decision to reject the Director’s argument that the respondents are better served by OW than by the ODSP. This argument rested primarily on Dr. Jacyk’s evidence.

[136]      Contrary to the Director’s position, the SBT concluded that s. 5(2) is not closely tailored to the actual needs of persons in the sole impairment group but rather denies disability benefits for individuals in the group on the basis of assumed or unjustly attributed characteristics, denying them their essential human worth. In making this finding, the SBT essentially rejected the key elements of Dr. Jacyk’s evidence.

            iii) The Director’s Position on Appeal

[137]      Before the Divisional Court, the Director argued that the SBT’s findings of fact were not entitled to appellate deference because the social science evidence was legislative fact evidence.

[138]      On appeal to this court, the Director recasts its argument concerning legislative fact/social fact evidence. In addition to arguing that the SBT's findings of legislative fact are not entitled to appellate deference, the Director now submits for the first time that the SBT erred in failing to consider whether the government had a reasonable basis for the legislative policy choice reflected in s. 5(2) of the ODSPA, and if the government did, in failing to defer to it.

[139]      The Director contends that the SBT failed to appreciate the distinction between “legislative fact” and “adjudicative fact” evidence and therefore erred in its approach to the expert evidence that was before it. Relying on RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, the Director submits that the Supreme Court of Canada has held that the legislature is entitled to a measure of deference with respect to issues of public policy where a law is premised on complex and conflicting expert evidence and allocates scarce public resources. Where such factors are present, the Director argues, the government is entitled to a margin of appreciation in formulating policy.

[140]      The Director submits that the expert evidence before the SBT was directed at how various treatment options and social assistance structures would affect the behaviour of persons with addictions. The Director claims that these are matters not susceptible of empirical proof and about which there is no expert consensus.

[141]      Further, the Director contends that its expert, Dr. Jacyk, was the only expert who gave expert evidence on the characteristics and needs of the sole impairment group - the only group ineligible under s. 5(2) - and the only expert who compared the circumstances of the sole impairment group to the larger group of disabled persons with other or additional impairments. Dr. Jacyk was also the only expert familiar with the operation of both the ODSPA and the OWA and also the only witness to testify to his experience treating patients affected by s. 5(2) or similar provisions.

[142]      Finally, the Director submits that the Divisional Court erred in law in failing to apply the appropriate standard of appellate review to the SBT’s findings of legislative fact. Here, the Director reiterates its argument made in the Divisional Court that the SBT's findings of legislative fact are not entitled to appellate deference.

iv) Discussion

[143]      Although I accept the Director’s submission that Dr. Jacyk’s evidence opining that OW represents a better fit for the sole impairment group than the ODSP falls into the category of legislative fact evidence, I am not persuaded that the SBT made any error in rejecting the Director’s arguments that were premised on Dr. Jacyk’s opinion.

a)     Dr. Jacyk’s Evidence was Legislative Fact Evidence

[144]      In Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1099, the Supreme Court described adjudicative facts as “those that concern the immediate parties ... who did what, where, when, how and with what motive or intent”, whereas legislative facts “are those that establish the purpose and background of legislation, including its social, economic and cultural context.”

[145]      Further, in RJR-MacDonald at para. 79, La Forest J. observed that “social” or “legislative” facts are those “that arise in the law-making process and require the legislature or court to assess complex social science evidence and to draw general conclusions concerning the effect of legal rules on human behaviour” (emphasis added).

[146]      Given that Dr. Jacyk provided expert opinion evidence concerning the relative impact of OW and the ODSP on the sole impairment group, it seems to me that his evidence is properly classified as legislative fact evidence. As such, I accept the Director’s argument that the SBT’s assessment of this evidence may attract less than the usual degree of appellate deference: RJR-McDonald at paras. 79-81 and 141.

[147]      However, particularly in the light of my view of this evidence, as well as the fact that the Director’s right of appeal is limited to questions of law, ultimately this factor matters very little in the circumstances of this case.

[148]      Finally, I note that even if I am wrong in concluding that Dr. Jacyk’s evidence is legislative fact evidence, this would not assist the Director and would still result in the appeal being dismissed.

[149]      As I have said, the SBT explained its reasons for rejecting the Director’s evidence using the full Law framework, and its reasons are consistent with Kapp. Apart from arguing that Dr. Jacyk’s evidence is legislative fact evidence and that the SBT erred in its approach to such evidence, the Director has not raised any other basis for challenging the SBT’s decision.

b)     The Government’s Policy Choice does not attract Significant Deference

[150]      In addition to attracting less than the usual degree of appellate deference to a first instance decision-maker’s findings of fact, a second implication of characterizing evidence as legislative fact evidence is that, at least in some circumstances, courts are instructed to accord the legislature a wide measure of deference in relation to its policy choices.

[151]      In RJR-MacDonald, La Forest J. held, at para. 77, that in the context of a s. 1 Charter analysis, the government need only prove that it had a “rational basis” for enacting legislation aimed at the broader social good. Similarly, in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 305, again in relation to a s. 1 Charter analysis, La Forest J. stated that the “operative question” in such cases is whether the government had a “reasonable basis, on the evidence tendered for concluding that the legislation interferes as little as possible with a guaranteed right, given the government’s pressing and substantial objectives.” 

[152]      This court summarized the prevailing view in Wynberg v. Ontario (2006), 82 O.R. (3d) 561, at para. 184, also in the context of a s. 1 Charter analysis:

The Supreme Court of Canada has held repeatedly that where the government has made a difficult policy choice regarding the claims of competing groups, or the evaluation of complex and conflicting research, or the distribution of public resources, or the promulgation of solutions which concurrently balance benefits and costs for many different parties, then the proper course of judicial conduct is deference. 

[153]      However, Dr. Jacyk’s evidence did not relate to a s. 1 Charter issue in the sense that it sought to justify a discriminatory policy. Rather, it related to the Director’s attempt to rebut the respondent’s claim of discrimination through the argument that OW was better suited to the respondents’ needs than the ODSP. Before the SBT, this argument was premised on the second contextual factor set out in Law: the extent to which s. 5(2) of the ODSPA corresponds with the actual needs, capacity or circumstances of the sole impairment group.

[154]      Although it is true that a law with a discriminatory purpose will be invalid, it is also true that a law that has a discriminatory effect will not be saved by a benevolent purpose: Andrews at p. 167. In the result, the primary inquiry when addressing the second contextual factor set out in Law is not about the basis for the government’s legislative policy choice; rather, it is about legislative impact.

[155]      The Director acknowledges that this is not a case about under-inclusive legislation requiring the government to make a choice about allocating scarce resources. On the contrary, the Director submits that s. 5(2) is not discriminatory because both its purpose and its effect are to assist the sole impairment group with their recovery.

[156]      Accordingly, although the legislature will be afforded a margin of appreciation in the sense that perfect correspondence is not required (see Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, at para. 55), the primary inquiry remains the extent to which s. 5(2) corresponds with the actual needs, capacity or circumstances of the respondents and other members of the sole impairment group.

[157]      In my opinion, the fact that the government may be able to provide a basis for its policy choice should not determine the fundamental question of whether s. 5(2) in fact has a discriminatory effect on the respondents. Rather, it is up to the tribunals and courts who are tasked with determining whether a legislative provision is discriminatory to make the necessary findings based on their assessment of the whole of the evidence before them.

[158]      I am not persuaded that the authorities on which the Director relies hold otherwise. In the main, they are Charter cases addressing the s. 1 analysis or situations involving under-inclusive legislation: RJR-MacDonald; McKinney; Wynberg; Canada (Attorney General) v. JTI-McDonald Corp., [2007] 2 S.C.R. 610; Newfoundland (Treasury Board) v. Newfoundland and Labrador Assn. of Public and Private Employees, (N.A.P.E.), [2004] 3 S.C.R. 381; R. v. Irwin Toy, [1989] 1 S.C.R. 927; PSAC v. Canada, [1987] 1 S.C.R. 424; and Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827.

[159]      In the end, I am sceptical that the SBT was required to approach the expert social science evidence in this case on the basis of assessing whether the government had some basis for its legislative policy choice in enacting s. 5(2) of the ODSPA.

c)     Dr. Jacyk’s Evidence is not Sufficiently Cogent to Attract Deference

[160]      Even assuming that Dr. Jacyk’s evidence is capable of supporting some measure of deference for the government’s policy choice in enacting s. 5(2) of the ODSPA, I am not satisfied that the SBT erred in rejecting his evidence.

[161]      In my view, Dr. Jacyk’s evidence is not sufficiently cogent to attract deference to the government’s policy choice.  I say this for two reasons.

[162]      First, I reject the Director’s submission that Dr. Jacyk’s evidence reflected familiarity with OW and the ODSP and how the disqualification in s. 5(2) of the ODSPA operates. In my opinion, the cross-examination on his affidavit demonstrates otherwise.

[163]      I acknowledge that Dr. Jacyk said on cross-examination that he had reviewed Ontario’s social assistance legislation and that he sees patients who receive support under both regimes. However, he was unable to recall a specific occasion on which he had dealt with the legislation in his own practice and acknowledged that he had never been asked to assess whether a particular patient was disabled under the ODSPA.

[164]      Dr. Jacyk was unable to comment on whether he had increased success in dealing with OW patients versus ODSP patients. Further, he described the objectives of the two regimes, incorrectly in my view, as “mak[ing] sure that people have social assistance so that they don’t starve and have an opportunity to make some assessment as to where they can go next.”

[165]      When asked if he had any understanding of what the consequences might be for non-compliance with OW’s mandatory participation requirements, Dr. Jacyk said no.   When asked if he was familiar with s. 5(2) of the ODSPA, Dr. Jacyk said he would have to refresh his memory. When asked if he was aware that the ODSPA allows for representative payees of the social assistance, Dr. Jacyk said no.

[166]      Although Dr. Jacyk was able to refresh his memory concerning at least some of these matters, he can hardly be described as an expert who has a working familiarity with Ontario’s social assistance regime.

[167]      Second, and more fundamentally, in my opinion, Dr. Jacyk’s evidence did not relate his theories about addiction to the terminology and classifications in the ODSPA in a manner that would support deference for the government’s policy choice.

[168]      Subsection 5(2) of the ODSPA disqualifies from eligibility for ODSP those individuals who meet the definition of being a person with disability because they are dependent on alcohol, drugs or some other chemically active substance. Subsection 5(3) of the ODSPA clarifies that s. 5(2) does not apply to people with a “substantial physical or mental impairment” in addition to substance dependence.

[169]      The combined effect of these two sections is to restrict the disqualification from eligibility for benefits to people who meet the definition of being a person with a disability but whose sole impairment is attributable to substance dependence.

[170]      However, at its core, Dr. Jacyk’s evidence rejects the possibility that people in the sole impairment group can be disabled.

[171]      Throughout the course of his evidence, Dr. Jacyk made broad statements about the characteristics of people with simple addictions, compared them with addicts whose addictions are complicated by concurrent disorders, and said that, in contrast to addicts with concurrent disorders, people with simple addictions are entirely treatable and unlikely to relapse. Dr. Jacyk expressly rejected in his evidence the notion that people with simple addictions can be disabled. However, in opining that s. 5(2) of the ODSPA is medically appropriate, Dr. Jacyk effectively equated the category of people he described as having simple addictions with the category of persons created by the ODSPA as the sole group impairment group.

[172]      Significantly, Dr. Jacyk never addressed in his evidence the pivotal issue of whether the category of people he describes as having simple addictions are properly equated with the sole group impairment group created by the ODSPA.

[173]      For example, Dr. Jacyk:

·        never addressed in his evidence how it is that a person in the sole impairment group can meet the definition of being a person with a disability under the ODSPA if they suffer from nothing more than what he describes as a simple addiction;

·        never described the sequelae and impacts of addiction a person in the sole impairment group who meets the definition of being a person with a disability is likely to have experienced and how such a person will be excluded from his description of an addict with a concurrent disorder; and

·        never provided an opinion concerning the likelihood of a person in the sole impairment group, who meets the definition of being a person with a disability, being able to comply with the mandatory OW participation requirements.

[174]      What follows are two excerpts from Dr. Jacyk’s testimony on cross-examination that illustrate these points (for additional excerpts see Appendix B):

Q. So it’s your view that unless a substance dependent person has a co-occurring disorder they would not be disabled?

A. That’s correct.

...

Q. In your view can substance dependence with no complications result in disability for the purposes of the ODSPA?

A. Without complications?

Q. Yes.

A. I do not believe it can.

[175]      Importantly, Dr. Jacyk noted in his cross-examination that it may not be possible to diagnose a concurrent disorder until after treatment for substance dependence has begun.

[176]      However, Dr. Jacyk never addressed in his evidence the likelihood that people who fall into the sole impairment group under the ODSPA could be people he described as having a concurrent disorder, but who have not yet been diagnosed.

[177]      Given that Dr. Jacyk does not have a working familiarity with the Ontario social assistance regime and has never assessed whether a particular patient is disabled under the ODSPA, it may be questionable whether he could even proffer such an opinion.

[178]      The reality of this case is that Mr. Tranchemontagne and Mr. Werbeski are classified under the ODSPA as being persons with a disability whose only substantial impairment is attributable to substance dependence. The Director has not raised any challenge to the SBT’s finding that they are disabled. And Dr. Jacyk’s evidence simply does not acknowledge or address their circumstances. Indeed, he acknowledged on cross-examination that he did not know either Mr. Tranchemontagne or Mr. Werbeski and did not know whether they were disabled within the meaning of the ODSPA.

[179]      Given that the Director’s argument that s. 5(2) of the ODSPA is not discriminatory was premised largely on Dr. Jacyk’s evidence, in my view, the SBT was entirely justified in rejecting the Director’s argument and in holding, at p. 17, that s. 5(2) “denies income support and imposes restrictions because of assumed or unjustly attributed characteristics ... and is therefore discriminatory.”

[180]      Although the SBT did not frame its assessment of Dr. Jacyk’s evidence in precisely the same way as I have, it is apparent that the SBT simply did not accept his unsubstantiated assertion that the category of people he described as having simple addictions would correspond even in a general way with the category of people who fall into the sole impairment group under the ODSPA. Nor does it appear that the SBT was satisfied that Dr. Jacyk had a working familiarity with the ODSPA.

[181]      For example:

·        the SBT found that a claim for financial assistance by a person in the sole impairment group was “far more likely to be long-term”;

·        the SBT determined that the risk of cancellation of benefits under OW for failing to comply with the mandatory participation requirements is a real risk for addicts; and

·        the SBT rejected the Director’s argument that receipt of less financial assistance is actually beneficial at least in part because of the mechanism for appointing a trustee to manage a recipient’s money under the ODSPA – a mechanism that Dr. Jacyk said he was not aware of.

[182]      In all the circumstances, I am not persuaded that the Director has demonstrated that the SBT erred in its approach to the expert social science evidence or that the Divisional Court erred in its review of the SBT’s approach.

V. Conclusion

[183]      Based on the foregoing reasons, I would dismiss the appeal. Neither party requested costs and I would make no order as to costs.

RELEASED: 

“SEP 16 2010”                                              “Janet Simmons J.A.”

“JS J.A.”                                                         “I agree E. A. Cronk J.A.”

                                                                        “I agree Paul Rouleau J.A.”

Appendix ‘A’

Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B

1.  The purpose of this Act is to establish a program that,

(a) provides income and employment supports to eligible persons with disabilities;

(b) recognizes that government, communities, families and individuals share responsibility for providing such supports;

(c) effectively serves persons with disabilities who need assistance; and

(d) is accountable to the taxpayers of Ontario. 1997, c. 25, Sched. B, s. 1.

…

4.  (1)  A person is a person with a disability for the purposes of this Part if,

(a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;

(b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and

(c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications. 1997, c. 25, Sched. B, s. 4 (1).

Determination

(2)  A determination under this section shall be made by a person appointed by the Director. 1997, c. 25, Sched. B, s. 4 (2).

Eligibility for income support

5.  (1)  No person is eligible for income support unless,

(a) the person qualifies under subsection 3 (1);

(b) the person is resident in Ontario;

(c) the budgetary requirements of the person and any dependants exceed their income and their assets do not exceed the prescribed limits, as provided for in the regulations;

(d) the person and the prescribed dependants provide the information and the verification of information required to determine eligibility including,

(i) information regarding personal identification, as prescribed,

(ii) financial information, as prescribed, and

(iii) any other prescribed information; and

(e) the person and any dependants meet any other prescribed conditions relating to eligibility. 1997, c. 25, Sched. B, s. 5 (1).

Same

(2)  A person is not eligible for income support if,

(a) the person is dependent on or addicted to alcohol, a drug or some other chemically active substance;

(b) the alcohol, drug or other substance has not been authorized by prescription as provided for in the regulations; and

(c) the only substantial restriction in activities of daily living is attributable to the use or cessation of use of the alcohol, drug or other substance at the time of determining or reviewing eligibility. 1997, c. 25, Sched. B, s. 5 (2).

Same

(3)  Subsection (2) does not apply with respect to a person who, in addition to being dependent on or addicted to alcohol, a drug or some other chemically active substance, has a substantial physical or mental impairment, whether or not that impairment is caused by the use of alcohol, a drug or some other chemically active substance. 1997, c. 25, Sched. B, s. 5 (3).

…

31.  (1)  Any party to a hearing before the Tribunal may appeal the Tribunal’s decision to the Divisional Court on a question of law. 1997, c. 25, Sched. B, s. 31 (1).

Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A

1. The purpose of this Act is to establish a program that,

(a) recognizes individual responsibility and promotes self-reliance through employment;

(b) provides temporary financial assistance to those most in need while they satisfy obligations to become and stay employed;

(c) effectively serves people needing assistance; and

(d) is accountable to the taxpayers of Ontario. 1997, c. 25, Sched. A, s. 1.

Human Rights Code, R.S.O. 1990, c. H.19

Preamble

Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario;

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

PART I
FREEDOM FROM DISCRIMINATION

Services

1.  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, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1).

…

9.  No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. R.S.O. 1990, c. H.19, s. 9.

10.  (1)  In Part I and in this Part,…

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

…

47.  (1)  This Act binds the Crown and every agency of the Crown. R.S.O. 1990, c. H.19, s. 47 (1).
Appendix ‘B’

Q. Is it your view that not all substance dependent persons are disabled?

A. Yes.

Q. And that some are disabled?

A. Well the ones that are complicated, yes...

...

Q. So it’s your view that unless a substance dependent person has a co-occurring disorder they would not be disabled?

A. That’s correct.

...

Q. Is it your view that there is no severe addiction in the absence of a concurrent disorder?

A. I’m really trying to just go through my experience it’s a really important question and [I’m] basically trying to recall in my clinical experience have I ever run into somebody who was severe without something complicating their addiction and quite frankly from my clinical experience I haven’t run across that...

Q. And so you also have not run across anybody who was disabled by their dependence without something complicating his dependence?

A. That’s correct. I’ve run across a lot of people with disabilities ... but they were complicated...

...

Q.  [T]he proposition to the witness is that in substance dependence the disease may override any motivational aspects of the person’s intention to change and I take it that Dr. Jacyk disagreed with that to the extent that it would be attributed solely to substance dependence and in Dr. Jacyk’s view that phenomenon would require a concurrent disorder. Am I being fair so far?

A. That’s correct...

...

Q. In your view can substance dependence with no complications result in disability for the purposes of the ODSPA?

A. Without complications?

Q. Yes.

A. I do not believe it can.

...

Q. Recommendation 40 is that the City of Toronto urged the Provincial government to reinstate addiction as an eligible disability under the Ontario Disability Support Program. I take it you disagree with that recommendation?

A. The way it’s stated, yes ... in my opinion addiction per se should not be considered a disability. It can lead to disability if it’s added to other circumstances. I have no problem with that, but to say that the addiction is a disability in its own right to me is like saying allergies are a disability and should be added to the ODSP. It’s too broad a term ... it may lead to disability when it becomes complicated, yes. I’ve already said that several times...

...

Q. Do take issue with anything that Dr. Berger says in that paragraph?

A. I have a concern as to still stat[ing] that ... one aspect of substance dependence is that by its nature [it] is a relapsing disorder. As I am ... getting to understand it, it may not be as relapsing as we think because we never took into account that there were other factors, there were mental health issues or physical issues that may be contributing to the relapsing ...