Granovsky Case Factum

Court file No. 26615

IN THE SUPREME COURT OF CANADA

(On Appeal from the Federal Court of Appeal)

BETWEEN:

ALLAN GRANOVSKY

Appellant

- and -

MINISTER OF EMPLOYMENT AND IMMIGRATION

Respondent

- and -

COUNCIL OF CANADIANS WITH DISABILITIES

Intervener

FACTUM OF COUNCIL OF CANADIANS WITH DISABILITIES

PART I - STATEMENT OF FACTS

1. The Intervener, Council of Canadians with Disabilities ("CCD"), formerly known as The Coalition of Provincial Organizations of the Handicapped, was founded in 1976 and is a national, federally incorporated, non-profit umbrella organization which represents people with disabilities to promote the full participation and equal opportunity of people with disabilities in Canadians society. CCD's mandate includes providing a democratic structure for persons with disabilities to advance their concerns, improving the status of persons with disabilities and monitoring federal legislation affecting persons with disabilities.

2. CCD adopts the Appellant's recitation of the facts.

PART II - POINTS IN ISSUE

3. By order of the Chief Justice of Canada dated February 16, 1999, the following constitutional questions were stated for this Court's consideration:

(a) Does the Canada Pension Plan Act, 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 claimants contributory period, as such period is determined pursuant to paragraph 44(2)(b) of that Act, in claims for a disability pension under that Act, contrary to section 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?

(b) If so, does the discrimination come within only such reasonable limits prescribed by law as can be demonstratively 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?

PART III - ARGUMENT

1. Disability Benefits Under the Canada Pension Plan ("CPP")

4. The CPP was designed to be a comprehensive social insurance scheme, universally available to all Canadians who suffer a loss of earnings owing to retirement, disability, or the death of a wage-earning spouse or parent.

5. The disability pension, an integral element of the CPP since that scheme came into force in 1965, is an income replacement measure for those persons determined to be "disabled" within the meaning of the CPP. To qualify, applicants must be suffering from "a severe and prolonged mental or physical disability". A disability is deemed to be "severe" if the person is "incapable of regularly 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".

CP, s. 42(2)(a)

6. Applicants 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 two of the last three years or five of the last ten years of the contributory period.

CPP, ss. 44(1)(b), 44(2)(a)

7. The overriding objective of providing benefits to those in need has ensured a certain amount of flexibility in the scheme. In keeping with this objective, Parliament has carved out exceptions to the recency requirements for specific groups whose circumstances interfere with their equal participation in the workforce and for whom the strict application of the recency of contributions requirement might unduly restrict access to disability benefits.

8. The disability pension provisions of the CPP include a "drop-out" provision to protect contributors who were disabled within the meaning of the CPP and receiving a disability pension at some point prior to their current application for benefits (the "disability drop-out provision"). For these contributors, the contributory period does not include any months during which the contributors suffered from a "severe" and "prolonged" mental or physical disability and collected a disability pension. Similar protection is provided for those individuals who left the workforce or had low earnings because they were at home caring for children. The contributory period for such a person does not include any months in which he or she was a family allowance recipient.

CPP, ss. 44(2)(b), (iii) and (iv)

9. The impact of the recency of contributions requirement of the CPP is a stark example of a rebounding discriminatory effect on persons with disabilities that while often "severe" are not "prolonged" within the meaning of the CPP. In this case, the Appellant, who seeks a disability pension on the ground that he cannot work due to a disability that is now "prolonged", cannot establish his entitlement to it because for too much of the portion of the ten-year period within which he was required to make five years' worth if contributions to the CPP, he could not work due to a disability that was "temporary" in nature. No exception to the strict application of the recency of contributions requirement has been made for individuals in this position.

10. The Appellant's disadvantaged position in relation to the recency of contributions requirement is shared by many Canadians whose disabilities are progressive, intermittent, or otherwise variable, or who have an uncertain prognosis. CCD submits that the recency of contributions requirement and the exclusion of the "temporarily" disabled from the disability drop-out provision discriminates against this group of persons and thereby violates subsection 15(1) of the Charter.

2. Subsection 15(1) of the Charter

11. CCD observes that since the majority of the Federal Court of Appeal held in this case that there was a violation of subsection 15(1) of the Charter, and there was no cross-appeal by the Respondent on the point, the principal issue in this case is the application of section 1 of the Charter. However, given the matter in which this appeal has been argued in factums of the parties, CCD makes the following submissions concerning the interpretation and application of subsection 15(1).

12. In the recent decision of this Court, in Law v. Canada (Minister of Employment and Immigration), it was established that, although a Court need not adhere to a strict formula, it should make three broad inquires when called upon to determine a discrimination claim under subsection 15(1). First, does the impugned law draw a formal distinction between the claimant and others on the basis of one or more personal characteristics or fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively different treatment between the claimant and others in the basis of one or more personal characteristics? 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 subsection 15(1) of the Charter?

Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12, at para. 39

(a) The Appropriate Comparator

13. Equality as guaranteed by subsection 15(1) of the Charter is a comparative concept. courts must identify differential treatment as compared to other groups or persons. Generally, the Court will defer to the claimant's characterization of the appropriate comparator group or person. However, the Court is not bound by that characterization and has the power to refine it where warranted.

Law, supra at paras. 56 and 58

Winko v. Forensic Psychiatric Institute, [1999] S.C.J. No. 31, at para. 79

14. In the present appeal, the Appellant has chosen to compare himself to able-bodied persons for the purpose of the discrimination inquiry. The Respondent has analyzed the issues by comparing the Appellant to both able-bodied persons and whose with "prolonged' disabilities as that term is defined by the CPP. CCD submits that the disability pension provisions of the CPP discriminate against the Appellant and others who have experienced period of "temporary" disability as compared to either able-bodied persons or those suffering from "prolonged" disabilities.

(b) The Existence of Differential Treatment

(i) Disabled/Able-Bodied Comparison

15. The recency of contributions requirement of the CPP does not make an explicit distinction based on temporary disability by singling out the temporarily disabled for different treatment from able-bodied persons. Rather, on its face, the impugned provision apples equally to all persons. Indeed, both the Pension Appeals Board and McDonald J. A., dissenting in the Federal Court of appeal, relied on this point as a basis for finding that subsection 15(1) of the Charter had not been violated.

Reasons for Judgment of the Federal Court of Appeal (McDonald J. A.), para. 17, page 133, Case on Appeal

Reasons of the Pension Appeals Board, pages 18-21, Case on Appeal

16. However, this Court has consistently held that there need not be a formal distinction drawn by the impugned legislation to trigger the protection of subsection 15(1). Rather, where legislation fails to take into account the true characteristics of a disadvantaged persons or group by treating all persons in a formally identical manner, this will be sufficient to found a claim of "adverse effects" discrimination. In these cases, discrimination arises from the failure to treat an individual differently from others when the special position of that individual mandates that the legislation should do so.

Winko, supra, at paras. 83-84

Law, supra, at para. 36

17. The adverse effects discrimination analysis is particularly relevant in equality cases involving persons with disabilities.

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 64:

Adverse effects discrimination is especially relevant in the case of disability. The government will rarely single out disabled persons for discriminatory treatment. More common are laws of general application that have a disparate impact on the disabled.

See also:

Eaton v. Brant (County) Board of Education, [1997] 1 S.C.R. 241, at paras. 66 and 67

18. CCD submits that although neutral on its face, the recency of contributions requirement of the CP disability pension results in differential treatment as between able-bodied persons and the temporarily disabled. The requirement fails to take into account the burdens and added challenges unique to this group which often act to prevent regular participation in the workforce. While all persons run the risk of involuntary unemployment owing to forces beyond their control, only persons with disabilities experience period where working is impossible by virtue of a physical or mental impairment.

19. By failing to accommodate the differences which in fact exist between persons such as the Appellant and able-bodied applicants, the impugned legislation denies the temporarily disabled equal access to the disability pension and consequently denies this group equal benefit of the law.

(ii) Temporary/Prolonged Disability Comparison

20. CCD respectfully submits that differential treatment in this case also results from the drawing of a formal distinction between those persons with disabilities who suffer from "prolonged" disabilities within the meaning of the CPP and persons such as the Appellant whose disabilities are temporary in nature. By limiting the disability drop-out provision to those who at some point prior to applying for a disability pension suffered a "prolonged" disability, the legislation subjects persons with disabilities which are progressive, episodic, or of uncertain prognosis, to an unequal burden. The legislation forces this subset of persons with disabilities to "sink or swim within the mainstream environment", penalizing them for periods of low to zero earnings because their disability prior to their application for benefits was of a finite duration. CCD submits that is an irrational distinction, as irrespective of whether a claimant suffers a "prolonged" or "temporary" disability prior to applying for a pension, if the disability is "severe" both groups will experience periods of involuntary withdrawal from the workforce owing to physical or mental incapacity.

Eaton, supra, at para. 67

21. In Gibbs v. Battlefords & District Co-operative Limited, Sopinka, J., writing for the Court, held that a finding of discrimination on the basis of disability, even though only a subset of persons with disabilities are mistreated, is permissible. In this regard, a "disability-disability" as opposed to a "disability-able-bodied" comparison was found to be consistent with the discrimination jurisprudence of this Court. Thus, CCD submits that it is open to the Court in this appeal to find that the exclusion of the temporarily disabled from the disability drop-out provision of the CPP results in differential treatment as between those suffering from a "temporary" as compared to a "prolonged" disability.

Gibbs v. Battlefords & District Co-operative Limited, [1996] 3 S.C.R. 556, at para. 28

3. Differential Treatment on the Basis of an Enumerated or Analogous Ground

22. At paragraph 65 of the Respondent's factum it is suggested that protection for disabilities under the Charter ought to extend only to "serious" disabilities that are either "totally permanent, immutable, or at least very difficult to change." It is alleged that other enumerated grounds "like disability" share these same characteristics. On this basis, the Respondent contends that the Appellant, owing to the nature of his disability, has not been subjected to differential treatment on the enumerated ground of disability under subsection 15(1) of the Charter.

23. With respect, the Respondent's suggestion that the immutability of characteristics is a necessary element of the enumerated grounds of discrimination is premised on an archaic view of Charter law. Indeed, as noted by McLachlin J. writing for the majority in Miron v. Trudel, "while discriminatory group markers often involve immutable characteristics they do not necessarily do so". Rather, in her view, the enumerated grounds of discrimination in subsection 15(1) simply identify group characteristics which often serve as irrelevant grounds of distinction between people.

Miron v. Trudel, [1995] 2 S.C.R. 418 at paras. 157 and 159

24. CCD submits that the definition of disability which the Respondent urges this Court to adopt reflects an impoverished vision of disability as an enumerated ground under the Charter. The inclusion of disability as an numerated ground of discrimination gives recognition to the vulnerability of persons with disabilities and the unique burdens they bear, which often interfere with their equal participation in a society designed for the able-bodied. The Charter is an invaluable tool by which members of this group can maximize their access to all the opportunities, benefits, and advantages available to other members of society. To suggest that its protection extends only to those with permanent or immutable disabilities in effect condones the violation of the human dignity and freedom of the temporarily disabled for the duration of their incapacity. Such a suggestion is tantamount to saying that those who suffer from disabilities which are episodic, intermittent, or otherwise variable must endure discrimination solely because they are likely to recover, despite the fact that when their impairment is active there is no practical difference between this group and the permanently disabled.

25. The position advocated by the Respondent unjustifiably places a temporal limitation on the protections of the Charter and invites an additional measure of discrimination against those who are temporarily disabled by suggesting that the finite duration of their disability can somehow excuse any lack of concern, respect, and consideration they might experience. CCD submits that a limitation of this sort undermines the Charter's guarantee of substantive equality and runs contrary to the broad, purposive, and contextual approach to the Charter that has been established by this Court.

Law, supra

M v. H., [1999] S.C.J. No. 23

26. Furthermore, the Respondent's definition of a disability deserving of Charter protection contradicts provincial human rights legislation which specifically defines the terms handicap or disability. The human rights Acts of Ontario, New Brunswick and Newfoundland expressly protect persons with any degree of disability and neither of these Acts, nor those of Nova Scotia and Saskatchewan, draw any distinctions on the basis of the permanency or immutability of the disability. The Canadian Human Rights Act makes no such distinction.

Ontario Human Rights Code, R.S.O. 1990, c. H. 19, s. 10(1)

New Brunswick Human Rights Act, R.S.N.B. 1973, c. H-11, as amended, s. 2

Newfoundland Human Rights Code, R.S. Nfld. 1990, c. H-14, s. 2

Nova Scotia Human Rights Act, R.S.N.S. 1989, c. 214, as amended, s. 3

Saskatchewan Human Rights Code, S.S. 1979, s.-24.1, as amended, s. 2(1)

Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 25

27. On the basis of the foregoing, CCD submits that disability as an enumerated ground of discrimination under subsection 15(1) of the Charter ought to be interpreted to include all disabilities irrespective of their severity or duration. Thus, it is the position of CCD that the disability pension provisions of the CPP subject the Appellant to differential treatment on the basis of an enumerated ground.

4. The Existence of Discrimination in a Purposive Sense

28. The relevant inquiry at this stage of the subsection 15(1) analysis is whether the differential treatment imposes a burden or withholds a benefit in a manner that fails to recognize subsection 15(10's purpose of protecting ad promoting a claimant's essential human dignity.

Law, supra, at para. 88

Winko, supra, at para. 77

M. v. H. , supra, at para. 65

29. There are a variety of contextual factors to which a claimant might refer in order to demonstrate that the impugned legislation has the effect of demeaning his or her dignity. Of particular relevance in claims of discrimination on the basis of disability is the correspondence, or lack thereof, between the ground on which the claim is based and the actual needs, capacity, and circumstances of the claimant or others.

Law, supra, at paras. 69-71

30. By treating the temporarily disabled and able-bodied in a formally identical manner, the CPP disability pension provisions ignore the special situation of the temporarily disabled which can cause extended periods of inability to work owing to physical or mental incapacity. The CPP fails to make any accommodation for the years of low or zero earnings in which a temporary disability kept such applicants from participating in the workforce. Thus, the temporarily disabled are denied equal access to benefits as compared to the able-bodied in a manner that fails to recognize subsection 15(1)'s purpose of taking into account the true characteristics of a group and accommodating these characteristics.

Eaton, supra, at para. 67:

It is the recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of subsection 15(1) in relation to disability.

31. In situations such as these, Parliament has a duty to ensure that members of disadvantaged groups benefit equally from services provided to the general public. As noted by LaForest J. in Eldridge, supra, "[t]his Court has repeatedly held that once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner [citations omitted]. In many circumstances, this will require governments to take positive action, for example by extending the scope of a benefit to a previously excluded class of persons [citation omitted]."

Eldridge, supra, at paras. 73 and 79

32. In the legislation at issue in the present appeal, Parliament has already taken steps to accommodate those who suffered from prolonged disabilities and collected a disability pension prior to their current application. The exclusion of any months in which the contributor was disabled within the meaning of the CPP from his or her contribution period recognizes that disability can inhibit equal access to CPP benefits. What Parliament has failed to recognize, however, is that all "severe" disabilities, irrespective of their expected duration, will cause involuntary absences from the workplace and restrict the ability to make regular contributions to the CPP.

33. Thus, the discrimination suffered by the temporarily disabled under the disability pension provisions of the CPP is twofold. First, the recency of contributions requirement ignores the true characteristics of the temporarily disabled as compared to the able-bodied by treating both groups in an identical manner. Second, by creating an exception to this requirement only for those with "prolonged" disabilities, the legislation has recognized and accommodated the relevant characteristics of one subset of persons with disabilities but has failed to acknowledge that these same relevant characteristics are shared by the group as a whole.

34. For the temporarily disabled, this failure to recognize their actual needs, capacity, and circumstances not only violates a central purpose of subsection 15(1) in relation to disability, but it also demonstrates a lack of concern, respect, and consideration for such persons as members of Canadian society and thereby harms their essential human dignity.

35. A second contextual factor illustrative of the demeaning effect of the pension provisions of the CPP on the dignity of the temporarily disabled is the pre-existing disadvantage and vulnerability of this group.

Law, supra, at para. 63:

As has been consistently recognized throughout this Court's jurisprudence, probably the most compelling factor favouring a conclusion that differential treatment imposed by legislation is truly discriminatory will be, where it exists, pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group [citations omitted]. These factors are relevant because, to the extent that the claimant is already subject to unfair circumstances or treatment in society by virtue of personal characteristics and circumstances, persons like him or her have often not been given equal concern, respect or consideration. It is logical to conclude that in most cases, further differential treatment will contribute to the perpetuation or promotion of their unfair social characterization, and will have a more severe impact on them, since they are already vulnerable.

36. Historically, persons with disabilities as a group have had to contend with the prejudicial attitudes of the able-bodied majority which have relegated this group to a position of persistent social and economic disadvantage.

Eldridge, supra, at para. 56:

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion or marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions [citation omitted]. This historic disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the `equal concern, respect and consideration' that subsection 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 [citation omitted]. One consequence of these attitudes is the persistent social and economic disadvantage faced by the disabled. Statistics indicate that persons with disabilities, in comparison to non-disabled persons, have less education, are more likely to be outside the labour force, face much higher unemployment rates, and are concentrated at the lower end of the pay scale when employed [citation omitted].

37. Differential treatment of the temporarily disabled that denies this group equal access to the benefits of the CPP disability pension can only serve to exacerbate the economic difficulties so common amongst members of this historically disadvantaged group. Moreover, for persons such as the Appellant who suffer from temporary, episodic, or progressive disabilities, resisting the label of "permanently disabled" and making efforts to participate in the workforce (when able to do so) carries with it a tremendous risk of losing the right to a disability pension and potentially a retirement pension as well. Thus, the legislation encourages the disabled to remove themselves from the workforce at the earliest time, thereby perpetuating the historically established patterns of behaviour that have resulted in economic and social disadvantage. The failure of the scheme to acknowledge the years of work and CPP contributions that have been made by such persons diminishes the value of that work and reinforces prejudicial attitudes with respect to the value of the participation of the disabled in society as a whole.

M. v. H., supra, at para. 71

39. In the present appeal, those whose disabilities were at the onset temporary, periodic or episodic, are excluded from the ameliorative disability drop-out provision which creates an exception to the recency of contributions requirement.

40. At paragraph 63 of the Respondent's factum, it is stated that the purpose of the disability drop-out provision is "to allow disadvantaged persons with severe disabilitiesÂ…to exclude or drop out those months when they are unable to work because they are in receipt of a disability pension." More accurately, such persons are unable to work because they are, at the time they are unable to work, disabled. It cannot be said that those whose disability is temporary, progressive or episodic at its onset are in a more advantaged position compared to those who suffer from equally severe disabilities and experience periods where they too are unable to work and are in receipt of disability benefits. The only difference between the two groups is that the Appellant and others in his position must rely on provincial and/or private benefits rather than those provided under the CPP.

41. Therefore, CCD submits that persons who suffer from temporary disabilities prior to applying for a disability pension are in an analogous situation to those with prolonged disabilities with respect to the circumstances addressed by the disability drop-out provision of the CPP and neither group is more advantaged than the other in this context. Accordingly, the ameliorative purpose and effect of the drop-out provision does nothing to diminish the charge of discrimination in this case.

42. On the basis of the foregoing, CCD submits that the disability pension provisions of the CPP violates subsection 15(1) of the Charter.

5. Section 1 of the Charter

43. CCD submits that any attempt to justify a violation of subsection 15(1) pursuant to section 1 of the Charter must attract enhanced judicial scrutiny and proceed on a principled basis, recognizing the fundamental nature of the equality guarantee contained in section 15 of the Charter, which, as this Honourable Court has stated, "expresses a commitment - deeply ingrained in our social, political and legal culture - to the equal worth and human dignity of all persons" (Eldridge, supra, at page 677), and "entails the promotion of a society deserving of concern, respect and consideration" (Andrews, supra, at page 171).

44. CCD submits that for a violation of subsection 15(1) to be justified to section 1 of the Charter, there must be clear and convincing evidence that the discriminatory requirement is rationally related to a pressing and substantial legislative objective; that the government canvassed all available means of achieving its objective without the imposition of the discriminatory requirement; that the discriminatory requirement is a demonstrably necessary and measured means of achieving that objective; and that the discriminatory requirement has been imposed in a manner that impairs the Charter guarantee to the minimum possible degree. In this case, such evidence ought to have included evidence of the social and economic consequences of both the violation and the proposed remedies for the violation.

45. The analytical framework for establishing whether a statutory provision constitutes a reasonable limit on a Charter right or freedom pursuant to section 1 was restated by this Court in Egan v. Canada, [1995] 2 S.C.R. 513 at para. 182 and was quoted with approval in Eldridge, supra, at para. 684 and Vriend v. Alberta, [1998] 1 S.C.R. 493 at para. 208:

A limitation to a constitutional guarantee will be sustained once two conditions are met. First, the objective of the legislation must be pressing and substantial. Second, the means chosen to attain this legislative end must be reasonable and demonstratively justifiable in a free and democratic society. In order to satisfy the second requirement, three criteria must be satisfied: (1) the rights violation must be rationally connected to the aim of the legislation; (2) the impugned provision must minimally impair the Charter guarantee; and (3) there must be a proportionality between the effect of the measure and its objective so that the attainment of the legislative goal is not out weighed by the abridgement of the right. In all section 1 cases the burden of proof is with the government to show on a balance of probabilities that the violation is justifiable.

46. Fundamentally, the Respondent has failed to adduce the clear and convincing evidence necessary to establish the foundation for a section 1 justification of the section 15 violation in this case. In the absence of such evidence, the Court lacks the basis for justifying this violation of section 15 pursuant to section 1 in this case.

(a) Pressing and Substantial Objective

47. Where a law has been found to violate the Charter owing to under-inclusion, the first stage of the section 1 analysis must consider the legislation as a whole, the impugned provision, and the omission itself.

Vriend, supra, at para. 109

M. v. H., supra, at para. 82

48. As to the objective of the Act as a whole and the disability pension in particular, the Respondent states that the objective of the CPP is to replace lost employment earnings (in this case for persons with disabilities) in a manner that ensures the economic viability of the program. CCD concedes that this objective is both pressing and substantial.

Respondent's Factum, para. 90

49. As to the impugned recency of contributions requirements, the Respondent suggests that its objective is to "show an attachment to the workforce" is not in and of itself a pressing and substantial objective. However, CCD accepts that an attachment to the workforce as evidenced by recent and ongoing contributions to the CPP furthers the broader objective of maintaining the economic viability of the Plan. CCD accepts that this objective is both pressing and substantial.

Respondent's Factum, para. 91

50. The Respondent does not address the other impugned provision, namely, the exception to the recency of contributions requirement for those who suffer from severe and prolonged disabilities as those terms are defined by the Plan.

(b) Rational Connection

51. At the second stage of section 1 analysis, the relevant question is whether the means chosen by the government are rationally connected to the legislative objective.

M. v. H., supra, at para. 108

Vriend, supra, at para. 118

52. CCD submits that the required nexus between the recency of contributions requirement and the goal of replacing the earnings of persons with disabilities is absent in this case. Rather, that requirement undermines the legislative objective by functioning as a ground of disqualification from the right of the disabled to receive a disability pension.

53. CCD further submits that there is no rational connection between the objective of replacing the earnings of persons with disabilities and the disability drop-out provision which extends only to those persons who suffer from "severe" and "prolonged" disabilities (as those terms are defined by the CPP), thereby excluding the temporarily disabled. If the court accepts that this provision serves the give recognition to the fact that the actual characteristics of persons with disabilities might unduly impede their access to benefits under the scheme, then it cannot be considered rational to assist only a portion of the larger group.

Egan, supra, at para. 202:

If there is an intention to ameliorate the position of a group, it cannot be considered entirely rational to assist only a portion of that group. A more rationally connected means to an end would be to assist the entire group, as that is the very objective which is sought.

54. The Respondent alleges that the legislative means are rationally connected to the earnings replacement philosophy of the CPP and the goal of maintaining its fiscal integrity. However, the philosophy and the related objective are in essence financial considerations. Generally speaking, financial considerations are accorded little weight in the section 1 analysis.

Respondent's Factum, at paras. 96-99

Egan, supra, at para. 205

Schachter v. Canada, [1992] 2 S.C.R. 679 at para. 63:

This Court has held, and rightly so, that budgetary considerations cannot be used to justify a violation under section 1.

55. However, even if the economic viability of the CPP is properly considered in this case, the Respondent has failed to submit any evidence to demonstrate that the exclusion of the temporarily disabled from the disability drop-out provision is a necessary measure to achieve this goal. Accordingly, it has not been demonstrated that there is a rational connection between this objective and the chosen means.

(c) Minimal Impairment

56. At this stage of the section 1 analysis, it falls to the government to demonstrate that the impairment of constitutional rights is no more than is reasonably necessary to achieve its goals.

M. v. H., supra, at para. 118

57. CCD submits that the failure to make any accommodation of the actual circumstances faced by the temporarily disabled, on whom the recency of contributions requirement has a more burdensome effect as compared to the able-bodied, demonstrates the total, not minimal impairment of their right to equality under the Charter. Parliament's choice to accommodate only a subset of the larger disadvantaged group to which they belong, despite the fact that the entire group shares the same actual characteristics that the accommodation seeks to address, is further illustrative of the government's failure to minimally impair the rights of the temporarily disabled.

58. The Respondent contends, however, that the rights of those in the position of the Appellant are minimally impaired as reasonable alternative benefits are available to such individuals.

Respondent's Factum, para. 106

59. The first of the alternative sources of benefits identified by the Respondent is the Manitoba Employment and Income Assistance Act. This provincial needs-tested social assistance program is a source of benefits for persons with disabilities who are unable to earn an income insufficient to meet the "basic necessities". This program is clearly designed to meet the needs of only those in the most desperate of circumstances. Its limited scope stands in stark contrast to the CPP disability pension which has no needs-testing component and is, according to the Respondent's evidence, "the most generous of all the benefits."

Employment and Income Assistance Act, R.S.M. 1987, c. E-98, as amended, ss. 5(1) and 5.3(1)

Expert Report of T. DeMarch, page 72, Case on Appeal

60. The Respondent also identifies the provincial Workers' Compensation programs as an alternative source of benefits to the CP disability pension. However, unlike the CPP benefits, which are available to all contributors irrespective of the source of their disability, Workers' Compensation benefits are available only to those whose injury or disease "arose out of an in the course of employment". Further, in contrast to the universal availability of CPP disability benefits (subject to contributory requirements), only 70% to 90% of workers are covered under Workers' compensation schemes, depending upon the jurisdiction in which they work.

Respondent's Factum, paras. 40 and 41

Expert Report of T. DeMarch, page 74, Case on Appeal

61. It is the position of CCD that neither of the alternative forms of assistance identified by the Respondent are adequate substitutes for the CPP disability pension. Furthermore, the availability of provincial benefits schemes will not cure a defect in federal legislation save for circumstances in which all provinces have specifically ensured that the discriminatory effect of the federal law would be addressed by provincial legislation. Such is not the case in the present appeal.

Egan, supra, per Cory and Iacobucci JJ. at para. 215:

I find myself uncomfortable with basing the constitutionality of federal legislation upon the actions of a provincial legislature over which Parliament has no control. The possibility arises that a federal initiative might be constitutional in certain provinces yet not in others. Such an approach undermines the effectiveness and uniformity of the Charter. Although there might be cases in which provincial legislation or law could be relied upon in preserving the constitutionality of federal legislation, this would only be in a situation where all of the provinces have specifically ensured that the discriminatory effect of federal legislation be eliminated through provincial enactments or law.

62. The Respondent urges this Court to show deference to the choices of the government in this case. However, CCD submits that deference is unwarranted where Parliament cannot demonstrate that it had a reasonable basis for concluding that it has impaired the claimant's rights as little as possible in seeking to attain its objectives.

Tétrault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22 at para. 49:

It should go without saying, however, that the deference that will be accorded to the government when legislating in these matters does not give them an unrestricted license to disregard an individual's Charter rights. Where the government cannot show that it had reasonable basis for concluding that it has complied with requirement of minimal impairment in seeking to attain its objectives, the legislation will be struck down.

63. In the present appeal, the Respondent has failed to adduce evidence demonstrating that the fiscal integrity of the CPP will be jeopardized by extending the disability drop-out provision or by making some other reasonable accommodation for the needs of the temporarily disabled. Consequently, CCD submits that the government has not discharged its burden that the Appellant's rights have been infringed as little as possible.

(d) Proportionally between the effect of the measure and the objective

64. The final stage of section 1 analysis considers whether there is a proportionality between the deleterious effects of the measures limiting the rights and freedoms in question and the legislative objective. The impugned legislation will not survive this final stage where there is no proportionality between the injurious and salutary effects of the measures.

M. v. H., supra, at para. 133

65. CCD submits that the impugned measures in the present appeal actually undermine rather than promote the CPP's broad objective of providing replacement income to persons with disabilities. In these circumstances, it cannot be said that the salutary effects of the measures outweigh their deleterious effects. Further, in the absence of any evidence to demonstrate that the goal of fiscal integrity will be harmed by accommodating the temporarily disabled, the injurious effects of the measures clearly outweigh the promotion of the legislative goal.

6. Remedy

66. The inconsistency between the impugned legislation and the Charter in this case can generally be described as the failure to accommodate the needs of the temporarily disabled. CCD submits that reading in to include the temporarily disabled in the disability drop-out provision is an appropriate means of remedying this inconsistency and one that upholds the "twin guiding principles" of remedy determination: respect for the role of the legislature and respect for the role of the Charter.

Vriend, supra, at paras. 148, 150 and 152

67. Whereas striking down would deprive all persons with disabilities of disability pensions, reading it would minimize interference with the laudable legislative goal of replacing the income of this group. As to the goal of maintaining the economic viability of the program, absent any evidence to indicate that reading it would threaten this goal, this remedy cannot be said to be an undue intrusion into the legislative sphere. In addition, reading it would also further the purposes of the Charter by accommodating the needs of a disadvantaged group.

68. CCD submits that the CPP can be extended with a sufficient degree of remedial precision to justify reading in this case. Indeed, the addition of the words "which for the purposes of this subparagraph shall not be required to be prolonged" after the word "disability" in the disability drop-out provision will, without more, ensure the validity of the legislation and remedy the constitutional wrong. [? To be discussed: Should we simply adopt the suggested remedy in paragraph 30 of the Appellant's factum?]

69. Alternatively, CCD submits that this Court ought to strike down section 44(2) of the CPP which establishes the minimum qualifying period for a disability pension.

70. Some reasonable period of suspension for either remedy would be appropriate in this case to allow Parliament to devise its own approach to ensuring that the CPP disability benefits are distributed in a manner consistent with the equality guarantees of the Charter.

M. v. H., supra, at para. 146

Egan, supra, at para. 237

PART IV - ORDER SOUGHT

71. The Intervener CCD respectfully requests that this Honourable Court read in the words "which for the purposes of this subparagraph shall not be required to be prolonged" following the word "disability" in the disability drop-out provision of the CPP (subparagraph 44(2)(b)(iii).

72. In the alternative, CCD respectfully requests that subsection 44(2) of the CPP be struck down and declared to be of no force or effect.

73. CCD requests that this Honourable Court answer the first constitutional question in the affirmative and the second constitutional question in the negative.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

August 1999 ________________________

John F. Rook, Q.C.

____________________

Mark A. Gelowitz