Director, Ontario Disability Support Program v. Tranchemontagne et al. [Indexed as: Ontario (Director, Disability Support Program) v. Tranchemontagne]

95 O.R. (3d) 327

Ontario Superior Court of Justice,

Divisional Court,

Cunningham A.C.J.S.C., Bellamy and Gray JJ.

April 20, 2009

Human rights -- Discrimination -- Disability -- Social Benefits Tribunal finding that s. 5(2) of Ontario Disability Support Program Act (which denies benefits to persons who are addicted to alcohol or [page328] non-prescription drugs where only substantial restriction in activities of daily living is attributable to use or cessation of alcohol or drugs) is discriminatory and that alcoholics who were disabled by that condition were eligible for benefits under Act -- Tribunal's decision correct -- Tribunal not required to apply third, dignity-focused step of Law analysis in determining whether s. 5(2) of Act is inconsistent with Human Rights Code -- Complainants establishing prima facie case of discrimination and Director of Ontario Disability Support Program not rebutting that case -- Human Rights Code, R.S.O. 1990, c. H.19 -- Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, s. 5(2).

The claimants were alcoholics who were disabled by that condition. They were denied benefits under the Ontario Disability Support Program Act, 1997 ("ODSPA") on the basis that they were members of a "sole impairment group". Section 5(2) of the ODSPA provides that a person is not eligible for income support if the person is dependent on or addicted to alcohol, a drug or some other chemically active substance; the alcohol, drug or other substance has not been authorized by prescription; and 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. The Social Benefits Tribunal found that the claimants' rights under s. 1 of the Human Rights Code were infringed by the decision that they were ineligible for ODSP support pursuant to s. 5(2) of the ODSPA simply because they were members of the sole impairment group. The Tribunal found that s. 5(2) of the ODSPA is discriminatory and inconsistent with the Code and concluded that the claimants were entitled to income support under the ODSPA. The Director appealed.

Held, the appeal should be dismissed.

The Tribunal was not required to apply the third, dignity- focused step of the test for discrimination set out in the decision of the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration) in determining whether s. 5(2) of the ODSPA is inconsistent with the Code. The Supreme Court has recently affirmed that Law did not impose a new and distinctive test for discrimination. The four contextual factors offered in the third part of the Law test were not intended to be a legal test and were most definitely not to be applied as a formulaic test for determining substantive inequality. In the human rights context, the appropriate test is the following: (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 complainant established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the claimant established a statutory defence under the Code? In this case, the Director conceded that differential treatment based on a prohibited ground existed. As a result, the Tribunal was correct in deciding that the claimants had established a prima facie case. It was then up to the Director to rebut that prima facie case, and it failed to do so.

Before the Tribunal, the parties agreed that the claimants were members of the sole impairment group and that the proper comparator group was to be those persons with other or additional impairments. The Supreme Court is moving away from a requirement to use a specific comparator group against which the discriminatory effect of impugned legislation is to be assessed. At the very least, it would appear the court is moving away from the necessity for a formalistic comparator- group analysis. If the Tribunal was required to use a comparator group, it used the correct one. [page329]

The Tribunal did not err in finding s. 5(2) of the ODSPA to be a law that denies income support and imposes restrictions because of assumed or unjustly attributed characteristics and therefore denies the essential human worth of the claimants and those like them, and that it is therefore discriminatory.

APPEAL from the decision of the Social Benefits Tribunal.

Cases referred to British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (BCGSEU), 1999 652 (SCC), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46, 176 D.L.R. (4th) 1, 244 N.R. 145, [1999] 10 W.W.R. 1, J.E. 99-1807, 127 B.C.A.C. 161, 66 B.C.LR. (3d) 253, 46 C.C.E.L. (2d) 206, 99 CLLC Â230-028, 68 C.R.R. (2d) 1, 90 A.C.W.S. (3d) 764; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 646 (SCC), [1999] 3 S.C.R. 868, [1999] S.C.J. No. 73, 181 D.L.R. (4th) 385, 249 N.R. 45, [2000] 1 W.W.R. 565, J.E. 2000-43, 131 B.C.A.C. 280, 70 B.C.L.R. (3d) 215, 47 M.V.R. (3d) 167, REJB 1999-15531, 93 A.C.W.S. (3d) 524; Ermineskin Indian Band and Nation v. Canada, [2009] S.C.J. No. 9, 2009 SCC 9, 384 N.R. 203, J.E. 2009-348, EYB 2009-154400, 302 D.L.R. (4th) 577, [2009] 2 C.N.L.R. 102; Law Society of British Columbia v. Andrews, 1989 2 (SCC), [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289, J.E. 89-259, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 36 C.R.R. 193, 13 A.C.W.S. (3d) 347; Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, [1985] S.C.J. No. 74, 23 D.L.R. (4th) 321, 64 N.R. 161, J.E. 86-88, 12 O.A.C. 241, 17 Admin. L.R. 89, 9 C.C.E.L. 185, 86 CLLC Â17,002 at 16018, 34 A.C.W.S. (2d) 109, 64 di 60, 7 C.H.R.R. D/3102; R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 2008 SCC 41, 175 C.R.R. (2d) 185, EYB 2008-135098, J.E. 2008-1323, [2008] 8 W.W.R. 1, 294 D.L.R. (4th) 1, 232 C.C.C. (3d) 349, [2008] 3 C.N.L.R. 347, 376 N.R. 1, 256 B.C.A.C. 75, 78 W.C.B. (2d) 343, 37 C.E.L.R. (3d) 1, 58 C.R. (6th) 1, apld Gwinner v. Alberta (Minister of Human Resources and Employment), [2004] A.J. No. 788, 2004 ABCA 210, 245 D.L.R. (4th) 158, [2004] 8 W.W.R. 407, 29 Alta. L.R. (4th) 37, 354 A.R. 21, 42 C.C.P.B. 191, 120 C.R.R. (2d) 373, 134 A.C.W.S. (3d) 858, affg [2002] A.J. No. 1045, 2002 ABQB 685, 217 D.L.R. (4th) 341, [2003] 4 W.W.R. 454, 11 Alta. L.R. (4th) 259, 321 A.R. 279, 116 A.C.W.S. (3d) 407 [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 342]; Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, 170 D.L.R. (4th) 1, 236 N.R. 1, J.E. 99-700, 43 C.C.E.L. (2d) 49, 60 C.R.R. (2d) 1; Ontario (Attorney General) v. Ontario (Human Rights Commission) (2007), 2007 56481 (ON SCDC), 88 O.R. (3d) 455, [2007] O.J. No. 4978, 232 O.A.C. 102, 288 D.L.R. (4th) 138, 165 C.R.R. (2d) 228, 62 C.H.R.R. D/315, 162 A.C.W.S. (3d) 1012 (Div. Ct.) [Leave to appeal dismissed, unreported (C.A.)]; Ontario Secondary School Teachers' Federation v. Upper Canada District School Board (2005), 2005 34365 (ON SCDC), 78 O.R. (3d) 194, [2005] O.J. No. 4057, 260 D.L.R. (4th) 515, 203 O.A.C. 98, [2005] CLLC Â 230-030, 133 C.R.R. (2d) 268, 142 A.C.W.S. (3d) 612, 144 L.A.C. (4th) 97 (Div. Ct.), consd Other cases referred to Battlefords and District Co-operative Ltd. v. Gibbs, 1996 187 (SCC), [1996] 3 S.C.R. 566, [1996] S.C.J. No. 55, 140 D.L.R. (4th) 1, 203 N.R. 131, [1997] 1 W.W.R. 1, 24 C.C.E.L. (2d) 167, 40 C.C.L.I. (2d) 1, 96 CLLC Â230-051, [1997] I.L.R. I-3432, 66 A.C.W.S. (3d) 525; Brooks v. Canada Safeway Ltd., 1989 96 (SCC), [1989] 1 S.C.R. 1219, [1989] S.C.J. No. 42, 59 D.L.R. (4th) 321, 94 N.R. 373, [1989] 4 W.W.R. 193, J.E. 89-773, 58 Man. R. (2d) 161, 26 C.C.E.L. 1, 89 CLLC Â17,012 at 16077, 45 C.R.R. 115; Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116, 144 D.L.R. (4th) 1, 209 N.R. 20, J.E. 97-632, 50 Admin. L.R. (2d) 199, 71 C.P.R. (3d) 417, 69 A.C.W.S. (3d) 586, REJB 1997-00386; [page330] Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65; Entrop v. Imperial Oil Ltd. (2000), 2000 16800 (ON CA), 50 O.R. (3d) 18, [2000] O.J. No. 2689, 189 D.L.R. (4th) 14, 137 O.A.C. 15, 2 C.C.E.L. (3d) 19, [2000] CLLC Â230-037, 98 A.C.W.S. (3d) 418 (C.A.); Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, 2002 SCC 84, 221 D.L.R. (4th) 257, 298 N.R. 1, J.E. 2003-126, 100 C.R.R. (2d) 1, 119 A.C.W.S. (3d) 43; Hodge v. Canada (Minister of Human Resources and Development), [2004] 3 S.C.R. 357, [2004] S.C.J. No. 60, 2004 SCC 65, 244 D.L.R. (4th) 257, 326 N.R. 201, J.E. 2004-2051, 125 C.R.R. (2d) 48, 134 A.C.W.S. (3d) 593; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, [1989] S.C.J. No. 47, 96 N.R. 115, J.E. 89-791, 34 O.A.C. 115, 48 C.C.C. (3d) 8, 69 C.R. (3d) 97, 39 C.R.R. 306; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68, 127 D.L.R. (4th) 1, 187 N.R. 1, J.E. 95-1766, 100 C.C.C. (3d) 449, 62 C.P.R. (3d) 417, 31 C.R.R. (2d) 189, 57 A.C.W.S. (3d) 578, 28 W.C.B. (2d) 216; Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, [2006] S.C.J. No. 14, 2006 SCC 14, 266 D.L.R. (4th) 287, 347 N.R. 144, J.E. 2006-879, 210 O.A.C. 267, 42 Admin. L.R. (4th) 104, 147 A.C.W.S. (3d) 326, EYB 2006-104056, 56 C.H.R.R. D/1, revg (2004), 2004 41165 (ON CA), 72 O.R. (3d) 457, [2004] O.J. No. 3724, 244 D.L.R. (4th) 118, 190 O.A.C. 108, 133 A.C.W.S. (3d) 725 (C.A.), affg [2003] O.J. No. 1409 (S.C.J.); Werbeski v. Ontario (Director, Disability Support Program), [2003] O.J. No. 1409 (S.C.J.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 2(b), 15, (1) Family Benefits Act, R.S.O. 1990, c. F.2 Human Rights Code, R.S.O. 1990, c. H.19, ss. 1 [as am.], 10(1) [as am.] Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, ss. 4(1), 5(2), 31, (1) Ontario Works Act, 1997, S.O. 1997, c. 25, Sch. A, s. 67(2) Rules and regulations referred to General Regulation [Ontario Disability Support Program Act], O. Reg. 222/98, s. 4(1) [as am.] Authorities referred to Schucher, Karen, and Judith Keene, "Statutory Human Rights and Substantive Equality -- Why and How to Avoid the Injury of the Law Approach" (5 March 2007), online: Women's Legal Education and Action Fund

Elaine Atkinson and Sarah Kraicer, for appellant. Lesli Bisgould and Terence Copes, for respondent.

The judgment of the court was delivered by

BELLAMY J.: -- [page331]

Introduction

1This case has a ten-year history. It is about two acknowledged alcoholics, disabled by their disease, who seek to obtain benefits under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B ("ODSPA").

2At issue is whether the Social Benefits Tribunal (the "Tribunal") erred when it concluded that an alcoholic who is disabled exclusively by his or her substance dependence is entitled to income support under the Ontario Disability Support Program ("ODSP") instead of under the Ontario Works program ("OW"). The crux of this appeal is whether the Tribunal undertook the correct legal analysis, and arrived at the correct conclusion, in finding that the respondents' exclusion from eligibility for benefits under the ODSPA was discriminatory, contrary to s. 1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code").

3The relevant legislative provisions referred to in these reasons are contained in the Appendix.

Background

The Ontario Disability Support Program Act versus the Ontario Works Act

4Ontario delivers social assistance to eligible applicants by means of two separate statutes: the ODSPA and the Ontario Works Act, 1997, S.O. 1997, c. 25, Sch. A ("OWA"). The ODSPA is intended to apply to disabled applicants by providing them with continuous, potentially long-term income support. Generally, these applicants are substantially impaired and are therefore unable to function in a personal, social or occupational capacity. OW, on the other hand, is intended to apply to eligible non-disabled applicants by providing temporary financial assistance to persons attempting to obtain employment. OW is considered a transitional program of last resort designed to get people back into the workforce. OW recipients are required to participate in "employment assistance activities" to remain eligible for benefits.

5The difference in the levels of support between the two regimes is significant. When the respondents' application was before the Tribunal, ODSP recipients received $959 per month; OW recipients received $536. The disparity of $423 per month was to reflect the inherent differences between the two programs, with ODSP providing support on a potentially life- long basis and OW providing only temporary assistance while the individual tried to become self-sufficient. [page332]

6As the Supreme Court of Canada noted in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, [2006] S.C.J. No. 14 ("Tranchemontagne"), at para. 3:

It is clear that the ODSPA and the OWA are meant to serve very different goals. The former statute is meant to ensure support for disabled applicants, recognizing that the government shares in the responsibility of providing such support (ODSPA, s.1). The latter statute, on the other hand, seeks to provide only temporary assistance premised on the concept of individual responsibility (OWA, s.1). The divergent purposes of these two statutes was alluded to by the Honourable Janet Ecker, the Ontario Minister of Community and Social Services, on the day after the ODSPA was proclaimed:

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 . . . (Legislative Assembly of Ontario, Official Report of Debates, No. 19A, June 2, 1998 at p. 971)

The individual respondents

7This appeal involves Robert Tranchemontagne and Norman Werbeski. At the time of writing, Mr. Tranchemontagne is a 55- year-old chronic alcoholic who has suffered from alcoholism since his late 30s. He has been receiving general welfare assistance since 1992. Mr. Werbeski is 51 years of age and suffers from numerous conditions, including alcohol and drug dependence syndrome, antisocial personality disorder and depression. Both have a long history of substance abuse.

8In the spring of 1999, Mr. Tranchemontagne applied for benefits under the ODSPA. In his application, he identified his principal disabling conditions as "chronic alcoholism and seizures". The seizures were understood to relate to his alcoholism. On September 15, 1999, his application was denied on the basis that he was not a person with a disability within the meaning of s. 4(1) of the ODSPA:

4(1) A person is a person with a disability for the purposes of this Part if, (a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more; (b) the direct and cumulative effect of the impairment on the person's ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and (c) the impairment and its likely duration and the restriction in the person's activities of daily living have been verified by a person with the prescribed qualifications. [page333]

9The Director of the ODSP determined that Mr. Tranchemontagne's conditions did not result in a substantial restriction on his daily activities and could not be considered to produce a "substantial physical or mental impairment".

10Mr. Tranchemontagne requested an internal review of the Director's decision from the Disability Adjudication Unit, which later confirmed the Director's decision that he was not considered to be a person with a disability. His subsequent appeal of this result confirmed the earlier decision. He then appealed to the Social Benefits Tribunal.

11Mr. Tranchemontagne did not attend the hearing of his appeal before the Tribunal and his appeal was denied. He applied for reconsideration on the basis that he had not received a Notice of Hearing because he had recently moved. He was granted another hearing. When the Tribunal issued its decision on September 12, 2001, it found that the only disabling condition affecting Mr. Tranchemontagne was his "chronic and excessive use of alcohol". Because he was a person whose sole impairment was addiction, he was considered to be a member of a "sole impairment group" (to use the Director's terminology). Members of a sole impairment group are ineligible to receive income support through the ODSP pursuant to s. 5(2) of the ODSPA, which reads as follows:

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 of or cessation of use of the alcohol, drug or other substance at the time of determining or reviewing eligibility.

12Norman Werbeski applied for benefits under the ODSPA on July 26, 1999. His application was denied on the basis that he was not a person with a disability within the meaning of the legislation. The reasons given in the Director's decision are identical to those provided to Mr. Tranchemontagne. Mr. Werbeski requested an internal review of the Director's decision, which, as in the case of Mr. Tranchemontagne, confirmed the earlier disability determination. Mr. Werbeski then appealed to the Tribunal.

13On February 7, 2001, the Tribunal decided that the only substantial impairment Mr. Werbeski experienced was his alcoholism and found him to be ineligible for income support under s. 5(2) of the ODSPA. [page334]

14Because the respondents were found to be individuals whose sole impairment was alcohol addiction (the "sole impairment group"), they were deemed ineligible for long-term income support under the ODSPA, which is available only to those who have other or additional impairments. They received financial assistance under the OWA, which provides a lower amount of assistance, and which requires recipients to pursue employment.

15At present, both men now receive ODSP: Mr. Tranchemontagne as a result of the Tribunal decision which has generated this appeal; Mr. Werbeski because he later re-applied and was found to be eligible on the basis of concurrent disorders.

16At the first Tribunal hearings in 2001, both respondents alleged that s. 5(2) of the ODSPA discriminated against them on the basis of their disability and was therefore contrary to s. 1 of the Code, which reads as follows:

1. Every person has the 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.

As a result of the Code's paramountcy over all other provincial legislation, argued the respondents, the Tribunal was bound to consider whether a particular provision of the ODSPA was in violation of the Code. If found to be discriminatory, s. 5(2) could not be applied to the respondents.

17The Tribunal dismissed both appeals. It concluded that it had no jurisdiction to apply the Code to other legislation because to do so would contravene s. 67(2) of the OWA, which prohibits the Tribunal from inquiring into or making a decision concerning the constitutional validity or legislative authority of a provision of any provincial Act or regulation. The Tribunal found that although it was within its powers to apply the ODSPA, any alleged legislative violation of the Code was to be adjudicated elsewhere.

18The respondents appealed the Tribunal's decision to this court, which concluded that the Tribunal was correct in not proceeding to determine whether a provision of the ODSPA was inconsistent with the Code, as such a determination was beyond its jurisdiction: Werbeski v. Ontario (Director, Disability Support Program), [2003] O.J. No. 1409 (S.C.J.). While the court recognized the apparent conflict between s. 5(2) and the Code, it decided that the Tribunal was not the appropriate forum in which to address that issue. [page335]

19After seeking and obtaining leave, the respondents appealed the Divisional Court's decision to the Court of Appeal for Ontario. That court concluded that although it was within the Tribunal's jurisdiction to determine whether s. 5(2) violated the Code, it should have declined to exercise that jurisdiction, instead deferring to the Ontario Human Rights Commission which, in the circumstances, was a more appropriate forum: Tranchemontagne v. Ontario (Director, Disability Support Program) (2004), 2004 41165 (ON CA), 72 O.R. (3d) 457, [2004] O.J. No. 3724 (C.A.).

20The respondents appealed to the Supreme Court of Canada. The Supreme Court found that it was presumed to be within the Tribunal's authority to consider statutes beyond its enabling statute. Accordingly, as a statutory tribunal empowered to decide questions of law, it could apply all law, including the Code, to determine whether or not the respondents were eligible for income support. Although this presumption could be rebutted by a legislative provision authorizing the Tribunal to decline jurisdiction where the Code was in issue, the legislature had not done so. There was, therefore, no basis in law for the Tribunal's refusal to consider the ODSPA's validity under the Code. The Supreme Court remitted the respondents' case to the Tribunal for it to determine whether or not s. 5(2) violates s. 1 of the Code: Tranchemontagne v. Ontario (Director, Disability Support Program), supra.

The second tribunal hearing

21Over a period of four days in September 2006, the second Tribunal heard evidence and submissions. Except for the oral evidence of one witness called by the respondents, the rest of the evidence consisted of documentary material that had been before the first Tribunal: 17 volumes of affidavits, transcripts of cross-examinations, exhibits and answers to undertakings. There was evidence from eight witnesses, five of whom addressed the issue of addiction. The other three provided information with respect to ODSP, OW and a program called the Addiction Services Initiative ("ASI"), discussed further below.

22As a preliminary matter, the second Tribunal was required to consider whether the original Tribunal had found the respondents to be "persons with a disability" within the meaning of s. 4(1) of the ODSPA -- a finding the Director was disputing. It determined that both respondents had indeed been found to be persons with a disability under the ODSPA.

23The second issue before the Tribunal was whether the respondents' rights under s. 1 of the Code had been infringed by the Director's decision that they were ineligible for ODSP [page336] support pursuant to s. 5(2) of the ODSPA simply because they were members of the sole impairment group. It is the Tribunal's decision regarding this second issue that is appealed to this court and will be discussed in more detail below.

24The Tribunal concluded that the respondents were persons with a disability and were entitled to income support under the ODSPA irrespective of s. 5(2). It decided that this section of the ODSPA was discriminatory and inconsistent with the Code.

25The Tribunal released its decision on November 30, 2006. The Director appealed the Tribunal's decision promptly. However, as a result of various procedural questions requiring determination, the appeal could not be perfected until 2008.

Issues

26The issue in this appeal is whether the Tribunal made errors of law requiring that its decision be set aside. The appeal raises a number of discrete questions: (1) Can the evidence be categorized as legislative or social fact evidence such that the Tribunal's factual findings are not entitled to deference by this court? (2) Is this court as well placed as the Tribunal to weigh the expert evidence, given that the vast majority of it was delivered exclusively by way of affidavit? (3) Was the Tribunal required to use each of the three steps in Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12 ("Law") to determine whether s. 5(2) of the ODSPA is inconsistent with the Code? (4) If Law is not the test, what is? (5) Did the Tribunal identify incorrect comparator groups? (6) Did the Tribunal err in how it applied the four contextual factors of Law?

Analysis

Standard of review

27The parties agree that the standard of review to be applied to the Tribunal's decisions is correctness.

28We agree that the Tribunal's decision must be correct in order for it to stand. As the Supreme Court of Canada said in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, at para. 62 if an appropriate standard can be identified in [page337] the applicable jurisprudence, a full analysis is not necessary. In addition, a standard of correctness should be used where, as here, a tribunal is interpreting a general question of law, outside its expertise (at para. 60).

Jurisdiction and social fact evidence

29Pursuant to s. 31(1) of the ODSPA, the Divisional Court has jurisdiction to hear an appeal on a question of law only.

30The appellant asks this court to reverse the decision of the Tribunal and find s. 5(2) to be consistent with the Code. The appellant submits that because almost all the evidence received was by way of affidavit, this court is in as good a position to evaluate the evidence as was the Tribunal. Further, even though such a critical examination of the Tribunal's conclusions would require reconsideration of the written materials before it, this was legislative or social fact evidence as distinct from adjudicative evidence, and is therefore properly within the purview of this court on review. In support of this position, the appellant relies on the principle affirmed by the Supreme Court in RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68 that a trial judge's assessment of social or legislative facts is not entitled to the well-accepted deference to be afforded to his or her other factual findings.

31The appellant submits that, in this case, the finding as to the impact of the legislative scheme on addicted persons is similarly a finding of social or legislative fact. Therefore, the Tribunal was not in a privileged position vis-à-vis the court to make this determination. Although RJR-MacDonald dealt with an alleged violation of the right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms, the appellant submits that the same principle with respect to legislative or social fact evidence applies when an alleged violation of the Code is in issue.

32The respondents, on the other hand, submit that a decision of the Tribunal can be appealed only on a question of law. They suggest that the Director is improperly asking this court to reconsider the weight the Tribunal gave to the evidence. The factual questions, they argue, are beyond scrutiny in this appeal unless the Tribunal made a palpable and overriding error in its approach: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31. They highlight that the appellant has not used the language of "palpable and overriding error" in its attempt to have this court overturn the findings of the Tribunal.

33I agree with the respondents' submission. [page338]

34The privative clause found in s. 31 of the ODSPA clearly limits appeals from the Tribunal's decisions to questions of law. This is the legislature's statutory recognition of the Tribunal's expertise as a specialized body tasked with determining individual entitlement to social assistance and serves to insulate the Tribunal's factual findings from interference by an appellate court, unless they constitute a palpable and overriding error. Considerable deference is to be afforded to the Tribunal's factual findings, except those dealing exclusively with questions of law.

35Clearly, though, there are cases where an appellate court will be as well placed as the Tribunal to make a determination on the basis of legislative or social fact evidence. This is not that case and, even if it were, I would agree with the Tribunal's conclusions. To a large extent, the characterization of the evidence as legislative or social fact evidence as distinct from adjudicative evidence seems to be an attempt to escape the clear requirement of s. 31 of the ODSPA, which strictly confines the right of appeal to questions of law.

36This Tribunal was operating within the confines of its constitutive legislation, making decisions in areas that fall directly within its area of expertise. Perhaps even more importantly, there are matters here which are purely factual and well within the expertise of this Tribunal. Indeed, the social realities of addiction and poverty fit squarely within the expertise of this Tribunal, which regularly interprets the intricacies of the OWA and the ODSPA, and applies the distinctions between them. It is readily apparent from reading the Tribunal's decision that it is well aware of the distinctions between these two statutes.

37Having said that, it remains for me to determine whether the Tribunal's alleged errors are properly within the scope of review provided to this court under the legislation. As in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, [1996] S.C.J. No. 116, at para. 41:

If the Tribunal did ignore items of evidence that the law requires it to consider, then the Tribunal erred in law. Similarly, if the Tribunal considered all the mandatory kinds of evidence but still reached the wrong conclusion, then its error was one of mixed law and fact. The question, then, becomes whether the Tribunal erred in the way that the respondent says it erred.

38In this instance, the errors alleged by the appellant relate to the Tribunal's interpretation of s. 5(2) of the ODSPA, the legal test applied by the Tribunal in finding that provision to be discriminatory pursuant to the Code, and its treatment of the evidence of the Director's medical expert in arriving at its ultimate [page339] conclusion. These alleged errors properly raise questions of law arising out of the Tribunal's decision that are reviewable by this court.

Evaluation of the expert evidence

39This conclusion brings me to the appellant's arguments as to the cogency of the expert medical evidence before the Tribunal. This issue is related to the previous one -- that is, that this court is in as good a position to evaluate the expert evidence as the original decision-maker. The appellant would like us to substitute our findings for those of the Tribunal, submitting that the Tribunal erred in rejecting without reasons the evidence of the Director's medical expert.

40At the second hearing, the parties had been able to agree on many significant issues relating to addiction: that addiction to alcohol is a disability as that is defined in s. 10(1) of the Code; that alcoholism is a chronic, relapsing disease; that alcohol addicts have been stigmatized in the past and, in some situations, are still stigmatized; that there are different approaches to treatment; that several attempts at treatment may be necessary; that there are effective treatment plans for relapse; and that recovery may mean reduced use of alcohol rather than total abstinence.

41The key witness for the Director was Dr. William Jacyk. He is a medical doctor and a specialist in addiction medicine. He has over 25 years of direct involvement treating people with addictions, and treats ODSP and OW patients at the Homewood Health Centre, Addiction Division, in Guelph, Ontario. He was the Director's expert medical witness.

42The appellant submits that this expert's evidence was the only evidence directly relevant to the respondents' case. First, the appellant contends, Dr. Jacyk's evidence was the only evidence offering specific insight into the circumstances and capabilities of persons whose sole impairment is addiction -- that is, "the sole impairment group", as opposed to persons with disabilities generally. Second, he was the only witness who was fully familiar with the relevant legislative schemes. As a result, he was the only expert in a position to evaluate the impact of both the ODSP and the OW program on the two respondents.

[43] Dr. Jacyk's evidence covered two important points for the Director. First, he said all members of the sole impairment group are capable of working and, second, from a medical perspective, he said the OW program is the appropriate social assistance program for those addicts in the sole impairment group. It was his evidence that OW was both the appropriate [page340] and preferable program for the sole impairment group for the following reasons: (1) Seventy per cent of persons with substance dependence are employed and, as already noted, all of them are capable of employment. (2) The sole impairment group has needs distinct from those with additional impairments. Individuals with concurrent disorders -- that is, more than one impairment -- may require a longer period of time to concentrate on treatment and recovery. Dr. Jacyk has never encountered a patient who was severely addicted without some other physical or mental condition affecting the addiction. (3) Treatment is effective at all stages of addiction even when the condition is severe, and all persons with addictions are capable of recovery. Indeed, the severity of the illness which is sometimes described as "hitting bottom", can actually facilitate a favourable prognosis. (4) The work-related activities required by OW will assist an addict in recovery by promoting responsibility and self- esteem. Having work to do, paid or otherwise, assists substance-dependent individuals in pursuing recovery and provides them with a sense of purpose and a sense of belonging to society. It requires them to take responsibility and enhances their self-esteem. These and other factors promote the individual's achievement and maintenance of recovery. The OW program, by requiring work, therefore focuses on helping break the cycle of welfare dependency. (5) Being placed on disability benefits when one is capable of engaging in work activities can foster in an individual the sense that he or she cannot recover from the addiction or participate in the workforce. Treating members of the sole impairment group as persons who cannot be expected to work and placing them in ODSP would create a "spirit of infirmity", despite the fact that the illness is treatable. The goal in treating sole impairment group members is to keep the person in work by avoiding long periods of medical leave or extended disability, because even a one-year period can foster a sense in the individual that he or she is not capable of recovery or of returning to work. (6) The lower rate of financial assistance provided under OW assists recovery by limiting the amount of money available to [page341] be spent on drug or alcohol use -- that is, having less disposable income (as is the case under OW versus ODSP) means there will be less disposable money to spend on alcohol. (7) Mandated treatment is an effective way to begin treatment and may be as successful as, or even more successful than, voluntary treatment. The Addiction Services Initiative, which exists in 15 municipalities in Ontario, is a mandatory enhanced addiction treatment case-management program. Most participants in the program are ready to take on additional employment assistance activities within six to 12 months.

44The Tribunal did have other expert evidence before it. This consisted of the respondents' expert witnesses. Dr. Peter Selby is a well-respected medical doctor specializing in addiction at the Centre for Addiction & Mental Health ("CAMH"), where he is the Clinical Director of the Addictions Program. He is a clinician with experience treating multiple-disadvantaged substance-dependent people. He is a researcher in substance dependence, an educator and an administrator who develops programs for patients with addictions. Dr. Philip Berger is the Chief of the Department of Family and Community Medicine at St. Michael's Hospital in Toronto. As the medical director of an inner-city program, he has treated many patients with addictions who rely on social assistance. Dr. Patricia Erickson is a professor of sociology and a faculty member at the Centre of Criminology at the University of Toronto. She is also a Senior Scientist at CAMH. Dr. Gerry Cooper is the Manager of CAMH, Northern Region, in Sudbury. He has been a professor of addiction counselling and is a clinician in the field of alcoholism. His current work includes research into the stigma of addictions. He was the only expert who testified orally at the hearing, and it is evident from the Tribunal's decision that it made extensive use of his findings. The evidence of the other experts was received by means of affidavits, cross- examination on affidavits and responses to undertakings.

45Some of these witnesses agreed with some of the points made by Dr. Jacyk. There seemed to be no disagreement that when treating a person with an addiction, relapses happen and they are the rule rather than the exception. As well, this disease has a continuum of severity and for those who are the most severe, treatment is the most difficult. Treatment can take a long time, indeed, more than the year it takes to qualify for ODSP benefits, so it is very important to start the treatment as soon as possible. [page342]

46The primary areas of disagreement between the respondents' witnesses and Dr. Jacyk involved: (1) the nature of addiction disability, (2) treatment, (3) access to money and (4) the benefits of the ASI.

47The respondents' experts opined that not everyone with an addiction to alcohol will be sufficiently disabled to meet the definition of "person with a disability", as that is defined in s. 4(1) of the ODSPA. However, the nature of this disability is that it can cause dangerous, self-destructive behaviour. It can be marked by spending a great deal of time at activities aimed at obtaining the substance and using it, despite known health risks. Both respondents have suffered these consequences. As well, an addiction can mask other disabilities, including psychiatric ones, and it is often difficult to identify underlying disorders when an individual has a disability.

48Second, while substance dependency is a chronic relapsing disease that can be treatable, some people will never recover or regain functionality or employability, despite treatment. This can amount to as many as 10-20 per cent of the addicted population. Because relapse is the rule, the need for support is likely to be long term. Twice, Mr. Tranchemontagne participated in rehabilitation treatments at the request of his employers. Twice, the treatment programs were unsuccessful.

49With respect to the level of income support, the respondents' experts' evidence was that the assumption that "they'll just drink it" -- that giving more money to people with addictions will just lead to more drinking -- is misleading. Individuals are in a better position to recover if they have stability and reduced stress, such as that which comes from having sufficient income to keep a home and to eat properly. The nature of addiction is such that if benefits are reduced, a disabled person will often be compelled to turn to other, more harmful substances, or to more unsafe means of obtaining money to support the addiction. Neither Dr. Selby nor Dr. Berger has observed the phenomenon of the "spirit of infirmity" to which Dr. Jacyk referred.

50Lastly, contend the respondents, the ASI program is irrelevant. First, it did not even exist at the time the legislation came into effect. Second, it did not come into existence until several years after the decision was made to deny benefits to the respondents. Third, it has never been available to either respondent because it has never been offered in the regions where they live. Fourth, a decade after the ODSPA and OW came into effect, ASI is still offered in less than one-third of the delivery areas, and expansion of the program is currently on hold. [page343]

51The appellant submits that the Tribunal rejected Dr. Jacyk's evidence without providing reasons for so doing. While it might have been preferable for the Tribunal to have plainly demarcated where it did or did not specifically accept the evidence of Dr. Jacyk, in fact it has done so throughout its reasons. The Tribunal clearly considered his evidence, then reached a conclusion after considering all the evidence before it. This included credible, reliable, persuasive opinions from other experts. Given the conflicting expert evidence before it, the Tribunal was entitled -- indeed, required -- to make a decision and accept some, all or none of the evidence of the experts. There is nothing in the reasons of the Tribunal to suggest that it did not approach its task in anything but a professional manner. The Tribunal was clearly alive to the discrepancies emanating from the opinion evidence. Just as equally, it was alive to the agreements among the experts. It was open to the Tribunal to prefer the evidence of some experts over others. In the face of conflicting evidence, there is no requirement that the Tribunal accept only the evidence of Dr. Jacyk.

52It is evident that, in the main, the Tribunal preferred the evidence of the respondents' witnesses, including the one who testified in person. This is within its purview, and is properly entrusted to the judgment and expertise of the Tribunal. In preferring the evidence of the respondents' witnesses, the Tribunal made no overriding or palpable error and I see no reason to substitute its decision with ours. In any event, as mentioned earlier, given the evidence before the Tribunal, I would have reached the same conclusion.

The Tribunal's analysis

53When the Tribunal heard this case, it was the first time since the Supreme Court of Canada had released its decision in Tranchemontagne, supra, in April 2006, that it found itself applying the Ontario Human Rights Code. It was now being asked to determine the very question that had been before it years earlier in Tranchemontagne: whether s. 5(2) of the ODSPA violated s. 1 of the Code.

54Before the Tribunal, the Director argued that the appropriate legal framework for determining this question was that set out in Law, supra. That case dealt with alleged violations of equality rights set out in s. 15(1) of the Charter. It did not deal with alleged infringement of provincial human rights legislation. The respondents argued that Law was developed within the Charter context and was not appropriate when adjudicating [page344] an allegation of discrimination under statutory human rights legislation.

55In Law, Iacobucci J. said that a court that is called upon to determine a discrimination claim under s. 15(1) "should make the following three broad inquiries" (at para. 39):

First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1). (Emphasis in original)

56The third inquiry in Law involved a comparative assessment of the impact upon the human dignity of the complainant as understood through a non-exhaustive list of suggested "contextual factors". Iacobucci J. identified four: (a) pre-existing disadvantage, (b) the relationship between grounds of the alleged discrimination and the claimant's actual characteristics or circumstances, (c) any ameliorative purpose or effect of the impugned legislation, and (d) the nature and scope of the interest affected by the legislation.

57The Tribunal agreed with the Director's submissions and concluded the Law test did apply, but decided that only the first two inquiries were necessary. The third inquiry, requiring the claimant to show an impact on his human dignity, was not necessary. The Tribunal relied upon para. 104 of Gwinner v. Alberta (Minister of Human Resources and Employment), 2002 ABQB 685, [2002] A.J. No. 1045, 217 D.L.R. (4th) 341 (Q.B.), affd on appeal 2004 ABCA 210, [2004] A.J. No. 788, 245 D.L.R. (4th) 158 (C.A.), leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 342: "[i]n many, if not most cases under human rights legislation, the elaborate third step scrutiny to determine if the dignity interest of the Claimant is truly engaged, will neither be necessary nor appropriate".

58The Tribunal determined that the third step need not always be applied in the human rights context and, specifically, was not required in these circumstances (at p. 11). In so concluding, it said:

The Tribunal cautions, however, that each case must be assessed and analyzed on its own merits regarding the engagement of the third step [page345] scrutiny under the Law test. In other words, based upon the facts and evidence in these cases, the Appellants [respondents in this appeal] have established substantive inequality under the first two steps and it is not necessary to explore whether the prima facie case of discrimination that they have established under the Code also includes a violation of their human dignity as required under the third test in the Law case.

The Tribunal's discrimination analysis

59At the start of the hearing, the parties agreed that the ODSPA income support which had been denied to the respondents by the imposition of s. 5(2) of the ODSPA constituted a "service", as set forth in s. 1 of the Code and, further, that addiction to alcohol is a "disability" as defined by s. 10(1) of the Code.

60As well, at the start of the hearing, the Director conceded the first two steps of the Law analysis: the Director accepted that s. 5(2) of the ODSPA "draws a distinction on the basis of a personal characteristic between persons whose sole impairment is substance dependence, and persons who have other or additional impairments". With respect to whether dependence on alcohol is a disability, the Director conceded that substance dependence is a disability and that the distinction in s. 5(2) is drawn on the basis of disability. Effectively, the Director was accepting the results in Entrop v. Imperial Oil Ltd. (2000), 2000 16800 (ON CA), 50 O.R. (3d) 18, [2000] O.J. No. 2689 (C.A.), where the Court of Appeal for Ontario said, at para. 118: "The Board found that a 'substance abuse problem' is a handicap [as the term then was]. That finding is supported by the expert evidence and is not challenged on appeal." Also, at para. 89, the court said the following:

The Board found, on uncontradicted expert evidence, that drug abuse and alcohol abuse -- together substance abuse -- are each a handicap. Each is "an illness or disease creating physical disability or mental impairment and interfering with physical, psychological and social functioning." Drug dependence and alcohol dependence, also separately found by the Board to be handicaps, are severe forms of substance abuse. Therefore, on the findings of the Board, which are not disputed on this appeal, substance abusers are handicapped and entitled to the protection of the Code.

61The appellant submits that it was not sufficient for the Tribunal to apply only the first two steps of the Law analysis which had already been conceded; the Tribunal was bound to apply all three steps and the focus of the hearing before the Tribunal should then have been on the third step of Law.

62The Director's position before the Tribunal was that s. 5(2) is not discriminatory because it does not contravene the respondents' dignity interests. The Director relied on the evidence of its expert medical witness, Dr. Jacyk, in maintaining that because s. 5(2) benefits the sole impairment group by [page346] providing them with an income support program that is better suited to their characteristics and circumstances, it cannot be said to deprive the members of the sole impairment group of dignity. Section 5(2), it was argued, has an ameliorative purpose: to direct members of the sole impairment group to the more appropriate, indeed, more beneficial income support program, OW. The Director submitted that full consideration of the ways in which the OW program contributes to the self-esteem and quality of life of the sole impairment group clearly illustrates that s. 5(2) enhances, rather than diminishes, the dignity interests of those caught by it.

63Considerable evidence was led regarding the differential treatment in issue and whether or not it was discriminatory. In the final analysis, the Tribunal simply did not agree with the Director's submissions regarding the necessity of the third step of Law. Based on the concessions and its other findings, the Tribunal concluded that both respondents had met the onus of satisfying the first two steps set out in Law. They had established substantive inequality by showing that they were persons with disabilities within the meaning of s. 4(1) of the ODSPA and that s. 5(2) of the ODSPA created a distinction based on a personal characteristic -- that is, their disability caused by alcohol dependence. The Tribunal then went on to find that this distinction imposed burdens and disadvantages on them which were not imposed on other disabled persons by withholding and limiting their access to income support and advantages available to other disabled persons. As a consequence, s. 5(2) of the ODSPA infringed their right to equal treatment set out in s. 1 of the Code.

64Despite concluding that the third step of the Law test need not be applied in the circumstances, out of an abundance of caution and likely because this was the first time the Tribunal was required to decide a human rights challenge, the Tribunal proceeded at length to carefully analyze the case according to the contextual approach set out in that step. Having done so, it concluded that even if the third step of the Law test had been necessary, it would still have found the differential treatment to have been discriminatory and, further, that the respondents' rights under s. 1 of the Code were violated by their denial of income support benefits under s. 5(2) of the ODSPA.

65In determining whether the distinction was discriminatory, the Tribunal analyzed the evidence of the parties, discussed briefly above, through the lens of the Law contextual factors. I have broken this down into six main areas. [page347]

1. Purpose of the programs

66The Tribunal took account of the broader social and political context of s. 5(2) of the ODSPA and, in particular, the overall purpose of the legislation, which is informed by its adoption as only one of two parts to Ontario's social assistance scheme. Ultimately, it rejected the Director's submission that the difference between OW and ODSP support in this case is intended to assist the respondents in their recovery from addiction and increase their employability. Rather, the Tribunal found that the differential treatment under the two benefit schemes is based on stereotypes or prejudicial views about addiction.

67I agree with this conclusion. Assigning s. 5(2) of the ODSPA the laudable intention of directing individuals whose sole impairment is addiction to a more beneficial form of income support disguises an "untenable distinction" (Battlefords and District Co-operative Ltd. v. Gibbs, 1996 187 (SCC), [1996] 3 S.C.R. 566, [1996] S.C.J. No. 55 ("Gibbs"), at para. 32) in social assistance legislation in this province.

68With deliberate precision, s. 5(2) carves out one particular group of disabled persons from eligibility for income support under legislation specifically designed to provide support for persons with disabilities. This differential treatment means the respondents receive significantly less money. It has no ameliorative purpose for this group.

69The provincial social assistance scheme must, understandably, provide different benefits according to the different purposes of each of the two programs. Indeed, differentiation in eligibility is a feature of most benefit schemes. Such schemes have been found to be non-discriminatory on the basis that they must assign benefits according to certain eligibility criteria in order to be financially viable and are, by their very nature, specifically designed to provide assistance commensurate with eligibility: Gibbs. However, as the Supreme Court stated at para. 33 of Gibbs, comparing the benefits allocated to individuals or groups according to the different purposes those benefits are intended to serve "is not helpful in determining discrimination -- it is understandable that insurance benefits designed for disparate purposes will differ. If, however, benefits are allocated pursuant to the same purpose, yet benefits differ as the result of characteristics that are not relevant to this purpose, discrimination may well exist." (Emphasis added)

70The appellant here stresses the difference between benefit-conferring legislation that is under-inclusive, failing to confer a benefit on a particular group of individuals, and legislation [page348] that is deliberately exclusive. Like benefit schemes that differentiate between recipients, under- inclusive benefit legislation has, in the past, been found not to discriminate on the basis that assistance programs have a limited amount of resources and must draw the line for eligibility somewhere.

71The government has the right to "draw the line" to accommodate resource availability. However, there must be a tenable justification for the resultant differential treatment. The Tribunal found none, and neither do I.

72In any event, this is not a case of under-inclusive legislation. Section 5(2) deliberately excludes members of the sole impairment group from receiving benefits under the legislation, as the Tribunal recognized when it identified other groups of persons disabled by substance dependence who nonetheless qualify for support under the ODSPA.

2. The sole impairment group is capable of working

73It is undisputed between the parties that alcohol addiction is a disease and a disability. The Director argued that this addiction alone does not prevent an individual from being gainfully employed. The Director's medical expert said that all persons disabled solely as a result of substance addiction are, without qualification or exception, capable of working. The Tribunal did not find this evidence persuasive, preferring instead the evidence of the other medical experts.

74The Director's view promotes a stereotypical attitude towards addicted persons. It suggests that those who do not suffer from an additional medically recognized disorder are not genuinely disabled, or in any case are not as disabled as persons with concurrent disorders. The Tribunal was correct in finding that s. 5(2) was a law that denied income support and imposed restrictions because of assumed or unjustly attributed characteristics, thereby denying the respondents' essential human worth.

3. The sole impairment group benefits from mandatory treatment

75The Director submitted that all persons with addictions are capable of recovery, in the sense of regaining or improving functionality, and that medical evidence showed that addiction treatment is critical to this recovery.

76The Tribunal considered the comments of Minister Ecker when, in 1997, she described the purpose of the two statutes. She described OW as a transitional program of last resort designed to get people back into the workforce. The key was a [page349] requirement for mandatory participation, and it was that "key" which the Tribunal found "imposes one of the starkest discrepancies between the treatment of disabled persons who receive income support through ODSP and persons disabled through addiction who receive income assistance through OW" (at p. 20). A unique obligation is imposed on the latter group. They are required to complete and comply with a Participation Agreement, which obliges them to participate in employment assistance activities. Failure to do so can lead to the cancellation of income altogether and the Tribunal found ample evidence that the threat of cancellation of financial assistance for persons disabled through addiction was a reality.

77The Director submitted that the mandatory treatment requirement in the ASI program, combined with OW income support, was preferable to the ODSP as a support program for addicted persons. The Tribunal did not accept that this justified the exclusion of the sole impairment group from ODSP eligibility and rejected the Director's submission that OW was a more appropriate source of income support for the sole impairment group on the basis of its mandatory treatment provision through the ASI program. Given the ASI program is not universally available in Ontario, and has never been available to the respondents, this supposed benefit has no ameliorative effect with respect to the impact of ODSPA s. 5(2) on the respondents, and the Tribunal properly rejected the submission.

4. The sole impairment group benefits from employment- related activity

78The Tribunal rejected the suggestion that the OW mandatory employment assistance activities make OW a preferable source of income support for the sole impairment group. The Tribunal noted that the ODSPA, too, contemplates recipients' return to productive employment. The ODSPA requires periodic reviews to assess the continued eligibility for ODSP support, and the program itself assists persons with disabilities in obtaining employment through providing practical employment supports such as interpreters and technological aids and devices to assist recipients in developing the skills necessary for re-employment.

79Clearly, employment assistance is not a service that is only available to disabled persons through OW. Suggesting otherwise attributes an exclusive benefit to the OW program that is inconsistent with the reality of the social assistance scheme in Ontario. [page350]

5. OW has a beneficial psychological impact on the sole impairment group

80The Director submitted that recipients of ODSP assistance can develop an attitude of infirmity that can impede, rather than assist, their recovery. OW assistance, then, because it is accompanied by an expectation of return to work in a relatively short period of time, eliminates this "spirit of infirmity" in recipients. Employment assistance activities promote the view that participants are capable of recovery and of working. By encouraging recipients to view their impaired functioning as temporary, the OW program has a positive psychological effect on addicted persons.

81The Tribunal found that rather than boosting recipient morale, OW actually places an additional psychological burden on disabled recipients because of the stigma attached to being "on welfare" -- a stigma which compounds stereotypical attitudes towards addiction. Those persons found to be persons with disabilities under the ODSPA, by contrast, suffer a lesser degree of stigmatization.

6. Less financial support is not a detriment

82When the respondents' application was before the Tribunal, ODSP recipients received $959 per month. OW recipients received $536 per month. The Director submitted that the lesser amount of financial assistance available under OW is beneficial to its recipients because it minimizes the resources available for squandering on addictive substances and, due to the fragile impulse control of persons recovering from addiction, more money will lead to further substance abuse.

83The Tribunal preferred the respondents' expert medical evidence which indicated that, although persons whose disability is substance dependence may spend money on further substance abuse, it is just as likely they will use these funds for rent and groceries. Moreover, although the evidence indicated that addicted persons may be unable to manage their money, other solutions, such as the appointment of a trustee to fulfill this function, would be more effective in addressing that problem.

84Through a series of rhetorical questions, the Tribunal pointed out the discriminatory distinction inherent in the assumption that the receipt of less income through OW is better for a person whose disability is alcohol dependence, yet the same assumption or stereotype does not exist for a person whose disability is also alcohol dependence but who receives income through ODSP. [page351]

Application of the third step of the Law test

85Having applied the first two steps of Law, was the Tribunal required to apply the third step as well? The appellant says it should have applied the entire Law test and, furthermore, to the extent that the Tribunal purported to apply the four contextual factors involved in the third step of Law, its application of the factors was flawed. The respondents, on the other hand, reiterate their argument before the Tribunal: the Tribunal was not bound to apply the Law test at all. Before us, they add that even if the Law test does apply, the Tribunal was correct in applying only the first two steps. Lastly, they argue that if the third step was necessary, the Tribunal's analysis and conclusions were correct.

86In the human rights context, there has been a lack of consensus with respect to whether the third test in Law must be applied in all human rights cases. The Tribunal was alive to this resistance, and Greckol J. noted it in Gwinner, supra, at para. 104, when she said:

In many, if not most, cases under human rights legislation, the elaborate third step scrutiny to determine if the dignity interest of the Claimant is truly engaged, will neither be necessary nor appropriate. I draw this conclusion for at least three reasons. First, in cases where claimants pass the first two steps of the discrimination analysis, they will have shown distinction based on a ground which is enumerated as a protected ground in the human rights legislation . . . Second, in Meiorin, Grismer . . . and City of Montreal, three important human rights cases considered by the Supreme Court of Canada after Law, the elaborate third step dignity analysis was not employed. Finally, many human rights tribunals to date have resisted application of the elaborate approach to step three of the equality analysis, and resisted any argument that the decision in Law has imported a requirement that the claimant establish a violation of human dignity as an element of a prima facie case under human rights legislation. (Emphasis added and citations omitted)

87The answer to whether or not the third step in Law must be undertaken, I believe, has been provided in the form of direction from the Supreme Court of Canada in its recent decision in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42.

88By the time Kapp was heard, nearly 20 years had passed since the Supreme Court had handed down its first s. 15 decision in Law Society of British Columbia v. Andrews, 1989 2 (SCC), [1989] 1 S.C.R 143, [1989] S.C.J. No. 6 ("Andrews"). The court took the opportunity presented in Kapp to review some of the s. 15 jurisprudence developed since then. In so doing, McLachlin C.J.C. and Abella J., writing jointly for the court (Bastarache J. dissenting, but not on this point), reviewed the Law test and, in particular, the human dignity test. There is no doubt that human dignity is an essential value underlying the s. 15 equality guarantee, but critics of this [page352] part of the test -- and there were many -- pointed out how confusing and difficult it was to apply human dignity as a test, despite the court's guidance of the four contextual factors. The court noted how this test, intended as a philosophical enhancement, was being applied in a way that created an additional burden on equality claimants.

89The court spelled out that Law did not impose a new and distinctive test for discrimination. Instead, the court said Law had simply affirmed the approach to substantive equality under s. 15 set out in Andrews, which established the following two-part test for showing discrimination under s. 15(1) of the Charter: (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

90The four contextual factors offered in the third part of the Law test were not to be read literally, but instead were to be read "as a way of focusing on the central concern of s. 15 identified in Andrews -- combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping" (at para. 24). Although the human dignity analysis required in step three of Law addresses the "conceptual underpinnings of substantive equality" (at para. 20), it was not intended as a legal test and most definitely was not to be applied as a formulaic test for determining substantive inequality.

91In referring to the test in Andrews as being the "template" which "subsequent decisions [like Law] have enriched but never abandoned" (at para. 14), the Supreme Court was sending a strong signal that courts should return to the Andrews analysis. The three-step test in Law was "in substance, the same" as the Andrews test, it said (at para. 17).

92The Supreme Court has now, in essence, clarified that there is no substantive difference between pre- and post-Law equality jurisprudence despite Law's imposition of the third, dignity-focused step. Second, it has recognized the confusion that narrow and mechanical application of the Law test has caused. Third, it has set out an approach to discrimination analysis that accurately reflects 20 years of jurisprudence in this area: the principled analysis of the Andrews "template" with the "philosophical enhancement" of Law.

93Most recently, the Supreme Court has had the opportunity to further confirm its return to its equality analysis roots. [page353] The court was presented with a claim of discrimination in Ermineskin Indian Band and Nation v. Canada, [2009] S.C.J. No. 9, 2009 SCC 9. In examining the claim, the court returned to the Andrews "template". Not only did the court not refer to Law, but it also did not mention "human dignity", nor did it explicitly address any of the four contextual factors identified in Law. Rather, the court refocused its contextual analysis by addressing the broader context of the distinction in issue in its substantive equality analysis (at para. 193):

The question of whether discrimination exists is to be determined with regard to context, looking beyond simply the legislation in question. In R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, this Court stated:

In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context.

94For all these reasons, I find it was not an error for the Tribunal to have decided the matter based only upon the first two prongs of Law.

If Law is not the appropriate test, then what test should the tribunal have applied?

95The respondents argued at the hearing before the Tribunal that Charter tests for discrimination have wrongly displaced earlier tests developed under the various provincial human rights statutes. In argument before this court, they re- asserted their position that the correct test is that from the Supreme Court of Canada in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, [1985] S.C.J. No. 74 ("O'Malley"). In their view, the Tribunal's decision not to apply the third step of Law was not an error. Rather, Law should not have been used at all.

96The Tribunal applied the Law test, concluding it was desirable that s. 1 of the Code and s. 15(1) of the Charter be interpreted congruently. Both of these sections represent guarantees of substantive equality. There is no question that the interpretation and application of each provision ought to inform the other. However, this does not mean that the tests used in one context can or should be imported wholesale into the other, and there is currently a lively debate in the Canadian legal community on this very issue: see, for example, a March 5, 2007 paper by Karen Schucher and Judith Keene prepared for the Women's Legal Education and Action Fund, entitled "Statutory Human Rights and Substantive Equality -- Why and [page354] How to Avoid the Injury of the Law Approach", cited by the respondents in their factum.

97When first called upon to interpret s. 15(1) of the Charter in Andrews, the Supreme Court, at paras. 38-39, relied upon pre-existing human rights jurisprudence to inform the Charter definition of discrimination. Yet McIntyre J. was careful to outline the significant differences between the Charter and statutory human rights legislation. He noted:

To begin with, discrimination in s. 15(1) is limited to discrimination caused by the application or operation of law, whereas the Human Rights Acts apply also to private activities. Furthermore, and this is a distinction of more importance, all the Human Rights Acts passed in Canada specifically designate a certain limited number of grounds upon which discrimination is forbidden. Section 15(1) of the Charter is not so limited. The enumerated grounds in s. 15(1) are not exclusive and the limits, if any, on grounds for discrimination which may be established in future cases await definition . . .

It should be noted as well that when the Human Rights Acts create exemptions or defences, such as a bona fide occupational requirement, an exemption for religious and political organizations, or definitional limits on age discrimination, these generally have the effect of completely removing the conduct complained of from the reach of the Act . . .

Where discrimination is forbidden in the Human Rights Acts it is done in absolute terms, and where a defence or exception is allowed it, too, speaks in absolute terms and the discrimination is excused. There is, in this sense, no middle ground. In the Charter, however, while s. 15(1), subject always to subs. (2), expresses its prohibition of discrimination in absolute terms, s. 1 makes allowance for a reasonable limit upon the operation of s. 15(1). A different approach under s. 15(1) is therefore required. While discrimination under s. 15(1) will be of the same nature and in descriptive terms will fit the concept of discrimination developed under the Human Rights Acts, a further step will be required in order to decide whether discriminatory laws can be justified under s. 1. The onus will be on the state to establish this. This is a distinct step called for under the Charter which is not found in most Human Rights Acts, because in those Acts justification for or defence to discrimination is generally found in specific exceptions to the substantive rights.

98After Andrews, and indeed after Law, the Supreme Court itself articulated an approach to human rights cases that did not incorporate the analysis developed under the Charter. For example, in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (BCGSEU), 1999 652 (SCC), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46 ("Meiorin"), released just six months after Law, the Supreme Court examined whether there should be a different approach to overt or covert discrimination depending upon whether the alleged discrimination occurred under human rights legislation or under the Charter. At para. 48, the court dismissed adopting [page355] different approaches. Importantly, though, when discussing what approach to use in its subsequent analysis, the court did not adopt the Law framework.

99Nine months after Law, the Supreme Court released its decision in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 646 (SCC), [1999] 3 S.C.R. 868, [1999] S.C.J. No. 73 ("Grismer"). At para. 20, the court adopted the following test: "Once the plaintiff establishes that the standard is prima facie discriminatory, the onus shifts to the defendant to prove on a balance of probabilities that the discriminatory standard is a BFOR [bona fide occupational requirement] or has a bona fide and reasonable justification." The court never referred to Law.

100When human rights challenges have been made to benefits or benefit-conferring government legislation, some courts have required the third step of Law to be conducted: Gwinner, supra; Ontario Secondary School Teachers' Federation v. Upper Canada District School Board (2005), 2005 34365 (ON SCDC), 78 O.R. (3d) 194, [2005] O.J. No. 4057 (Div. Ct.) ("OSSTF"); and Ontario (Attorney General) v. Ontario (Human Rights Commission) (2007), 2007 56481 (ON SCDC), 88 O.R. (3d) 455, [2007] O.J. No. 4978 (Div. Ct.), leave to appeal dismissed, unreported (C.A.) ("Braithwaite").

101Gwinner concluded that the third prong of Law should be used where the respondent government "raises a serious question as to whether the dignity interest of the Claimants is engaged" (at para. 103). OSSTF concluded that the arbitration decision before it was not wrong in having applied the full Law test because, as in Gibbs, supra, and Brooks v. Canada Safeway Ltd., 1989 96 (SCC), [1989] 1 S.C.R. 1219, [1989] S.C.J. No. 42 ("Brooks"), the purpose of the impugned benefit had to be explored in order to determine if discrimination existed. In Braithwaite, this court decided the Law test applied to a case involving a challenge to a government service and was appropriate where the challenge was to legislation under s. 1 of the Code. It then assessed the Tribunal's application of Law and decided that a strict application of the third prong was necessary.

102Gwinner, OSSTF and Braithwaite must now be viewed in light of the two subsequent decisions by the Supreme Court in Kapp and Ermineskin, neither of which require use of the more complicated Law test.

103In addition, in the human rights context, the claimant is only required to put forward a prima facie case of discrimination, at which point the burden shifts to the respondent to demonstrate that either the prima facie case is rebutted or that one of the statutory exceptions applies: O'Malley. This was the [page356] case in both Gibbs and Brooks. The complainants showed a prima facie case of differential treatment based on a prohibited ground, at which point the respondent tried to rebut it: see Gibbs, at para. 21, Brooks, at pp. 1236-37 S.C.R.

104What test should the Tribunal now use, given the Supreme Court's reaffirmation of Andrews? First, in my view, it is no longer necessary to apply a human dignity test. In any event, the concept of human dignity, recognized in the preamble to the Human Rights Code in Ontario, is already an integral part of the Code and need need not be proven. Second, I believe the test established by the Supreme Court in O'Malley, reaffirmed by that court in Meiorin and Grismer, should apply, informed by Andrews.

105Adapted for the present human rights context, in a case such as this involving the provision of services pursuant to a government benefit program, the test might read as follows: (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?

106In the matter before us, the Director had conceded that differential treatment based on a prohibited ground existed. As a result, the Tribunal was correct in deciding that the two complainants had established a prima facie case. It was then up to the Director to rebut this prima facie case. It did not do so to the satisfaction of the Tribunal.

Did the Tribunal identify incorrect comparator groups?

107The appellant submits that when the Tribunal conducted the Law contextual analysis, it made fatal errors in identifying the appropriate comparator group, errors that ultimately caused it to ignore the evidence of the Director's medical expert. The appellant suggests that the Tribunal failed to recognize that the distinguishing factor identified by s. 5(2) is whether addiction is the sole impairment. As a result, it focused on alleged differential treatment between those with addictions and those without, rather than those whose sole impairment is addiction and those who have other or additional impairments. Further, the Tribunal misinterpreted s. 5(2) as treating the respondents differently from other [page357] addicted persons on the basis of how they became addicted. Finally, the Tribunal erred in identifying as comparator groups two groups that were not required to meet the s. 5(2) criteria: (1) those persons eligible for ODSP support who were "grandparented" from the previous legislation (the Family Benefits Act, R.S.O. 1990, c. F.2, ODSPA Regulation 222/98, s. 4(1)(1)), and (2) addicted persons eligible for ODSP benefits who were in receipt of a Canada Pension Plan disability pension.

108Equality jurisprudence evinces a considerable history of approaching discrimination as a largely comparative concept. In Law, the Supreme Court identified [at para. 56] comparative analysis as being an essential component of determining discrimination: "a court must identify differential treatment as compared to one or more other persons or groups". Later, in Hodge v. Canada (Minister of Human Resources and Development), 2004 SCC 65, [2004] 3 S.C.R. 357, [2004] S.C.J. No. 60, at para. 18, the Supreme Court noted that "a misidentification of the proper comparator group at the outset can doom the outcome of the whole s. 15(1) analysis. In fact, the seemingly straightforward selection of a comparator group has proven to be the Achilles' heel in a variety of recent cases . . .".

109The Supreme Court has begun to move away from this strict position. In Kapp, at para. 22, the court acknowledged the criticism that has followed this formalistic approach:

Criticism has also accrued for the way Law has allowed the formalism of some of the Court's post-Andrews jurisprudence to resurface in the form of an artificial comparator analysis focused on treating likes alike.

110The court then listed a large number of authors who had written critically about the comparator analysis. The majority of the critiques were recent and flowed from subsequent interpretations of Law by lower courts.

111As noted above, in Ermineskin, supra, the Supreme Court had its first opportunity to address s. 15(1) since its decision in Kapp. How the court chose to resolve the issue of the "Achilles' heel" of comparator groups is instructive. The court rejected a rigid application of the comparator group analysis in favour of the contextual analysis it had articulated in Andrews. Rothstein J., writing for the court, at paras. 193-94, referenced Turpin, supra [R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296, [1989] S.C.J. No. 47], which had been released contemporaneously with Andrews and which had emphasized the importance of addressing the broader context when determining whether or not a distinction leads to discrimination. Rothstein J. stressed the need to look beyond the legislation in question and to address "the broader context of a distinction in a substantive equality analysis" (at para. 194). In [page358] so doing, one should look at the larger social, political and legal context as delineated in Turpin.

112The court, it seems, has responded to the criticisms it hinted at in Kapp, including academic criticism about the judicial tool of a "comparator group" becoming a barrier as a result of its inflexible application. This tool had been used in discrimination analysis in a way that suggested that there might be only one appropriate comparator group, or that the entire case could stand or fall based on a single comparison. As is the case with respect to the dignity requirement in the third Law step, the Supreme Court is moving away from the requirement to identify a specific comparator group against which the discriminatory effect of impugned legislation is to be assessed. At the very least, it would appear the court is moving away from the necessity for a formalistic comparator- group analysis.

113The Supreme Court's analysis in Kapp and Ermineskin should not be taken as an indication that comparisons are irrelevant to equality inquiries. Indeed, the court did make a comparison in Ermineskin. What the court did not do, though, was conduct a strict comparator analysis as it had done previously on numerous occasions. It would seem from the court's most recent pronouncements on the issue that a discrimination claim does not turn on identification of a single correct comparator group. However, comparison may nonetheless be useful, for example, in the initial stage of discrimination analysis, as evidence of the fact of distribution of benefits or burdens among different individuals or groups.

114In the matter before us, the respondents belong to the sole impairment group, the group to which s. 5(2) of the ODSPA applies. The appellant and the respondents agreed, at the hearing, that the proper comparator group was to be those persons with other or additional impairments. The appellant concedes that the Tribunal acknowledged this comparator group when it said the distinction was drawn between "those whose sole impairment is substance dependence, and those who have additional impairments". Where the Tribunal erred, submits the appellant, is in failing to recognize that the distinguishing factor identified by s. 5(2) is whether addiction is the sole impairment.

115I do not agree with this submission, nor with the appellant's submissions as to certain other comparator groups it alleges were erroneously identified by the Tribunal. If the Tribunal was indeed required to use a comparator group, it used the correct one. Throughout its analysis, the Tribunal compared persons belonging to the sole impairment group with persons who [page359] had other or additional impairments. This was the comparator group that the parties had agreed was the correct one.

116The Tribunal did go on to discuss other groups. I see no error in that. Its having done so does not detract from the fact that it had already used the appropriate and agreed-upon comparator group. The Tribunal was simply illustrating, in some instances by way of rhetorical questions, further illogical and discriminatory distinctions incorporated in the ODSPA. In so doing, it was reinforcing the fact of the discriminatory distinction at issue. In any event, this approach is consistent with examining the larger social, political and legal context in Turpin reaffirmed by the Supreme Court in Ermineskin.

Did the Tribunal err in its application of the four contextual factors in Law?

117I have described how the Supreme Court has returned to the two-part test of the Andrews template: Kapp; and how, the first time that court applied the Andrews/Kapp test, it refocused the contextual analysis away from human dignity to the Turpin analysis which requires an examination of the impugned legislation combined with the larger social, political and legal context: Ermineskin.

118Viewed through this lens, the Tribunal conducted just such an analysis. It did so under the rubric of the four contextual factors contained in step three of Law, but using these factors as they were intended -- that is, as an analytical tool rather than as a checklist to be applied mechanically. The Tribunal considered the Director's arguments as to the purpose of s. 5(2) in the broader socio-political context of the section's differential treatment of the sole impairment group and rejected them.

119It is apparent from the Tribunal's reasons that it found the distinction amounted to discrimination and that this distinction imposed burdens and disadvantages on the respondents that are not imposed on other disabled persons. The Tribunal examined in great detail three of the four contextual factors. Because it found the third contextual factor (ameliorative purpose) to be neutral, it did not consider it.

120The Tribunal gave significant weight to evidence before it regarding the stigmatization of persons with addiction disabilities and the exacerbation of this stigma as a result of the differential treatment prescribed in s. 5(2) of the ODSPA. The Tribunal correctly found that denying the respondents "ODSP income support and confining them to seek income assistance as welfare recipients cannot be seen to result in anything other than adding to or compounding the stigma inherent in their [page360] addiction to alcohol, their disabling condition" (at p. 15). The Tribunal acknowledged that this disability already carries with it recognized and widespread social disapproval. The disabled respondents were then being burdened with the additional stigma of being welfare recipients, yet other people with identical disabilities (for example, people who qualified for CPP disability benefits by virtue of chronic alcoholism) were granted the greater income support benefits of the ODSPA so long as they met the financial criteria of that statute.

121The Tribunal examined s. 5(2) of the ODSPA to see whether it was, as the Director contended, a law that was closely tailored to the reality of the affected group and which would then unlikely be seen as discriminatory, pursuant to Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85. The Tribunal disagreed with the Director. It found s. 5(2) to be "a law that denies income support and imposes restrictions because of assumed or unjustly attributed characteristics and therefore denies the essential human worth of the [respondents] and those like them and is therefore discriminatory" (at p. 17).

122The Tribunal went on to examine the purpose, comparative rights and obligations of the ODSPA and the OW, and their effects on the respondents. It concluded that the legislature had differentiated in a way that was discriminatory. It examined how the ASI program had been deficient and, in any event, had not originally been connected to the legislative purpose of the OWA. It concluded, contrary to the Director's arguments, that for many reasons the respondents were not better served by OW.

123The Tribunal addressed the evidence presented by the Director according to the contextual factors of Law. That evidence was rejected in favour of the respondents. In conducting this analysis, the Tribunal assessed the distinction drawn in its larger context, having regard to the purpose and effect of the impugned provision and the programs it affects.

124Most human rights cases will not require such a broad inquiry, but given that the challenge was to legislation, addressing this larger context was valuable and the Tribunal's conclusions were correct. The Director failed in the attempt to establish that OW is a more appropriate or more tailored program and that, therefore, s. 5(2) was not discriminatory. For this reason, the Tribunal found for the respondents. It was right to do so.

Conclusion

125In sum, the Tribunal correctly determined that the respondents had established a prima facie case demonstrating [page361] that the service under s. 5(2) of the ODSPA creates a distinction based on disability, a prohibited ground under the Code. The respondent did not establish to the Tribunal's satisfaction, on a balance of probabilities, that this distinction does not create a disadvantage by perpetuating prejudice or stereotyping, nor did it establish a statutory defence under the Code.

126The Tribunal's decision is correct and it has made no reversible error. The appeal is dismissed.

Costs

127As the respondents do not seek costs, none are awarded.

Appeal dismissed.

Appendix -- Excerpts of Relevant Legislation

Human Rights Code R.S.O. 1990, c. H.19

Preamble

Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

And Whereas these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario;

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

PART I FREEDOM FROM DISCRIMINATION

Services

1. 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. . . . . . [page362]

Infringement prohibited

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

PART II INTERPRETATION AND APPLICATION

Definitions re: Parts I and II

10(1) In Part I and in this Part, . . . . .

"disability" means, (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, (b) a condition of mental impairment or a developmental disability, (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; ("handicap")

"equal" means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination; ("égal") . . . . .

"services" does not include a levy, fee, tax or periodic payment imposed by law; ("services")

PART V GENERAL . . . . .

Act binds Crown

47(1) This Act binds the Crown and every agency of the Crown.

Act has primacy over other Acts

(2) 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. [page363]

Ontario Disability Support Program Act, 1997 S.O. 1997, c. 25, Sch. B

Purpose of Act

1. The purpose of this Act is to establish a program that, (a) provides income and employment supports to eligible persons with disabilities; (b) recognizes that government, communities, families and individuals share responsibility for providing such supports; (c) effectively serves persons with disabilities who need assistance; and (d) is accountable to the taxpayers of Ontario. . . . . .

PART I ELIGIBILITY FOR AND PAYMENT OF INCOME SUPPORT

Who receives income support

3(1) Income support shall be provided to a person with a disability, as determined under section 4, and to a person of a prescribed class.

Who are the beneficiaries

(2) Income support shall be provided for the benefit of the eligible person and his or her dependants.

Person with a disability

4(1) A person is a person with a disability for the purposes of this Part if, (a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more; (b) the direct and cumulative effect of the impairment on the person's ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and (c) the impairment and its likely duration and the restriction in the person's activities of daily living have been verified by a person with the prescribed qualifications.

Determination

(2) A determination under this section shall be made by a person appointed by the Director.

Eligibility for income support . . . . .

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; [page364] (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.

Same

(3) 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.

PART II EFFECTIVE DATE OF INCOME SUPPORT DECISIONS AND INTERNAL REVIEW AND APPEALS OF THOSE DECISIONS . . . . .

Appeal to Court

31(1) Any party to a hearing before the Tribunal may appeal the Tribunal's decision to the Divisional Court on a question of law. . . . . .

Powers of court on appeal

(5) In an appeal to the Court of a decision of the Tribunal, the Court may, (a) deny the appeal; (b) grant the appeal; (c) grant the appeal in part; or (d) refer the matter back to the Tribunal or the Director for reconsideration in accordance with any directions the Court considers proper.

Ontario Works Act, 1997 S.O. 1997, c. 25, Sch. A

Purpose of Act

1. The purpose of this Act is to establish a program that, (a) recognizes individual responsibility and promotes self reliance through employment; (b) provides temporary financial assistance to those most in need while they satisfy obligations to become and stay employed; (c) effectively serves people needing assistance; and (d) is accountable to the taxpayers of Ontario. [page365]

PART IV SOCIAL BENEFITS TRIBUNAL . . . . .

Jurisdiction of Tribunal

67(1) The Tribunal shall not make a decision in an appeal under this Act that the administrator would not have authority to make.

Same

(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.