A woman with Crohn's disease accused the programs of disadvantaging workers with disabilities
Two COVID-19 financial assistance programs violated a woman’s rights under the Charter of Rights and Freedoms because they didn’t allow her to use disability benefit payments to meet an income eligibility threshold, the Ontario Court of Appeal ruled Tuesday.
The court added, however, that this breach was justified because the programs were emergency measures rolled out to make “temporary income support available, quickly and efficiently, to the millions of workers affected by the pandemic.”
This priority “outweighed the negative financial impact for those unable to meet the income threshold,” the court said.
Justice Lorne Sossin authored the decision. Justices Patrick Monahan and Lene Madsen concurred.
During the COVID-19 pandemic, the federal government rolled out a series of emergency programs in response to a sudden surge in employment insurance benefit claims. One of these programs, the Canada Emergency Response Benefit (CERB), was created for workers who would not have been eligible for employment insurance under ordinary circumstances.
The government launched the Canadian Recovery Benefit (CRB) to replace the CERB when the latter expired.
To qualify for the CERB and CRB, applicants must have earned at least $5,000 from specific sources of income in the previous 12 months or in 2019. Canada Pension Plan disability benefits were not an eligible source of income.
Valerie Jacob challenged in court the programs’ $5,000 income eligibility threshold as well as their exclusion of CPP-D benefits from the list of income sources that counted towards the threshold. She alleged these provisions violated s. 15 (1) of the Charter, which prohibits discrimination based on race, origin, colour, religion, sex, age, or disability.
Jacob lives with Crohn’s disease and is only able to work part-time. When her symptoms forced her to leave two jobs, she applied for and began receiving CPP-D benefits.
The judge who initially reviewed Jacob’s application found that because there could be a wide variety of reasons individuals failed to meet the $5,000 income threshold for the CERB and CRB benefits, the threshold did not distinguish her from workers who did not have disabilities. The judge also noted that other workers with disabilities were able to meet the income threshold for the benefit.
The court further found that the threshold did not discriminate against workers with disabilities, partly because the programs equally rejected non-disabled workers who also failed to meet the $5,000 income requirement.
Sossin disagreed with the lower court. He wrote that the $5,000 income threshold, along with the rule that CPP-D benefits did qualify as eligible income, “made it substantially more difficult for workers with a disability, who were active in the labour market, to replace lost employment income during the pandemic through the CERB and CRB programs.”
The programs, therefore, exacerbated the disadvantages workers with disabilities already faced, Sossin said.
Because the purpose of the CERB and CRB programs was to provide an easy way to provide emergency benefits, it satisfies the “pressing and substantial” criteria under s. 1 of the Charter, the court said.
The court said it could not conclude that the programs “failed to minimally impair Ms. Jacob’s rights,” given the deference that courts must give to the legislature, which enacted the programs, when it comes to s. 1 analyses involving complex social and policy issues.
However, the court said the benefits of the programs’ discrimination breaches outweighed their negative impact.
Sujit Choudhry of Hāki Chambers Global, who represented Jacob, noted Tuesday’s decision referenced a case called Eldridge, which involved patients who all lacked access to sign language interpreters. However, this lack of access disproportionately impacted those patients who had hearing loss and needed interpreters to communicate with healthcare providers.
“This case takes the Eldridge principle a huge leap forward because it applies not just to the administration of public programs, but to the design of those programs in legislation,” Choudhry told Law Times. “It basically decides that when legislatures create public policy that are neutral on their face, if disabled persons can’t benefit equally from those programs because of their disability, they have the right to be accommodated in the very design of those programs.
“It’s well established that there is something called the duty to accommodate in Canadian law,” Choudhry adds. “This case clarifies the duty to accommodate applies to parliament and legislatures when they enact legislation that creates public programs.”
Counsel for the Attorney General of Canada did not respond to a request for comment.