HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nell Toussaint
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long Term Care
Respondent
DECISION
Adjudicator: David A. Wright
Indexed as: Toussaint v. Ontario (Health and Long-Term Care)
WRITTEN SUBMISSIONS
Nell Toussaint, Applicant ) M. Kate Stephenson, ) Counsel
Her Majesty the Queen in Right of Ontario ) S. Zachary Green, as represented by the Minister of Health ) Counsel and Long Term Care, Respondent )
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she has experienced discrimination with respect to services on the ground of citizenship because she is ineligible for Ontario Health Insurance Plan (“OHIP”) benefits as a result of her lack of legal immigration status in Canada. The respondent submits that this case does not raise the ground of citizenship and that, if it does, the defence in s.16(1) of the Code applies, which provides that there is no discrimination when Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.
2For the reasons that follow, I find that the Application must be dismissed. Assuming, without deciding, that the Application raises the ground of citizenship, the defence in s.16(1) applies and the distinction does not violate the Code.
BACKGROUND
3The applicant has lived in Canada since 1999, but has no legal status. She came to Canada as a visitor and remained here when that status expired. In 2008, she attempted to apply for permanent residence on humanitarian and compassionate grounds under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 25. Her application was not accepted because she did not pay the applicable $500 fee, which she says she is unable to afford.
4The applicant has challenged the fee requirement unsuccessfully in Federal Court. See Toussaint v. Canada (Citizenship and Immigration), 2009 FC 873. She has also challenged, unsuccessfully, the denial of health coverage under the Interim Federal Health Program (“IFHP”) on various grounds, including on the basis that it discriminated against her on the basis of citizenship contrary to the Canadian Charter of Rights and Freedoms (“Charter”). See Toussaint v. Canada (Attorney General), 2010 FC 810 (“Toussaint #2”). These decisions are both on appeal to the Federal Court of Appeal.
5The applicant applied for OHIP coverage in 2009. She was denied because she does not meet any of the criteria set out in R.R.O. 1990, Regulation 552, as amended, which defines the criteria for eligibility. Subject to a three-month waiting period, to receive OHIP coverage a person must be an Ontario resident and have an eligible status. Citizens, permanent residents, or “protected persons” under immigration law, among others, are eligible for OHIP. In addition, persons who have submitted an application for permanent residence in Canada are eligible if Citizenship and Immigration Canada has confirmed that the person meets the eligibility requirements for permanent residence in Canada. The applicant states that if she had been able to afford the $500 fee and make an application for permanent residence on humanitarian and compassionate grounds, she would have been covered by OHIP. Not having a legal status in Canada, the applicant is not eligible for OHIP.
6On October 7, 2010, the applicant filed this Application alleging that the denial of OHIP coverage constitutes discrimination in services on the basis of citizenship and place of origin. Her argument is that in treating her differently from another non-citizen who, like her, wishes to stay in Canada, the government is discriminating against her on the basis of citizenship. She says that the ground of citizenship includes discrimination between any subcategories of non-citizens, including between non-citizens with legal status in Canada and those without.
7At the same time as she filed her Application, the applicant filed a Request for Interim Remedy. That Request was denied. See 2010 HRTO 2102. In the course of that Decision, the Tribunal held as follows, at paras. 35-39:
In my view, there is considerable question about whether this Application falls within the Tribunal’s jurisdiction by raising the ground of “citizenship” and about whether it can succeed if it does. To come within the Tribunal’s jurisdiction, the applicant will have to establish that the ground of “citizenship” is not limited to distinctions between citizens and non-citizens and includes distinctions between non-citizens with legal status in Canada and those without legal status.
In this regard, the applicant will have to establish that the scope of the ground of citizenship is different under the Code than under the Charter and/or that previous Charter jurisprudence should not be followed in light of the arguments that she makes. In Irshad (Litigation Guardian of) v. Ontario (Minister of Health), (2001), 2001 CanLII 24155 (ON CA), 55 O.R. (3d) 43 (C.A.), the Court dismissed a s. 15 Charter challenge on various grounds, including citizenship, to a previous version of the regulation in question here. At para. 125, the Court rejected the argument that there was discrimination on the basis of citizenship. It held as follows, at para. 137:
Immigration status can determine a person’s right to take up permanent residence in a province. Once it is accepted that the process that results in a particular immigration status does not offend s. 15(1), I fail to see how Ontario’s reliance on that status in determining the nature of an individual’s residence in the province can be classified as discriminatory.
Similarly, in the applicant’s own case, Toussaint #2, at para. 81, the Federal Court specifically held that the exclusion of persons from a health care program on the basis of their lack of legal status in Canada does not constitute discrimination on the basis of citizenship contrary to s. 15. While I appreciate that the applicant suggests that the Court misunderstood her submissions in this regard (see, 2010 FC 926), this does not change the fact that the Court held that the ground of citizenship does not cover her circumstances.
There are additional legal hurdles she will have to overcome beyond the question of jurisdiction. If the ground of citizenship applies, she will have to establish that in these circumstances, the distinction constitutes substantive discrimination. Moreover, to avoid the defence in s. 16(1), she will have to establish that the meaning of “citizenship” is different in s. 1 than in s. 16(1). I note that, in this regard, the applicant argues that the text of ss. 16(2) and (3) support such a distinction, in separating citizenship from permanent residence.
These hurdles do not mean, in my view, that the Application is frivolous and vexatious or that the applicant does not have an “arguable case”. This is a low threshold. I accept that the applicant has a somewhat different theory of discrimination than was put forward in Irshad and Toussaint #2 and that there is some support for the proposition that the ground of “citizenship” in the Code includes more than just the status of being a citizen or a non-citizen. For the reasons set out in Marakkaparambil v. Ontario (Health and Long Term Care), 2007 HRTO 24, a decision under s. 15 of the Charter does not necessarily doom a Code challenge on the same grounds, particularly in light of the fact that jurisprudence may have evolved and the claim may be made differently.
However, the reasoning of the courts in these cases will certainly be important in determining whether “citizenship” under s. 1 of the Code has the meaning for which the applicant contends.
8At para. 48, the Tribunal held as follows:
The parties made considerable argument about the interpretation of “citizenship” in s.1 and s.16 in their oral submissions on this Request. However, they had limited time to research and prepare in view of the timelines for interim remedy requests and the argument was made on the question of whether the Application appeared to have merit. The parties should be given the opportunity to prepare and make full legal submissions on the issues of whether the Application raises the ground of “citizenship” and whether, if it does, the defence of s.16(1) applies.
9The parties have now made these submissions.
ANALYSIS
10Section 1 of the Code reads as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
11Section 16 of the Code provides:
(1) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.
(2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence.
(3) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.
12The applicant argues that as a “sub-group” of non-citizens, persons with no legal status in Canada are protected by the ground of citizenship, just as refugee claimants have been found to fall under this ground. See Kearney v. Bramalea Ltd. (1998), 1998 CanLII 29852 (ON HRT), 34 C.H.R.R. D/1 (Ont. Bd. Inq.) and Ahmed v. 177061 Canada Ltd. (2002), 2002 CanLII 46504 (ON HRT), 43 C.H.R.R. D/379 (Ont. Bd. Inq.). She cites various international law instruments that protect such individuals and argues that the Code should be interpreted in a manner consistent with them. The respondent, in contrast, argues that these decisions arise in a different context and that, in any event, the Irshad decision of the Court of Appeal, rendered in the Charter context, is binding on the Tribunal.
13It is not necessary to decide whether the facts of this case raise the ground of citizenship. Assuming they do, I agree with the respondent that s.16(1) is a complete answer to the applicant’s claim.
14The applicant notes that it is a general principle of Code interpretation that, as a defence, s.16 must be read narrowly. She argues that the exemptions in s.16 are very specific, covering narrow types of activities and specific types of exclusionary distinctions. She argues that s.16(1), unlike the other two subsections, protects only one particular type of qualification: Canadian citizenship. She argues it cannot have been the Legislature’s intention to equate the words “Canadian citizenship” in s.16(1) with the ground of citizenship since it would render the inclusion of additional categories in ss.16(2) and (3) unnecessary if “Canadian citizenship” in s.16(1) covers all citizenship related distinctions. It would, she says, violate the presumption that subsections should not be superfluous and that exemptions should be read narrowly. This defence should also be read as promoting the protection of the vulnerable group of non-citizens.
15The respondent states that the purpose of s.16(1) is to exclude legislative distinctions from the meaning of discrimination on the ground of citizenship. It notes that laws frequently make distinctions between citizens and non-citizens and different categories of citizens. It argues that the position put forward by the applicant is untenable: that any time the province acts pursuant to valid federal immigration law, it runs the risk of being found to have discriminated on the basis of citizenship contrary to the Code. It submits that the applicant’s position would lead to an absurd result: that the province would be permitted to distinguish between citizens and all non-citizens, but that as soon as it provided benefits to permanent residents, it would be obliged to provide them to every category of non-citizens, including tourists and persons with no legal status. Further, it notes that this would be inconsistent with the Charter jurisprudence that prohibits discrimination between citizens and permanent residents. See Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143. It also argues that it would not make sense to give “citizenship” a vastly different meaning under s. 1 from s. 16(1).
16The principles relevant to interpretation of the Code were summarized as follows in Whiteley v. Osprey Media Publishing, 2010 HRTO 2152 at para. 16:
It is a general principle of human rights legislation that rights are to be broadly construed and exceptions must be defined narrowly. In interpreting any statute, a court or tribunal must take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58 at para. 16; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42.
17In my view, taking a purposive interpretation of s.16(1), if the applicant’s situation is caught by the ground of citizenship in s.1, it is also caught by the defence in s.16(1). In my view, the word “citizenship” does not have a dramatically different meaning in s.16(1) from s.1. If persons without legal status are included under the ground of citizenship, they are also included within the exemption allowing citizenship to be a source of distinctions imposed or authorized by law.
18I cannot agree with the applicant’s view of the relevance of the inclusion of permanent residence and domicile in Canada with the intention to obtain citizenship in ss.16(2) and 16(3). In my view, the Legislature’s purpose in s.16 was to give a broader exemption to the government under s.16(1) than to other organizations in ss.16(2) and 16(3). I agree with the respondent that it is not logical that the Legislature would have granted the government an exemption for laws when they distinguished between citizens and non-citizens, but that inclusion of any non-citizens would require the inclusion of all non-citizens. This could discourage the government from extending benefits or advantages to permanent residents or other non-citizens and is not an appropriate interpretation.
19The better interpretation of the significance of the inclusion of additional categories in ss. 16(2) and (3) is that these defences apply only if the respondent has given the consideration to both citizens and either permanent residents (s. 16(2)) or persons living in Canada and intending to obtain citizenship (s. 16(3)). In other words, the Legislature’s intention was that individuals in these categories be treated the same as citizens for the purpose of the exemptions in ss.16(2) and (3). For example, an employer recruiting for a chief or senior executive position would benefit from the exemption only if a preference was given to both Canadian citizens and persons domiciled in Canada with the intention to obtain Canadian citizenship, but not if it limited the preference to Canadian citizenship. This reflects the principle of permitting preferences for Canadian citizens but recognizing that some non-citizens have a particular attachment to the country. It does not suggest, however, that the government must include all groups of non-citizens in a legal preference once it includes some.
20Therefore, assuming that the applicant falls within a subgroup protected by the ground of citizenship in s.1 of the Code, s.16(1) permits the government to require that persons have a particular Canadian citizenship status in order to qualify for OHIP. Accordingly, s.16(1) is a complete defence to the Application.
21The Application is dismissed.
Dated at Toronto, this 19th day of April, 2011.
”signed by”__________
David A. Wright
Associate Chair