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Human Rights (Ont) - Discrimination - General. Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke
In Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke (Div Court, 2024) the Divisional Court dismissed a Crown JR respecting a claimant-successful (and unusual) ODSP 'guide dog benefit' (GDB) HRTO 'disability' decision.
Here the court considers the flexibility of the HRC discrimination test, and it's relation to the Charter s.15 equality test:The Tribunal applied the correct test for discrimination
[95] At paras. 108-110 of the Decision, the Tribunal stated:[108] I note that the analysis of discrimination under the Code is flexible and contextual: the stringency of the evidence and the test to establish discrimination varies and depends significantly on the context. See Tranchemontagne ONCA, above, at para. 84. Thus, in most human rights cases, disadvantage can be inferred from adverse treatment based on a prohibited ground. Tranchemontagne ONCA clarifies at para. 104 that “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.
[109] Both parties addressed this issue in their closing statements and legal arguments. Both agree on the significance of section 15(1) of the Charter, when the Tribunal considers a law or a policy of general application. They described this step somewhat differently but relied on essentially some of the same jurisprudence.
[110] The test under section 15(1) of the Charter requires an applicant to show that the law or policy in question creates a distinction on an enumerated ground and it impose a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage. [96] In accordance with Ontario’s submission, the Tribunal found that in a challenge to a law or policy of general application, the test for discrimination under the Charter and the Code is essentially the same. The focus of the inquiry, whether the Code or Charter test applied, is whether there was adverse treatment based on a prohibited ground that resulted in disadvantage.[11] Both tests are focused on substantive equality by recognizing persistent systemic disadvantage that limits opportunities available to certain groups (here, those with mental health disabilities), and seeking to prevent conduct that perpetuated those disadvantages (here, denial of a benefit that would improve Ms. Robinson-Cooke’s capacities and abilities as a person with mental health disabilities).[12]
[97] Ontario argues that, following Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, the GDB did not create a distinction based on disability because no one received the GDB without an ADI-trained and certified service dog: Decision, at para. 112. However, the Tribunal reasonably found that the GDB was provided to a subclass of ODSP recipients and was not a benefit that was not provided to any ODSP recipient as required by Auton.
[98] The Tribunal found at para. 115:I find that the definition of “disadvantage” in Al-Turki v. Ontario (Transportation) 2020 HRTO 392 at para 83 is applicable to the current case as well. That decision cites the limiting or withholding of a benefit or the imposing of burdens, obligations or disadvantages that are not imposed on others as examples of discrimination. [99] While the ADI Requirement was neutral on its face, it had the effect of excluding all ODSP recipients whose disabilities did not fall within the disabilities that were served by ADI organizations in Ontario. The Tribunal reasonably concluded that Ms. Robinson-Cooke was only adversely impacted by the ADI Requirement because of the nature of her disabilities. She had a service dog who was specially trained to mitigate her disabilities. She was only excluded from eligibility because no Ontario ADI member organization would train and certify a dog for her specific mental health disabilities.
[100] There is considerable jurisprudence that supports that in human rights cases, an inference of perpetuating disadvantage, prejudice or stereotyping can generally be found in the evidence establishing a distinction on a Code ground that creates a disadvantage by withholding a benefit available to others or imposing a burden not imposed on others.[13] Nevertheless, there remains uncertainty in the jurisprudence as to whether the test under section 15(1) of the Charter is a separate part of the test for discrimination under human rights legislation.[14]
[101] The Tribunal considered Ontario’s submissions that Ms. Robinson-Cooke had not met the s. 15(1) test. The Tribunal reasonably explained why it found that the benefit Ms. Robinson-Cooke was seeking fell within the scope of the GDB, that she was denied the benefit because of her disabilities and that the denial of this benefit exacerbated her disadvantage.
[102] Ms. Robinson-Cooke, as an ODSP recipient, was a disadvantaged person.[15] The ODSP is the program of last resort for disabled persons in financial need and serves the most economically vulnerable persons in Ontario society. The denial of the GDB, linked to Ms. Robinson-Cooke’s mental health disabilities, further disadvantaged her vulnerable status in society.
[103] The Tribunal reasonably followed established authority[16] in finding that Ms. Robinson-Cooke proved that she suffered disadvantage when she was denied the GDB, concluding that disadvantage means imposing burdens, obligations or disadvantages on an individual or group not imposed on others, or withholding or limiting access to opportunities, benefits and advantages available to other members of society: Decision, at para. 113.
[104] Whether the Code or the Charter test applies, the focus of the inquiry in this case is identical: is there adverse treatment based on a prohibited ground that results in disadvantage?[17] There is no merit to Ontario’s argument that the Tribunal failed to apply the correct test for discrimination.
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