Where can you go when government benefit programs discriminate against you?
The Government of Canada is responsible for a number of very important programs and social benefits that people rely on in order to get by, including Employment Insurance, the Canada Pension Plan and veterans benefits. In the past, people could take complaints about discrimination in these programs to the Canadian Human Rights Commission. In Canadian Human Rights Commission v. Canada, the Supreme Court of Canada considered a case involving the Indian Act to determine whether that is still possible.
Background on the Case
The case arises from a challenge to one of the ways that the Indian Act discriminates against Indigenous women and their children. The Indian Act is a very old piece of legislation that imposes rules on Indigenous peoples about who can be registered as an “Indian”. Although these status rules do not correspond to the ways in which Indigenous communities themselves determine membership, it is still important to many Indigenous people to have that status because of the benefits that flow from it. For example, those who are not registered cannot access government health, education, and child development programs that are tied to Indian status. Those who are not registered cannot pass on status to their descendants.
At one time, Indigenous women who married non-Indigenous men lost their status, as did their children. That rule has been taken out of the Indian Act, but some of the descendants of women who lost their status in this way continue to be disadvantaged and denied recognition as Indigenous persons.
Members of the Matson and Andrews families made a complaint to the Canadian Human Rights Commission, arguing that the government of Canada discriminated against them by denying their applications for registration in the Indian registry. The government fought their application every step of the way and was able to have their complaints thrown out based on arguments that the Commission did not have jurisdiction to hear complaints about legislation.
Why ISAC intervened
ISAC partnered with a number of other legal clinics to intervene at the Supreme Court: the Sudbury Community Legal Clinic, the Chinese and Southeast Asian Legal Clinic, the Community Legal Assistance Society (in British Columbia) and the HIV & AIDS Legal Clinic of Ontario.
They argued that if the Commission’s decision is upheld, it will have far reaching implications, beyond Indigenous communities. Like the Indian Act, federal income support programs like EI, CPP and veterans benefits are created by legislation. Hundreds of thousands of people in Canada rely on these programs to be able to survive. If the decision to throw out the Matson and Andrews complaints is upheld, it could mean that people receiving these critically important income supports would not be able to make complaints to the Canadian Human Rights Commission if they believe the legislation creating these programs includes rules that discriminate against them. Instead, they could be forced to bring Charter challenges through the courts, a much more expensive and difficult process, particularly for low-income and vulnerable people.
When government supports are denied for discriminatory reasons, the consequences for those living in poverty can be extremely grave.
The Supreme Court’s Decision
Regrettably, the Supreme Court decision upheld the Commission’s decision and found that it was reasonable. This put some limits on where human rights challenges to laws can be raised. However, it did not close the door on such challenges, which have played an important part in making sure social programs operate fairly. It is still possible that challenges to federal benefit programs will be considered discrimination in the provision of services, and can be heard by the Canadian Human Rights Tribunal.
To read the Supreme Court’s decision, click here.