Tranchemontagne v. Disability Support Program (Ont.) et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish and Abella, JJ.
• Date: 12 December 2005
• Citation: (2006), 347 N.R. 144 (SCC),2006 SCC 14,[2006] 1 SCR 513,347 NR 144,42 Admin LR (4th) 104,147 ACWS (3d) 326,56 CHRR 1,266 DLR (4th) 287,[2006] SCJ No 14 (QL),JE 2006-879,210 OAC 267,EYB 2006-104056
• Court: Supreme Court (Canada)

Tranchemontagne v. Disability Support (2006), 347 N.R. 144 (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: [2006] N.R. TBEd. AP.032

Robert Tranchemontagne and Norman Werbeski (appellants) v. Director of the Ontario Disability Support Program of the Ministry of Community, Family and Children's Services (respondent) and Canadian Human Rights Commission, Ontario Human Rights Commission, Advocacy Centre for Tenants Ontario, African Canadian Legal Clinic, Empowerment Council - Centre for Addiction and Mental Health, and Social Benefits Tribunal (intervenors)

(30615; 2006 SCC 14; 2006 CSC 14)

Indexed As: Tranchemontagne v. Disability Support Program (Ont.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish and Abella, JJ.

April 21, 2006.

Summary:

The applicants each applied for income sup­port under the Ontario Disability Support Program Act. The Director found that the ap­plicants' only substantial impairment was alcoholism and, accordingly, they were in­eli­gible for income support pursuant to s. 5(2) of the Act. The applicants appealed, assert­ing that s. 5(2) discriminated against them on the basis of disability contrary to s. 1 of the Ontario Human Rights Code. In each ap­peal, the Social Benefits Tribunal upheld the dismissal of the claim and refused to consid­er the argument that s. 5(2) contra­vened the Code. The applicants appealed. The appeals were joined.

The Ontario Divisional Court upheld the decisions of the Tribunal, holding that the Tribunal did not have jurisdiction to give effect to the primacy of the Code. The appli­cants appealed.

The Ontario Court of Appeal, in a decision reported at 190 O.A.C. 108, held that the Divisional Court erred in holding that the Tribunal lacked jurisdiction to decide whether s. 5(2) violated the Code. However, the court dismissed the appeal where the dis­pute was one that was best determined by the procedure under the Code. The applicants appealed.

The Supreme Court of Canada, Abella, Lebel and Deschamps, JJ., dissenting, al­lowed the appeal and remitted the matter to the Tribunal for a ruling on the applicability of s. 5(2).

Administrative Law - Topic 9011

Boards and tribunals - Jurisdiction - Gen­eral - Declining or failing to exercise jur­is­diction - The Supreme Court of Canada stated that "It is true that the effi­cient functioning of tribunals is important. And the presence of another tribunal with great­er institutional capacity may indeed signal that this other forum is more appro­priate to deal with the case at hand ... But tribunals should be loath to avoid cases on the as­sump­tion that the legislature gave them insufficient tools to handle matters within their jurisdiction. In those instances where the legislature does grant a tribunal the power to decline jurisdiction, the scope of this power should be carefully observed in or­der to ensure that the tribunal does not improperly ignore issues that the legisla­ture intended it to consider." - See para­graph 51.

Administrative Law - Topic 9013.1

Boards and tribunals - Jurisdiction - Hu­man rights legislation - Section 29(3) of the Ontario Disability Support Program Act provided that the "[Social Benefits] Tribunal shall not make a decision in an appeal under this Act that the Director would not have authority to make" - The Di­rector asserted that he and his delegates lacked the power to use the Ontario Hu­man Rights Code to deny the Act's appli­cation and it therefore followed that the Tribunal lacked the power - The Supreme Court of Canada rejected the assertion - Sec­tion 29(3) merely stated that the Tri­bunal could not make a decision that the Director would not have the auth­ority to make - Thus the Tribunal could not decide to award an applicant income support in an amount inconsistent with the regulations, because the Director did not have the au­thor­ity to award income support in an amount inconsistent with the regula­tions (s. 11) - Allowing the Code to inform an eli­gi­bility determination could hardly be char­acterized as a "decision" itself - It was simply a power that the Tribunal might pos­sess - The Act did not limit the Tri­bunal's powers to those possessed by the Director - In fact, the Act contemplated powers that the Tribunal had and the Di­rector did not - See paragraphs 28 and 29.

Administrative Law - Topic 9013.1

Boards and tribunals - Jurisdiction - Human rights legislation - Section 67(2) of the Ontario Works Act provided that the So­cial Benefits Tribunal could not deter­mine the legislative authority for making a regulation - The Director of the Ontario Disability Support Program asserted that s. 67(2) prohibited the Tribunal from apply­ing the Human Rights Code by analogy to the Constitution - The Supreme Court of Can­ada rejected the assertion - It was one thing to preclude a statutory tribunal from invalidating legislation enacted by the leg­islature that created it - It was com­pletely different to preclude that body from apply­ing legislation enacted by that legisla­ture in order to resolve apparent conflicts be­tween statutes - The former power was more offensive to the legislature and it should not be surprising that the legislature eliminated it - The latter power represented nothing more than an instantiation of leg­islative intent, an intent that included the primacy of the Code and the concur­rent jur­isdiction of administrative bodies to apply it - The legislature envisioned consti­tutional and Code issues as being in differ­ent "categories of questions of law" - Con­sistent with the human rights regime, the legislature has afforded the Code the possi­bility of broad application even while deny­ing the Tribunal the authority to deter­mine constitutional issues - See paragraphs 30 to 32.

Administrative Law - Topic 9013.1

Boards and tribunals - Jurisdiction - Human rights legislation - The Supreme Court of Canada held that the Social Bene­fits Tribunal had jurisdiction to determine whether a section of the Ontario Disability Support Program Act (ODSPA) contra­vened the Ontario Human Rights Code - The ODSPA and the Ontario Works Act (OWA) confirmed that the Tribunal could decide questions of law - The Tribunal was presumed to have the jurisdiction to con­sider the whole law - More specifically, when it decided whether an applicant was eligible for income support, it was pre­sumed able to consider any legal source that might influence that decision, includ­ing the Code - The legislature had not re­butted that presumption - To the con­trary, it had announced the Code's primacy and had given itself clear directions for how that primacy could be eliminated in partic­ular circumstances - The legislature had prohibited the Tribunal from consider­ing the constitutional validity of enact­ments, or the vires of regulations, but it did nothing to suggest that the Tribunal could not con­sider the Code - The court could not im­pute a legislative intent that the Tribunal was to ignore the Code when the legisla­ture had not followed its own directions for yielding that result - The ODSPA and the OWA evinced an intent to prevent the Tribunal from looking behind the statutory and regulatory scheme - However, consid­er­ation of the Code was not analogous - The Code formed part of the legislative scheme - It would be con­trary to legisla­tive intention to demand that the Tribunal ignore it - See paragraphs 40 to 42.

Administrative Law - Topic 9013.1

Boards and tribunals - Jurisdiction - Human rights legislation - The applicants sought income support under the Ontario Disability Support Program Act - The Di­rector found that the applicants' only sub­stantial impairment was alcoholism and, ac­cordingly, they were ineligible for sup­port pursuant to s. 5(2) of the Act - The applicants each appealed, asserting that s. 5(2) was discriminatory contrary to the On­tario Human Rights Code - The Social Bene­fits Tribunal upheld the decisions and refused to consider whether s. 5(2) contra­vened the Code - On appeal, it was deter­mined that the Tribunal had jurisdiction to decide the applicability of s. 5(2) - The Director asserted that a further analysis was required to determine whether the Tri­bunal or the Human Rights Commission had a more appropriate forum - The Su­preme Court of Canada stated that the Di­rector's assertion was premised on the mis­taken assumption that the Tribunal could decline jurisdiction if the Commis­sion had a more appropriate forum - The Tribunal did not have the power to decline to hear an issue of which it was properly seized - Further, having the Tribunal apply the Code had many salutary effects and was con­sistent with the jurisprudence af­firming the importance of accessible hu­man rights legislation - See paragraph 52.

Administrative Law - Topic 9013.1

Boards and tribunals - Jurisdiction - Human rights legislation - The Supreme Court of Canada stated that "Where a tri­bunal is properly seized of an issue pursu­ant to a statutory appeal, and especially where a vulnerable appellant is advancing arguments in defence of his or her human rights, I would think it extreme­ly rare for this tribunal to not be the one most appro­priate to hear the entirety of the dispute. I am unable to think of any situ­ation where such a tribunal would be justified in ignor­ing the human rights argument, applying a potentially discrimi­natory provision, refer­ring the legislative challenge to another forum, and leaving the appellant without bene­fits in the mean­time." - See paragraph 50.

Civil Rights - Topic 7003

Federal, provincial or territorial legislation - General - Interpretation of human rights leg­islation - The Supreme Court of Canada stated that "The most important character­istic of the [Ontario Human Rights] Code for the purposes of this appeal is that it is fundamental, quasi-constitutional law: ... Ac­cordingly, it is to be interpreted in a liberal and purposive manner, with a view towards broadly protecting the human rights of those to whom it applies ... And not only must the content of the Code be understood in the context of its purpose, but like the Canadian Charter of Rights and Freedoms, it must be recognized as be­ing the law of the people ... According­ly, it must not only be given expansive mean­ing, but also offered accessible appli­ca­tion." - See paragraph 33.

Civil Rights - Topic 7005

Federal, provincial or territorial legislation - General - Effect of human rights legisla­tion on conflicting legislation - Section 47(2) of the Ontario Human Rights Code gave the Code primacy over all other stat­utory enactments - The Supreme Court of Can­ada stated that s. 47(2) had both simi­larities to and differences from s. 52 of the Constitution Act, 1982, which announced the supremacy of the Constitu­tion - Both func­tioned to eliminate the effects of in­consistent legislation - Their ultimate effect was that the conflicting provision was not followed and, for that particular applica­tion, it was as if the conflicting legislation was never enacted - However, the differ­ences were far more important - A provi­sion declared invalid pursuant to s. 52 was never validly enacted to begin with - It never existed as valid law because the leg­is­lature enacting it never had the author­ity to pass it - When a tribunal or court ap­plied s. 47 to render another law inap­plic­able, it was not "going behind" that law to consider its validity - It was not declar­ing that the legislature was wrong to enact it in the first place - Rather, it was simply ap­ply­ing the tie-breaker supplied by the leg­is­lature itself - The difference between s. 47 and s. 52 was the difference between fol­lowing legislative intent and overturning legislat­ive intent - See paragraphs 34 to 36.

Social Assistance - Topic 984

Claims - Appeals - Jurisdiction of appeal board - [See first, second, third and fourth Administrative Law - Topic 9013.1 ].

Cases Noticed:

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [paras. 16, 59].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271, refd to. [para. 16].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 16].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 22].

Paul v. Forest Appeals Commission (B.C.) et al., [2003] 2 S.C.R. 585; 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1; 2003 SCC 55, refd to. [para. 23].

McLeod v. Egan, [1975] 1 S.C.R. 517; 2 N.R. 443, refd to. [para. 25].

MacLeod, Re - see McLeod v. Egan.

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, refd to. [para. 33].

Insurance Corp. of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 33].

Human Rights Commission (Ont.) v. A et al., [2002] 3 S.C.R. 403; 294 N.R. 140; 166 O.A.C. 1; 2002 SCC 66, refd to. [para. 33].

B v. Human Rights Commission (Ont.) - see Human Rights Commission (Ont.) v. A et al.

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 33].

Commission des droits de la personne et des droits de la jeunesse (Que.) v. Que­bec (Attorney General), [2004] 2 S.C.R. 223; 321 N.R. 335; 2004 SCC 40, refd to. [para. 33].

Quebec (Attorney General) v. Quebec (Human Rights Tribunal) - see Commis­sion des droits de la personne et des droits de la jeunesse (Que.) v. Quebec (Attorney General).

Charette - see Commission des droits de la personne et des droits de la jeunesse (Que.) v. Quebec (Attorney General).

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 39].

Commission des droits de la personne et des droits de la jeunesse (Que.) v. Que­bec (Attorney General) et al., [2004] 2 S.C.R. 185; 321 N.R. 290; 2004 SCC 39, refd to. [para. 43].

Human Rights Commission (Ont.) and Bates v. Zurich Insurance Co., [1992] 2 S.C.R. 321; 138 N.R. 1; 55 O.A.C. 81, refd to. [para. 49].

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. 83].

Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (Ville) et al., [2000] 1 S.C.R. 665; 253 N.R. 107; 2000 SCC 27, refd to. [para. 83].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1, refd to. [para. 90].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 93].

Statutes Noticed:

Human Rights Code, R.S.O. 1990, c. H-19, sect. 47(2) [para. 34 et seq.].

Ontario Disability Support Program Act, S.O. 1997, c. 25, Schedule B, sect. 29(3) [para. 28].

Ontario Works Act, S.O. 1997, c. 25, Schedule A, sect. 67(2) [para. 30].

Authors and Works Noticed:

Hansard (Ont.) - see Ontario, Hansard, Legislative Assembly, Official Report of Debates.

Ontario, Hansard, Legislative Assembly, Official Report of Debates, No. 19A, 2nd sess., 36th Parliament (June 2, 1998), p. 971 [para. 3].

Ontario, Hansard, Legislative Assembly, Official Report of Debates, No. 222B, 1st sess., 36th Parliament (September 2, 1997), p. 11708 [para. 86].

Counsel:

Peter J. Chapin, Terence Copes and Grace Kurke, for the appellants;

Rebecca J. Givens and Janet E. Minor, for the respondent;

R. Daniel Pagowski and Leslie A. Reaume, for the intervenor, the Canadian Human Rights Commission;

Cathy Pike and Hart Schwartz, for the intervenor, the Ontario Human Rights Commission;

Katherine Laird and Toby Young, for the intervenor, the Advocacy Centre for Tenants Ontario;

Marie Chen and Royland Moriah, for the intervenor, the African Canadian Legal Clinic;

Lesli Bisgould and Dianne Wintermute, for the intervenor, the Empowerment Coun­cil - Centre for Addiction and Mental Health;

Jeff G. Cowan and M. Jill Dougherty, for the intervenor, the Social Benefits Tribu­nal.

Solicitors of Record:

Sudbury Community Legal Clinic, Sud­bury, Ontario, for the appellant, Robert Tranchemontagne;

Legal Aid Ontario, Toronto, Ontario, for the appellant, Norman Werbeski;

Community & Social Services, Toronto, On­tario, for the respondent;

Canadian Human Rights Commission, Ot­tawa, Ontario, for the intervenor, the Canadian Human Rights Commission;

Ontario Human Rights Commission, Toronto, Ontario, for the intervenor, the Ontario Human Rights Commission;

Advocacy Centre for Tenants Ontario, Tor­on­to, Ontario, for the intervenor, the Advocacy Centre for Tenants Ontario;

African Canadian Legal Clinic, Toronto, Ontario, for the intervenor, the African Canadian Legal Clinic;

ARCH: A Resource Centre for Persons with Disabilities, Toronto, Ontario, for the intervenor, the Empowerment Coun­cil - Centre for Addiction and Mental Health;

WeirFoulds, Toronto, Ontario, for the in­tervenor, the Social Benefits Tribunal.

This appeal was heard on December 12, 2005, by McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish and Abella, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on April 21, 2006, with the following opinions:

Bastarache, J. (McLachlin, C.J.C., Binnie and Fish, JJ., concurring) - see para­graphs 1 to 54;

Abella, J., dissenting (Lebel and Des­champs, JJ., concurring) - see para­graphs 55 to 98.