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Human Rights (Ont) - Discrimination - Prima Facie (2). Ontario (Minister of Children, Community and Social Services) v. D.I
[identifies conflict between 'Charter' and 'Moore/Code 3-part' discrimination tests, see esp. para 70]
In Ontario (Minister of Children, Community and Social Services) v. D.I (Ont Divisional Ct, 2025) the Divisional Court allowed a Crown-initiated JR, here from HRTO findings that the respondent "had a prima facie case for discrimination" and "the discrimination could not be saved under s. 14 [SS: 'Special programs'] of the Code". The court concludes that the claimant's case for 'disability' ground of discrimination was not well made out at the HRTO level in light of the justification required by Vavilov (thus this allowed JR), and the more substantial issue is 'age' discrimination (which was recently remitted back down to the HRTO: para 7).
Here the court considers (without resolving) an apparent conflict between two prima facie tests for discrimination - the 'Code/Moore (SCC, 2012)' test and the 'Charter test':[14] For the reasons set out below, I would conclude the following. Whether the test for discrimination is under the Charter or the Code, the Tribunal failed to provide a rational chain of analysis establishing how D.I. met the test for disability discrimination. There must be a framework that recognizes what the wrong is. It is not enough to say that because D.I. is disabled, her benefits were reduced and all her needs were not met, that she experienced disability discrimination.
[15] Discrimination cannot be based on a mere finding that a member of a disadvantaged group has some unmet need. It must be shown that the claimant’s needs are unmet because, compared to others, that claimant is denied a benefit or subjected to an additional burden on the basis of a protected ground.
[16] Under the new OAP, D.I. will neither be denied a benefit available to others nor be subject to a burden not imposed on others on the basis of her disability. The same level of funding is available to any child of the same age who is assessed as having extensive needs. There is no dispute that the benefit which D.I. seeks – funding in excess of the limit imposed for children aged 10 to 14 years – is not available to any child of her age.
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Issue 1: Did the Tribunal use the correct test for discrimination to be applied in this case?
[70] A large part of the parties’ submissions during the hearing was focused on the correct test for discrimination in this case and the Supreme Court of Canada jurisprudence. Ontario submits that this court and the Court of Appeal have repeatedly held that in a challenge to a law or policy of general application, the test for discrimination under the Charter and the Code is the same: ETFO et al. v. Her Majesty the Queen, 2019 ONSC 1308, 144 O.R. (3d) 347, at para. 150 (“EFTO”); Ontario (Director of ODSP) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, at para. 84. Relying on Tranchemontagne, R. v. Peart, 2017 ONSC 782 (Div Ct.), and ETFO, Ontario submits that the Tribunal is required to apply the Charter test.
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[73] Both parties find support in the jurisprudence for their choice of the correct test to be applied in this case. I have concluded that whether the three-part Code test or the Charter test is used, the Decision does not set out a coherent line of reasoning to support the conclusion reached of disability discrimination, which I turn to next.
[74] The Tribunal set out the 3-part prima facie test established in Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 (“Moore”), as follows at para. 261:It is well established that to make out a prima facie case of discrimination, applicants must be able to show that:
a. They have a characteristic protected from discrimination under the Code;
b. They have experienced adverse treatment, explicitly or through adverse impact, with respect to the service; and
c. The protected characteristic was a factor in the adverse treatment. See Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, and British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, at para. 86.
[75] Relying on Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, the Tribunal found that the test for a prima facie case, like the s. 15 test under the Charter, is aimed at identifying whether the impugned government conduct “results in arbitrariness or creates a disadvantage which limits opportunities, perpetuates prejudice and stereotyping, or fails to recognize pre-existing disadvantage”: at para. 270.
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[81] Whether the test for discrimination is under the Charter or the Code, the Tribunal failed to provide a rational chain of analysis for how D.I. met the test for disability discrimination. There must be a framework that recognizes what the wrong is. It is not enough to say that because D.I. is disabled and all of her needs were not met, she experienced disability discrimination. The Tribunal provided no analysis of how disability was a factor in the adverse treatment. The freezing of the Behaviour Plans and capping the benefits in the new OAP were done to address the inequities in the program. Disability was not a factor.
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[84] The Supreme Court has held that benefit programs need not meet the needs of each individual beneficiary in order to escape a charge of discrimination. Rather, where a claimant has established that a benefit program contains a distinction based on a protected ground, the question becomes “whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme”: Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 67. Importantly, “[p]erfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required” and “[a]llocation of resources and particular policy goals that the legislature may be seeking to achieve may also be considered”: Withler, at para. 67. Said differently, “the inability of a given social program to meet the needs of each and every individual does not permit us to conclude that the program failed to correspond to the actual needs and circumstances of the affected group” for the purposes of the discrimination analysis: Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 55.
[85] It is well-settled law that the right to equality, whether under the Code or the Charter, does not require that the government fund all of an individual’s disability related needs. It is illogical, and therefore unreasonable, to find that D.I. experienced discrimination for the very characteristic – disability – that entitled her to participate in the OAP.
[86] The OAP was designed to alleviate disability of children with ASD. Caps and parameters are a common feature of government affirmative action programs. In this case, they addressed the inequity of the former OAP, under which 85% of children with ASD received no funding. The caps and parameters of the new OAP were introduced to ensure that all children deemed eligible for the OAP received some needed and beneficial services. This included the objective of earlier intervention for young children who are deemed to benefit the most from the program, rather than their missing the window of opportunity by remaining on the waitlist during their early years.
[87] The Tribunal is the adjudicator of discrimination, not simply needs. While an assessment of needs can be relevant to a finding of discrimination, the analysis cannot stop there. In effect, the Tribunal has designed its own program based on the individual assessment of each child’s disability needs by a child’s service provider and created the criteria for administering it. It does not address Ontario’s evidence that allowing individualized exceptions becomes the rule and jeopardizes the sustainability of the program. It looks very much like the Behaviour Plan model which resulted in such inequity in the distribution of the benefits of the program. This was not the Tribunal’s job to do.
[88] The right to equality does not include a positive right to receive a particular level of government funding or benefits, or to continue to receive the same benefit indefinitely: Auton (Guardian ad litem) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at paras. 41-47; Tanudjaja v. Attorney General (Canada), 2013 ONSC 5410 (Div. Ct.), 116 O.R. (3d) 574, at paras. 96-103.
[89] This Court recently affirmed in Robinson-Cooke that 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”: Ontario (Minister of Children, Community and Social Services) v. Robinson- Cooke, 2024 ONSC 3556 (Div. Ct.), at para. 100; citing Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 SCR 591, at para. 45; Al-Turki at paras. 87, 94; Hendershott v. Ontario (Ministry of Community and Social Services), 2011 HRTO 482, 72 C.H.R.R. 1 at paras. 45-55; XY v. Ontario (Government and Consumer Services), 2012 HRTO 726, 74 C.H.R.R. 331, at para. 159; Tranchemontagne at paras. 90-91, 104; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113 at para. 78. In Robinson-Cooke, this Court held that it was reasonable for the Tribunal to find discrimination because the applicant had established that, due to the nature of her disability, she was denied a benefit that was “available to other members of society”: at para. 103. As the Superior Court recently put it, “[c]omparison is not just a tool, it is a crucial component in the discrimination analysis. Identifying inequality is an inherently comparative exercise”: Metro Taxi Ltd. et al v. City of Ottawa, 2024 ONSC 2725, at para. 301. “The first step in the analysis asks whether the Act created or contributed to a disproportionate impact on the claimant group based on a protected ground. This necessarily involves drawing a comparison between the claimant group and other groups, or the general population”: Fair Change v. His Majesty the King in Right of Ontario, 2024 ONSC 1895, 170 O.R. (3d) 561, at para. 35.
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[124] In order to ground a claim for discrimination, a claimant must establish “a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others)”: Tranchemontagne, at para. 90. Said differently, the claimant must experience an “adverse impact” in respect to a generally available service based on a protected characteristic: Moore, at para. 33. As noted above, analyzing a claim of discrimination is a comparative exercise: Robinson-Cooke, at para. 100.
[125] Thus, discrimination cannot be based on a mere finding that a member of a disadvantaged group has some unmet need. It must be shown that the claimant’s needs are unmet because, compared to others, that claimant is denied a benefit or subjected to an additional burden on the basis of a protected ground.
[126] Under the new OAP, D.I. will neither be denied a benefit available to others nor be subject to a burden not imposed on others on the basis of her disability. The same level of funding is available to any child of the same age who is assessed as having extensive needs. There is no dispute that the benefit which D.I. seeks – funding in excess of the limit imposed for children aged 10 to 14 years – is not available to any child of her age.
[127] I refer again to the Supreme Court’s decision in Moore. Writing for the court, Justice Abella concluded that the claimant in that case suffered discrimination not because he was denied funding that no other child received, but because the inadequate funding prevented his meaningful access to education: Moore, at paras. 27-32. Equality rights do not protect a person’s right to “extra ‘ancillary’ service[s], but rather the manner by which meaningful access to the provided benefit can be achieved”: Moore, at para. 28. Education is a benefit available to every child, and because the claimant was denied access to that benefit, he had experienced discrimination: Moore, at para.28. Neither the Tribunal nor D.I. has properly identified such a generally available benefit in this case.
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