FASlink Fetal Alcohol Disorders Society
Supreme Court rules addiction considered disability

Friday, April 21, 2006 16:32
Supreme Court rules addiction considered disability

Even though alcoholism and drug addiction are clearly defined as disabilities under Ontario’s Human Rights Code, thousands of Ontarians have been denied disability benefits for substance abuse addictions. That’s about to change following a Supreme Court of Canada ruling Friday.

A seven-year legal battle ended in victory for two Sudbury men and the Sudbury Legal Clinic that represented them following a majority 4-3 decision by the country’s top court.

The court ruled legislation under provincial human rights codes must now be considered by all government tribunals when handling appeal cases by Canadian citizens applying for benefits, specifically, disability benefits.

The court ruled government agencies such as Ontario’s Social Benefits Tribunal (SBT), which hears appeals from citizens originally denied access to the Ontario Disability Support Program (ODSP), must consider provisions under provincial human rights regulations before rendering decisions. This includes provisions detailing alcoholism and drug addiction as defined disabilities.

In far too many cases, the SBT simply rejects appeals and refers people to the Ontario Human Rights Commission, where less than six percent of cases are ever heard, said Grace Kurke, legal counsel for the Sudbury Legal Clinic.

It this specific case, two Sudbury men, Norman Werbeski and Robert Tranchemontagne, applied for ODSP benefits in 1998 and 1999, respectively.

After more than two years of waiting, both claims were denied eight months apart in 2001 and both decisions were appealed to the SBT.

Both claims were again rejected, with the tribunal ruling they considered both men to be alcoholics who didn’t suffer from any other significant physical disability.

Both men argued they each had serious physical disabilities other than alcoholism and one claimed psychological issues as well.

The specific provision noted by the SBT in rejecting the appeals states an appellant is not eligible for ODSP benefits if “the person is dependent on or addicted to alcohol, a drug or some other chemically active substance.”

However, the Ontario Human Rights Code clearly states alcoholism and drug addiction is a disability and benefits can’t be denied if other satisfactory disabilities are proven, said Kurke.

In the case against Werbeski and Tranchemontange, the SBT quickly rejected the appeals focusing on the alcoholism provision, which contravenes human rights legislation, which the Supreme Court made clear takes precedence, said Kurke.

The SBT’s decision against the two Sudbury men was accepted by a divisional court. However, another appeal to the Ontario Court of Appeal last year was successful and the case was referred to the country’s top court.

Kurke and lawyers for several community agencies presented arguments before the Supreme Court in December. They were opposed by lawyers for the Ministry of Community and Social Services and the SBT.

Friday’s ruling makes it clear government tribunals like the SBT are “quasi constitutional bodies...that do have the power” to hear all evidence presented by appellants relating to provincial human rights codes and issues before making final decisions, said Kurke.

They can’t simply “pass the buck” and dismiss cases based on provisions the court has made clear do not supercede human rights legislation, said Kurke.

“The decision means vulnerable people can claim human rights considerations and be protected by provisions under the human rights code before every tribunal in the country,” said Kurke. “These tribunals can’t tell people any longer to go away insisting they don’t have the authority to deal with human rights issues.”

The Supreme Court ruling does not mean Werbeski and Tranchemontagne will receive ODSP and retroactive benefits, but the court made clear the SBT will have to hear their appeals again and must reconsider its decision stating alcoholism as sufficient cause for denying benefits, said Kurke.

Because human rights legislation clearly states alcoholism and drug addiction are disabilities, Kurke is confident she will win the case when it returns before the SBT.

“This is a huge victory for disadvantaged people across this country as it brings human rights considerations to the forefront in ways that have not previously been the case in this country,” said Kurke.

In a 45-page decision, the court ruled “since the SBT has not been granted the authority to decline jurisdiction, it can’t avoid considering the issues relating to the (human rights) code in these cases. “Moreoever...the SBT is the most appropriate forum to decide those issues.”

The SBT is meant to be an efficient, effective and quick process and regularly rejecting appeals by imposing human rights code compliance “will inevitably have an impact on its ability to assist the disabled community in a timely way,” read the decision.

Kurke successfully argued a section in the Ontario disability act constituted discrimination and was, therefore, inapplicable because the human rights code has primacy over other legislation.

“Instead of analyzing this argument, the SBT held it did not have the jurisdiction to consider the applicability of the section of the code...the appellants’ appeals were therefore dismissed without the benefit of a ruling that their treatment was discriminatory,” said the Supreme Court decision.

The court ruled the SBT and other tribunals most now consider provisions of human rights legislation in rendering all decisions.

“It becomes clear that the SBT had the jurisdiction to consider the code in determining whether the appellants were eligible for support pursuant to the disability act...at that point, the SBT had the responsibility of applying the code in order the render a decision that reflected the whole law of the