Granovsky v. Canada (Minister of Employment and Immigration)

Granovsky v. Canada (Minister of Employment and Immigration)
Collection
Supreme Court Judgments
Date
2000-05-18
Neutral citation
2000 SCC 28
Report
[2000] 1 SCR 703
Case number
26615
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 26615
Decision Content
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703
Allan Granovsky Appellant
v.
Minister of Employment and Immigration Respondent
and
Council of Canadians with Disabilities Intervener
Indexed as: Granovsky v. Canada (Minister of Employment and Immigration)
Neutral citation: 2000 SCC 28.
File No.: 26615.
1999: November 10; 2000: May 18.
Present: L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the federal court of appeal
Constitutional law -- Charter of Rights -- Equality rights -- Disabled persons -- Canada Pension Plan disability pension -- Plan providing for accommodation with respect to periods of minimum contribution for permanently disabled persons but not for temporarily disabled persons -- Whether Plan infringing right to equality -- Canadian Charter of Rights and Freedoms, s. 15(1) -- Canada Pension Plan, R.S.C., 1985, c. C-8, s. 44 .
The appellant claimed to have suffered an intermittent and degenerative back injury following a work-related accident in 1980. He was assessed to be temporarily totally disabled at that time. Prior to his accident, he had made Canada Pension Plan (CPP ) contributions in six of the ten previous years. The appellant was profitably employed from time to time following his accident but maintained that his back condition continued to deteriorate and that the disability became permanent in 1993, at which time he applied for a CPP disability pension. His application was refused by the Minister of Employment and Immigration and refused again by a review tribunal in part because he had only made a CPP contribution in one year of the relevant CPP 10-year contribution period prior to the date of application and thus had what was considered to be an insufficiently recent connection to the work force. He could not bring himself within the “drop-out” provision (made available to applicants who suffered from severe and permanent disabilities) under which periods of disability are not counted in the recency of contribution calculation. Among the issues raised by the appellant was whether the CPP infringed s. 15(1) of the Canadian Charter of Rights and Freedoms because the contributions requirement fails to take into account the fact that persons with temporary disabilities may not be able to make contributions for the minimum qualifying period in s. 44(1) because they are physically unable to work. The appellant was unsuccessful both before the Pension Appeals Board and before the Federal Court of Appeal.
Held: The appeal should be dismissed.
The true focus of the s. 15(1) disability analysis is not on the impairment as such, nor even any associated functional limitations, but is on the problematic response of the state to either or both of these circumstances. It is the state action that stigmatizes the impairment, or which attributes false or exaggerated importance to the functional limitations (if any), or which fails to take into account the “large remedial component” of s. 15(1), and which thus creates the legally relevant human rights dimension to what might otherwise be a straightforward biomedical condition. Since s. 15(1) is ultimately concerned with human rights and discriminatory treatment, and not with biomedical conditions, the primary focus is on the inappropriate legislative or administrative response (or lack of response) to the claimant’s condition. A s. 15 analysis should proceed on the basis of three broad inquiries: (1) whether there is a differential treatment for the purpose of s. 15(1); (2) whether this treatment was based on one or more of the enumerated and analogous grounds; and, (3) whether the differential treatment brings into play the purpose of s. 15(1), i.e., does the law, in purpose or effect, perpetuate the view that persons with temporary disabilities are less capable or less worthy of recognition or value as human beings or as members of Canadian society?
The first step requires that differential treatment, based on one or more personal characteristics, be established between the appellant and some other person or group. The identification of the comparator group is crucial. The purpose of the drop-out provision is to facilitate access of people with permanent disabilities to a CPP disability pension. It does so by employing the same criteria (“severe” and “prolonged”) as the criteria used for the disability pension itself. Faithful correspondence between the benefit in issue and the purpose of the larger plan does not necessarily avoid the claim of discrimination, because the discrimination may lie in the purpose or effects of the larger plan. Here, however, the appellant does not take the position that the requirements for a disability pension itself are discriminatory within the meaning of s. 15 . The people who benefit from the drop-out provision are those who not only demonstrate a permanent disability at the date of application, but also who possessed the permanent disability during the contribution period, or so much of it as they seek to drop out of the CPP calculation. The permanently disabled are the people whose drop-out benefit the appellant seeks to share and who therefore constitute the proper comparator group.
At the second step, the impugned distinction was established to be based on an enumerated ground. The drop-out provision makes a legislative distinction entirely on the basis of the existence and duration of the disability that rendered the appellant unemployed.
The appellant’s claim fails at the third step, however, because he has not demonstrated a convincing human rights dimension to his complaint. Assuming he can show an impairment and significant functional limitations, he fails to show that the government’s response to his condition through the design of the CPP or its application demeans the dignity of persons with temporary disabilities, or casts any doubt on their worthiness as human beings. The drop-out provision relates to the health status of applicants in each of the 10 years prior to the application, i.e., the relevant contribution period, at which time the appellant enjoyed a health advantage relative to the permanently disabled. The differential treatment afforded by the s. 44 “drop-out” provision ameliorates the position of those with a history of severe and permanent disabilities. It does not assist more fortunate people such as the appellant, but in the context of a contributory benefits plan, Parliament is inevitably called upon to target the particular group or groups it wishes the CPP to subsidize. Drawing lines is an unavoidable feature of the CPP and comparable schemes. Parliament did not violate the purpose of s. 15(1) by seeking to benefit individuals with a history of severe and prolonged disability.
Cases Cited
Applied: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Egan v. Canada, [1995] 2 S.C.R. 513; distinguished: Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Vriend v. Alberta, [1998] 1 S.C.R. 493; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; considered: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; referred to: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), [2000] 1 S.C.R. 665, 2000 SCC 27; Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999); Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Miron v. Trudel, [1995] 2 S.C.R. 418; Cleburne v. Cleburne Living Centre, Inc., 473 U.S. 432 (1985).
Statutes and Regulations Cited
Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 42(2) (a) [rep. & sub. c. 30 (2nd Supp.), s. 12 ], (b) [rep. & sub. 1992, c. 1, s. 23], 44(1)(b) [rep. & sub. c. 30 (2nd Supp.), s. 13; am. 1992, c. 2, s. 1], (2)(a) [rep. & sub. c. 30 (2nd Supp.), s. 13], (b) [idem].
Canadian Charter of Rights and Freedoms, ss. 1 , 15 .
Workmen’s Compensation Act, R.S.M. 1970, c. W200.
Authors Cited
Bickenbach, Jerome E. Physical Disability and Social Policy. Toronto: University of Toronto Press, 1993.
Lepofsky, M. David. “A Report Card on the Charter ’s Guarantee of Equality to Persons with Disabilities after 10 Years -- What Progress? What Prospects?” (1998), 7 N.J.C.L. 263.
Minow, Martha. “When Difference Has Its Home: Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference” (1987), 22 Harv. C.R.-C.L. L. Rev. 111.
New Shorter Oxford English Dictionary on Historical Principles, vol. 1. Oxford: Clarendon Press, 1993, “immutable”.
Pothier, Dianne. “Miles to Go: Some Personal Reflections on the Social Construction of Disability” (1992), 14 Dalhousie L.J. 526.
Trudeau, Pierre Elliott. The Essential Trudeau. Edited by Ron Graham. Toronto: M & S, 1998.
United Nations. United Nations Decade of Disabled Persons, 1983-1992: World Programme of Action concerning Disabled Persons. New York: United Nations, 1983.
World Health Organization. International Classification of Impairments, Disabilities, and Handicaps: A Manual of Classification Relating to the Consequences of Disease. Geneva: The Organization, 1980.
APPEAL from a judgment of the Federal Court of Appeal, [1998] 3 F.C. 175, 158 D.L.R. (4th) 411, 225 N.R. 2, 36 C.C.E.L. (2d) 155, 53 C.R.R. (2d) 105, [1998] F.C.J. No. 311 (QL), dismissing an appeal from the Pension Appeals Board. Appeal dismissed.
Bryan P. Schwartz and Ronald Schmalcel, for the appellant.
Edward R. Sojonky, Q.C., and Catharine Moore, for the respondent.
John F. Rook, Q.C., and Mark A. Gelowitz, for the intervener.
The judgment of the Court was delivered by
1 Binnie J. -- On May 27, 1980, at the age of 32, the appellant injured his back at work. Thirteen years later, having been employed irregularly at various jobs in the interim, he applied for a permanent disability pension under the Canada Pension Plan, R.S.C., 1985, c. C-8 (“CPP ”). The Minister refused the application because over the relevant 10-year period prior to the application, the appellant had failed to make the required CPP contributions in any year except 1988. The appellant argues that it was his disability that prevented him from making all of the required CPP contributions in the relevant 1981-92 contribution period, and that the failure of the CPP to take his disability into account in considering his lack of contribution constitutes discrimination contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms .
2 The appellant thus raises issues of considerable importance to persons with disabilities and to governments that undertake to design and implement social benefits legislation. The CPP is a self-funded contributory plan. In what circumstances can the Charter alleviate against the contribution requirements imposed by Parliament? CPP retirement benefits are universal but disability benefits are conditional. They are designed to assist persons with disabilities who were recently in the work force by replacing employment income with a disability pension. The appellant does not have any significant recent attachment to the work force; thus he does not have recent employment income for which a CPP disability pension can be a substitute. Nevertheless, if the time horizon is broadened, he can point to the fact that in the 27-year period between his entry into the work force in 1967 and his application for a disability pension in 1993 he made CPP contributions in each of 10 years, mostly prior to 1980. He should not, he says, be “branded a non-contributor”.
3 The appellant admits that Parliament may, without Charter infringement, create a particular type of benefit (a contributory plan) targeted at a particular group of individuals (those recently in the work force) who are disadvantaged with a particular type of disability (severe rather than superficial, permanent rather than temporary), but that Parliament drew the line in the wrong place when it insisted on the same level of contributions from temporarily disabled workers as it does from able-bodied workers. In my view, for the reasons which follow, the CPP as designed and as applied to the appellant does not violate his equality rights. The impugned feature of the CPP disability pension (the “drop-out” provision) relaxes the contribution requirement in the case of individuals with permanent disabilities but not individuals with temporary disabilities. Parliament was entitled to take into account the nature and extent of an individual’s disability both at the time of the application for a disability pension was made, and during the prior 10-year contribution period. While the CPP draws a statutory distinction between individuals with differing levels of disability during the contribution period, the distinction does not demean the appellant. It simply recognizes that he enjoyed greater economic strength at the relevant time than did the permanently disadvantaged people targeted by the special relief he now seeks to share.
I. Facts
4 The appellant says he has suffered an intermittent and degenerative back injury since 1980. As a result of a workplace accident in that year, he was assessed to be temporarily totally disabled under the Manitoba Workmen’s Compensation Act, R.S.M. 1970, c. W200, and received disability benefits under that Act until 1984. Prior to his accident, he had made CPP contributions in six of the ten previous years (1970-1979 inclusive). In his factum he sets out his lifetime CPP contributions as follows:
1967: Yes 1980: No
1968: Yes 1981: No
1969: No 1982: Yes
1970: No 1983: No
1971: No 1984: No
1972: No 1985: No
1973: Yes 1986: No
1974: Yes 1987: No
1975: Yes 1988: Yes
1976: Yes 1989: No
1977: Yes 1990: No
1978: No 1991: No
1979: Yes 1992: No
1993: No
In 1980-81 and again in 1982-83, the appellant was in receipt of a temporary disability allowance or rehabilitation allowance. In 1983, he was determined by the Neurosis (Psychiatric) Review Panel of the Manitoba Workmen’s Compensation Board to have a 15 percent permanent disability and in 1985 was awarded a lump sum payment of $40,449.12 in full and final settlement. On January 24, 1985, the Workmen’s Compensation Board determined that the appellant was capable of working. Since that time, he has made his CPP contribution in only one year, namely 1988.
5 Although the appellant was profitably employed from time to time following his workplace accident in 1980, he says that throughout this period his back condition continued to deteriorate and the disability became “permanent” in 1993. At that time, claiming a severe and permanent disability, he applied for a CPP disability pension. His application was refused by the Minister and refused again by a Review Tribunal in part because he had only made a CPP contribution in one year (1988) of the relevant CPP 10-year contribution period (1983-92) and thus had what was considered to be an insufficiently recent connection to the work force. The Tribunal took a dim view of his application, as is apparent from the terms of its decision dated July 4, 1994, which refers somewhat disparagingly to his “back-ache”:
On all of the evidence, medical and otherwise, and having observed the demeanour and mental and physical manouvers [sic] of Mr. Granovsky during the hearing, the Tribunal is of the unanimous view that Mr. Granovsky did not suffer from a severe and prolonged mental or physical disability within the meaning of Subsection 42(2) in 1984 nor did he suffer from any such disability at any time up to the present.
Indeed Mr. Granovsky was very candid in stating to the Tribunal that he is anxious and waiting to go out and work if he can find work suited to his physical condition/limitation imposed by his back-ache.
6 Before the Pension Appeals Board on a hearing de novo, the parties agreed to go forward only with the Charter argument in respect of the appellant’s contribution history, and to leave for a later hearing, if necessary, whether or not the appellant in fact suffered from a severe disability at the date of his 1993 application, or otherwise. This splitting of the issues, while intended to be helpful, has given the appeal a somewhat abstract quality on the key questions of the nature and extent of the injury, and its subsequent deterioration, which is unfortunate.
7 In any event, the nub of the appellant’s Charter complaint is that while the CPP relaxes the contribution requirement for applicants whose severe disability was prolonged during all or part of the 10 years immediately preceding the application, it does not relax the contribution for applicants such as the appellant whose severe disability was sporadic, in the process of developing, or of short duration. He argues that where a contributor has a special burden (such as a temporary disability) that goes “above and beyond the usual”, he or she is entitled to increased flexibility in the CPP contribution requirements commensurate with the increased burden.
8 The appellant says that his equality rights as a temporarily disabled person were violated by the refusal of the CPP to drop out of its contribution calculations those years in which he was unable to work for at least six months by reason of his disability. If the drop-out provision is applied, he says, as it is for those who suffered a permanent disability, he would qualify for a CPP disability pension on the basis of the years in which he did make a valid CPP contribution. The appellant thus says that the CPP discriminated against him by insisting on the same rules of recent contribution imposed on more able-bodied workers, which he could not make because of his temporary disability, and denying him the equivalent drop-out privileges allowed to the permanently disabled. The appellant was unsuccessful both before the Pension Appeals Board and before the Federal Court of Appeal.
II. The Statutory Scheme
9 The CPP was designed to provide social insurance for Canadians who experience a loss of earnings owing to retirement, disability, or the death of a wage-earning spouse or parent. It is not a social welfare scheme. It is a contributory plan in which Parliament has defined both the benefits and the terms of entitlement, including the level and duration of an applicant’s financial contribution.
10 The disability pension replaces income for those contributors determined to be “disabled” within the statutory definition. To qualify, applicants must satisfy two legislative requirements:
(a) The contributor must suffer from a “severe and prolonged mental or physical disability”. A disability is deemed to be “severe” if the person is “incapable regularly of pursuing any substantially gainful occupation”, and “prolonged” if it is “likely to be long continued and of indefinite duration or is likely to result in death” (CPP, s. 42(2) (a)).
(b) Contributors must also satisfy a “recency of contributions” test which, at the time the appellant applied for benefits, required contributions to have been made to the CPP in five of the last 10 years or two of the last three years of the contributory period (CPP, ss. 44(1) (b) and 44(2) (a)). The rationale is that workplace replacement income presupposes a recent attachment to a workplace the income from which is to be replaced.
An applicant has a right to a disability pension only if he or she satisfies both tests – permanent medical disability and recency of contribution – at the time of his or her application.
11 The disability pension provisions of the CPP recognize that contributors may not, for a variety of reasons, be able to make payments consistently. Reasons for non-contribution could include everything from plant closures to lack of marketable skills to (as in this case) a disability. A measure of flexibility was created for all applicants by the fact that contributions need only have been made in five of the previous 10 years or two out of the previous three years. Anything less, in Parliament’s view, falls short of the required recent attachment to the work force.
12 The impugned legislative measure (the drop-out provision) was created for two classes of persons: the permanently disabled and family allowance recipients (CPP, s. 44(2) (b)(iii) and (iv)). The drop-out provision permits certain months to be excluded from the contributory period. If a person is permanently disabled in the course of a calendar year, the months during which that person is permanently disabled are not counted against him or her in determining whether recency of CPP contribution requirements are satisfied.
13 It is clear the CPP draws a distinction between those in the position of the appellant and other persons with disabilities. Both groups consist of people with physical or mental impairments and a consequent degree of functional limitation that prevents them from working. The appellant agrees that the CPP is a self-funded contributory plan, not a form of welfare. He accepts that it is designed to provide substitute income for those who have a recent connection to the work force. He does not challenge the “philosophy of the [CPP ] scheme”, and acknowledges “that there can be some reasonable ‘recency’ test. That is, a scheme aiming at ‘[earnings] replacement’ can reasonably say, as a general matter, that a person who has been out of the work force for a long time no longer has a workplace income to replace”. His point is that denying him the drop-out privileges afforded to the permanently disabled demeans the importance and sense of self-worth of people with temporary disabilities. The appellant’s position is that all people suffering severe disabilities are entitled to a measure of relaxation of CPP contribution requirements imposed on the more able-bodied (or at least those more consistently employed) members of the work force.
14 I note at the outset that the appellant seeks an extension of the s. 15(1) principles laid down in the decided cases, which is understandable, but he does so in circumstances that provide no clear boundaries for the future. If he succeeds in having the “permanence” requirement of the CPP test rewritten, for example, will courts next be asked to dilute the CPP requirement that the disability be severe? The less severely disabled will no doubt argue that their interests are no less worthy of protection than those whose disabilities are more severe. Is the legislature then precluded from targeting the permanently disabled for special programs or services (special paratransit public bus facilities for example) without making the same services and programs available to those whose disabilities are temporary, and if so, how temporary would still be sufficient to qualify? The Minister responds that if line drawing is to be done, as is inevitable in a government benefits scheme, the question is not only where they are to be drawn, but also who is to draw them, the courts or Parliament? The Minister says that Parliament is the proper constitutional actor to make these policy determinations. This is true, provided Parliament’s line drawing does not violate the Constitution.
15 The Minister’s denial of the application was based on his view that the “eligibility clock” continued to run even in years in which the appellant was for most of the year unable to work and was thus for those years a non-contributor. It is common ground that the pension was properly denied unless the legislation infringes the appellant’s equality rights under s. 15(1) of the Charter and cannot be saved under s. 1 .
III. Constitutional Provisions
16 Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
. . .
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.
IV. Relevant Statutory Provisions
17 Canada Pension Plan, R.S.C., 1985, c. C-8
42. . . .
(2) For the purposes of this Act,
(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,
(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and
(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and
(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
. . .
44. (1) Subject to this Part,
. . .
(b) a disability pension shall be paid to a contributor . . . who is disabled and who
(i) has made contributions for not less than the minimum qualifying period,
(ii) has made contributions for at least two of the last three calendar years included either wholly or partly within his contributory period,
. . .
(iv) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled had an application for a disability pension been received prior to the time the contributor’s application for a disability pension was actually received;
. . .
(2) For the purposes of paragraphs (1)(b) . . .
(a) a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if he has made contributions
(i) for at least five of the last ten calendar years included either wholly or partly within his contributory period. . . .
. . .
(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 . . . any month for which he was a family allowance recipient in a year for which his unadjusted pensionable earnings were equal to or less than his basic exemption for the year.
V. Judgments in Appeal
A. Pension Appeals Board
(1) Per Cameron J.A., Rice J.A. concurring
18 Cameron J.A. concluded that entitlement to disability benefits under the CPP is conditional on the statutory criteria being met. Here, the legislation did not impose a burden upon the appellant that is not imposed on other claimants. The criteria are the same for all groups. These criteria are not based on stereotypical views of disabled individuals, nor can they be said to be designed to exclude disabled people from participation, in his view. The years of unemployment owing to disability, combined with other years of no or little employment, resulted in the appellant not having sufficient contributions to meet the prerequisites under the Act. Mr. Granovsky was denied a pension because he had not made sufficient contributions. The reason for the lack of contributions, in Cameron J.A.’s view, is irrelevant to the CPP . The determination of the appropriate level of contributions is a matter for Parliament. For these reasons, she concluded that the contribution requirements of the disability plan do not violate s. 15(1) of the Charter .
(2) Per the Honourable C.R. McQuaid concurring in the result
19 In concurring reasons, the Honourable C.R. McQuaid expressed the view that exclusion from the contributory requirements of any years that a claimant suffered a work-related injury would discriminate against workers “who suffered from a disabling injury not directly work-related, and that even larger class who by reason of local economic conditions, or industrial downsizing, are, through no fault of their own, not in receipt of earnings, and thus precluded from contributing”.
B. Federal Court of Appeal, [1998] 3 F.C. 175
(1) Stone J.A., Isaac C.J. concurring
20 Stone J.A. concluded that the Pension Appeals Board had erred in analysing the issue on the basis of direct discrimination rather than indirect or “adverse effect” discrimination. In a decision that pre-dated this Court’s judgment in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, he concluded at para. 11 that the contributions requirement for disability benefits in the Canada Pension Plan was contrary to s. 15(1) of the Charter :
While neutral on its face, the recency of contributions criterion in subsection 44(1) creates a distinction, in its effect, between disabled and able-bodied persons. This requirement imposes a restrictive condition on disabled persons which arises because of their disability, and which is not imposed on able-bodied persons who apply for disability benefits under the Act. Because of this distinction, disabled persons such as the applicant are denied the “equal benefit” of the law -- in this case, equal access to a disability pension to which they have made valid contributions. . . . Disabled persons are thereby inhibited from participating fully in the Plan by reason of their disability.
21 Stone J.A. concluded, however, that the eligibility requirements in the CPP were justified pursuant to s. 1 of the Charter . He wrote at para. 18:
In my view, the government has made a reasonable attempt, given the social, economic and fiscal considerations involved, to calculate and allocate a disability benefit in the most reasonable manner. The government is uniquely situated to examine this issue and this Court should not second-guess the action it has taken.
22 Stone J.A. therefore concluded that although the CPP did infringe the applicant’s rights protected by s. 15(1) of the Charter , it was a reasonable limit that was demonstrably justified in a free and democratic society.
(2) McDonald J.A., concurring in the result
23 McDonald J.A. agreed with the result, but for different reasons. Unlike the majority, he was of the view that the applicant had not made a case of discrimination since “[t]he eligibility criteria are imposed on all individuals equally” (para. 36). He went on to hold that if, contrary to his view, s. 15(1) were violated, the government had not discharged its s. 1 onus of proving that it had impaired the applicant’s right as little as possible.
VI. Constitutional Questions
24 On February 16, 1999, Lamer C.J. stated the following constitutional questions:
(1) Does the Canada Pension Plan, R.S.C., 1985, c. C-8 , discriminate against persons on the basis of physical or mental disability by including periods of physical or mental disability in a claimant’s contributory period, as such period is determined pursuant to s. 44(2)(b) of that Act, in claims for a disability pension under that Act, contrary to s. 15 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11?
(2) If so, does the discrimination come within only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11?
VII. Analysis
25 The appellant says he has a serious back problem that renders him unemployable. The question is how, if at all, his medical problem becomes a human rights issue.
26 The true focus of the s. 15(1) disability analysis is not on the impairment as such, nor even any associated functional limitations, but is on the problematic response of the state to either or both of these circumstances. It is the state action that stigmatizes the impairment, or which attributes false or exaggerated importance to the functional limitations (if any), or which fails to take into account the “large remedial component” (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171) or “ameliorative purpose” of s. 15(1) (Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, at para. 66; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 65; Law, supra, at para. 72), that creates the legally relevant human rights dimension to what might otherwise be a straightforward biomedical condition.
27 Some of the grounds listed in s. 15 are clearly immutable, such as ethnic origin. A disability may be, but is not necessarily, immutable, in the sense of not being subject to change. As this case shows, disabilities may be acquired in the course of life, and may grow more severe or less severe as time goes on. Disabilities are certainly not ‘immutable’ in the secondary sense of “[n]ot varying in different cases” (New Shorter Oxford English Dictionary (1993), vol. 1, p. 1317). Unlike gender or ethnic origin, which generally stamp each member of the class with a singular characteristic, disabilities vary in type, intensity and duration across the full range of personal physical or mental characteristics that, in the context of the CPP , prevent or “disable” an individual from working to earn the annual CPP contribution. As Sopinka J. pointed out in Eaton, supra, at para. 69, disability “means vastly different things depending upon the individual and the context”.
28 A disability, unlike, for example, race or colour, may entail pertinent functional limitations. These limitations have historically provided a rationale (often unfairly) to explain and justify differential treatment of persons with disabilities. A related consideration is the variety of functions against which the limitations of a person with a disability may be measured. In the context of the CPP , the yardstick is employability. An individual may suffer severe impairments that do not prevent him or her from earning a living. Beethoven was deaf when he composed some of his most enduring works. Franklin Delano Roosevelt, limited to a wheelchair as a result of polio, was the only President of the United States to be elected four times. Terry Fox, who lost a leg to cancer, inspired Canadians in his effort to complete a coast-to-coast marathon even as he raised millions of dollars for cancer research. Professor Stephen Hawking, struck by amyotrophic lateral sclerosis and unable to communicate without assistance, has nevertheless worked with well-known brilliance as a theoretical physicist. (Indeed, with perhaps bitter irony, Professor Hawking is reported to have said that his disabilities give him more time to think.) The fact they have steady work does not, of course, mean that these individuals are necessarily free of discrimination in the workplace. Nor would anyone suggest that, measured against a yardstick other than employment (access to medical care for example), they are not persons with daunting disabilities.
29 The concept of disability must therefore accommodate a multiplicity of impairments, both physical and mental, overlaid on a range of functional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called “disabled” individual may not be impaired or limited in any way at all. An appreciation of the common humanity that people with disabilities share with everyone else, and a belief that the qualities and aspirations we share are more important than our differences, are two of the driving forces of s. 15(1) equality rights.
30 The bedrock of the appellant’s argument is that many of the difficulties confronting persons with disabilities in everyday life do not flow ineluctably from the individual’s condition at all but are located in the problematic response of society to that condition. A proper analysis necessitates unbundling the impairment from the reaction of society to the impairment, and a recognition that much discrimination is socially constructed. See, e.g., D. Pothier, “Miles to Go: Some Personal Reflections on the Social Construction of Disability” (1992), 14 Dalhousie L.J. 526. Exclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself. Problematic responses include, in the case of government action, legislation which discriminates in its effect against persons with disabilities, and thoughtless administrative oversight. The appellant says that his treatment by the CPP shows the inequality that can result when government enacts social programs with inadequate attention, at the design stage, for the true circumstances of people with disabilities.
A. The Constitutional Aspect of Disability
31 This case presents the first opportunity for the Court to consider the disability ground of s. 15(1) since rendering its decision in Law, supra. In that decision, Iacobucci J., speaking for a unanimous Court at para. 39, set out what he called “a synthesis” of “various articulations” of the s. 15(1) test. I propose at the outset to highlight some of the relevant themes from the Court’s earlier Charter treatment of disability, in so far as those themes bear on the proper resolution of the present appeal, and then, in light of that earlier jurisprudence, to turn to the application of the guidelines summarized in Law commencing at para. 88.
32 The respondent is somewhat dismissive of the appellant’s physical impairment, suggesting disbelief that a severe backache could rise to the level of a constitutional challenge. The respondent argues that s. 15(1) protection
is for serious disabilities. . . . Human Rights Boards and Tribunals in Canada have held that absences from work because of temporary illnesses or injuries are not ordinarily characterized as disabilities. . . .
This perspective puts too much focus on the impairment itself and not enough focus on the government’s response to it. I therefore propose to discuss what at this stage appear to be circumstances that signal the enumerated ground of disability while underlining the obvious fact that the analysis will undergo further refinement in future cases as they arise.
33 The Charter is not a magic wand that can eliminate physical or mental impairments, nor is it expected to create the illusion of doing so. Nor can it alleviate or eliminate the functional limitations truly created by the impairment. What s. 15 of the Charter can do, and it is a role of immense importance, is address the way in which the state responds to people with disabilities. Section 15(1) ensures that governments may n