A-373-97
Allan Granovsky (Applicant)
v.
Minister of Employment and Immigration (Respondent)
Indexed as: Granovskyv. Canada (Minister of Employment and Immigration) (C.A.)
Court of Appeal, Isaac C.J., Stone and McDonald JJ.A."Winnipeg, December 16, 1997; Ottawa, March 10, 1998.
Pensions — Recency of contributions requirements for disability benefits in Canada Pension Plan, s. 44 creating distinction, in its effect, between disabled and able-bodied persons — Although in violation of Charter, s. 15, justified under Charter, s. 1.
Constitutional law — Charter of Rights — Equality rights — Adverse effect discrimination — Eligibility requirements for disability benefits in Canada Pension Plan, s. 44 violating Charter, s. 15 — However, requirements justified under Charter, s. 1.
Constitutional law — Charter of Rights — Limitation clause — Eligibility requirements for disability benefits in Canada Pension Plan, s. 44 in violation of Charter, s. 15 — However, requirements reasonable and demonstrably justified in free and democratic society — Given social, economic and fiscal considerations involved, government has made reasonable attempt to calculate and allocate disability benefit in most reasonable manner.
The Review Tribunal dismissed the applicant's appeal from the Minister's denial of a permanent disability pension under the Canada Pension Plan, on the ground that he did not meet the Plan's section 44 minimum contributory requirements (an applicant must have made contributions for either five of the last ten years or two of the last three years included either wholly or partly within his contributory period). The Review Tribunal also found that the objective medical evidence on file did not support a finding that the applicant's disability was severe and prolonged. The applicant appealed the Review Tribunal's decision to the Pension Appeals Board on the ground that the "recency of contributions" requirement of the Act discriminated against persons suffering from a disability contrary to subsection 15(1) of the Charter by failing to exclude periods during which such persons were incapable of making contributions by reason of disability that is likely to be for a definite period. The applicant argued that the recency of contributions requirement violated subsection 15(1) of the Charter because it denied disabled persons the benefit of participating in and taking advantage of their contributions to the Plan. The applicant submitted that this requirement had a differential impact on persons with disabilities, because it imposed a burden on them to which able-bodied persons were not subject. The appeal was dismissed, the Board holding that the legislation in question was not contrary to the Charter.
Held (McDonald J.A. dissenting, concurring in the result): the appeal should be dismissed.
Per Stone J.A.: The application of subsection 15(1) of the Charter must be reviewed in light of the Supreme Court of Canada decision in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 and the Federal Court of Appeal decision in Xinos v. Canada (Attorney General), [1997] F.C.J. No. 319 (C.A.) (QL).
The eligibility requirements were disriminatory in their effect. While neutral on its face, the recency of contributions criterion in subsection 44(1) created a distinction, in its effect, between disabled and able-bodied persons. The recency of contributions requirement failed to take into account the fact that disabled persons may not be able to make contributions for the minimum qualifying period in subsection 44(1), because they were physically unable to work. Disabled persons were thereby inhibited from participating fully in the Plan by reason of their disability.
Thus, the law imposed an unequal burden on disabled persons which was directly related to their disability (an enumerated ground in subsection 15(1)) and for which the Act made no specific accommodation. Furthermore, disability was not a relevant characteristic to the functional value underlying the Act, which was to provide income replacement to those who suffer from a severe and prolonged disability.
However, the eligibility requirements in the Canada Pension Plan were justified pursuant to section 1 of the Charter. They were pressing and substantial and, the means chosen to attain this objective was reasonable and demonstrably justified in a free and democratic society. The generosity of the Canada Pension Plan in covering persons who last belonged to the labour force for up to five years prior to the disability, necessitated controls for insuring that the disability did occur within that time period and that the benefits to be paid were subject to certain limits. The disability benefit program under the Canada Pension Plan was part of a complex overall federal-provincial system of income support which cut across a variety of programs and initiatives. The structure and financial integrity of the Plan was such that before it could be altered, any changes must be negotiated with the provinces. The legislation stipulated that major changes, including changes in the benefit formulas such as that proposed by the applicant, could only be enacted with the consent of two-thirds of the provinces having two-thirds of the population of Canada. Thus 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. Although the Canada Pension Plan did infringe the rights protected by subsection 15(1) of the Charter, the recency of contributions requirement was a reasonable limit that was demonstrably justified in a free and democratic society.
Per McDonald J.A. (dissenting, concurring in the result): The contributory requirements for disability benefits contained in the Canada Pension Plan did not discriminate against partially disabled individuals and therefore did not violate subsection 15(1) of the Charter.
In analysing the effect of a law on the disabled, careful attention must be paid to the adverse effects a law of general application might have on the disabled. However, the Pension Appeal Board was not incorrect in holding that no discrimination had been made out by the applicant. The applicant has not satisfactorily established his argument that the contributory requirements draw a distinction between disabled individuals and, in this case, able-bodied individuals by imposing an extra burden on disabled individuals because they may be unable to work as a result of their disability. The eligibility criteria were imposed on all individuals equally. All have to meet the criteria established by the Plan in order to receive the disability benefit. Unemployed individuals as well as young people also cannot work, through no fault of their own. The applicant has not established that the contributory requirements draw a distinction between disabled individuals generally and able-bodied employees. The criteria affect everyone in the same way.
Had the applicant argued that the Plan discriminated by distinguishing between the temporarily disabled and the permanently disabled by not providing temporarily disabled individuals with a similar drop out provision, the analysis on the subsection 15(1) issue might have been different. But the applicant did not make that argument.
The Plan could essentially be said to negatively affect almost everyone seeking to obtain permanent disability benefits by imposing eligibility criteria. A drop out provision was established for certain groups that the authors of the Plan felt would be most negatively impacted by the eligibility criteria. The argument that should have been made in an attempt to establish discrimination, therefore, was that the real discrimination stemmed from the fact that the legislature exercised its discretion by choosing to extend the drop out provisions to permanently disabled individuals and not to temporarily disabled persons. It was only at this point that a distinction was made between the disabled and others.
Although it was not necessary to address the section 1 issue, it did not appear that the government had satisfactorily discharged its onus of proving that it had impaired the applicant's right as little as possible. While the government has established that changes to the Plan would be difficult given the need for provincial consent, it has not established that the validity of the Plan would be hurt by adding a drop out provision. It has only established that it would be difficult to change the Plan.
statutes and regulations judicially considered
Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 42(2)(a) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 12), (b) (as am. by S.C. 1992, c. 1, s. 23), 44(1)(b)(i) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 13), (ii) (as am. idem), (iv) (as enacted by S.C. 1992, c. 2, s. 1), (2)(b) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 13).
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15(1).
Medical and Health Care Services Act, S.B.C. 1992, c. 6.
cases judicially considered
applied:
Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; (1997), 151 D.L.R. (4th) 577; 96 B.C.A.C. 81; 218 N.R. 161; Xinos v. Minister of Employment and Immigration, judgment dated 22/1/96, P.A.B., not reported; affd Xinos v. Canada (Attorney General), [1997] F.C.J. No. 319 (C.A.) (QL); leave to appeal to S.C.C. refused, [1997] S.C.C.A. No. 282; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; (1997), 31 O.R. (3d) 574; 142 D.L.R. (4th) 385; 207 N.R. 171; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d) 273; 25 C.C.E.L. 255; 10 C.H.R.R. D/5719; 36 C.R.R. 193; 91 N.R. 255; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985), 52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R. 89; 9 C.C.E.L. 185; 7 C.H.R.R. D/3102; 64 N.R. 161; 12 O.A.C. 241; Rodriguez v. British Columbia (Attorney Genral), [1993] 3 S.C.R. 519; (1993), 107 D.L.R. (4th) 342; [1993] 7 W.W.R. 641; 56 W.A.C. 1; 82 B.C.L.R. (2d) 273; 34 B.C.A.C. 1; 85 C.C.C. (3d) 15; 24 C.R. (4th) 281; 158 N.R. 1; The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R. (4th) 1; 30 C.C.C. (3d) 385; 87 CLLC 14,001; 55 C.R. (3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239; Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 124 D.L.R. (4th) 609; 95 CLLC 210-025; 29 C.R.R. (2d) 79; 182 N.R. 161; 12 R.F.L. (4th) 201; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167.
referred to:
Miron v. Trudel, [1995] 2 S.C.R. 418; (1995), 124 D.L.R. (4th) 693; 29 C.R.R. (2d) 189; [1995] I.L.R. 1-3185; 10 M.V.R. (3d) 151; 181 N.R. 253; 81 O.A.C. 253; 13 R.F.L. (4th) 1; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; (1995), 124 D.L.R. (4th) 449; 29 C.R.R. (2d) 1; [1995] 1 C.T.C. 382; 95 DTC 5273; 182 N.R. 1; 12 R.F.L. (4th) 1; Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566; (1996), 140 D.L.R. (4th) 1; [1997] 1 W.W.R. 1; 24 C.C.E.L. (2d) 167; 40 C.C.L.I. (2d) 1; [1997] I.L.R. 1-3432; 203 N.R. 131.
APPEAL from a Pension Appeals Board decision that the recency of contributions requirement for disability benefits in section 44 of the Canada Pension Plan did not violate subsection 15(1) of the Charter. Although there was an infringement of the rights protected by subsection 15(1), it was a reasonable limit that was demonstrably justified in a free and democratic society. Appeal dismissed.
counsel:
Bryan P. Schwartz and Ronald Schmalcel for applicant.
Cathy Doolan for respondent.
solicitors:
Chen & Schmalcel, Winnipeg, for applicant.
Legal Services, Human Resources Development Canada, Ottawa, for respondent.
The following are the reasons for judgment rendered in English by
Stone J.A.: I agree with the conclusion arrived at by McDonald J.A. but differ in my reasons for doing so.
The decision of the Pension Appeals Board in this matter, and this Court's decision in Xinos v. Canada (Attorney General), [1997] F.C.J. No. 319 (C.A.) (QL)1 were handed down before the Supreme Court of Canada rendered judgment in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. It was determined in Eldridge, supra, that failure to provide an effective sign language interpretation service for deaf persons when they receive medical services in the British Columbia health care system constituted adverse effect discrimination contrary to subsection 15(1) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. The Supreme Court in that case also commented upon the reach of its decision in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241. This Court in Xinos, supra, determined the provisions of the Canada Pension Plan, R.S.C., 1985, c. C-8 (the Act) that are in issue in this appeal did not offend subsection 15(1) of the Charter, and that the Pension Appeals Board had correctly determined that if an infringement did exist it had been justified under section 1 of the Charter. It seems to me that the application of subsection 15(1) of the Charter requires to be reviewed in the light of this most recent jurisprudence. In my view, while the decision in Eldridge, supra, impacts the question of discrimination contrary to subsection 15(1), it does not detract from what was stated by this Court in Xinos, supra, concerning section 1 with respect to the legislation here in question.
The parties agree that the standard of review applicable to a decision of the Pension Appeals Board, on the issue of the constitutionality of the Act, is correctness. Thus, in order for this Court to interfere with the Board's decision, it must find that the Board was wrong in concluding that the eligibility requirements for disability benefits do not violate subsection 15(1) of the Charter.
Before undertaking the subsection 15(1) analysis, a brief summary of the provisions of the Act which the applicant is challenging may be helpful. The eligibility requirements in relation to disability benefits are twofold: a claimant must be disabled and must have made contributions for not less than the minimum qualifying period, or two out of the last three years.2 I will refer to this second criterion throughout my analysis as the "recency of contributions" requirement. A person is disabled within the meaning of the Act if she or he has a severe and prolonged mental or physical disability.3 A disability is severe if the person is incapable regularly of pursuing any substantially gainful occupation, and it is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.4 A claimant will meet the minimum qualifying period if she or he has made contributions to the Plan in five of the last ten years.
As I understand it, the crux of the applicant's argument is that the recency of contributions requirement violates subsection 15(1) of the Charter because it denies disabled persons the benefit of participating in and taking advantage of their contributions to the Plan. The applicant submits that this requirement has a differential impact on persons with disabilities, because it imposes a burden on them to which able-bodied persons are not subject.
The approach to examining subsection 15(1) of the Charter is well entrenched in the case law. La Forest J. stated in the very recent case of Eldridge, supra, at page 669, that while the members of the Supreme Court of Canada have differed in their approaches to subsection 15(1), there is a broad consensus on the general analytical framework. The applicant has the burden of making a prima facie case that discrimination exists. First, he must establish that, because the Act draws a distinction between him and others, he has been denied "equal protection" or "equal benefit" of the law. See Eldridge , supra, at page 670. Second, he must demonstrate that the denial amounts to discrimination on the basis of an enumerated or analogous ground.
With respect to the first part of the subsection 15(1) analysis, the applicant in the present case is not arguing that the Act draws a direct distinction between disabled and able-bodied persons. Rather, he submits that the eligibility requirements are discriminatory in their effect. The case law confirms that subsection 15(1) is aimed at protecting against this type of discrimination. As the Supreme Court stated in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 164, while every difference in treatment between persons will not necessarily result in discrimination, identical treatment under the law may very well create serious inequality. Adverse effect discrimination occurs where a law which is neutral on its face and applies equally to all persons is nonetheless discriminatory in its effect on an individual or group, based on a prohibited ground. In Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536, at page 551, McIntyre J. stated that adverse effect discrimination, here in the context of employment, arises:
. . . where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. [Emphasis added.]
Lamer C.J. endorsed these principles in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at page 549, and made the following comments which are significant to the present case:
Even in imposing generally applicable provisions, the government must take into account differences which in fact exist between individuals and so far as possible ensure that the provisions adopted will not have a greater impact on certain classes of persons due to irrelevant personal characteristics than on the public as a whole.
Similarly, La Forest J. stated in Eldridge, supra, at page 672, that it is often the legislature's failure to take into account the adverse effects of a law of general application which results in discrimination. He emphasized that an adverse effects analysis is particularly pertinent to equality cases involving disabled persons. In this regard, the Supreme Court in Eaton, supra, maintained, at page 273, that a subsection 15(1) inquiry which uses "the attribution of stereotypical characteristics" reasoning is inappropriate. Rather, discrimination on the basis of disability should be conceptualized
. . . 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.
In this sense, discrimination can result from the government's failure to take positive action to ensure that disadvantaged groups are able to benefit equally from services which are offered to the general public (Eldridge, supra, at pages 681-682). It is in this context that the concept of reasonable accommodation enters into the analysis. The Supreme Court stated in Eldridge, supra, at page 682, however, that the principle of reasonable accommodation "should not be employed to restrict the ambit of s. 15(1)". Rather, this principle is akin to the "reasonable limits" portion of the section 1 inquiry, and is best left to the section 1 justification stage.
Applying these principles to the present case, in my respectful view the Pension Appeals Board erred in concluding that the recency of contributions requirement in the Act does not violate subsection 15(1) of the Charter. I note first that while the Board recognized, at page 5 of the majority reasons, that the applicant's challenge to the Act was based on adverse effect discrimination, in the end the Board seemed to analyse the issue on the basis of direct discrimination. For example, the Board concluded, at page 18 of the majority reasons, that the eligibility criteria under the Act "are the same for all groups", that they "are not based on stereotypical views of disabled individuals" and that they are not "designed to exclude disabled from participation." According to the jurisprudence, the fact that the eligibility requirements on their face apply to all groups equally has no bearing on an adverse effects analysis. Furthermore, whether the Act is "designed" or intended to exclude disabled persons is irrelevant to subsection 15(1).
In my opinion, there is a prima facie case that the recency of contributions requirement for disability benefits is contrary to subsection 15(1). 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. What the recency of contributions requirement fails to take into account is that disabled persons may not be able to make contributions for the minimum qualifying period in subsection 44(1), because they are physically unable to work. Disabled persons are thereby inhibited from participating fully in the Plan by reason of their disability.
Thus, the law imposes an unequal burden on disabled persons which is directly related to their disability (an enumerated ground in subsection 15(1)) and for which the Act makes no specific accommodation. To borrow Justice Sopinka's words in Eaton, supra, at page 273, the requirement that contributions be recent ignores the applicant's disability and forces him to "sink or swim within the mainstream environment". Furthermore, in my view disability is not a relevant characteristic to the functional value underlying the Act, which is to provide income replacement to those who suffer from a severe and prolonged disability.
The second issue is whether the eligibility requirements in the Canada Pension Plan can be justified pursuant to section 1 of the Charter. The respondent accepts that the onus of justifying the limitation rests on her. To establish that the limitation is reasonable and demonstrably justified in a free and democratic society, the respondent must first demonstrate that the Act's eligibility requirements for disability benefits is pressing and substantial and, secondly, that the means chosen to attain this objective is reasonable and demonstrably justifiable in a free and democratic society: The Queen v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Egan v. Canada, [1995] 2 S.C.R. 513.
Also to be kept in mind is what was stated by Wilson J. in Edwards Books, supra, at page 806:
In the absence of unreasonableness or discrimination, courts are simply not in a position to substitute their judgment for that of the Legislature.
This same general view is reflected in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, per Dickson C.J., at page 990:
If the legislature has made a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves weighing conflicting scientific evidence and allocating scarce resources on this basis, it is not for the court to second guess. That would only be to substitute one estimate for another.
I agree with the respondent's contention that there is a rational basis for the imposition of the "recency requirements" in the eligibility criteria for the payment of disability benefits. In order to replace earnings that are foregone to a household due to the disability of the wage earner, those earnings must have actually existed. Contributions must be relatively recent and continuous for protection from a loss of earnings due to disability. In this way the right is impaired as little as possible. A contributor may qualify for a disability benefit up to five years prior to his or her departure from the labour force. As noted by the Board, this five-year period could cover periods of temporary disability. The generosity of the Canada Pension Plan in covering persons who last belonged to the labour force for up to five years prior to the disability, necessitates controls for insuring that the disability did occur within that time period and that the benefits to be paid are subject to certain limits. Moreover, the Plan contains a special provision in subparagraph 44(1)(b)(iv) [as enacted by S.C. 1992, c. 2, s. 1] to assist individuals, like the applicant, who do not meet the recency requirements for a disability benefit because they applied late, for whatever reason.
I here adopt what was stated by this Court in Xinos, supra, at paragraph 4:
If the correct interpretation of recent Supreme Court jurisprudence is that, in such circumstances, discrimination must nevertheless be found and then justified, if at all, under section 1 of the Charter, we are unable to say that the Board erred in finding such a justification under section 1. The objective of maintaining a viable income replacement program is legitimate and there was a basis upon which the Board could conclude that the eligibility requirements in question are reasonably related to that objective. We assume that the Board, like this Court, was conscious of the frequent observation in the Supreme Court of Canada that courts and tribunals should not be quick to second-guess the judgments of Parliament (and in this case, the majority of provincial governments) as to the proper criteria for various benefits under social programs.
The disability benefit program under the Canada Pension Plan, it must be noted, is part of a complex overall federal-provincial system of income support which cuts across a variety of programs and initiatives. The structure and financial integrity of the Canada Pension Plan is such that before it can be altered, any changes must be negotiated with the provinces. The legislation stipulates that major changes, including changes in the benefit formulas such as that proposed by the applicant, can only be enacted if they are consented to by two-thirds of the provinces having two-thirds of the population of Canada.
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. I therefore conclude that although the Canada Pension Plan does infringe the rights protected by subsection 15(1) of the Charter, it is a reasonable limit that is demonstrably justified in a free and democratic society.
I would therefore dismiss this application.
Isaac C.J.: I agree.
* * *
The following are the reasons for judgment rendered in English by
McDonald J.A. (dissenting, concurring in the result): This is an application for judicial review of a decision of the Pension Appeals Board dated February 27, 1997, dismissing an appeal by the applicant. The central issue in this application is whether the contributory requirements for disability benefits contained in the Canada Pension Plan (the Plan) discriminate against partially disabled individuals contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms (the Charter).
FACTS
By application received by the respondent on September 15, 1993, Mr. Granovsky (the applicant) applied for a disability pension under the Plan. He was denied disability benefits on the ground that he did not meet the Plan's minimum contributory requirements. Pursuant to paragraph 44(2)(b) [as am. by R.S.C., (1985) (2nd Supp.), c. 30, s. 13]5 of the Plan, the contributory period of a contributor commences on the first day of January 1966, or when the contributor reaches eighteen years of age, whichever is later, and ends with the month in which the contributor is determined to have become disabled. Paragraph 42(2)(b) [as am. by S.C. 1992, c. 1, s. 23]6 of the Plan requires that a person be deemed to be disabled no earlier than 15 months before an application for a disability pension is received. The applicant's contributory period, therefore, started in June 1966 and could end no earlier than June 1992. Section 447 of the Plan provides that in order to satisfy the minimum contributory requirements, the applicant would have to have made contributions for either five of the last ten years or two of the last three years included either wholly or partly within his contributory period.
The relevant background facts before this Court are as follows: On May 27, 1980, the applicant was injured in a workplace accident. He was 32 years old at the time of the accident. He applied for and received Total Temporary Disability Benefits and Rehabilitation Allowance under the Manitoba's Worker's Compensation Plan. In 1982 he returned to work for a period of time. On January 24, 1983, he was awarded a 15% permanent partial disability. On January 24, 1985, the Board found that the applicant was capable of resuming work. On June 27, 1985, the applicant accepted a lump sum payment of $40,449.12 for the 15% permanent disability he had been awarded.
The applicant appealed the Minister's decision to deny him a permanent disability pension. The Review Tribunal considered the appeal under the provisions of subparagraph 44(1)(b)(iv) of the Plan. Paragraph 44(1)(b) provides:
44. (1) . . .
(b) a disability pension shall be paid to a contributor who has not reached sixty-five years of age, to whom no retirement pension is payable, 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,
(iii) where there are only two 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;
The Review Tribunal found that the applicant's work record did not contain the requisite five years of valid contributions necessary for the last ten years of his contributory period. It held that based on valid contributions made in 1975, 1976, 1977, 1979 and 1982, the applicant last met the contributory requirements pursuant to subparagraph 44(1)(b)(iv) of the Plan, in September 1984 (this being five of the last ten years in the applicant's contributory period). The Review Tribunal also found that he did not have valid contributions during the last three years of his contributory period. Under subparagraph 44(1)(b)(iv) of the Plan, a person can qualify for disability benefits under the Act if he or she was disabled when they last met the minimum contributory requirements and continues to be disabled until the date of his or her application. Subsection 42(2) of the Act sets out that in order to be deemed disabled the disability must be both severe and prolonged. A disability is severe if, as a result of the disability, a person is incapable of regularly pursuing any substantially gainful occupation. A disability is prolonged only if it is determined that the disability is likely to be long continued and of indefinite duration or is likely to result in death. The Review Tribunal found that the objective medical evidence on file did not support a finding that the applicant's disability was severe and prolonged in September 1984.
The applicant appealed the Review Tribunal's decision to the Pension Appeals Board on the ground that the contributory requirements of the Act discriminated against persons suffering from a disability contrary to subsection 15(1) of the Charter by failing to exclude periods during which such persons were incapable of making contributions by reason of a disability that is likely to be for a definite period. The Board found that the contributory requirements of the Plan did not violate subsection 15(1) of the Charter. The central issue here, therefore, is whether the Board erred in holding that the legislation in question is not contrary to subsection 15(1) of the Charter.
Applicant's Submissions on Subsection 15(1) of the Charter
The thrust of the applicant's submissions on the subsection 15(1) Charter analysis is that the Plan violates subsection 15(1) of the Charter because "the practical effect of the Plan denies persons who are disabled from equal benefit of the law." The applicant claims that, in effect, persons who are unable to make contributions because of their disability have lost the benefit of having established eligibility for permanent disability benefits. Indeed, quoting directly from the applicant's supplementary application record, the applicant argues that:
. . . the CPP scheme discriminates against persons who are temporarily disabled. They are unfairly treated as though they were on a level playing field with healthy persons whose only risk is that of being involuntarily employed. Temporarily disabled persons are subjected to that same risk but, in addition, go through a period in which they are incapable of working, even if it is available. Discrimination exists because the Plan treats a person who had no chance to earn income, because of disability, in exactly the same way as someone who was able to work.
The applicant, therefore, seeks to exclude (or have dropped out) the years in which he was totally temporarily disabled from his contributory period for determining his required contribution. The applicant states that by granting the drop out this Court will in no way be giving temporarily disabled individuals a permanent disability pension. Indeed, the applicant asserts that the drop out only assists a person who is temporarily disabled if that person later becomes permanently disabled. As a drop out period already exists for those who have been deemed to have a permanent disability (one that is long continued and of indefinite duration, or likely to result in death) it should be included for temporarily disabled individuals as well.
The applicant further claims that Parliament cannot satisfy its obligation to accommodate disabled persons by preserving the eligibility of a small number of disabled persons during their disability.
Respondent's Submissions on Subsection 15(1) of the Charter
The respondent claims that the purpose of the disability benefit is to replace lost employment income which had been coming into the household prior to the contributor leaving the workplace due to severe and prolonged disability. The benefit provides long-term assistance to individuals who, because their disability is so severe, have lost the functional capacity to work at any substantially gainful employment. The respondent's main contention is that Parliament does not infringe the meaning of equality when it acts to treat different persons differently on the basis of the needs and circumstances of each group. The respondent stresses that as a result of the Supreme Court of Canada's section 15 trilogy,8 whether or not a characteristic is based on stereotypical assumptions aids a Court in concluding that there is an absence of discrimination. As the contributory requirements are designed to ensure that those who are suffering from a severe and prolonged disability receive benefits, the contributory requirements are not based on stereotypes or stereotypical assumptions that hurt disabled individuals' self-worth.
On the issue of a drop out provision for those who are temporarily disabled, the respondent contends that the absence of a drop out provision for individuals in the applicant's situation does not discriminate against the temporarily disabled because they are not disadvantaged compared to other disability applicants nor does the absence of a drop out provision reinforce any stereotypes or prejudices which damage self-worth or promote the view that the applicant or the group he belongs to is less worthy than others.
ANALYSIS
Andrews v. Law Society of British Columbia9 established that in order to prove a violation of subsection 15(1) of the Charter one must demonstrate that a law distinguishes or classifies on the basis of a prohibited ground and that the law is discriminatory. The Supreme Court of Canada's trilogy,10 however, has shown that there are at least three different approaches to the subsection 15(1) Charter analysis. Fortunately, Eaton v. Brant County Board of Education,11 one of the more recent Supreme Court of Canada cases on the issue of disability discrimination, has attempted to clarify the approach to be taken to subsection 15(1) when dealing with disability claims. In that case, Sopinka J. wrote:
While there has not been unanimity in the judgments of the Court with respect to all the principles relating to the application of s. 15 of the Charter, I believe that the issue in this case can be resolved on the basis of principles in respect of which there is no general disagreement. There is general agreement that before a violation of s. 15 can be found, the claimant must establish that the impugned provision creates a distinction on a prohibited or analogous ground which withholds an advantage or benefit from, or imposes a disadvantage or burden on, the claimant.12
Eldridge v. British Columbia (Attorney General)13 affirms the approach taken by Sopinka J. in Eaton for disability discrimination claims. At pages 669-670 La Forest J. (speaking for the Court) states:
With this context in mind, I turn to the specific elements of the appellant's s. 15(1) claim. While this Court has not adopted a uniform approach to s. 15(1), there is broad agreement on the general analytic framework; see Eaton v. Board of Education, [1997] 1 S.C.R. 241; . . . A person claiming a violation of s. 15(1) must first establish that, because of a distinction drawn between the claimant and others, the claimant has been denied `equal protection' or `equal benefit' of the law. Secondly, the claimant must show that the denial constitutes discrimination on the basis of one of the enumerated grounds listed in s. 15(1) or one analogous thereto. Before concluding that a distinction is discriminatory, some members of this Court have held that it must be shown to be based on an irrelevant personal characteristic; see Miron, supra (per Gonthier J.), and Egan, supra (per La Forest J.) Under this view, s. 15(1) will not be infringed unless the distinguished personal characteristic is irrelevant to the functional values underlying the law, provided that those values are not themselves discriminatory. Others have suggested that relevance is only one factor to be considered in determining whether a distinction based on an enumerated or analogous ground is discriminatory; see Miron, supra (per McLachlin J.) and Thibaudeau v. Canada, [1995] 2 S.C.R. 627 (per Cory and Iacobucci JJ.).
In my view, in the present case the same result is reached regardless of which of these approaches is applied; for similar reasoning, see Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; (per Iacobucci J., for the Court). There is no question that the distinction here is based on a personal characteristic that is irrelevant to the functional values underlying the health care system. Those values consist of the promotion of health and the prevention and treatment of illness and disease, and the realization of those values through the vehicle of a publicly funded health care system. There could be no personal characteristic less relevant to those values than an individual's physical disability.
On the issue of whether the discrimination needs to be based on presumed or stereotypical assumptions, Sopinka J. in Eaton held that this was not usually of relevance in the context of a disability claim:
The principle object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society's benefits and to accommodate them . . . . 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.14
This was reiterated by La Forest J. in Eldridge when he stated at page 671 of his decision that, "A legal distinction need not be motivated by a desire to disadvantage an individual or group in order to violate s. 15(1). It is sufficient if the effect of the legislation is to deny someone the equal protection or benefit of the law."
Thus, the respondent's contention that because the contribution requirements are not based on stereotypical assumptions or stereotypes which are damaging to individual self-worth or promote the view that the affected individual or group is less worthy than others, they are not discriminatory, is not relevant to finding discrimination.
Indeed, I read the Eaton and Eldridge cases as stating that in order to establish disadvantage in a disability claim, the applicant must first prove that the contributory requirements under the Canada Pension Plan draw a distinction on the basis of disability and, second, that this distinction has the effect of imposing burdens, obligations or disadvantages on disabled individuals not imposed on others, or withholds from disabled individuals or limits their access to opportunities and advantages available to other members of society. In analysing the effect of a law on the disabled, careful attention must be paid to the adverse effects a law of general application might have on the disabled.
Having examined the decision of the Pension Appeals Board, I am unable to find that it was incorrect in holding that no discrimination has been made out by the applicant. In my opinion, the applicant has not satisfactorily made out its argument that the contributory requirements draw a distinction between disabled individuals and others. While it is true that in order to establish discrimination one need not show that all disabled individuals are mistreated equally, nonetheless, it must still be shown that a distinction has been drawn between a disabled individual or group of disabled individuals and others. The applicant argues that the legislation draws a distinction between able-bodied individuals and disabled individuals generally in that the criteria impose an extra burden on disabled individuals because they may be unable to work as a result of their disability.
As the Board found, this argument is subject to criticism. The eligibility criteria are imposed on all individuals equally. All have to meet the criteria established by the Plan in order to receive the disability benefit. There is, therefore, no extra burden imposed upon some that is not imposed upon others. Nor is there any distinction being drawn between disabled individuals and others. The applicant attempted to argue that there is an extra burden imposed upon the temporarily disabled not imposed upon others because, through no fault of their own, temporarily disabled individuals are unable to work and therefore meet the eligibility criteria. Yet, unemployed individuals as well as young people also can not work"through no fault of their own. While it is true that unemployed individuals are not specifically protected under subsection 15(1) of the Charter, and disabled individuals are, nonetheless, the applicant has not established that the contributory requirements draw a distinction between disabled individuals generally and able-bodied employees. The criteria affect everyone in the same way. One might argue that in having to meet the criteria all individuals are adversely effected (and this includes the permanently disabled), yet, this does not satisfy the requirement in the subsection 15(1) jurisprudence to the effect that a distinction must be shown to have been drawn by the legislation in question between a disabled individual and others.
I note that in Eldridge, a legal distinction was established by showing that the service in question failed to provide for sign language interpretation for deaf persons. The discrimination in that case resulted from the Medical Commission's discretion to determine whether a service is a benefit under the Medical and Health Services Act [S.B.C. 1992, c. 6] and therefore covered. It concluded that sign language interpretation was not covered. While the medical care system applied to all individuals, deaf persons were not able to benefit equally because sign language interpretation was not provided. The applicant in the case at bar attempts to make a similar argument stating that there is a distinction between disabled individuals and non-disabled individuals because the plan treats the disabled the same as able-bodied individuals.
However, what the applicant really seeks in bringing this application is to have the drop out provisions that apply to those who are in receipt of disability benefits under the Plan and to parents caring for children under the age of seven apply to him. In essence, therefore, the applicant's argument is that a distinction has been drawn between temporarily and permanently disabled individuals under the Act because the benefit of the drop out provisions (or the discretionary decision to extend the benefit provisions) does not extend to temporarily disabled applicants. As the Board points out at page 15 of its reasons:
At some level the argument of the Appellant is that the Plan discriminates against the temporarily disabled because it does not give them the `drop-out' advantages given to those who are in receipt of disability benefits under the Plan and to parents caring for children under age 7.
The Board rejected this argument stating:
. . . in my view, such an argument cannot succeed as it relates to disability recipients, the `drop-out' provision does not relieve the applicant of having to meet the contributory requirements for a disability pension. It does benefit those who have met the requirements and have received a Canada Pension Plan disability pension. If that individual subsequently returns to work and then applies again for Canada Pension Plan disability benefits, the `drop-out' provision affects his or her contributory period at that time . . . . There is then no difference between the prerequisites for CPP disability benefits demanded of those who become disabled within the meaning of the Plan and those who are temporarily disabled.
When asked if the applicant was making the argument before this Court that the legislation draws a distinction between the permanently disabled and the temporarily disabled in that those who are temporary disabled and then go back to work and become permanently disabled are not allowed to have the period in which they were temporarily disabled dropped out or excluded from their contribution requirements, the applicant informed this Court that he was not and would not be making this argument. There is, therefore, no point in addressing the merits of this argument and whether the analysis contained in the Supreme Court of Canada's decision in Battleford and District Co-operative Ltd. v. Gibbs15 would apply to the facts of this case.
Because the applicant did not wish to argue that the legislation makes a distinction between temporarily disabled and permanently disabled individuals, I am unable to find, as the Pension Appeals Board in Xinos v. Minister of Employment and Immigration,16 was unable to find when dealing with the same legislation, that there is a burden, obligation or disadvantage imposed on disabled individuals not imposed on others. Nor am I able to conclude that disabled individuals are being denied equal benefit of the law. I would therefore follow the reasoning of Strayer J.A. of this Court in the Xinos case and hold that no discrimination has been made out. While I am sensitive to the fact that the argument before this Court is based on adverse effects discrimination, nonetheless, the Supreme Court of Canada jurisprudence establishes that a distinction must still be shown to have been drawn between disabled individuals and others. Had the applicant argued that the plan discriminates by distinguishing between the temporarily disabled and permanently disabled by not providing temporarily disabled individuals with a similar drop out provision, my analysis on the subsection 15(1) issue might have been different.
To reiterate, in my opinion, the Plan can essentially be said to negatively affect almost everyone seeking to obtain permanent disability benefits by imposing eligibility criteria. The authors of the Plan recognized this fact and, at their discretion, established a drop out provision for certain groups that it felt would be most negatively impacted by the eligibility criteria. The argument that should be made to attempt to establish discrimination, therefore, is that what is really discriminatory is the fact that the legislator exercised its discretion by choosing to extend the drop out provisions to permanently disabled individuals and not to temporarily disabled individuals. This is because it is only at this point that a distinction between the disabled and others is made. The applicant, however, expressly refused to argue this point.
Based on the foregoing it is not necessary to address the section 1 issue. However, I would point out that I am not satisfied that the government has discharged its onus of proving that it has impaired the applicant's right as little as possible. While the government has established that changes to the Plan would be difficult given the need for provincial consent, it has not established that the viability of the Plan would be hurt by adding a drop out provision. It has only established it would be difficult to change the Plan.
Based on the arguments presented before this Court and the written submissions of both counsel, I would dismiss the application for judicial review of the decision of the Pension Appeals Board dismissing an appeal by the applicant. I am unable to conclude that the Board was incorrect in finding that discrimination has not been made out.
1 Leave to appeal refused September 25, 1997, [1997] S.C.C.A. No. 282.
2 S. 44(1)(b)(i) [as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 13] and (ii) [as am. idem].
3 S. 42(2)(a) [as am. idem, s. 12].
4 S. 42(2)(a)(i) [as am. idem] and (ii) [as am. idem].
5 S. 44(2)(b) sets out that:
44. (2) . . .
(b) the contributory period of a contributor shall be the period
(i) commencing January 1, 1966 or when he reached eighteen 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)
6 S. 42(2) sets out:
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.
7 Specifically, s. 44(1)(b) states:
44. (1) . . .
(b) a disability pension shall be paid to a contributor who has not reached sixty-five years of age, to whom no retirement pension is payable, 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 wholly or partly within his contributory period,
(iii) where there are only two 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;
8 ;Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Thibaudeau v. Canada, [1995] 2 S.C.R. 627.
9 [1989] 1 S.C.R. 143.
10 Supra, note 8.
11 [1997] 1 S.C.R. 241 (hereinafter Eaton).
12 Ibid., at p. 270 (emphasis added).
13 [1997] 3 S.C.R. 624.
14 Supra, note 11, at pp. 272-273.
15 [1996] 3 S.C.R. 566.
16 Xinos v. Minister of Employment and Immigration, decision of the Pension Appeals Board, January 22, 1996, affd by the Federal Court of Appeal, A-212-96, March 19, 1997 [[1997] F.C.J. No. 319 (QL)].