What the Human Rights code of Ontario Empowers

Text of an email to a lawyer I was speaking to concerning Ontario Disability Support Program v. Tranchemontagne, 2009 CanLII 18295 (ON S.C.D.C.)

Live and learn.

You're right.

It seems that under the Human Rights Code tribunals are empowered to effectively override legislation that contravenes the guarantees of the Human Rights Code.

And there does not seem to be the kind of a saving provision that S. 1 of the Charter provides. ___________________________________________________________
Human Rights Code

PART V

GENERAL

Act binds Crown

47. (1) This Act binds the Crown and every agency of the Crown. R.S.O. 1990, c. H.19, s. 47 (1).
Act has primacy over other Acts

(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act. R.S.O. 1990, c. H.19, s. 47 (2).
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impugned Disability legislation

Eligibility for income support

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;
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Portions of the case

[2] At issue is whether the Social Benefits Tribunal (“the Tribunal”) erred when it concluded that an alcoholic who is disabled exclusively by his or her substance dependence, is entitled to income support under the Ontario Disability Support Program (“ODSP”) instead of under the Ontario Works program (“OW”). The crux of this appeal is whether the Tribunal undertook the correct legal analysis, and arrived at the correct conclusion, in finding that the respondents’ exclusion from eligibility for benefits under the ODSPA was discriminatory contrary to s. 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”).
History of the Proceedings

[16] At the first Tribunal hearings in 2001, both respondents alleged that s. 5(2) of the ODSPA discriminated against them on the basis of their disability, and was therefore contrary to s. 1 of the Code which reads as follows:

1. Every person has the 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.

As a result of the Code’s paramountcy over all other provincial legislation, argued the respondents, the Tribunal was bound to consider whether a particular provision of the ODSPA was in violation of the Code. If found to be discriminatory, s. 5(2) could not be applied to the respondents.

[17] The Tribunal dismissed both appeals. It concluded that it had no jurisdiction to apply the Code to other legislation because to do so would contravene s. 67(2) of the OWA which prohibits the Tribunal from inquiring into or making a decision concerning the constitutional validity or legislative authority of a provision of any provincial Act or regulation. The Tribunal found that although it was within its powers to apply the ODSPA, any alleged legislative violation of the Code was to be adjudicated elsewhere.

19] After seeking and obtaining leave, the respondents appealed the Divisional Court’s decision to the Court of Appeal for Ontario. That court concluded that although it was within the Tribunal’s jurisdiction to determine whether s. 5(2) violated the Code, it should have declined to exercise that jurisdiction, instead deferring to the Ontario Human Rights Commission which, in the circumstances, was a more appropriate forum: Tranchemontagne v. Ontario (Director, Disability Support Program) 2004 CanLII 41165 (ON C.A.), (2004), 72 O.R. (3d) 457.

[20] The respondents appealed to the Supreme Court of Canada. The Supreme Court found that it was presumed to be within the Tribunal’s authority to consider statutes beyond its enabling statute. Accordingly, as a statutory tribunal empowered to decide questions of law, it could apply all law, including the Code, to determine whether or not the respondents were eligible for income support. Although this presumption could be rebutted by a legislative provision authorizing the Tribunal to decline jurisdiction where the Code was in issue, the legislature had not done so. There was, therefore, no basis in law for the Tribunal’s refusal to consider the ODSPA’s validity under the Code. The Supreme Court remitted the respondents’ case to the Tribunal for it to determine whether or not s. 5(2) violates s. 1 of the Code: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII), [2006] 1 S.C.R. 513.

[23] The second issue before the Tribunal was whether the respondents’ rights under s. 1 of the Code had been infringed by the Director’s decision that they were ineligible for ODSP support pursuant to s. 5(2) of the ODSPA simply because they were members of the sole impairment group. It is the Tribunal’s decision regarding this second issue that is appealed to this court and will be discussed in more detail below.

[24] The Tribunal concluded that the respondents were persons with a disability and were entitled to income support under the ODSPA irrespective of s. 5(2). It decided that this section of the ODSPA was discriminatory and inconsistent with the Code.

[105] Adapted for the present human rights context, in a case such as this involving the provision of services pursuant to a government benefit program, the test 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?

CONCLUSION

[125] In sum, the Tribunal correctly determined that the respondents had established a prima facie case demonstrating that the service under s. 5(2) of the ODSPA creates a distinction based on disability, a prohibited ground under the Code. The respondent did not establish to the Tribunal’s satisfaction, on a balance of probabilities, that this distinction does not create a disadvantage by perpetuating prejudice or stereotyping, nor did it establish a statutory defence under the Code.