Supreme Court Judgments

Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703

Allan Granovsky                                Appellant

v.

Minister of Employment and Immigration   Respondent

and

Council of Canadians with Disabilities         Intervener

Indexed as:  Granovsky v. Canada (Minister of Employment and Immigration)

Neutral citation:  2000 SCC 28.

File No.:  26615.

1999:  November 10; 2000:  May 18.

Present:  L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the federal court of appeal

Constitutional law -- Charter of Rights  -- Equality rights -- Disabled persons -- Canada Pension Plan  disability pension -- Plan providing for accommodation with respect to periods of minimum contribution for permanently disabled persons but not for temporarily disabled persons -- Whether Plan infringing right to equality -- Canadian Charter of Rights and Freedoms, s. 15(1)  -- Canada Pension Plan, R.S.C., 1985, c. C-8, s. 44 .

The appellant claimed to have suffered an intermittent and degenerative back injury following a work-related accident in 1980.  He was assessed to be temporarily totally disabled at that time.  Prior to his accident, he had made Canada Pension Plan  (CPP ) contributions in six of the ten previous years.  The appellant was profitably employed from time to time following his accident but maintained that his back condition continued to deteriorate and that the disability became permanent in 1993, at which time he applied for a CPP disability pension.  His application was refused by the Minister of Employment and Immigration and refused again by a review tribunal in part because he had only made a CPP contribution in one year of the relevant CPP 10-year contribution period prior to the date of application and thus had what was considered to be an insufficiently recent connection to the work force.  He could not bring himself within the “drop-out” provision (made available to applicants who suffered from severe and permanent disabilities) under which periods of disability are not counted in the recency of contribution calculation.  Among the issues raised by the appellant was whether the CPP infringed s. 15(1)  of the Canadian Charter of Rights and Freedoms  because the contributions requirement fails to take into account the fact that persons with temporary disabilities may not be able to make contributions for the minimum qualifying period in s. 44(1) because they are physically unable to work.  The appellant was unsuccessful both before the Pension Appeals Board and before the Federal Court of Appeal.

Held:  The appeal should be dismissed.

The true focus of the s. 15(1) disability analysis is not on the impairment as such, nor even any associated functional limitations, but is on the problematic response of the state to either or both of these circumstances.  It is the state action that stigmatizes the impairment, or which attributes false or exaggerated importance to the functional limitations (if any), or which fails to take into account the “large remedial component” of s. 15(1), and which thus creates the legally relevant human rights dimension to what might otherwise be a straightforward biomedical condition.  Since s. 15(1) is ultimately concerned with human rights and discriminatory treatment, and not with biomedical conditions, the primary focus is on the inappropriate legislative or administrative response (or lack of response) to the claimant’s condition.  A s. 15 analysis should proceed on the basis of three broad inquiries:  (1) whether there is a differential treatment for the purpose of s. 15(1); (2) whether this treatment was based on one or more of the enumerated and analogous grounds; and, (3) whether the differential treatment brings into play the purpose of s. 15(1), i.e., does the law, in purpose or effect, perpetuate the view that persons with temporary disabilities are less capable or less worthy of recognition or value as human beings or as members of Canadian society?

The first step requires that differential treatment, based on one or more personal characteristics, be established between the appellant and some other person or group.  The identification of the comparator group is crucial.  The purpose of the drop-out provision is to facilitate access of people with permanent disabilities to a CPP disability pension.  It does so by employing the same criteria (“severe” and “prolonged”) as the criteria used for the disability pension itself.  Faithful correspondence between the benefit in issue and the purpose of the larger plan does not necessarily avoid the claim of discrimination, because the discrimination may lie in the purpose or effects of the larger plan.  Here, however, the appellant does not take the position that the requirements for a disability pension itself are discriminatory within the meaning of s. 15.  The people who benefit from the drop-out provision are those who not only demonstrate a permanent disability at the date of application, but also who possessed the permanent disability during the contribution period, or so much of it as they seek to drop out of the CPP calculation.  The permanently disabled are the people whose drop-out benefit the appellant seeks to share and who therefore constitute the proper comparator group.

At the second step, the impugned distinction was established to be based on an enumerated ground.  The drop-out provision makes a legislative distinction entirely on the basis of the existence and duration of the disability that rendered the appellant unemployed.

The appellant’s claim fails at the third step, however, because he has not demonstrated a convincing human rights dimension to his complaint.  Assuming he can show an impairment and significant functional limitations, he fails to show that the government’s response to his condition through the design of the CPP or its application demeans the dignity of persons with temporary disabilities, or casts any doubt on their worthiness as human beings.  The drop-out provision relates to the health status of applicants in each of the 10 years prior to the application, i.e., the relevant contribution period, at which time the appellant enjoyed a health advantage relative to the permanently disabled.  The differential treatment afforded by the s. 44 “drop-out” provision ameliorates the position of those with a history of severe and permanent disabilities.  It does not assist more fortunate people such as the appellant, but in the context of a contributory benefits plan, Parliament is inevitably called upon to target the particular group or groups it wishes the CPP to subsidize.  Drawing lines is an unavoidable feature of the CPP and comparable schemes.  Parliament did not violate the purpose of s. 15(1) by seeking to benefit individuals with a history of severe and prolonged disability.

Cases Cited

Applied:  Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Egan v. Canada, [1995] 2 S.C.R. 513; distinguished:  Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Vriend v. Alberta, [1998] 1 S.C.R. 493; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; considered:  British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; referred to:  Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), [2000] 1 S.C.R. 665, 2000 SCC 27; Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999); Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Miron v. Trudel, [1995] 2 S.C.R. 418; Cleburne v. Cleburne Living Centre, Inc., 473 U.S. 432 (1985).

Statutes and Regulations Cited

Canada Pension Plan , R.S.C., 1985, c. C-8 , ss. 42(2) (a) [rep. & sub. c. 30 (2nd Supp.), s. 12], (b) [rep. & sub. 1992, c. 1, s. 23], 44(1)(b) [rep. & sub. c. 30 (2nd Supp.), s. 13; am. 1992, c. 2, s. 1], (2)(a) [rep. & sub. c. 30 (2nd Supp.), s. 13], (b) [idem].

Canadian Charter of Rights and Freedoms , ss. 1 , 15 .

Workmen’s Compensation Act, R.S.M. 1970, c. W200.

Authors Cited

Bickenbach, Jerome E.  Physical Disability and Social Policy.  Toronto:  University of Toronto Press, 1993.

Lepofsky, M. David.  “A Report Card on the Charter ’s Guarantee of Equality to Persons with Disabilities after 10 Years -- What Progress?  What Prospects?” (1998), 7 N.J.C.L. 263.

Minow, Martha.  “When Difference Has Its Home:  Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference” (1987), 22 Harv. C.R.-C.L. L. Rev. 111.

New Shorter Oxford English Dictionary on Historical Principles, vol. 1.  Oxford:  Clarendon Press, 1993, “immutable”.

Pothier, Dianne.  “Miles to Go:  Some Personal Reflections on the Social Construction of Disability” (1992), 14 Dalhousie L.J. 526.

Trudeau, Pierre Elliott.  The Essential Trudeau.  Edited by Ron Graham.  Toronto:  M & S, 1998.

United Nations.  United Nations Decade of Disabled Persons, 1983-1992:  World Programme of Action concerning Disabled Persons.  New York:  United Nations, 1983.

World Health Organization.  International Classification of Impairments, Disabilities, and Handicaps:  A Manual of Classification Relating to the Consequences of Disease.  Geneva:  The Organization, 1980.

APPEAL from a judgment of the Federal Court of Appeal, [1998] 3 F.C. 175, 158 D.L.R. (4th) 411, 225 N.R. 2, 36 C.C.E.L. (2d) 155, 53 C.R.R. (2d) 105, [1998] F.C.J. No. 311 (QL), dismissing an appeal from the Pension Appeals Board.  Appeal dismissed.

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 judgment of the Court was delivered by

1                                   Binnie J. -- On May 27, 1980, at the age of 32, the appellant injured his back at work. Thirteen years later, having been employed irregularly at various jobs in the interim, he applied for a permanent disability pension under the Canada Pension Plan , R.S.C., 1985, c. C-8  (“CPP ”).  The Minister refused the application because over the relevant 10-year period prior to the application, the appellant had failed to make the required CPP contributions in any year except 1988.  The appellant argues that it was his disability that prevented him from making all of the required CPP contributions in the relevant 1981-92 contribution period, and that the failure of the CPP to take his disability into account in considering his lack of contribution constitutes discrimination contrary to s. 15(1)  of the Canadian Charter of Rights and Freedoms .

2                                   The appellant thus raises issues of considerable importance to persons with disabilities and to governments that undertake to design and implement social benefits legislation.  The CPP is a self-funded contributory plan.  In what circumstances can the Charter  alleviate against the contribution requirements imposed by Parliament?  CPP retirement benefits are universal but disability benefits are conditional.  They are designed to assist persons with disabilities who were recently in the work force by replacing employment income with a disability pension.  The appellant does not have any significant recent attachment to the work force; thus he does not have recent employment income for which a CPP disability pension can be a substitute.  Nevertheless, if the time horizon is broadened, he can point to the fact that in the 27-year period between his entry into the work force in 1967 and his application for a disability pension in 1993 he made CPP contributions in each of 10 years, mostly prior to 1980.  He should not, he says, be “branded a non-contributor”.

3                                   The appellant admits that Parliament may, without Charter  infringement, create a particular type of benefit (a contributory plan) targeted at a particular group of individuals (those recently in the work force) who are disadvantaged with a particular type of disability (severe rather than superficial, permanent rather than temporary), but that Parliament drew the line in the wrong place when it insisted on the same level of contributions from temporarily disabled workers as it does from able-bodied workers.  In my view, for the reasons which follow, the CPP as designed and as applied to the appellant does not violate his equality rights.  The impugned feature of the CPP disability pension (the “drop-out” provision) relaxes the contribution requirement in the case of individuals with permanent disabilities but not individuals with temporary disabilities.  Parliament was entitled to take into account the nature and extent of an individual’s disability both at the time of the application for a disability pension was made, and during the prior 10-year contribution period.  While the CPP draws a statutory distinction between individuals with differing levels of disability during the contribution period, the distinction does not demean the appellant.  It simply recognizes that he enjoyed greater economic strength at the relevant time than did the permanently disadvantaged people targeted by the special relief he now seeks to share.

I.  Facts

4                                   The appellant says he has suffered an intermittent and degenerative back injury since 1980.  As a result of a workplace accident in that year, he was assessed to be temporarily totally disabled under the Manitoba Workmen’s Compensation Act, R.S.M. 1970, c. W200, and received disability benefits under that Act until 1984.  Prior to his accident, he had made CPP contributions in six of the ten previous years (1970-1979 inclusive).  In his factum he sets out his lifetime CPP contributions as follows:

1967:   Yes                        1980:  No

1968:   Yes                        1981:  No

1969:   No                         1982:  Yes

1970:   No                         1983:  No

1971:   No                         1984:  No

1972:   No                         1985:  No

1973:   Yes                        1986:  No

1974:   Yes                        1987:  No

1975:   Yes                        1988:  Yes

1976:   Yes                        1989:  No

1977:   Yes                        1990:  No

1978:   No                         1991:  No

1979:   Yes                        1992:  No

                              1993:  No

In 1980-81 and again in 1982-83, the appellant was in receipt of a temporary disability allowance or rehabilitation allowance.  In 1983, he was determined by the Neurosis (Psychiatric) Review Panel of the Manitoba Workmen’s Compensation Board to have a 15 percent permanent disability and in 1985 was awarded a lump sum payment of $40,449.12 in full and final settlement.  On January 24, 1985, the Workmen’s Compensation Board determined that the appellant was capable of working.  Since that time, he has made his CPP contribution in only one year, namely 1988.

5                                   Although the appellant was profitably employed from time to time following his workplace accident in 1980, he says that throughout this period his back condition continued to deteriorate and the disability became “permanent” in 1993.  At that time, claiming a severe and permanent disability, he applied for a CPP disability pension.  His application was refused by the Minister and refused again by a Review Tribunal in part because he had only made a CPP contribution in one year (1988) of the relevant CPP 10-year contribution period (1983-92) and thus had what was considered to be an insufficiently recent connection to the work force.  The Tribunal took a dim view of his application, as is apparent from the terms of its decision dated July 4, 1994, which refers somewhat disparagingly to his “back-ache”:

On all of the evidence, medical and otherwise, and having observed the demeanour and mental and physical manouvers [sic] of Mr. Granovsky during the hearing, the Tribunal is of the unanimous view that Mr. Granovsky did not suffer from a severe and prolonged mental or physical disability within the meaning of Subsection 42(2) in 1984 nor did he suffer from any such disability at any time up to the present.

Indeed Mr. Granovsky was very candid in stating to the Tribunal that he is anxious and waiting to go out and work if he can find work suited to his physical condition/limitation imposed by his back-ache.

6                                   Before the Pension Appeals Board on a hearing de novo, the parties agreed to go forward only with the Charter  argument in respect of the appellant’s contribution history, and to leave for a later hearing, if necessary, whether or not the appellant in fact suffered from a severe disability at the date of his 1993 application, or otherwise.  This splitting of the issues, while intended to be helpful, has given the appeal a somewhat abstract quality on the key questions of the nature and extent of the injury, and its subsequent deterioration, which is unfortunate. 

7                                   In any event, the nub of the appellant’s Charter  complaint is that while the CPP relaxes the contribution requirement for applicants whose severe disability was prolonged during all or part of the 10 years immediately preceding the application, it does not relax the contribution for applicants such as the appellant whose severe disability was sporadic, in the process of developing, or of short duration.  He argues that where a contributor has a special burden (such as a temporary disability) that goes “above and beyond the usual”, he or she is entitled to increased flexibility in the CPP contribution requirements commensurate with the increased burden. 

8                                   The appellant says that his equality rights as a temporarily disabled person were violated by the refusal of the CPP to drop out of its contribution calculations those years in which he was unable to work for at least six months by reason of his disability.  If the drop-out provision is applied, he says, as it is for those who suffered a permanent disability, he would qualify for a  CPP disability pension on the basis of the years in which he did make a valid CPP contribution.  The appellant thus says that the CPP discriminated against him by insisting on the same rules of recent contribution imposed on more able-bodied workers, which he could not make because of his temporary disability, and denying him the equivalent drop-out privileges allowed to the permanently disabled.  The appellant was unsuccessful both before the Pension Appeals Board and before the Federal Court of Appeal.

II.  The Statutory Scheme

9                                   The CPP was designed to provide social insurance for Canadians who experience a loss of earnings owing to retirement, disability, or the death of a wage-earning spouse or parent.  It is not a social welfare scheme.  It is a contributory plan in which Parliament has defined both the benefits and the terms of entitlement, including the level and duration of an applicant’s financial contribution.

10                               The disability pension replaces income for those contributors determined to be “disabled” within the statutory definition.  To qualify, applicants must satisfy two legislative requirements:

(a)   The contributor must suffer from a “severe and prolonged mental or physical disability”.  A disability is deemed to be “severe” if the person is “incapable regularly of pursuing any substantially gainful occupation”, and “prolonged” if it is “likely to be long continued and of indefinite duration or is likely to result in death” (CPP, s. 42(2)(a)).

(b)   Contributors must also satisfy a “recency of contributions” test which, at the time the appellant applied for benefits, 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 (CPP, ss. 44(1)(b) and 44(2)(a)).  The rationale is that workplace replacement income presupposes a recent  attachment to a workplace the income from which is to be replaced.

An applicant has a right to a disability pension only if he or she satisfies both tests –  permanent medical disability and recency of contribution – at the time of his or her application.

11                               The disability pension provisions of the CPP recognize that contributors may not, for a variety of reasons, be able to make payments consistently.  Reasons for non-contribution could include everything from plant closures to lack of marketable skills to (as in this case) a disability.  A measure of flexibility was created for all applicants by the fact that contributions need only have been made in five of the previous 10 years or two out of the previous three years.  Anything less, in Parliament’s view, falls short of the required recent attachment to the work force.

12                               The impugned legislative measure (the drop-out provision) was created for two classes of persons:  the permanently disabled and family allowance recipients (CPP, s. 44(2)(b)(iii) and (iv)).  The drop-out provision permits certain months to be excluded from the contributory period.  If a person is permanently disabled in the course of a calendar year, the months during which that person is permanently disabled are not counted against him or her in determining whether recency of CPP contribution requirements are satisfied.

13                               It is clear the CPP draws a distinction between those in the position of the appellant and other persons with disabilities.  Both groups consist of people with physical or mental impairments and a consequent degree of functional limitation that prevents them from working.  The appellant agrees that the CPP is a self-funded contributory plan, not a form of welfare.  He accepts that it is designed to provide substitute income for those who have a recent connection to the work force.  He does not challenge the “philosophy of the [CPP] scheme”, and acknowledges “that there can be some reasonable ‘recency’ test.  That is, a scheme aiming at ‘[earnings] replacement’ can reasonably say, as a general matter, that a person who has been out of the work force for a long time no longer has a workplace income to replace”.  His point is that denying him the drop-out privileges afforded to the permanently disabled demeans the importance and sense of self-worth of people with temporary disabilities.  The appellant’s position is that all people suffering severe disabilities are entitled to a measure of relaxation of CPP contribution requirements imposed on the more able-bodied (or at least those more consistently employed) members of the work force.

14                               I note at the outset that the appellant seeks an extension of the s. 15(1) principles laid down in the decided cases, which is understandable, but he does so in circumstances that provide no clear boundaries for the future.  If he succeeds in having the “permanence” requirement of the CPP test rewritten, for example, will courts next be asked to dilute the CPP requirement that the disability be severe?  The less severely disabled will no doubt argue that their interests are no less worthy of protection than those whose disabilities are more severe.  Is the legislature then precluded from targeting the permanently disabled for special programs or services (special paratransit public bus facilities for example) without making the same services and programs available to those whose disabilities are temporary, and if so, how temporary would still be sufficient to qualify?  The Minister responds that if line drawing is to be done, as is inevitable in a government benefits scheme, the question is not only where they are to be drawn, but also who is to draw them, the courts or Parliament?  The Minister says that Parliament is the proper constitutional actor to make these policy determinations.  This is true, provided Parliament’s line drawing does not violate the Constitution.

15                               The Minister’s denial of the application was based on his view that the “eligibility clock” continued to run even in years in which the appellant was for most of the year unable to work and was thus for those years a non-contributor.  It is common ground that the pension was properly denied unless the legislation infringes the appellant’s equality rights under s. 15(1)  of the Charter  and cannot be saved under s. 1.

III.  Constitutional Provisions

16                               Canadian Charter of Rights and Freedoms 

1.  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.

                                                                   . . .

15. (1)  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.

IV.  Relevant Statutory Provisions

17                               Canada Pension Plan , R.S.C., 1985, c. C-8 

42.  . . .

(2) For the purposes of this Act,

(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,

(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and

(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.

                                                                   . . .

44. (1) Subject to this Part,

                                                                   . . .

(b) a disability pension shall be paid to a contributor . . . who is disabled and who

(i) has made contributions for not less than the minimum qualifying period,

(ii) has made contributions for at least two of the last three calendar years included either wholly or partly within his contributory period,

                                                                   . . .

(iv) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled had an application for a disability pension been received prior to the time the contributor’s application for a disability pension was actually received;

                                                                   . . .

(2) For the purposes of paragraphs (1)(b) . . .

(a) a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if he has made contributions

(i) for at least five of the last ten calendar years included either wholly or partly within his contributory period. . . .

. . .

(b) the contributory period of a contributor shall be the period

(i) commencing January 1, 1966 or when he reaches eighteen years of age, whichever is the later, and

(ii) ending with the month in which he is determined to have become disabled for the purpose of paragraph (1)(b),

but excluding

(iii) any month that was excluded from the contributor’s contributory period under this Act or under a provincial pension plan by reason of disability, and

(iv) in relation to any benefits payable under this Act . . . any month for which he was a family allowance recipient in a year for which his unadjusted pensionable earnings were equal to or less than his basic exemption for the year.

V.  Judgments in Appeal

A.  Pension Appeals Board

(1)  Per Cameron J.A., Rice J.A. concurring

18                               Cameron J.A. concluded that entitlement to disability benefits under the CPP is conditional on the statutory criteria being met.  Here, the legislation did not impose a burden upon the appellant that is not imposed on other claimants.  The criteria are the same for all groups.  These criteria are not based on stereotypical views of disabled individuals, nor can they be said to be designed to exclude disabled people from participation, in his view.  The years of unemployment owing to disability, combined with other years of no or little employment, resulted in the appellant not having sufficient contributions to meet the prerequisites under the Act.  Mr. Granovsky was denied a pension because he had not made sufficient contributions.  The reason for the lack of contributions, in Cameron J.A.’s view, is irrelevant to the CPP.  The determination of the appropriate level of contributions is a matter for Parliament.  For these reasons, she concluded that the contribution requirements of the disability plan do not violate s. 15(1)  of the Charter .

(2)  Per the Honourable C.R. McQuaid concurring in the result

19                               In concurring reasons, the Honourable C.R. McQuaid expressed the view that exclusion from the contributory requirements of any years that a claimant suffered a work-related injury would discriminate against workers “who suffered from a disabling injury not directly work-related, and that even larger class who by reason of local economic conditions, or industrial downsizing, are, through no fault of their own, not in receipt of earnings, and thus precluded from contributing”.

B.  Federal Court of Appeal, [1998] 3 F.C. 175

(1)  Stone J.A., Isaac C.J. concurring

20                               Stone J.A. concluded that the Pension Appeals Board had erred in analysing the issue on the basis of direct discrimination rather than indirect or “adverse effect” discrimination.  In a decision that pre-dated this Court’s judgment in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, he concluded at para. 11 that the contributions requirement for disability benefits in the Canada Pension Plan   was contrary to s. 15(1)  of the Charter :

While neutral on its face, the recency of contributions criterion in subsection 44(1) creates a distinction, in its effect, between disabled and able-bodied persons.  This requirement imposes a restrictive condition on disabled persons which arises because of their disability, and which is not imposed on able-bodied persons who apply for disability benefits under the Act.  Because of this distinction, disabled persons such as the applicant are denied the “equal benefit” of the law -- in this case, equal access to a disability pension to which they have made valid contributions. . . .  Disabled persons are thereby inhibited from participating fully in the Plan by reason of their disability.

21                               Stone J.A. concluded, however, that the eligibility requirements in the CPP were justified pursuant to s. 1  of the Charter .  He wrote at para. 18:

In my view, the government has made a reasonable attempt, given the social, economic and fiscal considerations involved, to calculate and allocate a disability benefit in the most reasonable manner.  The government is uniquely situated to examine this issue and this Court should not second-guess the action it has taken. 

22                               Stone J.A. therefore concluded that although the CPP did infringe the applicant’s rights protected by s. 15(1)  of the Charter , it was a reasonable limit that was demonstrably justified in a free and democratic society.

(2)  McDonald J.A., concurring in the result

23                               McDonald J.A. agreed with the result, but for different reasons.  Unlike the majority, he was of the view that the applicant had not made a case of discrimination since “[t]he eligibility criteria are imposed on all individuals equally” (para. 36).  He went on to hold that if, contrary to his view, s. 15(1) were violated, the government had not discharged its s. 1 onus of proving that it had impaired the applicant’s right as little as possible.

VI.  Constitutional Questions

24                               On February 16, 1999, Lamer C.J. stated the following constitutional questions:

(1)   Does the Canada Pension Plan , R.S.C., 1985, c. C-8 , discriminate against persons on the basis of physical or mental disability by including periods of physical or mental disability in a claimant’s contributory period, as such period is determined pursuant to s. 44(2)(b) of that Act, in claims for a disability pension under that Act, contrary to s. 15  of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11?

(2)   If so, does the discrimination come within only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under section 1  of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11?

VII.  Analysis

25                               The appellant says he has a serious back problem that renders him unemployable.  The question is how, if at all, his medical problem becomes a human rights issue.

26                               The true focus of the s. 15(1) disability analysis is not on the impairment as such, nor even any associated functional limitations, but is on the problematic response of the state to either or both of these circumstances.  It is the state action that stigmatizes the impairment, or which attributes false or exaggerated importance to the functional limitations (if any), or which fails to take into account the “large remedial component” (Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171) or “ameliorative purpose” of s. 15(1) (Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, at para. 66; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 65; Law, supra, at para. 72), that creates the legally relevant human rights dimension to what might otherwise be a straightforward biomedical condition.

27                               Some of the grounds listed in s. 15 are clearly immutable, such as ethnic origin.  A disability may be, but is not necessarily, immutable, in the sense of not being subject to change.  As this case shows, disabilities may be acquired in the course of life, and may grow more severe or less severe as time goes on.  Disabilities are certainly not ‘immutable’ in the secondary sense of “[n]ot varying in different cases” (New Shorter Oxford English Dictionary (1993), vol. 1, p. 1317).  Unlike gender or ethnic origin, which generally stamp each member of the class with a singular characteristic, disabilities vary in type, intensity and duration across the full range of personal physical or mental characteristics that, in the context of the CPP, prevent or “disable” an individual from working to earn the annual CPP contribution.  As Sopinka  J. pointed out in Eaton, supra, at para. 69, disability “means vastly different things depending upon the individual and the context”.

28                               A disability, unlike, for example, race or colour, may entail pertinent functional limitations.  These limitations have historically provided a rationale (often unfairly) to explain and justify differential treatment of persons with disabilities.  A related consideration is the variety of functions against which the limitations of a person with a disability may be measured.  In the context of the CPP, the yardstick is employability.  An individual may suffer severe impairments that do not prevent him or her from earning a living.  Beethoven was deaf when he composed some of his most enduring works.  Franklin Delano Roosevelt, limited to a wheelchair as a result of polio, was the only President of the United States to be elected four times.  Terry Fox, who lost a leg to cancer, inspired Canadians in his effort to complete a coast-to-coast marathon even as he raised millions of dollars for cancer research.  Professor Stephen Hawking, struck by amyotrophic lateral sclerosis and unable to communicate without assistance, has nevertheless worked with well-known brilliance as a theoretical physicist.  (Indeed, with perhaps bitter irony, Professor Hawking is reported to have said that his disabilities give him more time to think.)  The fact they have steady work does not, of course, mean that these individuals are necessarily free of discrimination in the workplace.  Nor would anyone suggest that, measured against a yardstick other than employment (access to medical care for example), they are not persons with daunting disabilities.

29                               The concept of disability must therefore 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.

30                               The bedrock of the appellant’s argument is that many of the difficulties confronting persons with disabilities in everyday life do not flow ineluctably from the individual’s condition at all but are located in the problematic response of society to that condition.  A proper analysis necessitates unbundling the impairment from the reaction of society to the impairment, and a recognition that much discrimination is socially constructed.  See, e.g., D. Pothier, “Miles to Go:  Some Personal Reflections on the Social Construction of Disability” (1992), 14 Dalhousie L.J. 526.  Exclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself.  Problematic responses include, in the case of government action, legislation which discriminates in its effect against persons with disabilities, and thoughtless administrative oversight.  The appellant says that his treatment by the CPP shows the inequality that can result when government enacts social programs with inadequate attention, at the design stage, for the true circumstances of people with disabilities.

A.  The Constitutional Aspect of Disability

31                               This case presents the first opportunity for the Court to consider the disability ground of s. 15(1) since rendering its decision in Law, supra.  In that decision, Iacobucci J., speaking for a unanimous Court at para. 39, set out what he called “a synthesis” of “various articulations” of the s. 15(1) test.  I propose at the outset to highlight some of the relevant themes from the Court’s earlier Charter  treatment of disability, in so far as those themes bear on the proper resolution of the present appeal, and then, in light of that earlier jurisprudence, to turn to the application of the guidelines summarized in Law commencing at para. 88.

32                               The respondent is somewhat dismissive of the appellant’s physical impairment, suggesting disbelief that a severe backache could rise to the level of a constitutional challenge.  The respondent argues that s. 15(1) protection

is for serious disabilities. . . .  Human Rights Boards and Tribunals in Canada have held that absences from work because of temporary illnesses or injuries are not ordinarily characterized as disabilities. . . .

This perspective puts too much focus on the impairment itself and not enough focus on the government’s response to it.  I therefore propose to discuss what at this stage  appear to be circumstances that signal the enumerated ground of disability while underlining the obvious fact that the analysis will undergo further refinement in future cases as they arise.

33                               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-bodied.

34                               It is therefore useful to keep distinct the component of disability that may be said to be located in an individual, namely the aspects of physical or mental impairment, and functional limitation, and on the other hand the other component, namely, the socially constructed handicap that is not located in the individual at all but in the society in which the individual is obliged to go about his or her everyday tasks.  This manner of differentiating among the different aspects of disabilities is elaborated upon in the medical context by the World Health Organization in the International Classification of Impairments, Disabilities, and Handicaps:  A Manual of Classification Relating to the Consequences of Disease (1980); restated in:  United Nations Decade of Disabled Persons, 1983-1992: World Programme of Action concerning Disabled Persons (1983), at pp. 2-3, and in the human rights area by Professor J. E. Bickenbach, Physical Disability and Social Policy (1993), and Professor M. Minow, “When Difference Has Its Home; Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference” (1987), 22 Harv. C.R.-C.L. L. Rev. 111, at p. 124.  (While the WHO, in the medical context, uses the word “disability” to refer to functional limitation (the second aspect), I prefer to use the expression “functional limitation” to emphasize that in legal terms it is all three aspects considered together that constitute the disability.)

35                               I have no desire to burden with further nuances the already complicated world of equality rights, but I think that appropriate attention to the distinctions suggested by the WHO helps to bring into sharper focus the disability ground within the larger s. 15(1) framework set out in Law, supra.

36                               Not all physical or mental impairments (first aspect) give rise to functional limitations (second aspect).  This Court recently addressed a number of related employment complaints under s. 10 of the Quebec Charter of Human Rights and Freedoms, including an instance where an employer quite erroneously attributed to an applicant for a job as gardener-horticulturalist functional limitations which did not in fact arise from her physical condition, though the employer subsequently resiled from this position:  Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), [2000] 1 S.C.R. 665, 2000 SCC 27.  Where functional limitations do exist, they may be so minor as to be immaterial.  An individual who is slightly colour blind, for example, may not notice any functional limitations, unless he or she chooses to undertake employment where an ability to differentiate colours precisely is important, a home decorator for example, or a commercial airline pilot.  In other cases, technology has eliminated any functional limitation that would otherwise exist, as in the case of the short-sighted individual who wears corrective eyeglasses.  Does a person whose physical impairment continues but whose functional limitations have been eliminated continue to be a person with disabilities?  The United States Supreme Court takes the view that such individuals cease to be disabled for the purpose of the Americans with Disabilities Act; see Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999).  The same result would not necessarily follow under our jurisprudence, as discussed below.

37                               Equally, the third aspect (the socially constructed handicap) may wrongly attribute exaggerated or unjustified consequences to whatever functional limitations in fact exist.  A government inclination to write people off because of their impairment justifies scrutiny even if the impairment has resulted in very real functional limitations.  The consequences the government attaches to such functional limitations may overshoot (or undershoot) the mark.  The officials at the Brant Board of Education who undertook the difficult task of evaluating the learning potential of 12-year-old Emily Eaton, as described in Eaton, supra, must have been all too aware that another individual, similarly wheelchair bound with reduced communication capacity, turned out to be Professor Stephen Hawking.  To say that the state has an obligation not to exaggerate the functional limitations caused by serious disabilities is not to underestimate the difficulty of making the assessment.

38                               Equally problematically, there are instances where society passes directly from the first aspect (physical or mental impairment) to the third aspect (imposition of a disadvantage or handicap) without going through the intermediate consideration of evaluating the true functional limitations, if any.  An individual with a serious facial disfigurement, for example, or a person who is diagnosed with leprosy, may not have, and may never have, any relevant functional limitations, but may nevertheless suffer discrimination on account of the condition.

39                               In summary, while the notions of impairment and functional limitation (real or perceived) are important considerations in the disability analysis, 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.

40                               The different elements or aspects of the disability analysis are relevant to human rights legislation as well as to Charter scrutiny.  In fact, two recent employment cases before this Court further illustrate these relationships.  In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (referred to as “Grismer Estate”), the appellant, whose eyesight was impaired by a stroke, was assumed by the provincial Superintendent of Motor Vehicles, without individual testing, to have a sufficient level of functional limitation to disqualify him from holding a driver’s licence.  The Court held him to be entitled to an individual test to determine whether the attributed limitation did in fact exist.  On the other hand, in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, a woman firefighter named Tawney Meiorin failed a series of strenuous physical endurance tests, thus exhibiting a physical limitation broadly related to her gender, but succeeded in her complaint by showing that the standards themselves had never actually been related to the demands of firefighting.  The standards merely tracked the aerobic performance of male firefighters.  While not a case of disability as such, the Meiorin case illustrates a situation where a personal characteristic enumerated in s. 15 (gender) is shown to be related to a more limited aerobic capacity (functional limitation) but this is then wrongly converted into a state-imposed job handicap which was no less objectionable because it was misconceived rather than intentionally discriminatory.  The “problem” did not lie with the female applicant, but with the state’s substitution of a male norm in place of what the appellant was entitled to, namely a fair-minded gender-neutral job analysis.  A parallel view would be urged in cases where the functional limitation is related to a disability.

B.  The Guidelines Developed in Law v. Canada

41                               In Law, supra, the Court suggested that a s. 15 analysis proceed on the basis of “three broad inquiries” as follows (at para. 39):

First, does 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 substantively differential treatment between the claimant and others on the basis 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).  [Emphasis in original.]

42                               I therefore proceed to make these three broad inquiries into the disability claim presented by the appellant.

(1)  Differential Treatment

43                               The first step is to determine whether the CPP disability provision draws a distinction, based on one or more personal characteristics, between the appellant and some other person or group to whom he may properly be compared, resulting in unequal treatment.  The Pension Appeals Board concluded that the CPP set out objective criteria which applied equally and without distinction to every applicant.  This is true in the sense that the same set of criteria was applied to all contributors.  Such criteria, however, drew an explicit distinction between people with permanent disabilities and all other contributors, and subjected the groups to different treatment.  Moreover, the effects were very different depending on the status of a person’s disabilities during the contribution period.  As Stone J.A. pointed out in the Federal Court of Appeal, “[w]hat the recency of contributions requirement fails to take into account is that disabled persons may not be able to make contributions for the minimum qualifying period in subsection 44(1), because they are physically unable to work” (para. 11).  The 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. 

44                               Parliament has recognized this problem in two ways:  in part by dropping out the years of permanent disability in its assessment of an applicant’s contribution history, and in part by relaxing the contribution requirement to five years out of 10 (or two years out of three), thus recognizing that an individual may not have an uninterrupted contribution record for reasons outside their control, including temporary disability.  The appellant argues that the 5/10 year or the 2/3 year rules are irrelevant because they apply to everybody, whereas his particular reason for non-contribution is the object of Charter protection.  He says that because of his severe back problems he too, just as much as the permanently disabled, could not maintain the contribution level expected from able-bodied workers.  In short, the CPP both in its design and in its effect creates a distinction, based on disability, between the appellant and more able-bodied members of the work force.  Moreover, the CPP draws a further distinction between people like the appellant who were temporarily disabled from participating in the work force during the contribution period and persons with permanent disabilities who were excluded from the work force altogether during all or a part of that period of time.

(a)  The Comparative Approach

45                               The identification of the group in relation to which the appellant can properly claim “unequal treatment” is crucial.  The Court established at the outset of its equality jurisprudence in Andrews, supra, that claims of distinction and discrimination could only be evaluated “by comparison with the conditions of others in the social and political setting in which the question arises” (p. 164).  See also Law, supra, at para. 24:

This comparison determines whether the s. 15(1) claimant may be said to experience differential treatment, which is the first step in determining whether there is discriminatory inequality for the purpose of s. 15(1).

46                               The appellant contends that he ought to be compared to an ordinary member of the work force who was able-bodied during the contribution period because the appellant was being required to satisfy the level of contribution expected of an ordinary member of the work force with insufficient regard for periods of temporary disability.  However, while a s. 15 complainant is given considerable scope to identify the appropriate group for comparison, “the claimant’s characterization of the comparison may not always be sufficient.  It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups” (Law, supra, at para. 58).

47                               Such identification has to bear an appropriate relationship between the group selected for comparison and the benefit that constitutes the subject matter of the complaint.  As was pointed out in Law, supra, at para. 57:

Both the purpose and the effect of the legislation must be considered in determining the appropriate comparison group or groups.

48                               The purpose of the drop-out provision is to facilitate access of people with permanent disabilities to a CPP disability pension.  It does so by employing the same criteria (“severe” and “prolonged”) as the criteria used for the disability pension itself.  I do not suggest that faithful correspondence between the benefit in issue and the purpose of the larger plan necessarily avoids the claim of discrimination, because the discrimination may lie in the purpose or effects of the larger plan, as discussed by McLachlin J., as she then was, in Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, at para. 46 et seq.  Here, however, the appellant does not take the position that the disability pension itself is discriminatory within the meaning of s. 15.

49                               An able-bodied worker who makes more or less regular CPP contributions then suffers a permanent disability will be a paid-up CPP contributor within the 5/10 year or 2/3 year rule and thus will have no need (by reason of the disability) to resort to the drop-out provision.  He or she neither comes within the purpose of the drop-out provision, nor is disadvantaged by its effects.

50                               The people who do benefit from the drop-out provision are those who not only demonstrate a permanent disability at the date of application, but also who possessed the permanent disability during the contribution period, or so much of it as they seek to drop out of the CPP calculation.  Thus the permanently disabled are the people whose drop-out benefit the appellant seeks to share, and who in my view constitute the proper comparator group.

51                               The intervener, the Council of Canadians with Disabilities says that because in 1993 the appellant was suffering a severe and permanent disability, the better Charter argument is that Parliament improperly drew a line at the date of the application within the same group of people all of whom at that time suffered the same level of disadvantage.  The drop-out provision, however, relates to the health status in each of the 10 years prior to the 1993 application, which was the relevant contribution period, at which time the appellant enjoyed a health advantage.

52                               I therefore conclude that the appellant has established a denial of equal benefit of the law under the first step of the equality analysis.  He was denied a disability pension because he could not bring himself within the drop-out provision made available to applicants who suffered from severe and permanent disabilities during the contribution years in question.  The CPP failed to recognize the barrier posed by his temporary disability.  His objection, basically, is that the drop-out provision is underinclusive.  However, the relevant group with which he can claim “unequal treatment” is the body of CPP contributors who suffered a severe and permanent disability in the years of their respective contribution histories and who therefore did benefit from the drop-out provision to which the appellant claims entitlement on the basis of his equality rights.

(2)   Is the Impugned Distinction Based on an Enumerated or Analogous Ground?

53                               The drop-out provision makes a legislative distinction entirely on the basis of the existence and duration of the disability that rendered the applicant unemployed.  Classification on the basis of disability is subject to scrutiny, and the appellant thus satisfies the “second broad inquiry” identified in Law, supra.  I should add that even though temporary disability is not, by definition, immutable in the sense of unchangeable, it is clearly a characteristic that is unchangeable for its duration, and entirely outside the control of the individual thus burdened.

(3)   Does the Financial Disadvantage Suffered by the Appellant Under Section 44(2)(b)(iii) of the CPP Amount to Discrimination Under Section 15 of the Charter?

54                               Classification on the basis of disability is not necessarily disadvantageous.  Here, for those who qualify, it results in a CPP disability pension.  The appellant’s application was refused but this denial, even on grounds related to disability, is not enough to produce a s. 15(1) infringement.  The appellant must also show that the failure of the CPP to take into account that his contribution history was at least in part the product of his temporary disability engages the purpose of s. 15(1)  of the Charter.  The appellant must go beyond a “formalistic or mechanical approach” (Law, supra, para. 88), and address the ultimate issue which, citing Law at para. 99, may be formulated as follows:

Does the law, in purpose or effect, conform to a society in which all persons enjoy equal recognition as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect, and consideration?  Does the law, in purpose or effect, perpetuate the view that [persons with temporary disabilities] are less capable or less worthy of recognition or value as human beings or as members of Canadian society?

55                               In this connection, the appellant particularly invokes the “ameliorative purpose” of s. 15, calling in aid the need for accommodation emphasized in Eaton, supra, at para. 67:

... it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. . . .  It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.

56                               The concept of “human dignity” has been present in s. 15 since the beginning, as is chronicled by Iacobucci J. in Law, supra, at paras. 40 to 65.  Indeed it was emphasized by the then Prime Minister Trudeau in his advocacy of an entrenched Charter, when he wrote:

The very adoption of a constitutional charter is in keeping with the purest liberalism, according to which all members of a civil society enjoy certain fundamental, inalienable rights and cannot be deprived of them by any collectivity (state or government) or on behalf of any collectivity (nation, ethnic group, religious group, or other).  To use Maritain’s phrase, they are “human personalities,” they are beings of a moral order -- that is, free and equal among themselves, each having absolute dignity and infinite value.  As such, they transcend the accidents of place and time, and partake in the essence of universal Humanity.  They are therefore not coercible by any ancestral tradition, being vassals neither of their race, nor to their religion, nor to their condition of birth, nor to their collective history.  [Italics in original; underlining added.]

(Ron Graham, ed., The Essential Trudeau (1998), at p. 80.)

57                               I underline the words “free and equal among themselves, each having absolute dignity and infinite value”.  While the Court has made it clear that it is not bound by the various interpretations of Charter provisions offered by individuals “however distinguished” in the drafting process (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 508), nevertheless it is worth noting that with the decision in Law, supra, which endeavoured to unify the strands of almost 15 years of judicial interpretation, the concept of human dignity has been confirmed to have the centrality in the interpretation of s. 15 that the framers intended.  Iacobucci J. stated in Law, supra, at para. 51 that

differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way. . . .

and stated again, at para. 42 where he cited with approval the test advanced by McIntyre J. in Andrews, supra, at p. 171, that:

The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings, equally deserving of concern, respect and consideration.

L’Heureux‑Dubé J. restated the test in Egan v. Canada, [1995] 2 S.C.R. 513, at para. 39, as follows:

A person or group of persons has been discriminated against within the meaning of s. 15  of the Charter when members of that group have been made to feel, by virtue of the impugned legislative distinction, that they are less capable, or less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration.

58                               The question therefore is not just whether the appellant has suffered the deprivation of a financial benefit, which he has, but whether the deprivation promotes the view that persons with temporary disabilities are “less capable, or less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration” (emphasis added).  In Miron v. Trudel, [1995] 2 S.C.R. 418, McLachlin J. noted, at para. 132, that “distinctions made on enumerated or analogous grounds may prove to be, upon examination, non-discriminatory”.

(a)  The Contextual Factors

(i)  Pre-existing Disadvantage

59                               In Law, supra, Iacobucci J. emphasized the importance of approaching the third stage of the s. 15 analysis by considering a range of contextual factors.  (Although Law also dealt with the CPP, the benefit at issue in that case was a widow’s survivor pension, which raises a quite different context than the disability pension provisions at issue here.)  Context is important.  As Marshall J. said, dissenting in part, in Cleburne v. Cleburne Living Centre, Inc., 473 U.S. 432 (1985), at pp. 468-69, “[a] sign that says ‘men only’ looks very different on a bathroom door than a courthouse door”.

60                               Relevant contextual factors include any pre-existing disadvantage, stereotyping or vulnerability of the claimant.  These factors, though not determinative, do not favour the appellant.  While no one who has suffered back pain would be dismissive of the appellant’s condition, most of the population can probably be qualified as having experienced some form of “temporary” disability in the course of their work at one time or other.  The ranks of the temporarily disabled may have little in common except some degree of impairment or physical limitation of shorter or longer duration, and unless more precisely circumscribed, the group is really not comparable to others that have attracted s. 15 protection.  Nor does the appellant complain about stereotyping.  His objection is that while the CPP may be based on a true assessment of the “individual’s merits and capacities” (Andrews, supra, at p. 175), the provision is “too stinting” to pass muster under the Charter.

(ii)   Relationship Between Grounds and the Claimant’s Characteristics or Circumstances

61                               A second contextual issue is the relationship between the ground (i.e., disability) and the nature of the differential treatment.  Iacobucci J., in Law, supra, at para. 69, refers to Eaton, supra, and Eldridge, supra, as establishing that “avoidance of discrimination will frequently require that distinctions be made to take into account the actual personal characteristics of disabled persons”.  The mere fact that the legislation does not completely ignore the circumstances of the claimant is not a complete answer to the claim, as pointed out in Law, at para. 70:

This is not to say that the mere fact of impugned legislation’s having to some degree taken into account the actual situation of persons like the claimant will be sufficient to defeat a s. 15(1) claim.  The focus must always remain upon the central question of whether, viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating human dignity.  The fact that the impugned legislation may achieve a valid social purpose for one group of individuals cannot function to deny an equality claim where the effects of the legislation upon another person or group conflict with the purpose of the s. 15(1) guarantee.

Here the CPP is preoccupied with the plight of the CPP contributors who suffer a “severe and prolonged mental or physical disability”.  The drop-out provision is framed to be consistent with the entitlement to the disability pension itself and focuses on the “actual personal characteristics of disabled persons” (Law, supra, at para. 69).  Both the pension entitlement and the drop-out provision target a specific group of CPP contributors whose needs and circumstances correspond precisely to the purpose of the legislation.  There is no such exact fit (or correspondence) between the drop-out provision and the appellant who experienced only bouts of temporary disability from time to time during the contribution period.

62                               The alignment of the drop-out exception with the legislative purpose of the CPP disability pension distinguishes this case from the situation in Vriend v. Alberta, [1998] 1 S.C.R. 493.  In that case, the ameliorative purpose of the Individual’s Rights Protection Act was not advanced by the exclusion of sexual orientation.  Indeed, the exclusion defeated aspects of the stated legislative purpose of a comprehensive human rights code to promote a society “where each and every man and woman will be able to stand on his own two feet and be recognized as an individual and not as a member of a particular class” (Cory J., at para. 2, quoting the Alberta Hansard).  Here there is no such contradiction between the impugned measure and the laudable legislative purpose.

63                               In the relevant years prior to 1993, the appellant was not permanently disabled, and the CPP targeted the drop-out provision at those who were, i.e., whose greater need at the time corresponded to the purpose of creating the statutory benefit in the first place.  Moreover, the CPP took into account the “actual personal characteristics” of temporary non-contributors, including the temporarily disabled, by permitting a sporadic contribution history under the 5/10 years or 2/3 years rule.  The fact this accommodation applied to individuals who failed to make their CPP contributions for reasons (e.g., plant closures) totally unrelated to the Charter, as well as to people like the appellant with Charter arguments, does not diminish the fact that an accommodation was made.

64                               The appellant’s argument depends upon the correctness of his choice of able-bodied workers as the comparator group.  He says, “The appellant Granovsky wishes to make it clear that his submission is that he is relying on a comparison between temporary disabled persons and able-bodied persons.  The fact that some adjustment has been made for ‘permanently disabled’ persons is not the gravamen of Mr. Granovsky’s complaint.”  If, as I believe, he has picked the wrong comparator group, the rest of his analysis collapses under the weight of an erroneous premise.

(iii)  Ameliorative Purpose or Effect

65                               A third related contextual factor is the ameliorative purpose or effect of the impugned law on other groups in society.  As M. D. Lepofsky has justly observed:

Most of our mainstream institutions, laws, organizations, buildings, telecommunication systems, schools and universities, public policy initiatives, job descriptions, transit services and other facilities are designed and operated on the unarticulated, erroneous and unfair premise that only persons without disabilities could, would or should participate in or use them.

(“A Report Card on the Charter’s Guarantee of Equality to Persons with Disabilities after 10 Years -- What Progress?  What Prospects?” (1998), 7 N.J.C.L. 263, at p. 270.)

66                               In this sense, s. 15(1) recognizes the legitimate desire of persons with disabilities to join in the everyday world taken for granted by the rest of the population.  Equality has to do with “similarities that transcend as well as differences that endure”:  Minow, supra, at p. 124.

67                               In this case, however, the group whose situation Parliament sought to ameliorate is the more disadvantaged group of the permanently disabled.  As the Court held in Law, in terms applicable to the present appeal, at para. 72:

An ameliorative purpose or effect which accords with the purpose of s. 15(1)  of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation.  [Emphasis added.]

I do not suggest that s. 15 claims can properly be decided by pitting groups of disadvantaged people against each other to determine who is more disadvantaged.  The fact the CPP drop-out provision “corresponds to the greater need or the different circumstances” of the permanently disabled is, however, a relevant contextual factor.

(iv)  Nature of the Interest Affected

68                               A further contextual factor is the nature and scope of the interest represented by the impugned law.  Persons with disabilities have been the target of a variety of legislative responses through the years.  In an earlier era, laws were imposed to protect society against the presumed impact of impairments.  Thus people with mental disabilities were classified as “lunatics” and precluded from exercising a number of civil rights, including voting.  A later generation of laws tried to ameliorate the financial effect of a disabled person’s functional limitations with the solace of financial benefits, as in the comprehensive legislation passed to assist disabled war veterans.  The more recent wave of legislative activity, including the provincial human rights legislation, seeks to improve the legal position of individuals with disabilities to counteract socially constructed handicaps, as La Forest J. noted in Eldridge, supra, at para. 56:

... 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.

69                               Here the “interest” represented by the impugned law is the drop-out provision which, if applied, might open the door to a disability pension.  The appellant is entitled to have taken into consideration the actual impact on him of the denial of that financial benefit.  (He says he will be thrown onto the welfare rolls.)  While Parliament was not required to create the CPP benefit scheme in the first place, having decided to do so, it must not confer benefits in a discriminatory manner contrary to s. 15(1).  Thus, in Vriend, supra, when the Alberta legislature set out to create a comprehensive human rights code, its decision to exclude sexual orientation from the prohibited grounds of discrimination was held to be unconstitutionally underinclusive.  Here, in contrast, the design of the CPP contribution rules, and in particular Parliament’s delineation of the drop-out provision, are directed to a narrow class of persons seeking a narrowly restricted benefit.  In Vriend, the underinclusion was designed to reinforce the rejection of gays and lesbians as individuals equally deserving of respect.  No such lack of respect or loss of dignity is manifested in the CPP drop-out provision, which is simply tailored to correspond to the requirements of the pension benefit itself, none of which are challenged by the appellant.  In these circumstances, in my opinion, the appellant fails to show that viewed from the perspective of the hypothetical “reasonable” individual who shares the appellant’s attributes and who is dispassionate and fully apprised of the relevant circumstances (Egan, supra, at para. 56; Law, supra, at para. 60), his dignity or legitimate aspirations to human self-fulfilment have been engaged.

70                               In other words, the appellant has not demonstrated a convincing human rights dimension to his complaint.  Assuming he can show an impairment and significant functional limitations, he fails to show that the government’s response through the design of the CPP or its application demeans persons with temporary disabilities, or casts any doubt on their worthiness as human beings. 

(b)  Disability Jurisprudence

71                               The appellant contends that his claim is fully consistent with the principles laid down in this Court’s jurisprudence and refers in his factum to Eldridge, supra (factum paras. 27, 37, 38 and 94), and to Eaton, supra (factum paras. 38 and 94).  He also cites Gibbs, supra (factum para. 42), and the dissenting judgment of Lamer C.J. in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 (factum paras. 35 and 37), on all of which he relies.  While the prior case law is rightly presented as supportive of people with disabilities, I think with respect that the prior decisions do not support this particular claim, for reasons that I will endeavour to outline briefly.

(i)  Eaton v. Brant County Board of Education,  [1997] 1 S.C.R. 241

72                               The Eaton case involved the disputed school placement of a 12-year-old girl with cerebral palsy.  The Board of Education had placed Emily in a “special education class”.  Emily’s parents wanted her to remain in the ordinary education stream.  There is no doubt that Emily suffered severe impairment.  The cerebral palsy had caused considerable brain damage (the impairment) resulting in an inability to communicate except in the most basic terms, her lack of control over her body which required that she use a wheelchair, and a number of loosely identified learning disabilities (the functional limitation).  In terms of the third aspect (the handicap), Emily argued that the School Board’s response exacerbated her isolation, undermined her progress toward integration and self-fulfilment, and thus attacked the core purpose of her s. 15(1) equality rights.  It was established that her classroom behaviour -- “the increasing incidents of crying, sleeping and vocalization” (Sopinka J., at para. 19) -- undoubtedly created some disruption for the “mainstream” children around her and raised a serious potential issue as to whether the special educational placement was for Emily’s benefit or for the presumed benefit of her mainstream classmates.  The Court therefore examined whether the criteria (which on their face were directed solicitously to her education needs) were in fact discriminatory in that they exaggerated the benefits of segregation and minimized the benefits to Emily that would flow from her inclusion in the educational mainstream.       

73                               While this Court refused to read into s. 15 a presumption in favour of inclusion in the mainstream (on the basis that inclusion might be contrary to the best interest of a person with severe disabilities because the application of the presumption might compel a bad placement in some cases), Sopinka J. nevertheless clearly stated that, viewed in human rights terms, “[i]ntegration [of Emily in the mainstream environment] was the preferred accommodation” (para. 68).  Reference might be made here to the similar sentiment of Marshall J., dissenting in part, in Cleburne, supra, at p. 461, that exclusion “deprives the [disabled] of much of what makes for human freedom and fulfillment – the ability to form bonds and take part in the life of a community”.

74                               Emily’s claim of discrimination was defeated on the facts.  The Board’s local placement committee, in a decision upheld after a 21-day hearing by the province’s Special Education Tribunal, had fairly (in the Court’s view) determined that integration had had “the counterproductive effect of isolating her, of segregating her in the theoretically integrated setting” (para. 72 (emphasis added)).  Walls do not a prison make and inclusion in a mainstream classroom is not necessarily a liberating or self-fulfilling experience.  The Court could find no evidence that the School Board had adopted an insensitive or self-serving response to Emily’s condition, or that the criteria used in placing Emily in a special education program failed to take into account the desirability of integrating disabled students into mainstream education.  On the contrary, the process had put the focus on substantive equality, not merely formal equality.  McIntyre J. in Andrews, supra, counselled, at p. 169:  “[the] accommodation of differences . . . is the essence of true equality” (quoted by Sopinka J. at para. 66).  A reading of the decision as a whole makes it clear, I think, that Emily’s claim might have succeeded if the appellant Board had wrongly attributed to Emily functional limitations which she did not in fact possess, or if the Court had been persuaded that the Board’s response to the challenge posed by Emily’s placement had itself violated Emily’s dignity as a human being equally deserving of consideration, or placed discriminatory obstacles in the way of her self-fulfilment.  In short, Emily Eaton’s claim failed for some of the same principled reasons that, in my view, require rejection of the appellant’s s. 15(1) claims in this case.

(ii)   Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519

75                               The appellant relies on the dissenting reasons of Lamer C.J.  In that case, the appellant had established a physical impairment (amyotrophic lateral sclerosis (ALS), widely known as Lou Gehrig’s disease) which produced such severe loss of muscular control (functional limitation) that she expected to be unable to commit suicide without assistance when her life inevitably deteriorated to the point of utter intolerability.  She claimed that criminalizing the act of assisting her suicide imposed an indignity related entirely to her physical disability and thereby violated her s. 15 rights (the state-imposed handicap).  Whereas people without disabilities could, if they wished, commit suicide unassisted, she because of her disability could not do so, and was thus differentially impacted by the legal prohibition on suicide assistance.  Lamer C.J. recognized that the legal handicap was not the inevitable product of the disease, but a consequence imposed by society through s. 241 (b) of the Criminal Code .  Leaving aside the fact that the other members of the Court declined to characterize the issue raised by Sue Rodriguez as a s. 15(1) issue, the analysis of the Chief Justice is of no help to the appellant because Sue Rodriguez, like Emily Eaton, was comparing her situation to that of able-bodied people, and a breach of s. 15(1) was found by the Chief Justice on that basis.  In this case, as stated, the proper comparator is the class of persons who suffer from severe and permanent disabilities.

(iii)  Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566

76                               The Gibbs case, like the present appeal, involved a claim of discriminatory exclusion from disability benefits.  Unlike the present appeal, Gibbs was not a Charter case.  It did, however, proceed on a comparable analysis.  An employer provided a medical insurance plan under which any employee unable to work by reason of physical or mental disability received replacement income.  The benefit terminated after two years in the case of persons suffering a mental disability (unless the applicant was institutionalized), whereas persons suffering a physical disability continued to receive the income benefit indefinitely.  The Court held that this income replacement benefit discriminated against persons with a mental disability.  The appeal turned on whether the employer’s health plan, which on the face of it made the same insurance available to all employees without discrimination, was nevertheless discriminatory in its design.  Scrutiny of the design was required because otherwise, the employer (or, in the present appeal, the state) could escape the charge of discrimination by pointing out that the plaintiff, for whatever reason, simply fell outside the targeted group.  Sopinka J., for the majority, recognized this danger, and upheld the complaint on the basis that persons with mental disabilities were treated in comparable circumstances less favourably than persons with other health disabilities.  The proper comparison was not between the respondents and the able-bodied employees, but between two classes of disabled persons.

77                               The appellant relies on the Gibbs analysis for his proposition that here, as in Gibbs, a distinction has wrongly been made between different disabilities.  The difference, however, is that in Gibbs the health plan stigmatized people with mental disabilities as being less worthy of benefits than those with physical handicaps, whereas here, there is no stigma in being treated as “better off” where in fact that is the reality of the appellant’s medical history.

(iv)  Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624

78                               In the Eldridge case, the three appellants were born deaf, and their hearing impairment led to the functional limitation that without sign language interpreters they could not communicate effectively with their doctors and other health care providers.  Lack of effective communication diminished the health care benefits and increased the risk of misdiagnosis and ineffective treatment.  As in Eaton, supra, therefore, the physical impairment was established, as was the consequent functional limitation.  Unlike Eaton, the government’s response could not be portrayed as being in the best interest of the deaf appellants.  Nevertheless, the government contended that deafness is a condition of the user that really has nothing to do with the health scheme, and that in refusing sign language interpreters the health plan treated the deaf and non-deaf on an equal footing.  The majority opinion in the British Columbia Court of Appeal drew a distinction between the adverse effects to the complainant attributable to the legislation and those that exist independently of the impugned legislation (i.e., the deafness).  In this Court, La Forest J. rejected as too broad the general proposition that “government is not obliged to ameliorate disadvantage that it has not helped to create or exacerbate” (para. 66).  Adequate communication, he held, was “an integral part of the provision of medical services” (para. 69).  The failure to provide sign language interpreters created a second class group of health plan users who were denied the full benefits of the health scheme available to the non-deaf.  The government was not required to provide “extra” services.  It was required to provide the medical services its Commission had already recognized as “necessary” in a way that was understandable and usable to the deaf.  The government had looked at its health scheme only from the perspective of a more able-bodied user.  It was, from the deaf user’s perspective, the differentiated delivery of a theoretically undifferentiated medical service that infringed s. 15(1) and failed to support a s. 1 justification.

(4)  The Drop-Out Provision Does Not Infringe the Charter

79                               I return to the observation of Sopinka J. in Eaton, supra, at para. 66, that “the purpose of s. 15(1)  of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons”.  The differential treatment afforded by the s. 44 drop-out provision ameliorates the position of those with a history of severe and permanent disabilities.  It does not assist more fortunate people such as the appellant, but in the context of a contributory benefits plan, Parliament is inevitably called upon to target the particular group or groups it wishes the CPP to subsidize.  Drawing lines is an unavoidable feature of the CPP and comparable schemes.  Parliament did not violate the purpose of s. 15(1) by seeking to benefit individuals with a history of severe and prolonged disability.  (In fact, the appellant wants more advantageous treatment than is given to the permanently disabled.  The CPP at present drops out the contribution requirement at the rate of one month at a time when the statutory conditions are satisfied.  Under the appellant’s scheme, by contrast, seven months’ disability would “drop” 12 months out of the CPP calculation instead of only seven months.)

80                               The “purposive” interpretation of s. 15 puts the focus squarely on the third aspect of disabilities, namely on the state’s response to an individual’s physical or mental impairment.  If the state’s response were, intentionally or through effects produced by oversight,  to stigmatize the underlying physical or mental impairment, or to attribute functional limitations to the appellant that his underlying physical or mental impairment did not warrant, or to fail to recognize the added burdens which persons with temporary disabilities may encounter in achieving self-fulfilment, or otherwise to misuse the impairment or its consequences in a discriminatory fashion that engages the purpose of s. 15, an infringement of equality rights would be established.  But neither Parliament in the design of the CPP, nor the Minister in his administration of the CPP in relation to the appellant, did any of these things, in my opinion. 

81                               While I have every sympathy for the appellant’s injured back and the problematic employment history to which it may have contributed, I do not believe that a reasonably objective person, standing in his shoes and taking into account the context of the CPP and its method of financing through contributions, would consider that the greater allowance made for persons with greater disabilities in terms of CPP contributions “marginalized” or “stigmatized” him or demeaned his sense of worth and dignity as a human being. 

82                               In these circumstances, my opinion is that the CPP drop-out provision does not engage the larger human rights purpose of s. 15(1)  of the Charter, and the appellant’s claim that s. 15 has been infringed must therefore be rejected.

C.  Section 1  of the Charter

83                               As there is no violation of s. 15(1), it is not necessary to turn to s. 1.  It is thus unnecessary to deal with the appellant’s argument that the government has failed “to show why it is reasonable to deny a modest adjustment which would do justice to Mr. Granovsky and people like Mr. Granovsky”.  As the appellant has failed to show a violation of his s. 15(1) rights, the issue of justification does not arise.

VIII.  Disposition

84                               I would dismiss the appeal.  The respondent has not requested costs and none are awarded.  The constitutional questions should be answered as follows:

(1)  Does the Canada Pension Plan , R.S.C., 1985, c. C-8 , discriminate against persons on the basis of physical or mental disability by including periods of physical or mental disability in a claimant’s contributory period, as such period is determined pursuant to s. 44(2)(b) of that Act, in claims for a disability pension under that Act, contrary to s. 15  of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11?

Answer:              No.

(2)       If so, does the discrimination come within only such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under section 1  of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11?

Answer:              The second constitutional question need not be answered.

Appeal dismissed.

Solicitors for the appellant:  Booth, Dennehy, Ernst & Kelsch, Winnipeg.

Solicitor for the respondent:  The Deputy Attorney General of Canada, Ottawa.

Solicitors for the intervener:  Osler, Hoskin & Harcourt, Toronto.