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Human Rights (Ont) - Discrimination - Mental Impairment. Yan v. 30 Forensic Engineering Inc.
In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court briefly considered discrimination on the basis of disability, here PTSD:[63] The Tribunal did not err in its dismissal of discrimination because of PTSD. At para. 72 of the Decision, the Tribunal cited and applied the proper test for the consideration of this issue with reference to Ms. Yan’s specific allegations. Ms. Yan had the onus of proving that, i. she had PTSD at the relevant time period; ii. that PTSD is protected from discrimination under the Code; and iii. that PTSD was a factor in the adverse treatment she experienced in the workplace. . Sparks v. Director of the Ontario Disability Support Program
In Sparks v. Director of the Ontario Disability Support Program (Div Court, 2023) the Divisional Court cited 'inconsistent fact findings' as an error of law, here findings regarding the issue of non-compliance with medical treatment:[40] Here, the SBT appears to have inferred that Sparks could stop using marijuana but chose not to do so, and to have inferred that because of that choice his impairments were not substantial. This is stereotypical reasoning, inconsistent with SBT jurisprudence, and an error in law.
Issue 3: The SBT based its decision on contradictory determinations
[41] This issue also arises from the manner in which the SBT dealt with the appellant’s substance use disorder. At para. 19 of the SBT’s decision, the tribunal found that Sparks’ impairments were not “substantial ... because the Appellant was not in full compliance with treatment prescribed”, i.e., to cease using marijuana as his physician had recommended. But at para. 22 of the decision, the SBT held that he was not substantially impaired because he was able to overcome an addiction to Percocet with the use of suboxone, leading to the conclusion, at para. 23, that Sparks’ “extensive use of cannabis” weighed against a finding of substantial impairment. In other words, according to the SBT, Sparks’ impairments were not substantial because he was not compliant with treatment for marijuana, and because he was compliant with treatment for Percocet. Such inconsistent findings are an error of law: R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291, at para. 50; Trajkovich v. Ontario (Minister of Natural Resources), 2009 ONCA 898, O.J. No. 5466, at para. 18. . Sparks v. Director of the Ontario Disability Support Program
In Sparks v. Director of the Ontario Disability Support Program (Div Court, 2023) the Divisional Court considered an ODSP 'person with a disability' (PWD) appeal, which was argued (and allowed) on grounds that "the SBT ignored or misapprehended evidence ... engaged in discriminatory reasoning, ... based its decision on contradictory reasoning, and that it failed to apply the correct test of considering the “whole person” in assessing the substantiality of the appellant’s impairment".
In these important quotes the court cites what they consider to be 'human rights discriminatory' reasoning, here grounded in substance use disorder (a mental impairment) facts:Issue 2: The SBT relied on discriminatory reasoning that blamed the appellant for his disability
[35] The SBT’s discussion of the appellant’s substance use disorder is also problematic. In para. 19 of the decision, after referring to Sparks’ continued use of marijuana despite Dr. Fitzpatrick’s recommendation that he reduce it, the SBT said that it was “not satisfied that the impairments reached the level of substantial ... because the Appellant was not in full compliance with treatment prescribed.” And, at para. 23, the SBT referred to the appellant’s “treatment and extensive use of cannabis, and the contradictory medical evidence” as a basis to conclude he was not substantially impaired.
[36] I have already noted that the SBT never explained where the medical evidence was contradictory. But at least of equal concern is that the SBT blamed the appellant for his substance use disorder, rather than recognizing it, as the physicians did, as a disorder. The appellant also explained that using marijuana eases his anxiety disorder. His use of marijuana isn’t simply a recreational choice but is directly related to his other disabilities.
[37] The SBT appears to have reasoned that because the appellant, with the assistance of medication, was able to wean himself from using Percocet, he should be expected to also do this for marijuana despite his diagnosis, and that his failure to do so meant that his impairments were not substantial. This reasoning is unsupported and discriminatory.
[38] It has long been the law, first established by the SBT itself, that denying benefits to persons who are disabled due to addictions to drugs or alcohol is discriminatory and contrary to the Human Rights Code, R.S.O. 1990, c. H.19. In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, at paras. 121 and 125, the Court of Appeal confirmed that s. 5(2) of the ODSPA, which at the time stated that a person was “not eligible for income support if the person is dependent on or addicted to alcohol, a drug or some other chemically active substance”, imposed restrictions “because of assumed or unjustly attributed characteristics and therefore denies the essential human worth of the [respondents] and those like them". In effect, the section created a disadvantage by stereotyping. It has since been repealed: S.O. 2021, c. 25, Sched. 21, s. 25(1).
[39] In many other cases, the SBT has recognized that it is not appropriate to infer a lack of substantiality from a lack of treatment caused by a person’s impairments. Mental health conditions, such as anxiety and depression, or lack of insight into an addiction, can be barriers to persons seeking or following treatment recommendations. 1210-13522 (Re), 2013 ONSBT 4582 (CanLII) at paras. 27-28; 1903-01657 (Re), 2021 ONSBT 1405 (CanLII) at para. 33; 2001-00878 (Re), 2021 ONSBT 1783 (CanLII) at paras. 25-28; 1904-02946 (Re), 2021 ONSBT 2123 (CanLII) at paras. 18-20. Indeed, some SBT decisions have recognized that where an absence of treatment, or failure to follow treatment plans, is attributable to other impairments, this can support a finding of substantial impairment: 1404-04609 (Re), 2015 ONSBT 4919 (CanLII) at para. 39; 1312-13255 (Re), 2015 ONSBT 704 (CanLII) at para. 15; 1410-11883 (Re), 2015 ONSBT 4350 (CanLII) at para. 27.
[40] Here, the SBT appears to have inferred that Sparks could stop using marijuana but chose not to do so, and to have inferred that because of that choice his impairments were not substantial. This is stereotypical reasoning, inconsistent with SBT jurisprudence, and an error in law.
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