BY KEITH LACEY
Even though alcoholism and drug addiction are clearly defined as
disabilities under Ontario’s Human Rights Code, thousands of
Ontarians have been denied disability benefits for substance abuse
addictions. That’s about to change following a Supreme Court of
Canada ruling Friday.
A seven-year legal battle ended in victory for two Sudbury men
and the Sudbury Legal Clinic that represented them following a
majority 4-3 decision by the country’s top court.
The court ruled legislation under provincial human rights codes
must now be considered by all government tribunals when handling
appeal cases by Canadian citizens applying for benefits,
specifically, disability benefits.
The court ruled government agencies such as Ontario’s Social
Benefits Tribunal (SBT), which hears appeals from citizens
originally denied access to the Ontario Disability Support Program
(ODSP), must consider provisions under provincial human rights
regulations before rendering decisions. This includes provisions
detailing alcoholism and drug addiction as defined
disabilities.
In far too many cases, the SBT simply rejects appeals and refers
people to the Ontario Human Rights Commission, where less than six
percent of cases are ever heard, said Grace Kurke, legal counsel
for the Sudbury Legal Clinic.
It this specific case, two Sudbury men, Norman Werbeski and
Robert Tranchemontagne, applied for ODSP benefits in 1998 and 1999,
respectively.
After more than two years of waiting, both claims were denied
eight months apart in 2001 and both decisions were appealed to the
SBT.
Both claims were again rejected, with the tribunal ruling they
considered both men to be alcoholics who didn’t suffer from any
other significant physical disability.
Both men argued they each had serious physical disabilities
other than alcoholism and one claimed psychological issues as
well.
The specific provision noted by the SBT in rejecting the appeals
states an appellant is not eligible for ODSP benefits if “the
person is dependent on or addicted to alcohol, a drug or some other
chemically active substance.”
However, the Ontario Human Rights Code clearly states alcoholism
and drug addiction is a disability and benefits can’t be denied if
other satisfactory disabilities are proven, said Kurke.
In the case against Werbeski and Tranchemontange, the SBT
quickly rejected the appeals focusing on the alcoholism provision,
which contravenes human rights legislation, which the Supreme Court
made clear takes precedence, said Kurke.
The SBT’s decision against the two Sudbury men was accepted by a divisional court.
However, another appeal to the Ontario Court of Appeal last year
was successful and the case was referred to the country’s top
court.
Kurke and lawyers for several community agencies presented
arguments before the Supreme Court in December. They were opposed
by lawyers for the Ministry of Community and Social Services and
the SBT.
Friday’s ruling makes it clear government tribunals like the SBT
are “quasi constitutional bodies...that do have the power” to hear
all evidence presented by appellants relating to provincial human
rights codes and issues before making final decisions, said
Kurke.
They can’t simply “pass the buck” and dismiss cases based on
provisions the court has made clear do not supercede human rights
legislation, said Kurke.
“The decision means vulnerable people can claim human rights considerations and be protected by provisions under the human rights code before every tribunal in the country,” said Kurke.
“These tribunals can’t tell people any longer to go away
insisting they don’t have the authority to deal with human rights
issues.”
The Supreme Court ruling does not mean Werbeski and
Tranchemontagne will receive ODSP and retroactive benefits, but the
court made clear the SBT will have to hear their appeals again and
must reconsider its decision stating alcoholism as sufficient cause
for denying benefits, said Kurke.
Because human rights legislation clearly states alcoholism and
drug addiction are disabilities, Kurke is confident she will win
the case when it returns before the SBT.
“This is a huge victory for disadvantaged people across this
country as it brings human rights considerations to the forefront
in ways that have not previously been the case in this country,”
said Kurke.
In a 45-page decision, the court ruled “since the SBT has not
been granted the authority to decline jurisdiction, it can’t avoid
considering the issues relating to the (human rights) code in these
cases. “Moreoever...the SBT is the most appropriate forum to decide
those issues.”
The SBT is meant to be an efficient, effective and quick process
and regularly rejecting appeals by imposing human rights code
compliance “will inevitably have an impact on its ability to assist
the disabled community in a timely way,” read the decision.
Kurke successfully argued a section in the Ontario disability
act constituted discrimination and was, therefore, inapplicable
because the human rights code has primacy over other
legislation.
“Instead of analyzing this argument, the SBT held it did not
have the jurisdiction to consider the applicability of the section
of the code...the appellants’ appeals were therefore dismissed
without the benefit of a ruling that their treatment was
discriminatory,” said the Supreme Court decision.
The court ruled the SBT and other tribunals most now consider
provisions of human rights legislation in rendering all
decisions.
“It becomes clear that the SBT had the jurisdiction to consider the code in determining whether the appellants were eligible for support pursuant to the disability act...at that point, the SBT had the responsibility of applying the code in order the render a decision that reflected the whole law of the province.”
