CITATION: Abbey v. Ontario (Community and Social Services), 2018 ONSC 1899

DIVISIONAL COURT FILE NO.: 476/16

DATE: 20180322

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Linhares de Sousa, C. Horkins, and Kurke JJ.

BETWEEN:

SHERYL ABBEY

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY AND SOCIAL SERVICES and HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

COALITION OF THE COUNCIL OF CANADIANS WITH DISABILITIES, INCOME SECURITY ADVOCACY CENTER and THE ODSP ACTION COALITION

Intervener

David Baker and Hannah Shaikh, for the Applicant

Mimi Singh and Rochelle S. Fox, for the Respondent, Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services

Brian Blumenthal for the Respondent, Human Rights Tribunal of Ontario

Jackie Esmonde, Dan Rohde and Dianne Wintermute for the Coalition of the Council of Canadians with Disabilities, Income Security Advocacy Center and the ODSP Action Coalition

HEARD at Toronto: February 28, 2018

C. Horkins

Overview

[1] The applicant, Sheryl Abbey, seeks judicial review of the decision of the Human Rights Tribunal of Ontario (the “Tribunal”) dated June 8, 2016 (the “decision”) and the reconsideration decision dated August 19, 2016 (the “reconsideration decision”). The interveners, Coalition of the Council of Canadians with Disabilities Income Security and Advocacy Center and The ODSP Action Coalition support this judicial review application.

[2] The applicant is terminally ill and living with the on-going, disabling effects of cancer, cancer treatment, diabetes and other health issues. She is eligible to receive income support, health benefits and employment supports under the Ontario Disability Support Program (the “ODSP” and “ODSP services”).

[3] The respondent, Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services (the “Ministry”), provides ODSP services to eligible persons with disabilities under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Schedule B (“ODSPA”). The Ministry also administers the ODSP.

[4] The purpose of the ODSP is to provide income support and health benefits to eligible recipients, recognizing that the government shares in the responsibility of ensuring that persons with disabilities are supported. The ODSP provides employment supports that benefit those recipients who are interested in and capable of working. The ODSP also supports self-employment as a means of increasing financial independence.

[5] In 2013, the applicant was preparing to start a business called Cancer Connect that would connect cancer patients and their families with services in the community. The applicant planned to rely on sub-contractors to provide services to the clients. This business model took into account her disabilities and made use of her intellectual skills and past work experience. The applicant hoped that eventually she would earn enough income from the business to transition off ODSP.

[6] In the fall of 2013, the applicant learned that two rules (“sub-contracting rules”) in Policy Directive 5.4 (the “Policy Directive”) dealing with calculation of self-employment income would not allow her to deduct expenses and wages paid to her subcontractors from her income. Instead, the amounts paid to the sub-contractors would be attributed to her as income. This would artificially inflate the applicant’s self-employment income and leave her in the untenable position where she could lose ODSP services, without having the actual income and assets to replace those services. The applicant ceased her business preparations because she feared that the subcontracting rules would make her ineligible for the ODSP services that she depends on.

[7] The applicant filed an application under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) alleging discrimination with respect to services because of disability.

[8] The Tribunal found that the subcontracting rules in the Policy Directive are at odds with one of the most important goals of the ODSPA: to provide employment support to persons with disabilities who are able to contribute to their own support. The Tribunal explained that the subcontracting rules “exacerbated the already vulnerable circumstances of ODSP recipients who aspire to or attempt the kind of self-employment” that the applicant tried to pursue (para. 115).

[9] The subcontracting rules originated in the Family Benefits Act, R.S.O. 1990, c. F.2 (repealed Jan. 1, 2011) ("FBA"). The Tribunal observed the following at para. 20:

The rules, which may have served a legitimate purpose under the FBA prior to 1998, are now irrational, unrelated to the purpose of ODSP and contrary to the goals of promoting employment, self-employment and financial independence. When viewed through the lens of substantive equality, these rules limit the aspirations of ODSP recipients who, like the applicant, are capable of starting a business and choosing how best to contribute to their own support.

[10] The Tribunal found that the applicant satisfied her evidentiary burden. She proved that she has a disability (which was not contested), that she was disadvantaged with respect to the ODSP services because of the subcontracting rules and that her disability was a factor in the disadvantage she experienced. In particular, the Tribunal found following at para. 129:

The applicant has demonstrated that the rules do not reflect a modern understanding of work-related technologies, many of which make it possible for persons with disabilities to engage in a wider range of self-employment opportunities than ever before. The subcontracting rules fail to incorporate the understanding that not all ODSP recipients are the same in their abilities or aspirations for self-employment. And, most important, they impede rather than support one of the most important goals of the ODSPA, which is to provide employment support to persons with disabilities who are able to contribute to their own support.

[11] The Ministry failed to prove that there was a reasonable and bona fide justification for the subcontracting rules. At the end of the evidence, the Tribunal was still asking what purpose the subcontracting rules served, as noted at paras. 124 and 129:

At the conclusion of the evidence we were still asking the question: what purpose does this approach to subcontracting serve? This was particularly puzzling in light of the fact that the rules actually appear to be at odds with the purpose of the ODSPA, the policy directives in general, and policy directive 5.4 in particular. Everything that was presented to us by the respondent emphasized the importance of breaking down barriers to employment and self-employment for ODSP recipients. To the extent that this approach to subcontracting has its origins in the purpose of the FBA that legislation was repealed in favour of a more responsible, progressive, and inclusive approach to the support of persons with disabilities under the ODSPA.

There was no evidence about how and why the subcontracting rules were imported from the FBA almost 20 years ago into the ODSPA at a time when persons with disabilities people were explicitly removed from the stigma of "welfare".

[12] In summary, the Tribunal found at para. 129 that the subcontracting rules “are arbitrary and exacerbate the vulnerabilities that brought the applicant to the ODSPA program in the first place.” They “discriminate against the applicant because they perpetuate her disadvantage as a person with a disability and subject her to the stereotype that she is less capable than others who aspire to be self-employed.” As a result, the Tribunal found that the subcontracting rules violate the Code.

[13] The Tribunal considered its remedial powers under s. 45.2(1) of the Code. The applicant sought a monetary award of $768,627.18 for lost opportunity and income, Cancer Connect startup costs of $1,356.23 and $100,000 in damages for injury to dignity, feelings and self-respect that she refers to as general damages. For ease of reference, we will do the same.

[14] The Tribunal denied the applicant’s request for damages of $768,627.18 for lost opportunity and income because she did not establish that this loss was related to the ODSP service in issue and derived from the discrimination. The Tribunal allowed $1,356.23 to compensate for costs incurred in the preparation phase of Cancer Connect.

[15] When the Tribunal turned to consider the $100,000 general damage claim, it applied the general rule of public law set out in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13 ("Mackin" and “Mackin rule”). The Mackin rule states that unless the government's conduct is clearly wrong, in bad faith or an abuse of power, courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional.

[16] The Tribunal found no evidence of bad faith or abuse of power and no conduct that was clearly wrong. As a result, the applicant’s claim for general damages was denied.

[17] The Tribunal directed the Ministry to immediately cease applying the subcontracting rules and undertake a review of the self-employment Policy Directives within six months. The Ministry followed this direction.

[18] On August 19, 2016 the applicant’s request for a reconsideration of the Tribunal decision was denied.

[19] The applicant seeks judicial review of the Tribunal’s decision denying her claim for $100,000 in general damages.

Standard of Review

[20] The parties do not agree on the standard of review. The applicant argues that the Tribunal’s decision was based on a constitutional analysis and involved a question of general importance to the legal system, namely the question of Crown immunity. As a result, she says that the standard of review is correctness. The respondents state that the standard of review is reasonableness. We agree with the respondents.

[21] A significant body of jurisprudence confirms that the standard of review for the decision of a Human Rights Tribunal is reasonableness: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495, at para. 40; Ontario (Human Rights Commission) v. Farris 2012 ONSC 3876, at para. 25; Shaw v. Phipps, 2012 ONCA 155, at para.10; Hamilton-Wentworth District School Board v. Fair, 2016 ONCA 421, at paras. 40-41; Big Inc. (c.o.b. Le Papillon on the Park) v. Islam, 2015 ONSC 2921, at paras. 10-13; and Ontario (Minister of Community and Social Services) v. W., 2011 ONSC 288, at paras. 19-26.

[22] The reasonableness standard is consistent with the strong privative clause in s. 45.8 of the Code that states “a decision of the Tribunal is final and not subject to appeal and shall not be altered or set aside” on judicial review “unless the decision is patently unreasonable”. While a review court no longer looks at patent unreasonableness, this private clause still provides support for the reasonableness standard of review.

[23] As stated in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190 at par. 52 :

The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard. This conclusion is appropriate because a privative clause is evidence of Parliament or a legislature's intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized.

[24] The fact that the Tribunal applied the Mackin rule to arrive at its decision does not alter the standard of review. The Tribunal has frequently considered the Mackin rule and whether to apply it to the facts in the case at hand. These are decisions within the scope of the Tribunal’s specialized expertise. See, for example, Ivancicevic v. Ontario (Consumer Services), 2011 HRTO 1714, at paras. 219-222; Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32, at para. 165; Ball v. Ontario (Community and Social Services), 2010 HRTO 360, at paras. 168-174; Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482, at paras. 107-110; Cole v. Ontario (Health and Long-Term Care), 2015 HRTO 1604, at paras. 47-48; Crocker v. Ontario (Community and Social Services), 2012 HRTO 736, at paras. 113-115 (considering Ball); and XY v. Ontario (Government and Consumer Services), 2012 HRTO 726, at paras. 274-277.

[25] The Tribunal’s consideration of the Mackin rule does not turn its remedial decision into a constitutional question. Nor does the fact that the Mackin rule derives from principles of public law change the character of the Tribunal's decision.

[26] In Taylor-Baptiste, the issue on judicial review was whether the Tribunal had reasonably taken into account the Charter values of freedom of expression and freedom of association in determining whether the individual respondent had violated the applicant's right to equal treatment "with respect to employment" as protected by s. 5(1) of the Code. Even though the Tribunal explicitly considered the scope of those Charter rights and values and applied those principles in its interpretation of s. 5(1) of the Code, the Divisional Court and the Court of Appeal held that the standard of review of the Tribunal's consideration and weighing of Charter values was reasonableness.

[27] The Tribunal's decision is not a matter of general importance to the Canadian legal system. As stated in Canada (Attorney General) v. Mowat, 2011 SCC 53, at para. 25, the decision of a Human Rights Tribunal on whether to “grant a particular type of compensation - in this case, legal costs - can hardly be said to be a question of central importance for the Canadian legal system and outside the specialized expertise of the adjudicator.”

[28] The applicant relies on Farris. However, this decision does not assist the applicant. At para. 25, the Divisional Court applied the standard of reasonableness and followed the Court of Appeal in Shaw.

[29] As stated in Shaw at para. 10, the adjudicator of the Human Rights Tribunal has a specialized expertise and its entitled to a high degree of deference:

An Adjudicator's decision is not subject to appeal, but only to judicial review: see s. 45.8 of the Human Rights Code, R.S.O. 1990, c. H.19 (the Code). All counsel agree that the Divisional Court properly identified "reasonableness" as the appropriately deferential standard of review on an application for judicial review of the Adjudicator's conclusion of discrimination: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. In recognition that the Adjudicator "has a specialized expertise" in the area, the Divisional Court explained that the reasonableness standard accords "the highest degree of deference ... with respect to [the Adjudicator's] determinations of fact and the interpretation and application of human rights law" (at para. 41). Deference is maintained unless the decision is not rationally supported. The ultimate question is whether the result falls within the Dunsmuir "range of possible, acceptable outcomes which are defensible in respect of the facts and the law", as the Divisional Court determined that it did (at para. 85). [Emphasis added.]

[30] In summary, the standard of review is reasonableness. The Tribunal is owed the highest degree of deference, unless the decision is not rationally supported. The “ultimate question” that we will now consider is whether the Tribunal’s decision falls within the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law”. The applicant must show that the Tribunal “could not have reasonably arrived at the decision it reached” (see Taylor-Baptiste, at para. 42).

The Applicant’s Position

[31] Applying the standard of reasonableness, the applicant advances the following arguments:

(i) It was unreasonable to apply the Mackin rule to the subcontracting rules in the Policy Directive because the subcontracting rules are not law or a core government policy decision. Therefore, the applicant states that Mackin does not apply.

(ii) If the Mackin rule applies to the subcontracting rules in the Policy Directive, then immunity is not available because an exception to the Mackin rule applies. The applicant states that the decision not to apply an exception was unreasonable.

[32] The Ministry’s position is that the Mackin rule is not limited to core policy. It extends to government policy and government action and this includes the subcontracting rules. Further, the Tribunal’s decision not to apply one of the exceptions to the Mackin rule was based on settled authority and its decision is owed deference.

The Reasonableness Analysis

Was it reasonable to apply Mackin to the subcontracting rules in the Policy Directive?

[33] The Tribunal considered whether Mackin applied to the subcontracting rules in the Policy Directive and found that it did. It reached this conclusion after considering the origin of the Policy Directive and appellate authority.

[34] As explained below, we find that this decision is rationally supported and falls within the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir, para. 47).

[35] The applicant argues that application of the Mackin rule is restricted to legislation, regulations and core policy decisions. She argues that the Tribunal’s decision to apply Mackin to the subcontracting rules was unreasonable because the subcontracting rules are operational rules that do not appear in the ODSPA or its regulations. The applicant also states that applying Mackin to the subcontracting rules “casts the net of immunity too broadly by protecting rules that do not further the legislative intent of the ODSPA and are contrary to that purpose”. The intervener supports the applicant’s argument.

[36] The starting point of our analysis is Mackin. While the focus in Mackin was legislation that the court declared unconstitutional, the reasons in Mackin and the Court of Appeal’s decision in Wynberg v. Ontario (2006), 2006 22919 (ON CA), 82 O.R. (3d) 561 (C.A.) demonstrate that it was reasonable for the Tribunal to apply the Mackin rule to the subcontracting rules.

[37] Mackin explains that immunity is justified because it creates a balance between the protection of constitutional rights and the need for effective government that involves the exercise of government powers and government action. At para. 79 the Supreme Court of Canada states:

The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances. Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the "established and indisputable" laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid. Thus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded (Crown Trust Co. v. The Queen in Right of Ontario (1986), 1986 2725 (ON SC), 26 D.L.R. (4th) 41 (Ont. Div. Ct.)). [Emphasis added.]

[38] Wynberg involved a constitutional challenge to a government program that provided pre-school assistance to autistic children between the ages of two and five. Older children were excluded from the program. Parents of children that were excluded alleged discrimination. The Minister of Community and Social Services had the discretion to create and implement the program pursuant to s. 7(1)(a) of the Child and Family Services Act, R.S.O. 1990, c. C.11.

[39] The trial judge found that the exclusion of children ages six and older from the program discriminated against them on the grounds of age and disability, contrary to s. 15(1) of the Charter. The judge found that Ontario failed to justify the age discrimination violation under s. 1 of the Charter and had not attempted to do so for the disability discrimination violation, and that declaratory relief and damages were the appropriate remedy. On appeal, the Court of Appeal found that the differential treatment did not amount to discrimination. The trial judge had ordered the Ministry to pay damages to the families for past and future treatment. The Court of Appeal decided that the availability of damages warranted comment. It provided direction that is relevant to this judicial review.

[40] In Wynberg, the Court of Appeal described the general rule of public law set out in Mackin that “absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional”. The court also reviewed the purpose of the rule as set out in para. 79 quoted above.

[41] At para. 194, the Court of Appeal explained that there is “no principled basis on which to limit the application of the [Mackin] rule to cases where a statute rather than some other government action is declared unconstitutional” or as in this case discriminatory. The court found support for this view in the reasons of Mackin as they explained in para. 194:

Support for this view can be found in the above quoted passage from Mackin, in which the Supreme Court refers to the "exercise of their powers" and "government action", rather than legislation per se. Moreover, the reasons underlying the general prohibition against damages where declaratory relief is granted apply with equal force whether the declarations are made as a result of a challenge to legislation under s. 52 of the Constitution Act, 1982 or, as in this case, where the challenge is to some action taken under legislation that is said to infringe a Charter right and relief is sought pursuant to s. 24(1) of the Charter.

[42] There is no principled basis for distinguishing the subcontracting rules from the program in Wynberg. Neither case involved a challenge to legislation. Wynberg involved a challenge to a program, while this case involves a challenge to subcontracting rules. Both were created using the discretion that the underlying legislation provided. In this case the ODSPA and its regulations give the Director of the ODSP the discretion to determine self-employment income for the purpose of calculating payments to a recipient.

[43] As explained in Wynberg at paras. 195-196 and as summarized below, the reasons for immunity apply whether the focus is legislation, policies or programs.

[44] First, when “government exercises discretionary statutory authority, the result of which is subsequently declared to be unconstitutional, the government does not owe a duty of care giving rise to liability.” In other words, government action subsequently declared to be invalid does not establish fault on the part of the government on which an action in tort could lie. Wynberg found that this principle applies equally to damages claimed under s. 24(1) of the Charter. In our view, it also applies equally to damages claimed under s. 45.2(1) of the Code. There is no principled basis for drawing a distinction.

[45] A second reason for restricting the availability of damages “is the effect that the threat of liability for damages would have on government decision-making.” A primary function of government “is to advance society through the creation of new policies and programs. Potential liability for damages creates the risk of interfering with effective governance by deterring governments from creating new policies and programs.”

[46] Third, in Wynberg, the court recognized the potentially vast scale of liability a government would face if it were liable for damages to all persons affected by action subsequently declared to be constitutionally inadequate. Exposing government to this level of financial burden would have the effect of redirecting the expenditure of public funds away from the restructuring and development of public programs and institutions toward private individual redress for past acts of government. Further, it would have the effect of undermining the need for government to act equitably where the discrimination was the result of a government policy equally applicable to all Ontarians. If the services denied by the government policy are ordered to be paid by a court then, they should be available to all eligible recipients on the basis of fair and objective criteria, and not only to the claimants in that case.

[47] These reasons for the immunity apply even when the “government action” is determined after the fact, as in this case, to be contrary to the legislative intent of the ODSPA. While the Tribunal has directed the Ministry not to rely on the subcontracting rules, the immunity and the reasons for it remain.

[48] The Tribunal acknowledged that the “impugned rules are contained in a policy directive that is neither legislation nor regulation” and went on to explain at para. 190 why Mackin applies:

This case differs from Hendershott because the impugned rules are contained in a policy directive that is neither legislation nor regulation. However, the policy directives are derived from the legislative authority of the Director of ODSP to determine eligibility and generally administer the provisions of the ODSPA and Regulations. The policy directives ensure consistency in how the legislation and regulations are applied across the province. The evidence, from Ms. Vella in particular, is that she applied the rules to the applicant's circumstances in the good faith belief that she was properly interpreting the policy directive. As a result, in our view the policy directive, and Ms. Vella's actions in pointing out the subcontracting rules to the applicant, constitutes part of the "application of a law" as set out in Mackin at para. 78. See also the decision in Wynberg v. Ontario, 2006 22919 (ON CA), relied on by the respondent.

[49] The applicant seeks to draw a line between policy and operational decisions and argue that Mackin only applies to core policy decisions. As already explained, it was reasonable for the Tribunal to follow Mackin and Wynberg and characterize subcontracting rules as “part of the application of law.”

[50] There are several problems with the applicant’s argument. First there is no evidence that this issue was raised before the Tribunal. Second, the applicant relies on R. v. Imperial Tobacco Ltd., 2011 SCC 42 to support her position that Mackin does not apply to operational polices. However, Imperial Tobacco deals with private law negligence considerations and does not even consider Mackin.

[51] The applicant seeks to import private law negligence considerations into the matter of quasi-constitutional remedial principles that implicate public law considerations. The applicant relies on the analysis of immunity in the tort liability context (specifically the distinction between ‘core policy’ and operational decisions) with no reference to its jurisprudential context. The analysis of whether something constitutes ‘core’ policy is part of liability and falls under the second stage of residual policy considerations in the Anns/Cooper analysis, after a prima facie duty of care is established. Citing Cory J. in Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R.1228, the court in Imperial Tobacco states at para. 63 that “true policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political, or economic factors.”

[52] While there are similar policy reasons for government immunity in the public and private law context, the applicant improperly conflates the jurisprudence dealing with government immunity from claims in tort, with jurisprudence with respect to damages under s. 24(1) of the Charter. The Mackin rule specifically deals with whether damages are an "appropriate and just" remedy without regard to a distinction between ‘core’ policy (or even policy) and operational decisions. This principle addresses damages, not government immunity from any liability altogether.

[53] In summary, the distinction between core and operational policies is not part of the Mackin rule. We reject the applicant’s position that the Tribunal’s decision was unreasonable because the Tribunal did not recognize and apply the distinction.

[54] The above analysis clearly sets out the reasonableness of the Tribunal’s decision to apply Mackin to the subcontracting rules. The decision falls within the “range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir, at para. 47).

Was it reasonable to find that there was no applicable exception to the immunity rule?

[55] Having decided that the Mackin rule applied to the subcontracting rules, the Tribunal next considered if an exception to the Mackin rule was triggered. As stated in Mackin at para.79, “it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded” (emphasis added).

[56] The Tribunal found that there was “no evidence of bad faith or abuse of power, and conduct on the part of government cannot be said to have been clearly wrong simply because this Tribunal determines, after the fact, that it is discriminatory.” As a result, the immunity applied and the Tribunal did not award general damages.

[57] The applicant states that this part of the decision was unreasonable for the following reasons:

(i) The Tribunal used a restrictive definition of bad faith contrary to the jurisprudence.

(ii) It was unreasonable for the Tribunal to limit the exceptions to clearly wrong, bad faith and an abuse of power. The applicant argues that the list of exceptions is not closed and has expanded to include negligence, wilful blindness, irrationality and marked inconsistence with the legislation. The Tribunal did not consider this expanded list. The applicant says that on the facts of the case two of these exceptions are triggered: irrationality and inconsistence with the legislation. The applicant argues that the failure to consider and find that these two exceptions were triggered was unreasonable.

[58] The intervener supports the applicant’s argument. It states that since the remedial powers under the Code are to be interpreted in a broad, generous and purposeful way, such damages should not be limited by the Mackin rule.

(a) Bad Faith

[59] We start with the applicant’s position on bad faith. In written submissions she argues that the Tribunal adopted a definition of bad faith that is more restrictive than Canadian jurisprudence.

[60] During oral argument, the applicant’s counsel stated that he was relying on two exceptions not identified in Mackin: irrationality and inconsistence with the legislation. While it appears that counsel abandoned the bad faith argument, we will address it nonetheless.

[61] The applicant relies on Les Entreprises Sibeca Inc. v Municipality of Frelighsburg, 2004 SCC 61, at para. 26 to say that bad faith also includes “acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith.” She also relies on Finney v. Barreau du Québec, 2004 SCC 36, at para. 39 to say that bad faith also includes acts that are “inexplicable and incomprehensible…having regard to the purposes for which [the act] is meant to be exercised.”

[62] The Ministry states that the applicant never pursued this point before the Tribunal and the panel should not entertain it. There is nothing in the record to reveal that the issue of an expanded definition for bad faith was argued before the Tribunal. However, the issue of bad faith was certainly considered because the Tribunal identified bad faith as an exception in Mackin and then made a finding of fact that there was no bad faith.

[63] The Tribunal’s finding of fact is entitled to a high degree of deference. Regardless of how one defines bad faith, the Tribunal’s decision was reasonable.

[64] As the Tribunal stated at para. 191, “[t]here is no evidence of bad faith or abuse of power, and conduct on the part of government cannot be said to have been clearly wrong simply because this Tribunal determines, after the fact, that it is discriminatory.” Similarly, one cannot say after the fact that there was bad faith because the Tribunal found the subcontracting rules to be discriminatory.

[65] The question of whether the conduct was clearly wrong, an abuse of power or in bad faith is determined by looking at the point in time when the subcontracting rules were created and included in the ODSPA (see Ball). Aside from the evidence that the subcontracting rules were carried over from the FBA and included in the Policy Directive under the ODSPA, there was no evidence as to how or why this happened. A finding of bad faith is serious and given the minimal evidence before the Tribunal, it was reasonable for the Tribunal to find no bad faith.

(b) The Expanded List of Exceptions

[66] The applicant argues that the list of exceptions in Mackin is not closed and has been expanded to include irrationality and inconsistence with the legislation. The applicant argues that the failure to consider and find that these two exceptions were triggered was unreasonable.

[67] The exceptions in Mackin are discussed in paras.78-79 of that decision. At the end of para. 79 the court clearly states that “[t]hus it is only in the event of conduct that is clearly wrong, in bad faith or an abuse of power that damages may be awarded” (emphasis added).

[68] At para. 82 of Mackin, after clearly stating that the exceptions in para 79, the court seems to suggest that negligence or willful blindness are also exceptions (in the context of discussing specifically whether the government of New Brunswick should be liable for damages). Of note Mackin does not suggest that irrationality and inconsistence with the legislation are exceptions.

[69] In Wynberg, the court describes the three exceptions as set out in paras.78-81 of Mackin. It also refers to the passage in Mackin where the court references the absence of any negligence on the part of the government.

[70] It is not clear why the court in Mackin referenced negligence and wilful blindness. We were not provided with any authority to show that either negligence or wilful blindness has been recognized as an exception to Mackin. This is not surprising since the Mackin rule deals with a public duty and not a private duty of care. Further, to expand the exceptions to include negligence would be contrary to the general principle that an action in tort does not lie against a government from the enactment of a law (see Guimond v. Quebec (Attorney General), 1996 175 (SCC), [1996] 3 S.C.R. 347, at para. 13).

[71] The applicant relies on Hislop v. Canada (Attorney General), 2007 SCC 10, at para. 100 to support her position that the Mackin exceptions are not closed. In Hislop, the court was not referring to the list of exemptions in Mackin. Rather, the court was discussing when a s. 52(1) declaration of invalidity might be retroactive as opposed to be purely prospective.

[72] The applicant also relies on Imperial Tobacco to say that irrationality and inconsistency with the legislation are exceptions. Imperial Tobacco does not assist the applicant. As we have already stated, this case dealt with private law negligence considerations and does not even consider Mackin.

[73] To suggest that the Mackin exceptions are open is inconsistent with the limited availability of individual damages. After stating that damages are “only” available for conduct that is clearly wrong, in bad faith or an abuse of power, at para. 80 the court referred back to the comments of Lamer C.J. in Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679, at p. 720 where he stated that an individual remedy will be “rarely available”:

Thus, it is against this backdrop that we must read the following comments made by Lamer C.J. in Schachter, supra, at p. 720:

An individual remedy under s. 24(1) of the Charter will rarely be available in conjunction with an action under s. 52 of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52 that will be the end of the matter. No retroactive s. 24 remedy will be available. [Emphasis added.]

[74] The Supreme Court of Canada, the Court of Appeal for Ontario, this court and the Human Rights Tribunal of Ontario have held the Mackin rule applies to preclude the award of damages absent bad faith, abuse of power, or clearly wrong government conduct in the following situations:

• Human rights claims where government action taken pursuant to legislation has been found to be discriminatory. See Québec (Commission des droits de la personne et droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30; Ontario (Attorney General) v. Ontario (Human Rights Commission) (2007), 2007 56481 (ON SCDC), 88 O.R. (3d) 455 (Div. Ct.); Ball; Ivancicevic; XY; Crocker; and Hendershott.
• Charter claims where government action taken pursuant to legislation has been found to be unconstitutional (see Mackin; Guimond; and Hislop)
• Charter claims where government action taken pursuant to generally applicable government policy has been found to be discriminatory (see Wynberg).

[75] Given the analysis above, we find that it was reasonable for the Tribunal to describe the exceptions as “clearly wrong, in bad faith or an abuse of power” and to deny the applicant’s claim for general damages.

Conclusion

[76] The application for judicial review is dismissed.

[77] The Ministry is not seeking costs and no costs are ordered.

C. Horkins J.

I agree

Linhares de Sousa J.

I agree

Kurke J.

Released: March 22, 2018

CITATION: Abbey v. Ontario (Community and Social Services), 2018 ONSC 1899

DIVISIONAL COURT FILE NO.: 476/16

DATE: 20180322

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Linhares de Sousa, C. Horkins, and Kurke JJ.

BETWEEN:

SHERYL ABBEY

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY AND SOCIAL SERVICES and HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

COALITION OF THE COUNCIL OF CANADIANS WITH DISABILITIES, INCOME SECURITY ADVOCACY CENTER and THE ODSP ACTION COALITION

Intervener

REASONS FOR JUDGMENT

C. Horkins J.

Released: March 22, 2018