Court File and Parties

COURT FILE NO.: CV-21-00672482-0000 DATE: 20230706 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: VALERIE JACOB Applicant – and – ATTORNEY GENERAL OF CANADA Respondent

Counsel: David Baker, Sujit Choudhry and Daniel Mulroy, Lawyers for the Applicant Derek Rasmussen, Bahaa Sunallah, Jennifer Francis, Monisha Ambwani and Sarah Giles, Lawyers for the Respondent

HEARD: April 13, and 14, 2023

G. DOW, J.

Reasons for Decision

[1] The applicant challenges the $5,000.00 eligibility criteria for receipt of the Canada Emergency Response Benefit (“CERB”), the Canada Recovery Benefit (“CRB”) and the Canada Recovery Sickness Benefit (“CRSB”) implemented as a result of the global COVID pandemic. Specifically, she asserts that the $5,000.00 income threshold, limited to one’s employment and self-employment or maternity and/or parental benefits violated her section 15(1) Charter right not to be discriminated against as a result of her physical disability.

Background

[2] The parties do not dispute the applicant, born June 29, 1973, suffers from severe Crohn’s disease and is immunocompromised. This began while she was attending secondary school. It continued and was a factor in her completing a university degree in five years. Her symptoms became worse in 2007 requiring her to shut down her private practice as an art therapist as well as employment 20 to 30 hours per week in the medical records department of a local hospital. She applied for and was granted the Canada Pension Plan Disability Benefit (“CPP-D”). She also qualified for the Disability Tax Credit (“DTC”). She worked as she was able to but generally not more than 15 hours per week and at minimum wage jobs.

[3] When the applicant qualified for the CPP-D on December 1, 2007, retroactive to August 31, 2007, she was paid $592.57 per month. The applicant has continued to receive the benefit, except for March – July 2013 and, as of 2022, was being paid $777.74 per month.

[4] The CPP-D is only granted to those incapable of regularly working at a substantially gainful occupation due to a severe and prolonged disability. For the purposes of the benefit, severe means incapable of regular work resulting in annual earnings equal to or greater than the maximum CPP-D amount available. Prolonged is defined to be continuing or of an indefinite duration or likely to result in death. That is, the expectation is the recipient of the benefit will likely never be in a position to return to a substantially gainful occupation. As of 2022, individuals receiving CPP-D may earn up to $6,400.00 per year without any need to report that income or have it deducted from their benefit. Income up to $17,489.40 per year may affect entitlement and the amount of the benefit paid. Income in excess of $17,489.40 per year likely results in no longer qualifying for the benefit.

[5] Subsequent to receipt of CPP-D, the applicant continued her education and worked at various jobs as she was able. This culminated with a position at Winners commencing in September, 2019 at $14.00 per hour not exceeding 15 hours per week. She was laid off effective March 10, 2020 and she had earned $2,448.92. This data indicates that she only worked an average of less than seven hours per week in the twenty-six weeks before being laid off. Further, had she averaged 15 hours per week in the 26 weeks before being laid off, she would have achieved the $5,000.00 income level required. Alternatively, had she averaged 7 hours of work per week and returned to work one year before being laid off, she would have achieved the $5,000.00 income level required. She did not qualify for Employment Insurance (“E.I.”). When Winners reopened in the Fall of 2020, she declined a return to work because of a fear of contracting COVID and the job being too physically taxing for her.

[6] The applicant then got work with Carraway Safety (“Carraway”) as a crossing guard commencing October 25 until December 15, 2020 where she earned $1,993.55. When called back by Carraway effective February 15, 2021 she declined given her husband’s health issues and his need for care.

[7] Given a reduction in the number of hours of work required to receive Employment Insurance (as part of the end of CERB and beginning of CRB), she qualified and was paid Employment Insurance Benefits December 18, 2020 – February 15, 2021.

[8] The respondent relied on evidence tendered by three employees of the federal government:

a) Joel Reimer, employed with the Employment Income Policy Directorate since 2004 and a Senior Policy Strategist that was directly involved in the design and development of the CERB and CRB;

b) Philip Martens, a Senior Project Advisor within the CPPD Directorate and directly involved in overarching and case specific support with regard to the CPPD-D program; and

c) Eppo Maertens, a Director of Program Policy, Labour Market Inclusion and Accessibility in the Skills and Employment Branch at Employment and Social Development Canada (“ESDC”) and directly involved in developing employment strategies with persons with disabilities.

[9] In addition to that from the applicant, her evidence was supplemented by expert opinions from Dr. Sally Lindsay, a Senior Scientist at Holland Bloorview Kids Rehabilitation Hospital, with regard to social inclusion for people with disabilities and 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.

[10] The $5,000.00 income threshold to be eligible for CERB was the result of determining a minimum level of attachment to the workforce. The “Saskatchewan Benchmark” or the province having the lowest minimum wage at the time, being $11.32 per hour, when combined with the lowest number of insurable hours necessary to qualify for regular Employment Insurance Benefits totalled $4,754.00. This was rounded to the next thousand or $5,000.00. It was restricted to income from employment or self-employment as well as those in receipt of maternity or parental benefits given a decision that it reflected the group targeted for assistance during the pandemic, being workers, and those only temporarily not working due to the addition of a child to the family, and one’s ability to earn income having been affected by the stay at home direction of the government to combat to the global COVID pandemic as of March, 2020.

[11] The CERB was $500.00 per week regardless of the amount of lost earnings and available for 28 weeks. As sought by the applicant, this totals $14,000.00. The CERB was replaced by CRB effective October 2, 2020. The applicant asserts entitlement to 30 weeks of this benefit or $15,000.00.

[12] As part of the replacement of the CERB with the CRB, the eligibility criteria for Employment Insurance was relaxed by reducing the number of insurable hours to 120. This was achieved by providing a one time credit of 300 hours for the various levels set in some 62 regions in Canada which each experience various rates of unemployment. This was how the applicant became eligible and qualified for the Employment Insurance Benefits paid to her between December 18, 2022 to February 15, 2021.

[13] The evidence of Dr. Sally Lindsay, as a sociologist, opined on the circumstances that persons with disabilities:

a) generally were interested in working;

b) faced challenges and barriers in the labour market;

c) not only had reduced participation in the labour market but were more likely to earn less or work at minimum wage positions;

d) entitlement to CPP-D is based upon their prior history of participation in the labour market with Canada Pension Plan contributions used to determine the amount of CPP-D payable (between a minimum and maximum amount); and

e) were more likely to have been adversely affected in the labour market during COVID shutdowns given their greater likelihood of contracting COVID and that if they contracted COVID were more likely to have a longer and more adverse effect on their already compromised health.

[14] The evidence of John Stapleton, educated in sociology with work experience in social policy and income support programs opined on the circumstances that CPP-D provided government payments based on prior earnings with no penalty to recipient’s ability to do some gainful work until such earnings reached threshold levels equivalent to substantially gainful employment.

Analysis

[15] The parties agreed the first issue to address was whether the plaintiff had a public interest standing to challenge the $5,000.00 threshold and exclusion of the CPP-D from the eligible sources of income. The respondent did not oppose that the applicant met the requisite test having:

a) raised a serious justiciable issue;

b) a real stake or genuine interest in the issue raised; and

c) proceeded in a manner that was reasonable and in an effective way to bring the issue before the courts (see Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 - at paragraph 37).

[16] The most recent framework for analysis of whether the $5,000.00 threshold violated the Section 15(1) Charter rights of the plaintiff was set out in R. v. Sharma, 2022 SCC 39. This decision reviewed and refined earlier decisions and offered clarification. As submitted by counsel for the defendant, the conclusion of the dissenting minority stated the majority view was “not “clarification”; it is wholesale revision” (at paragraph 206).

[17] The analysis begins with a two-step test for assessing a Section 15(1) claim. First, has the applicant demonstrated that the impugned law or state conduct created “a distinction based on a enumerated or analogous grounds, on its face or in its impact” (at paragraph 28). Second, has it imposed a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage”.

[18] As part of addressing the first step, the court indicated a preliminary point about the relationship between substantive quality and the two step test. Substantive equality is evaluated by application of the two step test and where the applicant fails to meet either step, there is no infringement of Section 15(1).

[19] Regarding the first step, it is necessary to address the standard by which the impact should be measured and how the impact is proven. Importantly, in R. v. Sharma, supra, the Court differentiated impact and disproportionate impact as “All laws are expected to impact individuals; merely showing that a law impacts a protected group is therefore insufficient” (at paragraph 40). Here, we have the applicant unable to qualify for CERB, CRB or CRSB given the existence of the $5,000.00 earnings threshold. She has been impacted and treated differently. However, the $5,000.00 threshold does not differentiate her from non-disabled workers who are also unable to meet the $5,000.00 earnings threshold. Logically, others not meeting the threshold could have been for any number of reasons, the most obvious ones being very recent entry into the workforce, reentry after a longer period of unemployment or so few hours of work over the previous year that the $5,000.00 threshold was not met.

[20] The Supreme Court of Canada directed the applicant must present sufficient evidence of the impugned law creating or contributing to reach the level of “disproportionate impact” on the basis of a protected ground (at paragraph 41). Causation thus becomes a central issue. This part of the first step of the step requires the applicant to demonstrate the $5,000.00 earnings threshold created or contributed to a disproportionate impact on her or her group.

[21] I cannot so find. The applicant’s entitlement to CPP disability remained intact. Like others with disabilities who worked and, others without a disability, she was adversely impacted by the government’s mandatory shutdown and loss of employment earnings.

[22] I am reinforced in this conclusion by the evidence of the respondent in how its determined and chose to apply the $5,000.00 earning threshold. It established a criteria for the minimum level of attachment to the workforce, being the province with the lowest minimum hourly wage. This was combined with the lowest number of insurable hours necessary to qualify for unemployment insurance benefits. The respondent considered those with a temporary absence from the labour market and not eligible for employment insurance benefits being those in receipt of maternity or parental leave benefits.

[23] I appreciate the court in R. v. Sharma, supra stated that the applicant’s evidentiary burden “cannot be unduly difficulty 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.

[24] I have considered, as indicated by the court in R. v. Sharma, supra:

a) no specific form of evidence is required;

b) the $5,000.00 earnings threshold was not the only or dominant cause of the disproportionate impact;

c) that causal connection may be satisfied by a reasonable inference;

d) the Court should scrutinize scientific evidence with care; and

e) if the scientific evidence is novel, it should only be admitted if it has a reliable foundation.

[25] It appears the difficulty for the applicant has its root in the deterioration of her health between 2016 and the fall of 2019 which prevented her from working or, having attachment to the labour market, and the inability to have worked the additional time before March, 2020 to reach the $5,000.00 income threshold.

[26] I find the applicant has not met the burden of the first step. I find that she has 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.

[27] The court also indicated that the two steps to be analyzed are not “watertight compartments” (at paragraph 30). The second step asks a “fundamentally different question”. As such, I shall also address the second step. This is focused on what it means to reinforce, perpetuate or exacerbate disadvantages.

[28] The factors to consider include arbitrariness, prejudice and stereotyping.

[29] Regarding arbitrariness, the court stated a “distinction that does not withhold access to benefits or impose burdens, or that is based on an individual’s actual capacities, will rarely be discriminatory” (at paragraph 53(b)). I find the factual matrix in circumstances before me to be of this nature. The applicant failed to meet the $5,000.00 earning threshold in the year previously. However, within her group of physically disabled from substantially gainful employment individuals in receipt of CPP-D, there could be those in this group who earned $5,000.00 and met the eligibility requirement for the sought after benefits. In fact, individuals within this group could have earned up to $6,400.00 without impacting their receipt of CPP-D.

[30] Similarly, as indicated above, non-disabled persons who failed to achieve the $5,000.00 income threshold would not be eligible for the sought after benefits. The $5,000.00 benchmark was not chosen arbitrarily but based on the province with the lowest hourly wage combined with the lowest number of insurable hours necessary to qualify for EI (rounded up to the nearest $1,000.00). On that basis, I find the scheme put in place provided access to the benefits based on by the individual’s actual capacities.

[31] Regarding stereotyping and prejudice, it is clear that individuals such as the applicant, with a physical disability faces 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.

[32] 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).

[33] I find the applicant has not 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.

Conclusion

As a result, this application cannot succeed and is dismissed.

Costs

[34] I raised with counsel their failure to comply with Rule 57.01(6) and having not prepared Costs Outlines. In its factum, the applicant acknowledged having been funded by the Court Challenges Program and that a condition of funding is that the applicant seek substantial indemnity costs. Counsel for the respondent relied on it not seeking costs, if successful, for its failure to have prepared a Costs Outline.

[35] It was also submitted by counsel, clearly experienced in this type of litigation, that it was likely the parties could agree on costs. If that was the situation, it ought to have been addressed and completed in advance of the hearing.

[36] Given mounting caseloads, our courts are seeking methods to be efficient and provide timely hearings to all litigants. The failure to abide by the Rules or having an agreement on costs to obviate compliance with the Rules does not assist these efforts. Fortunately, the respondent’s success permits costs to be addressed as it requested. To that end, the application is dismissed, without costs.

________________________________ Mr. Justice G. Dow

Released: July 6, 2023