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7. Constitutional Issues

(a) Overview

The question sometimes arises as to whether the application of particular ODSP laws violates the Canadian Constitution. Typically these concerns involve the discrimination provisions of s.15 of the Charter of Rights and Freedoms, but they can involve any other Charter rights - or even arguments that certain laws or beyond the jurisdiction of the province based on federal/provincial division-of-powers grounds.

It has been standard jurisdprudence from the Supreme Court of Canada that Tribunals have Charter "jurisdiction" to consider these issues and in a proper case to "except" the application of an unconstitutional provision in the case before it IF the Tribunal otherwise has jurisdiction over: the parties, the remedies sought and the subject-matter of the dispute.

However, the legislature expressly barred this jurisdiction from the Social Benefits Tribunal in the Ontario Works Act in 1998:
OW s.67(2)
The Tribunal shall not inquire into or make a decision concerning,

(a) the constitutional validity of a provision of an Act or a regulation; ...
Until such time as this provision is repealed or itself struck down by a court, it bars the advancing of ANY constitutional issues at the Tribunal level.

The Charter was however argued at the predecessor to the Social Benefits Tribunal (the Social Assistance Review Board, or SARB) in several cases before the Charter-ban came into law (see below, "Case Law").

Until such time as the Charter-ban provision is repealed or struck down as a constructive barrier to Charter remedies [as was done in R v Prete (Ont CA) in the case of a limitation period], it bars the advancing of ANY constitutional issues at the Tribunal level. Such cases must be brought directly to court.

Recent developments from the Supreme Court have however now opened the way to consider discrimination issues at the Tribunal level under the Ontario Human Rights Code (below).

(b) Charter Case Law

In Falkiner v Ontario (COMSOC) 59 OR (3d) 481 (CA) the Court of Appeal held that 'receipt of social assistance' was an analogous (and thus protected) ground of discrimination under s.15 (discrimination) of the Charter. Although leave to appeal the case to the Supreme Court of Canada was granted to the province the appeal was discontinued. The case is discussed in a casenote in Appendix 4: The Concept of "Spousal Dependency".

In Ontario v Pyke [1998] OJ #4125 (Div Ct) a 16-year applicant argued that welfare law excluding her from receiving welfare on her own - unless "special circumstances" were present - violated s.15 of the Charter as age discrimination. The court found against her claim on the basis that the "special circumstances" provision were reasonably tailored to the legitimate government concern in keeping children in family environments. Of similar effect was Mohamed v Metropolitan Toronto [1996] OJ #612 (QL) (Div Ct).

R v D'Amour [2002] OJ #3103 (QL) (CA), was a charter case regarding evidence exclusion in the course of a criminal fraud prosecution. It is discussed at length in Ch.12 "Fraud and Prosecutions".

Masse v Ontario (COMSOC) [1996] OJ #363 (QL) (Div Ct) was an enthusiastic but ill-fated attempt to challenge 1995 welfare rate cuts under s.7 and s.15 of the Charter.

Rogers v Sudbury 57 OR (3d) 460 (Ont Sup Ct) was a much-publicized case where a recipient subjected to a (then) lifetime eligibility ban for having a welfare fraud conviction moved successfully for an interlocutory Charter injunction continuing her assistance pending the outcome of her fuller application. She died before the full case could be resolved. The Charter issues advanced were s.7 right to security of the person, s.12 cruel and unusual punishment and s.15 equality. Of similar effect was Broomer v Ontario [2002] OJ #2196 (QL) (Ont Sup Ct).

The recent 2008 Wareham v Ontario case involves both s.7 and s.15 Charter claims. It involves a wide-ranging attempted class action grounded in systemic ODSP admininstrative delay.


8. Ontario Human Rights Code

(a) Overview

For years the Social Benefits Tribunal and its predecessor (SARB) has ruled that it had no jurisdiction to consider or apply the Ontario Human Rights Code, which contains most - if not more - of the grounds of equality discrimination contained in s.15 of the Canadian Charter of Rights and Freedoms (discussed immediately above). These include discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap [OHRC s.1].

The case of Weiler v Ontario (COMSOC) [2000] OJ #1256 (Div Ct), argued by the author, earlier endorsed that (then) SARB had general Human Rights Code jurisdiction, but in obiter comments only (ie. the issue was not material to the case and as such the comments had no binding precedent value). Notwithstanding this the Tribunal continued to ignore the Code for years afterwards.

In 2006 however the Supreme Court of Canada finally clarified that the Social Benefits Tribunal could hear and apply the Code: Tranchemontagne v Ontario Director, ODSP) [2006] SCJ #14. This does not mean that the Tribunal can now "strike down" or broadly declare illegal any provisions of the Ontario Works Act or regulations under it, but it does now empower the Tribunal to consider and apply the Code - and "except" the application of any discriminatory legal provisions in the appeal case before it.

The Supreme Court sent the Tranchemontagne case back to the SBT for re-hearing. The Tribunal found that the ODSP medical eligibility 'addiction exclusion' [ODSP/A s.5 2)] did violate the anti-discrimination disability provisions of the Human Rights Code and granted eligibility. This decision was upheld on a Director appeal to the Divisional Court in 2009.

The Tranchemontagne case is a significant advancement in civil rights for social assistance recipients, as prior to this the bringing of such cases before the courts was beyond the means of most applicants. Further, the Human Rights Commission process has been - almost since its inception - so moribund and ineffectual that few informed persons or counsel bothered to pursue remedies there (I note by way of illustration that in the reporting year 2002/3 the Social Benefits Tribunal issued 7,348 Decisions - while the Ontario Human Rights Tribunal issued 13).

That said, the offending statutory provision in Tranchemontagne has not been voided by the Supreme Court's decision, and - until such time as the Director concedes the illegality of ODSP s.5(2) (which it should do when it finally exhausts it's appeal rights) - each and every further challenge to it must separately advance the Code argument, a cumbersome and unfair result to an already marginalized group of citizens.

(b) Human Rights Procedures Before the SBT

Present Tribunal practice for advancing Code arguments is to 'bifurcate' hearings into (first) non-Code arguments and then (if necessary) a second hearing on the Code issues. The continued hesitancy of the Tribunal to routinely consider law that every citizen walking the streets is required to abide by continues to perplex me. The courts in Mohamed v Metro Toronto (Div Ct, 1996) have already found the predecessor Social Assistance Review Board to be a 'court of competent jurisdiction' for the purposes of the Charter's remedial provision [s.24(1)], so why fear Code arguments?

In any event, the Tribunal has issued a new Practice Direction on procedures to be used when HRC issues are involved in an appeal. It should be read by anyone considering advancing a Code argument as soon as that concern arises: Practice Direction on Human Rights Issue or Challenge.

As well, the Tranchemontagne cases themselves (the 2008 Tribunal Decision and the 2010 Court of Appeal judgment) are essential reading for anyone considering advancing a Code discrimination argument before the SBT. The 2010 Court of Appeal judgment is linked here:

Director, ODSP v Tranchemontagne (Ont CA, 2010)

In Walsh v Ontario (ODSP) (Ont CA, 2012) the appellants were challenging the application of the one year 'ultimate' limitation period for appeals to the SBT set out in ODSP Reg 61(2) [the OW counterpart is Reg 72(2)]. At the Court of Appeal level the appellants tried unsuccessfully to raise a Human Rights Code argument for the first time. The court held that since the Human Rights Code was not advanced in argument in lower proceedings, it was consistent with it's appellate function (to determine whether the lower tribunal and/or court erred in law) to consider the issue now:
[67] The alleged violation of human rights is being raised for the first time on this appeal. Ms. Walsh did not raise this argument with the Tribunal. And, because the Divisional Court was not alerted to this issue, it would not be appropriate on this record to suggest that the court erred by failing to do so. Inherent in the appellate function is the requirement that in most cases, issues should be raised and adjudicated upon before they will be considered on appeal: R. v. Rollocks 1994 CanLII 8728 (ON CA), (1994), 19 OR (3d) 448 (Ont. C.A.), at p. 453.
(c) Case Law
  • Ontario (Disability Support Program) v Ansell (Ont CA, 2011)

    In this case Laskin JA (speaking for the court) considered whether child support payments made to the co-resident mother of a 21 year old recipient (an independent adult in her own benefit unit) by her father counted as chargeable income for purposes of ODSP financial eligibility. The key phrasing from the definition of income under consideration was “all payments of any nature paid to or on behalf of the recipient". The court accepted as a fact that the therapeutic needs of the recipient required significant and ongoing commitment by the mother in terms of support, attendences and expense.

    In addition to applying a variety of statutory interpretation arguments [discussed in Ch.6, s.11(b)], the Court of Appeal also held that automatically deducting the child support paid to the single parent mother from the recipient's budgetary requirements, was discriminatory under the Human Rights Code's protected category of 'family status'. This is because monies spent by a co-resident parental couple that had an incidental benefit to the recipient (still a one-person benefit unit), such as home improvements, would not be deducted from the recipient while those paid in the form of child support to a single parent would, under the Director's argument, be deductible [paras 46-47]:
    [46] A separated custodial parent of a disabled adult attending school usually depends in part on the payment of child support to financially maintain the household. If the Director’s position is upheld, however, even though the custodial parent uses the child support to repair the same roof, buy the same new computer or replace the same television set, those expenses would in effect become the disabled adult’s income under s. 37(1) of the Regulation and reduce or eliminate entirely her income support.
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