Court File and Parties

CITATION: Larromana v. Director of ODSP, 2010 ONSC 1243

COURT FILE NO.: 343/09

DATE: 20100225

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Maurice Larromana, Appellant

AND:

Director of the Ontario Disability Support Program, Respondent

BEFORE: REILLY, MOLLOY and DAMBROT JJ.

COUNSEL: Mr. Larromana, in person

Bruce Ellis, Elaine Atkinson, for the Respondent

HEARD: February 23, 2010

ENDORSEMENT

BY THE COURT:

[1] Maurice Larromana appeals from a decision of the Social Benefits Tribunal (“the Tribunal”) dated June 25, 2009, which held that the definition of disability under the Ontario Disability Support Program Act, 1977, S.O. 1997, c. 25 (“ODSPA”) was not discriminatory and was not inconsistent with the provisions of the Ontario Human Rights Code, R.S.O. 1990, c.H.19 (“the Code.”) In an earlier decision, the Tribunal found that Mr. Larromana did not meet the definition of “disability” required to be eligible for benefits under the ODSPA. He appealed that decision to the Divisional Court, which upheld the Tribunal’s decision on that point. Mr. Larromana then proceeded with this “Stage 2” hearing to determine whether the definition of disability under the ODSPA is of no force and effect because of the alleged conflict with the Code. In its decision at the heart of this appeal, the Tribunal concluded there was no conflict, with the result that Mr. Larromana’s application for disability benefits was denied. The only issue before this Court on this appeal is a question of law as to whether the ODSPA definition of disability is discriminatory on the basis that Mr. Larromana meets the definition of a person with a disability under the Code, and yet is denied benefits under the ODSPA because of the narrower definition of “disability” in that legislation.

[2] As a house-keeping matter, the respondent was incorrectly named in the Notice of Appeal as “Director Disability Adjudication Unit, MCSS.” The style of cause is amended to substitute the correct name of the respondent, “Director of the Ontario Disability Support Program.”

[3] For the reasons that follow, the appeal is dismissed.

[4] As a matter of law, the Tribunal correctly determined that disability benefits provided under the ODSPA constitute a program designed to ameliorate the conditions of a disadvantaged group and is not discriminatory merely because the group provided with that advantage is not as broad as the group meeting the definition of disabled persons for the purposes of the Code.

[5] The primacy of the Code over other legislation is engaged only when other legislation conflicts with the Code. However, the mere fact that one statute defines “disability” differently from the definition in the Code is not necessarily discriminatory, and is not necessarily a conflict that engages the primacy provision. In this case, the two statutes have fundamentally different purposes, and the different definitions reflect those different purposes.

[6] The broad definition of disability in the Code is designed to protect a broad range of individuals from discriminatory treatment based on any degree of actual or perceived disability. The much narrower definition of disability in the ODSPA is designed to provide a financial benefit to a smaller disadvantaged group, those with more serious degrees of impairment. That benefit meets the requirements of s. 14(1) of the Code which provides, inter alia, that rights to be free from discrimination guaranteed under the Code are not infringed by a special program designed to relieve hardship or disadvantage. Even a program that falls within s. 14(1) is not permitted to discriminate on grounds not relevant to furthering the purpose of that program: Ontario Human Rights Commission and Roberts v. Ontario (1994), 1994 1590 (ON CA), 19 O.R. (3d) 387 (C.A.). However, where the government elects to provide a benefit to a group identified by a prohibited ground of discrimination (such as disability), it is not required to extend that benefit to every conceivable member of that broad class. Here, the group excluded from benefits under the ODSPA is less disadvantaged than those who are included. It is not discrimination on the basis of disability to provide benefits to the most disadvantaged in order to ameliorate that disadvantage, without providing such benefits to all persons with any degree of impairment: Lovelace v. Ontario (1997), 1997 2265 (ON CA), 33 O.R. (3d) 735 (C.A.); R. v. Kapp. [2008] S.C.R. 483; Gransvsky v. Canada, 2000 SCC 28, [2000] 1 S.C.R. 703. Indeed, such programs are consistent with the Code’s general purpose of enhancing the equal rights and opportunities of the most disadvantaged, rather than the contrary.

[7] Accordingly, the Tribunal’s conclusion was correct in law and this appeal must be dismissed. The respondent does not seek costs. Therefore, an order shall issue dismissing the appeal without costs. Mr. Larromana’s approval of a draft of that order is dispensed with.

REILLY J.

MOLLOY J.

DAMBROT J.

Date: February 25, 2010.