Human Rights – Test for Discriminatory
The Court of Appeal affirmed the holding of both the Social
Benefit Tribunal and the Divisional Court that the prohibition on
providing benefits to those disabled solely due to addiction in s.
5(2) of the Ontario Disability Support Program Act
violated the Human Rights Code.
However, the Court of Appeal rejected the Divisional Court's
proposed new test for when legislation would be found to be
discriminatory. The new test would have required an applicant to
demonstrate a prima facie case. The respondent would then
have to demonstrate that the distinction does not create a
disadvantage by perpetuating prejudice or stereotyping, on in the
alternative, establish a statutory defence.
The Court held that this improperly reversed an applicant's
onus and improperly ignored a key element of the test for
discrimination, namely that a distinction creates a disadvantage by
perpetuating prejudice or stereotyping.
While the Court disagreed with the Divisional Court, it found
that here was sufficient evidence to support a finding of
discrimination, as there was evidence that substance addicts and
welfare recipients were subject to stigma and prejudice and there
was no explanation in the legislation why those solely impaired by
substance abuse could be excluded.
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