DATE: 20201026
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JASMIN SIMPSON, Applicant
AND:
THE ATTORNEY GENERAL FOR HER MAJESTY THE QUEEN IN RIGHT OF CANADA (REPRESENTING THE MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT), and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO (AS REPRESENTED BY THE MINISTER OF TRAINING, COLLEGES AND UNIVERSITIES, Respondents
BEFORE: Sossin J.
COUNSEL: David Baker, Laura Lepine and Kimberly Srivastava, Counsel for the Applicant
Joseph Cheng, Jon Bricker and Elizabeth Koudys, Counsel for the Respondent, Government of Canada
Daniel Guttman, Counsel for the Respondent, Government of Ontario
HEARD: January 14-15, 2020, March 5, 2020 in person, June 29, 2020 via Zoom, with supplementary submissions in writing received on July 17, 2020, August 12, 2020, and September 3, 2020
APPLICATION UNDER RULE 14.05(3), (d), (g.1) and (h) of the RULES OF CIVIL PROCEDURE
REASONS FOR JUDGMENT
OVERVIEW
[1] This case is about whether the Canadian Student Loans Program (“CSLP”), including the Ontario Student Assistance Program (“OSAP”), violates s.15(1) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. (the “Charter”) on the ground of disability.
[2] The applicant, Jasmin Simpson (“Ms. Simpson”), a former postsecondary student with disabilities, brought this application on June 28, 2007.
[3] Ms. Simpson argues that students with disabilities take longer to complete postsecondary studies (referred to below as “students with disabilities who take longer”). As a result, those students graduate with a higher debt load than students without disabilities, because the CSLP provides loans on a “per year” basis. On this basis, Ms. Simpson alleges that the CSLP imposes a burden on students with disabilities who take longer which violates s.15(1) of the Charter, and cannot be saved by s.1 of the Charter.
[4] The Attorney General for Her Majesty the Queen in Right of Canada (representing the Minister of Human Resources and Skills Development) (“Canada”) and Her Majesty the Queen in Right of the Province of Ontario (as represented by the Minister of Training, Colleges and Universities (“Ontario”) (collectively, the “respondents”) deny that the CSLP violates s.15(1) of the Charter. Alternatively, if the CSLP is found to violate s.15(1), they argue it is a reasonable limit under s.1 of the Charter.
[5] For the reasons set out below, this application is granted. I find that the operation of the CSLP by the respondents, Canada and Ontario, infringed Ms. Simpson’s s.15(1) equality rights, and that this infringement is not a reasonable limit under s.1 of the Charter.
[6] However, this finding is limited to the operation of the CSLP in Ms. Simpson’s case. I find that neither the impugned legislation establishing the CSLP nor the impugned agreement between Canada and Ontario to jointly administer student financial assistance violate s.15(1) of the Charter.
The hearing of this application
[7] The hearing of this application took longer than anticipated.
[8] The application was scheduled to be heard over three days in mid-January 2020. Only the submissions of Ms. Simpson could be heard during those scheduled hearing days due to the unavailability of American Sign Language (“ASL”) interpreters for the submissions of the respondents.
[9] Canada completed its oral submissions in early March 2020. Due to an illness, however, Ontario was not able to make oral submissions at that time.
[10] The COVID-19 Notice to the Profession suspended in-person hearings on March 17, 2020. As a result, Ontario was not able to make its submissions until June 2020, via Zoom.
[11] Further reply submissions from Ms. Simpson and additional responses to questions were conducted in writing over the July-September 2020 period.
[12] I am grateful to counsel for their flexibility with the various adjustments which had to be made to the hearing of this application.
[13] I also appreciate Ms. Simpson’s patience with the ASL interpretation challenges and various delays in the hearing of her application.
A preliminary issue regarding the length of this litigation and its implications
[14] This Charter application has taken thirteen years to reach Court.
[15] This passage of time raises an important preliminary question. Is this a challenge to the CSLP as it existed over the years of Ms. Simpson’s postsecondary education during which she accrued debts through the CSLP, or does it include the many amendments to the CSLP in the period since up to the present? In other words, does this application address the CSLP at a particular moment in time, or is this application directed to all the versions of the CSLP at all the points between the commencement and conclusion of this litigation?
[16] For example, I must consider the possibility that the CSLP may have violated the Charter in 2001 or 2007 but no longer does today, in light of subsequent reforms to the CSLP specifically addressing the situation of students living with disabilities who take longer.
[17] As the parties did not directly address this issue in their submissions, I asked the parties to provide supplemental, written submissions on this question.
[18] In its supplemental submissions, dated July 17, 2020, Canada argues that for the purpose of the s. 15 and s. 1 Charter analyses, it is necessary for the Court to consider the provisions that have applied to Ms. Simpson during the course of her student loan-cycle (1999 to present, as she continues to repay her student loans under the CSLP), including the ongoing amendments insofar as they applied to her.
[19] Canada also argues that, in determining any potential remedy to a Charter infringement, the Court should consider the entirety of the legislative scheme as it stands today.
[20] Ontario substantially supports Canada’s position on the temporal framework of this Charter challenge.
[21] Ms. Simpson has submitted that the CSLP has been in violation of s.15(1) throughout the period of Ms. Simpson’s postsecondary studies through to the present.
[22] I am satisfied that if the CSLP violated the Charter at any point during the period covered by this litigation, the applicant will have succeeded and be entitled to a remedy.
THE FACTUAL BACKGROUND
[23] Many of the facts giving rise to this application are not in dispute and may be summarized succinctly.
[24] This discussion of the relevant facts is divided into three parts: the first part deals with a description of the CSLP, including the impugned legislation establishing the CSLP, and the relationship between the CSLP and OSAP; the second part describes the student loan-cycle under the CSLP and highlights various policies and programs which address the needs of students with disabilities; and the third part deals with a description of Ms. Simpson’s interaction with the CSLP over the course of her postsecondary studies.
(1) The CSLP
[25] The government financial assistance to students dates back at least to 1918, when the Government of Canada authorized loans to disabled veterans returning to their studies after the First World War.
[26] At that time, the scheme operated by banks and credit unions loaning money to students, with the loans guaranteed by the Government of Canada.
[27] In 1939, the Dominion-Provincial Student Aid Program was created to provide matching grants to any province that established a program of assistance to students.
[28] In 1964, the Canada Student Loans Program (CSLP) replaced the Dominion-Provincial Student Aid Program with a system by which loans were made by banks and credit unions, according to assessed need, and guaranteed by the government.
[29] Since its inception, the Program has always been designed based on a cost-sharing arrangement between the individual student, the families and both the federal and provincial levels of government.
[30] According to Canada, the organizing principle of the CSLP is that the cost of postsecondary education should be shared between the student, the student’s family and the government; and its purpose is to enhance access to postsecondary education through its system of loans, grants and loan repayment assistance.
(a) The legislative scheme
[31] In Ms. Simpson’s Notice of Constitutional Question, she challenges the constitutional validity of the Canada Student Financial Assistance Act, S.C. 1994 C.28 (the “Act”), the “Canada-Ontario Agreement on Harmonization of Federal and Provincial Student Loans Programs” (the “Harmonization Agreement”) and ss.2(1) and 8 of the Canada Student Financial Assistance Regulations, S.O.R./95-329 (the “Regulations”).
[32] The Act and the Regulations govern loans made under the CSLP after August 1, 1995.
[33] The Act originally supported students by providing a risk premium of 5% to private financial institutions who actually provided loans to students, but was amended in 2000 to create a system of direct loans.
[34] The Act itself governs some broad aspects of the CSLP scheme. Section 6.1(1) provides,
6.1 (1) Subject to subsection (2), the Minister, or any person authorized by order of the Minister to act on the Minister’s behalf, may enter into an agreement with any qualifying student for the purpose of making a student loan.
[35] Additionally, s.7 establishes a six-month interest free period from the date that a borrower ceases to be a full-time student, while s.8(1) of the Act mandates the deferral of interest payments by a student borrower after the date that a borrower ceased to be a full-time student for seven months.
[36] Section 15(1) authorizes the Governor in Council to make a wide variety of regulations under the Act, including the following:
(f.1) respecting the circumstances in which an amount on account of principal or interest is not required to be paid in respect of student loans; …
(m) notwithstanding any other provision of this Act, providing for the operation of a student loan program for part-time students, including the determination of a student’s status, terms of repayment of the loans, the advancement of loan funds and the maximum number of weeks or periods of studies that may elapse after which the principal amounts of the loans commence to be payable by the borrowers;
(n) providing for the establishment and operation of a program to provide special interest-free or interest-reduced periods to borrowers or classes of borrowers, including the terms and conditions of the granting or termination of the periods, the making, continuation or alteration of agreements between borrowers and lenders when the periods are granted or terminated and the authorization of lenders to grant or terminate the periods and otherwise administer the program;
(o) providing, in respect of any province, for repayment of student loans by borrowers or classes of borrowers on an income-contingent basis, or for the establishment and operation of a student loan program that is financed by Her Majesty in right of Canada or any agent of Her Majesty in right of Canada and that may provide for the repayment of student loans by borrowers or classes of borrowers on an income-contingent basis;
(o.1) prescribing the amount that may be forgiven in respect of a year under section 9.2 in respect of a student loan;
(o.2) prescribing the maximum number of years in respect of which amounts may be forgiven under section 9.2 in respect of a student loan;
(p) providing for the establishment and operation of grant programs, and additional grant programs for qualifying students whose financial needs are greater than the maximum amount of the financial assistance that may be given to the student, for the classes of persons who are eligible for grants and for the circumstances in which all or part of a grant is to be repaid or converted into a loan; …
[37] Section 2(1) of the Regulations provides a series of definitions of terms for purposes of the regulations and the Act, including:
full-time student means a person
• (a) who, during a confirmed period within a period of studies, is enrolled in courses that constitute
o (i) at least 40 per cent and less than 60 per cent of a course load recognized by the designated educational institution as constituting a full course load, in the case of a person who has a permanent disability and elects to be considered as a full-time student, or
o (ii) at least 60 per cent of a course load recognized by the designated educational institution as constituting a full-time course load, in any other case,
o (b) whose primary occupation during the confirmed periods within that period of studies is the pursuit of studies in those courses, and
o (c) who meets the requirements of subsection 5(1) or 7(1) or section 33, as the case may be; (étudiant à temps plein)
period of studies means the length of time that a designated educational institution considers to be a normal school year for the program of studies in which the qualifying student or the borrower is enrolled and that, where the period between the day on which that person ceased to be a full-time student pursuant to section 8 or a part-time student pursuant to section 12.3, as the case may be, and the first day of the first confirmed period of the current school year is less than six months, includes that period; (période d’études)
permanent disability means a functional limitation caused by a physical or mental impairment that restricts the ability of a person to perform the daily activities necessary to participate in studies at a post-secondary school level or the labour force and is expected to remain with the person for the person’s expected life; (invalidité permanente)
severe permanent disability means a functional limitation caused by a physical or mental impairment that prevents a borrower from performing the daily activities necessary to participate in substantially gainful employment, as defined in section 68.1 of the Canada Pension Plan Regulations, and is expected to remain with the person for their expected life; (invalidité grave et permanente)
[38] Section 8 of the Regulations provides,
8 (1) Subject to paragraphs 5(3)(b) and 7(2)(b), the borrower ceases to be a full-time student on the earliest of
a. (a) the last day of the last confirmed period,
b. (b) the last day of the month in which the borrower no longer meets the applicable minimum percentage referred to in the definition full-time student in subsection 2(1), and
c. (c) the applicable day, other than the applicable day referred to in paragraph 15(1)(j), on which the borrower’s interest-free period is terminated in accordance with section 15.
(b) The relationship between the CSLP and OSAP
[39] Ontario manages its financial assistance for postsecondary students through the Ontario Student Assistance Program (“OSAP”).
[40] OSAP encompasses student loan, bursary and grant programs for postsecondary students in Ontario. The reference to a student in Ontario means an individual who meets the eligibility requirements for OSAP, including residency, as set out in the regulations under the Ministry of Training, Colleges and Universities Act, R.S.O. 1990, c. M.19 (“MTCU Act”).
[41] OSAP is governed by the MTCU Act and regulations under that legislation, and administered through a range of Ministry policies and guidelines.
[42] The legislative schemes create a system of cooperation between the federal and provincial/territorial governments with respect to student loans.
[43] Canada and Ontario signed the Harmonization Agreement relating to student financial assistance in May of 1999. In July 2001, they signed an Integration Agreement.
[44] The Harmonization Agreement was amended in 2001, 2010 and 2016.
[45] The Integration Agreement was replaced in 2008 and amended in 2010.
[46] Together, these agreements, in their past and present form, create a unified financial assistance scheme and streamlined administration of federal and provincial financial assistance for students.
[47] Financial assistance is funded jointly by the two levels of government, with the federal Government providing roughly 60% of a student’s loans, and the province or territory providing the remaining 40%.
[48] For added clarity, references to the CSLP below generally include references to OSAP. However, where a specific program or decision of Canada or Ontario is referred to, it will be specifically identified either as a federal or provincial program.
(2) The CSLP loan-cycle
[49] As is apparent from the description of the legislative scheme above, the CSLP is the product of several legislative instruments, agreements between governments, administrative policies and programs at both levels of government.
[50] The operation of the CSLP involves five stages of the loan-cycle: a) financial assistance application; b) disbursement of financial assistance and in-study period; c) end of study and termination of financial assistance period; d) repayment of financial assistance and e) loan forgiveness, discharges and write-offs.
[51] Below, I briefly set out the way in which the CSLP operates at each stage of the loan-cycle, and how some of the programs, policies and discretionary authority in the operation of the CSLP is intended to address the needs of students with disabilities.
(i) The Application Stage
[52] The application for the CSLP in Ontario begins with a student who is seeking financial assistance applying to OSAP.
[53] In order to qualify, a student must be a Canadian citizen, permanent resident or protected person under the Immigration and Refugee Protection Act, be enrolled in a designated education institution and have demonstrated financial need.
[54] Students pursuing postsecondary education within four years of leaving high school are usually considered dependent on their parents, which means parental resources are considered as part of the assessment of a student’s needs.
[55] There are several ways in which disability status may play a role in the application process.
[56] According to Canada, students with permanent disabilities who require additional time to complete high school may be deemed independent, and therefore eligible for financial assistance without considering family support, in fewer than four years.
[57] Additionally, students with disabilities will have exceptional costs associated with their disability included in the calculation of education expenses, living costs and other costs. This assessment of expenses is undertaken on a case-by-case basis.
(ii) Disbursement of financial assistance and the in-study period
[58] During the in-study period, students make no payments on the loans they receive and no interest accrues. Further, in addition to loans, various grant programs also are available for students in need during the in-study period. The nature of these grant programs has changed over the years covered by this litigation.
[59] In addition to grant programs available to all students, the CSLP also has had specific grant programs for students with disabilities. For example, since 2005, the CSLP has offered the Canada Access Grant for Students with Permanent Disabilities. In its current form, this program provides a fixed grant of $2,000 for eligible students (see s.40.01 of the Regulations).
[60] Students with permanent disabilities also have been eligible for a grant for disability related expenses. Today, this grant program is the Canada Student Grant for Services and Equipment for Students with Disabilities. In 2002, the value of this grant was up to $5,000 per loan year. By 2009, the amount of this grant was increased to up to $8,000 per loan year, and as of 2019, it was increased to $20,000 per loan year.
[61] Under the ss. 8(1)(c) and 15(1)(j) of the Regulations, full-time students are eligible to receive financial assistance for up to 340 weeks. Full-time students with permanent disabilities, however, are eligible to receive assistance for an additional 180 weeks, for a total of 520 weeks.
[62] Under s.2(1) of the Regulations, a student is considered full-time if they are enrolled in at least 60% of a full-time course load. A student with a permanent disability, however, may elect full-time status if they are enrolled in 40-59% of a full-time course load.
(iii) End of study and termination of financial assistance
[63] At the end of a student’s postsecondary education (either graduation or withdrawal), a grace period of six months ensues during which no interest or principal payments are required. Interest used to accrue during this period, but as of November, 2019, this practice was discontinued and interest now does not accrue during the grace period.
[64] There are various provisions dealing with students who return to study either within or outside the six months grace period, and students who withdraw early from programs, leading to “overawards.”
(iv) Consolidation of the loan and repayment
[65] At the end of the six-month grace period, a former student’s loan is consolidated, after which the former student is obliged to begin making monthly payments according to the terms and conditions of the loan agreement.
[66] Former students generally are required to repay the full amount of their loans within 10 years of the student’s graduation or withdrawal.
[67] The CSLP features several repayment relief and assistance programs, which also have evolved over the course of this litigation.
[68] Canada identified four such forms of repayment assistance at the time Ms. Simpson completed her studies, including (1) interest relief (which provided up to five six-month periods where eligible former students were not required to make payments, though interest continued to accrue on their loans); (2) extended interest relief (which provided additional six month periods); (3) debt reduction in repayment (which reduced the former student’s loan principal and payments, based on family income) and (4) revision of terms (which allowed for a renegotiation of the terms of the loan agreement and extend the repayment period from 10 to up to 15 years).
[69] In 2009, some of these programs were reorganized into the Repayment Assistance Plan (“RAP”) and the Repayment Assistance Plan for Borrowers with Permanent Disabilities (“RAP-PD”).
[70] The RAP has two stages. In the first stage, which is intended to be short-term, the former student can apply to have their monthly payment reduced for a six-month period (to a maximum of 60 months). The reduced payment is determined by family income and will not exceed 20% of the former student’s gross family income. During this stage, principal payments are deferred and Canada covers the difference between the reduced payments made and the full payments owed.
[71] If a former student is still in financial need after the first stage terminates, a second stage of RAP commences, and is intended to provide longer term assistance. The key difference at this stage is that Canada also covers principal payments that would have been due under the loan agreements, resulting in a full repayment of the loan within 15 years.
[72] RAP-PD operates similarly to the RAP program, though for all the periods of eligibility, Canada pays both the principal and interest on the loan, beyond contributions by the former student not to exceed 20% of family income, and expenses relating to a permanent disability are included in the calculation of an affordable monthly payment. The entire loan will be paid off under RAP-PD within 10 years.
[73] In addition to RAP-PD, students can apply for a “revision of terms” which allows the repayment period to be extended to reduce their original required monthly payment if students cannot repay their loan according to the terms of their repayment arrangement.
(v) Loan forgiveness, debt discharges and write-offs
[74] In the final stage of the CSLP loan-cycle, former students who have not been able to repay loans may have those loans forgiven, discharged or written off if deemed to be non-collectable.
[75] Under s.11 of the Act, former students with disabilities may be eligible for the Severe Permanent Disability Benefit if they can demonstrate that, due to a disability, a loan can never be repaid. Eligible former students who qualify for this benefit will have their entire CSLP loan forgiven.
Conclusions on the structure and scope of the CSLP
[76] As this brief summary of the various stages of the loan-cycle demonstrates, the CSLP is a patchwork quilt of various statutory provisions, administrative programs and discretionary benefits.
[77] Some of these programs are available to all students, but may be responsive to the needs of students with disabilities, while others are specifically designed to address the needs of students with disabilities, and only available to students with disabilities.
[78] Some of the programs for students with disabilities operate as an entitlement for all students who qualify (for example, the Canada Access Grant for Students with Permanent Disabilities), while most operate on the basis of varying degrees of discretion exercised by the provincial and/or federal decision-makers, particularly repayment assistance programs such as RAP-PD and the revision of terms of repayment.
[79] Ms. Simpson argues that the only relevant stages of the loan-cycle for this Charter application are prior to consolidation, when the accrual of debt takes place.
[80] Ms. Simpson argues that back-end debt relief, including partial or complete loan forgiveness or the writing off of student debt, does not alter the discrimination which occurs in the accrual of debt by students with disabilities who take longer to complete their postsecondary programs.
[81] I do not accept Ms. Simpson’s argument that loan repayment assistance and forgiveness programs are not relevant for purposes of assessing the constitutionality of the CSLP.
[82] These programs may not affect the level of debt which students with disabilities who take longer accrue, but they play a key role in determining how much of that debt actually must be repaid, and the nature of any potential burden or potential denial of benefit experienced by recipients of CSLP financial assistance.
[83] Consider, for example, a loan forgiveness program that entitled students with disabilities who take longer to complete their postsecondary education to have the loan entirely forgiven for the portion of the program which took longer to complete at the beginning of the loan repayment period. This program would substantially redress any potentially discriminatory gap between students with disabilities who take longer and students without disabilities.
[84] Therefore, I consider all programs, policies and discretionary authority at all stages of the CSLP loan-cycle for purposes of this application.
[85] There are other aspects of government support to students with disabilities, however, that fall outside the scope of this application.
[86] For example, an important form of governmental support for students with disabilities through the period of this litigation comes not in the form of direct assistance to students, but rather as grants to universities and colleges, who in turn provide a diverse array of supports through financial aid, tuition reductions, scholarships, bursaries and loans.
[87] While these indirect grants and programs may play significant roles in supporting students with disabilities, they do not affect the s.15(1) analysis with respect to the CSLP.
[88] Additionally, Ontario introduces the possibility that whether a student with a disability receives benefits under the Ontario Disability Support Plan (“ODSP”) is relevant when considering financial supports for students with disabilities, as this benefit is intended to defray living experiences for recipients and therefore also may contribute to lowering the overall debt accrued while pursuing postsecondary education.
[89] While the ODSP may be relevant to the affordability of postsecondary education for individual students (including Ms. Simpson, who received ODSP benefits while a postsecondary student), the ODSP similarly cannot assist with the analysis of whether the CSLP violates s. 15 of the Charter by imposing additional burdens on students with disabilities who take longer.
[90] While the basic facets of the CSLP loan-cycle described above have remained relatively stable over the period of this litigation, the specific programs, policies and discretionary authority which makes up the CSLP are dynamic rather than static aspects of this application.
[91] Federal and provincial policy reforms and legislative amendments affecting grants, loans, bursaries and scholarships within the CSLP have been the norm rather than the exception over the past twenty years.
[92] To take just one recent example, on March 19, 2019, the Government of Canada tabled its 2019 budget, which included several amendments to the CSLP. The stated aim of these amendments is to make post-secondary education more accessible and affordable, including for students with disabilities.
[93] According to the parties’ “Agreed Statement of Facts,” these changes to the CSLP include:
a. An increase to the maximum amount of the Canada Student Grant for Services and Equipment for Students with Permanent Disabilities from $8,000 to $20,000 per school year. The approved regulatory amendments were published in the Canada Gazette Part II on June 26, 2019, and are effective on August 1, 2019;
b. An expansion of the eligibility requirements for the Severe Permanent Disability Benefit, which allows borrowers with severe permanent disabilities to apply for loan forgiveness. This benefit was previously available only to students whose disability completely prevented them from participating in post-secondary education or the labour force for their expected life. Pursuant to approved regulatory amendments that were published in the Canada Gazette Part II on June 26, 2019, those capable of participating in post-secondary education or those capable of having employment, so long as it is not substantially gainful, will also be eligible to receive this benefit, effective August 1, 2019;
c. Removing the restriction that prevented borrowers who are receiving assistance under the Repayment Assistance Plan for Borrowers with a Permanent Disability (“RAP-PD”), and who have been out of study for five years, from receiving additional CSLP grants or loans until their loans are paid in full. Regulatory amendments approved and published in the Canada Gazette Part II on June 26, 2019, remove this restriction so that all RAP-PD recipients can access further federal student financial assistance, without having repaid their loans in full, effective August 1, 2020;
d. Implementing interest-free and payment-free leave in six-month periods, for a maximum of 18 months, for borrowers taking temporary leave from their studies for parental or medical reasons, including mental health leave, starting in the 2020- 2021 loan year, subject to Governor-in-Council approval;
e. Lowering interest rates for all CSLP loans. Specifically, the variable rate will be reduced to prime (from prime plus 2.5 percent), and the fixed rate will be reduced to prime plus two percent (from prime plus 5 percent). This approved change was published on the Orders in Council website on June 16, 2019 and is effective November 1, 2019; and
f. Eliminating interest on all student loans during the six-month non-repayment period after a borrower leaves school. This approved change was published on June 21, 2019 on the House of Commons website, and is effective November 1, 2019; and
g. Relaxing the eligibility requirements for loan rehabilitation so that financially vulnerable borrowers in default can access supports such as the Repayment Assistance Plan (RAP) or student aid to go back to school. These approved regulatory amendments were published in the Canada Gazette Part II on June 26, 2019, and are effective on January 1, 2020.
Ms. Simpson’s interaction with the CSLP
[94] The facts as they relate to Ms. Simpson’s interactions with the CSLP are for the most part not in dispute.
[95] Ms. Simpson is both visually and hearing impaired, and has acute systematic lupus. She communicates through ASL.
[96] Ms. Simpson received student financial assistance from Ontario to assist her in attending Gallaudet University in Washington, D.C for her undergraduate and master’s degrees. She also attended a preparatory year before the start of her undergraduate degree but did not receive financial assistance for this year.
[97] In February 2001, Ms. Simpson became severely ill due to a lupus flare-up. She withdrew from the second semester of her second year at Gallaudet in order to return to Ontario, where she was hospitalized for various periods over three months.
[98] Because Ms. Simpson withdrew after the withdrawal cut-off date, Gallaudet billed her for the Spring 2001 semester, as required by U.S. immigration laws.
[99] At the time of Ms. Simpson’s withdrawal in 2001, OSAP did not have a policy with respect to students withdrawing for medical reasons.
[100] Notwithstanding the fact that she still owed Gallaudet for tuition fees in the Spring 2001 semester, OSAP nonetheless required Ms. Simpson to return OSAP funding received that semester on a prorated basis.
[101] This OSAP decision required Ms. Simpson to pay $13,000 out of her own pocket (which she negotiated down to $9,000).
[102] Ms. Simpson was unable to repay the entire amount by the Fall 2001 semester, and she was not permitted to re-enroll at Gallaudet. She did so only in January 2002, after negotiations with Gallaudet, which included a payment plan.
[103] Ms. Simpson was required to pay interest on her loans under the CSLP from October 2001-January 2002.
[104] In response to Ms. Simpson’s 2002 draft application against Ontario, and in light of her circumstances, the Ministry entered into a settlement with her. While not admitting liability, Ontario provided Ms. Simpson with the following measures in response to her situation:
a) Ontario would pay Ms. Simpson $12,147 which represented the amount of bursary to which Ms. Simpson would have been entitled had she not withdrawn from Gallaudet University for medical reasons before the completion of her last semester in 2000-01;
b) Ontario would pay Ms. Simpson an amount equivalent to the amount of interest which accrued on her Ontario student loans between February 2001 and January 2002 when she was able to resume her studies;
c) Ontario would reduce the amount of Ms. Simpson’s outstanding provincial portion of the integrated student loan debt by $1,800, the amount of OSOG to which she would have been entitled to in 2000-01 had she not withdrawn from her studies in the second semester;
d) Ontario would reduce Ms. Simpson’s provincial portion of the integrated student loan debt by $900, the prorated amount of the OSOG to which she would have been entitled for the 2001-02 academic year; and
e) Ontario would pay Ms. Simpson $13,000 for her legal costs.
[105] On April 7, 2003, Ms. Simpson, in consideration of the above, released the Ministry from all claims in connection with the financial assistance received or absence of financial assistance from OSAP between 1999-2003.
[106] Under the Minutes of Settlement, Ontario agreed to make payments to Ms. Simpson, change certain OSAP policies concerning early withdrawal from postsecondary programs for medical reasons, and open discussions with Canada pertaining to the early withdrawal from studies by deaf out-of-country students.
[107] However, Ontario took the position that it was not able to forgive the loan amounts incurred by students for taking longer by reason of disability or illness because of the Harmonization Agreement with Canada, and the lack of corresponding policies in the CSLP.
[108] The release Ms. Simpson signed as part of the Minutes of Settlement does not bar future claims against Ontario such as this application for the period after 2003.
[109] In June 2007, Ms. Simpson launched this application.
[110] Ms. Simpson graduated from Gallaudet in May 2008.
[111] Overall, between 1999-2008, Ms. Simpson states she received $76,550 in repayable financial assistance (comprised of $43,530 from Canada, and $33,020 from Ontario).
[112] Additionally, Ms. Simpson received $288,831 in non-repayable grant assistance (comprised of $9,391 from Canada and $231,455 from Ontario).
[113] Ms. Simpson took five years to complete her Bachelors of Social Work (“BSW”) degree, and three years to complete her Masters of Social Work (“MSW”) degree.
[114] She submits that the equivalent programs in Ontario could have been completed in five years (based on a 3-4 year BSW and a 1-2 year MSW).
[115] In total, Ms. Simpson states she spent ten years in postsecondary studies, including 1 preparatory year (for which she did not receive CSLP assistance), 5 years completing her BSW, 1 year of the medical withdrawal, and 3 years completing her MSW.
[116] In November 2008, Ms. Simpson began full-time employment with the Canadian Hearing Society as a counsellor.
[117] On December 1, 2008, she entered the repayment stage of the CSLP.
[118] As Ms. Simpson had already paid down some of her loan obligations under the CSLP prior to the consolidation, her obligation at the time of consolidation was $55,684.40.
[119] Ms. Simpson applied for interest relief under the CSLP in 2008 and again under the newly instituted RAP-PD program, but in each case, she was denied interest relief on the grounds that her income was too high for her to be eligible for the interest relief.
[120] After launching her application in this matter in 2007, Ms. Simpson entered into Minutes of Settlement with the Government of Canada in 2008.
[121] Beyond the payment of specific funds to Ms. Simpson, the settlement referred to amendments to the Regulations that enhanced the support for students with disabilities. These amendments to the Canada Student Loan Program and the Canada Student Grant Program were ultimately registered.
[122] At that point, Ms. Simpson concluded that in their final form, these amendments did not resolve her systemic concerns.
[123] Canada did not accept that the terms of the Minutes of Settlement were not met, and sought to enforce this agreement.
[124] In a decision reported at Simpson v. Canada (Attorney General), 2011 ONSC 5637, Justice Perell concluded the conditions for an enforceable settlement agreement had not been met. As a result, after a delay between January 2008 and September 2011, the litigation continued.
[125] By 2011, Ms. Simpson’s circumstances had changed and she was approved for RAP-PD on both her federal and provincial loans for a six-month period between December 2011-May 2012. She was approved for four additional six-month periods between July 2016 and January 2019.
[126] In February 2019, unable to continue even with the affordable payments under the RAP-PD, Ms. Simpson entered into a Revision of Terms (ROT) agreement and continues to repay her remaining debt under those arrangements. In her factum (at para. 44), Ms. Simpson states that she has loans that are currently scheduled to be paid off in full in 2023.
[127] Ms. Simpson submits that she faced the following consequences as a result of accruing additional debt under the CSLP because she took longer to complete her postsecondary education:
a. She had to take student loans (approximately $4,400.00) for an academic semester she was unable to complete due to medical reasons;
b. She had to borrow funds for a subsequent academic year (approximately $8,800 USD) to make up for a year lost due to medical reasons;
c. She accrued interest ($368.00) while she was withdrawn from her academic program for medical reasons;
d. While out of her program for medical reasons, she was required to make payments on her federal CSLP loans ($353.45); and
e. Due to her disability, she required nine years to complete her degrees rather than the standard length, which would have been five years. As a result of taking longer, she graduated with a student loan of $76,550.00, an amount substantially more than her peer students without disabilities.
ANALYSIS
[128] This application raises the following issues:
a. Does Ms. Simpson have either private or public interest standing to raise this Charter challenge against the CSLP?
b. At any point during this application, has the CSLP violated s.15 of the Charter?
c. If so, is that violation a reasonable limit under s.1 of the Charter?
d. If not, what remedy is appropriate?
[129] I will address each issue in turn.
Does Ms. Simpson have standing to bring this application against Ontario?
[130] According to the respondent, Ontario, Ms. Simpson does not have standing to raise Charter arguments on behalf of other persons before the Court.
[131] As Ms. Simpson did not study in Ontario, Ontario argues that she has no standing or factual basis to seek a remedy on behalf of postsecondary students in receipt of OSAP who did study within Ontario.
[132] Leaving aside the scope of any potential remedy to which Ms. Simpson is entitled, it is clear she received grants and loans as part of the CSLP while attending an eligible postsecondary institution, and therefore has private interest standing to challenge the constitutionality of the CSLP as it relates to her experience.
[133] The question raised by Ontario is whether Ms. Simpson also has private interest standing to challenge the CSLP respecting the program’s loans and grants for students with disabilities studying within Ontario administered through OSAP.
[134] Ontario argues that, in order to have private interest standing for an application for a declaration that legislation or policies are invalid, an applicant must be personally and directly affected by the impugned provisions.
[135] Among other cases, Ontario relies on R. v. Mernagh, 2011 ONSC 2121 at paras. 311-313, rev’d on other grounds 2013 ONCA 67, leave to appeal to SCC refused [2013] SCCA No. 136, where the Court held that the applicant had no personal standing to challenge the trafficking provisions in the Controlled Drugs and Substances Act where he himself was not directly affected or prejudiced by those provisions.
[136] Ontario, in effect, argues that Ms. Simpson has not personally been affected by funding policies for students studying within Ontario because she studied at an eligible institution in the United States.
[137] However, to address the distinction on which Ontario relies, it is important to understand why Ontario residents may receive CSLP support for study at institutions such as Gallaudet in the United States.
[138] In summary, the eligibility of these institutions arises from a recognition by Ontario that a commensurate postsecondary education for students with disabilities such as Ms. Simpson is not available in Ontario.
[139] Gallaudet is a liberal arts university designed exclusively for deaf and hearing-impaired students. It is not disputed that no Ontario university offers ASL as the primary mode of instruction.
[140] Therefore, in order to put students such as Ms. Simpson into a position similar to students in Ontario without disabilities such as hers, she is able to receive financial support through OSAP to support her studies at Gallaudet.
[141] For purposes of a challenge to the CSLP on s.15 Charter grounds, I find Ms. Simpson is in no different position than students studying within Ontario, and has the requisite “stake” and “interest” in the impact of the CSLP and OSAP on all recipients who live with disabilities.
[142] Therefore, Ms. Simpson has private standing to bring this application.
[143] For this reason, it is not necessary to examine whether Ms. Simpson also qualifies for public interest standing to bring this application.
Does the CSLP breach [s.15](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[144] Section 15(1) of the Charter provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[145] Under s.15 of the Charter, an applicant has the onus of establishing a breach.
[146] An applicant must show (1) that the impugned law or action imposes a burden or denies a benefit on an enumerated or analogous ground; and (2) that the distinction is discriminatory in that it fails to respond to the needs of the claimant group but instead arbitrarily perpetuates their existing disadvantage; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30 (“Taypotat”), at paras. 19-29.
[147] The Supreme Court recently confirmed this test in the context of adverse effects challenges in Fraser v. Canada (Attorney General), 2020 SCC 28 (“Fraser”).
[148] In Fraser, a majority of the Court struck down an RCMP pension scheme provision which did not recognize job-sharing in the way it did other forms of leave from full-time service. The evidence in Fraser established that women were far likelier to participate in job-sharing. The Court found that this provision had a disproportionate impact on women and perpetuates their historical disadvantage. On this basis, the majority held that the provision violated s.15(1) of the Charter.
[149] I note that Fraser was released after the close of arguments in this case. I did not seek supplemental submissions from the parties on Fraser as the Court did not purport to modify the existing test for s.15 in adverse effects challenges, on which the parties had made extensive arguments, but rather affirmed and applied that approach.
[150] In Fraser, Justice Abella, for the majority, described the s.15(1) threshold in adverse effects challenges as follows, at para. 50:
[50] To prove discrimination under s. 15(1), claimants must show that a law or policy creates a distinction based on a protected ground, and that the law perpetuates, reinforces or exacerbates disadvantage. These requirements do not require revision in adverse effects cases. What is needed, however, is a clear account of how to identify adverse effects discrimination, because the impugned law will not, on its face, include any distinctions based on prohibited grounds (Withler, at para. 64). Any such distinctions must be discerned by examining the impact of the law (Alliance, at para. 25).
Does the CSLP impose a burden or deny a benefit on an enumerated or analogous ground?
[151] A law will create a distinction based on prohibited grounds through its effects where it has a disproportionate impact on members of a protected group.
[152] In this case, Ms. Simpson argues the CSLP creates a distinction based on disability that has a disproportionate impact on students with disabilities who take longer to complete postgraduate studies.
[153] In Withler v. Canada (Attorney General), 2011 SCC 12 (“Withler”) the Court described the proper approach to this analysis, at para. 40:
It follows that a formal analysis based on comparison between the claimant group and a “similarly situated” group, does not assure a result that captures the wrong to which s. 15(1) is directed — the elimination from the law of measures that impose or perpetuate substantial inequality. What is required is not formal comparison with a selected mirror comparator group, but an approach that looks at the full context, including the situation of the claimant group and whether the impact of the impugned law is to perpetuate disadvantage or negative stereotypes about that group.
[154] In this case, there is no allegation of facial discrimination in the CSLP. Rather, Ms. Simpson argues that students with disabilities who take longer to complete postsecondary education are subject to adverse effects discrimination due to the CSLP’s “time in study” structure.
[155] According to Ms. Simpson, the CSLP fails to account for the postsecondary experience of students with disabilities, and specifically, the greater likelihood that students with disabilities will take longer to complete their postsecondary programs, thereby accruing a higher level of debt under the CSLP.
[156] Ms. Simpson argues, “The CSLP indirectly discriminates against these students as it results in their paying more for their education than their non-disabled peers while enrolled in the same program.” (at para. 188 of Ms. Simpson’s factum)
[157] In Withler, the Supreme Court specified the appropriate way to approach alleged distinctions in adverse effects s.15(1) claims, at para. 64:
[64] In some cases, identifying the distinction will be relatively straightforward, because a law will, on its face, make a distinction on the basis of an enumerated or analogous ground (direct discrimination). This will often occur in cases involving government benefits, as in Law, Lovelace and Hodge. In other cases, establishing the distinction will be more difficult, because what is alleged is indirect discrimination: that although the law purports to treat everyone the same, it has a disproportionately negative impact on a group or individual that can be identified by factors relating to enumerated or analogous grounds. Thus in Granovsky, the Court noted that “[t]he CPP contribution requirements, which on their face applied the same set of rules to all contributors, operated unequally in their effect on persons who want to work but whose disabilities prevent them from working” (para. 43). In that kind of case, the claimant will have more work to do at the first step. Historical or sociological disadvantage may assist in demonstrating that the law imposes a burden or denies a benefit to the claimant that is not imposed on or denied to others. The focus will be on the effect of the law and the situation of the claimant group.
[158] In Fraser, at paras. 53-54, Abella J. described two different ways this test may be met, 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:
[53] 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 (see Eldridge, at paras. 60‑62; Vriend, at para. 82). 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 (see also Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), [1990] 2 S.C.R. 489). 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 (Moreau (2018), at p. 125).
[54] In other cases, the problem is not “headwinds” built into a law, but the absence of accommodation for members of protected groups (Tarunabh Khaitan, A Theory of Discrimination Law (2015), at p. 77; Dianne Pothier, “Tackling Disability Discrimination at Work: Toward a Systemic Approach” (2010), 4 M.J.L.H 17, at pp. 23‑24). 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 (paras. 69, 71 and 83).
What must the evidence establish at this stage of the s.15(1) analysis?
[159] At this stage of the s.15(1) analysis, I must address the following question: Does the evidence in the record establish that students with disabilities who take longer encounter either “built-in headwinds” or an absence of accommodation by the CSLP?
[160] In addressing the question of the required evidence to meet the first stage of the s.15(1) test in an adverse effects context, Abella J in Fraser stated, at para. 59,
[59] There is no universal measure for what level of statistical disparity is necessary to demonstrate that there is a disproportionate impact, and the Court should not, in my view, craft rigid rules on this issue. The goal of statistical evidence, ultimately, is to establish “a disparate pattern of exclusion or harm that is statistically significant and not simply the result of chance” … The weight given to statistics will depend on, among other things, their quality and methodology (Vizkelety, at pp. 178‑84). (Emphasis added.)
[161] The evidence of the situation of the claimant group in this application is contested, but there are some areas of general agreement between the parties.
[162] There is no dispute that people with disabilities face a wide range of barriers in Canadian society.
[163] This reality has been recognized by courts interpreting s.15 of the Charter at least since Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 SCR 624 (“Eldridge”). In Eldridge, Justice LaForest 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; see generally M. David Lepofsky, “A Report Card on the Charter’s Guarantee of Equality to Persons with Disabilities after 10 Years -- What Progress? What Prospects?” (1997), 7 N.J.C.L. 263. 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; see Sandra A. Goundry and Yvonne Peters, Litigating for Disability Equality Rights: The Promises and the Pitfalls (1994), at pp. 5-6. 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; see Minister of Human Resources Development, Persons with Disabilities: A Supplementary Paper (1994), at pp. 3-4, and Statistics Canada, A Portrait of Persons with Disabilities (1995), at pp. 46-49.
[164] The parties agree that postsecondary education is important for future employment prospects of students with disabilities.
[165] The parties also agree that students with disabilities are less likely to pursue postsecondary education, and face a range of financial barriers which leave this group more likely to earn a lower income and to be under-employed than peers without disabilities.
[166] The parties agree that at least some students with disabilities are more likely to take longer to complete their postsecondary education than students without disabilities.
[167] Where the evidence diverges is on the question of whether students with disabilities take longer as a result of their disability, whether they actually accrue more debt under the CSLP, and more generally, whether they are disadvantaged in comparison to students without disabilities as a result.
[168] It is important in an adverse effects case to review the evidence of those effects with care.
[169] Ms. Simpson and Canada each rely on their own extensive expert evidence with respect to the key questions on this application.
[170] Ms. Simpson relies on expert evidence from Dr. Anthony Chambers, Ms. Adele Furrie, Dr. David Lewis, Mr. Gary Malkowski, Ms. Julia Munk, Dr. Melanie Panitch, Mr. Alex Usher and Mr. Frank Smith.
[171] Ontario relies on expert evidence from Mr. Richard Jackson, Ms. Donna Wall, and Mr. Noah Morris.
[172] Canada relies on expert evidence from Ms. Rosalie Frith, Ms. Cynthia Carraro, Mr. Marc Lebrun, Mr. Atiq Rahman, Dr. Ronald-Frans Melchers, Dr. Ross Finnie and Dr. Timothy Farmer.
[173] These experts gave their opinion evidence at various points between 2007 and 2019, with some affiants testifying, and responding to each other, on multiple occasions.
[174] In total, the parties filed over 10,000 pages of material on this application.
[175] While I reviewed all this evidence, I refer below only to the evidence most closely connected to the analysis on this application
A preliminary issue with the evidence of Dr. Farmer
[176] As a preliminary matter, Ms. Simpson sought to have the evidence of Dr. Timothy Farmer struck on the basis of a conflict of interest between Dr. Farmer and Canada’s counsel of record at the time.
[177] Dr. Farmer was an assistant professor in the Applied Human Sciences Department at Concordia University, and a consultant for the Access Centre for Students with Disabilities at the University.
[178] After cross-examination of Dr. Farmer on his affidavit in 2017, the former counsel for Canada in this matter commissioned a follow-up affidavit from Dr. Farmer defending his positions on cross-examination.
[179] Ms. Simpson submits that commissioning an affidavit in this manner in the midst of cross-examination violated the rule that a lawyer ought not to communicate with a witness during the cross-examination process.
[180] Canada acknowledges “irregularities” associated with the attempt to introduce a further affidavit in the midst of cross-examination, but argues that this incident does not undermine the reliability of Dr. Farmer’s opinions.
[181] I disagree.
[182] The Supreme Court has set out the legal framework for the admissibility of expert evidence in White Burgess v. Abbott and Haliburton Co., 2015 SCC 23, at paras. 23-24, 34. First, the evidence must meet an initial threshold for admissibility, including an assessment of the expert’s independence and impartiality. Second, the judge performs a gatekeeping role by balancing the risks and benefits of admitting the evidence.
[183] I find the relationship between Canada’s former counsel and Dr. Farmer is troubling and raises serious questions with respect to Dr. Farmer’s independence and impartiality.
[184] On this basis alone, I find the evidence of Dr. Farmer must be excluded.
Does the expert evidence show that students with disabilities take longer and accrue more debt?
Ms. Simpson’s evidence
[185] Ms. Simpson relies on the 2006 affidavit of Dr. Frank Smith, the National Coordinator for The National Educational Association of Disabled Students.
[186] Dr. Smith states that, based on Statistic Canada's "Prevalence of disability in Canada" study, nearly 10% of Canadian adults aged 15 to 64 have a disability, and nearly 4% of Canadian adults in the 15 to 24 age range have a disability.
[187] Dr. Smith states that youths with disabilities take longer. on average, to complete high school, and are less likely to complete post-secondary education than youths without disabilities. Students with disabilities have a less than half likelihood of completing university (3.2% compared to 6.8%, according to the Human Resources and Development Canada's ·'Disability in Canada: A 2001 Profile”).
[188] Dr. Smith also referred to the financial barrier that students with disabilities may face relates to length of study. Depending upon their disability and circumstances, students with disabilities may take longer to complete their programs of study.
[189] According to Dr. Smith, both the Ontario and Federal student loan programs implicitly recognize this fact by permitting a student with a disability is considered to be a full-time postsecondary student if studying at 40%, or more of a full course load (whereas a student without a disability must be enrolled in at least 60% of a full course load).
[190] Do the CSLP data show that students with disabilities in fact take longer, and accrue more debt as a result? Ms. Simpson relies primarily on a statistical analysis presented by Ms. Adele Furrie. Ms. Furrie is a management consultant who spent several decades working in various capacities at Statistics Canada.
[191] In her 2013 affidavit, and a follow-up 2016 affidavit, Ms. Furrie analyzed federal debt data from the CSLP (over the 2008/09-2010/11 period), in addition to other source material, in order to examine the difference in debt incurred by full-time students with a disability and full-time students without a disability.
[192] The CSLP data, however, were limited. Ms. Furrie was not able to determine, for example, how long a student attended a postsecondary program, or whether the program was complete upon debt consolidation. Additionally, Ms. Furrie examined only the federal portion of CSLP debt, and limited her conclusions to CSLP recipients in degree programs at universities.
[193] In addition to the limitations of her data, Ms. Furrie attempted to control for other variables such as program length, type of program and others.
[194] Ms. Furrie was able to compile a data set which disclosed the number of years over which a student had incurred debt, and the amount of debt accrued at the date of consolidation, both by students with a disability and students without a disability.
[195] Ms. Furrie found that 24% of students with disabilities had debts accruing over five years or more at the date of consolidation, compared with 16.6% of students without a disability. Similarly, she found that students who had accrued debt over only a single year at consolidation comprised a larger proportion of students without disabilities (38%) than students with disabilities (23.5%) (Ms. Furrie’s 2016 affidavit, at para. 38).
[196] On the basis of this analysis, Ms. Furrie determined that students with disabilities are more likely to take longer to complete their studies than students without disabilities, and accrue more debt on average as a result of taking longer.
[197] While the length of study led to the accrual of additional debt, Ms. Furrie found that the average annual debt of students with disabilities actually was lower than students without a disability.
[198] In her 2013 affidavit, Ms. Furrie found that in two of the three years she analyzed, the average debt load of students without disabilities was higher than for students with disabilities. In her 2016 affidavit, using the median debt load rather than average debt load, Ms. Furrie found that in all of the three years she analyzed, the median debt for students without disabilities was higher than for students with disabilities.
[199] In other words, if students with disabilities completed their postsecondary education in the same timeframe as students without disabilities, Ms. Furrie’s finding suggests the overall level of debt of students with disabilities could be lower than students without disabilities. The explanation for this differential would appear to be the impact of CSLP grants to students with disabilities which are not available to students without disabilities.
[200] Notwithstanding CSLP grants to students with disabilities, the result of students with disabilities taking longer to complete postsecondary studies is the accrual of additional debt. Ms. Furrie concluded, “…it is my opinion that the CSLP shows that for the three fiscal years examined, SWD [students with disabilities] accrue more debt because of their disability…” (Ms. Furrie’s 2016 affidavit, at para. 55).
[201] In November 2017, Ms. Furrie provided a further affidavit analyzing the findings of the 2012 “Canadian Survey on Disability,” which included a question dealing specifically with students with disabilities taking longer in their education because of a disability.
[202] Ms. Furrie acknowledged the limitations of this survey for purposes of findings about the CSLP, including difference between the medical definition of disability in the CSLP data and the self-identification by individuals living a disability in the “Canadian Survey on Disability.”
[203] In reporting on the findings of the “Canadian Survey on Disability,” Ms. Furrie stated:
Just over one in three (34.4%) of PWD-S [population with disabilities during schooling] reported that it took them longer to achieve their current level of education and this percentage increased as severity of disability increased – from one in four (24.9%) among PWD-S with a mild disability to almost one in two – 44% among individuals with a severe disability and 46.8% among those with a very severe disability.
(Ms. Furrie’s 2017 affidavit, at para. 39)
[204] Relying on the data set compiled by Ms. Furrie, Mr. Alex Usher, an expert on postsecondary education and President of Higher Education Strategy Associates, provided an affidavit in 2013 which focused on the implications of these data. He analyzed several scenarios, including the impact of students with disabilities taking longer.
[205] Mr. Usher concluded, “[A] student with disabilities who takes longer to complete his or her studies by reason of disability may accumulate more debt than a student without disabilities or a student with disabilities who does not take longer to complete his/her studies. In other words, there is no structural cap on the total level of debt that can be accumulated by SWD (longer) in the CSLP.” (Mr. Usher’s 2013 affidavit, at para. 32)
[206] Dr. David Lewis, a consultant with expertise in public policy analysis and risk analysis, provided a 2013 affidavit examining the economic impact of the “time in study” structure of the CSLP, and the potential benefits of a “per program” structure.
[207] Relying on the statistical data contained in Ms. Furrie’s 2013 affidavit, Dr. Lewis found that, “a structural barrier to post-secondary education exists in the form of higher debt burdens for students with disabilities who require longer to complete certain categories of post -secondary education.” (Dr. Lewis’ 2013 affidavit, at para. 12)
[208] Ms. Simpson also relies on the evidence Dr. Anthony Chambers, then Assistant Professor and Program Coordinator with the Higher Education Program, Director for the Centre for the Study of Students in Postsecondary Education Theory and Policy Studies at OISE.
[209] Dr. Chambers referred in his 2010 affidavit to a study he co-authored entitled, “Assessment of Debt Load and Financial Barriers Affecting Students with Disabilities in Canadian Post-Secondary Education” which was later published by the Ontario Higher Education Quality Council in 2011.
[210] In that study, Dr. Chambers concluded that students with disabilities take a longer time to complete their educational certification. The study also found that 60% of students with disabilities stated that financial barriers would influence the completion of their students, while 39% changed their educational pursuit due to financial barriers and a further 26% decided not to pursue postgraduate education as a result of debt incurred in a first degree. Dr. Chambers stated,
Students with disabilities who are pursuing post secondary education have faced significant barriers. Many of these barriers are unique challenges to students with disabilities that compound any financial and educational barriers faced by students without disabilities. These barriers include: lack of access to services; requiring assistive aids and physical environmental accommodations; requiring increased time to complete study programs; inability to access work in certain jobs; expenses incurred for evaluating one's disability to qualify for specific disability resources and services; social and educational stigmas; limited employment opportunities; and costs of assistive aids, medication, and services.
(Dr. Chamber’s affidavit, at para. 15)
[211] Ms. Simpson also relies on evidence specific to the community identifying as hearing disabled. According to the 2007 affidavit of Gary Malkowski, then the Special Advisor to the President, Public Affairs at The Canadian Hearing. Mr. Malkowski addressed the participation of hearing disabled individuals in postsecondary education in Ontario. He stated that, “The percentage of deaf, deafened and hard of hearing Ontarians with a post-secondary degree or certificate is less than half (17%) of the Ontario average (42%) …This figure is reduced to 13% amongst those who are profoundly deaf.” (Mr. Malkowski’s affidavit, at para. 9)
[212] Ms. Simpson’s evidence, however, is not only based on statistical data.
[213] Ms. Simpson relies on the June 2007 affidavit of Julia Munk, a Disability Issues Consultant, who was then the Coordinator for the University of Toronto Access Centre and a consultant for the National Education Association of Disabled Students. She gave evidence as to the importance of post-secondary education on both an individual and community level.
[214] Ms. Munk stated (at para. 20), “Unfortunately, government student loan programs have not, in their foundation, recognized the unique position of students with disabilities, and have therefore implemented a system which perpetuates the financial barriers they face. Understanding the lived experiences of people with disabilities is essential to eliminating discrimination to this silenced minority.”
[215] Similarly, Dr. Melanie Panitch, a Professor at Ryerson University who served as co-Director of Institute for Disability Studies Research and Education at the time of her 2007 affidavit, gave evidence as to the impact on the health of students with disabilities who must take longer (and, on average, start postsecondary education later than peers with disabilities). Dr. Panitch stated in her affidavit,
I know of students who are over-extending themselves, taking more courses than they are able to handle, only to be able to qualify for OSAP interest-relief and to qualify for both Ontario and Federal student loans (part-time students are only eligible for Federal assistance). By over-extending, I mean they jeopardize their health or their academic accomplishment or both.
(Dr. Panitch’s 2007 affidavit, at para. 14)
Canada’s evidence
[216] Much of Canada’s expert evidence, including the 2007 affidavit of Ms. Rosaline Frith, then Director General of the CSLP, the 2012 affidavit of Mr. Marc Lebrun, then Director General for Program Policy & Accountability, Canada Student Loans Program, Human Resources and Skills Development Canada, and the 2016 affidavit of Dr. Atiq Rahman, then Senior Director of the Canada Student Loans Program, Employment and Social Development Canada, outline in detail the various stages of the CSLP loan cycle, and the evolution of the various programs under the CSLP which address the needs of students generally.
[217] Dr. Rahman provided the following snapshot of the CSLP:
Since its inception in 1964, the CSLP has provided over $46 billion in student loans to more than 5.1 million students, and since 1995, the CSLP has provided approximately $2.4 million in non-repayable grants totaling over $4.4 billion. As of the end of March 2014, the total value of outstanding loans (including students in-study and in-repayment) in the CSLP student loan portfolio was $15. 7 billion. (footnotes omitted)
(Dr. Rahman’s affidavit, at para 22)
[218] Among other conclusions, Canada argues this evidence establishes that pathways through postsecondary education for all students, including students with disabilities, are complex and do not follow uniform patterns.
[219] Dr. Rahman also outlines grants and programs which address the needs of students with disabilities specifically.
Students with disabilities face many barriers to post-secondary education, including exceptional costs associated with their disabilities. Such students sometimes take longer to complete their studies and may experience difficulty acquiring employment. To promote inclusion in post-secondary education of students with permanent disabilities, the CSLP offers provisions to accommodate disabled students in addition to targeted CSGs [Canada Student Grants].
(Dr. Rahman’s affidavit, at para. 52)
[220] The combined effect of these provisions and targeted grants is to reduce the annual average debt of students with disabilities relative to students without disabilities. For example, in the 2009-2010 loan year, the average annual student loan for full-time undergraduate students with a permanent disability studying in Canada was $4,232 compared to $5,116 for students without disabilities (Dr. Rahman’s affidavit, at para. 55).
[221] However, at the point in time when students enter the repayment phase, Dr. Rahman’s evidence is that students with permanent disabilities have a higher degree of debt than students without disabilities. For example, he stated that, according to CSLP administrative data, undergraduate students with permanent disabilities who began repaying their CSLs in 2009-2010 had an average loan balance of $18,676, which was 15% higher than that of undergraduate students without permanent disabilities (Dr. Rahman’s affidavit, at para. 90).
[222] More detail on the CSLP loan forgiveness program and policies was provided by Ms. Cynthia Carraro, a Program Manager for the CSLP in a 2007 affidavit. Ms. Carraro described the operation of the permanent disability benefit, under which qualified students may apply to have some or all of their loan indebtedness under the CSLP forgiven.
[223] Ms. Carraro stated that in the 2005 calendar year, 586 students with permanent disabilities received full or partial approval of the permanent disability benefit. For the years 2003 to 2007, approximately 44% to 50% of those students who completed a PDB application were granted full or partial loan forgiveness or cancellation, with the vast majority (in excess of 85%) of those granted the permanent disability benefit receiving full loan cancellation (Ms. Carraro’s affidavit, at para. 9).
[224] Dr. Rahman updates Ms. Carraro’s evidence and covers the transition from the permanent disability benefit to the RAP-PD program, described above, and the severe permanent disability benefit (“SPDB”) in 2009. Borrowers who are granted SPDB have their student loans immediately forgiven.
[225] According to Dr. Rahman, in the 2013-2014 loan year, 550 borrowers with an average loan value of approximately $15,000 had their loan obligations forgiven via the SPDB, resulting in over $8 million in loans being forgiven (Dr. Rahman’s affidavit, at para. 109).
[226] Beyond witnesses involved in the administration of the CSLP, Canada relies on the expert opinion of Dr. Ronald-Frans Melchers, a professor in the Department of Criminology at the University of Ottawa, with significant expertise in statistics and research methods. Dr. Melchers provided affidavits in this application in 2012, 2014, 2016 and 2018.
[227] Dr. Melchers’ opinion evidence is that the data, properly analyzed, shows that students with disabilities on the whole graduate with lower debt loads than students without disabilities. Additionally, Dr. Melchers concludes that the differences between students with disabilities and students without disabilities in their experience with the CSLP cannot be attributed solely to disability (but may be the result of many other differences, from differences in institutions of study, programs and field of study and so forth).
[228] Dr. Melchers states that with the exception of a small group of “outliers” who reach consolidation after 10 years or more, students without disabilities reached consolidation, on average, with higher debt levels than students with disabilities.
[229] According to Dr. Melchers, the CSLP data analyzed by Ms. Furrie reveals no evidence of any material differences between students with and without disabilities in terms of years of study or resulting student loan indebtedness.
[230] Canada also relies on the expert evidence of Professor Ross Finnie, of the University of Ottawa. Dr. Finnie, in his December 2014 affidavit, referred to a study he co-authored entitled, "Under-Represented Groups in Postsecondary Education in Ontario: Evidence from the Youth in Transition Survey'', published by the Higher Education Quality Council of Ontario in 2011
[231] In light of his research, Dr. Finnie stated that all students, and not just students with disabilities, are generally taking longer to complete their studies.
[232] Dr. Finnie also analyses another Statistics Canada study “Youth in Transitions Survey” to conclude that while students with disabilities are underrepresented in postsecondary education, it is reasonable to conclude that this is due to factors other than financial barriers. He concludes,
The main findings may be summarised as follows: there is an overall access gap faced by
students with disabilities, it is substantial, and it is in my opinion eminently worthy of focused research and policy attention. Furthermore, about half of that gap can be explained by the factors taken into account in the analysis, which includes the effect of family income. But despite the richness of the data employed, the remaining half of the access gap cannot be explained, and is thus related to other factors not captured in the analysis.
(Dr. Finnie’s affidavit, at para. 16)
Ontario’s evidence
[233] Ontario relies on the evidence of Mr. Jackson, then Director of the Student Branch at the Ontario Ministry of Training, Colleges and Universities. In his 2007 affidavit, Mr. Jackson presented a statistical breakdown of the students with disabilities receiving OSAP, and highlighted that the students with disabilities participating in postsecondary education had significantly increased during the period of Ms. Simpson’s studies at Gallaudet (1999-2007). These figures were updated in the affidavit of Ms. Donna Wall, then Manager of the Student Financial Assistance Program Unit in the Student Financial Assistance Branch at the Ministry of Training, Colleges and Universities, in her 2012 affidavit.
[234] Mr. Noah Morris, then Director of the OSAP Transformation Branch at the Ministry of Advanced Education and Skills Development, in affidavits provided in 2014 and 2016, provided a more recent statistical breakdown which updates the evidence of Mr. Jackson and Ms. Wall.
[235] Mr. Morris states that, as of 2014-2015, Ontario made $1.3 billion in funding available through OSAP. In this year, 59,421 postsecondary students self-identified as having a permanent disability, which comprised approximately 11.4% of the total full-time postsecondary enrolment in publicly-assisted postsecondary institutions in Ontario.
[236] Mr. Morris’ data reveals, for example, that over the three years prior to his 2016 affidavit (2013-14 to 2015-16), 77% of students who self-identify as having a permanent disability on their OSAP application are studying at 100% of a full course load, while 16% are taking between 60% and 100% of a full course load, and 7% are taking between 40% and 60% of a full course load (Mr. Morris’ 2016 affidavit, at para. 9).
[237] With respect to the growth in participation of students with disabilities in OSAP, Mr. Morris stated,
In summary, since 1999-00 the total number of all OSAP assistance recipients increased by 100%. However, the number of OSAP assistance recipients who self-identified as having a permanent disability increased by over 540%, representing an increasing proportion of OSAP assistance recipients (from 1.8% in 1999-00 to 7.2% in 2015-16).
(Mr. Morris’ 2016 affidavit, at para. 17)
[238] Mr. Morris states that the CSLP data analyzed by Ms. Furrie was inaccurate because that data contained only the federal loan portion of students with disabilities. Her evidence, in other words, should not be taken as a statement about the OSAP portion of the loans for students with disabilities. He states that Ontario’s various grant programs to students with disabilities significantly reduces the loan burdens of Ontario students receiving the CSLP, as well as tuition fee caps for students with disabilities at publicly assisted Universities, none of which were considered by Ms. Furrie.
Conclusions on the expert evidence
[239] For purposes of the first threshold test under s.15(1) of the Charter, I must consider whether the evidence in the record is sufficient to show that students with disabilities who take longer to complete postsecondary education accrue additional debt by virtue of the CSLP.
[240] I am presented with two respected lead experts, Ms. Furrie and Dr. Melchers, who reach opposite conclusions on a key question at issue in this application – do students with disabilities take longer to complete their postsecondary education and accrue more debt as a result than students without disabilities.
[241] Canada argues that Ms. Furrie lacks expertise in statistical analysis as her experience at Statistics Canada primarily lay in the area of survey design, and that her evidence should be discounted as a result. Further, Canada submits that Ms. Furrie’s links to the disability rights community, including sitting on the board of the ARCH Disability Law Centre, call into question her neutrality as an expert.
[242] Ms. Simpson argues that Dr. Melchers lacks expertise in data relating to people with disabilities, and that his evidence should be discounted as a result.
[243] I do not accept these arguments.
[244] I find both Ms. Furrie and Dr. Melchers to be respected, independent experts in fields relevant to the compiling and analysis of the statistical data at issue on this application.
[245] With respect to how this disagreement among experts should be resolved, the respondents rely on the treatment of expert evidence by the Federal Court of Appeal in Begum v. Canada (Minister of Citizenship and Immigration), 2018 FCA 181 (“Begum”).
[246] In Begum, the Federal Court of Appeal considered a challenge to s.133(1)(j) of the Immigration and Refugee Protection Regulations as violating ss. 7 and 15 of the Charter. That section required a certain minimum income for individuals seeking to act as a sponsor of an immigrant to Canada. After Ms. Begum’s application to sponsor her father was denied, she appealed the decision to the Immigration Appeal Division in conjunction with a constitutional challenge to the income requirements.
[247] The core of Ms. Begum’s claim was that the minimum income requirement discriminated against her as a racialized, disabled woman. She adduced expert evidence regarding the impact of race, disability, gender, and their intersection on both acquiring employment and acquiring income. Therefore, as someone with those characteristics, a government law requiring a certain amount of income to gain a benefit discriminated against her.
[248] The Federal Court of Appeal reviewed the expert evidence, although the Court did not compare the evidence of the competing experts per se. Overall, the Court was critical of Ms. Begum’s experts and upheld the finding that the evidence did not establish a valid s.15(1) claim. For the Court, de Montigny J.A. held, at para. 80,
While the evidence clearly documents the socio-economic disadvantages faced by women, people with disabilities, and members of racialized communities, and demonstrates the importance of family to those disadvantaged groups to ensure their full participation in Canadian society, I see no reason to interfere with the IAD’s determination that it was too indirect and generic to support a claim that an increased MNI negatively impacts the appellant or the groups to which she belongs. As the Supreme Court stated in Withler at para. 64, claimants seeking to establish that a law is indirectly discriminatory will have “more work to do” at the first stage of the subsection 15(1) test. General statistical evidence that is only tangentially related to the particular context of the claim will not be sufficient to establish an adverse effect; the evidence “must amount to more than a web of instinct” (Taypotat at para. 34).
At the end of the day, it is the adverse effects that are caused or contributed to by an impugned provision that must be the focus of the analysis, not the social and economic circumstances that exist independently of such a provision (see Withler at para. 39). Otherwise, any fee increase for public services provided by the state, for example, would be inherently suspect and presumptively run afoul of section 15 equality rights when applied to economically disadvantaged groups; yet, economic status or poverty is not a characteristic considered to be immutable or changeable only at unacceptable cost to personal identity (see, for e.g., Toussaint v. Canada (Attorney General), 2011 FCA 146, [2013] 1 F.C.R. 3 at para. 59, leave to appeal to SCC denied, 34336 (November 3, 2011). This is why an impugned measure will create an impermissible distinction only if it can be established, as a fact, that it disproportionately impacts a group of persons who share one or more enumerated or analogous characteristics. (Emphasis added.)
[249] In my view, a similar approach is appropriate in this case.
[250] The respondents argue that the Ms. Simpson has not met her onus to show a distinction in the operation of the CSLP based on disability. The respondents’ position is that the evidence presented by Ms. Simpson on this application amounts to no more than “a web of instinct.”
[251] Before addressing the statistical and expert evidence in this case, I also highlight the caution set out by the Supreme Court in Fraser with respect to what must be established at this stage of the s.15(1) test, “Both evidence of statistical disparity and of broader group disadvantage may demonstrate disproportionate impact; but neither is mandatory and their significance will vary depending on the case.” (at para. 67)
[252] Bearing this caution in mind, I find that the data presented by Ms. Furrie, on which other experts for Ms. Simpson based their opinions, amounts to far more than a “web of instinct.”
[253] I appreciate the limitations of the data and the limitations of what can be inferred from it as set out in Dr. Melchers’ affidavits, and the affidavits of other experts on behalf of the respondents. I also appreciate the risk in drawing conclusions from statistical data that now may be out of date (especially in light of the many changes to the CSLP over the years of this litigation).
[254] The data compiled by Ms. Furrie is not a perfect fit to prove that students with disabilities take longer to complete postsecondary studies. Perfection, however, is not the standard that Ms. Simpson must meet.
[255] The CSLP data on which Ms. Furrie’s evidence tracked the length of time students had been receiving CSLP loans at the time of consolidation. She relies on these data to conclude that on average, students with disabilities take longer and accrue more debt under the CSLP than students without disabilities.
[256] Ms. Furrie acknowledged that students with disabilities on average accrue annual debt that is lower than that of students without disabilities. She acknowledged that this statistical data does not track the length of time any student spends in postsecondary education as a whole, or whether they even complete their postsecondary education, among other limitations with the data.
[257] I also accept that the absence of data specific to the experience of CSLP recipients in Ontario prevented Ms. Furrie from presenting a full and complete statistical picture of students with disabilities who take longer in the context of specific OSAP grants, policies and programs.
[258] However, it is not necessary for Ms. Simpson to establish that every student with a disability takes longer or that the majority of students who take longer have a disability. Rather, it is sufficient for Ms. Simpson to show that she is part of a group of students who take longer to complete their postsecondary education as a consequence of their disability, and that some of these students experience an added burden through the operation of the CSLP as a consequence of their disability.
[259] In my view, in light of the evidence in the record, Ms. Simpson has met the evidentiary burden under the first part of the s.15(1) test by virtue of Ms. Furrie’s statistical analysis and the other expert witness opinions and studies on which she relies.
[260] This finding should not be taken as rejecting all of the evidence of Dr. Melchers and other respondent expert witnesses. On the key question of whether students with disabilities take longer and accrue more debt under the CSLP, however, I find Ms. Furrie’s analysis is more persuasive.
[261] For example, Dr. Melchers takes issue with the distorting effects of the “outliers” included in Ms. Furrie’s data set, which include students with disabilities who take much longer in their postsecondary education (i.e. more than 10 years at the date of consolidation). Dr. Melchers states that,
Only for the extreme outlier group consolidating after ten or more years of student loans is there greater indebtedness ($4,328, $983 and $2,760 respectively in each of the three years of data) on the part of students with disabilities. However this group numbers only 58, 53 and 39 individuals respectively in each of the three years of data. Notwithstanding the small size of this group, the increasing level of indebtedness that accompanies more years to consolidation has an "outlier effect" on averages …
(Dr. Melcher’s 2016 affidavit, at para. 20)
[262] While it may have a basis in statistical methodology, I find the characterization of some students with disabilities as “outliers” in this evidence to be inconsistent with the purpose of the s.15(1) analysis, which includes a consideration of the social and economic context of students with disabilities. The lived experience of every student with a disability is relevant to this analysis.
[263] Notwithstanding these limitations, I find there is sufficient evidence in the record to support Ms. Simpson’s claim that many students with disabilities take longer, and that many of those students with disabilities who take longer accrue greater debt under the CSLP than students without disabilities.
[264] I emphasize that I have reached this conclusion not only on the basis of Ms. Simpson’s evidence but also in light of evidence from the respondents.
[265] The respondent Canada’s witness, Ms. Rosaline Frith, stated in her 2007 affidavit that in the consolidation years 2005-2006 and 2006-2007, the average indebtedness under the federal portion of the CSLP for students with disabilities who completed an undergraduate degree was approximately $3,651 more than students without disabilities (Ms. Frith’s affidavit, at para. 47).
[266] This disparity was confirmed in subsequent years by Dr. Rahman. In 2013-2014, undergraduate borrowers with permanent disabilities who began repaying their loans had an average loan balance that was 5% higher than those without permanent disabilities. though he stated that the gap had narrowed since the period Ms. Frith had reviewed (Dr. Rahman’s affidavit, at para. 90).
[267] Another of Canada’s witnesses, Dr. Finnie, stated that there are more disabled students than non-disabled students who are still in school, rather than already graduated, four years after entering postsecondary education (Dr. Finnie’s affidavit, at para. 40).
[268] I have viewed the evidence in this case in the context of the programs and policies developed to address the needs of students with disabilities. These ameliorative programs reflect a recognition that the experiences of students with disabilities, and their financial barriers, are distinct.
[269] For example, when the federal government introduced the RAP-PD program in 2009, described above, it stated in the Regulatory Impact Analysis Statement accompanying the introduction of this new measure that, “Many students with disabilities take a longer amount of time than students without disabilities to complete their postsecondary education and are generally less able to generate funds to finance their education.” (Canada Gazette, Part II Official Regulations, vol. 143, no. 17, August 19, 2009)
[270] I also have considered other contextual factors specific to Ms. Simpson’s experience with the CSLP.
[271] For example, Canada highlights that in Ms. Simpson’s case, Gallaudet’s tuition and its specific policy on students taking leave are significant reasons for Ms. Simpson’s higher debt level due to the time she took off from Gallaudet.
[272] The policies and decisions of particular postsecondary institutions clearly play a role in each individual student’s circumstance, including tuition levels, which may vary significantly. However, in this case, while Gallaudet made Ms. Simpson’s course of study more expensive, the operation of the CSLP led Ms. Simpson to accrue additional debt as a result of taking longer to complete her postsecondary education.
[273] Taking the evidence as a whole, to summarize, I find that Ms. Simpson has established that many students with disabilities take longer to complete their postsecondary studies than students without disabilities, and that the operation of the CSLP imposes a burden of additional debt on those students with disabilities who take longer.
[274] Therefore, I find the evidence on which Ms. Simpson relies, and her own experience with the operation of the CSLP, satisfies the first threshold of the s.15(1) test.
Is this distinction discriminatory in that it fails to respond to the needs of the claimant group but instead perpetuates their existing disadvantage?
[275] With respect to the second step in the s.15 analysis, Ms. Simpson must show that the distinction in the CSLP’s treatment of students with disabilities who take longer to complete postsecondary studies is discriminatory.
[276] Prejudice and stereotyping need not be proven in order to establish that a distinction is discriminatory. Ms. Simpson relies on Justice Abella’s reasons in Quebec v. A., 2013 SCC 5, at para. 332 (dissenting in the result):
The root of s. 15 is our awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should be curtailed. If the state conduct widens the gap between the historically disadvantaged group and the rest of society rather than narrowing it, then it is discriminatory.
[277] In Fraser, Abella J. confirmed 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, at para. 76, 81:
[76] This brings us to the second step of the s. 15 test: whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage (Alliance, at para. 25). 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 (Quebec v. A, at para. 331, quoting Withler, at para. 66). 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 (Sheppard (2010), at pp. 62‑63 (emphasis deleted)).
[81] In sum, then, the first stage of the s. 15 test is about establishing that the law imposes differential treatment based on protected grounds, either explicitly or through adverse impact. At the second stage, the Court asks whether it has the effect of reinforcing, perpetuating, or exacerbating disadvantage (Alliance, at para. 25).
[278] Ms. Simpson relies on a series of human rights decisions where discrimination was found in circumstances analogous to her situation. In Canadian Transportation Agency's decision No. 6-AT-A-2008 (“Norman”), the Canadian Transportation Agency (“CTA”) found that charging for travel on a per-seat basis rather than a per-trip basis was discriminatory against those who, by reason of their disability, required more than one seat. This finding was upheld in Air Canada, Jazz Air LP v. Canada (Canadian Transportation Agency), 2008 FCA 168, with leave to appeal to the Supreme Court of Canada denied; Air Canada, Jazz Air LP, as represented by its general partner, Jazz Air Holdings GP Inc., carrying on business as Air Canada Jazz and West Jet v. Canadian Transportation Agency, Estate of Eric Norman, Joanne Neubauer and Council of Canadians with Disabilities, 2008 CanLII 60665 (SCC).
[279] Just as the CTA found in Norman that one fare should equal one trip (and not simply one seat), so Ms. Simpson argues that student loans should be allocated based on one academic program, and not simply one year of study in a program.
[280] The respondents take issue with Ms. Simpson’s reliance on human rights cases, as opposed to s.15(1) case law.
[281] While there are different tests for justifying human rights violations and Charter breaches under s.1 of the Charter. the Supreme Court held as far back as Andrews v. Law Society (British Columbia), 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at p.145, that, “the principles applied under the Human Rights Acts are equally applicable to questions of discrimination under s. 15(1).” The close connection between human rights and s.15(1) adverse effects case law was further highlighted by the majority in Fraser, at paras. 37-40.
[282] I do not accept that the Norman analogy is applicable to the context of students seeking financial assistance to pursue postsecondary education generally. While passengers on a plane know the destination on the ticket they have purchased, students often do not know their future plans and circumstances when they apply for financial assistance. They may and often do switch programs, institutions or withdraw from their studies.
[283] Ms. Simpson’s case more closely resembles Norman. She sought financial assistance to complete her undergraduate and graduate studies at Gallaudet. She took longer to complete her studies due in part to her disabilities, and accrued more debt under the CSLP as a result. Had she received financial assistance on a “per program” basis rather than a “time in study” basis, she would have accrued no more debt than students without disabilities.
[284] The question in this application, however, is not whether a student loan gives students a “ticket” to support them throughout a particular postsecondary program, but rather whether the “time in study” structure of the CSLP gives rise to adverse effects for students with disabilities who take longer.
[285] Ms. Simpson submits that she has experienced such adverse effects on this basis (at para. 132 of her factum):
The distinction identified above result in differential treatment for students with disabilities who take longer to complete their studies because of their disability… This treatment has a profound and negative impact upon students with disabilities. For example, Ms. Simpson accrued approximately $76,550 in debt – significantly more than she would have accrued had she not needed to take longer due to her disability.
[286] While the respondents do not take issue with the fact that Ms. Simpson accrued additional debt by taking longer to complete her postsecondary education, they argue the CSLP scheme as a whole must be considered in light of its ameliorative purpose.
[287] Ontario submits that the Supreme Court has recognized “contextual factors” that are to be taken into account in assessing substantive discrimination, relying on Law v. Canada, 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 at paras. 53 and 64 and 72 to 73; Withler, at paras. 37-40, 66-67, 71; and Moore v. British Columbia (Education), 2012 SCC 61, at para. 68.
[288] One contextual factor is whether the impugned law or policy is designed to ameliorate conditions of disadvantaged groups by responding to their greater needs. A second contextual factor is whether the law or policy takes into account a person’s individual merits, capacities and circumstances.
[289] According to Ontario, the impugned OSAP policies require the Ministry to take into account the social and historical disadvantage experienced by students with disabilities. Rather than discounting the experience, it is given appropriate weight in financial assistance assessments and the policies enable each student to receive the financial assistance they need to continue their studies. In this manner, a student’s particular merits, capacities and circumstances are taken into account in the design and operation of OSAP.
[290] Ontario argues that OSAP is an ameliorative program designed to counter historical and social disadvantage. Accordingly, it is the antithesis of discrimination or stereotyping.
[291] I accept that to the extent the CSLP perpetuates the disadvantage of students with disabilities, this is not related to stereotyping of any kind. As set out above, however, it is not necessary to demonstrate distinctions which perpetuate disadvantage are based on stereotypes (see also Fraser, at para. 78).
[292] I accept the respondents’ evidence that the participation of students with disabilities in postsecondary education is growing. The rate of increase and impact on OSAP disbursements has been highlighted by Mr. Jackson, Ms. Wall and Mr. Morris on behalf of Ontario.
[293] This trend was also noted by Dr. Melanie Panitch in her affidavit evidence on behalf of Ms. Simpson. Dr. Panitch emphasized, however, that this trend is occurring in the context of enduring disadvantage and underrepresentation in postsecondary education.
[294] While these figures are not in dispute, the fact that a group underrepresented in postsecondary education is or has been overcoming a range of barriers does not mean financial barriers do not continue to have adverse consequences or constitute disadvantage for the purposes of the s.15(1) analysis.
[295] Additionally, in Fraser, the majority affirmed that an ameliorative purpose cannot shield a law or scheme from s.15(1) scrutiny; see Fraser, at paras. 69, 78.
[296] However, the fact that an ameliorative program does not entirely meet the needs of a protected group does not lead to the conclusion that the program perpetuates disadvantage.
[297] It is clear that perfect correspondence between a benefit program and the needs of the applicant is not required to show that a law or measure does not discriminate. As McLachlin C.J. and Abella J., writing for the Court, stated in Withler, at para. 67:
In cases involving a pension benefits program such as this case, the contextual inquiry at the second step of the s. 15(1) analysis will typically focus on the purpose of the provision that is alleged to discriminate, viewed in the broader context of the scheme as a whole. Whom did the legislature intend to benefit and why? In determining whether the distinction perpetuates prejudice or stereotypes a particular group, the court will take into account the fact that such programs are designed to benefit a number of different groups and necessarily draw lines on factors like age. It will ask whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme. Perfect correspondence between a benefit program and the actual needs and circumstances of the applicant group is not required. Allocation of resources and particular policy goals that the legislature may be seeking to achieve may also be considered. (Emphasis added.)
[298] Because “perfect correspondence” is not required, governments are not under a duty to customize benefits programs to the precise needs of individual recipients. As McLachlin C.J. explained in Gosselin v. Quebec, 2002 SCC 84, at para. 55:
Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required to find that a challenged provision does not violate the Canadian Charter... the inability of a given social program to meet the needs of each and every individual does not permit us to conclude that the program failed to correspond to the actual needs and circumstances of the affected group. … No matter what measures the government adopts, there will always be some individuals for whom a different set of measures might have been preferable. The fact that some people may fall through a program's cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected, or that distinctions contained in the law amount to discrimination in the substantive sense intended by s. 15(1).
[299] There is an important difference, however, between the age-based bright line distinction in Gosselin and the individualized assessments at issue in this case. These individualized assessments by federal and provincial decision-makers can be tailored to individual needs and circumstances of students with disabilities through the operation of the CSLP.
[300] As Ms. Simpson observed in her reply factum (at para. 33): “[T]he CSLP explicitly involves individualized assessment of the needs of each student … Disability by nature is highly variable, and social programs like the CSLP that aim to provide enhanced benefits to the disabled necessarily require individualized assessments in order to respond to the needs of the population.”
[301] In light of the CSLP’s consideration of each student’s merits, capacities and circumstances, can it be said that the CSLP perpetuate disadvantage, as argued by Ms. Simpson?
[302] Canada submits that Ms. Simpson is seeking through this application to transform the CSLP into a different program than the one Parliament and the Ontario legislature have chosen to establish by requiring financial assistance to be provided on a “per-program” basis rather than the “time in study” basis.
[303] Canada argues that Ms. Simpson wishes to assert a positive right under s.15(1) to a “per-program” structure for financial assistance under the CSLP, so that the debt between students with disabilities who take longer and students without disabilities would be equalized.
[304] Further, Canada points out that financial assistance on a “per-program” basis could in fact disadvantage students with disabilities who take longer, as they may run out of funds before being able to complete their program. Canada argues that the CSLP does not purport to ensure that all grant and loan recipients will receive postsecondary education at a similar cost but rather provides financial assistance in defraying those costs.
[305] Canada relies on the Supreme Court’s decision in Auton v. British Columbia, 2004 SCC 78 (“Auton”). In Auton, the Supreme Court held that a benefit scheme that did not guarantee funding for all medically necessary services did not violate s.15 of the Charter as it was open to the legislature to target specific services in a benefits program, provided it did not do so in a discriminatory fashion.
[306] Canada argues that the CSLP provides specific grants and loans to defray the cost of postsecondary education, but does not guarantee that expenses incurred by students will be equivalent.
[307] Consequently, Canada’s position is that the CSLP does not deny a benefit or impose a burden on the applicant that is offered to or not imposed on others. Rather, the benefits in this case – grants and loans – are made available by law to all students in order to assist with the costs associated with postsecondary education.
[308] I do not accept the characterization of Ms. Simpson’s argument as a positive rights’ claim.
[309] Ms. Simpson is seeking to avoid the burden of additional debt which resulted from her being a student with a disability who took longer to complete her postsecondary education due to her disabilities.
[310] The key distinction in this case is whether the impugned legislation establishing the CSLP imposed this burden, or whether the operation of the CSLP did so, including decisions taken under the various programs, policies and discretionary authority by which the CSLP is administered by both respondent levels of government.
[311] Turning to the distinction between whether the impugned laws establishing the CSLP are discriminatory, or whether the operation of the CSLP is discriminatory, or both, I start with the recognition that Ms. Simpson does not need to show that the CSLP operates in the same way with the same adverse effects for all affected students with disability in order to show that the CSLP is discriminatory.
[312] As Abella J. confirmed in Fraser, at para. 72, “claimants need not show that the criteria, characteristics or other factors used in the impugned law affect all members of a protected group in the same way.”
[313] In Fraser, the Court considered a job-sharing program which in every case resulted in the exclusion of participants in the program from being able to access certain pension benefits.
[314] In this case, in contrast to Fraser, the CSLP includes programs, policies and discretionary authority which may redress burdens of additional debt for students with disabilities who take longer.
[315] Some aspects of the operation of the CSLP which may redress the adverse impacts of the “time in study” structure of the loans operate by way of entitlement and flow from being recognized as a recipient of CSLP loans who has a permanent disability or serious permanent disability. Other significant aspects are discretionary, and a student borrower must specifically apply for this relief.
[316] The question of whether the operation of the CSLP could redress Ms. Simpson’s burden was addressed in correspondence with CSLP representatives prior to the launch of this application.
[317] In April 14, 2004, David Cogliati, the Director General of the CSLP wrote to counsel for Ms. Simpson to address Ms. Simpson’s complaint over having to accrue additional debt for her period of leave from Gallaudet:
The Canada Student Loans Program (CSLP) currently does have a provision which allows for consideration to be given to the situation of individuals who are permanently disabled and who are experiencing difficulty in meeting their repayment obligations. A borrower who meets the definition of permanent disability under the Program's legislation may apply for the Permanent Disability Benefit. For risk-shared and direct Canada Student Loans, the disability must have occurred within or before the six-month grace period ends, following completion of studies. If financial hardship is demonstrated, it may be possible to cancel Canada Student Loan repayment obligations in this situation.
As you may know, there are other support measures available to students with permanent disabilities, including Canada Study Grants to assist individuals with special financial needs, through the provision of non-repayable financial assistance. Students with permanent disabilities and high financial need may receive Canada Study Grants to support the costs of their study programs. Proposed changes, recently announced in the Federal Budget, will enhance this benefit by allowing access to grant money up-front, rather than as a supplement for those who receive maximum loan support.
[318] On November 10, 2006, Ms. Frith, who had taken over as Director General, wrote to counsel for Ms. Simpson in light of follow up inquiries, and emphasized that while the CSLP had no policy to address Ms. Simpson’s situation in the debt accrual period, it may have such policies in the repayment assistance period:
I understand that Ms. Simpson was placed in an over-award situation for her student loans upon her early withdrawal from studies in 2001. As indicated in our previous correspondence of April 2004, the student loan over-award policy has been amended to accommodate special circumstances such as those of Ms. Simpson. Once it is determined that a student has withdrawn from studies for serious medical reasons, there is no requirement that student loan monies be recovered via a deduction from subsequent Canada Student Loan assessments.
Unfortunately, there are no provisions which would allow for the forgiveness of this portion of Ms. Simpson's student loan debt as you have requested. Upon receiving loans, borrowers sign agreements acknowledging their indebtedness under the CSLP which specify the repayment obligations. There are no provisions which link repayment to the outcome of study programs.
Finally, in the repayment period, persons with disabilities can apply for the Permanent
Disability Benefit (PDB). Because Ms. Simpson is still in study, it is premature for us to
consider your request. She will, however, be able to apply for PDB once she completes
her studies and the CSLP can assess her request at the appropriate time.
[319] Neither letter from the CSLP precluded redressing Ms. Simpson’s accrual of additional debt as a result of taking longer to complete her studies. Rather, the letters state that such redress could be available in the repayment period.
[320] In the repayment period, Ms. Simpson applied for and was eventually approved for the RAP-PD program resulting in five different six-month deferral periods between 2012-2019. Over this period, Ms. Simpson paid $4,587.38 towards her debt obligations while Canada contributed $18,179.11 and Ontario contributed $6,080.22.
[321] Additionally, Ms. Simpson applied for and received a revision of terms in 2019 extending the term of her remaining payments over a 52-month period.
[322] Canada also pointed out that Ms. Simpson could have applied for interest relief during her leave from Gallaudet in 2001 and had been advised that she was pre-screened for this program. Ultimately, she did not apply for interest relief at that time.
[323] The fact that some students with disabilities who take longer apply for and receive various kinds of repayment assistance, or fail to apply for certain kinds of assistance even though they may be eligible, underscores the variable experience each student may have with the operation of the CSLP.
[324] The evidence of how much Canada and Ontario disbursed to students through programs designed to redress the loan liabilities of students with disabilities under the CSLP is not in dispute. For example, in 2010, Ontario added a severe permanent disability benefit under which an Ontario student loan may be forgiven if the borrower has satisfied the Minister that by reason of the severe disability, the borrower is unable to repay the loan and will never be able to do so. According to Mr. Morris’ evidence, between November 2010 to October 2016, Ontario forgave approximately $11.5 million in loans for around 1,700 borrowers under this program.
[325] However, it is impossible to know in which circumstances the CSLP has fully redressed the imposition of a burden on particular students with a disability of additional debt accrued as a result of taking longer to complete postsecondary education, or whether that burden, or some portion of it, remained with the student throughout the accrual, consolidation and the repayment periods in the loan cycle.
[326] While the programs, policies and discretionary authority evolved over time, I am satisfied that the CSLP has included sufficient authority for those administering the CSLP to redress the burden of additional debt, whether during the period of her postsecondary education, the period of consolidation and/or the subsequent loan repayment period.
[327] In my view, the question of whether the CSLP discriminates against students with disabilities who take longer, depends on how CSLP programs, policies and discretionary authority are administered.
[328] Ms. Simpson submits that such individual determinations do not alter the fact that the “time in study” structure of the CSLP itself lies at the root of the CSLP’s discriminatory adverse effects. According to Ms. Simpson, as long as students with disabilities who take longer accrue more debt as a result of this “time in study” structure, then the CSLP itself violates the s.15(1) rights of all members of the group of students with disabilities who take longer.
[329] Ms. Simpson argues that the Charter requires that the CSLP no longer be a “time in study” scheme of loans and grants, and instead should be a “per program” based program of financial assistance. Debt would be equalized under such a scheme because financial assistance would be tied to the degree program, not the number of years a student might take to complete the degree program.
[330] I do not accept that that the “time in study” structure of the CSLP itself violates s.15(1) of the Charter. As the Supreme Court has affirmed in several of the cases referenced above, the Charter does not mandate a particular mechanism of establishing a benefits program, nor does that program need to be tailored to the needs of beneficiaries of the program.
[331] Binnie J. addressed this issue in the context of a Charter challenge to a discretionary scheme under the Customs Act in Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, at para. 138 (“Little Sisters”): “In short, an importer's rights may be protected in fact by statute, regulation, ministerial direction or even departmental practice. What is crucial, at the end of the day, is that Charter rights are in fact respected. The modalities for achieving that objective will vary with the context. There is nothing unconstitutional about the option selected by Parliament in this case” (Emphasis added).
[332] A similar point was made by the Court in Eldridge, where the Court found the action by the provincial government which violated s.15(1) was failing to exercise the discretion it possessed under health care funding legislation to fund interpretation services for deaf patients. The legislation did not compel decision-makers to withhold funding for this service, and therefore the Court found that the legislation itself did not violate the Charter.
[333] I conclude that Ms. Simpson’s Charter rights can be respected within a “time in study” CSLP structure. The legislation and governmental agreements establishing the CSLP enables federal and provincial decision-makers to redress this burden in different ways at different stages of the loan-cycle.
[334] In other words, whether the CSLP operates in a discriminatory way depends on the administration of programs, policies and discretionary authority, at both levels of government, in response to the accrual of additional debt by students with disabilities who take longer to complete postsecondary studies. Neither the legislation creating the CSLP, nor the Harmonization Agreement between Canada and Ontario to jointly administer the CSLP require the CSLP to operate in a discriminatory way toward students with disabilities who take longer.
[335] Therefore, I find that the impugned statutory provisions which constitute the CSLP and the Harmonization Agreement do not perpetuate the disadvantage of students with disabilities and therefore are not discriminatory within the meaning of s.15(1).
[336] In Ms. Simpson’s case, despite her participation in some programs within the CSLP and OSAP designed to address the needs of students with disabilities who take longer, and some specific accommodations as a result of her settlement agreement with Ontario for the period ending in 2003, Ms. Simpson continues to repay CSLP loan obligations which have not been forgiven, and which were the result of her taking longer in her postsecondary program.
[337] In my view, Ms. Simpson has established that the operation of the CSLP drew a distinction based on her disability resulting in her taking longer to complete her postsecondary studies, and that by not redressing the adverse effects of this distinction through the operation of the CSLP, perpetuated her disadvantage as a person with disabilities.
[338] For these reasons, I find that Ms. Simpson’s s.15(1) equality rights have been infringed by the operation of the CSLP.
[339] I emphasize that the breach of Ms. Simpson’s s.15(1) rights flowed not from a single decision from a single decision-maker, but from the cumulative impact of the operation of the CSLP, including determinations made and policies applied at various stages of the loan-cycle by both respondent governments that could have, but did not, redress Ms. Simpson’s additional debt as a result of her taking longer to complete her postsecondary studies.
[340] I turn now to whether this infringement was a reasonable limit on Ms. Simpson’s s.15(1) rights under s.1 of the Charter.
Can this [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) violation be saved under [s.1](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the Charter?
[341] Section 1 of the Charter provides:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
[342] The s.1 framework under the Charter was set out in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at paras. 69-71. The Governments of Canada and Ontario must justify that,
a. The limit is prescribed by law;
b. The limit has a pressing and substantial objective; and
c. The limit is proportional, that is, there is:
i. A rational connection between the limit and the right being violated;
ii. Minimal impairment of the right infringed; and
iii. The salutary and deleterious effects are proportionate.
[343] The Supreme Court has held that a high degree of deference is warranted where a limit relates to the distribution of scarce public resources or a complex regulatory response to a social problem; Canada (A.G.) v. JTI-MacDonald Corp., 2007 SCC 30, at paras. 41-43.
Is the CSLP prescribed by law?
[344] All parties agree that the limit in this case is “prescribed by law.” This is so whether one views this Charter challenge narrowly as the impugned legislation and regulation creating the CSLP or more broadly to include the operation of the CSLP and decision-making under the authority created by the legislation: see Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 50.
[345] I find that the operation of the CSLP is prescribed by law.
Does the CSLP have a pressing and substantial objective?
[346] Ms. Simpson acknowledges that, generally, the CSLP has a “pressing and substantial” objective, which is to provide financial assistance to Canadian students so as to facilitate greater participation in postsecondary study.
[347] Ms. Simpson takes issue with whether the “time in study” basis for providing the financial assistance advances a “pressing and substantial” objective.
[348] Both respondent governments argue that the CSLP promotes accessibility to post-secondary education for students, including students with disabilities, who require financial support to attend and continue postsecondary studies.
[349] I accept the respondents’ description of the CSLP’s objective.
[350] I find that the CSLP has a pressing and substantial objective and therefore meets the first threshold of the s.1 analysis.
Is there a rational connection between the additional burdens imposed by the operation of the CSLP on Ms. Simpson and the violation of her s.15(1) right?
[351] Canada argues that at the rational connection stage of the proportionality analysis, government need not prove that a measure will further a policy goal, but only that it is reasonable to suppose that a constitutional limit may do so, relying on Little Sisters, at para. 228.
[352] Ms. Simpson argues that the “time in study” basis for allocating financial assistance to students is not carefully designed to achieve the objective of the CSLP. In other words, allowing debt to accrue on a yearly basis is not rationally connected to the goal of increasing participation in postsecondary education.
[353] I find there is a rational connection between the operation of the CSLP and the objective of enhancing participation in postsecondary education, including enhancing Ms. Simpson’s participation in her postsecondary education.
Does the CSLP minimally impair Ms. Simpson’s [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?
[354] At the “minimal impairment” stage of the analysis, a Court must consider whether the Charter right at issue has been limited as little as necessary.
[355] As McLachlin J. (as she then was) stated in RJR-MacDonald Inc., 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 160:
The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement . . . .
[356] Canada submits that in the context of complex social policy programs, courts will show significant deference to the choices made by the legislature. In other words, the question is not what program design would infringe rights the least, but whether the program design chosen falls within a range of reasonable alternatives.
[357] In this case, the measure is not the design of the CSLP but rather its operation. As Binnie J. concluded in the context of minimal impairment in Little Sisters, at para. 151:
Parliament has given the executive the authority to put in place by regulation an administrative or institutional structure that would protect the expressive rights of the appellants and others. The problem here is not with the legislators but with the failure of those responsible to exercise the powers that they possess … to do the job effectively.
[358] In this case, it is apparent that those administering the CSLP had the policy and administrative tools under the CSLP to redress the additional debt Ms. Simpson accrued due to taking longer as a consequence of her medical treatment and due to her disability.
[359] In fact, in 2003, Ontario not only addressed the provincial component of Ms. Simpson’s accrual of additional debt due to taking a leave from Gallaudet for medical treatment, but also instituted a new policy to address the situation of other students with disabilities in Ms. Simpson’s position.
[360] I find that imposing and not redressing the additional debt burden on Ms. Simpson through the operation of the CSLP because she took longer to complete her postsecondary education due to her disabilities was not a reasonable option open to the respondent governments.
[361] Therefore, I find that the respondent governments of Canada and Ontario have not established that the limit on Ms. Simpson’s s.15(1) rights meet the minimal impairment component of the proportionality test under s.1.
Do the salutary effects of the CSLP outweigh the deleterious effects on Ms. Simpson?
[362] The final stage of the proportionality analysis requires a balancing of the positive effects of the measure with its negative impacts. The test at this stage involves a consideration of the benefits to society from the impugned CSLP policies against the actual harm caused to Ms. Simpson’s Charter rights.
[363] Ontario submits that Ms. Simpson received approximately $248,000 from Ontario to complete both her undergraduate and master’s degrees at Gallaudet University. Ontario argues that without this assistance, Ms. Simpson would not have been able to attend Gallaudet.
[364] Similarly, Canada argues that the CSLP has enabled generations of students to pursue postsecondary education who otherwise could not afford to do so.
[365] Ms. Simpson argues that any savings resulting from the implementation of a discriminatory student loan program are negated by the costs associated with barriers of entry to students with disabilities pursuing postsecondary education.
[366] I conclude that any salutary benefits arising from the infringing operation of the CSLP in relation to the additional accrual of debt by Ms. Simpson is outweighed by the deleterious impact of this burden on Ms. Simpson.
Conclusion on the s.1 analysis
[367] As a result of this s.1 analysis, I find the respondents have not demonstrated that the infringement on Ms. Simpson’s s.15(1) rights by the operation of the CSLP is a reasonable limit which can be justified under s.1 of the Charter.
[368] Therefore, I must turn to the appropriate remedy in light of the violation of Ms. Simpson’s s.15(1) rights.
What is the appropriate remedy?
[369] Ms. Simpson seeks both individual and systemic remedies.
[370] The systemic remedies include:
a. A declaration that the CSLP violates s.15 of the Charter insofar as it results in greater debt for students with disabilities who take longer to complete their program than their non-disabled peers in the same program;
b. A declaration that this violation is not justified by s.1 of the Charter;
c. Judicial oversight of the changes to the CSLP as a result of the above declarations, with this Court remaining seized; and
d. In the alternative, that direction be provided from this Court with respect to changes to the CSLP that are required as a result of the above declarations.
[371] As set out above, I find that the legislation creating the CSLP, including the Canada Student Financial Assistance Act, and the Canada Student Financial Assistance Regulations SOR/95-329, does not violate s.15 of the Charter.
[372] I also find no violation of s.15(1) in the “Canada-Ontario Agreement on Harmonization of Federal and Provincial Student Loans Programs.”
[373] Therefore, I find no remedy under s.52 of the Constitution Act, 1982, is applicable on this application.
[374] The relevant remedial provision for the finding of a breach of Ms. Simpson’s rights by the operation of the CSLP is s.24(1) of the Charter.
[375] Section 24(1) of the Charter provides,
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[376] With respect to the individual remedies under s.24(1) of the Charter, Ms. Simpson seeks:
a. $25,000 in Charter damages
b. A declaration that the debts arising from the discriminatory application of the CSLP are not binding on and therefore not payable by the applicant; and
c. The return of monies paid by Ms. Simpson pursuant to unconstitutional legislation including federal loan interest, the federal loan amount paid and the federal loan amount incurred to re-do her missed term at Gallaudet.
[377] I find that Ms. Simpson has not met the test to establish an entitlement to Charter damages, as recently restated in Conseil scolaire francophonie de la Colombie-Britannique et al v. British Columbia, 2020 SCC 13 (“Conseil scolaire francophonie”).
[378] Chief Justice Wagner, for the majority in Conseil scolaire francophonie, outlined the framework for deciding whether Charter damages are an appropriate remedy for a Charter breach, at para. 167:
In Ward, this Court explained the approach to be taken in order to determine whether an award of damages is an appropriate remedy for an infringement of the Charter. A brief review of that approach will help to situate the limited government immunity in its proper context. The first step identified in Ward is to establish a Charter infringement. The second is to determine whether damages would serve a useful function or purpose. The functions of compensation, vindication and deterrence can satisfy this requirement. At the third step, the government may raise its limited immunity to oppose a damages award by citing considerations such as the existence of alternative remedies and concerns for good governance. These are not the only possible considerations, as others may be identified over time. The fourth step is to determine the quantum of the damages.
[379] I do not find that Charter damages would serve a useful function or purpose in this context. This is not a setting where vindication or deterrence are necessary.
[380] In Conseil scolaire francophonie, the Court confirmed that, absent conduct that is “clearly wrong, in bad faith or an abuse of power”, damages may not be awarded under s. 24(1) (at para. 168).
[381] In this case, both Canada and Ontario have amended and reformed the CSLP over a number of years to add programs, policies and discretionary authority designed to meet the needs of students with disabilities, including measures implemented as a response to this litigation. While I have found Ms. Simpson’s s.15(1) were infringed by the operation of the CSLP, neither level of government has acted in bad faith.
[382] Therefore, I find Ms. Simpson is not entitled to Charter damages.
[383] I find Ms. Simpson is, however, entitled to the other individual remedies she seeks.
[384] A declaration shall issue that Ms. Simpson’s debts arising from the discriminatory application of the CSLP are not payable by Ms. Simpson.
[385] Further, Canada will be ordered to return of monies paid by Ms. Simpson pursuant to the unconstitutional operation of the CSLP in relation to her loan liabilities for taking longer to complete her postsecondary studies at Gallaudet, including federal loan amounts and federal loan interest.
[386] Ms. Simpson’s personal remedies are principally directed at Canada, though she clarified in her reply factum that she sought Charter damages against both respondents (at para. 46).
[387] Ms. Simpson does not seek relief against Ontario in the form of return of monies paid by Ms. Simpson pursuant to the unconstitutional operation of the Ontario portion of the CSLP for the period 1999-2003. Therefore, the order that Ontario return any monies paid by Ms. Simpson pursuant to the unconstitutional operation of the Ontario portion of the CSLP, applies only to the period between 2004 and the present.
[388] Given the highly individualized nature of the determinations made in the operation of the CSLP, I decline to issue a declaratory remedy that goes beyond the circumstances of Ms. Simpson.
[389] However, it is clearly not a satisfactory outcome to require students in a similar position to Ms. Simpson to bring individual Charter challenges in order to vindicate their equality rights.
[390] I have found that the “time in study” structure of the CSLP gives rise to a constitutional constraint on the respondent governments to operate the CSLP in ways that do not infringe the equality rights of students with disabilities who take longer and thereby accrue additional debt as a result of their disability.
[391] As elaborated above, there are already programs, policies and discretionary authority within the CSLP’s “time in study” structure by which federal and provincial decision-makers can redress the situation of students with disabilities who take longer at various stage of the loan cycle. In other words, the operation of the CSLP may reduce the additional accrual of debt by these students caused by taking longer, or may reduce or forgive the accrued indebtedness caused by taking longer, or may do both in varying measures over the loan cycle.
[392] However, the obligation falls to the governments of Canada and Ontario (as well as other affected provincial and territorial governments), and not the Court, to fashion appropriate and responsive administrative mechanisms to ensure that the operation of the CSLP redresses the adverse effects for others in Ms. Simpson’s situation, whether through existing programs, policies and discretionary authority, or through new measures.
[393] If the parties cannot agree on costs, Ms. Simpson may provide brief costs’ submissions (of no more than 5 pages, together with a bill of costs) by no later than November 20, 2020, with brief reply submissions from the respondents (which may be provided individually, or collectively, of no more than 5 pages combined) by no later than December 11, 2020.
[394] Finally, I am grateful to counsel for their focused and helpful submissions dealing with complex issues and a voluminous record.
__________________________ Sossin J.
Released: 2020-10-26