A.T. et al. (by their Litigation Guardian T.T.) v. The General Manager, Ontario Health Insurance Plan

[Indexed as: T. (A.) (Litigation Guardian of) v. Ontario Health Insurance Plan (General Manager)]

102 O.R. (3d) 767

2010 ONSC 2398

Ontario Superior Court of Justice, Divisional Court, Jennings, McCombs and Molloy JJ.

May 14, 2010

Charter of Rights and Freedoms -- Equality rights -- Discrimination -- Health Insurance Act imposing three-month waiting period before new Ontario resident becomes eligible for OHIP coverage -- Exemptions provided for newborn born in Ontario to insured person and for child under 16 who is adopted by insured person -- Exemption for adopted children not qualifying as special program under s. 15(2) of Charter -- Failure to provide exemption for biological children of insured person who come to Ontario not violating s. 15(1) of Charter -- Canadian Charter of Rights and Freedoms, s. 15 -- Health Insurance Act, R.S.O. 1980, c. H.6.

Human rights -- Discrimination -- Health Insurance Act imposing three-month waiting period before new Ontario resident becomes eligible for OHIP coverage -- Exemptions provided for newborn born in Ontario to insured person and for child under 16 who is adopted by insured person -- Exemption for adopted children not qualifying as special program under s. 14 of Human Rights Code -- Failure to provide exemption for biological children of insured person who come to Ontario not violating Code -- Health Insurance Act, R.S.O. 1980, c. H.6 -- Human Rights Code, R.S.O. 1990, c. H.19, s. 14.

The appellants were born in Sri Lanka. They were Canadian citizens as their father was a Canadian citizen. They came to live with their father in Ontario when they were 19 months old and five months old, respectively. Under the Health Insurance Act, there is a three-month waiting period before a person taking up residence in Ontario becomes eligible for OHIP coverage. Exemptions are provided for a newborn born in Ontario to an insured person and a child under 16 who is adopted by an insured person. One of the appellants became very ill soon after his arrival, and the bill for his care during the period he was uninsured reached $66,000. The appellants appealed the imposition of the waiting period to the General Manager of OHIP, arguing that the failure to include them in the exemptions to the waiting period was discriminatory on the basis of their place of origin and family status. The appeal was dismissed, as was their appeal from that decision to the Health Services Appeal and Review Board. They appealed the decision of the Board.

Held, the appeal should be dismissed.

The appellants could not fairly be compared to the newborn group as they were not newborns when they entered Ontario. Therefore, there was no discrimination based on place of origin. The legislation does impose a distinction based on family status by providing an exemption for children entering the province to be united with an adoptive parent and not extending that same benefit to children entering the province to be united with a biological parent. Adopted children are a disadvantaged group, but there is no rational connection between the cause of that disadvantage and the nature of the benefit conferred. Therefore, the exemption [page768] provision does not qualify as a special program or program designed to ameliorate disadvantage within the meaning of s. 15(2) of the Canadian Charter of Rights and Freedoms or s. 14 of the Human Rights Code. However, the exemption for adopted children is not substantively discriminatory because biological children are not a disadvantaged group as compared to the group receiving the benefit and because excluding biological children does not result in demeaning them, reinforcing stereotypes or prejudices, or suggesting that they are less worthy of respect than adopted children.

APPEAL from a decision of the Health Services Appeal and Review Board.

Cases referred to 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; 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 C. (A.) v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, [2009] S.C.J. No. 30, J.E. 2009-1241, 2009 SCC 30, 309 D.L.R. (4th) 581, 240 Man. R. (2d) 177, 65 R.F.L. (6th) 239, [2009] 7 W.W.R. 379, 66 C.C.L.T. (3d) 1, 390 N.R. 1; Canada (Attorney General) v. McKenna, 1998 9098 (FCA), [1998] F.C.J. No. 1501, [1999] 1 F.C. 401, 167 D.L.R. (4th) 488, 233 N.R. 52, 47 Imm. L.R. (2d) 21, 83 A.C.W.S. (3d) 457 (C.A.); Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, [2000] S.C.J. No. 29, 2000 SCC 28, 186 D.L.R. (4th) 1, 253 N.R. 329, J.E. 2000-1068, 50 C.C.E.L. (2d) 177, 74 C.R.R. (2d) 1, 96 A.C.W.S. (3d) 1057; Ontario Human Rights Commission v. Ontario (1994), 1994 1590 (ON CA), 19 O.R. (3d) 387, [1994] O.J. No. 1732, 117 D.L.R. (4th) 297, 73 O.A.C. 20, 94 CLLC Â17,030 at 16335, 49 A.C.W.S. (3d) 958 (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 Â230-030, 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 AT & V.T. v. The General Manager (OHIP), 07-HIA-0243 (June 19, 2009); Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, [2004] S.C.J. No. 71, 2004 SCC 78, 245 D.L.R. (4th) 1, 327 N.R. 1, [2005] 2 W.W.R. 189, J.E. 2004-2158, 206 B.C.A.C. 1, 34 B.C.L.R. (4th) 24, 124 C.R.R. (2d) 135, 135 A.C.W.S. (3d) 66; B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315, [1994] S.C.J. No. 24, 122 D.L.R. (4th) 1, 176 N.R. 161, J.E. 95-243, 26 C.R.R. (2d) 202, 9 R.F.L. (4th) 157, 52 A.C.W.S. (3d) 1226; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777; Ferrell v. Ontario (Attorney General) (1998), 1998 6274 (ON CA), 42 O.R. (3d) 97, [1998] O.J. No. 5074, 168 D.L.R. (4th) 1, 116 O.A.C. 176, 99 CLLC Â230-005, 58 C.R.R. (2d) 21, 85 A.C.W.S. (3d) 309 (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; Irshad v. Ontario (Ministry of Health) (2001), 2001 24155 (ON CA), 55 O.R. (3d) 43, [2001] O.J. No. 648, 197 D.L.R. (4th) 103, 141 O.A.C. 239, 81 C.R.R. (2d) 77, 103 A.C.W.S. (3d) 513 (C.A.) ; K-L B v. General Manager (OHIP), 02-HIA-0153 (September 15, 2003); Lovelace v. Ontario, [2000] 1 S.C.R. 950, [2000] S.C.J. No. 36, 2000 SCC 37, 188 D.L.R. (4th) 193, 255 N.R. 1, J.E. 2000-1451, 134 O.A.C. 201, [2000] 4 C.N.L.R. 145, 75 C.R.R. (2d) 189, 98 A.C.W.S. (3d) 1; Ontario (Attorney General) v. Ontario (Human Rights Commission) (2007), 2007 56481 (ON SCDC), 88 O.R. (3d) 455, [2007] O.J. No. 4978, 162 A.C.W.S. (3d) 1012, 232 O.A.C. 102, 288 D.L.R. (4th) 138, 165 C.R.R. (2d) 228, 62 C.H.R.R. D/315 (Div. Ct.); [page769] Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, [1993] S.C.J. No. 112, 108 D.L.R. (4th) 193, 160 N.R. 1, [1993] 8 W.W.R. 513, J.E. 93-1766, 34 B.C.A.C. 161, 84 B.C.L.R. (2d) 1, [1993] R.D.F. 703, 18 C.R.R. (2d) 41, 49 R.F.L. (3d) 117, 43 A.C.W.S. (3d) 410, EYB 1993-67111 Statutes referred to Canadian Charter of Rights and Freedoms, s. 15(1), (2) Citizenship Act, R.S.C. 1985, c. C-29 [as am.] Health Insurance Act, R.S.O. 1990, c. H.6, ss. 11 [as am.], 24 [as am.] Human Rights Code, R.S.O. 1990, c. H.19, ss. 1 [as am.], 14 [as am.], (1) Rules and regulations referred to R.R.O. 1990, Reg. 552 (Health Insurance Act), ss. 1.1(1)(b)1 [rep. O. Reg. 133/09, s. 2], 1.2-1.14 [as am.], 3(3) [rep. O. Reg. 133/09, s. 3], (4), 8 [rep. O. Reg. 133/09, s. 3], 5(1), 6 [as am.] Treaties and conventions referred to Convention on the Rights of the Child, 3 U.N.T.S. 1577, Can. T.S. 1992 Universal Declaration of Human Rights, GA Res. 217 (III) UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810

Martha M. Mackinnon and Andrea Gatti, for appellants. S. Zachary Green, for respondent.

The judgment of the court was delivered by

MOLLOY J.: --

A. Introduction

[1] AT and VT are brothers. They first arrived in Canada on May 17, 2007. At that time, AT was 19 months old and VT was five months old. Both are Canadian citizens because their father is a Canadian citizen. However, they were born in Sri Lanka and lived there with their mother until coming to Canada to join their father in May 2007.

[2] There is a three-month waiting period before a person taking up residence in Ontario becomes eligible for Ontario Health Insurance Plan ("OHIP") coverage. For these children, that waiting period extended to August 17, 2007. Unfortunately, the health of AT, who was born with a serious liver disorder which did not respond to surgery in Sri Lanka, had so deteriorated following his arrival in Canada that he soon needed to be hospitalized at the Hospital for Sick Children in Toronto. The bill for his care during the period he was uninsured by OHIP reached $66,000.

[3] There are a number of exceptions to the three-month OHIP waiting period. None of them applied to these children. However, [page770] there is an exception for a newborn born in Ontario to an insured person and for a child under the age of 16 who is adopted by an insured person.

[4] The appellants argue that the failure of these exceptions to include them is discriminatory on the basis of their place of origin and family status.

[5] They appealed the imposition of the waiting period to the General Manager of OHIP. That appeal was dismissed. They then appealed the General Manager's decision to the Health Services Appeal and Review Board (the "Board"), but that appeal was also dismissed.

[6] The appellants now appeal to this court from the decision of the Board.

[7] For the reasons that follow, the appeal is dismissed. In summary, I have concluded as follows: (i) The appellants cannot be fairly compared to the newborn group as they were not newborns when they entered Ontario. Therefore, there is no discrimination based on place of origin. (ii) The legislation does impose a distinction based on family status by providing an exemption from the three-month waiting period for children entering the province to be united with an adoptive parent and not extending that same benefit to children entering the province to be united with a biological parent. (iii) Adopted children are a disadvantaged group, but there is no rational connection between the cause of that disadvantage and the nature of the benefit conferred. Therefore, the exemption provision does not qualify as a special program or program designed to ameliorate disadvantage within the meaning of s. 15(1) of the Canadian Charter of Rights and Freedoms or s. 14 of the Human Rights Code, R.S.O. 1990, c. H.19. (iv) However, the exemption for adopted children is not substantively discriminatory because biological children are not a disadvantaged group as compared to the group receiving the benefit and because excluding biological children does not result in demeaning them, reinforcing stereotypes or prejudices, or suggesting that they are less worthy of respect than adopted children. [page771]

B. Standard of Review

[8] The Health Insurance Act [^1] (the "Act") provides a right of appeal from the Board to the Divisional Court on questions of fact or law or both (s. 24). The court may affirm or rescind the decision of the Board, may exercise all powers of the Board and may substitute its opinion for that of the Board. [^2]

[9] There are no facts in dispute. The matter proceeded before the Board on an agreed statement of facts. The sole issue is a question of law as to whether certain provisions of the Regulations under the Act are inconsistent with the Human Rights Code ^3 and the Canadian Charter of Rights and Freedoms. The appropriate standard of review is correctness, which is conceded by both parties.

C. Background Facts

[10] The biological father of the children is TT. He is originally from Sri Lanka, but came to Canada in 1997 and has been a Canadian citizen since 2001. As of May 2007, he had been a resident of Ontario for ten years and was insured under OHIP.

[11] TT married NT in Sri Lanka in September 2004. Although spending time with his wife in Sri Lanka after their marriage, TT continued to be a resident of Ontario. Their first child (AT) was born in Sri Lanka on October 3, 2005. VT was born on December 5, 2006.

[12] It was always the intention of TT and NT to live with their family in Canada. On February 27, 2006, NT applied to become a permanent resident of Canada, and TT applied to sponsor her. On September 20, 2006, TT was approved as an eligible sponsor, but NT's application was still pending. In accordance with the usual practice, NT stayed in Sri Lanka while waiting for her application to be processed. The children remained with her in Sri Lanka and TT resided and worked in Ontario, while maintaining contact with his family.

[13] In the meantime, AT became ill. He had been born with a serious liver disorder, biliary artesia, which occurs when the bile duct outside the liver carrying bile from the liver to the small intestine is damaged, thereby preventing bile from leaving the [page772] liver. TT returned to Sri Lanka from March 14 to May 1, 2006 because of AT's illness, and AT had surgery in Sri Lanka.

[14] By May 2007, NT's immigration application had still not been processed. However, AT's surgical treatment in Sri Lanka had not been successful. The parents decided to bring the children to Canada to live with their father. They are Canadian citizens and entitled to enter Canada. Their mother accompanied the children, travelling on a visitor's visa. They arrived in Toronto on May 17, 2007, and within days their father applied for OHIP coverage for them. A three-month waiting period was applied to them by Ministry of Health officials, as required by the applicable Regulations. Their coverage would take effect on August 17, 2007.

[15] The children were not covered for medical expenses by any other insurance plan. It is an agreed fact that private insurance coverage would not have been available for AT because of his pre-existing medical condition.

[16] During the three-month waiting period, VT (who was still an infant) incurred medical expenses of $30 for a routine medical examination.

[17] However, AT became more ill and commenced as an out- patient at the Hospital for Sick Children on June 19, 2007. He was admitted as an in-patient on July 19, 2007 and remained there past August 17, 2007 because he was at risk for a life- threatening gastrointestinal bleed. The bill for AT's medical care during the three-month waiting period is $66,000.

[18] TT earned $26,846 in 2006 and less in 2007, as he took parental leave to care for his children when they arrived in Canada. NT had no income in those two years. The family does not have the financial means to pay the medical bill.

[19] AT's representative at the Hospital for Sick Children initiated an appeal to the General Manager of OHIP from the Ministry of Health staff decision to impose the three-month waiting period. On July 18, 2007, the General Manager upheld the staff decision.

[20] On August 13, 2007, legal counsel from Justice for Children and Youth appealed the General Manager's decision on behalf of the children to the Board.

[21] The appeal was argued before a three-person panel of the Board on April 3, 2008, based on an agreed statement of facts, the essence of which I have set out above. For unanimous reasons released on June 19, 2009, the appeal was dismissed. [page773]

D. The Legislative Scheme

Health Insurance Act

[22] Section 11 of the Act provides that every person who is "a resident of Ontario" is entitled to be insured under OHIP. In May 2007, "resident" was defined in the applicable regulation (the "Regulation") to include a Canadian citizen who is ordinarily resident in Ontario. [^4] It is conceded by the respondent, and was accepted by the Board, that on May 17, 2007, the date of their arrival, AT and VT met the definition of "resident".

[23] An application for OHIP coverage can only be made by a resident who is present in Ontario at the time the application is submitted. Then s. 3(3) of the Regulation stipulated that a resident who applies for OHIP "shall only be enrolled as an insured person three months after the day the person becomes a resident". [^5]

[24] The Regulation provides exceptions to the three-month waiting period for OHIP eligibility. Those excepted categories include seasonal workers, refugees, inmates released from correctional facilities, Canadian diplomats and their families, and persons leaving the Canadian Forces or RCMP. The exemptions of particular relevance for this case relate to newborns and adopted children. The Regulation states:

3(4) The three-month waiting period referred to in (3) does not apply to the following persons who are residents and who apply to become insured persons:

1. A child under the age of 16 who is adopted by an insured person.
2. A newborn born in Ontario to an insured person. . . . [^6]

[25] In 1994, there were extensive amendments to the Act. The three-month waiting period for eligibility was introduced as part of those amendments. Prior to 1994, a dependant of an Ontario resident insured under OHIP was also entitled to coverage. In 1994, a system of individual eligibility assessment was introduced. Under the old regime, AT and VT would automatically have been eligible for coverage as dependants of their father, who was an OHIP insured. Also, upon their arrival in Ontario, there would have been no waiting period for OHIP [page774] coverage to begin. Under the current system, they are only eligible after the expiry of the three- month waiting period.

[26] In Irshad v. Ontario, [^7] the Ontario Court of Appeal considered whether certain of the 1994 amendments violated the equality rights guaranteed in s. 15(1) of the Charter. The court found no discriminatory impact with respect to either the individual eligibility requirement or the three-month waiting period.

[27] The Court of Appeal held that just because the province had previously determined OHIP coverage on the basis of dependency, did not mean that it was constitutionally obliged by s. 15(1) to maintain coverage on that basis. [^8] Further, everyone in Ontario was required to establish individual eligibility for coverage and there was therefore no discrimination on the basis of nationality, citizenship or place of origin. There were some narrow exceptions (e.g., dependants of employees on short-term contracts and dependants of clergy working on temporary contracts), but this did not constitute discrimination on any prohibited ground as against those not included.

[28] With respect to the three-month waiting period, the court noted that its underlying purpose was to reduce health care expenses in the province and to deter those who might seek to come to Ontario merely to obtain free medical services, without any intention of taking up permanent residence here. The court held that the waiting period did not impose differential treatment based on immigrant status, nationality, citizenship or place of origin and did not discriminate within the meaning of the equality guarantees in the Charter. [^9] The Court of Appeal in Irshad did not deal with the issue raised by the appeal now before this court.

Equality rights provisions

[29] It is clear that the benefits under the Act must be provided in a manner consistent with the equality guarantees under the Human Rights Code and the Charter. Further, it is accepted that in the event of a conflict between the Human Rights Code and the Act, the provisions of the Code are paramount. [page775]

[30] Section 1 of the Human Rights Code provides:

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.

[31] Also relevant for purposes of this case is s. 14(1) of the Code, which protects special programs designed to relieve disadvantage from attack by those excluded. It states:

14(1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

[32] Essentially the same equality rights guarantees and protections for special programs are provided under s. 15(1) and (2) of the Charter:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

E. General Approach to Equality Rights Analysis

[33] As a matter of general principle, determining a question of equality rights is a comparative analysis. In its landmark decision in Law v. Canada, [^10] the Supreme Court of Canada developed a set of guidelines to be applied, not as a strict test, but as points of reference in an equality analysis. The approach must be contextual and must compare groups or individuals and the distinctions made between them. Not every distinction is "discriminatory". In order to constitute discrimination in the substantive sense, differential treatment must create a disadvantage by perpetuating prejudice or stereotyping. [^11]

[34] In Law, the Supreme Court held that the evaluation of a discrimination claim should make three broad inquiries, as follows, at para. 88(3): [page776]

(A) 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?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

and

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

[35] More recently, in Kapp, the Supreme Court endorsed the same general approach to an equality analysis, but essentially condensed the three-part Law approach to two steps. The court held at follows, at para. 17:

The template in Andrews, as further developed in a series of cases culminating in Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, established in essence a two-part test for showing discrimination under s. 15(1): (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? These were divided, in Law, into three steps, but in our view the test is, in substance, the same. (Emphasis added)

[36] In Law, the Supreme Court noted that the contextual approach in determining whether a person's dignity has been demeaned is both subjective and objective, stating that "[t]he relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim". [^12] While stating that the list of relevant factors is not closed, the court listed the following, which it considered to be "important contextual factors influencing whether s. 15(1) has been infringed":

(A) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of "discrete and insular minorities" should always be a central consideration. Although the [page777] claimant's association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.

(B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. Although the mere fact that the impugned legislation takes into account the claimant's traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant's actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant's actual situation.

(C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.

and

(D) The nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1). [^13] (Emphasis added)

[37] Where, as here, it is argued that the impugned law constitutes a program designed to ameliorate the condition of a disadvantaged group, the equality analysis must also take into account s. 15(2) of the Charter. The purpose of s. 15(2) is to ensure that affirmative-action-type programs are not subject to attack by excluded groups or individuals more advantaged than the group that is included and to advance the substantive equality rights of disadvantaged groups. [^14]

[38] Subsections 15(1) and 15(2) are complementary provisions: one prevents governments from discriminating on prohibited grounds; the other enables governments to pro-actively combat discrimination. [^15] Subsection 15(2) requires that s. 15(1) [page778] cannot be read in a way that would find an ameliorative program aimed at combating discrimination to be discriminatory. Therefore, where s. 15(2) is involved, the first step in the analysis is whether there is a distinction on a prohibited ground and the next step is to determine whether the requirements of s. 15(2) are met. This approach avoids a preliminary finding that a law or program discriminates, only to then determine that it is "saved" under s. 15(2), an analysis that would pit the two sections against each other, rather than have them working together in harmony.

[39] Accordingly, when conducting an equality analysis that takes s. 15(2) into account, the following questions must be addressed: [^16] (i) Does the law create a distinction based on an enumerated or analogous ground? (ii) If so, (a) does the law have an ameliorative or remedial purpose; and (b) does it target a disadvantaged group identified by the enumerated or analogous grounds? (iii) If not, does the law's distinction create a disadvantage by perpetuating prejudice or stereotyping?

[40] In the circumstances of this case, the equality rights analysis under s. 15 of the Charter is equally applicable to an analysis under ss. 1 and 14 of the Human Rights Code. [^17]

F. The Decision of the Board

[41] The Board accepted it had jurisdiction to consider the Human Rights Code as part of the applicable legislative scheme and that in the event of a conflict between the Act and the Code the provisions of the Code would prevail. The Board also accepted that OHIP coverage fell within the meaning of "services" under s. 1 of the Code.

[42] Applying the Court of Appeal decision in Irshad, the Board found that the purpose of the three-month waiting period [page779] was to provide an objective basis upon which to test residency that was less intrusive, less expensive and more predictable than any attempt to determine residency on a case- by-case basis. It held that this was accomplished by the legislature, first by providing a general rule that any new resident of Ontario must reside in the province for three months before OHIP coverage begins and then "providing for a limited number of narrowly defined exceptions to that general rule". [^18]

[43] The Board accepted that the family had always intended to reunite and reside permanently in Ontario, but originally intended for that to occur when the mother's application for permanent resident status was granted. The Board found as a fact that although the family did not come to Ontario solely for the purpose of obtaining medical treatment for AT, the need and desire for medical treatment (otherwise not available in Sri Lanka) was a prime factor behind the decision to arrive when they did and earlier than planned." [^19]

[44] The Board adopted the approach established in Law and started with a consideration of the appropriate comparator group to determine if there had been a distinction on a prohibited ground. The Board rejected the "newborns born in Ontario" comparator group because at the relevant time, being their entry into Ontario, neither AT nor VT were newborns. In that regard, the Board found that the status of "newborn" is available at one moment in time, the moment of being born.

[45] With respect to the "adopted children" comparator group, the Board held that the reference in the Regulation to a child who "is" adopted, and in particular the use of the present tense, imports a requirement of contemporaneity between the two events, such that there must be a temporal connection between the adoption and eligibility for an exemption from the waiting period. The Board reasoned that the adoption exemption was included on humanitarian grounds because it would be unfair to impose the waiting period on a child who cannot enter Ontario until the adoption process is complete and the child has no control over the timing of that process. Since AT and VT are Canadian citizens, they were eligible to come to Canada from the moment of their birth. However, they came to Canada many months after their births. The Board therefore held that because the appellants did not meet the contemporaneity [page780] requirement, the adopted children group was also not an appropriate comparator.

[46] The Board found that AT and VT were in the same position as any other Canadian citizen arriving in Ontario to take up residence who either has lost or never had OHIP coverage. Therefore there had been no distinction based on their family status or place of origin and no violation of their equality rights.

G. Application of Principles to this Case

(i) There is no differential treatment based on place of origin

[47] The appellants argue that they are discriminated against on the basis of their place of origin by their exclusion from the exemption for "a newborn born in Ontario to an insured person".

[48] To be successful on this ground, the appellants must first establish that they have been excluded from a benefit that has been "granted to a comparator group [that is like them] in all ways relevant to benefit, except for the personal characteristic associated with the enumerated or analogous ground". [^20]

[49] The appellants were not born in Ontario, which means one of the reasons they are excluded is because of their place of origin. However, the appellants are not otherwise like the group eligible for the benefit because they were not newborns when they entered Ontario. [^21] In this analysis, I am not to be taken as agreeing with the Board's characterization of "newborn" as being a status that exists only for a moment in time. However, by any definition, given their ages upon entry into Ontario in May 2007, neither AT nor VT were "newborns".

[50] The primary identifying element of the protected group is that they are newborns. Until they are born, newborns do not have a place of origin. They only acquire a place of origin at the time of their birth, because they have never had a "residence" elsewhere. The unique situation of newborns in this regard is the underlying reason for the exemption. They cannot be said to be entering Ontario solely for the purpose of obtaining medical [page781] care and, in that sense, cannot fall within the group that the waiting period was designed to exclude.

[51] The appellants are not similarly situated to newborns. They did have a prior residence outside Ontario. They were not newly born when they entered Ontario. It is not relevant that the appellants had no control over where they were born or when they first came to Ontario. Other children who have no control over their residence are also excluded.

[52] It is also not the case that all babies born in Ontario are always eligible for OHIP. Any person, including a child, who leaves Ontario and takes up residence elsewhere is subject to the three-month waiting period upon returning to Ontario, unless they fall within one of the limited exceptions. Having at one time been eligible for OHIP based upon being a newborn born in Ontario to an insured person does not mean that the person re-entering Ontario will still qualify for the exemption. It is a once-in-a-lifetime opportunity. If AT had been born in Ontario and then immediately gone to live with his mother in Sri Lanka, upon returning to Ontario at the age of 19 months, he would be in the same position as he is now -- subject to the three-month waiting period. It is not merely his place of origin that excludes him from the benefit of this provision; it is also the fact that he is not a newborn.

[53] Accordingly, the first step of the test for determining discrimination, as defined in Law and Kapp, has not been met. The exemption for newborns does not exclude the appellants because of their place of origin, but rather because they are not newborns. The same reasoning applies under both the Code and the Charter. The Board did not err in dismissing the appeal on this ground.

(ii) There is differential treatment based on family status

[54] The appellants also submit that they are discriminated against on the basis of their family status by being excluded from the exemption for "a child under the age of 16 who is adopted by an insured person".

[55] The respondent takes the position that this exemption applies only to "newly" adopted children whose insured parents brought them into Ontario at the first reasonable opportunity after the adoption. It is therefore argued that since AT and VT did not come to Ontario immediately following their birth, even though they were entitled to do so, they are not in the same position as adopted children. Essentially, this is the basis upon which the Board found no discrimination based on family status. [page782]

[56] I agree with the reasoning of the Board that the use of the present tense ("a child who is adopted") indicates some requirement of temporal connection between the adoption and the entry into Ontario. As was noted by the Board, similar language is used in other exemption provisions, for example, s. 3(4)8 of the Regulation, which provided an exemption for "an inmate at a penitentiary . . . who is released" (emphasis added). [^22] It cannot have been the intention of the Regulation to provide a lifetime exemption for individuals who are former inmates regardless of the timing of their entry into Ontario. Clearly, the exemption was intended to apply to persons who enter Ontario "upon" being released from penitentiary.

[57] Logically, similar reasoning should apply to the interpretation of the adopted child exemption, which is phrased in a similar fashion. It would not be logical, nor consistent with the purpose of the waiting-period provision, if it applied to any child who had been adopted in the past, regardless of when and in what circumstances that child came to reside in Ontario and how long that child had resided elsewhere. The exemption for adopted children is reasonably interpreted as being complementary in purpose to the exemption for newborns. An OHIP insured whose child is born in Ontario obtains OHIP coverage for that child when that child enters Ontario by virtue of its birth; an OHIP insured who adopts a child is placed in the same position when the adopted child comes into Ontario to live with him or her. It therefore makes sense to interpret the exemption as applying when the adopted child first enters Ontario to take up residence here with the adoptive parent.

[58] The Board reasoned that the adoption exemption addresses the unfairness of imposing a waiting period on a child who cannot enter Ontario until the adoption process is complete and has no control over the timing of this process. The Board contrasted this with the situation of the appellants who were Canadian citizens and eligible to enter Canada from the date of their birth. The Board concluded that the appellants did not share all characteristics with adopted children because they were eligible to come to Ontario before they did and had not done so. The Board therefore found that the appellants had not been discriminated against on the basis of family status.

[59] I do not agree with that conclusion. First of all, AT and VT were babies. They had no more control over when they would [page783] enter Ontario than an adopted child would have, nor indeed any child would have. Children, because of their status as children, do not control their own place of residence. Furthermore, to suggest that AT and VT could have come to Ontario at the time of their births ignores the practical reality of their dependency on their mother, who was not a Canadian citizen, who had applied through the proper channels to become a permanent resident of Canada and who was appropriately waiting for that process to follow its course.

[60] Counsel for the respondent argues that AT is in the same position as a child who was adopted at birth but only came to Ontario after months or years of living abroad; both would be subjected to the three-month waiting period. I do not agree that this would necessarily be the case. There could be many reasons why an adopted child's entry into Ontario could be delayed for reasons beyond the control of the child. In my view, the operative feature should be the entry of the child into Ontario for the purpose of taking up permanent residence with a parent here. That is the feature that mirrors the exemption for newborns and that is consistent with the purpose of the exemption from the waiting period.

[61] In my view, the interpretation of the adopted children provision urged by the respondent is unjustifiably restrictive. The Court of Appeal noted in Irshad that this exemption was added to address humanitarian concerns. It should therefore be given a liberal construction consistent with its purpose of protecting vulnerable children. The Board itself made that point in another case involving the interpretation of this provision, K-L B v. OHIP. [^23] That case involved a little girl ("K") who had been born in Ontario. When she was five years old, she moved with her mother to the United States after her mother married a U.S. serviceman. K's mother died tragically and unexpectedly in Alaska on July 29, 2002, when K was nine years old. K's maternal grandparents received an appointment as "Special Power of Attorney and Guardian" of K on August 5, 2002 and brought K to live with them in Kingston, Ontario the next day. Subsequently, the Family Court in Kingston granted joint custody of K to her grandparents and her stepfather, but she continued to live primarily with her grandparents. As K's natural grandparents in possession of a final custody order, K's grandparents understandably saw no need to formally adopt her. Initially, OHIP officials took the position that K was not an "adopted" child and was therefore subject to the three-month waiting period for [page784] coverage. However, on appeal the Board reversed that decision. The Board noted that the legislation does not define "adoption" and does not require a specific type of order under a specific statute or type of statute. The Board reasoned that the concept of adoption was broad enough to include any situation in which a person by legal process takes a child into one's family and treats the child as one's own. The Board held that such an interpretation was consistent with the finding in Irshad that the exemption was included in the legislation to address humanitarian concerns.

[62] In my view, there is no need to interpret the exemption as only applying in a situation in which the adopted child is brought to Ontario at the earliest possible opportunity. What is important is that the child is being brought to Ontario for the purpose of residing with an adoptive parent.

[63] Approached from that perspective, I consider AT and VT to be in the same position as adopted children, but for their family status. They were coming to Ontario to take up residence with a parent who was already resident in Ontario. The irony of this situation is that if TT had not been their biological father, but rather an adoptive father, they would not have been subjected to the waiting period. TT could not adopt these children because he is already their father. It is AT's and VT's family status as biological children that prevents their adoption and their family status that distinguishes them from adopted children coming to Ontario to take up residence with a parent. That TT did not bring the children to live with him earlier is no different in principle from the timing of when an adoptive parent decides to bring a child to Ontario; in both situations, it is not timing that is within the control of the children, but rather of the parent and/or state authorities.

[64] Accordingly, I find that the appellants have satisfied the first step of the equality rights analysis. They have established that they were denied a benefit because the legislation in question created a distinction based on family status.

(iii) The adopted children exemption is not an ameliorative program

[65] The next step of the equality analysis is to consider whether the exemption for adopted children has an ameliorative or remedial purpose that targets a disadvantaged group, within the meaning of s. 15(2) of the Charter and s. 14 of the Human Rights Code. I have concluded that it does not. Although the exemption targets a disadvantaged group, [page785] adopted children, the program is not rationally connected to the nature of the disadvantage.

[66] The exemption provides a benefit to adopted children coming from abroad into Ontario [^24] who need medical care in the first three months after their arrival.

[67] As a starting point, it must immediately be recognized that children, as a class, are particularly vulnerable members of society and require protection. This fundamental principle has been embedded in our justice system for centuries, from the court's inherent parens patriae power, through a myriad of statutes wholly or partially devoted to the protection of children, to recognition of the vulnerability of children in judicial decisions from all level of courts. As stated by the Supreme Court of Canada in Baker v. Canada, "Children's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society." [^25] Canada's commitments to the protection of children as a vulnerable class are embodied not only in our domestic statutes but also in our international treaty obligations, such as the United Nations Convention on the Rights of the Child and the Universal Declaration of Human Rights. [^26]

[68] Of particular importance has always been the protection of the health and safety of children. The cases devoted to this topic are too numerous to mention. Examples include numerous cases in which the rights of parents to make decisions for their children have been overridden when the life and health of the child have been endangered, even where this would conflict with religious freedom (see, for example, C. (A.) v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, [2009] S.C.J. No. 30, 2009 SCC 30; Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, [1993] S.C.J. No. 112; B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315, [1994] S.C.J. No. 24, at p. 382 S.C.R., in which blood transfusions were authorized for children over the objections of their Jehovah's Witness parents).

[69] Of particular interest is the decision in C. (A.) v. Manitoba, which involved a child aged 14 who was a member of the [page786] Jehovah's Witness faith. She and her parents had refused a blood transfusion in a situation where doctors believed she was in imminent risk of death without it. An application was made to find her to be a child in need of protection and to obtain a court order for treatment based on the best interests of the child. For children over the age of 16, the legislation provided a different test which gave greater deference to the wishes of the child. The court ordered the transfusion and this was upheld on appeal. One of the issues before the Supreme Court of Canada was whether the legislation discriminated against A.C. because of her age. The court found that it did not. The court recognized the vulnerability of children as a disadvantaged group, but found that the distinction made for children under the age of 16 was ameliorative and protected by s. 15(2) of the Charter. McLachlin C.J.C. held, at paras. 151-52:

As this Court recognized in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, "[c]hildren are a highly vulnerable group" (para. 56). Deschamps J., in dissent, further observed that "[c]hildren as a group face pre-existing disadvantage in our society. . . . [T]heir vulnerability was entrenched by the traditional legal treatment of children as the property or chattel of their parents or guardians" (para. 225).

In the present case, however, A.C.'s claim must fail because the distinction drawn by the Act between minors under 16 and those 16 and over is ameliorative, not invidious. First, it aims at protecting the interests of minors as a vulnerable group. Second, it protects the members of the targeted group -- children under 16 -- in a way that gives the individual child a degree of input into the ultimate decision on treatment. In my view, this is sufficient to demonstrate that the distinction drawn by the Act, while based on an enumerated ground, is not discriminatory within the meaning of s. 15.

[70] It is therefore very clear that children under the age of 16 are a disadvantaged group and that this is particularly so with respect to their health and safety. Legislation that provides for free medical care for children under the age of 16 can therefore easily be characterized as having an ameliorative and remedial purpose that targets a disadvantaged group.

[71] However, the s. 15(2) analysis does not end there. It is necessary to look not only at who is included within the protected group, but also who is excluded. In this case, AT and VT are excluded from the group because they are not adopted children, but rather biological children. An ameliorative program will almost invariably be underinclusive to some extent. However, by providing a benefit to a disadvantaged group, legislation is not subject to constitutional attack for not having extended that benefit to others who are less disadvantaged. This point is made in [page787] Law as part of the analysis of s. 15(1), but is equally apt here. Iacobucci J. (writing for the unanimous court) held, at para. 72:

An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. I emphasize that this factor will likely only be relevant where the person or group that is excluded from the scope of ameliorative legislation or other state action is more advantaged in a relative sense. Underinclusive ameliorative legislation that excludes from its scope the members of a historically disadvantaged group will rarely escape the charge of discrimination: see Vriend, supra, at paras. 94-104, per Cory J.

[72] It cannot be said that biological children are a disadvantaged group as compared to adopted children. If anything, the reverse may be true.

[73] Although not a direct parallel, a similar issue was dealt with by the Divisional Court in Ontario Secondary School Teachers' Federation v. Upper Canada District School Board. [^27] In that case, a term of a collective agreement provided a supplementary benefit topping-up unemployment insurance for adoptive parents that was not available for biological parents (although separate benefits were provided to biological mothers). A biological father, who had taken parental leave when his two children were born, filed a grievance alleging that the additional benefits available to adoptive parents discriminated against him contrary to the Human Rights Code. The arbitrator dismissed the grievance and this was upheld by the Divisional Court. In finding no discrimination, this court noted that there was evidence before the arbitrator that adoptive parents have special child care needs. The court ruled that "biological parents are not a disadvantaged group in Canadian society" [^28] and that providing a benefit to the minority group (adoptive parents) does not violate the rights of the majority group (biological parents).

[74] In Canada (Attorney General) v. McKenna, [^29] the Federal Court of Appeal dealt with distinctions made under the Citizenship Act [^30] between children born to Canadian parents and children adopted by Canadian parents. The appellant and her [page788] husband were Canadian citizens but were permanently resident in Ireland. While in Ireland, they adopted two children. Subsequently, the family returned to Canada. If the children had been the biological children of Canadian citizens, they also would have been Canadian citizens. However, because they were adopted, they could only gain admission to Canada by applying for permanent residence status. The federal Human Rights Tribunal found this to be discrimination based on family status and ordered that the children be granted Canadian citizenship. Upon judicial review, a single judge of the Federal Court reversed that decision, finding that a prima facie case of discrimination had not been established and that, in any event, there had been a breach of natural justice. He directed a new hearing. There was a further appeal to the Federal Court of Appeal. The three-person panel hearing the appeal were unanimous in finding that there had in fact been discrimination based on family status. Linden J.A., in dissent, would have upheld the finding of the Tribunal. However, the majority agreed with the motion judge that there had been a breach of natural justice and that a new hearing was required.

[75] For present purposes, McKenna is particularly relevant for its recognition of adopted children as a disadvantage class in our society. Linden J.A., who was not in dissent on this point, dealt extensively with the issue. He stated, at para. 39:

In the past, adopted children and their parents have met with great difficulty in the effort to obtain the same rights available to non-adopted children. In many areas it has taken the law, and society, a long time to realize that adopted children are as legitimate as natural born children. In many contexts adopted children have often been stigmatized as not being "real" children, either explicitly or by the denial of rights that accrue naturally to those who are not adopted.

[76] Linden J.A. went on to review various ways in which adopted children have been historically disadvantaged. He referred specifically to the law of succession and estates in which adopted children did not have the same inheritance rights as biological children and to the criminal law, which does not regard a sexual relationship with an adopted child to be incest. He then commented, at para. 43, that "[t]his same legal blindness has existed until recently in the area of labour law", referring to relatively recent cases that have recognized the rights of adoptive parents to leave from work upon an adoptive placement on the same basis as biological parents. He then concluded, at para. 44:

The general tenor of this history is that in the past adopted children have been regarded as "second best", and adoptive parents have not been seen as [page789] "real" parents. But in recent years there has been a great deal of momentum toward a more sensitive and humane attitude. In many areas, the law has begun to treat adoptive parents and children with much the same respect accorded to their non- adoptive peers. In the area of labour law, many of the benefits that were once available only to birth parents are now given to adoptive parents as well. We now treat adopted children, it will be seen, in much the same way as birth children. Any social stigma that still exists is a carryover from older days and older attitudes. (Citations omitted)

[77] In Kapp, the Supreme Court defined "disadvantage" under s. 15 of the Charter as connoting "vulnerability, prejudice and negative social characterization". [^31] I have no difficulty concluding that adopted children as a class have been historically disadvantaged, stigmatized and treated as less worthy than biological children. Therefore, the requirement of s. 15(2) that the program must target a disadvantaged group is met.

[78] At first blush, one might conclude that an exemption that permits a disadvantaged group (adopted children) to obtain free medical care without a three-month waiting period is ameliorative or remedial and therefore must fall within s. 15(2). However, one must recognize that not every program providing a benefit to a disadvantaged group is completely protected from Charter scrutiny. There is no question that the exemption in this case provides a benefit to a disadvantaged group. However, that is not all that is necessary to meet the requirements of [s.] 15(2); it is also necessary to demonstrate some rational connection between the nature and cause of the disadvantage and the purpose of the program.

[79] In Ontario Human Rights Commission v. Ontario ("Roberts"), [^32] the Ontario Court of Appeal considered a case of age discrimination within a government program designed to assist persons with low vision. Mr. Roberts had applied to the program (known as the Assistive Device Program ("ADP")) for funding for a closed-circuit television monitor, without which he was unable to read. Only persons under the age of 30 were eligible for the program. Mr. Roberts, who was 71 years old at the time, met all of the qualifications of the program except for age. He filed a complaint with the Ontario Human Rights Commission. A human rights tribunal dismissed his complaint because it found the ADP to be a special program under s. 14 of the Human Rights Code. That decision was upheld by the Divisional Court. [page790] However, the Ontario Court of Appeal held that the age distinction in the program could not be rationally justified and that the s. 14 defence was not therefore applicable. The Court of Appeal imposed a rational connection test on special programs, requiring that restrictions within such programs be "rationally connected to the program". [^33]

[80] Weiler J.A. (writing for the majority) held, at p. 407 O.R.:

In this case, the board of inquiry and the Divisional Court erred in law in finding that the inquiry ends when "special program" status is proven. The inquiry should have considered: (1) whether a particular provision or limitation of a special program results in discrimination against a person or group with the disadvantage the program was designed to benefit, and (2) whether the provision or limitation is reasonably related to the scheme of the special program.

[81] In the Roberts case, the government had failed to establish any "rational connection" between the purpose of the program (to provide funding for assistive devices for persons with disabilities) and the prohibited ground of discrimination (age). Therefore, the program was found not to be a special program within the meaning of s. 14 of the Code.

[82] The Roberts decision has been cited with approval in many cases since that time, including by the Supreme Court of Canada in Lovelace v. Ontario. [^34] However, in Lovelace, the Supreme Court elected to ground its decision on s. 15(1), leaving a fuller s. 15(2) analysis open for future cases.

[83] Eight years later, in the Kapp decision, the Supreme Court had occasion to deal with s. 15(2) more fully. In that case, the court accepted and applied the rational connection test for ameliorative programs. First, the court held that a "purpose-based" approach must be applied, rather than one that looks at the "effects" of a given program. McLachlin C.J.C. and Abella J. for the majority, held, at para. 48:

Given the language of the provision and its goal of enabling governments to pro-actively combat discrimination, we believe the "purpose"-based approach is more appropriate than the "effect"-based approach: where a law, program or activity creates a distinction based on an enumerated or analogous ground, was the government's goal in creating that distinction to improve the conditions of a group that is disadvantaged? In examining purpose, courts may therefore find it necessary to consider not only statements made by the drafters of the program but also whether the legislature chose means rationally related to that ameliorative purpose, in the sense that it appears at least plausible [page791] that the program may indeed advance the stated goal of combatting disadvantage. The Manitoba Court of Queen's Bench suggested that it favoured an analysis of this kind in Manitoba Rice Farmers Association, at para. 54:

In order to justify a program under s. 15(2), I believe there must be a real nexus between the object of the program as declared by the government and its form and implementation. It is not sufficient to declare that the object of a program is to help a disadvantaged group if in fact the ameliorative remedy is not directed toward the cause of the disadvantage. There must be a unity or interrelationship amongst the elements in the program which will prompt the court to conclude that the remedy in its form and implementation is rationally related to the cause of the disadvantage. (Emphasis added)

[84] The majority then held that the test could be framed as the following question: "Was it rational for the state to conclude that the means chosen to reach its ameliorative goal would contribute to that purpose?" Further, the court held that, "For the distinction to be rational, there must be a correlation between the program and the disadvantage suffered by the target group." [^35]

[85] Applying that test to this case, I am unable to see any rational connection between the type of disadvantage suffered by adopted children and the exemption from the three-month waiting period for OHIP benefits. There is no historical evidence that adoptive parents failed to provide proper medical care for their children or that, as a class, adoptive parents are less able to afford medical care for their children than is the case for biological parents. There is nothing about the stereotypes attributed to adopted children in the past that would support exempting them from a waiting period that biological children are required to honour.

[86] The rationale for the exemption offered by the respondent is that the exemption is justifiable to ensure that adopted children are treated in the same way as biological children. However, that is not what this program is directed towards. It is only newborns that have the exemption and adopted children are not newborns. I have already dealt with the justification for the newborn exemption, which is that they have no prior residence. Adopted children do not fit within that rationale. Biological children coming into Canada for the first time to join a biological parent are subjected to the three-month waiting period. If the goal is to [page792] treat adoptive children in the same way as biological children, then neither group should have the exemption.

[87] The respondent further submits that if the exemption had not been given to newly adopted children, "it might well have been argued that the application of the wait period to newly adopted children (but not to newborn biological children) was itself discriminatory on the basis of family status". It may be the case that this could have been "argued"; but that does not mean it could have been successfully argued. The respondent has presented a compelling argument for why newborns fall into an exceptional category, which is why providing an exemption for newborns does not discriminate against children in the situation of AT and VT. The more appropriate comparator for adopted children would be children like AT and VT, who were born out of the country and are coming to Ontario for the first time to live with their biological parent here. Concern that a failure to provide an exemption to adopted children might be the subject of a Charter challenge does not mean that there is a rational connection between the exemption and the cause of any disadvantage suffered by adopted children generally.

[88] That said, I accept that adopted children are a disadvantaged group. I also accept that the exemption is a program that confers a benefit on them. However, I do not see a correlation between the program and the disadvantage suffered by adopted children, whether in present times or historically. Even if the purpose of the state was to ameliorate the disadvantage of adopted children, it is not rational to conclude that this exemption would contribute to that purpose. That is because the exemption is not rationally connected to the cause of that disadvantage.

[89] I therefore conclude that the exemption for adopted children is not a special program within the meaning of s. 15(2) of the Charter or s. 14 of the Code. It is therefore necessary to move to the next stage of the equality rights analysis and determine whether the distinction between adopted and biological children creates a disadvantage by perpetuating prejudice or stereotyping against the excluded group.

(iv) The differential treatment for biological children is not discrimination

[90] The final stage of the analysis, as developed in Law and refined in Kapp, is to consider whether the distinction within the law on the prohibited ground is discrimination within the meaning of s. 15(1) of the Charter. It is clear from the jurisprudence that not every distinction based on a prohibited ground will be discriminatory. Rather, the approach to this issue must be both [page793] comparative and contextual. It is useful at this point to restate the third part of the test, as enunciated in Law as follows, at para. 88(3)(C):

Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

[91] Clearly the regulation in this case withholds a benefit from AT and VT that is provided to adopted children. It is also clear that as children and, arguably for these purposes, as children who were born outside Canada, AT and VT are members of a disadvantaged group. However, this is a comparative test. The question is whether biological children are disadvantaged as compared to the group that is receiving the benefit. In my view, that question must be answered in the negative.

[92] AT and VT were not singled out for differential treatment because of individual characteristics. They were excluded solely because they do not belong to the class of adopted children to whom the benefit was provided. Biological children have not suffered any adverse stereotypes, prejudice or vulnerability because of their status as biological children. On the contrary, it is adopted children who have historically been perceived negatively, as compared to biological children. Biological children are not a minority group, but rather constitute the overwhelming majority in society. There is nothing about the withholding of this benefit that could reasonably be viewed as perpetuating or promoting the view that biological children are less worthy as human beings or less deserving of concern, respect and consideration.

[93] Further, the purpose for requiring the three-month waiting period is rational and justifiable in order to prevent individuals from entering Ontario solely to obtain medical treatment. The group to which AT and VT belong cannot be excluded from the group the legislation is legitimately targeting. A law is not discriminatory in the substantive sense if it targets a specific group for legitimate purposes, and, although making distinctions based on prohibited grounds, does not do so in a manner that would undermine human dignity or suggest the members of the group were less valued in our society. [^36] [page794]

[94] In Granovsky v. Canada (Minister of Employment and Immigration), [^37] a person who was unable to qualify for CPP benefits because he had an intermittent disability rather than a permanent one claimed that the scheme discriminated against him because of the nature of his disability. The Supreme Court of Canada held that the question was not simply whether there had been a deprivation of a financial benefit, but "whether the deprivation promotes the view that persons with temporary disabilities are 'less capable, or less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration'". [^38] The court found that this case did not meet the third test articulated in Law because Mr. Granovsky had failed to demonstrate a human rights dimension to his complaint in that he could not show that the design of the CPP program "demeans persons with temporary disabilities, or casts any doubt on their worthiness as human beings". [^39] The court therefore concluded, at para. 81:

While I have every sympathy for the appellant's injured back and the problematic employment history to which it may have contributed, I do not believe that a reasonably objective person, standing in his shoes and taking into account the context of the CPP and its method of financing through contributions, would consider that the greater allowance made for persons with greater disabilities in terms of CPP contributions "marginalized" or "stigmatized" him or demeaned his sense of worth and dignity as a human being.

[95] In coming to that conclusion, the court was influenced by the fact that the person claiming discrimination belonged to a class that was less disadvantaged than the group receiving the benefit. At para. 67 in Granovsky, the court echoed its previous ruling, at para. 72 in Law, as follows:

An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. (Emphasis in original)

[96] The waiting period to which AT and VT were subjected had a legitimate constitutional basis. They were not singled out [page795] based on any personal characteristics. They were denied the benefit of an exemption based on their status as biological rather than adopted children. However, this was not a distinction that would in any way demean them or suggest that they were less worthy of respect in our society than adopted children. On the contrary, they belong to a group that is historically more advantaged than the group receiving the benefit. Accordingly, although the exemption makes a distinction based on family status, it is not one that results in a denial of substantive equality and does not meet the definition of discrimination as established by the Supreme Court of Canada.

H. Conclusion

[97] I have come to the conclusion that the failure of the legislation to provide an exemption to AT and VT, on the same basis as provided to newborns and adopted children, did not violate their rights under the Charter or the Human Rights Code. It follows that this appeal must be dismissed.

[98] In coming to that conclusion, I must emphasize that I am sympathetic to the plight that AT's parents now find themselves in, facing an enormous medical bill they have no financial means to pay. There is also a broader public interest concern for other parents who may find themselves in a similar situation. Will parents of limited means with children subjected to the waiting period delay necessary medical attention for their children because they cannot afford to pay for it? Is such a situation consistent with our fundamental values as a society?

[99] In Irshad, the Ontario Court of Appeal was similarly moved to question the humanitarian basis for denying OHIP coverage to children with disabilities in this manner. The court stated, at para. 162:

I would dismiss the appeal. In doing so, however, I must observe that the present interface between the complex immigration process, as administered by the federal government, and the determination of OHIP eligibility as made by the province is not entirely satisfactory. It seems inherently contradictory, if not cruel, to permit a young boy like Raja to enter Canada on compassionate grounds so that he might live with the rest of his family who have been allowed to settle in Canada, while at the same time not taking cognizance of Raja's need to access expensive medical services that can, to some degree, at least alleviate his severe physical disability. While I have found no constitutional violation, I would think that the federal and provincial authorities could work together to find some way to extend our country's compassion beyond permission to enter Canada to include access to the medical services available through OHIP to persons like Raja.

[100] Although the Regulations have been amended since the time AT and VT entered Ontario, the legislation still fails to [page796] address this pressing lack of compassion for children with disabilities, among the most disadvantaged groups in our society.

[101] The Attorney General indicated in advance that costs would not be sought. In the result, the appeal is dismissed without costs.

Appeal dismissed.

Notes

[^1]: Health Insurance Act, R.S.O. 1990, c. H.6 ("HIA").

[^2]: HIA, ibid., s. 24.

[^4]: R.R.O. 1990, Reg. 552, s. 1.1(1)(b)1. "Resident" in the current version of R.R.O. 1990, Reg. 552 is defined at ss. 1.2 to 1.14.

[^5]: The three-month waiting period is now at R.R.O. 1990, Reg. 552, s. 5(1).

[^6]: The exemptions are now found at R.R.O. 1990, Reg. 552, s. 6.

[^7]: Irshad (Litigation guardian of) v. Ontario (Ministry of Health) (2001), 2001 24155 (ON CA), 55 O.R. (3d) 43, [2001] O.J. No. 648 (C.A.).

[^8]: Irshad, ibid., at para. 151; Ferrell v. Ontario (Attorney General) (1998), 1998 6274 (ON CA), 42 O.R. (3d) 97, [1998] O.J. No. 5074 (C.A.), at pp. 110-11 O.R.

[^9]: Irshad, ibid., at paras. 28-31 and 141-50.

[^10]: Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, at para. 88.

[^11]: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, at paras. 27-28.

[^12]: Law, supra, note 10, at para. 88(7).

[^13]: Law, ibid., at para. 88(9).

[^14]: Ontario Human Rights Commission v. Ontario (1994), 1994 1590 (ON CA), 19 O.R. (3d) 387, [1994] O.J. No. 1732 (C.A.) ("Roberts"); Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, [2000] S.C.J. No. 36, at para. 99.

[^15]: Kapp, supra, note 11, at para. 37.

[^16]: Kapp, ibid., at paras. 37-41.

[^17]: See 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.) ("O.S.S.T.F."), at paras. 24-26; 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.), at paras. 46-47; and Ontario Human Rights Commission v. Ontario, supra, at p. 405 O.R.

[^18]: AT & V.T. v. The General Manager (OHIP), 07-HIA-0243 (June 19, 2009) ("Board Reasons"), at para. 23.

[^19]: Board Reasons, supra, at para. 24.

[^20]: Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, [2004] S.C.J. No. 71, at para. 26.

[^21]: It may even be the case that the appellants were not born "to an insured person" as it is at least arguable that a baby is "born to" a mother, and that only newborn babies whose mothers are insured under OHIP at the time of their birth would be covered by the exemption. However, since that point is not essential to my analysis, I make no determination on it. Rather, I will focus on the requirement of being a newborn.

[^22]: R.R.O. 1990, Reg. 552, s. 3(4)8 as of May 2007. There is no equivalent to this exemption in the current Regulation.

[^23]: K-L B v. General Manager (OHIP), 02-HIA-0153 (September 15, 2003).

[^24]: Although the exemption refers to all adopted children, as a practical matter children being adopted from one province into another will normally have the benefit of interprovincial reciprocity.

[^25]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at para. 67.

[^26]: Convention on the Rights of the Child, 20 November 1989, 3 U.N.T.S. 1577, Can. T.S. 1992 3; Universal Declaration of Human Rights, GA Res. 217 (III) UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810.

[^27]: O.S.S.T.F., supra, note 17.

[^28]: O.S.S.T.F., ibid., at para. 36.

[^29]: Canada (Attorney General) v. McKenna, 1998 9098 (FCA), [1998] F.C.J. No. 1501, [1999] 1 F.C. 401, 167 D.L.R. (4th) 488 (C.A.).

[^30]: Citizenship Act, R.S.C. 1985, c. C-29.

[^31]: Kapp, supra, note 11, at para. 55.

[^32]: Supra, note 14.

[^33]: Roberts, ibid., at p. 406 O.R.

[^34]: Lovelace v. Ontario, supra, at paras. 99-100.

[^35]: Kapp, supra, note 11, at para. 49.

[^36]: Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, 2002 SCC 84, at paras. 17-18.

[^37]: Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, [2000] S.C.J. No. 29, 2000 SCC 28.

[^38]: Granovsky, ibid., at para. 58 (emphasis in original).

[^39]: Granovsky, ibid., at para. 70.