On September 16, 2010, the Ontario Court of Appeal rendered an important ruling that examines discrimination based on disability under human rights law. The ruling confirms a lower court judgment that two individuals are entitled to long-term disability benefits under the Ontario Disability Support Program Act (ODSPA) because of their severe dependence on alcohol. The Court decided that denying such benefits violates Ontario’s Human Rights Code.
Ten years ago, the director of the Ontario Disability Support Program decided that Robert Tranchemontagne and Norman Werbeski should not get disability benefits because their addiction was their “sole impairment”. He based his decision on section 5(2) of the ODSPA, which explicitly states that a person who is dependent on, or addicted to, alcohol (or drugs) is not eligible for assistance. Both individuals appealed the director’s decision to the Social Benefits Tribunal (SBT) arguing that alcoholism is a disability within the meaning of the Ontario Human Rights Code. Because the Human Rights Code take precedence over other legislation, s. 5(2)(a) of the ODSPA constituted discrimination and was therefore inapplicable.
While the Social Benefits Tribunal held alcoholism to be a “disabling condition” that “substantially restricts” working ability, the tribunal dismissed their appeals on the grounds that s. 5(2) of the ODSPA makes the two individuals ineligible for long-term disability benefits under the ODSPA. Moreover, the tribunal argued that it did not have jurisdiction to hear cases on the applicability of the Human Rights Code or to consider whether s. 5(2) of the ODSPA was discriminatory. The Divisional Court and the Ontario Court of Appeal both agreed that the Social Benefits Tribunal did not have the jurisdiction to make such a ruling.
The case went to the Supreme Court of Canada—not to decide whether s. 5(2)(a) of the ODSPA conflicts with the Code, but whether the SBT erred when it decided that it could not deal with the issue itself.
In 2006, the Supreme Court concluded that the Social Benefits Tribunal has jurisdiction to consider the Code:
Statutory tribunals [such as the SBT] empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law to a matter properly before them. Here, the ODSPA and the Ontario Works Act, 1997 confirm that the SBT can decide questions of law. As a result, when the SBT decides whether an applicant is eligible for income support, it is presumed to be able to consider any legal source that might influence its decision on eligibility, including the Code.
As a result, the Supreme Court returned the case to the Social Benefits Tribunal stating that the SBT can rule on the applicability of s. 5(2)(a) of the ODSPA, and it can decide if a section of the law violates the Ontario Human Rights Code.
On November 30, 2006, the Social Benefits Tribunal reversed its earlier decision and found that section 5(2) of the ODSPA was contrary to the Human Rights Code and should not be applied. The tribunal added that Tranchemontagne and Werbeski were “persons with a disability” and therefore eligible for ODSP benefits. That did not satisfy the director, who appealed to the Divisional Court. In April 2009, the Divisional Court agreed with the SBT and rejected the government’s argument that denying disability benefits was in the best interests of individuals with a substance abuse problem. According to Accessibility News:
The government failed to provide a “tenable justification” for its decision to treat addicts differently from other people with disabilities, wrote Justice Denise Bellamy for the court. The Ontario law “promotes a stereotypical attitude towards addicted persons. It suggests that those who do not suffer from an additional medically recognized disorder are not genuinely disabled, or in any case are not as disabled as persons with concurrent disorders,” wrote Judge Bellamy.
However, the director, on behalf of the government, continued to disagree and appealed this last decision to the Ontario Court of Appeal.
The director claimed that the denial of ODSP benefits to persons living with addictions is in their best interests based on the evidence of medical experts. He said he has been advised that all persons with addictions are capable of recovery and can derive greater benefits by being redirected to the Ontario Works program (welfare). The director contended that Ontario Works assists in the addiction recovery process and helps to build self-esteem. Moreover, he asserted that the lower benefit payments offered through Ontario Works contribute to the recovery process by limiting the funds available to spend on alcohol or drugs. This argument was based largely on social science evidence from the province’s expert witness, an addiction specialist at the Homewood Health Centre in Guelph.
However, the Ontario Human Rights Code clearly states alcoholism and drug addiction are disabilities, and provides a guarantee of equal treatment with respect to services without discrimination on specified grounds, including disability. In other words, drug addicts and alcoholics can’t be denied benefits that other persons with disabilities receive. In addition, subsection 47(2) gives the Code primacy over other legislation.
The Ontario Court of Appeal had to confirm the legal tests used by the Social Benefits Tribunal for establishing what constitutes discrimination under human rights law, not section 15 of the Charter of Rights and Freedoms.
The test for establishing discrimination under human rights legislation is consistently expressed in jurisprudence (e.g., here and here) and has been confirmed in this case: the complainant must establish a prima facie case of discrimination by showing a distinction based on a prohibited ground listed under an area (e.g., government services, housing, employment) covered by the legislation. The onus then falls on the respondent to justify the discriminatory rule on a balance of probabilities, to demonstrate that the violation is a bona fide requirement or qualification (BFOR/Q), the establishment of which renders a distinction non-discriminatory. But in demonstrating the existence of a BFOR/Q, the respondent must also demonstrate that the “distinction does not create a disadvantage by perpetuating prejudice or stereotyping.”
Thus the Appeal Court decided that the SBT used the correct test to analyze the issues before it. And on September 16, 2010, the Court confirmed the tribunal judgment that the two individuals are entitled to long-term disability benefits under the ODSPA because of their severe dependence on alcohol. It was decided that denying such benefits violates Ontario’s Human Rights Code.
Unfortunately, Werbeski died last year after being hit by a car and never got a chance to claim victory. The Court transcript indicates that Werbeski began drinking when he was 16. Tranchemontagne, 58, a former steelworker, began drinking when he was 18 and has been an alcoholic since his late thirties, He hasn’t worked since 1996. His doctor said he is not employable because of his alcoholism.
According to the Social Benefits Tribunal, the Ministry of Community and Social Services has not applied the exclusion provision since the Divisional Court ruling in 2009, and that will continue while the ministry considers whether to seek an appeal to the Supreme Court of Canada.
I cannot believe the government is considering prolonging this saga. The practice of excluding drug and alcohol addicts from the Ontario Disability Support Program is clearly discriminatory, since the Human Rights Code defines these addictions as disabilities and prohibits differential treatment based on disability. So what can the province do?
It seems that there are only two realistic ways the government can permanently untangle the situation: by somehow justifying the exclusion of addicts from the ODSP, or by simply removing the offending clause from the Ontario Disability Support Program Act.
The second option is essentially what the province is doing by not applying the addiction exclusion provision of the ODSPA. Given the current state of the law, this seems to be the only legal option the province has.
The province might want to continue excluding addicts from ODSP benefits, but to do so it will surely have to come up with a “tenable justification”, which will require significant further study into the issue. But is it worth the government’s trouble to continue to exclude addicts from the program based on addictions to drugs or alcohol? The province must determine conclusively that limiting disability benefits for addicts limits their drug or alcohol intake and improves their recovery process, and that addicts cannot or do not receive appropriate supports for their disabilities from the ODSP. It might be possible to determine these things, but such a finding should lead to a re-examination of the available assistance programs, not a discriminatory exclusion from benefits.
All disabilities are different, and all require different courses of treatment or accommodation. I don’t see why a person with a disability should receive different options for treatment under different assistance programs, which appears to be what the director of the ODSP is suggesting by saying that addicts are better served by the Ontario Works system. If there are government programs to aid addicts, those programs should be available to addicts regardless of whether they collect welfare or disability benefits. If we are to continue to treat addictions as disabilities, I think this is our only reasonable and fair course of action.