But in a unanimous Sept. 3 decision in Jacob v. Canada (Attorney General), 2024 ONCA 648, Justices Lorne Sossin, Patrick Monahan and Lene Madsen agreed that the violation was saved by s. 1 of the Charter because of the pandemic emergency.
According to facts detailed in the decision, the appellant, Valerie Jacob, was forced to give up her art therapy practice and end her employment in a hospital records department in 2007 due to difficulties caused by Crohn’s disease and being immunocompromised. She successfully applied for Canada Pension Plan disability (CPP-D) benefits but continued working sporadically as she was able.
From September 2019 to December 2020, she earned $4,442.47 from temporary stints as a clerk at a Winners store and as a crossing guard.
When she applied for the Canada Emergency Response Benefit (CERB) and the Canada Recovery Benefit (CRB) during the pandemic, she was declared ineligible for not meeting the $5,000 income threshold. Rules under the program did not allow her to count her disability pension as income.
She subsequently filed a court application challenging both the income threshold and the exclusion of CPP-D as contrary to s. 15(1) of the Charter of Rights and Freedoms.
In a July 2023 decision in Jacob v. Attorney General of Canada, 2023 ONSC 2382, Superior Court Justice Grant R. Dow, acting as applications judge, found that the $5,000 income threshold did not differentiate Jacob from workers without disabilities who were also unable to meet the $5,000 earnings threshold. Workers with disabilities who met the income threshold were eligible for CERB, he concluded, adding that merely showing that a law impacts a protected group is insufficient under the s. 15 analysis.
But the Court of Appeal determined that the application judge’s analysis did not go far enough in applying the two-part, s. 15(1) analysis established in R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398.
In this case, the court noted, the test would require proof that the impugned eligibility requirements created a distinction based on enumerated or analogous grounds and that they imposed a burden or denied a benefit in a manner that had the effect of reinforcing, perpetuating or exacerbating a disadvantage.
The application judge’s analysis, the court ruled, “failed to consider what lies at the heart of an adverse effects s. 15(1) Charter claim: that the impact of a facially neutral provision could be felt disproportionately by an enumerated or analogous group, in this case, workers with disabilities who were active in the labour market,” wrote Justice Sossin for the panel.
“The application judge,” he added, “did not make a finding that such impact was absent in the context of CERB and the CRB; he appears simply not to have addressed this possibility at all.”
In reaching its decision, the court of appeal rejected arguments by the government that simply showing that workers with disabilities are more likely than workers without disabilities to earn less than $5,000 would not be enough to prove the case because that would render any minimum income threshold discriminatory. The government also contended that CPP-D recipients did not lose their disability benefits during the pandemic and, therefore, would not have received the CERB or CRB even if they were eligible.
The appeal court based its decision, in part, on expert evidence about the employment challenges faced by people with disabilities and an intervention by the Toronto-based Income Security Advocacy Centre (ISAC), which advances the interests and rights of low-income Ontarians related to income security programs and low-wage precarious employment.
ISAC argued that the design of a government income security scheme doesn’t need to be the sole cause of a disproportionate impact and that “the court need not be satisfied that the scheme impacts all persons with an enumerated/analogous characteristic in the same way.”
In determining that Jacob met both branches of the Sharma test, the Court of Appeal concluded that “the $5,000 income threshold, and the exclusion of CPP-D from the calculation of that threshold, 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, thereby exacerbating their disadvantage.”
Ultimately, however, the court found that the violation was driven by a “pressing and substantial objective,” meeting the s. 1 “reasonable limits” test under the Oakes framework.
“In light of the deference to be afforded to the legislature at the minimal impairment stage of the s. 1 analysis when complex social and policy issues are at stake,” wrote Justice Sossin, “I am not able to conclude that Canada’s responses to COVID-19 over the period covered by the application failed to minimally impair Ms. Jacob’s rights.”
Despite the section 1 finding, Toronto lawyer Sujit Choudhry, who represented Jacob, called it a “leap forward for disability rights under the Charter because it confirms that the duty to accommodate applies to legislation.”
“The duty to accommodate requires governments to ensure that members of protected groups benefit equally from government programs,” he said in an email to Law360 Canada. “The failure to accommodate is discriminatory. With Jacob, the duty to accommodate applies to Parliament and legislatures when they lay down eligibility criteria for public programs.”
More broadly for lawyers, Choudhry added, the decision underlines how important the disclosure of evidence is in s. 15 cases in proving disproportionate impact discrimination.
“Often, the most important evidence is in the hands of the government,” he noted. “In response to demands for production in cross-examinations, the federal government disclosed evidence that was crucial to the court’s finding of a s.15 violation.”
Along with ISAC, the Canadian Civil Liberties Association (CCLA) also had intervener status in the case.
In arguing for Jacob, Choudhry was assisted by lawyers David Baker and Daniel Mulroy.
Counsel for the attorney general of Canada were Derek Rasmussen, Bahaa Sunallah and Monisha Ambwani.
ISAC was represented by lawyers Ewa Krajewska, Érik Arsenault, Mannu Chowdhury and Anu Bakshi. Counsel for the CCLA were Jennifer Hunter, Kathryn Ball and Zahra Vaid.
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