Court Deems Law Biased Against Alcoholics, Addicts

An Ontario law that excludes alcoholics and drug addicts from receiving long-term disability payments has been found to violate the provincial Human Rights Code.

The Ontario Divisional Court ruling could have broad implications for the province because it expands eligibility for the more lucrative longterm payments instead of short-term social assistance.

The 3-0 decision issued this week is the latest court ruling in a 10-yearlong legal fight initiated in 1999 by Robert Tranchemontagne and Norman Werbeski, who both suffer from chronic alcoholism. A lawyer for the two men said the decision is legally sound and she hopes the province will “move on” instead of filing an appeal.

“The Human Rights Code does not permit us to choose between the disabilities we like and those we do not,” said Lesli Bisgould, in explaining why the men should not have been excluded from long-term benefits.

They were initially denied longterm assistance and found to be eligible for Ontario Works benefits, which require recipients to participate in “employment assistance activities.”

The difference in support is substantial, with monthly payments of $959 under long-term disability and $536 for Ontario Works recipients.

It was agreed that the men had a disability as a result of their alcoholism. A section of the Ontario Disability Support Program Act brought in by the former Conservative government of Mike Harris in 1997 excluded people from long-term payments if their “sole impairment” was an addiction.

The provincial Social Benefits Tribunal initially ruled against the two men. But in 2006, the Supreme Court of Canada ordered the tribunal to reconsider the case and determine whether the law violated the Human Rights Code. This time, the tribunal ruled in favour of the men and found that the exception violated the Code.

The Ontario government appealed the decision to the Divisional Court and argued that the tribunal made legal errors. During a two-day hearing last December, the three-judge panel was asked to look at the objectives of the Ontario Works program and the impact of providing increased assistance to people with drug or alcohol addictions.

The province presented evidence by Dr. William Jacyk, an addiction specialist based in Guelph, who suggested that nearly everyone with an addiction problem is still capable of working. As well, lower payments and the possibility of “hitting bottom” can be part of the recovery process.

The assumption “they will just drink it” if there is more money, is misleading, argued medical experts on behalf of the two men. Instead, alcoholics and drug addicts are in a better position to recover if they are stable, with less stress, and can afford food and shelter. Otherwise they may turn to “more unsafe means of obtaining money to support the addiction,” noted Justice Denise Bellamy.

The province argued that it has the right to “draw the line” in deciding how it allocates its resources for social assistance. In response, the Divisional Court stated that the province must still provide a “tenable justification” for its decision to treat people with disabilities differently.

The Ontario government legislation “promotes a stereotypical attitude towards addicted persons. It suggests that those who do not suffer from an additional medically recognized disorder are not genuinely disabled, or in any case are not as disabled as persons with concurrent disorders,” wrote Judge Bellamy, on behalf of Justices Douglas Cunning-ham and Douglas Gray.

A spokeswoman for the Ontario Ministry of Community and Social Services declined to comment about the specifics of the ruling. “Our lawyers are in the process of reviewing it. We have not decided whether to file an appeal,” said Sandy Mangat.

– Article from The National Post on April 24, 2009.

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