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. Falkiner v. Ontario (Minister of Community and Social Services)

In Falkiner v. Ontario (Minister of Community and Social Services) (Ont CA, 2022) the Court of Appeal held that receipt of social assistance was an analogous ground of discrimination under Charter s.15:
[84] Additionally, however, I consider that the respondents have been subjected to differential treatment on the analogous ground of receipt of social assistance. Recognizing receipt of social assistance as an analogous ground of discrimination is controversial primarily because of concerns about singling out the economically disadvantaged for Charter protection, about immutability and about lack of homogeneity. Because of these concerns, the Divisional Court concluded that receipt of social assistance is not an analogous ground under s. 15 in Masse v. Ontario (Ministry of Community and Social Services) (1996), 1996 CanLII 12491 (ON SCDC), 134 D.L.R. (4th) 20, 35 C.R.R. (2d) 44 (Ont. Div. Ct.), leave to appeal denied without reasons, [1996] O.J. No. 1526 (C.A.); [1996] S.C.C.A. No. 373 (S.C.C.). These concerns have some validity but I think that recognizing receipt of social assistance as a ground of Charter protection under s. 15(1) is justified for several reasons.

[85] First, the main question in deciding whether a ground of discrimination should be recognized as analogous is whether its recognition would further the purpose of s. 15, the protection of [page507] human dignity. See Corbiere, supra. The nature of the group and Canadian society's treatment of that group must be considered. Relevant factors arguing for recognition include the group's historical disadvantage, lack of political power and vulnerability to having its interests disregarded. See Law, supra, and Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1.

[86] Here, the Divisional Court, relying on the record before the Board, found at para. 86 that there was "significant evidence of historical disadvantage of and continuing prejudice against social assistance recipients, particularly sole-support mothers". This evidence showed:
-- Single mothers make up one of the most economically disadvantaged groups in Canada.

-- Social assistance recipients have difficulty becoming self- sufficient, in part because of their limited education and lack of employability.

-- Social assistance recipients face resentment and anger from others in society, who see them as freeloading and lazy. They are therefore subject to stigma leading to social exclusion.

-- All sole support parents are subject to stigmatization, stereotyping and a history of offensive restrictions on their personal lives, and these disadvantages are particularly felt by sole support mothers.

-- Sole support parents on social assistance are politically powerless.
[87] These findings are reasonably supported by the evidence and I would not interfere with them. They support the conclusion that recognizing receipt of social assistance as an analogous ground of discrimination under s. 15(1) would further the protection of human dignity.

[88] Second, although the receipt of social assistance reflects economic disadvantage, which alone does not justify protection under s. 15, economic disadvantage often co-exists with other forms of disadvantage. That is the case here. The economic disadvantage suffered by social assistance recipients is only one feature of and may in part result from their historical disadvantage and vulnerability. I am comforted in this conclusion by two Nova Scotia decisions: R. v. Rehberg (1994), 1993 CanLII 3399 (NS SC), 111 D.L.R. (4th) 336, 19 C.R.R. (2d) 242 (S.C.) and Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 1993 NSCA 13 (CanLII), 101 D.L.R. (4th) 224, 119 N.S.R. (2d) 91 (C.A.). [page508]

[89] Third, immutability in the sense of a characteristic that cannot be changed -- race is an example -- is not a requirement for recognizing an analogous ground. The Supreme Court of Canada has taken a more expansive view of "immutability". A characteristic that is difficult to change, that the government has no legitimate interest in expecting us to change, that can be changed only at great personal cost or that can be changed only after a significant period of time may be recognized as an analogous ground. See Corbiere, supra; Granovsky, supra; Andrews, supra. Receipt of social assistance is a characteristic that is difficult to change, at least for a significant period of time. It fits the expansive and flexible concept of immutability developed in the cases. I thus generally agree with the following observation of the Divisional Court at para. 110:
Examined, as it must be, from the perspective of the equity claimant, the status of being a social assistance recipient cannot be changed except over an extended period of time. At the point when the claimant experiences the impugned discrimination, she continues in financial need and cannot change her status except by foregoing state assistance, surely an unacceptable personal cost. The possibility of changing her status at some later time is irrelevant to her experience, and therefore irrelevant to the section 15 analysis. Her status is, therefore 'immutable' as that concept has developed in the authorities cited supra.
[90] Fourth, an important indicator of recognition is whether the proposed analogous ground is protected in human rights statutes, which themselves are considered quasi-constitutional. See Miron, supra at p. 496 S.C.R. Here the evidence supporting recognition is compelling. Most provincial human rights codes prohibit, for some purposes, discrimination on a ground related to receiving welfare: discrimination is prohibited on the basis of "receipt of public assistance" in Ontario and Saskatchewan, on the basis of "source of income" in Alberta, Manitoba, Nova Scotia and Prince Edward Island, on the basis of "social condition" in Quebec and on the basis of "social origin" in Newfoundland. [See Note 11 at end of document]

[91] Finally, homogeneity has never been a requirement for recognizing an analogous ground. Thus, though some recipients of social assistance may be more disadvantaged than others, [page509] mere disproportionate disadvantage borne by one or more sub-sets of a group does not militate against recognizing membership in that group as an analogous ground.

[92] The Divisional Court also recognized that social assistance recipients deserved s. 15 protection. The Divisional Court, however, defined the analogous ground more narrowly as sole support parents on social assistance or single mothers on social assistance. The intervenor LEAF supported the Divisional Court's characterization. It seems to me, however, that recognizing the broader or more general category, receipt of social assistance, is preferable. It is more truly analogous to the enumerated grounds, which themselves are general; it conforms to the similar protection accorded to social assistance recipients in human rights legislation; it recognizes a group that is vulnerable to discrimination and that historically has been subjected to negative stereotyping; and it simplifies the equality analysis under s. 15. By contrast, recognizing as analogous a highly specific ground like sole support mothers on social assistance makes the s. 15 analysis, which is difficult enough, unnecessarily complex. Moreover single mothers on social assistance already receive two-fold s. 15(1) protection on the grounds of sex and marital status. What is novel about the respondents' position is that they seek recognition that their status as social assistance recipients is also relevant to the equality analysis. In my view, the most coherent way to achieve this is to recognize receipt of social assistance as an analogous ground.

[93] In summary, the definition of spouse has subjected the respondents to differential treatment on the basis of three prohibited grounds of discrimination: sex, marital status and receipt of social assistance.
. Anderson v. Alberta

In Anderson v. Alberta (SCC, 2022) the Supreme Court of Canada considered rules around costs-funding by government parties of public interest litigation in the event of 'impecuniosity' of a party. Here, the funding applicant was a native band but the principles may be adaptable to public interest litigation generally [paras 16-52].


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