Pubdate: Fri, 21 Apr 2006
Source: Northern Life (CN ON)
Copyright: 2006 Northern Life
Contact:  http://www.northernlife.ca/
Details: http://www.mapinc.org/media/2396
Author: Keith Lacey, Northern Life

SUPREME COURT RULES ADDICTION CONSIDERED DISABILITY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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