Tranchemontagne v. Ontario (Dir., Disability Support Program), 2004 CanLII 94518 (ON CA)

Tranchemontagne v. Ontario (Dir., Disability Support Program)

C40873 & C40874

2004-09-16

COURT FILE NO.: C40873 & C40874 DATE: 20040916

COURT OF APPEAL FOR ONTARIO

Labrosse, Weiler and Charron JJ.A.

Between:

Robert Tranchemontagne and Norman Werbeski

Appellants

And:

Director of the Ontario Disability Support Program of the Ministry of Community, Family and Children's Services

Respondents

Social Benefits Tribunal

Intervenor

Reasons for Judgment

On appeal from the order of Justice Edward F.C. Then, Justice Donald R. Cameron and Justice John A. Desotti of the Superior Court of Justice (Divisional Court) dated March 25, 2003.

Counsel for the Appelants

Terence Copes, Peter Chapin and Grace Kurke

Counsel for the Respondents

Rebecca J. Givense

Counsel for Social Benefits Tribunal

M. Jill Dougherty

Counsel for Ontario Human Rights Commission

Cathryn Pike

Counsel for The Empowerment Council, Centre for Addiction and Mental Health

Dianne Wintermute and Lesli Bisgould

Weiler J.A.

I. Overview

1The appellants, Robert Tranchemontagne and Norman Werbeski, are addicted to alcohol. They applied for income support under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B ("ODSPA" or the "Act"). Section 5(2) of the ODSPA states that a person is not eligible for income support if his or her only substantial impairment is alcohol or other substance dependence or addiction. Because the Director of the Ontario Disability Support Program (the "ODSP") found that the appellants' only substantial impairment was alcoholism, the Director held that the appellants were not eligible for income support under the Act. The appellants appealed to the Social Benefits Tribunal (the "Tribunal"). They argued that s. 5(2) of the ODSPA contravenes s. 1 of the Human Rights Code R.S.O. 1990, c. H.19, (the "Code") as amended, which provides that, "Every person has a right to equal treatment with respect to services, goods or facilities without discrimination because of…disability". They also pointed out that as the Code is quasi-constitutional legislation, it is given primacy over other Acts in s. 47(2), and binds the Crown under s. 47(1).

2In two separate decisions, dated February 7, 2001, and September 18, 2001, the Tribunal, which has the same powers as the Director, upheld the dismissal of each appellant's claim for a disability benefit. In each case the Tribunal refused to directly consider the appellant's argument that s. 5(2) of the ODSPA contravenes the Code.

3The appellants appealed to the Divisional Court, which upheld the decisions of the Tribunal. They now appeal to this court, on the basis that the Divisional Court was wrong in determining that the Tribunal does not have jurisdiction to give effect to the primacy of the Code. Neither of the parties disputes, however, that the appellants have the right to file a complaint with the Ontario Human Rights Commission. The Human Rights Commission may in turn refer a complaint to the Human Rights Tribunal for a hearing. For ease of reference I will refer to both as "the process under the Code". The narrow issue on this appeal, therefore, is whether the Divisional Court was correct in concluding that the Tribunal does not also have jurisdiction to determine whether s. 5(2) of the ODSPA contravenes the Code. If the Tribunal does have jurisdiction, a subsequent issue indirectly raised in these proceedings is whether the Tribunal or the process under the Code is better suited to resolve the issue of whether s. 5(2) of the ODSPA contravenes the Code.

4Relying on the decision of the Supreme Court of Canada in Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, the appellants argue that the Tribunal has jurisdiction to decide whether the section contravenes the Code. In Martin, the Court held that a Tribunal that has express or implied jurisdiction to decide questions of law is presumed to have jurisdiction to decide an issue under the Charter unless such power has been excluded by the legislature. Here, the appellants argue that because the Tribunal has been given the power to determine questions of law this necessarily includes the power to apply the Code, unless such power has been excluded by the legislature. The power to apply the Code has not been excluded in the ODSPA, either expressly or by implication.

5I would agree. I would hold that the Tribunal has jurisdiction to decide questions of law and that, by analogy, it is presumed to have jurisdiction to decide whether s. 5(2) of the ODSPA contravenes the Code. I would further hold that that presumption is not rebutted.

6In relation to the subsequent issue, the Supreme Court of Canada released its decisions in Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] S.C.J. No. 35 (QL) [ 2004 SCC 39, 49 C.H.R.R. D/436] ( Charette), and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] S.C.J. No. 34 (QL) [ 49 C.H.R.R. D/413] ( Morin), following the hearing of this appeal. As a result, the panel invited and received further submissions in writing from the parties. In Charette and Morin the Court not only considered the issue of an administrative body's jurisdiction but which of two administrative bodies was better suited to resolve the substantive issue raised. The decisions mandate a court to consider such questions as the essential nature and character of the dispute, whether the administrative body in question has been given exclusive jurisdiction over all issues raised and whether the substantive issue raised has a broader application than the case at hand.

7Applying the decisions of Charette and Morin to this case, I would hold that the procedure under the Code is more appropriate to resolve the question of whether s. 5(2) of the ODSPA contravenes the Code. In my opinion, the essential nature of the dispute is a human rights complaint, the Tribunal has not been given exclusive jurisdiction, the substantive issue raised has broader application than the particular circumstances of the parties and other practical considerations that would ordinarily favour the Tribunal assuming jurisdiction are neutralized. As a result, the process under the Code is the more appropriate one to decide the substantive issue raised.

II. History of the Legislation and Relevant Statutory Provisions

8The Family Benefits Act, R.S.O. 1990, c. F.2 and the General Welfare Assistance Act, R.S.O. 1990, c. G.6 were the two statutes in Ontario that provided for social assistance in this province until June 1998. The Family Benefits Act was, and continues to be, administered by the Ministry of Community and Social Services. Both statutes provided for payments to an individual who was found to be a "person in need" as defined by detailed regulations. The Family Benefits Act, however, provided for allowances to specific categories of "persons in need", the main categories of which were: "disabled persons" and "permanently unemployable persons", single parents and the aged. The General Welfare Assistance Act, on the other hand, provided payments referred to as "assistance" to most other persons who qualified financially. Under those statutes, a quasi-judicial hearing was available before the Social Assistance Review Board ("SARB").

9In its 1999 document, Blueprint: Mike Harris' Plan to Keep Ontario on the Right Track, the provincial government described its welfare reform initiatives, and indicated that it had consciously moved persons with disabilities from the general work-for-welfare scheme and into a "more generous support program tailored for their needs." That program was the ODSP enacted as the ODSPA, which came into force on June 1, 1998. The purpose of the ODSPA was to "effectively serve persons with disabilities who need assistance" by providing them with income support: see s. 1 (c) of the Act. "Income support" is defined in s. 2 as "assistance for the provision of basic needs, shelter, costs related to a person's disability and other prescribed needs and includes benefits." Ontario Regulation 222/98, amended to O.Reg. 232/04, made pursuant to the ODSPA, is the general regulation that sets out details of eligibility and amounts payable as income support.

10The day after the ODSPA was proclaimed, the Minister of Community and Social Services told the Legislative Assembly that reliance on general welfare is inappropriate for persons with disabilities:

For many years, people with disabilities in Ontario have said that their needs were not being met through the welfare system. They said that it was time for governments to focus on the supports that they required to participate fully in Ontario society. Our government agreed. . . .

This new program removes people with disabilities from the welfare system, where they should never have been in the first place, and it creates for them an entirely separate system of income support. . . .

ODSP [S]upports to [E]mployment focus solely on the needs of people with disabilities who want to prepare for employment, find work and keep a job. These supports provide people with disabilities with real help in overcoming barriers to seeking, obtaining and keeping employment. . . .

The proclamation of the Ontario [D]isability [S]upport [P]rogram marks the start of a new era of fairer treatment and more opportunity for people with disabilities. . . .

Ontario, Legislative Assembly, Official Report of Debates (Hansard), 019A (2 June 1998) at 970-71 (Hon. Janet Ecker).

11As I have indicated, the ODSPA replaced the Family Benefits Act for persons with disabilities. Subsection 3(1) of the ODSPA states, "Income support shall be provided to a person with a disability, as determined under section 4, and to a person of a prescribed class." Section 4 states that "if the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more" that results in a substantial restriction on the person's ability to attend to his or her personal care, to work or to function in the community, the person has a disability for purposes of the Act. In addition, the person must meet the eligibility criteria in s. 5(1) that is, in addition to having a disability as defined in the Act, the person must be resident in Ontario and meet certain financial criteria.

12Under s. 5(2), a person is not eligible for income support if the person is dependent on alcohol or a drug that has not been authorized by prescription and whose only substantial restriction in activities of daily living is attributable to the use of alcohol or a drug. Section 5(2) states:

5(2)

A person is not eligible for income support if,

(a)

the person is dependent on or addicted to alcohol, a drug or some other chemically active substance;

(b)

the alcohol, drug or other substance has not been authorized by prescription as provided for in the regulations; and

(c)

the only substantial restriction in activities of daily living is attributable to the use or cessation of use of the alcohol, drug or other substance at the time of determining or reviewing eligibility.

13However, under s. 5(3) if, in addition to being dependent on alcohol or a drug, the person has a substantial physical or mental impairment, whether or not caused by alcohol or the drug, s. 5(2) does not apply:

Subsection (2) does not apply with respect to a person who, in addition to being dependent on or addicted to alcohol, a drug or some other chemically active substance, has a substantial physical or mental impairment, whether or not that impairment is caused by the use of alcohol, a drug or some other chemically active substance.

14The companion legislation to the ODSPA is the Ontario Works Act 1997, S.O. 1997, c. 25, Sched. A ("OWA"), which is general work-for-welfare legislation. It also came into force in June 1998, and replaced the General Welfare Assistance Act. The OWA provides for social assistance for persons who are in need, but who have not qualified for income support as a "person with a disability" within the meaning of the ODSPA. Under s. 7 of the OWA, according to the prescribed conditions in O.Reg. 134/98, as amended by O.Reg. 231/04, some persons who are suffering from alcohol, drug or other substance dependence or addiction, who are not eligible under the ODSPA, are eligible for financial assistance under the OWA if they are prepared to address their addiction.

15Decisions under both the ODSPA and the OWA can be appealed to the Tribunal. Under s. 21(1) of the ODSPA, a person may appeal to the Tribunal "[a]ny decision of the Director affecting eligibility for or the amount of income support", with certain exceptions. The Tribunal is created under s. 60 of the OWA to "conduct those hearings and carry out those duties that are assigned to it by or under this Act or any other Act." According to s. 65(1) of the OWA, sittings of the Tribunal are to be held in the place, manner, and times that the Tribunal considers convenient for "the proper discharge and speedy dispatch of its business." Hearings of the Tribunal are to be held in private, pursuant to s. 66(1) of the OWA.

16The Tribunal's powers with respect to ODSPA are defined in s. 26(1) of the ODSPA:

26(1)

In an appeal to the Tribunal, the Tribunal may,

(a)

deny the appeal;

(b)

grant the appeal;

(c)

grant the appeal in part; or

(d)

refer the matter back to the Director for reconsideration in accordance with any directions the Tribunal considers proper.

There are two limitations on the Tribunal's powers with respect to the ODSPA. First, under s. 29(3) of ODSPA, the Tribunal cannot make a decision that the Director of the ODSP would not have authority to make. The authority of the Director is contained in s. 38 of the Act. It states:

38

The Director shall,

(a)

receive applications for income support;

(b)

determine the eligibility of each applicant for income support;

(c)

if an applicant is found eligible for income support, determine the amount of the income support and direct its provision;

(d)

administer the provisions of this Act and the regulations;

(e)

determine how the payment of the costs of administering this Act and providing income support is to be allocated;

(f)

ensure that the appropriate payments are made or withheld, as the case may be; and

(g)

exercise the prescribed powers and duties.

17Second, under s. 67(2) of the OWA the Tribunal is precluded from considering the constitutional validity of a statute or regulation. Section 67 of the OWA reads as follows:

67(1)

The Tribunal shall not make a decision in an appeal under this Act that the administrator would not have authority to make.

(2)

The Tribunal shall not inquire into or make a decision concerning,

(a)

the constitutional validity of a provision of an Act or a regulation; or

(b)

the legislative authority for a regulation made under an Act

III. Facts

Mr. Werbeski

18Mr. Werbeski is forty-seven years old, with a grade 11 education. He worked over the years as an automotive repairman. In July 1999, Mr. Werbeski applied for benefits pursuant to the ODSPA, as he was unable to work due to conditions such as a dependence on alcohol, arthritis, depression, insomnia and an antisocial personality disorder.

19The Disability Adjudication Unit (DAU) considered that Mr. Werbeski's conditions, other than alcohol dependence, as listed above, did not amount to a substantial impairment sufficient to meet the eligibility criteria set out in s. 5(3) of the ODSPA. Mr. Werbeski appealed the decision to the Tribunal. He argued that his conditions other than alcoholism were substantial impairments, but that even if they were not, s. 5(2) of the ODSPA violates s. 1 of the Code, on the basis of disability, and therefore must be ignored. Mr. Werbeski further argued that the Code is expressly stated to be paramount to other statutes, which includes the ODSPA, and that this gave the Tribunal authority (indeed, a duty) to find that he was eligible for benefits.

20Section 47(2) of the Code reads:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

21In its decision dated February 7, 2001, the Tribunal acknowledged the existence of Mr. Werbeski's many conditions but, like the DAU, found that his only substantial impairments and restrictions were related to alcoholism. The Tribunal did not directly consider the Code argument but stated only that "[i]rrespective of Counsel's submissions that 5(2) of the Act discriminates because of a handicap contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, the Tribunal finds that the appellant is ineligible under section 5(2) of the Act".

Mr. Tranchemontagne

22Mr. Tranchemontagne is a fifty-one-year-old man who worked as a steelworker for many years. His doctor confirmed that he suffers from alcoholism, that he had repeatedly tried to stop drinking but was unable to do so, and that he was unable to work because of his alcoholism, seizures related to alcohol abuse, and backaches. On November 9, 1998, Mr. Tranchemontagne applied for support under the ODSPA. On September 15, 1999, the Director refused his claim. He then appealed to the Tribunal and, like Mr. Werbeski, argued that his backaches and seizures were substantial impairments, but that even if they were not, s. 5(2) of the ODSPA violates the Code and therefore cannot be permitted to stand.

23In its decision dated September 18, 2001, the Tribunal found that Mr. Tranchemontagne's back and seizure problems were not substantial impairments and that the only disabling condition that Mr. Tranchemontagne suffered from was "chronic and excessive use of alcohol." The Code arguments were rejected on the basis that the Tribunal lacked authority to disregard s. 5 of the ODSPA, and had no jurisdiction to consider alleged human rights violations, which may be inherent in that section.

The Divisional Court Decision

24Mr. Tranchemontagne and Mr. Werbeski both appealed the Tribunal's decisions to the Divisional Court, which upheld the decisions of the Tribunal regarding jurisdiction. In a short endorsement the court stated that the primacy provision of the Code did not itself give jurisdiction for the Tribunal to override a section of the ODSPA, and that on a functional analysis it did not appear that the Tribunal was suitable to determine human rights issues:

The Tribunal can use the Ontario Human Rights Code to interpret its legislation but cannot find jurisdiction in s. 47(2) of the Ontario Human Rights Code to ignore its enabling legislation: Yorkton Union Hospital, Cuddy Chicks, MacNeill, and Cooper.

The evidence before us does not indicate an expertise in the Tribunal to address human rights issues. The Tribunal's procedures, as provided in the Ontario Disability Support Program Act, do not appear appropriate for resolving such issues.

An expression of paramountcy in the Ontario Human Rights Code does not change the principle that a Tribunal derives its jurisdiction either explicitly or implicitly from its enabling legislation: Yorkton Union Hospital.

The apparent conflict between s. 5(2) of the Ontario Disability Support Program Act and s. 1 and s. 47(2) of the Ontario Human Rights Code is an important issue. It should be determined by a court or other tribunal with jurisdiction, expertise and procedure sufficient to develop a full record and analysis to adequately address the issue of the paramountcy of s. 1 of the Code over s. 5(2) of the Ontario Disability Support Program Act.

25Leave to appeal the Divisional Court's decision was granted by this court on October 24, 2003. The appellants have also commenced an application for judicial review in the Divisional Court (Court File No. DV-566/03), requesting an order declaring that the addiction exclusion provisions in the ODSPA are contrary to both the Charter and the Code. However, the application has not been perfected and is in abeyance pending this appeal.

IV. Developments in the Common Law respecting the jurisdiction of administrative tribunals to consider the Charter

26In coming to its conclusion the Divisional Court relied on four decisions, as indicated in the quoted portion of the decision above. By way of background, however, I will refer to only two of the decisions relied on by the Divisional Court. Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Bell v. Canada (Human Rights Commission); Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854 [ 27 C.H.R.R. D/173] ( Cooper).

27In the first decision, Cuddy Chicks, the issue was whether the statutory exclusion of agricultural workers from the scheme of collective bargaining violated the equality provisions in s. 15 of the Charter.¹The Supreme Court, at p. 15, found statutory justification in the Labour Relations Act, R.S.O. 1980, c. 228, s. 106(1), for the Ontario Labour Relations Board (the "Board") to consider the Charter in the provision authorizing the Board "to determine all questions of law and fact that arise in any matter before it." If the Board determined that the statutory exclusion violated the Charter it could, as asked, grant the certification application before it. The court held at p.18 that its decision was reinforced by the practical consideration that it had specialized expertise and experience highly relevant to the challenge. The court's decision left open the question of whether the presence of legislative provisions were an essential requirement in order to find authorization to consider a Charter challenge or whether the courts could imply legislative authorization from the character of the tribunal and the nature of the Charter issue.

28The question left open in Cuddy Chicks was answered in Cooper. A provision of the Canadian Human Rights Act provided that it was not a discriminatory practice to impose mandatory retirement on persons who had reached the "normal age of retirement" for persons in similar positions. Two airline pilots asked the Canadian Human Rights Commission to decide whether they had an arguable case that the provision violated the equality provision of the Charter and, if so, to refer the matter to a tribunal for determination. The Supreme Court, in a five to two decision, held that neither the commission nor a tribunal had authority to determine the question. On behalf of the majority, La Forest J. held that administrative tribunals have no inherent jurisdiction to consider Charter challenges as to the constitutionality of their enabling legislation. The question was whether or not the legislature had explicitly or implicitly conferred that jurisdiction. Laforest J. held that the commission's constative legislation was not sufficient to confer jurisdiction.

29In her dissenting minority judgment, McLachlin J., with whom L'Heureux-Dubé J. concurred, took the position that all tribunals and commissions that had authority to determine questions of law had the jurisdiction to consider Charter issues that arose for consideration in the course of their functions, unless the legislature had expressly withdrawn that capacity from them or confined them to determining questions of fact alone.

30Following the decision of the Divisional Court in this case, the Supreme Court released Martin, supra, and the companion decision Paul v. B.C. (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585. In Martin, the Supreme Court reappraised the law respecting the jurisdiction of administrative tribunals to apply the Charter and adopted an approach more closely aligned with that advocated by the minority in Cooper. On behalf of a unanimous court, Gonthier J. held that administrative tribunals endowed with explicit or implicit jurisdiction to decide questions of law arising under a legislative provision are presumed to have jurisdiction to decide the constitutional validity of that provision. This presumption can only be rebutted if it is shown that the legislature clearly intended to exclude Charter issues from the tribunal's authority over questions of law: see Charette, supra, per Bastarache J., at para. 26. Gonthier J. for a unanimous Supreme Court held as follows at para. 48:

The current, restated approach to the jurisdiction of administrative tribunals to subject legislative provisions to Charter scrutiny can be summarized as follows: (1) the first question is whether the administrative tribunal has jurisdiction explicit or implied, to decide questions of law arising under the challenged provision. (2) (a) Explicit jurisdiction must be found in the terms of the statutory grant of authority. (b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal's capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. (3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter. (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by (a) pointing to an explicit withdrawal of authority to consider the Charter; or (b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations.

31The facts in Martin involved two workers who suffered from chronic pain attributable to a work-related injury. Although they received interim benefits, the Workers' Compensation Board denied them a permanent partial disability award because certain program regulations and portions of the Nova Scotia Workers' Compensation Act, S.N.S. 1994-95, c. 10, as amended by S.N.S. 1999, c.1, excluded chronic pain from the purview of regular workers' compensation and provided instead a four-week Functional Restoration Program beyond which no benefits were available. The workers appealed the Workers' Compensation Board's decision to the Workers' Compensation Appeals Tribunal ("Appeal Tribunal") on the ground that it violated their rights under s. 15(1) of the Charter. The Workers' Compensation Board challenged the Appeals Tribunal's jurisdiction to hear the Charter arguments. Applying the restatement of the law I have quoted above, Gonthier J. held that the Appeals Tribunal had jurisdiction to consider the constitutionally challenged provisions.

32In the companion decision of Paul, the Ministry of Forestry seized four logs in the possession of Paul, a registered Indian, who planned to use the wood to build a deck for his home. He asserted that he had an aboriginal right to cut wood to modify his house under s. 35 of the Constitution Act, 1982, and that s. 96 of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c.159, which contained a general prohibition against cutting timber on Crown land, did not affect him. Both the District Manager and the Administrative Review Panel agreed that Paul had contravened the Forest Practices Code. Paul appealed to the Forest Appeals Commission, which in turn held it was able to hear and determine the aboriginal rights issues in the appeal. Bastarache J., writing for the court agreed with the commission. In so doing, he held, with some qualifications, that as a law of general application, the Forest Practices Code applies to Indians. He then made the point that a determination of a constitutional issue by a tribunal is very different than that of a court. Bastarache J. stated at para. 31 that, "Unlike the judgments of a court, the commission's decisions do not constitute legally binding precedents, nor will their collective weight over time amount to an authoritative body of common law. They could not be declaratory of the validity of any law." Further, as constitutional determinations, the commission's rulings would be reviewable on a standard of correctness basis. In response to the argument that the issue was too complex for the Administrative Review Panel, Bastarache J. held that there was no principled and convincing way to distinguish between simple and complex questions relating to aboriginal law. At para. 37 of the decision Bastarache J. stated:

The nature of the question (fact, mixed fact and law, or law) assists in determining the standard of review for decisions by administrative tribunals: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748. Such distinctions are not watertight enough, however, to serve as the basis for determining a board's jurisdiction to hear and decide a question.

33Bastarache J. held that the appropriate test was, as in Martin, whether the tribunal had the power to determine questions of law. The principle of constitutional supremacy in s. 52 of the Constitution Act, 1982 leads to a presumption that all legal decisions will take into account the supreme law of the land. Citing Martin, supra, at para. 36, to the effect that, "the power to decide a question of law is the power to decide by applying only valid laws" Bastarache J. held at para. 39:

One could modify that statement for the present appeal by saying that the power of an administrative board to apply valid laws is the power to apply valid laws only to those factual situations to which they are constitutionally applicable, or to the extent that they do not run afoul of s. 35 rights. This Court's decision in Cooper, supra, has too easily been taken as suggesting that practical considerations relating to a tribunal may readily overcome this presumption . . ..Practical considerations will generally not suffice to rebut the presumption that arises from authority to decide questions of law. This is not to say, however, that practical considerations cannot be taken into consideration in determining what is the most appropriate way of handling a particular dispute where more than one option is available.

34In addition, Bastarache J. held at para. 40 that an "inferior court's remedial powers are not determinative of its jurisdiction to hear and determine constitutional issues." Outside the unique context of Mills v. The Queen, [1986] 1 S.C.R. 863, and questions relating to s. 24(1) of the Charter, which uses the term "court of competent jurisdiction", lines will not be drawn between the kinds of constitutional questions that a tribunal is able to hear.

35As stated, following the hearing of this appeal, the Supreme Court of Canada released two more decisions pertinent to this appeal: Morin and Charette.

36In Morin, the issue was whether a labour arbitrator under the Quebec Labour Code, R.S.Q. c. C-27, had exclusive jurisdiction or whether the Quebec Human Rights Tribunal also had jurisdiction to decide an issue of alleged discrimination respecting the negotiation and entering into of a term in the teachers collective agreement that adversely affected only one sector, younger and less experienced teachers. The majority of the court, composed of McLachlin C.J.C., Iacobucci, Major, Binnie and Fish JJ. held that the arbitrator did not have exclusive jurisdiction; the Human Rights Tribunal also had jurisdiction over the complaint. The majority characterized the dispute at para. 25, in its essential nature, as one that engaged "matters which pertain more to alleged discrimination in the formation and validity of the agreement, than to its 'interpretation or application', which is the source of the arbitrator's jurisdiction under the Labour Code s. 1(f)." The majority held that this was the type of issue that the Human Rights Commission and Tribunal were created to resolve. Moreover, as the issue had application beyond the parties before the arbitrator, the majority held the Human Rights Tribunal was a more appropriate forum to deal with the issue than a grievance arbitration. Bastarache and Arbour JJ., dissenting, were of the view that the matter fell within the exclusive jurisdiction of an arbitrator under the Labour Code, in that the dispute essentially concerned issues of pay and seniority within the scope of the collective agreement, which were under the exclusive jurisdiction of the arbitrator.

37In Charette, the court applied its analysis from Martin to a case that raised an issue respecting provincial human rights legislation. Charette dealt with the issue of whether the tribunal administering a social assistance program, the Commission des affaires sociales (CAS), had exclusive jurisdiction or whether the Quebec Human Rights Commission also had jurisdiction. Charette participated in a government program that provided social assistance benefits to low-income families in which at least one adult was receiving income from employment in the labour force. When Charette, who was pregnant, went on maternity leave from her employment, she was told that her employment insurance benefits did not constitute income from employment. She did not seek review or launch an administrative appeal but filed a complaint with the Quebec Human Rights Commission alleging discrimination on the basis of sex and pregnancy. The complaint was referred to the Human Rights Tribunal and the issue was whether the Tribunal should decline jurisdiction on the basis that the constituent legislation of the CAS gave it exclusive jurisdiction over the dispute. In order to determine whether the dispute fell within the exclusive jurisdiction of the CAS, and therefore bar the commission from hearing the matter, the court found it necessary to characterize the nature of the dispute. The court released three sets of reasons. A majority of four justices concluded that exclusive jurisdiction lay with the CAS.

38Bastarache and Arbour JJ. concluded that the essential character of the dispute consisted in deciding whether the complainant qualified for the social assistance program in question and that the issue fell within the exclusive jurisdiction of the CAS. They also relied on the clause in the legislation granting the CAS exclusive jurisdiction in holding that the CAS, and not the Human Rights Tribunal, had sole jurisdiction to decide the dispute.

39Binnie and Fish JJ. concurred in the result with Bastarache and Arbour JJ. but wrote separate reasons. They relied primarily on the exclusivity clause rather than the characterization of the nature of the dispute. Because s. 21 of the governing legislation stated that the administrative appeal route for dissatisfied claimants was not overlapping or concurrent with the jurisdiction of the courts or other tribunals but was exclusive to the administrative tribunal, they concluded that the clear legislative intent must prevail and that the Human Rights Commission did not have jurisdiction. In that regard, they commented at para. 35 that, "a judicial evaluation of the 'essential nature' of the dispute should not trump a clear legislative direction to have claims for provincial income security benefits determined by the Commission des affaires sociales (CAS)."

40McLachlin C.J.C., with Iacobucci and Major JJ. concurring, reached the opposite conclusion. She characterized the dispute as being about discrimination on the grounds of pregnancy and therefore essentially a human rights claim within the jurisdiction of the Quebec Human Rights Tribunal.

41These cases demonstrate that in deciding whether the administrative body or the procedure under human rights legislation should be used to resolve a dispute involving an allegation of discrimination, a number of essential factors must be taken into consideration, as well, the court should scrutinize the governing legislative provisions and characterize the essential nature of the dispute. In particular, the court should consider the importance of the factual context respecting the dispute as to the policy concerns that are raised; the objective of the legislation, that is, whether the legislature intended that the tribunal reviewing the administrator's decision to have exclusive jurisdiction; relevant expertise; any practical constraints; and the consequences of having the tribunal, as opposed to the administrative body, review the decision respecting the remedies proposed.

V. Application of the jurisprudence to these appeals

A question of law

42The Director and the Tribunal are creatures of statute, and thus their jurisdiction is as set out in the governing legislation. The ODSPA does not expressly state that the Director has power to determine a question of law. The question is, therefore, whether the Tribunal has the implied power to determine questions of law by having regard to the statute as a whole, and determining whether the authority to decide questions of law is necessary for the Tribunal to fulfill its mandate. A further consideration is whether the Tribunal is adjudicative in nature.

43As I have indicated, the legislation provides that the Tribunal has the same powers as the Director: s. 29(3) of the ODSPA. The Director's powers and duties are listed in s. 38 of the ODSPA and include the authority to "determine the eligibility of each applicant for income support." The appellants submit that the power to determine the eligibility of an applicant for income support raises a question of law.

44I would agree. In determining whether a person is disabled within the meaning of the ODSPA, the Director makes factual findings and applies them to the statutory criteria for eligibility. The statutory criteria are a legal standard prescribed by law.

45The Supreme Court of Canada's jurisprudence makes it clear that the application of a legal standard to undisputed factual findings is a question of law. For example, the legal effect to be given to a trial judge's findings of fact of itself constitutes a question of law in the context of criminal appeals: see Rex v. Boak, [1925] S.C.R. 525; R. v. Morin, [1992] 3 S.C.R. 286; R. v. Mara, [1997] 2 S.C.R. 630; and R. v. Greyeyes, [1997] 2 S.C.R. 825 and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. Although these cases all deal with Crown appeals from acquittals in indictable matters, where the jurisdiction of the appellate court is restricted to a question of law alone, there is no reason why the Supreme Court of Canada's discussion in these cases about what constitutes a question of law should not apply here. In the Araujo decision LeBel J., writing for a unanimous court stated at para. 18:

The interpretation of a legal standard has always been recognized as a question of law: R. v. Ewanchuk. Moreover, our Court has recently recognized that if a question is about the application of a legal standard, that is enough to make it a question of law: R. v. Biniaris [citations omitted].

46In Mara, Sopinka J. held that the determination of whether a performance was indecent, was a question of law. Similarly, in the case at hand, the determination of whether the appellants' restrictions in their daily living activities are a "disability" within the meaning of s. 5 of the ODSPA, is a question of law.

47Other provisions of the ODSPA and its regulations support the conclusion that the Tribunal has authority to determine questions of law. For example, pursuant to s. 28 of the ODSPA, the Tribunal must refuse to hear an appeal if it determines the appeal is frivolous or vexatious; a determination based upon a question of law.

48Under the regulations to the ODSPA, and specifically O. Reg. 330/00 as amended by O.Reg. 173/04, financial assistance may be provided to a parent on behalf of his or her severely disabled child. Section 5 states that where a person did not file an income tax return because the person was not resident in Canada the preceding year, or the person is unable to provide a copy of his or her tax return for the preceding year, the Director may determine that person's income. Whether the receipt of money is "income" is a question of law. In determining who is to be considered a "parent" for the purposes of the ODSPA, the Director may also have to determine whether a person has "demonstrated a settled intention to treat the child as a child of his or her own family." Again, this involves the application of a legal standard to facts and is a question of law.

49Section 21 of the Act provides that only certain of the Director's decisions may be appealed to the Tribunal. For those that can be appealed, s. 23(10) of the ODSPA states that, "The onus lies on the appellant to satisfy the Tribunal that the decision of the Director is wrong." The Tribunal must therefore decide whether the appellant has discharged its burden of proof. This is a question of law.

50My review of the legislation indicates that the ability of the Tribunal to decide questions of law is necessary for the Tribunal to fulfill its mandate.

51The Tribunal is independent from the Director. The Chair, up to two Vice-Chairs, as well as the other members of the Tribunal, are appointed and paid by the Lieutenant Governor in Council: see s.61 of the OWA. Its members must not have taken part in any investigation or consideration of the subject matter before the hearing and cannot communicate with any person except on notice to, and after all parties have an opportunity to participate: see s. 66(2) of the OWA.

52The Tribunal performs functions of an adjudicative nature. It holds hearings although the hearing may be a paper hearing. No member of the Tribunal can make a decision following a hearing unless he or she was present throughout the hearing: OWA, s. 66(4). Aspects of natural justice that the legislation provides for include notice to all parties and disclosure of any written submissions the Director intends to make: see s. 28 of the OWA. In addition, s. 67(2) of O.Reg. 222/98, as amended by O.Reg. 232/04, provides that, "The Tribunal's findings of fact shall be based exclusively on evidence admissible and facts of which notice may be taken" under certain sections of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The Tribunal must give written reasons for its decision and, as required by s. 67(3) of the regulation, the decision "shall include the principal findings of fact and its conclusions based on those findings" (O.Reg. 222/98, s. 67).

53I would hold that the Tribunal has implied authority to decide questions of law. Thus, a rebuttable presumption arises that it has authority to decide an issue respecting the Code.

Is the presumption rebutted?

(i) Has there been an express or implied withdrawal of jurisdiction to consider matters under the Code?

54Neither the ODSPA nor the OWA contain any express withdrawal of the Tribunal's authority to consider the Code.

55However, s. 67 (2) of the OWA states,

67(2)

The Tribunal shall not inquire into or make a decision concerning,

(a)

the constitutional validity of a provision of an Act or a regulation; or

(b)

the legislative authority for a regulation made under an Act.

56The respondents submit that in excluding the validity of a provision of the Act or regulation from constitutional, and therefore Charter scrutiny, the legislature by implication intended to exclude from the consideration of the Tribunal whether the legislation infringes the Code. I would disagree. The legislature clearly put its mind to the issue of jurisdiction, and decided to withdraw jurisdiction only with respect to the constitutional validity of statutes or regulations under the OWA and ODSPA, or a challenge to the legislative authority for a regulation made under the OWA and ODSPA. The legislature did not exclude the Code. The general principle of statutory interpretation is that to express one thing is to exclude another: see R. Sullivan, Sullivan and Dreidger on the Construction of Statutes, 4^th ed. (Markham: Butterworths, 2002) at 186-187. The express inclusion of a particular item and not of another similar item suggests that the legislature acted deliberately. Further, because the ODSPA is legislation that confers a benefit, an interpretation that favours the appellant-applicants is to be preferred over one that does not: see Gray v. Ontario (Director, Disability Support Program) (2002), 59 O.R. (3d) 364 (C.A.).

57The respondents argue that, using a purposive approach to the interpretation of the legislation, the legislature impliedly intended that the Code should not apply. To answer this submission it is necessary to look at the ODSPA as a whole. Section 45 of the ODSPA gives the Director the power to establish a fraud control unit to investigate the eligibility of applicants and recipients. In addition, pursuant to s. 47 of the Act, the Director may appoint family support workers to collect and disclose personal information in order to assist in legal proceedings to enforce the support orders and agreements of recipients. The ODSPA also provides for the disclosure of personal information collected for the purposes of administering or enforcing the Act to certain other government bodies that administer or enforce a social benefit program or certain other prescribed statutes: see s. 53. A distinctive feature of the legislation is that it involves the power to compel the disclosure of personal information by individuals applying for a benefit. Unless the Act and the validity of these provisions were isolated from Charter scrutiny, it appears the government was of the opinion that its policy of providing social benefits only to those meeting the eligibility criteria stipulated in the legislation, could not be effectively administered. I do not see how applying the provisions of the Code would impede the effective administration of the legislation.

58The Code is legislation of general application that prima facie applies to everyone. The respondents concede that in applying the ODSPA, the Director and the Tribunal must take the Code into account. As in Paul, and Charette, I see no legal justification for making a distinction between questions of law based on human rights grounds and those that are not. In order to fulfill its mandate effectively, the Tribunal ought to apply validly enacted laws only to the extent that they do not run afoul of the Code.

59I would hold that the legislation does not expressly or by implication exclude consideration of the Code.

(ii) Practical considerations

60The respondent submits that practical considerations rebut the presumption that the Tribunal has authority to decide questions of law. In Martin, Gonthier J. held at para. 32, that practical considerations cannot override a clear implication from the statute itself that the Tribunal has jurisdiction to decide questions of law. Further, in Paul, Bastarache J. held, at para. 39, that although practical considerations will generally not suffice to rebut the presumption, practical considerations may be taken into account in determining what is the most appropriate way of handling a particular dispute when more than one option is available.

61I have held that the clear implication from the statute itself is that the Tribunal has jurisdiction to decide questions of law. I would therefore hold that practical considerations do not deprive the Tribunal of jurisdiction to decide the issue of whether s. 5(2) contravenes the Code. Practical considerations should, however, be taken into account in determining whether the Tribunal or the procedure under the Code is the most appropriate for resolving this dispute.

62I would hold that the presumption that the Tribunal has jurisdiction has not been rebutted expressly or by implication.

Is the Tribunal the most appropriate forum in which to determine the dispute?

63To decide the most appropriate forum for determining the dispute, the Supreme Court has held that the factual and legislative context of the dispute must be reviewed with a view to determining the "essential character of the dispute". That is not an easy determination.

64On the one hand, the essential character of the dispute in this case can be seen as a dispute about whether a social benefit should be granted to two individuals who are addicted to alcohol. On the other, the essential character of the dispute can be seen as a dispute about whether the definition of disability in the ODSPA violates the Code and impermissibly discriminates against the appellants and other persons in their position.

65Only the Tribunal can grant the appellants a social benefit. But the Tribunal's decision will only determine the eligibility of a particular claimant and therefore the applicability of its decision would be limited to the case before it. The Human Rights Commission can refer the subject matter of the complaint to the Human Rights Tribunal. If the Human Rights Tribunal holds that s. 1 of the Code has been infringed, then, under s. 41 of the Code, it can direct the Tribunal to do what is necessary to achieve compliance with the Code, both in respect of the complaint and in respect of future practices. In addition, the Human Rights Tribunal can direct that compensation be paid for loss arising out of the infringement. The issue raised in this case requires a decision that has broad application beyond the circumstances of the individual claimants because it raises a policy issue.

66The ODSPA does not say that the Tribunal has exclusive jurisdiction. Thus, the legislation itself does not dictate the choice of forum.

67Insofar as practical considerations are concerned, the appellants submit that a hearing before the Tribunal would enable the factual context respecting the dispute and the policy objectives of the ODSPA to be better considered. I would not necessarily agree. The Tribunal is not a body of record and its proceedings are held in camera. By contrast, a record is kept when the Human Rights Tribunal holds an oral hearing and it is available on judicial review. The existence of a record enables the factual context of the dispute to be fully transparent to all those involved in the decision-making process.

68The appellants further submit that the Tribunal is readily accessible to a person making a claim for a social benefit and provides a relatively fast and inexpensive adjudicative scheme for having a determination of the issue, whereas the process under the Code is slow and time-consuming. The Divisional Court held, however, that the Tribunal's procedures, as provided in the ODSPA, did not appear to be appropriate for resolving human rights issues. Front-line workers who process applications for benefits under the ODSPA routinely make the decision for the Director concerning eligibility for social benefits. The Divisional Court also held that "The evidence before us does not indicate an expertise in the Tribunal to address human rights issues." Without the necessary expertise speedy justice would not be available. Further, if the Tribunal deals with challenges under the Code, these challenges will be legally complex and time-consuming and will detract from the Tribunal's ability to hear and determine other appeals in a timely manner.

69Considering that the essential character of the dispute raises a policy question concerning human rights that has broad application beyond these cases; that the legislature did not confer exclusive jurisdiction on the Tribunal; that the Tribunal does not appear to have the expertise to deal with human rights issues; and finally, that practical considerations militating in favour of the issue being decided by the Tribunal appear to be rebutted, I would hold that the dispute as to whether s. 5(2) infringes the Code is one that is best determined by the procedure under the Code.

VI. Conclusion

70I would hold that because the Tribunal has jurisdiction to decide questions of law, and this jurisdiction is not rebutted, the Divisional Court erred in holding that the Tribunal does not have jurisdiction to decide whether s. 5(2) of the ODSPA violates the Code. In the end, however, because I would hold that the Tribunal is not the most appropriate forum in which to make this determination I would dismiss the appeal.

VII. Costs

71Neither the appellant nor the respondent sought any costs. I would award no costs.

Footnotes

1. 1In a prior case involving a challenge to the mandatory retirement policy in a collective agreement, Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570, the Supreme Court of Canada had decided that the arbitrator could consider the Charter. The authority to do so was found in the legislation authorizing the arbitrator to interpret and apply any statute intended to regulate employment.