Court of Appeal Establishes Test to be Applied in Determining if a Government Program is Discriminatory under the Ontario Human Rights Code

In Director, Ontario Disability Support Program v. Tranchemontagne et al., the Court of Appeal established the test to be applied in determining whether a government program is discriminatory under the Ontario Human Rights Code, and determined whether that test involves the same analysis for discrimination that is applied under s. 15 of the Canadian Charter of Rights and Freedoms (the Charter).

The claimants in this case originally argued before the Social Benefits Tribunal that section 5(2) of the Ontario Disability Support Program Act (ODSPA) is discriminatory because it excludes income support from individuals who suffer from substance dependence if addiction is their sole impairment. The claimants were alcoholics, and as a result of the exclusion, were only eligible for income support under the Ontario Works Act. The Social Benefits Tribunal determined that s. 5(2) of the ODSPA was discriminatory and the Divisional Court agreed.

The Ontario Court of Appeal dismissed the government’s appeal and upheld the decision of the Divisional Court. The Court of Appeal agreed with the finding that the provision of the ODSPA that denied benefits to those with alcohol addiction without other impairments was discriminatory, and constitutes a breach of the Ontario Human Rights Code.

In so finding, the Court of Appeal held that the definition of discrimination should be the same under both a human rights and Charter analysis. This decision of the Court was informed by the recent decision of the Supreme Court of Canada in the discrimination case R. v. Kapp. The Court explained that a claimant who alleges that a government program is discriminatory has the onus of establishing that there has been differential treatment on the basis of a protected ground under the Code, and that the distinction is arbitrary and based on some connection to the ground of discrimination, in that it perpetuates a stereotype or prejudice. The evidence necessary to establish discrimination, however, will vary according to the context. In some cases, stereotyping is apparent, while in other situations, a claimant may be required to show discrimination in a substantive sense, rather than simply showing differential treatment.

The fact that the Court added a part of the s. 15 Charter analysis for discrimination into the human rights test is an important addition: the claimant must now establish that the disadvantage is caused by stereotyping or prejudice.

The test for discrimination under human rights statutes currently remains unsettled in many jurisdictions across Canada. This ruling of the Ontario Court of Appeal will therefore likely provide guidance regarding the correct test to apply, both within Ontario and in other jurisdictions.