|
Charter - s.15 Discrimination - Adverse Effect. Mathur v. Ontario
In Mathur v. Ontario (Ont CA, 2024) the Ontario Court of Appeal allowed a novel applicant's appeal, here as to whether "the alleged failure of Ontario to comply with its voluntarily imposed statutory obligations to combat climate change amount to a breach of the appellants’ ss. 7 and 15 rights under the Canadian Charter of Rights and Freedoms".
In this context, the court considers the applicants' Charter s.15 ['equality'] rights:(e) Section 15(1) of the Charter
[54] Section 15(1) of the Charter provides that: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. [55] Citing to para. 28 of Sharma, the application judge correctly stated the governing test to establish an infringement of s. 15(1) of the Charter: “[A] claimant has to demonstrate that the impugned law or state action: (a) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and (b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.”
[56] While correctly setting out the test, the application judge erred in her assessment of the appellants’ s. 15(1) claim principally because she again viewed the issue as a positive rights case, citing to Sharma, at para. 63, and stating: “Section 15(1) of the Charter does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation. Were it otherwise, courts would be impermissibly pulled into the complex legislative domain of policy and resource allocation, contrary to the separation of powers.”
[57] The application judge’s overarching error that this was a positive rights case affected her causation analysis. She erred by failing to acknowledge that Ontario had imposed on itself a positive statutory obligation to execute constitutionally compliant measures to combat climate change through the Target, the Plan and the CTCA. She failed to address whether there was a link or nexus between the impact of the Target and the disproportionate impact based on a protected ground: Sharma, at paras. 44-45.
[58] The application judge should have considered whether, in setting a Target that she found “falls severely short of the scientific consensus as to what is required”, Ontario committed itself to a level of greenhouse gas emissions that will create or contribute to a disproportionate impact on the basis of an enumerated or analogous ground. The argument is that the Target permits emissions beyond what the scientific community deems acceptable, which evidence was not challenged by Ontario.
....
[61] The onus in each case is satisfied on a balance of probabilities. A claimant, in either a s. 7 or a s. 15 Charter claim, does not need to prove that the impugned state action is the only or the dominant cause of the prejudice suffered: Bedford, at para. 76; Sharma, at para. 45. In adverse impact claims, the inquiry at the first step of the s. 15(1) test is “not a preliminary merits screen” or “an onerous hurdle designed to weed out claims on technical bases”, but rather serves to exclude claims that have nothing do with substantive equality: Alliance, at para. 26; see also Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 41. A claimant’s evidentiary burden in proving that a law has caused a disproportionate impact “cannot be unduly difficult to meet”: Sharma, at para. 49. . Jacob v. Canada (Attorney General)
In Jacob v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an underinclusive Charter s.15 challenge to the CERB/CRB COVID programs.
Here the court considers Step 2 of the Sharma Charter s.15 test:(2) Step Two: Whether the impugned law imposed a burden or denied a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage
[93] The second step in the s. 15(1) test asks whether the impugned law imposed a burden or denied a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.
....
[99] In the context of the s. 15(1) analysis, and on the evidence before the application judge, I would characterize the purposes of the CERB and CRB as the provision of temporary, emergency replacement income for those with a minimum attachment to the labour market who had lost their expected employment related income due to the COVID-19 pandemic, including COVID-19 related illness, quarantines, lockdowns and related restrictions. The emergency nature of the programs also meant that they had to be simple enough to initiate and administer as to be put into operation almost immediately after the enactment of the legislation creating them.
[100] The question remains as to whether, by imposing the $5,000 income threshold, together with omitting CPP-D from eligibility in the calculation of income for purposes of the CERB and the CRB, the scheme arbitrarily excluded many in the claimant group, thereby reinforcing their existing disadvantage.
....
[104] As confirmed in Fraser, at paras. 72-75, and as discussed in relation to the first step of the s. 15(1) test above, this court need not be satisfied that all members of a protected group will be impacted in the same way. As the Supreme Court wrote in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 76, “differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are equally mistreated.” In other words, the fact that some workers with a disability benefitted from the CERB and CRB does not detract from the argument that the income threshold for those programs had a disproportionate impact on workers with a disability. The overrepresentation of workers with a disability in the group of those found ineligible for the CERB and CRB based on the income threshold reflects this disproportionate impact.
[105] Requiring proof that all members of the group are impacted identically can perpetuate the stereotypes s. 15(1) was designed to protect against. This includes the stereotype that because some people with disabilities are able to work, that other persons with disabilities who are unable to do so are exaggerating (and actually able to maintain employment) or are unwilling to work.
[106] In Fraser, Abella J. confirmed, at para. 76, that the focus of the second stage of the s. 15(1) analysis is whether the distinction perpetuates the disadvantage experienced by a protected group:This brings us to the second step of the s. 15 test: whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage. This inquiry will usually proceed similarly in cases of disparate impact and explicit discrimination. There is no “rigid template” of factors relevant to this inquiry. The goal is to examine the impact of the harm caused to the affected group. The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion … [p]sychological harms … [p]hysical harms … [or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group. [107] The Supreme Court also has highlighted the link between perpetuating disadvantage and a failure to put in place accommodations in the context of people with disabilities. As Sopinka J. stated in Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, at para. 66:The principles that not every distinction on a prohibited ground will constitute discrimination and that, in general, distinctions based on presumed rather than actual characteristics are the hallmarks of discrimination have particular significance when applied to physical and mental disability. Avoidance of discrimination on this ground will frequently require distinctions to be made taking into account the actual personal characteristics of disabled persons. In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at p. 169, McIntyre J. stated that the “accommodation of differences . . . is the essence of true equality”. This emphasizes that the purpose of s. 15(1) of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons. [Emphasis added.] [108] In other words, where legislation or government action perpetuates the existing disadvantage of a claimant group by failing to accommodate the different experiences of people with disabilities, even where not based on stereotypical or discriminatory grounds, the second step of s. 15(1) may be met. See also Simpson v. Canada (A.G.) et al., 2020 ONSC 6465, at para. 291.
[109] The fact of the existing disadvantages faced by workers with disabilities was amply supported by the record before the application judge, and did not appear to be contested by Canada. This fact has been recognized in several other Supreme Court decisions. For example, in Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, La Forest J. stated, at para. 56:It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions […] This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the “equal concern, respect and consideration” that s. 15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms […] One consequence of these attitudes is the persistent social and economic disadvantage faced by the disabled. Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed. [Citations omitted.] [110] In the context of this case, Dr. Lindsay provided ample evidence that disabled workers face significant barriers in the workforce, that there are widespread misconceptions about the ability and willingness of disabled persons to work, that disabled persons face significant financial concerns and that economic crises like the pandemic have a disproportionate effect on disabled persons.
[111] Viewed in this context, the question is whether Canada’s design of the CERB and the CRB was undertaken with regard to, or accommodations for, workers with a disability who were active in the labour market, a group with a well-established, existing disadvantage in the labour market.
....
[119] It is in this sense that the existing disadvantage of workers with disabilities such as Ms. Jacob was exacerbated by the income threshold – and manner of calculating that income – in the CERB and CRB. As discussed above, disabled workers face a disadvantage, earning less income than non-disabled workers, both as a direct result of their disability and indirectly through the significant barriers they face in the workforce. Dr. Lindsay’s evidence established that these barriers are even more significant for individuals with a more severe disability. Those workers with a disability who supplemented their benefits with work, and lost employment opportunities due to the pandemic, already faced significant hardship in obtaining and/or maintaining employment because of their disability. Further, workers with a disability not receiving CPP-D benefits and relying solely on employment income faced even more significant economic consequences if found not to quality for the CERB and CRB.
[120] In summary, I conclude that the $5,000 income threshold, and the exclusion of CPP-D from the calculation of that threshold, made it substantially more difficult for workers with a disability, who were active in the labour market, to replace lost employment income during the pandemic through the CERB and CRB programs, thereby exacerbating their disadvantage.
[121] For these reasons, Ms. Jacob has met the second step of the s. 15(1) test. Consequently, she has established that her s. 15(1) rights were violated by the CERB and CRB. . Jacob v. Canada (Attorney General)
In Jacob v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed [on Charter s.1] an underinclusive 'adverse effect' Charter s.15 challenge to the CERB/CRB COVID programs:[1] The appellant, Valerie Jacob, lives with a disability which means she is only able to work part-time. She is a recipient of the Canada Pension Plan Disability Benefit (“CPP-D”). Because she was unable to work sufficient hours to earn the required threshold of $5,000 from an eligible income source, she was ineligible to receive the Canadian Emergency Response Benefit (“CERB”) and the Canadian Recovery Benefit (“CRB”) established during the COVID-19 pandemic to provide emergency support to Canadian workers. She brought an application challenging both the $5,000 income threshold as an all-or-nothing eligibility requirement, and the exclusion of CPP-D from the eligible income sources counted toward this threshold, as contrary to s. 15(1) of the Charter of Rights and Freedoms.
....
[36] The application judge applied the s. 15(1) analysis as applied in R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398. As explained in his reasons, this required the applicant to demonstrate that: (1) the impugned eligibility requirements created a distinction based on enumerated or analogous grounds, on their face or in their impact; and (2) the impugned eligibility requirements imposed a burden or denied a benefit in a manner that had the effect of reinforcing, perpetuating or exacerbating a disadvantage: Sharma, at para. 28.
....
ANALYSIS
[53] The Supreme Court recently addressed the standard of review in Charter cases: see Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, at para. 45, per Jamal J., and at paras. 94-97, per Côté J. (concurring). The standard of correctness applies to the findings of law and to findings of mixed fact and law made by the application judge in connection with a constitutional question. As for findings of pure fact that can be isolated from the constitutional analysis, the application judge’s findings are entitled to deference and appellate interference will only be warranted where the application judge has made a palpable and overriding error: see R. v. Pike, 2024 ONCA 608, O.J. No. 3530, at para. 31.
[54] At the outset, it is helpful to clarify the test and framework for an adverse effects s. 15(1) Charter claim.
[55] There does not appear to be any dispute between the parties with respect to how the application judge articulated the two-step test to determine whether there is a violation of s. 15(1) of the Charter (as affirmed most recently by the majority of the Supreme Court in Sharma): first, whether the applicant demonstrated that the impugned law created a distinction based on enumerated or analogous grounds, on its face or in its impact; and second, whether the impugned law imposed a burden or denied a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.
[56] However, the parties frame the analysis of the impugned provisions differently. Ms. Jacob alleges that the $5,000 income threshold, and the omission of CPP-D benefits from the calculation of eligible income, each violate s. 15(1). Canada submits that the $5,000 income threshold and the omission of CPP-D from the eligible sources of income together did not discriminate on the basis of disability, treating the two as a single impugned measure. The application judge appears to have considered these claims together.
[57] In my view, it is appropriate to consider the $5,000 income threshold, together with the legislated framework for calculating eligible income. That framework omitted the inclusion of income from CPP-D benefits for recipients of CPP-D. Analyzing the two measures together is necessary in order to understand the impact of the measures on the claimant group of workers with a disability who were active in the labour market. While all recipients of CPP-D are persons with a disability, not all CPP-D recipients were working during the period of time relevant for calculating income for the purposes of the CERB and CRB. Similarly, not all workers with a disability who applied for the CERB and CRB received CPP-D. However, the entire claimant group was affected by the $5,000 income threshold and the way in which that income could be calculated, although they may have been affected in different ways. This holistic approach to the impugned measure also is consistent with the framework of substantive equality undergirding the test for s. 15(1).
[58] Substantive equality is a central concern of s. 15(1), although the focus of the analysis should remain on the test: Sharma, at para. 38; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113, at para. 40; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 2. The Supreme Court in Withler, at para. 39, summarized the meaning of substantive equality and its effect on the s. 15 analysis:Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. [Emphasis added.] [59] Therefore, the s. 15(1) inquiry “must consider all context relevant to the claim at hand”: Withler, at para. 43. Similarly, in Fraser, at para. 42, the Supreme Court described substantive equality as requiring “attention to the ‘full context of the claimant group’s situation’, to the ‘actual impact of the law on that situation’, and to the ‘persistent systemic disadvantages [that] have operated to limit opportunities available’ to that group’s members”. See also: Sharma, at para. 187, per Karakatsanis J. (dissenting, but not on this point); R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 153, per Wagner C.J. (concurring).
[60] In light of this emphasis on attention to the full context of the claimant group’s situation and the actual impact of the law on that situation, I will treat the income threshold and the omission of CPP-D benefits in the calculation of eligible income together as I assess the errors alleged by Ms. Jacob within this two-step s. 15(1) framework. . Jacob v. Canada (Attorney General)
In Jacob v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an underinclusive Charter s.15 challenge to the CERB/CRB COVID programs.
Here the court considers Step 1 of the Sharma Charter s.15 test:[36] The application judge applied the s. 15(1) analysis as applied in R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398. As explained in his reasons, this required the applicant to demonstrate that: (1) the impugned eligibility requirements created a distinction based on enumerated or analogous grounds, on their face or in their impact; and (2) the impugned eligibility requirements imposed a burden or denied a benefit in a manner that had the effect of reinforcing, perpetuating or exacerbating a disadvantage: Sharma, at para. 28.
....
[64] Before delving more deeply into this error and its impact on the analysis at this stage, I will review the principles underlying substantive equality and the guidance in the s. 15(1) jurisprudence relating to the first step of the test.
[65] As a starting point, s. 15 is intended to “promote equality and prevent discrimination against disadvantaged groups”: Fraser, at para. 27 (emphasis added). While discrimination can be experienced at either the individual or group level, the discrimination that s. 15 protects against is based on the individual’s membership in a group, whose parameters are defined by the enumerated or analogous ground alleged by the claimant.
[66] The circumstances of the individual claimant are still important, however ultimately their s. 15(1) claim is based on their membership in a protected group.
[67] This relationship between the individual’s circumstances and the claimant group’s circumstances was addressed in Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, [2019] 2 F.C.R. 488, leave to appeal refused, [2018] S.C.C.A. No. 506, which dealt with a s. 15(1) challenge to a minimum income requirement for sponsorship to Canada. The claim was dismissed because Ms. Begum had failed to provide evidence of her own membership in a protected group which could have been impacted by the impugned provision “even if she herself was not”: Begum, at para. 59. In other words, individual evidence is important to establish the individual claimant’s membership in a protected group, however the impact of the impugned law does not necessarily need to be experienced by the individual.
[68] This is because, as recent s. 15 jurisprudence from the Supreme Court has made clear, evidence about the full context of the claimant group’s situation, including historical or sociological evidence of disadvantage and evidence about physical, social, cultural or other barriers, is relevant in determining the impact of the impugned law: Fraser, at para. 56; Withler, at para. 64.
....
[77] On the first principle, the first step of the s. 15(1) analysis does not require the claimant show that the impugned law or state action was the only or dominant cause of the disproportionate impact. Rather, a claimant must show a sufficient link or nexus. An improper focus on the “sole” or “predominant” cause disregards the intersectional disadvantages that permeate those with disabilities already living in poverty.
[78] The concept of disproportionate impact in the context of substantive equality was examined in Fraser. In that case, Abella J., at paras. 53-54, described two different ways that a disproportionate impact may satisfy the first step of the s. 15(1) test, either where the impugned law gives rise to “built-in headwinds” for members of protected groups, or where the law fails to accommodate members of protected groups:How does this work in practice? Instead of asking whether a law explicitly targets a protected group for differential treatment, a court must explore whether it does so indirectly through its impact on members of that group. A law, for example, may include seemingly neutral rules, restrictions or criteria that operate in practice as “built-in headwinds” for members of protected groups. The testing requirement in Griggs is the paradigmatic example; other examples include the aerobic fitness requirement in Meiorin, and the policy requiring employees to work on Saturdays in Simpsons-Sears. To assess the adverse impact of these policies, courts looked beyond the facially neutral criteria on which they were based, and examined whether they had the effect of placing members of protected groups at a disadvantage.
In other cases, the problem is not “headwinds” built into a law, but the absence of accommodation for members of protected groups. Eldridge is a good example. Under the health care scheme in that case, all patients lacked access to sign language interpreters — but this lack of access had a disproportionate impact on those who had hearing loss and required interpreters to meaningfully communicate with health care providers. [Citations omitted.] [79] While the claimant’s burden need not be onerous, a disproportionate impact must be established through sufficient evidence rather than a “web of instincts”: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at para. 34. General statistical evidence that does not relate to the specific context of the claim will not suffice on its own. See Begum, at paras. 60–61. To the extent a claimant relies on statistical evidence, the figures must demonstrate “clear and consistent disparities”: Ontario Teacher Candidates’ Council v. Ontario (Education), 2023 ONCA 788, 168 O.R. (3d) 721, at paras. 88–89, citing Fraser, at para. 63.
....
[92] Because the application judge failed to examine the evidence beyond Ms. Jacob’s own individual experience, he erred in his conclusion that the first step in the s. 15(1) test was not met.
|
