Harris v. Canada (Human Resources and Skills Development)

Harris v. Canada (Human Resources and Skills Development)
Court (s) Database
Federal Court of Appeal Decisions
Date
2009-01-26
Neutral citation
2009 FCA 22
File numbers
A-79-08
Notes
Reported Decision
Decision Content
Date: 20090126
Docket: A-79-08
Citation: 2009 FCA 22
CORAM: LINDEN J.A.
EVANS J.A.
RYER J.A.
BETWEEN:
CYNTHIA HARRIS
Applicant
and
MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT
Respondent
Heard at Toronto, Ontario, on November 13, 2008.
Judgment delivered at Ottawa, Ontario, on January 26, 2009.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRING REASONS BY: RYER J.A.
DISSENTING REASONS BY: LINDEN J.A.
Date: 20090126
Docket: A-79-08
Citation: 2009 FCA 22
CORAM: LINDEN J.A.
EVANS J.A.
RYER J.A.
BETWEEN:
CYNTHIA HARRIS
Applicant
and
MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
LINDEN J.A. (Dissenting Reasons)
[1] The issue in this application for judicial review is whether the applicant, Cynthia Harris, is barred from claiming permanent disability benefits under the Canada Pension Plan, because she did not work outside the home in 1998, in order to take care of her severely disabled son. She raises the question of whether certain provisions of the Plan, known as the Child Rearing Drop-Out provisions (the CRDO) violate section 15(1) of the Charter, as they apply only to parents of children under seven years old who stay at home to provide childcare, and overlook the plight of parents of disabled children seven years and older who must remain at home to look after their children beyond the time that non-disabled children are expected to be in school.
[2] This is an application for judicial review of a decision of the Pension Appeals Board (PAB), which held that the child-rearing drop-out (CRDO) provisions contained in subparagraph 44(2)(b)(iv) of the Canada Pension Plan and paragraph 77(1)(a) of the Regulations do not infringe subsection 15(1) of the Canadian Charter of Rights and Freedoms. For the reasons that follow, I would allow the application, and find that the CRDO does infringe section 15(1), and is not saved by section 1 of the Charter. I am aware that my colleagues, Evans and Ryer JJ.A., have concluded that there is no section 15(1) violation, but with the greatest of respect, I cannot agree.
[3] This question arises because the Minister denied Ms. Harris’s application for a disability pension. Under the Plan, in order to qualify for a disability pension, the claimant must have made contributions to the Plan in at least four out of the last six years (the “recency requirement”). The CRDO was enacted to relax this requirement for parents who temporarily leave the workforce due to child-rearing responsibilities. The provision excludes years in which the claimant was out of the workforce caring for children under the age of seven from being considered as part of the six years. While Ms. Harris contributed to the Plan, she did not meet this recency requirement, and hence was held not to qualify for benefits on that basis.
[4] The respondent’s experts provided evidence that Parliament chose the age of seven as the cut-off, as this reflects the age at which most children are able to attend school full-time, easing the burden of childcare on the parent and providing him or her with more flexibility in the labour market. Central to this case are the implications of generalizations about “most children” for the parents of children who are disabled and who do not fit this mould, as was the situation with Ms. Harris.
RELEVANT LEGISLATIVE PROVISIONS
[5] Subsection 44(2) of the Canada Pension Plan, R.S.C. 1985, c. 8, sets out the “recency requirement”, discussed above, for eligibility for a disability pension. I have underlined the portions that are relevant to this application:
44. (2) For the purposes of paragraphs (1)(b) and (e),
(a) a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if the contributor has made contributions on earnings that are not less than the basic exemption of that contributor, calculated without regard to subsection 20(2),
(i) for at least four of the last six calendar years included either wholly or partly in the contributor’s contributory period or, where there are fewer than six calendar years included either wholly or partly in the contributor’s contributory period, for at least four years,
(i.1) for at least 25 calendar years included either wholly or partly in the contributor’s contributory period, of which at least three are in the last six calendar years included either wholly or partly in the contributor’s contributory period, or
(ii) for each year after the month of cessation of the contributor’s previous disability benefit; and
(b) the contributory period of a contributor shall be the period
(i) commencing January 1, 1966 or when he reaches eighteen years of age, whichever is the later, and
(ii) ending with the month in which he is determined to have become disabled for the purpose of paragraph (1)(b),
but excluding
(iii) any month that was excluded from the contributor’s contributory period under this Act or under a provincial pension plan by reason of disability, and
(iv) in relation to any benefits payable under this Act for any month after December, 1977, any month for which the contributor was a family allowance recipient in a year for which the contributor’s unadjusted pensionable earnings are less than the basic exemption of the contributor for the year, calculated without regard to subsection 20(2).
44. (2) Pour l’application des alinéas (1)b) et e) :
a) un cotisant n’est réputé avoir versé des cotisations pendant au moins la période minimale d’admissibilité que s’il a versé des cotisations sur des gains qui sont au moins égaux à son exemption de base, compte non tenu du paragraphe 20(2), selon le cas :
(i) soit, pendant au moins quatre des six dernières années civiles comprises, en tout ou en partie, dans sa période cotisable, soit, lorsqu’il y a moins de six années civiles entièrement ou partiellement comprises dans sa période cotisable, pendant au moins quatre années,
(i.1) pendant au moins vingt-cinq années civiles comprises, en tout ou en partie, dans sa période cotisable, dont au moins trois dans les six dernières années civiles comprises, en tout ou en partie, dans sa période cotisable,
(ii) pour chaque année subséquente au mois de la cessation de la pension d’invalidité;
b) la période cotisable d’un cotisant est la période qui :
(i) commence le 1er janvier 1966 ou au moment où il atteint l’âge de dix-huit ans, en choisissant celle de ces deux dates qui est postérieure à l’autre,
(ii) se termine avec le mois au cours duquel il est déclaré invalide dans le cadre de l’alinéa (1)b),
mais ne comprend pas :
(iii) un mois qui, en raison d’une invalidité, a été exclu de la période cotisable de ce cotisant conformément à la présente loi ou à un régime provincial de pensions,
(iv) en ce qui concerne une prestation payable en application de la présente loi à l’égard d’un mois postérieur à décembre 1977, un mois relativement auquel il était bénéficiaire d’une allocation familiale dans une année à l’égard de laquelle ses gains non ajustés ouvrant droit à pension étaient inférieurs à son exemption de base pour l’année, compte non tenu du paragraphe 20(2).
[6] Briefly, subparagraph 42(2)(a)(i) provides that a contributor will be eligible for a disability pension if she contributed to the plan for four out of the last six years of her contributory period. The contributory period is then defined by paragraph 42(2)(b), generally as the entire time between the contributor’s eighteenth birthday, and the time she becomes disabled.
[7] The child-rearing drop-out provision is introduced in subparagraph 42(2)(b)(iv), which allows any month to be excluded from the contributory period where two conditions are met: (1) the contributor is a “family allowance recipient”, as defined in the Regulations; and (2) the contributor has earnings for the year below the basic exemption amount.
[8] “Family allowance recipient” is in turn defined by paragraph 77(1)(a) of the Canada Pension Plan Regulations, C.R.C. c. 385, as including:
(a) the spouse of a person, where the person is described in that definition as having received or being in receipt of an allowance or a family allowance, if the spouse remains at home and is the primary care giver for a child under seven years of age, and where the other spouse cannot be considered a family allowance recipient for the same period;
a) du conjoint d’une personne qui, selon cette définition, reçoit ou a reçu une allocation ou une allocation familiale, lorsque le conjoint reste à la maison et est la principale personne qui s’occupe d’un enfant âgé de moins de sept ans, et que l’autre conjoint ne peut être considéré comme bénéficiaire d’une allocation familiale pour la même période;
[9] Thus a parent who remains out of the paid workforce, and in the home, to care for a child under the age of seven, is entitled to drop the years she does so from her contributory period. This has the benign effect of preserving a contributor’s eligibility for a CPP disability pension, even though she is not working (and thus not contributing to the Plan), because of her child-rearing responsibilities.
[10] I turn now to consider the particular circumstances of the applicant, Cynthia Harris.
FACTS
[11] Ms. Harris’s son, Bradley, was born in 1989. Her second child, Jessica, was born in 1991. While Ms. Harris had returned to work briefly in 1991, between the birth of her children, when Jessica was born she and her husband decided that she would stay at home full-time to care for the children until they reached school age.
[12] In 1996, Bradley suffered a number of strokes. Between 1996 and 1998, Bradley was severely disabled, and had to re-learn basic activities such as walking and using his hands and arms. Ms. Harris cared for her son full-time during this period. Her evidence was that he could only attend school for the equivalent of two days a week, and that she could not afford to hire a baby-sitter qualified to deal with Bradley’s special needs.
[13] By the fall of 1998, Bradley had largely recovered and was able to begin attending school full-time, albeit with his mother attending with him at least three times per week. Ms. Harris returned to the paid workforce in 2001.
[14] In 1997, Ms. Harris was diagnosed with multiple sclerosis (MS). In 2002, she stopped working due to impairments caused by MS, and made her application for a disability pension.
[15] Pursuant to the CRDO, the years 1990 and 1992-1997 were dropped from her contributory period, Jessica having turned 7 in 1998. Thus, the six years that were considered to determine if Ms. Harris met the recency requirement were 2002, 2001, 2000, 1999, 1998, and 1991. Ms. Harris made contributions in only three of those years (1991, 2001, 2002). Therefore, she was deemed ineligible for a disability pension. That decision was affirmed upon reconsideration by the Minister.
[16] They key point here is that if 1998, a year in which Ms. Harris was engaged in providing care for her disabled son, is also dropped from the contributory period, she would be eligible for a disability pension. In that scenario, the six years of her contributory period would be 2002, 2001, 2000, 1999, 1991, and 1989, and she would have made contributions in four of those years (2002, 2001, 1991, and 1989), which would have allowed her to qualify. My colleague Ryer J.A. is correct to note that Ms. Harris would also be eligible for a disability pension if she had worked between the fall of 1998 (when Bradley returned to school) and 2001. However, this does not negate the fact that but for her inability to “drop-out” 1998, when she was providing necessary full-time care for Bradley, she also would have been eligible.
ISSUES AND STANDARD OF REVIEW
[17] The issue in this application is whether the CRDO cut-off violates section 15(1) of the Charter, and if so, whether it can be saved by section 1. Section 15(1) reads as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
[18] Ms. Harris argues that the cut-off is discriminatory because it is rooted in norms about able-bodied children and when they are able to begin attending school, and fails to take into account the circumstances faced by her as a parent and caregiver to a severely disabled child. The respondent, on the other hand, submits that the cut-off is based only on the age of the child and is neutral to the issue of disability.
[19] The parties agree that the standard of review for constitutional questions is correctness (Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 58).
A REFOCUSED EQUALITY ANALYSIS
[20] The treatment of section 15 has posed a unique challenge for courts since its coming into force in 1985. The approach that has been employed over the years has been refined and adjusted, but we have still not definitively crystallized and stabilized the correct approach. The most recent Supreme Court decision to address the framework for equality cases is R. v. Kapp, 2008 SCC 41. Justice Abella, writing for the majority, referred back to Justice McIntyre’s statement in the very first section 15 case, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, explaining that the purpose of the guarantee is to promote substantive, rather than merely formal equality. He cautioned against an approach focused on treating “likes” alike, writing (at paragraph 26):
In simple terms, then, it may be said that a law which treats all identically and which provides equality of treatment between "A" and "B" might well cause inequality for "C", depending on differences in personal characteristics and situations. To approach the ideal of full equality before and under the law -- and in human affairs an approach is all that can be expected -- the main consideration must be the impact of the law on the individual or the group concerned. Recognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law, there must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another. In other words, the admittedly unattainable ideal should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.
[21] Thus, in Andrews, the majority articulated a two-part test for establishing discrimination within the meaning of section 15(1): (1) does the impugned law create a distinction based on an enumerated or analogous ground; and (2) does that distinction create a disadvantage by perpetuating prejudice or stereotyping?
[22] Subsequently, in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, the court attempted to address the schisms in the jurisprudence that followed Andrews. Law articulated a three-part test for finding discrimination: the courts were to ask (1) did the impugned law make a distinction on the basis of one or more personal characteristics or fail to take into account the claimant’s already disadvantaged position in Canadian society; (2) was that distinction based on an enumerated or analogous ground; and (3) was the distinction discriminatory, in the sense of perpetuating or promoting the view that the claimant was less capable or worthy of recognition or value as a human being or as a member of Canadian society? However, as the court later noted in Kapp, the Law test was essentially the same as the two-part test from Andrews.
[23] However, in Law, the court suggested that the last part of the inquiry, determining whether a distinction resulted in discrimination within the meaning of section 15(1), should focus on whether an impugned law negatively affected a claimant’s “human dignity”. It articulated four contextual factors to assist this analysis: (1) any pre-existing disadvantage suffered by the group; (2) the degree of correspondence between the impugned law and the actual needs, circumstances, and capacities of the group; (3) whether the law or program has an ameliorative purpose or effect; and (4) the nature of the interest affected (at paragraphs 62-75).
[24] In Kapp, the court acknowledged that while Law was an attempt to unify the law, “human dignity” has proved to be a difficult concept to apply in legal analysis. The human dignity analysis was born in Justice L’Heureux-Dubé’s dissenting reasons in Egan v. Canada, [1995] 2 S.C.R. 513, where she advocated that the equality analysis focus on whether legislation exacerbated the pre-existing disadvantage of oppressed groups, and de-emphasized the role of the enumerated and analogous grounds. This strand of her analysis was later incorporated into the third prong of the Law test and its focus on whether the impugned law promoted a view that the claimant was less capable or worthy of respect, thus perpetuating the disadvantage of oppressed groups. However, it was clear that the need to identify an enumerated or analogous ground remained significant to the analysis.
[25] Scholars have suggested that the concept of “human dignity”, which Justice L’Heureux-Dubé described as the underlying value of section 15, was transformed into an additional hurdle which claimants had to overcome to establish discrimination (see Daphne Gilbert, “Time to Regroup: Rethinking Section 15 of the Charter” (2003), 48 McGill L.J. 627). It was said that claimants were forced not only to establish that they felt subjectively demeaned by a distinction, but also had to satisfy the court that their perceptions were “objectively” reasonable.
[26] While the promotion of human dignity is undoubtedly the ultimate objective of section 15 (and indeed, the Charter as a whole), it has proved problematic as a legal standard. The Court in Kapp recognized this in suggesting that “the factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focussing on the central concern of section 15 identified in Andrews – combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping” (Kapp at paragraph 24).
[27] In my view, in Kapp the Supreme Court calls for a recommitment to the ideal of substantive equality. We must focus on the perspective of the claimant, that is, to view the situation through the eyes of the claimant. We should heed the words of Justice Frankfurter (then of the United States Supreme Court), who once cautioned “it was a wise man who said that there is no greater inequality than the equal treatment of unequals” (Dennis v. United States, 339 U.S. 162 (1950) at 184). This court must ensure that the Law factors are not used as a mere cloak for formalism. As for disabled individuals, to honour this principle it may be necessary for legislation to provide something extra to level the playing field in order to truly treat people equally. I have approached the following analysis with these directives in mind.
THE PURPOSE OF THE CPP AND THE CRDO
[28] As the Supreme Court has stated in numerous cases, the section 15 inquiry should begin with an understanding of the purposes of the impugned legislation (Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357, 2004 SCC 65 at paragraph 26).
[29] The Plan is a federally-administered social insurance plan based on compulsory contributions. Its purpose is to provide a reasonable level of income replacement on the retirement, disability, or death of a contributor. This income replacement function makes prior participation in the workforce by beneficiaries an important basis of eligibility.
[30] The admirable purpose of the CRDO provision is not contentious. As was stated in the House of Commons, its purpose is to:
…ensure that a contributor who remains home to care for young children will not be penalized for that period during which he or she has low or zero earnings. The provision would protect eligibility for CPP benefits which the contributor has earned through contributions before, during and after the period devoted to raising young children. Again, this provision will provide a measure of real economic recognition and financial security to work in the home, and it will do so without compromising the basic contributory earnings-related structure of the Plan.
[31] The expert report of Marianna Geordano (which was before the PAB in this case) also addressed the cut-off of age seven:
Age seven is the age by which children would most likely be expected to be enrolled in school on a full time basis. Once children are in school parents would have greater labour market flexibility and a wider range of options with respect to childcare.
[32] On the basis of the evidence, the CRDO has the purpose of according recognition (economic, and to some degree, social) to work performed in the home, primarily by women. It also recognizes the fact that child-rearing responsibilities do impose a certain lack of labour market flexibility on parents, particularly mothers. The cut-off age of seven reflects a common understanding of a stage where that burden is significantly lessened, as most children are cared for during the day at school. While many parents do continue to remain out of the workforce as full-time caregivers even after their children enter school, the cut-off seems to reflect a notion that this is a choice or preference on the part of the parent, rather than an inherent necessity of child-rearing.
[33] The problem I find with the CRDO, as will become clear, is that it treated Ms. Harris as though she had a real choice to re-enter the work force, when in fact she had none. Faced with a child who needed special care, a public school system that could not accommodate him, and insufficient finances to hire a professional caregiver, she did what many parents in her situation do: she remained out of the workforce to be a full-time caregiver. Unfortunately, now that Ms. Harris is herself disabled, she finds that she is being penalized for having served this indispensable caregiving role.
THE SECTION 15 INQUIRY
[34] Applying the framework discussed by the Supreme Court in Kapp, the first stage of the inquiry is to ask whether the CRDO creates a distinction based on an enumerated or analogous ground. Contrary to the finding of the PAB, I find that it does.
The proper comparator group
[35] In Kapp, the majority noted that “criticism has also accrued for the way Law has allowed the formalism of some of the Court’s post-Andrews jurisprudence to resurface in the form of an artificial comparator analysis focussed on treating likes alike” (at paragraph 22). From this teaching, at the very least, this court should be cautious not to accept a comparator group that would give rise to a formalistic analysis.
[36] It may also be that the Supreme Court in Kapp has signalled that it may be rethinking the comparator group-based analysis, given the emphasis it placed on stereotyping and disadvantage more generally. If that were so, and, if the analysis of this case were not channelled through the comparator group framework, the discriminatory nature of the CRDO becomes much clearer. This is a case where discrimination is apparent on the basis of the disproportionate and prejudicial economic impact of the legislation on an already-disadvantaged group, the caregivers of disabled children. On this fresh approach, it is obvious to me that the disabled have once again been overlooked by well-meaning legislators.
[37] To the extent that comparator groups are still relevant, however, it is essential to define the comparator group in a way that reflects the claimant’s perspective (Law at paragraph 59). For this reason, I would reject the PAB’s choice of comparator group, which is supported by the Minister in this application: parents of non-disabled children seven and older who stay out of the workforce to care for their children. The PAB found, using this comparator, that the CRDO does not make a distinction, since the parents of non-disabled children seven and over are also not eligible for the drop-out. I agree with the applicant that this comparator group does not reflect the full universe of people potentially entitled to the benefit of the CRDO, namely, parents.
[38] Further, as discussed above, the purpose of the CRDO is to avoid penalizing parents for the lack of labour market flexibility imposed by child-rearing responsibilities; in my view, the burden imposed by child-rearing, not the age of the child per se, is the relevant characteristic for the inquiry.
[39] The proper comparator group must reflect the sociological fact central to this claim—that while free full-time schooling is available to non-disabled and less-severely-disabled children over six, severely disabled children may continue to require full-time parental caregiving beyond age six. The respondent’s proposed comparator group gives rise to an analysis that is formalistic and not responsive to the claimed ground of discrimination, disability, or to the experiences of disabled people and their families, whose difficulties are totally ignored.
[40] I would adopt the comparator group proposed by counsel for Ms. Harris at the hearing: the parents of all non-disabled children six years and under, and the parents of children seven and older, whose disabilities are not severe enough that they are prevented from attending school full-time.
Differential treatment
[41] Having considered the appropriate comparator group, I find that the CRDO cut-off does impose differential treatment on Ms. Harris. While parents in the comparator group are entitled to the benefit of the CRDO for the full period that their labour choices are restricted by having to care for children at home full-time, a parent in her position is only so entitled for part of that time, until her youngest child reaches the age of seven. Since the “recency requirement” of the CPP makes the availability of a disability pension an “all-or-nothing” prospect, in Ms. Harris’s case the CRDO cut-off translated into the total unavailability of a pension. This must be considered differential treatment.
[42] I note briefly that even if I had accepted the PAB’s comparator group, I would have also found differential treatment on the basis of the disproportionate impact of the cut-off on parents of severely disabled children, following the Supreme Court’s reasoning in Vriend v. Alberta, [1998] 1 S.C.R. 493. In that case, it was argued that the exclusion of sexual orientation as a prohibited ground of discrimination under Alberta’s human rights legislation did not amount to a distinction, since neither heterosexuals nor homosexuals were able to claim discrimination on the basis of sexual orientation. Justice Cory, writing on this point for the majority, rejected this formalistic reasoning, pointing out the unlikelihood that a heterosexual person would be discriminated against on the basis of sexual orientation.
[43] The same logic applies in the instant case. While the parents of non- or less-severely disabled children are no longer confronted with the burden of a child who requires full-time care in the home once they reach the age of seven, the parents of severely disabled children over the age of seven are. The CRDO cut-off has a disproportionate impact on these parents because it fails to address their very real needs, ignoring their already-disadvantaged position.
Distinction based on an enumerated or analogous ground
[44] I also find that this differential treatment is based on an enumerated ground, the disability of Ms. Harris’s son, Bradley. It was argued that a parent cannot claim discrimination on the basis of her child’s personal characteristics. However, this is not a case where a parent is merely trying to reassert a claim of discrimination made in the name of her child, as the Ontario Court of Appeal found in Wynberg v. Ontario (2006), 82 O.R. (3d) 561 at paragraphs 205-206. This is a case where a parent is the “real” and only target of a law that embodies allegedly discriminatory attitudes towards her child, similar to the case of Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358.
[45] In Benner, the Supreme Court held the relationship between a parent and child is of a “particularly unique and intimate nature”, such that the characteristics of a child’s parent (such as race or nationality) were as immutable to him as his own (at paragraph 82). Thus, a law that imposed a burden on Mr. Benner as the result of the gender of his parent was found to discriminate against him on the basis of gender, even though it was neutral as to his own gender.
[46] The reverse proposition should also apply. A parent has no more control than the child over whether the child is disabled. Further, because of the special care disabled children require, even over and above the dependent relationship all children have with their parents, the child’s disability affects the parent in a way that is profound and unchangeable. I therefore conclude that the differential treatment is based on an enumerated ground, disability.
[47] This finding does not represent an extension of the principle from Benner, on my reading. The Supreme Court was clear that it was not introducing a broad doctrine of “discrimination by association”, and that this was a question for another day. Specifically, it left open whether its analysis could extend “to situations where, for example, the association is voluntary rather than involuntary, or where the characteristic of the parent in question upon which the differential treatment is founded is not an enumerated or analogous ground” (at paragraph 82). The instant case does not raise either of these questions, but involves the same type of relationship (parent-child) and a claim centred on an enumerated ground of discrimination (disability).
The distinction is discriminatory
[48] I now turn to the second part of the Kapp test, the issue of whether the differential treatment is discriminatory within the meaning of the equality guarantee. In her landmark Royal Commission Report on Equality in Employment (1984), Justice Abella (then of the Ontario Family Court), at page 2, wrote that where disadvantage was suffered by a particular group, this was a prima facie indicator of discrimination:
It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone’s potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory.
[49] Further, she explained:
Sometimes equality means treating people the same, despite their differences, and sometimes it means treating them as equals by accommodating their differences.
Formerly, we thought that equality only meant sameness and that treating persons as equals meant treating everyone the same. We now know that to treat everyone the same may be to offend the notion of equality. Ignoring differences may mean ignoring legitimate needs. It is not fair to use the differences between people as an excuse to exclude them arbitrarily from equitable participation. (at page 3)
For disabled persons, there must be as full accommodation as possible and the widest range of human and technical supports…Pension and benefit schemes must be adjusted so as to encourage disabled persons to join the workplace… (at page 5)
Equality under the Charter, then is a right to integrate into the mainstream of Canadian society based on, and notwithstanding, differences. It is acknowledging and accommodating differences rather than ignoring and denying them. (at page 13)
[50] It is important to note that that this claim is based on the ground of disability. Because persons with disabilities will often require accommodation, sometimes requiring that something extra be provided, this court must be particularly vigilant not to adopt an analysis that focuses on “treating likes alike”. Laws that discriminate on the basis of disability will often do so not because they draw formal distinctions between disabled people and non-disabled people, but rather because they “[fail] to take into account the already disadvantaged position” of the former, as contemplated in Law (at paragraph 39).
[51] Equality rights have proven to be a difficult area for courts. As evidenced by the above discussion of the evolving section 15 framework, even the Supreme Court has struggled to define the scope of the right with precision. The ground of disability is additionally complicated, as the Supreme Court acknowledged in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at paragraph 69, because there are endless differences between disabled individuals, in terms of the type and severity of their disabilities, and many options available to accommodate those differences.
[52] With these complexities, it is no surprise that it is difficult to discern a unified theory underlying the Supreme Court’s disability jurisprudence. Sometimes the court interferes, as in Eldridge v. British Columbia (Attorney General), [1997] 3 SC.R. 624, where the court found that the government had a duty to accommodate deaf patients by providing sign-language interpreters under the auspices of the province’s health services plan.
[53] In other cases, disability claimants have been unsuccessful. As Professor Peter Hogg summarizes, these cases (including Eaton, Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, and Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657), involved legislative schemes that already attempted to accommodate persons with disabilities; the claimants alleged that the accommodations were not extended far enough or were otherwise inappropriate. Professor Hogg concludes that the Supreme Court has generally been willing to show deference to the legislatures’ attempts to accommodate disability (Constitutional Law in Canada, 5th ed. (looseleaf), (Toronto: Carswell, 2007) at 55-74).
[54] On the other hand, in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, the court found a legislative scheme which denied workers’ compensation to chronic pain sufferers discriminated against them on the basis of disability. The unanimous court found that the blanket denial of benefits to chronic pain sufferers, without any assessment of their individual circumstances, ignored the very real needs of these individuals and perpetuated stereotyping of persons claiming chronic pain as malingerers (see especially at paragraph 86). Since Martin, it is much less clear how much deference is owed to legislative attempts to accommodate disability.
[55] Even the Supreme Court has struggled with issues of disability, in addition to its grappling with section 15 more generally, most recently in Kapp. Despite these difficulties, Justice Sopinka gave some useful guidance in this area in his judgment in Eaton (at paragraph 67):
Exclusion from the mainstream of society results from the construction of a society based solely on “mainstream” attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. The discrimination inquiry which uses “the attribution of stereotypical characteristics” reasoning as commonly understood is simply inappropriate here. It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment. It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.
[56] Similarly, in Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84 at paragraph 37, Chief Justice McLachlin wrote, “a law that imposes restrictions or denies benefits on account of presumed or unjustly attributed characteristics is likely to deny essential human worth and to be discriminatory”.
[57] There can be no doubt that in this case, the CRDO cut-off is based on a presumed characteristic, that children seven years of age and older are capable of attending school full-time. As counsel for the Minister sets out in the memorandum of fact and law, “the cut-off age reflects the norm that once children are in school full-time, parents have more flexibility to participate in the paid workforce and a reduced need for childcare”. This view was also reflected in the Geordano report. This lays bare the discriminatory nature of the cut-off, which reflects assumptions based on the capabilities of non-disabled children, without any regard for the different circumstances of disabled children who are not able to attend school full-time and continue to require ongoing full-time home care.
[58] It may be true, as the respondent argues, that age-based cut-offs are often arbitrary and must be based on generalizations. Yet the CRDO cut-off is not arbitrary. The Minister admits it is rooted in assumptions about the capabilities of “most” children—that is, non-disabled children. These norms are not neutral to the issue of disability, and reinforce a worldview that is “relentlessly oriented to the able-bodied”, to borrow a phrase from Granovsky (at paragraph 30). To say that the cut-off is based only on age is to gloss over this “reverse stereotyping”, as it was described by Justice Sopinka in Eaton. Such an approach is the very essence of formalism, and must be rejected, for it totally overlooks the plight of the disabled, perpetuating their disadvantaged situation.
[59] Further, the applicant has adduced considerable evidence about the economic and psychological disadvantages suffered by parents who are forced to remain out of the workforce to care for disabled children. The CRDO was enacted in acknowledgement of the burdens imposed on parents when child-rearing responsibilities require them to leave the workforce temporarily. Surely, parents who must remain out of the workforce for even longer due to their child’s special needs must suffer this disadvantage to an even greater degree. However, by not extending the same benefit to parents who are forced to remain out of the workforce for longer due to their child’s disability, the Minister has allowed the stereotyping and disadvantage of the disabled to be perpetuated, another indicator of discrimination.
[60] Finally, the CRDO cu