| Jul 10, 2008

Legalese - July 10, 2008

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Legalese - July 10, 2008 ODSP Applications – Alcoholism and Drug AddictionWilliam A. Florence, Barrister and Solicitor, Rural Legal Services

As mentioned in previous Legalese articles, the Ontario Disability Support Program is a provincial program which provides income support to Ontarians who financially qualify, and are found to be a “person with a disability” after a review of medical evidence. An example of someone who may qualify on medical grounds would be an individual who has severe degenerative disc disease, and due to the pain is unable to participate in their community, take care of their own basic needs, or be able to work. What happens though if the applicant’s only impairment is alcoholism, or an addiction to drugs? Are alcoholism or drug addiction treated differently than other impairments?

Section 5(2) of the Ontario Disability Support Program Act, states that an applicant would not be eligible for income support if “…the person is dependent on or addicted to alcohol, a drug or some other chemically active substance…” and “…the only substantial restriction in activities of daily living is attributable to the use or cessation of use of the alcohol, drug or other substance at the time of determining or reviewing eligibility”. This substance use disqualification in the application process would not apply as long as the applicant’s medical evidence shows a substantial and disabling impairment that is separate from the alcoholism or drug addiction.

However, the law is not settled when the only disabling impairment is one of substance abuse. The leading case that deals with this issue is the 2006 decision of the Supreme Court of Canada called Tranchemontagne v. Ontario (Director, Disability Support Program).

The Tranchemontagne case dealt with two individuals who applied for ODSP, Mr. Robert Tranchemontagne and Mr. Norman Werbeski. Both of them were denied ODSP benefits, and appealed to the Social Benefits Tribunal. They had applied on the basis of alcoholism, in addition to other impairments. The other impairments were not considered to be disabling by the Social Benefits Tribunal. The Tribunal concluded that their only substantial impairment was alcoholism and denied their appeals. These individuals then appealed jointly to Divisional Court, and then to the Ontario Court of Appeal. After unsuccessful appeals at both of these levels of court, they appealed to the Supreme Court of Canada.

The Appellants argued at the Supreme Court of Canada that s. 5(2) of the ODSPA was inapplicable, as it conflicted with the Ontario Human Rights Code. The assertion was that alcoholism is a disability within the meaning of the Human Rights Code, and therefore s. 5(2) of the ODSPA constituted discrimination, as alcoholism and drug addiction are treated differently from other disabilities.

The Supreme Court of Canada dealt with two issues. First, does the Social Benefits Tribunal have the jurisdiction to consider the Human Rights Code in rendering its decisions, and secondly, if they do, should they have declined to exercise that jurisdiction, (i.e., defer this type of decision to the Ontario Human Rights Commission).

The Supreme Court of Canada decided by a narrow majority that the Social Benefits Tribunal did have the jurisdiction to apply the Human Rights Code, and must include the human rights argument in its analysis of eligibility for disability benefits. Therefore, both Mr. Tranchemontagne and Mr. Werbeski’s cases were sent back to the Social Benefits Tribunal, with instructions from the Supreme Court of Canada that the Tribunal must consider the human rights argument. The Appellants then won their new appeals that were heard together at the Social Benefits Tribunal, as the Tribunal held that s. 5(2) of the ODSPA violated the Human Rights Code. The Director of the Ontario Disability Support Program has appealed this new Social Benefits Tribunal decision to Divisional Court.

This latest appeal has not yet been heard. It will be interesting to see what happens next. For now though, alcoholism and drug addiction are treated differently than other impairments.

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

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