Tranchemontagne — An Unclear Standard for Statutory Challenges

On September 16, the Court of Appeal for Ontario delivered its reasons in Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593. The appellate decision is the latest event in an ongoing legal battle — the case was previously litigated all the way to the Supreme Court of Canada to determine if the tribunal had jurisdiction to entertain a challenge to legislation under the Ontario Human Rights Code — and the Divisional Court decision has generated significant controversy and comment on this site.

One of the more compelling questions raised by the Divisional Court decision, as discussed by Claire Mumme on this site earlier this month, was about the appropriate legal test when courts are confronted by a challenge to a statutory provision via another statute. In this case, the respondents were bringing a claim after being denied disability benefits under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (ODSPA), claiming that a section of the Act violated their right to equal treatment without discrimination under section 1 of the Ontario Human Rights Code.

The claimants chose to bring a statutory rather than constitutional challenge to the allegedly discriminatory legisation. The reason for this decision likely has to do with the fact that mounting a statutory challenge has historically been less of a burden on claimants and plaintiffs than a full-blown constitutional claim.

The Tranchemontagne case – and, in particular, the Divisional Court ruling – is notable because it shows the court grappling for the appropriate balance between competing legislative interests in the adjudication of human rights disputes.

In addition to rejecting the post-Kapp equality test put forward by the Divisional Court, the Court of Appeal’s decision also unfortunately falls short of dealing with the larger debate about the appropriate standard to be applied in such disputes.

Facts and History

Although the facts of Tranchemontagne have been profiled on The Court in previous posts, a restatement of the facts will provide context. The claimants, Robert Tranchemontagne and Norman Werbeski, challenged a section of the ODSPA that denied them disability benefits despite their alcohol dependence. Although both men satisfied the criteria in section 4 of the ODSPA for being disabled, the claimants were denied benefits based on section 5(2) of the Act, which disqualified individuals who are disabled solely because of substance dependence.

In 2006, the Social Benefits Tribunal (SBT), an administrative tribunal that hears ODSPA appeals, relied on Ontario (Human Rights Commission) v. Ontario (1994), 19 O.R. (3d) 387 to conclude that the Law test for section 15 constitutional challenges should apply to infringements of the equal treatment guarantee set out in section 1 of the Code. However, the Tribunal also concluded that it would not always be necessary to apply the elaborate human dignity analysis set out in the third part of the section 15 test. The SBT found in the claimant’s favour.

On appeal, and in the shadow of the Supreme Court of Canada’s decision in R. v. Kapp, [2008] 2 S.C.R. 483, the Divisional Court proposed a novel legal test for determining whether a claimant has established a violation of section 1 of the Code. In Kapp, the SCC modified the third branch of the Law test to focus on whether the case involves discrimination that creates disadvantage by perpetuating prejudice, pre-existing disadvantage or stereotyping, rather than human dignity.

Bearing this latest edict in mind, the Divisional Court suggested the creation of a post-Kapp test that utilized the prima facie test for Ontario human rights cases taken from Ont. Human Rights Comm. v. Simpsons- Sears, [1985] 2 S.C.R. 536 — commonly referred to as the O’Malley test — while also integrating influences from section 15 jurisprudence. This test was presented as the appropriate one in a case where the claimant is challenging the denial of service by a government benefit program, and is articulated by the Court of Appeal at para. 65:

1. Has the complainant established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground under the Human Rights Code?
2. Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the respondent established a statutory defence under the Code?

The Divisional Court, like the SBT, found in the claimant’s favour.

At the Court of Appeal, the Director of the Ontario Disability Support Program argued that the lower court erred by developing a new test that is inconsistent with the section 15(1) Charter test for discrimination.

Putting the Test to the Test

It should be stated from the outset that the Director’s appeal was dismissed. As at both the SBT and the Divisional Court level, the court eventually concluded that the respondents had met the threshold for establishing a violation under section 1 of the Human Rights Code.

What is particularly interesting about the history of this case has been the back-and-forth through the courts about the appropriate standard for statutory human rights disputes.

Unfortunately, at the appellate level, the most novel and important question raised by Tranchemontagne was given short shrift. Earlier this month on The Court, it was presented that “the Court of Appeal should take this opportunity to not only affirm the Divisional Court’s decision, but also go further with this broad level thinking and set its mind to clarifying some of the contours of the relationship between statutory and constitutional equality protection in Canada.”

The appellate decision does no such thing. Instead of broadening the lower court’s decision  Simmons J.A., writing for the court, rejected the lower court’s post-Kapp test. Judge Simmons did so for three reasons: the lack of a requirement for the claimant to prove disadvantage; the implication that it would be unnecessary for the claimant to show the disadvantage perpetuates prejudice or stereotyping; and the reversal of the burden of proof to the responding party.

The judgment does note that “fundamental differences exist between the Charter and the Code.” The court identifies the nature of the legislation, the scope of guarantees provided, the application of those guarantees, and specific exemptions available under each regime and fundamental differences between section 15 of the Charter and section 1 of the Code. The result of these enumerated differences, according to the court, is that “the precise nature of the evidence to be led and the stringency of the test to be applied to establish discrimination may vary and ultimately will depend significantly on the context.”

When all is said and done, however, the appellate decision is essentially in agreement with the SBT’s application of section 15 jurisprudence to the dispute. The court concluded that, “at the end of the day, although the SBT did not have the benefit of Kapp, in my view, its reasons fall squarely within Kapp, and I see no basis for interfering with its decision based on the precise test it used to analyze the issues before it.”

As a result, the fascinating conclusions reached by Bellamy J. at the lower court – namely, the affirmation of the O’Malley test as the controlling test in statutory discrimination cases, but also the modification of the test to reflect constitutional equality jurisprudence – are mostly eschewed by the appellate court.

It remains to be seen whether the Tranchemontagne will once again be appealed to the highest court in the country. Given that the two previous appeals have been dismissed with wildly different perspectives on the governing law, the case may well end up receiving one more hearing.  However, if Tranchemontagne does make it to the Supreme Court of Canada, one hopes that the Court will take the opportunity to discuss the Divisional Court’s reasons and to clarify and delineate between the analytic structures under the Code and the Charter, while also identifying what overlap (if any) should exist between the two regimes.