II. OBSTACLES TO DISABILITY-RELATED SUPPORTS: THE CURRENT CANADIAN APPROACH2017-03-03T18:35:37+00:00

The sections that follow discuss the themes that emerge from Canadian jurisprudence regarding rights to supports under the Charter and human rights legislation.  Within this discussion, the frameworks developed by courts for determining whether a claimant has established a violation of his or her rights are also examined.  These frameworks are crucial because, unless one can fit a claim for supports into the parameters of the established legal test, that claim is bound to fail.  Moreover, examining the frameworks alongside their application in caselaw is important to determine whether and when there is something inherent in the frameworks themselves that precludes courts from imposing positive obligations on government.

 

A. Courts’ Reluctance to Impose Positive Obligations on Government: Section 7

 In various contexts, the Supreme Court of Canada has recognized that a lack of government action may infringe rights and freedoms guaranteed by the Charter.  Stated differently, judges have appreciated that positive government action may be required to give effect to Charter rights and freedoms.  For example, in Reference re Public Service Employee Relations Act (Alberta), Dickson C.J., writing in dissent, explained that a conceptual approach in which “freedoms” in the Charter are said to “involve simply an absence of interference or constraints … may be too narrow since it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms …”[14]

 

In this vein, the Court has found that underinclusive legislation may, in some circumstances, substantially impact the exercise of a constitutional freedom.[15]  For example, in Dunmore v. Ontario (Attorney General) the majority of the Court found that the exclusion of agricultural workers from Ontario’s Labour Relations Act, 1995 meant that the workers were substantially incapable of exercising their freedom of association, as protected by section 2(d) of the Charter.[16]  However, the thrust of jurisprudence regarding rights to equality and rights to life, liberty, and security of the person indicates that there are significant obstacles to enforcing these rights where such enforcement would entail positive obligations on government. 

The courts have thus far been slow to recognize positive obligations as part of the right to life, liberty, and security of the person protected under section 7 of the Charter, though there is nothing inherent in the section 7 framework developed by courts to foreclose that possibility.  Under Canadian jurisprudence, in order to establish a violation of one’s section 7 rights a claimant must demonstrate two things: (i) an interference, in purpose or effect, with one of the three interests protected by section 7; and (ii) that the interference is not in accordance with the principles of fundamental justice.  The second stage of the section 7 analysis often amounts to a proportionality inquiry that weighs the importance of the state objective at issue against the severity of the violation of life, liberty, and/or security of the person.[17]  The Supreme Court has explained that the principles of fundamental justice include rules of procedural fairness (or natural justice) and substantive principles that are the “basic tenets of our legal system.”[18]  Section 7 has been applied in a variety of contexts, including the administration of human rights legislation,[19] state-imposed medical treatment,[20] state-initiated custody proceedings,[21] and state-prohibitions on the purchase of private insurance.[22]  The Supreme Court has consistently left open an interpretation of section 7 that includes positive obligations on government.

In the first two subsections that follow (1. G.(J.) and Gosselin: Disability Supports where Impecunious and 2. Wynberg and Flora: Health and Social Services) the paper discusses cases in which claimants have attempted to impose positive obligations on government to provide supports, both generally and in the context of disability-related supports.  This caselaw demonstrates the courts’ reluctance to impose positive obligations on government under section 7.  By contrast, in the third subsection that follows (3. Chaoulli and Adams: Successful Claims), the paper reviews novel contexts in which claimants have been successful in arguing that their section 7 rights were infringed.  This caselaw illustrates that it is not the novelty of the claim that determines its success or failure; instead, the result is largely dependent on whether the claim is a negative one (requiring only that the government abstain from curtailing rights) or a positive one (requiring the government to take positive action).

 

1.  G.(J.) and Gosselin: Disability Supports where Impecunious


In an early case concerning the scope of section 7, the Court stated that it would be “precipitous” to rule out the possibility that the section included such rights as “… rights to social security, equal pay for equal work, adequate food, clothing and shelter …”[23] In 1999, the Court went much further in the case of New Brunswick (Minister of Health and Community Services) v. G. (J.) [G. (J.)], holding that in certain circumstances section 7 imposes a positive obligation on the government to provide an impecunious, unsophisticated parent with state-funded counsel when the government seeks a judicial order suspending the parent’s custody of his or her child.[24]  The Court held that, in the circumstances of the case, the right to a fair hearing (a principle of fundamental justice) required that the mother be represented by counsel.  The Court reached this conclusion by considering the seriousness of the interests at stake in child custody proceedings, the complexity of those proceedings, and the fact that the mother in this case did not possess superior intelligence, education, communication skills, composure, or familiarity with the legal system.[25] 

Despite the theoretical possibility that section 7 may encompass positive rights and the hope offered by the Court’s decision in G.(J.), in subsequent cases the Supreme Court has habitually dismissed section 7 claims that would require positive state action, both generally and in the context of disability-related supports.  For example, in Gosselin v. Québec (Attorney General) [Gosselin], a welfare recipient challenged the adequacy of welfare benefits.[26]  The majority of the Supreme Court rejected the claim.  In the majority’s view, existing jurisprudence on section 7 indicated that it restricts the government’s ability to deprive individuals of their rights to life, liberty, and security of the person.  According to the majority, existing jurisprudence did not suggest that section 7 imposes positive obligations on government to ensure that each person enjoys life, liberty, and security of the person.[27]

The majority’s judgment in Gosselin implies that the Court’s decision in G.(J.) did not impose positive obligations on the government.  It suggests that the Court’s findings resulted from the state’s threat to G.(J.)’s security of the person by seeking to extend the custody order in place.  However, as noted by Arbour J. writing in dissent in Gosselin, 

One must resist the temptation to dilute the obvious significance of this decision by attempting to locate the threat to security of the person in G. (J.) in state action.  It is of course true that the proceedings at issue in G. (J.) were initiated by the government.  But Lamer C.J. pointed out that it was not the actions of the state in initiating the proceedings, per se, that gave rise to the potential s. 7 violation.  Rather, “[t]he potential s. 7 violation . . . would have been the result of the failure of the Government of New Brunswick to provide the appellant with state-funded counsel . . . after initiating proceedings under Part IV of the Family Services Act” (G. (J.), supra, at para. 91 (emphasis added)).  This focus on state omission rather than state action is consistent with Lamer C.J.’s characterization of the state’s obligation to provide counsel as a positive obligation.  It is in the very nature of such obligations that they can be violated by mere inaction, or failure to perform the actions that one is duty-bound to perform.[28] 

The majority suggests that what was lacking in Gosselin, which could sustain a claim to positive obligations arising from section 7 in the future, was a serious record of hardship.  However, Arbour J. had no difficulty concluding that the evidentiary record was sufficient to find a violation of Ms Gosselin’s section 7 rights.[29]  Arguably, the serious record of hardship which was before the Court suggests that, in the majority’s view, section 7 can never be used to impose positive obligations on government to guarantee a minimum standard of living.

 

2. Wynberg and Flora: Health and Social Services


            In subsequent cases, Canadian courts have followed the narrow approach to section 7 applied by the Supreme Court majority in Gosselin, including cases where claimants have sought to impose positive obligations on government to provide disability-related supports.  For example, in a series of cases where parents of autistic children sought to impose an obligation on the government to provide their children with autism-related services, the Ontario Court of Appeal and the Supreme Court declined to find violations of section 7.[30] 

In Wynberg v. Ontario [Wynberg], parents challenged Ontario’s failure to fund intensive behavioural intervention (“IBI”) programs for autistic children aged six and over.  Among other things, the parents claimed that the province’s special education regime adversely impacted their children’s liberty and security of the person by denying them access to the only program known to provide any hope to autistic children of being able to participate meaningfully in the community.[31]  Both the trial judge and the Ontario Court of Appeal rejected the section 7 claim advanced by the parents.  Central to this determination was the fact that Ontario’s Education Act does not create a mandatory requirement that school-age children attend public school.  The Court relied on this fact in concluding that the government’s failure to provide the IBI program to autistic children did not amount to the kind of deprivation required to bring section 7 rights into play.[32]  The Court of Appeal emphasized that “existing jurisprudence [does] not permit an interpretation of section 7 as imposing a constitutional obligation to ensure that every school-age autistic child has access to specific educational services.”[33]  In other words, the Court was not willing to depart from the existing caselaw to impose a positive obligation on the government to provide the IBI program at issue.  

The reluctance of courts to impose positive obligations on government under section 7 is also evident in other contexts where claimants have sought disability-related supports.  For example, in Flora v. Ontario (Health Insurance Plan, General Manager) [Flora], the Ontario Court of Appeal upheld the province’s refusal to reimburse Mr. Flora for a life-saving liver transplant he received outside Canada.[34]  As in Wynberg, the Court held that existing jurisprudence did not permit it to interpret section 7 as imposing a constitutional obligation on government to fund out-of-country medical treatments beyond those already covered by the province’s health insurance scheme.[35]  This was so despite the undisputed findings that the treatment Mr. Flora received outside of Canada was not available in Ontario and was required to save his life.[36]

 

3. Chaoulli and Adams: Successful Claims


Canadian courts’ reluctance to impose positive obligations on government becomes more glaring when one considers some of the novel section 7 claims courts have upheld where those claims concerned negative rights.  For example, Chaoulli v. Québec (Attorney General) [Chaoulli] involved a challenge to the provisions of a Québec statute that prohibited residents from making private health insurance contracts.[37]  A majority of the Supreme Court found that the provisions at issue violated the rights to life and security of the person under Québec’s Charter of Human Rights and Freedoms in the face of the province’s long waiting lists for medical services.[38]  Of the five members of the Court who addressed the Canadian Charter, three members found that the provisions at issue violated section 7 and could not be justified under section 1.  The majority’s decision in Chaoulli was arguably a radical one as it is criticized as threatening Canada’s public health care system.  However, it remained in the realm of negative rights; the appellants did not seek to impose a positive obligation on government (such as an order requiring the government to fund private health care, to spend more money on health care, or to reduce waiting times for treatment).  Instead, the appellants sought the right to spend their own money to obtain insurance for private health care services.  Because the appellants sought to enforce negative rights, the Court was able to uphold the claim of a section 7 breach without having to reinterpret the scope of section 7. 

Similarly, in Victoria (City) v. Adams [Adams], the British Columbia Court of Appeal upheld a novel, but negative, section 7 claim.[39]  The Court found that municipal by-laws prohibiting persons from erecting any form of temporary overhead shelter at night violated the section 7 rights of homeless persons, where the evidence indicated that the number of homeless people exceeded the number of available shelter beds. 

Chaoulli and Adams demonstrate the willingness of Canadian courts to find novel breaches of section 7 where the claims involve negative rights only.  These cases stand in stark contrast to the findings in Gosselin and Wynberg where the courts are clearly reluctant to impose positive obligations on government.  As discussed below, the distinction the judiciary has drawn between positive and negative rights reflects its deference to government decisions and priorities in allocating resources.

 

4.  Implications of the Caselaw


            Existing jurisprudence under section 7 indicates that, while courts pay lip service to the theoretical possibility that section 7 could be used to impose positive obligations on government, they are unwilling to turn that possibility into reality.  However, the framework developed by the courts for determining section 7 claims does not inherently preclude the imposition of positive obligations on government.  Indeed, Justice Arbour, writing in dissent in Gosselin, affirmed an interpretation of section 7 as imposing positive obligations on government.  She explained that in section 7 cases the protection of positive rights is grounded in the first clause of section 7, “… which provides a free-standing right to life, liberty and security of the person and makes no mention of the principles of fundamental justice.”[40]  According to Justice Arbour, the fact that the principles of fundamental justice are those found in “the basic tenets of our legal system” means that they are not relevant in positive rights’ cases because the source of a positive rights violation is in the legislative process.  In other words, positive rights can be violated by mere inaction on the part of government, which implicates public policy decisions, rather than the justice system.

Justice Arbour’s interpretation of section 7 shows that the major obstacle to the recognition of disability-related supports is not the framework for determining section 7 claims, but courts’ reluctance to apply that framework in a manner that would impose positive obligations on government.  The judiciary’s refusal to interpret section 7 as imposing an obligation on government to ensure that each person enjoys life, liberty, and security of the person largely forecloses the possibility of obtaining disability-related supports through a legal challenge under section 7. 

 

B.  Courts’ Reluctance to Impose Positive Obligations on Government: Section 15


As discussed above in the context of section 7, Canadian courts have recognized that a lack of government action may infringe rights and freedoms guaranteed by the Charter but have nevertheless resisted imposing positive obligations on government.  Likewise, in equality cases under section 15 of the Charter, the thrust of jurisprudence indicates that there are significant obstacles to enforcing these rights where such enforcement would entail positive obligations on government. 

An important similarity between section 7 and section 15 jurisprudence in the context of disability-related supports is that the frameworks developed by the courts for adjudicating claims under these provisions do not preclude the imposition of positive obligation on government.  The jurisprudence discussed above in relation to rights to life, liberty, and security of the person, most notably the dissent of Justice Arbour in Gosselin, makes it clear that the framework developed by the courts for determining section 7 claims does not inherently preclude the imposition of positive obligations on government.  Similarly, the framework used by courts for determining equality claims under the Charter for the last decade, known as the Law approach (as it originated in the case of Law v. Canada, (Minister of Employment and Immigration)), does not inherently preclude the imposition of positive obligations on government, though it does pose obstacles to their recognition.[41] 

 

1. Law: Formal Versus Substantive Equality


An examination of the comparator analysis in the Law approach, which has posed a significant obstacle to those seeking disability-related supports, shows that it may not be the comparator analysis itself that is problematic.  Arguably, it is the courts’ reluctance to impose positive obligation on government that has led the courts to apply the comparator analysis in a manner that precludes the imposition of positive obligations on government.

Under the Charter, the right to equality is protected in both negative and positive terms.  The focus of section 15(1), which sets out the guarantee of equality before and under the law, is on preventing governments from drawing distinctions on enumerated or analogous grounds that have the effect of perpetuating a stereotype or of imposing a disadvantage based on a stereotype.  The focus of section 15(2), which protects affirmative action programs from being found constitutionally invalid under section 15(1), is on enabling governments to take positive steps to help disadvantaged groups improve their situation.[42]

Since the equality rights provision of the Charter came into effect, the Supreme Court’s interpretation of the legal test to establish an infringement of one’s equality rights has evolved dramatically.[43]  In its first section 15 decision, Andrews v. Law Society of British Columbia [Andrews], the Court rejected the application of the similarly-situated test, which focuses on treating likes alike.  It recognized that such an analysis results in formal rather than substantive equality because it justifies treating those who are unalike differently: “mere equality of application to similarly situated groups or individuals does not afford a realistic test for a violation of equality rights…a bad law will not be saved merely because it operates equally upon those to whom it has application.”[44]  For example, the similarly-situated analysis would permit a requirement that all employees have a driver’s license, on the basis that the rule applies equally to all, despite the fact that persons whose disability prevents them from having a driver’s license would be disproportionately, and discriminatorily, affected by such a requirement.  Thus, the Supreme Court rightly rejected the similarly-situated analysis as it gives carte blanche to discriminate against all individuals of the same disability.[45] 

Following Andrews, there were several years of differing opinions among members of the Supreme Court as to the appropriate interpretation of section 15(1).  The Court finally agreed on an approach and provided guidelines for lower courts in the seminal case of Law v. Canada, (Minister of Employment and Immigration) [Law].[46]  This approach involves three main inquiries:

First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?  If so, there is differential treatment for the purpose of s. 15(1).  Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds?  And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage?  The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).[47]

Each branch of the Law test proceeds based on a comparison with another relevant group or groups.  The Supreme Court has explained that the appropriate comparator group is one that possesses all of the relevant characteristics of the claimant group apart from the characteristic that is the claimed ground of discrimination.[48]  To satisfy the third inquiry, the claimant must show that the impugned law has the effect of demeaning the claimant’s dignity, which is considered both objectively and subjectively.[49]  

In Law, the Supreme Court noted several contextual factors that are relevant to a determination of whether a claimant’s dignity has been demeaned: whether the individual or group has been subject to pre-existing disadvantage, stereotyping, prejudice or vulnerability; whether there is a correspondence between the ground upon which the claim is based and the actual need, capacity, or circumstance of the claimant(s); whether the impugned law is ameliorative (in purpose or effect); and the nature and scope of the interest affected by the impugned law.[50]  The Supreme Court explicitly saw this approach as one aimed at substantive, rather than formal equality.[51]  However, subsequent cases show that the Law approach has been applied in a manner that affirms formal rather than substantive equality, which poses a significant obstacle for those seeking to establish rights to disability-related supports.

The Supreme Court recently reformulated the Law approach in R. v. Kapp [Kapp].  In Kapp, the Court set out the following test for determining whether section 15(1) has been infringed:  First, does the law creates a distinction based on an enumerated or analogous ground?  If so, does the distinction create a disadvantage by perpetuating prejudice or stereotyping?[52]  The Court’s reformulation of the section 15(1) test in Kapp was engendered in part by criticisms of the Law approach, including the formal equality that resurfaced through the artificial comparator analysis.[53]  Because the Court’s decision in Kapp is so recent, it is difficult to determine whether it will refocus judicial analysis on substantive equality.  It is, however, worth noting that in the three section 15 challenges considered by the Supreme Court since Kapp, there has been less emphasis on the strict application of comparator groups and greater focus on the broader context of the distinctions at issue from a substantive equality perspective.[54]

 

2. Auton: Renewal of the Similarly-Situated Test


The formal approach to equality can be seen in the manner in which the comparator analysis in Law has been applied by the Supreme Court in cases subsequent to Law, such as Auton (Guardian ad litem of) v. British Columbia (Attorney General) [Auton].  In Auton (which post-dated Law but pre-dated Kapp), parents argued that the government’s refusal to fund a particular program (applied behavioural analysis and intensive behavioural intervention [ABA/IBI]) for their preschool aged children with autism constituted discrimination on the basis of disability.[55]  The parents based their claim on the argument that the program at issue was “medically necessary”, with the implication that the government discriminated against their autistic children because it provided non-autistic children with medically necessary services.  Dismissing the claim on other bases, the Court proceeded to consider the substantive merits of the equality claim.  The Court rejected the claimants’ proposed comparator groups, which were children without disabilities and adults with mental illness.  The Court found that the appropriate comparator groups were persons without disabilities or persons suffering a disability other than a mental disability, seeking or receiving funding for a non-core therapy important for their present and future health which was emergent and only recently recognized as medically required.  The Court found no evidence to suggest that the government’s approach to funding the program was different from its approach to other novel therapies for persons without disabilities or persons with another disability.  Without that evidence, there could be no finding of discrimination.[56] 

The manner in which the Supreme Court applied the comparator analysis in Auton poses a significant obstacle for those seeking disability-related supports because the Court’s approach implicitly reaffirms the similarly-situated analysis.  Following its approach in other cases, in Auton, the Court insisted that the comparator group must be “like the claimants in all ways save for characteristics relating to the alleged ground of discrimination.”[57]  In other words, claimants are required to find a group to which they could belong but-for the personal characteristic that separates them.[58]  This is problematic because the specificity engendered by such an application of the comparator analysis “precludes complexity, intersectionality or any analysis of layers of oppression.”[59]  Further, the Supreme Court’s chosen comparator groups focus on the support sought by adding the elements of “emergent”, “non-core”, and “recent” treatment. [60]  

In contrast, the comparator groups selected by the claimants show how a comparative analysis has the potential to affirm substantive equality by comparing outcomes.  The first comparator group chosen by the claimants, children without disabilities, highlights how the support sought (ABA/IBI) would allow autistic children to participate in “regular” classrooms in the public school system.[61]  The second comparator group chosen by the claimants, adults with mental illnesses, highlights the impact of the denial of the support sought on the claimants by showing how adults with mental illnesses benefit from medical treatment.[62]  These comparator groups both focus the claim on outcomes – the educational opportunities made possible by the provision of the support at issue (compared with children without disabilities), and the impact of being denied the support sought (compared with adults with mental illnesses).[63]  In so doing, these comparator groups show how a focus on outcomes can put substantive equality at the heart of the comparator analysis.

A formal approach to equality is certainly not limited to the comparator analysis that has been employed by the courts following Law.  Nevertheless, an examination of how the courts have applied the comparator analysis, as in Auton, is a salient example of how a formal approach to equality poses a significant obstacle for those seeking to impose a positive obligation on government to provide disability-related supports.

 

 

3.  Eldridge: A Successful Claim

 

Claimants in section 15 challenges have been most successful where they are able to frame their claims to a disability-related support as a gap in an existing program (as discussed more fully in Section III below).  For example, in Eldridge v. British Columbia (Attorney General) [Eldridge], claimants were successful in arguing that the government’s failure to provide sign language interpretation to deaf patients seeking hospital services violated their equality rights.[64]  The Supreme Court found that this gap (the failure to make hospital services accessible to deaf patients) in the government’s existing healthcare services meant that deaf patients were not provided with substantively equal treatment as hearing patients.  However, a claimant’s attempt to frame their claim as a gap in an existing program is not determinative as the courts may reject that characterization. 

In contrast, claimants have achieved little success in section 15 claims where they seek to impose free-standing, positive obligations on government.  For example, as seen in a series of cases including Auton, Canadian courts have refused to impose a positive obligation on government to provide autistic children with a particular educational program.[65]  As Auton demonstrates, Canadian courts’ reluctance to impose positive obligations on government under section 15 is often justified through a formalistic, rather than substantive, approach to equality.   

The extent to which framing claims to supports as an accommodation in an existing service is further discussed in the Pathways section below.

 

 

4.  Implications of the Caselaw


Existing jurisprudence under section 15 indicates that, while courts explicitly recognize the importance of substantive equality, their analyses are often formalistic and do not recognize the contextual needs and realities of those seeking disability-related supports.  The Supreme Court’s decision in Kapp however gives one reason to be optimistic that the formalistic approach seen in equality jurisprudence will evolve into an approach that focuses on substantive equality.  If it does, claimants are much more likely to be successful in imposing a positive obligation on government to provide disability-related supports, since, for people with disabilities, substantive equality is intrinsically connected with the provision of disability-related supports.

 

C.  Courts’ Deference to Government Allocation of Scarce Resources


The courts often choose to defer to government and legislative decisions on the allocation of scarce resource and prioritizing competing policy concerns.[66]  While this is particularly true when the courts are asked to impose positive obligations on government, the courts also defer in cases where they are asked to extend protection to a vulnerable group rather than being asked to expend resources.  In Irwin Toy, the Supreme Court explained the rationale for this approach:

When striking a balance between the claims of competing groups, the choice of means, like the choice of ends, frequently will require an assessment of conflicting scientific evidence and differing justified demands on scarce resources.  Democratic institutions are meant to let us all share in the responsibility for those difficult choices.  Thus, as courts review the results of the legislature’s deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature’s representative function.  For example, when “regulating industry or business it is open to the legislature to restrict its legislative reforms to sectors in which there appear to be particularly urgent concerns or to constituencies that seem especially needy” [citation omitted].[67]

Such deference often informs courts’ analysis of whether a breach of the Charter has been established.[68]  For example, in Auton, the Supreme Court’s finding that the claimants failed to establish a breach of section 15 relied in part on the Court’s deference to the government’s allocation of scarce resources for healthcare services generally: “… the legislative scheme does not promise that any Canadian will receive funding for all medically required treatment …It is, by its very terms, a partial health plan.”[69] 

Courts’ deference to government allocation of resources is explicitly incorporated in the legal test applied by courts to determine whether government can justify a breach of the Charter.  Once a claimant has established a violation of his or her Charter rights (including sections 7 and 15), the opposing party, usually the government, may justify such violation under section 1 of the Charter.  To do so, two central criteria must be satisfied.  First, the party invoking section 1, usually the government, must establish that the objective of the impugned law is “pressing and substantial”.  Second, that party must show that the means chosen are reasonable and demonstrably justified.  This involves a form of proportionality test with three components: (a) the measures adopted must be rationally connected to the objective; (b) the means chosen must minimally impair the right or freedom in question; and (c) the effects of the measures must be proportional with respect to the objective.[70]

Under the second stage of the section 1 test, courts are deferential to government arguments regarding limited funding.  For example, in Cameron v. Nova Scotia (Attorney General) [Cameron], a married couple was able to establish that the failure of Nova Scotia’s health insurance plan to provide coverage for fertility treatment violated their equality rights on the basis of disability (infertility).[71]  Nevertheless, the Court of Appeal dismissed their claim on the basis that the government’s discrimination was justified under section 1 because the health insurance plan had to exclude some procedures in order to provide the best possible health care coverage in the context of limited financial resources. 

The challenge of imposing positive obligation on government where this would involve funding was also evident in Newfoundland (Treasury Board) v. N.A.P.E..[72]  In that case, unions were successful in arguing that the government’s refusal to make retroactive pay equity adjustments to female employees in the health care sector violated their equality rights.  However, the Court upheld the finding that such wage discrimination was justified under section 1 of the Charter in light of the severe fiscal crisis being faced by the government.  As noted by the Court in Cameron, existing jurisprudence indicates that where the section 1 analysis involves the balancing of competing interests and matters of social policy, government must be afforded “wide latitude to determine the proper distribution of resources in society.”[73]

Courts’ deference to government may be one explanation for the distinction drawn by the courts between positive and negative rights.  In other words, courts may be willing to recognize negative rights claims because they do not affect government allocation of resources but are wary of recognizing positive rights claims because doing so would not only question, but also directly affect, government distribution of resources.  While it is certainly true that government funding is limited, courts’ deference to government allocation of scarce resources poses a significant obstacle for those seeking to impose an obligation on government, especially for people with disabilities for whom positive obligations will often be necessary to achieve substantive equality. 

 

D. Defences for Ameliorative Programs and the Risk of Program Cancellation


As discussed more fully in section III below, claimants have been successful in seeking disability-related supports where they are able to frame their claim as a gap in an existing program.  For example, in Nova Scotia (Workers’ Compensation Board) v. Martin [Martin], the claimants were successful in showing that provisions of Nova Scotia’s workers’ compensation legislation that entirely excluded chronic pain from the purview of the regular workers’ compensation system, violated section 15 by imposing differential treatment upon injured workers suffering from chronic pain on the basis of the nature of their physical disability.[74]  Where claims to disability-related supports are framed in this manner, the success of the claim is not the result of the courts’ recognition of a freestanding right to a support.  Instead, as in Martin, the success results from the courts’ recognition that the government, having chosen to provide certain benefits, was providing them in a manner that discriminated against people with disabilities. 

However, two related obstacles arise where the right to a disability-related support is framed as a gap in an existing program.  First, the government may defend such a claim by arguing the program is ameliorative.  Ameliorative programs are protected from discrimination claims under section 15(2) of the Charter and comparable provisions of human rights legislation.[75]  Thus, the government may defend against a claim that a disability-related program is underinclusive by alleging that it is an ameliorative program.  The second, related obstacle, is that the government may cancel an ameliorative program at any time. 

These obstacles to the recognition of disability-related supports can be seen in Ball v. Ontario (Community and Social Services), a challenge to the Ontario government’s “special diet allowance”.[76]  As part of Ontario Works and Ontario Disability Support Program benefits, individuals with certain types of disabilities who have specific dietary needs are provided with a pre-defined financial supplement intended to offset some of the expense of these dietary needs.  Before the Human Rights Tribunal of Ontario, the applicants argued that the special diet allowance discriminated against some individuals with disabilities whose dietary needs are not funded or are inadequately funded through the special diet allowance.  In response, the provincial government argued that the program could not be discriminatory, as it is a special program designed to assist persons who are disadvantaged because of disability.[77] 

The Tribunal rejected the government’s claim, finding that the protection provided for ameliorative programs only “addresses challenges from those whose needs do not fall within the purpose or underlying rationale of the program.”[78]  The Tribunal found that the program’s underlying rationale was “… to assist in alleviating the disadvantage of persons with disabilities and to support substantive equality by funding certain additional dietary costs that result from disability.”[79]  Therefore, if a claimant was able to demonstrate that their disability required a special diet with higher costs and the program did not provide funding or provided inadequate funding for the additional costs, that would be sufficient to establish that the program discriminated against him or her on the basis of disability.[80]  The Tribunal found that each of the three claimants in the case before it established that their special diet needs fell within the underlying rationale of the program and that they were not provided with funding for the additional costs.  Thus, the Tribunal held that the denial of these claimants’ funding constituted disability-discrimination and could not be defended on the basis that the special diet program was ameliorative.  However, following the release of the Tribunal’s decision, the Ontario government announced its plan to cut the special diet allowance entirely.[81]  The obstacles to seeking disability-related supports that are part of an ameliorative program are especially important to bear in mind because, as discussed below, claimants have been more successful in seeking supports where their claims were framed as a gap in the law.

 

E. Limits to Substantive Remedies Ordered


In the rare case where those seeking to enforce a right to a disability-related support have been successful, the orders made by courts reveal the substantive limits to judicial recognition of rights to disability-related supports.  In other words, even where successful, claimants are not necessarily given the remedy sought or a remedy that will necessarily end the substantive inequality.  For example, in Eldridge v. British Columbia (Attorney General) [Eldridge], the Court found that the failure to provide sign language interpretation to deaf patients seeking hospital services violated equality rights.  However, it was left to government to determine when sign language interpreters are necessary for deaf patients to communicate effectively with physicians.[82]  Similarly, in G.(J.), where the Court found that the failure to provide an unsophisticated, impecunious parent with state-funded counsel violated her right to security of the person, the Court did not order the government to rectify its legal aid policy to provide all impecunious litigants with state-funded counsel for custody proceedings.  Instead, the Court emphasized the vested discretion in trial judges to order state-funded counsel on a case-by case basis and provided factors for trial judges to consider in determining whether such funding was required to ensure the fairness of a custody hearing.[83] 

Arguably, courts may be justified in fashioning such remedies on the basis that they should not intrude “into the legislative sphere beyond what is necessary.”[84] Nevertheless, the limits to substantive remedies that will be ordered by courts pose a significant obstacle to those seeking disability-related supports.  While claimants may be granted a remedy that rectifies their own situation, these decisions do not alter the provision of supports on a more widespread basis.

 

 

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