Published On Fri Sep 17 2010
Tracey Tyler Legal Affairs Reporter
Denying long-term government support payments to alcoholics and drug addicts violates the province’s Human Rights Code because it discriminates on the basis of disability, the Ontario Court of Appeal has affirmed.
In a 3-0 decision Thursday, the court dismissed an appeal from the director of the Ontario Disability Support Program, who argued that provincial legislation preventing addicts from drawing long-term disability benefits was meant to assist them in their recovery.
The ruling means some people who are unable to work or function in the community because of a severe alcohol or drug dependency — including a former Sudbury truck driver at the centre of the case — will be entitled to nearly twice as much in government benefits.
Had the province been permitted to deny Robert Tranchemontagne long-term disability payments, his only social assistance option would have been a welfare cheque of $585 a month through the Ontario Works program, which also requires recipients to look for a job and undergo treatment for addictions.
Under the Ontario Disability Support Program, which does not impose the same obligations on recipients, a single person can receive up to $1,042 per month.
“It is well known that addicts and welfare recipients have been, and continue to be, the subjects of stigma and prejudice,” said Justice Janet Simmons,
writing on behalf of a panel that included justices Eleanore Cronk and Paul Rouleau.
The case focused on a provision in the Ontario Disability Support Program Act, which withheld disability benefits from anyone whose sole disability was
a dependence on alcohol, drugs or another chemically addictive substance.
That provision places addicts at a disadvantage, the court said, because it deprives them of benefits available to other disabled people and perpetuates
The legislation was introduced by the Conservative government of former premier Mike Harris.
It contains no “obvious explanation” for why they were excluded from disability benefits, the appeal panel said.
Through a succession of court hearings that began a decade ago when Tranchemontagne and another alcoholic, Norman Werbeski, launched a challenge to the legislation, the director of the disability support program argued it was meant to help addicts recover.
The argument was based largely on social science evidence from the province’s expert witness, Dr. William Jacyk, an addiction specialist at the Homewood Health Centre in Guelph.
In Jacyk’s opinion, disqualifying addicts from disability support payments while allowing them to remain eligible for welfare was appropriate from a medical standpoint because it promotes recovery.
Among other things, it means they have less money to spend on alcohol and drugs and ensures the government isn’t promoting a spirit of long-term infirmity, he said.
But in Thursday’s decision, which upholds the conclusions of a Divisional Court panel last year, Simmons was critical of Jacyk’s evidence, noting, for example, that he couldn’t offer any comment about whether his own patients fared better on welfare than on disability payments.
A social benefits tribunal which found the legislation discriminatory back in 2006 was “entirely justified” in rejecting the notion the province was trying
to help addicts by denying them disability benefits, she said.
The court was told Tranchemontagne, 58, a former steelworker, began drinking when he was 18 and has been an alcoholic since his late thirties, He hasn’t worked since 1996.
His doctor said he is not employable because of his alcoholism.
Werbeski, who died last year after being hit by a car, began drinking when he was 16.
Paul Doig, a spokesman for the Ministry of Community and Social Services, said the exclusion provision has not been applied since last year’s Divisional Court ruling and that will continue while the ministry considers whether to seek an appeal to the Supreme Court of Canada.