ISAC intervened at the Ontario Court of Appeal in a legal challenge concerning workers living with severe disabilities and their exclusion from receiving pandemic benefits. To be considered a “worker”, claimants must have earned at least $5,000 from specified income sources (such as employment or self-employment) in the 12 months prior to the claim. Income from federal or provincial disability support benefits did not qualify as income.
Ms. Jacob challenged the $5,000 threshold, arguing that it discriminated against workers living with disabilities. She lives with a disability which means she is only able to work part-time, and she receives Canada Pension Plan Disability benefits. Because she was unable to work sufficient hours to earn the required $5,000 threshold, Ms. Jacob was ineligible to receive the Canada Emergency Response Benefit and the Canada Recovery Benefit.
Ms. Jacob brought an application challenging both the $5,000 income threshold as an all-or-nothing eligibility requirement, and the exclusion of CPP-D from the eligible income sources that counted toward this threshold. She asserted that these exclusions violated her right to equality under s. 15(1) of the Charter of Rights and Freedoms because they discriminated against her on the basis of her disability. The application judge dismissed her Charter application. Ms. Jacob appealed that decision to the Ontario Court of Appeal.
ISAC intervened at the Court of Appeal on the proper framework for a s. 15(1) analysis rooted in substantive equality. ISAC argued that such a framework must include two key principles:
- To establish discrimination, claimants do not have to prove that the benefits scheme was the only or major contributing factor to the negative impacts that the claimant experienced as a result of exclusion from that scheme; and
- Even if a benefit scheme does not impact all members of a Charter-protected group in the same way, it can still be discriminatory.
On September 3, 2024, the Court of Appeal released its judgment in which it agreed with our submissions and found the application judge made errors of law in its discrimination analysis. The Court concluded that the government had violated s. 15(1) of the Charter. However, the Court decided that the breach was justified as a reasonable limit under s. 1 of the Charter, due to the emergency nature of the pandemic.
This is an important development in the law about equality and government benefits. Historically, courts have been hesitant to say that a government benefits program discriminates against people in violation of section 15 of the Charter. Although the Court ultimately found that the discrimination in this case was justified, this case still may open the door to challenges to other benefits programs that may be discriminatory.
ISAC is grateful to Ewa Krajewska, Mannu Chowdhury, and Érik Arsenault for their excellent pro bono representation in this case, supported by ISAC Staff Lawyer Anu Bakshi.
See our submissions here.