COURT OF APPEAL FOR ONTARIO
DATE: 20240903
DOCKET: COA-23-CV-0838
Sossin, Monahan and Madsen JJ.A.
BETWEEN
Valerie Jacob Applicant (Appellant)
and
Attorney General of Canada Respondent (Respondent)
Counsel: Sujit Choudhry, David Baker and Daniel Mulroy, for the appellant Derek Rasmussen, Bahaa Sunallah and Monisha Ambwani, for the respondent Ewa Krajewska, Érik Arsenault, Mannu Chowdhury and Anu Bakshi, for the intervener Income Security Advocacy Centre Jennifer Hunter, Kathryn Ball, and Zahra Vaid, for the intervener Canadian Civil Liberties Association
Heard: June 17, 2024
On appeal from the order of Justice Grant R. Dow of the Superior Court of Justice dated July 6, 2023, with reasons reported at 2023 ONSC 2382.
Sossin J.A.:
OVERVIEW
[1] The appellant, Valerie Jacob, lives with a disability which means she is only able to work part-time. She is a recipient of the Canada Pension Plan Disability Benefit (“CPP-D”). Because she was unable to work sufficient hours to earn the required threshold of $5,000 from an eligible income source, she was ineligible to receive the Canadian Emergency Response Benefit (“CERB”) and the Canadian Recovery Benefit (“CRB”) established during the COVID-19 pandemic to provide emergency support to Canadian workers. She brought an application challenging both the $5,000 income threshold as an all-or-nothing eligibility requirement, and the exclusion of CPP-D from the eligible income sources counted toward this threshold, as contrary to s. 15(1) of the Charter of Rights and Freedoms.
[2] The application judge dismissed her Charter application as failing to establish a breach of s. 15(1) of the Charter. Given this finding, the application judge did not address s. 1 of the Charter or the question of the applicable Charter remedies. Ms. Jacob appeals that decision.
[3] Ms. Jacob seeks a series of declarations of invalidity in relation to the statutory provisions establishing the $5,000 income threshold and defining the eligible income sources. In the event this court suspends the declarations of invalidity, Ms. Jacob seeks compensatory damages in the amount of $29,000 pursuant to s. 24(1) of the Charter, which is the amount of CERB and CRB benefits to which she would have been entitled.
[4] The Income Security Advocacy Centre (“ISAC”) intervenes on the proper framework for a s. 15(1) analysis rooted in substantive equality. ISAC argues that such a framework must proceed from the principles that: (i) the government’s design of an income security scheme need not be the sole or predominant cause of a disproportionate impact; and (ii) the court need not be satisfied that the scheme impacts all members of a Charter-protected group in the same way.
[5] The Canadian Civil Liberties Association (“CCLA”) intervenes on the issue of constitutional remedies pursuant to s. 52(1) of the Constitution Act, 1982 and s. 24(1) of the Charter. In particular, if Ms. Jacob succeeds in establishing a violation of her s. 15(1) rights which cannot be saved by s. 1, the CCLA offered submissions in favour of an order requiring the enactment of retroactive remedial legislation as well as the availability of individual remedies.
[6] For the reasons that follow, I conclude that the application judge erred in failing to find that the $5,000 income threshold, and the manner in which it was calculated, constituted a breach of s. 15(1) of the Charter. However, I further conclude that this Charter breach is saved by s. 1 in light of the context of Canada’s emergency COVID-19 responses.
BACKGROUND
[7] In an adverse effects s. 15(1) Charter challenge, it is important to set out the factual circumstances of both the individual bringing the Charter application, and the group to which the individual belongs.
(1) Ms. Jacob
[8] The application judge summarized undisputed statements of fact with respect to Ms. Jacob’s circumstances in his decision. They are set out below.
[9] Ms. Jacob suffers from Crohn’s disease and is immunocompromised. In 2007, her symptoms ultimately required her to discontinue her art therapy practice and terminate her employment in the records department of a local hospital.
[10] She consequently applied for, and received, the CPP-D on the basis of severe and prolonged disability.
[11] Ms. Jacob continued to work at various jobs as she was able. In September 2019, she began a job at Winners but was let go on March 10, 2020. In total, she earned $2,448.92 at this job. She had worked an average of less than 7 hours per week in the 26 weeks prior to being laid off. The application judge asserted that, had she averaged 15 hours of work per week, she would have achieved the $5,000 income threshold required for CERB.
[12] Ms. Jacob began work as a crossing guard on October 25, 2020. She continued in this position until December 15, 2020, earning $1,993.55. Ms. Jacob was then paid Employment Insurance (“EI”) Benefits from December 18, 2020 to February 15, 2021. She became eligible for EI as a result of relaxed rules established after the expiry of the CERB program, as part of Canada’s continuing response to the economic effects of the COVID-19 pandemic.
(2) Workers with a disability with active labour market participation
[13] The claimant group to which Ms. Jacob belongs for the purposes of her Charter application is disabled workers with active labour market participation.
[14] The record before the application judge included important data regarding workers with a disability in relation to the CERB and CRB programs. The following facts were undisputed by the parties.
[15] The respondents tendered statistical evidence on disabled workers using data from the 2017 Canadian Survey on Disability (“CSD”). Statistics Canada determined that in 2019, of those who participated in the CSD, 3,178,460 people who earned income had a disability; this comprises approximately 16% of the CSD participants. [1] The survey further revealed that out of this 3,178,460 figure, 573,990 individuals earned below $5,000 in income.
[16] Ms. Jacob adduced the evidence of Dr. Lindsay, an expert on the issue of social inclusion for people with disabilities, who stated that workers with disabilities experience barriers in the labour market that are not experienced at all, or to the same extent, as persons without disabilities. Examples of these barriers include limited accessibility, inadequate transportation, lack of workplace modifications, attitudinal barriers, stigma, discrimination, and social exclusion. These barriers are exacerbated for individuals with more severe and prolonged disabilities. As a result, workers with disabilities have lower employment rates compared to workers without disabilities: 80% of persons aged 25 to 64 without disabilities are employed versus 59% of persons with disabilities. Further, according to Dr. Lindsay’s evidence, workers with disabilities tend to be concentrated into lower paying and lower status occupations and are more likely to have temporary employment, independent contract positions and part-time work. She addressed widespread beliefs and misperceptions that people with disabilities who are on social assistance like CPP-D are unable or unwilling to work.
[17] Dr. Lindsay’s evidence also spoke to the general financial concerns faced by individuals with disabilities and the impact of the pandemic on those concerns. According to her evidence, people with disabilities are more likely to suffer from poverty and have unmet needs related to their disability due to cost. Accordingly, they are more often impacted by economic crises compared to other groups because, among other things, they have greater health and financial concerns but less organizational supports and resources to draw upon.
(3) The CPP-D program
[18] The CPP-D is an income replacement program within the Canada Pension Plan (“CPP”). It is intended to provide eligible contributors with partial income replacement if they are incapable of working at any substantially gainful occupation due to a “severe and prolonged” disability.
[19] For the purposes of the CPP-D, a “severe” disability is one that renders an individual incapable of regularly pursuing a “substantially gainful occupation”, which was defined in the record as any type of work or occupation that may result in total annual earnings equal to or greater than 12 times the maximum monthly CPP-D amount. A “prolonged” disability is one that is likely to be continued, of indefinite duration or is likely to result in death. The expectation of the program is that a CPP-D recipient likely will never be in a position to return to any substantially gainful occupation.
[20] Recipients of CPP-D are permitted to supplement their benefits with income from employment, up to the “allowable earnings amount” ($6,400 in 2022), without losing their CPP-D benefits. Indeed, many CPP-D beneficiaries avail themselves of the choice to both receive CPP-D and work. The record before the application judge reveals that, in 2019 and 2020, approximately 13%-14% of CPP-D recipients earned income from work below the “allowable earnings amount.”
[21] Philip Martens, one of Canada’s witnesses who worked within the CPP-D Directorate, described CPP-D as “an earnings-related, social insurance program” that provides “partial income replacement” to eligible individuals. He observed, however, that CPP-D is not intended to replace all of a person’s income. Rather, it is “meant to be one component of a person’s income replacement, which can be supplemented by private disability insurance or private investments and savings, or other provincial and territorial program benefits.”
[22] Mr. Martens further noted that because CPP-D is meant to act as a partial income replacement, applicants for CPP-D must have a recent attachment to the workforce at the time they become disabled. The applicant must have made CPP contributions in at least 4 of the last 6 years, or for those with 25 years or more of contributions, in at least 3 of the last 6 years.
[23] The application judge accepted that Ms. Jacob qualified for the CPP-D on December 1, 2007, retroactive to August 31, 2007.
[24] Ms. Jacob has continued to receive the CPP-D since then, with the exception of five months in 2013. As set out above, she worked as she was able to while receiving the CPP-D, thereby maintaining an attachment to the workforce.
(4) The CERB and CRB programs
[25] The evidence produced by the respondents revealed that as a result of the COVID-19 pandemic, there was a dramatic surge in EI claims in March 2020. The existing EI system was not able to handle this sudden increase in claims. In order to respond to the need for immediate income support, Canada designed and implemented a new emergency response benefit system, consisting of two streams. The EI Emergency Response Benefit (“EI ERB”) replaced the existing EI program for those who would otherwise have been entitled to EI regular or sickness benefits under that program. The CERB stream, implemented by the Canada Emergency Response Benefit Act, S.C. 2020, c. 5, s. 8 (the “CERB Act”) was intended for workers who would not have been eligible for EI. A claimant could only receive one or the other.
[26] The CERB provided a $500 weekly benefit that was available from March 15, 2020 until October 3, 2020. It is not in dispute that as of October 4, 2020, there were 8.9 million unique applicants, 27.57 million applications, and $74.08 billion in benefits paid.
[27] In addition to general eligibility criteria set out in s. 6(1), the CERB Act required applicants to be “workers” in order to qualify for the CERB. A “worker”, as defined in s. 2 of the CERB Act, was a person who was at least 15 years of age, a resident of Canada and earned a minimum of $5,000 in the previous 12 months or in 2019, from certain specified sources of income, such as employment or self-employment income. CPP-D was not a specified source of income.
[28] The $5,000 income threshold was intended to reflect a minimum level of attachment to the workforce. It was created by taking the lowest provincial minimum wage at the time (Saskatchewan), combined with the lowest number of insurable hours necessary to qualify for regular EI, rounded up to the next thousand.
[29] According to Joel Reimer, a government employee who was directly involved in the design and development of the CERB and CRB, the $5,000 income threshold “was chosen to capture as many individuals as possible, simply and effectively.” His evidence showed that in 2019 and 2020, approximately 88% and 86% of Canadian workers, respectively, earned more than $5,000 per year. Further, according to Mr. Martens, approximately 24% of CPP-D recipients earned over $5,000 in 2019, and approximately 23% earned over $5,000 in 2020.
[30] The $5,000 income threshold was restricted to income from employment or self-employment, as well as income from maternity or parental benefits. The CPP-D benefits were not included as an eligible income source able to satisfy the $5,000 income threshold. According to Mr. Reimer, maternity and parental benefits were included because they were viewed as benefits for temporary interruptions to recent labour force attachment, whereas CPP-D was viewed as a benefit for a permanent interruption to past labour force attachment.
[31] The CRB, implemented by the Canada Recovery Benefits Act, S.C. 2020, c. 12, s. 2 (“CRB Act”), replaced the CERB. The CRB Act implemented a suite of benefits, including the CRB and the Canada Recovery Sickness Benefit (“CRSB”). According to Mr. Reimer, these benefits were intended to ensure workers still had access to the necessary income support and to respond to the gradual re-opening of the economy and the need to help workers transition back to work. These benefits were available from September 27, 2020 to October 23, 2021: CRB Act, s. 3(1).
[32] Like the CERB, the CRB was only available to individuals who had at least $5,000 in income from specified sources in 2019 or in the 12 months prior to the date of the application: CRB Act, ss. 3(1)(d)-(e.1). CPP-D was not a specified source of income. CRB claimants were also required to not place undue restrictions on their availability for work during the period of their claim: CRB Act, s. 3(1)(j).
[33] The CRSB was available between September 27, 2020 and May 7, 2022. The CRSB required the same income threshold from specified income sources in any of 2019, 2020, 2021 or the 12 months prior to the date of the application: CRB Act, ss. 10(1)(d)-(e.1). Once again, CPP-D was not a specified income source. Claimants were eligible if they were unable to work for at least 50% of the time each week because they were sick, had an underlying condition that made them more susceptible to COVID-19, or were required to isolate for reasons related to COVID-19: CRB Act, s. 10(1)(f).
[34] The application judge noted that, with the introduction of the CRB, Canada relaxed the eligibility criteria for EI. This was done by granting a one-time credit of 300 hours, which reduced the number of insurable hours required to be eligible to 120.
DECISION BELOW
[35] Canada did not dispute that Ms. Jacob satisfied the test for public interest standing to challenge the $5,000 threshold and exclusion of the CPP-D from the eligible sources of income. Given that, the application judge’s analysis focused on the application of s. 15(1).
[36] The application judge applied the s. 15(1) analysis as applied in R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398. As explained in his reasons, this required the applicant to demonstrate that: (1) the impugned eligibility requirements created a distinction based on enumerated or analogous grounds, on their face or in their impact; and (2) the impugned eligibility requirements imposed a burden or denied a benefit in a manner that had the effect of reinforcing, perpetuating or exacerbating a disadvantage: Sharma, at para. 28.
[37] With respect to the first step, determining whether the eligibility requirements created a distinction based on an enumerated or analogous ground, the application judge recognized that Ms. Jacob had been treated differently given her inability to qualify for CERB or the CRB.
[38] He found, however, that the $5,000 income threshold did not differentiate her from non-disabled workers who are also unable to meet the $5,000 earnings threshold. He noted that there were many reasons a person may have failed to meet the threshold.
[39] Referring to Sharma, at para. 41, the application judge recognized that merely showing that a law impacts a protected group is insufficient under the s. 15 analysis. Rather, he noted that “[c]ausation [is] a central issue” and that the applicant must therefore present sufficient evidence that the impugned law created or contributed to a “disproportionate impact” on the claimant group.
[40] The application judge was not satisfied that Ms. Jacob had met this burden because her entitlement to CPP-D remained intact.
[41] Further, while the application judge recognized that Ms. Jacob did not have to prove the $5,000 earnings threshold was discriminatory because she had a disability, he found that disabled workers who met the $5,000 income threshold were eligible for CERB, and that the income threshold was below the “allowable earnings amount” for CPP-D recipients.
[42] Given that conclusion, the application judge found that Ms. Jacob had failed to satisfy the first step in the s. 15(1) test with respect to the $5,000 income threshold.
[43] With respect to the income threshold, the application judge also considered whether, pursuant to the second step in the analysis, Ms. Jacob had been denied a benefit in a manner that had the effect of reinforcing, perpetuating or exacerbating a disadvantage.
[44] The application judge found that the income threshold provided access based on an individual’s actual capacities, therefore it was not discriminatory. He noted that disabled workers in receipt of CPP-D could earn $5,000 and could earn up to $6,400 without any impact on their receipt of CPP-D. Furthermore, Canada equally denied the benefit to non-disabled individuals participating in the workforce who failed to meet the $5,000 income threshold.
[45] The application judge acknowledged that individuals with a physical disability faced barriers in the workforce, however he found that the $5,000 income threshold did not preclude or make it more difficult for those incapable of working at a substantially gainful occupation to qualify. He noted again that non-disabled individuals who did not meet the threshold were also denied the benefit.
[46] The application judge ultimately found that Ms. Jacob failed to satisfy the burden at the second step of the s. 15(1) test with respect to the $5,000 income threshold.
[47] Consequently, the application judge dismissed the application.
ISSUES
[48] Ms. Jacob raises two overarching errors on appeal. First, Ms. Jacob argues that the application judge failed to make essential findings of fact necessary in order to determine her s. 15 claim. She claims that the application judge:
(i) failed to find, based on Canada’s uncontradicted evidence, that the $5,000 income threshold had a disproportionate impact on disabled workers;
(ii) failed to make any findings of fact regarding the pre-existing disadvantages facing disabled workers;
(iii) failed to make findings of fact, based on Canada’s uncontradicted evidence, about the purpose of the CERB, CRB and/or the CRSB; and
(iv) failed to make findings of fact about the CPP-D’s purpose, that receipt of CPP-D is consistent with paid work and that, while publicly administered, the CPP-D is privately funded and therefore not a form of public financial support.
[49] Second, Ms. Jacob argues that the application judge erred in finding that her failure to meet the $5,000 income threshold was not caused by her disability but rather by her failure to work sufficient hours to qualify for CERB. She claims that this argument was not before the application judge and that he dismissed her s. 15 claim on this basis “on his own motion.”
[50] Ms. Jacob contends that, approaching the two-step test properly on the record before the application judge, the $5,000 income threshold and the exclusion of CPP-D from the eligible income sources violate s. 15, and that these breaches cannot be saved by s. 1 of the Charter.
[51] In light of the circumstances of the breaches, Ms. Jacob argues that the proper Charter remedy is a declaration of invalidity under s. 52(1) of the Constitution Act, 1982, and, if that declaration is suspended for a period of time, a compensatory award to Ms. Jacob pursuant to s. 24(1) of the Charter.
[52] While initially the issues of this court’s jurisdiction to hear the appeal and the standing of Ms. Jacob were raised, those issues are no longer in dispute. Canada acknowledges this court has jurisdiction and does not contest the appellant’s public interest standing to challenge the eligibility requirements.
ANALYSIS
[53] The Supreme Court recently addressed the standard of review in Charter cases: see Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, at para. 45, per Jamal J., and at paras. 94-97, per Côté J. (concurring). The standard of correctness applies to the findings of law and to findings of mixed fact and law made by the application judge in connection with a constitutional question. As for findings of pure fact that can be isolated from the constitutional analysis, the application judge’s findings are entitled to deference and appellate interference will only be warranted where the application judge has made a palpable and overriding error: see R. v. Pike, 2024 ONCA 608, O.J. No. 3530, at para. 31.
[54] At the outset, it is helpful to clarify the test and framework for an adverse effects s. 15(1) Charter claim.
[55] There does not appear to be any dispute between the parties with respect to how the application judge articulated the two-step test to determine whether there is a violation of s. 15(1) of the Charter (as affirmed most recently by the majority of the Supreme Court in Sharma): first, whether the applicant demonstrated that the impugned law created a distinction based on enumerated or analogous grounds, on its face or in its impact; and second, whether the impugned law imposed a burden or denied a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.
[56] However, the parties frame the analysis of the impugned provisions differently. Ms. Jacob alleges that the $5,000 income threshold, and the omission of CPP-D benefits from the calculation of eligible income, each violate s. 15(1). Canada submits that the $5,000 income threshold and the omission of CPP-D from the eligible sources of income together did not discriminate on the basis of disability, treating the two as a single impugned measure. The application judge appears to have considered these claims together.
[57] In my view, it is appropriate to consider the $5,000 income threshold, together with the legislated framework for calculating eligible income. That framework omitted the inclusion of income from CPP-D benefits for recipients of CPP-D. Analyzing the two measures together is necessary in order to understand the impact of the measures on the claimant group of workers with a disability who were active in the labour market. While all recipients of CPP-D are persons with a disability, not all CPP-D recipients were working during the period of time relevant for calculating income for the purposes of the CERB and CRB. Similarly, not all workers with a disability who applied for the CERB and CRB received CPP-D. However, the entire claimant group was affected by the $5,000 income threshold and the way in which that income could be calculated, although they may have been affected in different ways. This holistic approach to the impugned measure also is consistent with the framework of substantive equality undergirding the test for s. 15(1).
[58] Substantive equality is a central concern of s. 15(1), although the focus of the analysis should remain on the test: Sharma, at para. 38; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113, at para. 40; Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 2. The Supreme Court in Withler, at para. 39, summarized the meaning of substantive equality and its effect on the s. 15 analysis:
Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. [Emphasis added.]
[59] Therefore, the s. 15(1) inquiry “must consider all context relevant to the claim at hand”: Withler, at para. 43. Similarly, in Fraser, at para. 42, the Supreme Court described substantive equality as requiring “attention to the ‘full context of the claimant group’s situation’, to the ‘actual impact of the law on that situation’, and to the ‘persistent systemic disadvantages [that] have operated to limit opportunities available’ to that group’s members”. See also: Sharma, at para. 187, per Karakatsanis J. (dissenting, but not on this point); R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 153, per Wagner C.J. (concurring).
[60] In light of this emphasis on attention to the full context of the claimant group’s situation and the actual impact of the law on that situation, I will treat the income threshold and the omission of CPP-D benefits in the calculation of eligible income together as I assess the errors alleged by Ms. Jacob within this two-step s. 15(1) framework.
(1) Step One: Whether the impugned law created a distinction based on an enumerated or analogous ground, on its face or in its impact
(a) The application judge erred by failing to consider the full context of the claimant group’s situation
[61] Ms. Jacob argues that the application judge failed to find that the $5,000 income threshold had a disproportionate impact on disabled workers, despite uncontradicted evidence from Canada of disproportionate impact. She also argues that the application judge erred in failing to make findings of fact about the pre-existing disadvantages facing disabled workers generally and in the context of the pandemic.
[62] Ms. Jacob frames these errors as failures to make necessary findings of fact. In my view, they demonstrate a failure to approach the s. 15(1) analysis from the perspective of substantive equality.
[63] The application judge examined Ms. Jacob’s personal circumstances in detail, however, aside from a comment recognizing disabled workers faced barriers in the workplace, he did not engage with the evidence about the claimant group to which Ms. Jacob belonged – i.e., workers with disabilities who were participating in the labour market.
[64] Before delving more deeply into this error and its impact on the analysis at this stage, I will review the principles underlying substantive equality and the guidance in the s. 15(1) jurisprudence relating to the first step of the test.
[65] As a starting point, s. 15 is intended to “promote equality and prevent discrimination against disadvantaged groups”: Fraser, at para. 27 (emphasis added). While discrimination can be experienced at either the individual or group level, the discrimination that s. 15 protects against is based on the individual’s membership in a group, whose parameters are defined by the enumerated or analogous ground alleged by the claimant.
[66] The circumstances of the individual claimant are still important, however ultimately their s. 15(1) claim is based on their membership in a protected group.
[67] This relationship between the individual’s circumstances and the claimant group’s circumstances was addressed in Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, [2019] 2 F.C.R. 488, leave to appeal refused, [2018] S.C.C.A. No. 506, which dealt with a s. 15(1) challenge to a minimum income requirement for sponsorship to Canada. The claim was dismissed because Ms. Begum had failed to provide evidence of her own membership in a protected group which could have been impacted by the impugned provision “even if she herself was not”: Begum, at para. 59. In other words, individual evidence is important to establish the individual claimant’s membership in a protected group, however the impact of the impugned law does not necessarily need to be experienced by the individual.
[68] This is because, as recent s. 15 jurisprudence from the Supreme Court has made clear, evidence about the full context of the claimant group’s situation, including historical or sociological evidence of disadvantage and evidence about physical, social, cultural or other barriers, is relevant in determining the impact of the impugned law: Fraser, at para. 56; Withler, at para. 64.
[69] Returning to the application judge’s analysis, the application judge briefly summarized the evidence tendered on the broader question of the discrimination of workers with disabilities in the design and operation of the CERB and CRB. This record included evidence from three federal public servants provided by Canada:
- Joel Reimer, employed with the Employment Income Policy Directorate since 2004 and a Senior Policy Strategist who was directly involved in the design and development of the CERB and CRB;
- Philip Martens, a Senior Project Advisor within the CPP-D Directorate who was directly involved in overarching and case specific support to the CPP-D program; and
- Eppo Maertens, a Director of Program Policy, Labour Market Inclusion and Accessibility in the Skills and Employment Branch at Employment and Social Development Canada who was directly involved in developing employment strategies with persons with disabilities.
[70] Additionally, Ms. Jacob relied on expert evidence from Dr. Sally Lindsay, a Senior Scientist at Holland Bloorview Kids Rehabilitation Hospital, with regard to social inclusion for people with disabilities, and from John Stapleton, a Social Policy Consultant with years of experience from employment with the Province of Ontario in the field of social benefit design and policy.
[71] The application judge, however, addressed Ms. Jacob’s evidentiary burden largely without reference to these perspectives. This led him to address the question as to whether the $5,000 income threshold expressly discriminated against workers with disabilities:
I appreciate the court in R. v. Sharma, supra stated that the applicant’s evidentiary burden “cannot be unduly [difficult] to meet” (at paragraph 49). Further, the applicant did not have to prove the $5,000.00 earnings threshold was discriminatory because she had a disability. However, while evidence was tendered about disadvantages which exist in the labour market for disabled workers, the fact remained that those disabled workers who did earn $5,000.00 of income in the year before the shutdown were eligible for one or more of the CERB, CRB and CRSB. Further, I note the $5,000.00 earnings threshold was below the CPP-D threshold of $6,400.00 of earnings for which no deduction from CPP-D benefits is made. [Emphasis added.]
[72] Clearly, it did not. The threshold, on its face, was neutral, and derived from a benchmark of minimum wage calculations. As set out above, this threshold was created by combining the lowest minimum wage in Canada with the lowest hours requirement for EI. The eligible income sources were then restricted because the aim of the CERB was to provide assistance for individuals with a minimum recent attachment to the workforce who lost employment because of the pandemic.
[73] The application judge, seeing no express discrimination in the $5,000 income threshold, which both workers with disabilities and without disabilities were able to access, concluded his analysis there. As a result, his analysis failed to consider what lies at the heart of an adverse effects s. 15(1) Charter claim: that the impact of a facially neutral provision could be felt disproportionately by an enumerated or analogous group, in this case, workers with disabilities who were active in the labour market. The application judge did not make a finding that such impact was absent in the context of CERB and the CRB; he appears simply not to have addressed this possibility at all.
(b) The proper application at step one
[74] Ms. Jacob argues that a proper s. 15(1) analysis, considering all of the evidence, demonstrates that the $5,000 income threshold in the CERB and CRB discriminated against workers with disabilities. Although the threshold is neutral on its face, Ms. Jacob submits that it has a disproportionate impact on workers with disabilities, because they are less likely to meet the $5,000 income threshold than workers without disabilities. She relies on the evidence of Dr. Lindsay about the disadvantages faced by disabled workers and on the evidence of Mr. Reimer on the impact of the $5,000 income threshold on disabled workers compared to non-disabled workers.
[75] Canada emphasizes that the question at this stage is whether the $5,000 income threshold created a disproportionate impact on workers with disabilities. It argues that merely showing that disabled workers are more likely than non-disabled workers to earn less than $5,000 is insufficient, as this would render any minimum income threshold discriminatory. Canada argued that disabled workers on CPP-D did not lose their CPP-D benefits during the pandemic and therefore would not have received the CERB or CRB even if they were eligible.
[76] In addition to the principles of substantive equality discussed above, the intervener, ISAC, provided helpful submissions on two further principles of substantive equality that should be considered at this stage: (i) the government’s design of an income security scheme need not be the sole cause of a disproportionate impact; and (ii) the court need not be satisfied that the scheme impacts all persons with an enumerated/analogous characteristic in the same way.
[77] On the first principle, the first step of the s. 15(1) analysis does not require the claimant show that the impugned law or state action was the only or dominant cause of the disproportionate impact. Rather, a claimant must show a sufficient link or nexus. An improper focus on the “sole” or “predominant” cause disregards the intersectional disadvantages that permeate those with disabilities already living in poverty.
[78] The concept of disproportionate impact in the context of substantive equality was examined in Fraser. In that case, Abella J., at paras. 53-54, described two different ways that a disproportionate impact may satisfy the first step of the s. 15(1) test, either where the impugned law gives rise to “built-in headwinds” for members of protected groups, or where the law fails to accommodate members of protected groups:
How does this work in practice? Instead of asking whether a law explicitly targets a protected group for differential treatment, a court must explore whether it does so indirectly through its impact on members of that group. A law, for example, may include seemingly neutral rules, restrictions or criteria that operate in practice as “built-in headwinds” for members of protected groups. The testing requirement in Griggs is the paradigmatic example; other examples include the aerobic fitness requirement in Meiorin, and the policy requiring employees to work on Saturdays in Simpsons-Sears. To assess the adverse impact of these policies, courts looked beyond the facially neutral criteria on which they were based, and examined whether they had the effect of placing members of protected groups at a disadvantage.
In other cases, the problem is not “headwinds” built into a law, but the absence of accommodation for members of protected groups. Eldridge is a good example. Under the health care scheme in that case, all patients lacked access to sign language interpreters — but this lack of access had a disproportionate impact on those who had hearing loss and required interpreters to meaningfully communicate with health care providers. [Citations omitted.]
[79] While the claimant’s burden need not be onerous, a disproportionate impact must be established through sufficient evidence rather than a “web of instincts”: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at para. 34. General statistical evidence that does not relate to the specific context of the claim will not suffice on its own. See Begum, at paras. 60–61. To the extent a claimant relies on statistical evidence, the figures must demonstrate “clear and consistent disparities”: Ontario Teacher Candidates’ Council v. Ontario (Education), 2023 ONCA 788, 168 O.R. (3d) 721, at paras. 88–89, citing Fraser, at para. 63.
[80] How do these principles apply in light of the record before the application judge? According to a Statistics Canada report attached to Mr. Reimer’s affidavit, similar proportions of workers with and without disabilities received CERB payments in 2020. Of the workers with disabilities who met the $5,000 income threshold, 34.9% received CERB payments in 2020. This was compared with 33.3% of workers without disabilities who met the $5,000 threshold who received CERB payments in 2020.
[81] Canada relied on this evidence and the evidence prepared by Statistics Canada from the data in the CSD to show that 16% of workers represented in the CSD had a disability at the time the CERB was initiated, and, in respect of workers who participated in the CSD, 15% of CERB recipients had a disability. When looked at from the perspective of CERB recipients, the program appears not to have made any distinction on the basis of disability.
[82] However, this Charter challenge does not relate solely to CERB recipients; it requires an evaluation of the program’s impact on the entire claimant group, including those who were denied CERB based on their inability to meet the $5,000 income threshold. When one turns to the group of workers who were determined to be not eligible for CERB because they did not meet the income threshold, the evidence prepared using the CSD reveals that 29.8% of this group were workers with disabilities – a significant over-representation as compared with the 16% of workers with a disability generally.
[83] This distinction tracks the fact that workers with disabilities are much more likely to earn less than $5,000 than workers without disabilities. According to Canada’s expert, Mr. Reimer, in 2020, 19.5% of disabled workers earned employment income below $5,000, compared with 12.2% of non-disabled workers. Therefore, disabled workers are 1.6 times (i.e., 60%) more likely than non-disabled Canadian workers to have employment income below $5,000.
[84] These figures, in my view, demonstrate the disproportionate impact of the CERB income threshold in denying workers with a disability the accommodations required by Ms. Jacob and other similarly situated workers with a disability. The statistical evidence both relates to the specific design of the CERB program and is cogent enough to establish a clear disparity. See Begum, at para. 61; Ontario Teacher Candidates’ Council, at paras. 88-89.
[85] The application judge does not engage with this evidence relating to the claimant group. Rather, he focused on the evidence of Ms. Jacob’s illness and the specific reasons she was not able to work the necessary hours to meet the $5,000 income threshold.
[86] Ms. Jacob argues that this finding amounted to the application judge, on his own motion, concluding that Ms. Jacob’s failure to meet the income threshold of $5,000 was not tied to her disability. Ms. Jacob underscores that Canada had never taken the position that Ms. Jacob’s reasons for failing to meet the income threshold were unrelated to her disability.
[87] The application judge reached this conclusion by finding that Ms. Jacob failed to meet the $5,000 threshold because she did not work enough hours, in part due to illness. Ms. Jacob submits that this finding was inconsistent with the uncontradicted evidence that much of her absence from the market between 2016 and 2019 was due to receiving treatment for her disability in hospital.
[88] While the application judge refers to Ms. Jacob’s illness rather than her disability in his conclusion on causation, it is not clear whether, or on what basis, the application judge viewed Ms. Jacob’s illness as unrelated to her disability. He refers to no evidence that would suggest these illnesses were unrelated to her disability. The record clearly supports the conclusion that Ms. Jacob’s illnesses were related to her disability. To the extent the application judge suggested the deterioration of Ms. Jacob’s health, unrelated to her disability, was the reason she was unable to work sufficient hours to meet the income threshold for CERB, this constituted a palpable and overriding error.
[89] The application judge made no clear finding on the role played by Ms. Jacob’s disability in her inability to meet the $5,000 income threshold. Nonetheless, he concluded that Ms. Jacob had not “demonstrated the $5,000.00 earning threshold disproportionately impacted her as a disabled person on CPP-D and with earnings less than that put in place to be eligible for government support while it mandated a general labour shutdown to reduce the spread of COVID as of March, 2020.”
[90] Leaving aside valid concerns raised by Ms. Jacob about the application judge’s findings on the reason why Ms. Jacob was unable to meet the $5,000 income threshold, the application judge was obliged to put her evidence in the context of the broader claimant group of which she was a member, for purposes of the Charter analysis. His failure to do so, with respect, constituted an error of law.
[91] Ms. Jacob was ineligible for the CERB benefits, and part of a broader group of workers with disabilities found to be ineligible for this program. In my view, the disproportionate impact of this income threshold on workers with disabilities such as Ms. Jacob satisfies the first step in the s. 15(1) analysis.
[92] Because the application judge failed to examine the evidence beyond Ms. Jacob’s own individual experience, he erred in his conclusion that the first step in the s. 15(1) test was not met.
(2) Step Two: Whether the impugned law imposed a burden or denied a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage
[93] The second step in the s. 15(1) test asks whether the impugned law imposed a burden or denied a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.
[94] While the application judge’s conclusion on the first step in the s. 15(1) analysis made the further application of the second step unnecessary, the application judge proceeded to offer his analysis and conclusion on the second step as well, noting, at para. 37 of his reasons, that “the two steps to be analyzed are not ‘watertight compartments’” and that “[t]he second step asks a ‘fundamentally different question’…focused on what it means to reinforce, perpetuate or exacerbate disadvantages.”
[95] The application judge underscored that the $5,000 income threshold was not arbitrary and was based on the “actual capacities” of applicants as opposed to any stereotypical or discriminatory standard. He concluded:
Regarding stereotyping and prejudice, it is clear that individuals such as the applicant, with a physical disability [face] barriers when attempting to participate in the workforce. However, the benefit plan implemented by the government did not preclude or make it more difficult for those incapable of regularly working at a substantially gainful occupation to qualify. The government provided how the $5,000.00 eligibility requirement was formulated. It also denied the benefit to able bodied individuals participating in the workforce who failed to meet the income level required.
As stated by the Court, Section 15(1) “does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation” (at paragraph 63).
I find the applicant has not [met] the burden of the second step. I find that she has not demonstrated the $5,000.00 earning threshold denied her the benefits sought in a manner that reinforced, perpetuated or exacerbated her disability while the government mandated a general labour shutdown to reduce the spread of COVID as of March, 2020.
[96] Ms. Jacob argues that the application judge failed to make any findings of fact on the purpose of the CERB and the CRB, which she claims was essential to determining whether the $5,000 income threshold was arbitrary and discriminatory. Her argument that the application judge failed to make findings of fact about the pre-existing disadvantages faced by disabled workers is also relevant at this stage.
[97] Ms. Jacob argues that the $5,000 income threshold was arbitrary because it failed to respond to the actual capacities and needs of disabled workers. She submits that the purposes of the CERB and the CRB were to provide income support to workers who were affected by COVID-19. In particular, these programs sought to provide replacement income to address the job losses and reduced employment income of those who had to stop working because of COVID-19, or were sick, quarantined or taking care of someone who was sick with COVID-19, or otherwise facing financial pressures to work and not stay at home to support “lock downs.”
[98] Canada does not appear to take issue with this characterization of the purposes of the CERB and CRB. According to Canada, however, the $5,000 income threshold was not arbitrary, and was selected as a proxy for a minimum level of recent labour market attachment to warrant temporary, emergency income replacement. Canada argues that this eligibility threshold was intended to capture as many people as possible and allow benefits to be delivered quickly and effectively during an unprecedented pandemic.
[99] In the context of the s. 15(1) analysis, and on the evidence before the application judge, I would characterize the purposes of the CERB and CRB as the provision of temporary, emergency replacement income for those with a minimum attachment to the labour market who had lost their expected employment related income due to the COVID-19 pandemic, including COVID-19 related illness, quarantines, lockdowns and related restrictions. The emergency nature of the programs also meant that they had to be simple enough to initiate and administer as to be put into operation almost immediately after the enactment of the legislation creating them.
[100] The question remains as to whether, by imposing the $5,000 income threshold, together with omitting CPP-D from eligibility in the calculation of income for purposes of the CERB and the CRB, the scheme arbitrarily excluded many in the claimant group, thereby reinforcing their existing disadvantage.
[101] Canada argues the application judge correctly noted that arbitrariness, prejudice, and stereotyping are the correct factors consider at the second stage. According to Canada, none of these factors were sufficiently satisfied on the record before the application judge: (1) the $5,000 eligibility requirement was formulated based on factors which allowed the programs to capture the vast majority of workers and was therefore not arbitrary; and (2) the program neither furthered nor reinforced the stereotyping or any prejudice workers with disabilities because it did not preclude or make it more difficult for those incapable of working at a substantially gainful occupation to qualify.
[102] Canada lastly suggested the impugned programs were part of a larger response to the pandemic, and this broader legislative context should be considered in deciding whether a distinction is discriminatory. As the majority in Sharma reiterated, this court should also consider the object of the scheme, whether a policy is designed to benefit a number of different groups, and the allocation of resources, amongst other factors: Sharma, at paras. 57, 59.
[103] In this case, as Canada points out, the data set out above confirms that many workers with a disability benefitted from the CERB and CRB. For Ms. Jacob, and others in the claimant group, however, the income threshold, together with the manner of calculating that income threshold, exacerbated the disadvantage she already was experiencing as a worker with a disability.
[104] As confirmed in Fraser, at paras. 72-75, and as discussed in relation to the first step of the s. 15(1) test above, this court need not be satisfied that all members of a protected group will be impacted in the same way. As the Supreme Court wrote in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 76, “differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are equally mistreated.” In other words, the fact that some workers with a disability benefitted from the CERB and CRB does not detract from the argument that the income threshold for those programs had a disproportionate impact on workers with a disability. The overrepresentation of workers with a disability in the group of those found ineligible for the CERB and CRB based on the income threshold reflects this disproportionate impact.
[105] Requiring proof that all members of the group are impacted identically can perpetuate the stereotypes s. 15(1) was designed to protect against. This includes the stereotype that because some people with disabilities are able to work, that other persons with disabilities who are unable to do so are exaggerating (and actually able to maintain employment) or are unwilling to work.
[106] In Fraser, Abella J. confirmed, at para. 76, that the focus of the second stage of the s. 15(1) analysis is whether the distinction perpetuates the disadvantage experienced by a protected group:
This brings us to the second step of the s. 15 test: whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage. This inquiry will usually proceed similarly in cases of disparate impact and explicit discrimination. There is no “rigid template” of factors relevant to this inquiry. The goal is to examine the impact of the harm caused to the affected group. The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion … [p]sychological harms … [p]hysical harms … [or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group.
[107] The Supreme Court also has highlighted the link between perpetuating disadvantage and a failure to put in place accommodations in the context of people with disabilities. As Sopinka J. stated in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, at para. 66:
The principles that not every distinction on a prohibited ground will constitute discrimination and that, in general, distinctions based on presumed rather than actual characteristics are the hallmarks of discrimination have particular significance when applied to physical and mental disability. Avoidance of discrimination on this ground will frequently require distinctions to be made taking into account the actual personal characteristics of disabled persons. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 169, McIntyre J. stated that the “accommodation of differences . . . is the essence of true equality”. This emphasizes that the purpose of s. 15(1) of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons. [Emphasis added.]
[108] In other words, where legislation or government action perpetuates the existing disadvantage of a claimant group by failing to accommodate the different experiences of people with disabilities, even where not based on stereotypical or discriminatory grounds, the second step of s. 15(1) may be met. See also Simpson v. Canada (A.G.) et al., 2020 ONSC 6465, at para. 291.
[109] The fact of the existing disadvantages faced by workers with disabilities was amply supported by the record before the application judge, and did not appear to be contested by Canada. This fact has been recognized in several other Supreme Court decisions. For example, in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, La Forest J. stated, at para. 56:
It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions […] This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the “equal concern, respect and consideration” that s. 15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms […] One consequence of these attitudes is the persistent social and economic disadvantage faced by the disabled. Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed. [Citations omitted.]
[110] In the context of this case, Dr. Lindsay provided ample evidence that disabled workers face significant barriers in the workforce, that there are widespread misconceptions about the ability and willingness of disabled persons to work, that disabled persons face significant financial concerns and that economic crises like the pandemic have a disproportionate effect on disabled persons.
[111] Viewed in this context, the question is whether Canada’s design of the CERB and the CRB was undertaken with regard to, or accommodations for, workers with a disability who were active in the labour market, a group with a well-established, existing disadvantage in the labour market.
[112] In oral argument, counsel for Ms. Jacob asserted that, from Canada’s perspective in designing the CERB and CRB, workers with a disability simply did not “count.”
[113] Canada rejected this characterization, arguing that both the income threshold and the manner of calculating eligible income accorded with the purposes of the CERB and CRB. With respect to the omission of CPP-D from eligible income sources, Canada described the CPP-D as a program of benefits for those with a past attachment to the labour market, as opposed to people receiving maternity or parental benefits, who were eligible to count those benefits toward the income threshold of the CERB and CRB because those benefits reflected a current attachment to the labour market.
[114] In support of this position, Canada’s expert, Mr. Reimer, explained in his affidavit why maternity and parental benefits were eligible to be counted for purposes of the $5,000 income threshold under the CERB and CRB:
Maternity and parental benefits…were counted as income for the purpose of meeting the income requirement because individuals receiving those benefits would normally have been working, had they not been on temporary leave from their employment (to which they were expected to return) to care for a new born or newly adopted child. Additionally, maternity and parental leave is typically for extended periods up to a full year, which would mean that many workers on such leave may not have had any other income during the year prior to the pandemic, and then could not return to their employment due to COVID-19, following their leave. However, to receive maternity and parental benefits, an applicant had to meet certain criteria, such as having the requisite amount of insurable work hours or meet specific requirements if they were self-employed. These criteria reflected the fact that those on maternity and parental benefits had recent labour force attachment and were on temporary, extended leave. These individuals could suddenly find themselves without a job to return to at the end of their leave and without income if their workplace was closed or their work ceased due to COVID-19. [Emphasis added.]
[115] Mr. Reimer also explained why no long-term income replacement benefits, like CPP-D, were counted toward the $5,000 income threshold:
No long term income replacement benefits were counted toward the $5,000 because generally those benefits were stable sources of income, unchanged by the pandemic, and were not specifically arising from or connected to existing employment. Typically, the recipients of these long term benefits did not depend solely on employment or self-employment for their income and did not have even a minimum recent attachment to the workforce. Further, if recipients of these benefits earned $5,000 or more income from employment or self-employment they could still qualify for CERB in addition to continuing to receive other benefits. [Emphasis added.]
[116] Certainly, the CPP-D reflected benefits for those with a permanent impediment to the labour force, as opposed to maternity or parental benefits, which reflect a temporary impediment. It is also clear that the CERB and the CRB were designed as temporary as opposed to permanent income replacement programs.
[117] However, as the passages above illustrate, for the designers of the CERB and CRB, recipients of CPP-D simply were not viewed as attached to the labour market. This ignored the fact that approximately 13-14% of CPP-D recipients supplemented their CPP-D benefits with employment income, in 2019 and 2020, demonstrating a recent attachment to the workforce. So, for the group of workers with a disability receiving CPP-D, who were in the labour market, like Ms. Jacob, Canada saw no need to respond to the lost or impaired income brought about by the pandemic.
[118] It is important to acknowledge that while the pandemic did not threaten CPP-D income in the way it did income earned from employment, for those like Ms. Jacob, there was a clear link between their disability, the limits on the hours they could work, the $5,000 income threshold to the CERB and CRB, the omission of CPP-D benefits from the calculation of eligible income, and their resulting ineligibility for CERB and CRB benefits.
[119] It is in this sense that the existing disadvantage of workers with disabilities such as Ms. Jacob was exacerbated by the income threshold – and manner of calculating that income – in the CERB and CRB. As discussed above, disabled workers face a disadvantage, earning less income than non-disabled workers, both as a direct result of their disability and indirectly through the significant barriers they face in the workforce. Dr. Lindsay’s evidence established that these barriers are even more significant for individuals with a more severe disability. Those workers with a disability who supplemented their benefits with work, and lost employment opportunities due to the pandemic, already faced significant hardship in obtaining and/or maintaining employment because of their disability. Further, workers with a disability not receiving CPP-D benefits and relying solely on employment income faced even more significant economic consequences if found not to quality for the CERB and CRB.
[120] In summary, I conclude that the $5,000 income threshold, and the exclusion of CPP-D from the calculation of that threshold, made it substantially more difficult for workers with a disability, who were active in the labour market, to replace lost employment income during the pandemic through the CERB and CRB programs, thereby exacerbating their disadvantage.
[121] For these reasons, Ms. Jacob has met the second step of the s. 15(1) test. Consequently, she has established that her s. 15(1) rights were violated by the CERB and CRB.
[122] I now turn to the s. 1 analysis.
(3) Section 1
[123] Under the Oakes framework, in order to satisfy the s. 1 test, the infringing measure must have a pressing and substantial objective. The infringement must also be proportional: first, it must be rationally connected to the objective; second, the means chosen must impair the infringed right as minimally as possible; and third, the benefits of the infringing measure must outweigh its negative effects.
[124] I do not have the benefit of the application judge’s s. 1 analysis as he never reached the issue, given his finding that s. 15(1) had not been violated. That said, the issue was fully argued before this court, and there was no suggestion that the record was insufficient for the purposes of determining the s. 1 issue.
[125] Though Ms. Jacob took issue with Canada’s framing of the pressing and substantial objectives of the impugned provisions, there was no suggestion that no pressing and substantial objective existed. Ms. Jacob argues that there is no rational connection between the programs’ purpose and the impugned threshold and CPP-D exemption. She challenges the use of minimum EI eligibility to determine a recent attachment to the workforce because EI is a social insurance program reliant on contributions, whereas the CERB and CRB are social benefit programs meant to provide emergency funds to workers who suffered financial harm because of COVID-19. Moreover, she argues that the logic in exempting CPP-D benefits from the income calculation, while accommodating other benefits like maternity and parental leave, is inconsistent.
[126] On minimal impairment, Ms. Jacob emphasized that if the CERB and CRB had a lower income threshold for workers with a disability such as Ms. Jacob, or if workers with a disability who received CPP-D benefits were able to include them in the calculation of their income, Ms. Jacob and others in her position would have been eligible for CERB and CRB benefits.
[127] Ms. Jacob argued that a minimally impairing alternative to the income threshold could include a system of “ramps”, whereby increasing amounts of eligible income entitle a recipient to increasing benefits up to a maximum amount. She also argued that another minimally impairing alternative might include “steps”, which are thresholds below the current income threshold. If a claimant met one of these “steps”, then they would still receive targeted benefits.
[128] Ms. Jacob offers three arguments in support of these programs as minimally impairing alternatives: (1) Canada already was aware of programs which made use of ramps and steps, such as the Canada Child Benefit and the Canada Worker’s Benefit; (2) the CRA had the capacity to administer ramps or steps for those benefits, as seen with the programs referenced in the first point; and (3) the legislative history shows that Parliament should have adjusted the $5,000 income threshold for the impugned programs.
[129] Ms. Jacob argues that Parliament chose the $5,000 income threshold as a proxy for the minimum level of recent labour market attachment that warranted income replacement, but the basis for this proxy, Saskatchewan, lowered its threshold in August 2020. Parliament should have lowered the threshold to stay in lockstep with the Saskatchewan benchmark.
[130] Further, Ms. Jacob argues that a minimally impairing alternative to the omission of CPP-D benefits from eligible income sources would be to allow CPP-D recipients who ceased work because of COVID-19 to count their CPP-D benefits towards the income threshold. This is a narrowly tailored alternative, given it is: (a) limited to those CPP-D recipients active in the labour force; and (b) only counts their CPP-D benefits for the months they worked.
[131] Canada argues that if Ms. Jacob’s s. 15 rights were infringed, those infringements are demonstrably justified pursuant to s. 1 of the Charter. Both of the impugned aspects of the programs, the minimum income threshold and the omission of CPP-D benefits as an eligible source of income to meet the requirement, had pressing and substantial objectives.
[132] With respect to the minimum income requirement, Canada argues that the $5,000 income threshold was a deliberate choice to capture all workers with a minimum labour force attachment through a fast and simple mechanism. Similarly, the eligible income sources were restricted to ensure that the emergency benefits were provided to workers who had at least a minimum level of recent attachment to the labour force.
[133] Canada submits that these limits to the impugned programs were proportional and rationally connected to the objective of the programs. Canada argues that the CERB benefits processed a vast number of applications within an incredibly short amount of time and that this would not have been possible with a more complicated design, such as those proposed by Ms. Jacob.
[134] Similarly, according to Canada, the omission of CPP-D was rationally connected, given that the objective of the program was to provide emergency income replacement to workers who suddenly lost all, or a substantial amount, of their income from employment due to the pandemic.
[135] Canada also contends that the programs’ limits were minimally impairing. First, Canada submits that, as a complex policy decision, deference is owed at this stage. Second, Canada argues that using a lower threshold would have allowed those with a lesser connection than the most minimal EI requirement to be eligible, despite the fact that the benefits were not intended to provide a basic minimum income to everyone.
[136] Canada argues that a flat rate benefit was simple to administer and was a reasonably designed whereas a ramp or step design would have significantly undermined the objective of administering the benefits as quickly and efficiently as possible.
[137] Lastly, Canada argues that the benefits outweigh the deleterious effects. The simple design allowed Canada to process 27.57 million applications for CERB and EI ERB, which would not have been possible without the simple design. While individuals who were unable to meet the income eligibility requirement experienced a financial impact, this was mitigated given they had access to corresponding EI benefits in September 2020.
[138] With respect to the first two elements of the Oakes analysis, I would accept that the purpose of the emergency legislation responding to the COVID-19 pandemic, designed to be easy to roll out and administer, meets the threshold of a "pressing and substantial" objective. I would also accept that the $5,000 income threshold and its method of calculation, which was selected as a proxy for a minimum level of recent labour market attachment to justify the temporary, emergency income replacement, are rationally connected to that objective. The question remains, however, whether that threshold was minimally impairing of the rights of workers with disabilities.
[139] At the minimal impairment stage, the court is required to afford the legislature a margin of appreciation: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 999. Canada must establish that the limits chosen fell “within a range of reasonable alternatives” to achieve the legislative objectives, however “courts will not find [the limits] overbroad merely because they can conceive of an alternative which might better tailor objective to infringement”: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 160.
[140] Further, at this stage, a measure of deference should be accorded to the legislature when complex social issues are involved such as, in this case, the emergency public health, social and economic responses to the COVID-19 pandemic: Canada (Attorney General) v. JTI-MacDonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 43; and Ontario v. Trinity Bible Chapel et al., 2023 ONCA 134, 478 D.L.R. (4th) 535, at paras. 97-102, leave to appeal refused, [2023] S.C.C.A. No. 168.
[141] It is important in considering minimal impairment to emphasize the span of time at issue in Ms. Jacob’s Charter application. She challenges not only the initial design of the CERB program, and the legislation enacting it, but also the modifications to that scheme through the CRB and related legislative amendments. These modifications and amendments were, out of necessity, developed and implemented over a matter of months. The evolution of the CERB to the CRB and consequent changes to EI should therefore be seen as an integrated policy response to the evolving course of the pandemic. As set out above, the purpose of these policies was the provision of temporary, emergency replacement income for those who had lost their expected employment related income due to the COVID-19 pandemic, including COVID-19 related illness, quarantines, lockdowns and related restrictions.
[142] Following the expiration of the CERB, Canada introduced the CRB, CRSB, and temporary measures to the EI program, to ensure Canadian workers still had access to necessary income support. These measures included a one-time hours credit to allow workers to qualify for EI benefits with only 120 hours of work within their qualifying period (which otherwise would have ranged from 420 to 700 hours). Ms. Jacob took advantage of this modification. Using the hours she worked at Winners and as a crossing guard, as well as the EI one-time insurable hours credit, she applied for, was found eligible and received EI regular benefits at that time. As Canada underscores, because of her EI eligibility, Ms. Jacob was not eligible for the CRB when it came into operation.
[143] Ms. Jacob argued that the changes to EI eligibility fall outside the scope of this Charter application, as the Notices of Application focused squarely on the CERB and CRB. In my view, however, the contextual analysis required in the s. 1 analysis must include the suite of government responses to the expiry of the CERB, and not just the CRB in isolation: Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at paras. 87-88; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at paras. 26 and 35.
[144] The legislative changes reflected in the evolution from the CERB to the CRB, CSRB and enhanced EI represent mid-course corrections on the part of Canada, which responded, in part, to the concerns and challenges arising from the initial CERB program.
[145] Legislative amendments which mitigate or ameliorate the infringement of a person’s rights may be an indication that the original infringement was not minimally impairing.
[146] For example, in Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835, the British Columbia Vital Statistics Act, R.S.B.C. 1996, c. 479, which allowed a mother to “unacknowledge” the father of a child on a birth registration and precluded the father from thereafter amending the birth registration to include his information, was found to violate s. 15 and was not upheld under s. 1. Prior to the court’s decision, British Columbia amended the legislation so that the father could apply to court to have the birth registration amended. These amendments were not in issue in the case, but in the minimal impairment analysis, the court pointed out that “the legislature itself has chosen means that are less impairing of the father’s rights” through amendments to the legislation: para. 40. While the court did not consider whether the amendments were an adequate remedy for the constitutional defect, it was clear that they impaired the father’s rights less than the impugned provisions: para. 41. The court stated, at para. 41: “These amendments evidence that the legislature could have chosen less drastic means than it did in the unamended legislation. Therefore, the impugned provisions were not minimally impairing as they fell short of a less impairing alternative crafted by the legislature itself.”
[147] On the other hand, where, as here, a Charter challenge covers a period of time involving successive legislative amendment, those amendments may indicate the legislature or government was alive and responsive to the rights-infringing concerns.
[148] In Ontario v. Trinity Bible Chapel et al., 2022 ONSC 1344, aff’d 2023 ONCA 134, leave to appeal dismissed, [2023] S.C.C.A. No. 168, the court dealt with a constitutional challenge to the province’s restrictions on religious gatherings. The restrictions were imposed on the public via regulations. There were different restrictions at different times, depending on the severity of COVID in the province. Not every regulation was challenged, but those challenged placed numerical caps or percentage capacity limits on attendance. The application judge had found that the regulations infringed s. 2(a) of the Charter but were justified under s. 1. In the minimal impairment analysis, she referred to the fact that the restrictions were “tailored and modified.” In other words, the various modifications to the regulations showed that, as a whole, the regulations were minimally impairing.
[149] In upholding this decision, this court noted that “Ontario ensured the restrictions were time-limited and regularly revisited”, again referring to the fact that the restrictions went through several modifications throughout the pandemic: at para. 119.
[150] The modifications in Trinity Bible Chapel were evidence of minimal impairment because they were evidence that the government was tailoring the restrictions in a dynamic and evolving factual matrix. As McLachlin C.J. and Deschamps J. explained in Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 94, “[t]he Court will not interfere simply because it can think of a better, less intrusive way to manage the problem … [w]hat is required is that the [government concerned] establish that it has tailored the limit to the exigencies of the problem in a reasonable way.”
[151] In my view, this description also captures Canada’s response to the COVID-19 emergency through the design and evolution of CERB and the CRB. These were time-limited programs, responsive to an emergency situation, which evolved over the period of time covered by the application to include additional accommodations which responded to the situation of workers with disabilities such as Ms. Jacob.
[152] Ms. Jacob argues that even accepting the all-or-nothing nature of the income threshold and other exigencies of the CERB and CRB, it would have been more minimally impairing simply to allow workers with disabilities in receipt of CPP-D benefits to include them in the calculation of the $5,000 income threshold.
[153] However, while Ms. Jacob contends this modification to the CERB and CRB would have been simple to administer, Canada argues that this question represents a new issue raised for the first time on appeal. The application judge did not address evidence on whether CPP-D pension amounts received while an individual was working could be identified and tracked and, if so, the difficulty associated with doing so. Additionally, the Notices of Application did not address this argument.
[154] It is not possible on the record before the application judge to determine how easy or difficult it would have been to make CPP-D benefits eligible to be counted as income by workers with disabilities applying for the CERB or CRB. However, while it may have been less intrusive to the rights of workers with disabilities to permit CPP-D recipients who were working to include their CPP-D benefits in the calculation of their income for purposes of the $5,000 income threshold, this was not the only reasonable way for Canada to respond to the challenges facing workers with disabilities.
[155] The suite of new and modified benefits brought in after the expiry of the CERB program also represented a reasonable and tailored response to the challenges of that time. In light of the deference to be afforded to the legislature at the minimal impairment stage of the s. 1 analysis when complex social and policy issues are at stake, I am not able to conclude that Canada’s responses to COVID-19 over the period covered by the application failed to minimally impair Ms. Jacob’s rights.
[156] Even aside from the mid-course correction by Canada highlighted above, I would conclude Canada satisfied the minimal impairment threshold in light of the extraordinary nature of the crisis facing the Government in the COVID-19 pandemic, together with the temporary and emergency nature of the CERB and CRB programs.
[157] The Supreme Court addressed the greater “margin of appreciation” for Government action in responding to emergency contexts in the s. 1 minimal impairment analysis in Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381, at para. 84. In holding that the delay of pay-equity settlement payments to claimants was justified as a response to the fiscal situation facing the province, Binnie J. emphasized in N.A.P.E. that an exceptional crisis may justify an exceptional response. A similar conclusion applies in this context.
[158] I turn now to the third stage of the Oakes analysis. Here, the question is whether the benefits of the infringing measure outweigh its negative effects. I would accept that the benefits of the impugned programs in making temporary income support available, quickly and efficiently, to the millions of workers affected by the pandemic, outweighed the negative financial impact for those unable to meet the income threshold.
[159] Therefore, I would conclude the impugned CERB and CRB legislation constituted reasonable limits on the Charter rights of Ms. Jacob and the claimant group.
DISPOSITION
[160] I conclude that the application judge erred in dismissing the application based on a finding that the $5,000 income threshold and method for calculating income in the CERB Act and CRB Act did not violate s. 15(1) of the Charter.
[161] Having concluded that s. 15(1) of the Charter was violated by the impugned legislation establishing these programs, however, I further conclude that the breach was justified as a reasonable limit under s. 1 of the Charter.
[162] For this reason, it is unnecessary to consider the various arguments from the parties and the CCLA on the proper remedy had the s. 15(1) Charter breach not been saved by s. 1.
[163] Canada does not seek costs and none will be ordered.
[164] I wish to thank counsel for the parties and interveners for their helpful submissions throughout.
Released: September 3, 2024 “L.S” “L. Sossin J.A.” “I agree. P.J. Monahan J.A.” I agree. L. Madsen J.A.”
[1] The Statistics Canada’s document setting out this data, attached as Exhibit J to Mr. Reimer's affidavit, notes that 2,678,900 people who reported income in 2019 were not captured by the CSD and therefore are not represented in the data set used to determine these figures. Furthermore, there appears to be an error in the numbers documented in Exhibit J, as they do not add up to the totals provided by approximately 10-20. It is not possible to determine the source of the inaccuracy. For the sake of clarity, it should be noted that any numbers from the Statistics Canada document itself, or based on the CSD data, may be slightly inaccurate. However, given that the inaccuracy is slight, it does not have any real impact on any analysis based on these numbers. For clarity, it does not affect the percentages calculated from the data.
