Granovsky v. Minister of Employment and Immigration, 2000 SCC 28

• Judge: L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 10, 1999
• Jurisdiction: Canada (Federal)
• Citations: 2000 SCC 28;(2000), 253 N.R. 329 (SCC);186 DLR (4th) 1;[2000] 1 SCR 703;50 CCEL (2d) 177;253 NR 329;74 CRR (2d) 1;JE 2000-1068;96 ACWS (3d) 1057;[2000] SCJ No 29 (QL);[2000] ACS no 29

Granovsky v. MEI (2000), 253 N.R. 329 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] N.R. TBEd. MY.005

Allan Granovsky (appellant) v. Minister of Employment and Immigration (respondent) and Council of Canadians with Disabilities (intervener)

(26615; 2000 SCC 28)

Indexed As: Granovsky v. Minister of Employment and Immigration

Supreme Court of Canada

L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.

May 18, 2000.

Summary:

In 1980, Granovsky injured his back at work. Thirteen years later, having been employed irregularly at various jobs in the interim, he applied for permanent disability under the Canada Pension Plan Act (CPP Act). The Minister refused his application because over the relevant 10-year period prior to the application, Granovsky failed to make the required CPP Act contributions. Granovsky appealed, arguing that the con­tributory requirements for disability benefits contained in the CPP Act discriminated against partially disabled individuals con­trary to s. 15(1) of the Charter.

The Federal Court of Appeal, McDonald, J.A., dissenting but concurring in the result, in a decision reported 225 N.R. 2, held that while the CPP Act infringed the rights pro­tected under s. 15(1), the infringe­ment was a reasonable limit that was dem­onstrably justified in a free and democratic society (Charter, s. 1). Granovsky appealed.

The Supreme Court of Canada dismissed the appeal holding that the CPP Act did not infringe the rights protected under s. 15(1). Therefore a s. 1 analysis was not required.

Civil Rights - Topic 960.1

Discrimination - Mental or physical dis­ability - General - The Supreme Court of Can­ada noted that when determining whether discrimination on the basis of disability had occurred under s. 15 of the Charter, while the "notions of impairment and functional limitation (real or per­ceived) are important considerations ... the primary focus is on the inappropriate legis­lative or administra­tive response (or lack thereof) of the state. Section 15(1) is ulti­mately concerned with human rights and dis­criminatory treatment, not with bio­medical conditions" - See paragraph 39.

Civil Rights - Topic 960.1

Discrimination - Mental or physical dis­ability - General - The Supreme Court of Canada stated that the "Charter is not a magic wand that can eliminate physical or mental impairments, nor is it expected to create the illusion of doing so. Nor can it alleviate or eliminate the functional limita­tions truly created by the impairment. What s. 15 of the Charter can do, and it is a role of immense importance, is address the way in which the state responds to people with disabilities. Section 15(1) en­sures that governments may not, inten­tional­ly or through a failure of appropriate accommodation, stigmatize the underlying physical or mental impairment, or attribute functional limitations to the individual that the underlying physical or mental impair­ment does not entail, or fail to recognize the added burdens which persons with dis­abilities may encounter in achieving self-fulfilment in a world relentlessly oriented to the able-bodies" - See para­graph 33.

Civil Rights - Topic 960.2

Discrimination - Mental or physical dis­ability - Disability defined - The Supreme Court of Canada, in discussing whether dis­crimination based on disability had occurred under s. 15(1) of the Charter, stated that the concept of disability must "accommodate a multiplicity of impair­ments, both physical and mental, overlaid on a range of functional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called 'disabled' individual may not be impaired or limited in any way at all. An appreciation of the common humanity that people with disabilities share with every­one else, and a belief that the qualities and aspirations we share are more important than our differences, are two of the driving forces of s. 15(1) equality rights" - See paragraphs 27 to 29.

Civil Rights - Topic 5500

Equality and protection of the law - Gen­eral - The Supreme Court of Canada re­viewed the basic principles relating to the purpose of s. 15(1) of the Charter and the proper approach to equality analysis - See paragraphs 25 to 42.

Civil Rights - Topic 5516

Equality and protection of the law - Tests for inequality - General - The Supreme Court of Canada referred to the three broad inquiries outlined in Law v. Canada (Min­ister of Citizenship and Immigration) upon which a s. 15 analysis should pro­ceed: "[D]oes the impugned law (a) draw a for­mal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already dis­advan­taged position within Canadian society re­sulting in the substantively dif­ferential treatment between the claimant and others on the bases of one or more personal char­ac­teristics? If so, there is differential treat­ment for the purpose of s. 15(1). Second, was the claimant subject to differ­ential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bring­ing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are con­cerned with whether the differential treat­ment constitutes discrim­ination in the substantive sense intended by s. 15(1)" - See paragraph 41.

Civil Rights - Topic 5658

Equality and protection of the law - Par­ticular cases - Pension legislation - [See Government Programs - Topic 1223 ].

Civil Rights - Topic 8486

Canadian Charter of Rights and Freedoms - Interpretation - Particular subjects - Equality provision (s. 15) - [See Civil Rights - Topic 5500 and Civil Rights - Topic 5516 ].

Civil Rights - Topic 8663

Canadian Charter of Rights and Freedoms - Equality rights - Purpose of s. 15 - [See Civil Rights - Topic 5500 ].

Government Programs - Topic 1223

Canada Pension Plan - Entitlement - Con­tributory period - Pursuant to ss. 42(2) and 44 of the Canada Pension Plan Act (CPP Act) the government provided a pension to Canadians who experienced a loss of earn­ing owing, inter alia, to dis­ability - To qualify, applicants had to satisfy two legis­lative requirements: "(a) The contributor must suffer from a 'severe and prolonged mental or physical disabil­ity' ... and (b) Contributors must also satisfy a 'recency of contributions' test which ... required contributions to have been made to the CPP in five of the last 10 years or two of the last three years of the contributory period ..." - Satisfaction of both tests was necessary for eligibility - The Supreme Court of Canada reviewed the two require­ments and held that they did not discrimi­nate against temporarily dis­abled individ­uals contrary to s. 15(1) of the Charter - See paragraphs 1 to 84.

Cases Noticed:

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 20].

Andrews v. Law Society of British Co­lumbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 26].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161; 142 D.L.R.(4th) 385, consd. [paras. 26, 72].

Eldridge et al. v. British Columbia (At­torney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, consd. [paras. 26, 78].

Québec (Commission des droits de la personnne et des droits de la jeunesse) v. Montréal (Ville) et al. (2000), 253 N.R. 107 (S.C.C.), refd to. [para. 36].

Sutton v. United Airlines Inc. (1999), 119 S.Ct. 2139, refd to. [para. 36].

Superintendent of Motor Vehicles (B.C.) v. Council of Human Rights (B.C.), [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 40].

Public Service Employee Relations Com­mission (B.C.) v. British Columbia Gov­ernment and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 40].

Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1, consd. [paras. 48, 76].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, refd to. [para. 57].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 124 D.L.R.(4th) 609; 12 R.F.L.(4th) 201, refd to. [para. 57].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693; 13 R.F.L.(4th) 1, refd to. [para. 58].

Cleburne (City) v. Cleburne Living Centre Inc. (1985), 473 U.S. 432, refd to. [para. 59].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 62].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, consd. [paras. 71, 75].

Statutes Noticed:

Canada Pension Plan Act, R.S.C. 1985, c. C-8, sect. 42(2), sect. 44(1)(b), sect. 44(2)(b) [para. 17].

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 15 [para. 16].

Pension Plan Act - see Canada Pension Plan Act.

Authors and Works Noticed:

Bickenbach, Jerome E., Physical Disability and Social Policy (1993), generally [para. 34].

Lepofsky, David M., A Report Card on the Charter's Guarantee of Equality of Per­sons with Disabilities after 10 Years - What Progress? What Prospects? (1988), 7 N.J.C.L. 263, p. 270 [para. 65].

Minow, Martha, When Difference Has Its Home: Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference (1987), 22 Har­vard CR.-C.L.L. Rev. 111, p. 124 [paras. 34, 66].

New Shorter Oxford English Dictionary on Historical Principles (1993), vol. 1, p. 1317 [para. 27].

Pothier, Dianne, Miles to Go: Some Per­sonal Reflections on the Social Con­struction of Disability (1992), 14 Dal­housie L.J. 526, generally [para. 30].

Trudeau, Pierre Elliot, The Essential Trudeau (1998), p. 80 [para. 56].

United Nations, World Program of Action Concerning Disabled Persons: United Nations Decade of Disabled Persons (1983), pp. 2, 3 [para. 34].

World Health Organization, International Classification of Impairments, Disabil­ities and Handicaps: A Manual of Clas­sification Relating to the Consequences of Disease (1980), generally [para. 34].

Counsel:

Bryan P. Schwartz and Ronald Schmalcel, for the appellant;

Edward R. Sojonky, Q.C., and Catharine Moore, for the respondent;

John F. Rook, Q.C., and Mark A. Gelo­witz, for the intervener, the Council of Canadians with Disabilities.

Solicitors of Record:

Booth, Dennehy, Ernst & Kelsch, Winnipeg, Manitoba, for the appellant;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervener, the Council of Canadians with Disabilities.

This appeal was heard on November 10, 1999, before L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada. On May 18, 2000, Binnie, J., delivered the following decision in both official languages.