Americas

After injuring his back at work in 1980, the appellant, G, aged 32, was in receipt of a temporary disability or rehabilitation allowance. Prior to the accident G had made contributions to the Canada Pension Plan (CPP) in six out of the previous 10 years. The plan provided social insurance for those who experienced a loss of earnings through, inter alia, disability. In 1983 the Manitoba Workmen�s Compensation Board found he had a 15% permanent disability and two years later awarded him a lump sum payment in full and final settlement whilst also finding him capable of working. Despite occasional employment, G complained of that his condition was deteriorating until in 1993 the disability became permanent. He then applied to the CPP for a disability pension, but this was refused by the respondent and affirmed by a review tribunal. This was partly because he had only made a contribution to the scheme in one out of the previous 10 years and thus lacked a sufficiently recent connection to the work force and also because of doubts about the severity of his disability. G complained that the operation of the CPP violated his equality rights under s.15 of the Canadian Charter of Rights and Freedoms. In particular, by only relaxing the contribution requirements for applicants whose severe disability was prolonged during all or part of the previous 10 years, the CPP discriminated against those who suffered from a sporadic disability. He argued that where a contributor had a special burden (such as a temporary disability) that went 'above and beyond the usual', he was entitled to increased flexibility commensurate with this burden rather than being subjected to the same rules as the able-bodied : i.e. the CPP should have omitted from its calculations those years in which he was unable to work for at least six months by reason of his disability. He was unsuccessful before both the pension appeals board and the Federal Court of Appeal.

In dismissing the appeal, it was held that:

1. Whilst section 15 cannot alleviate or eliminate the functional limitations of disability, it can address the way in which the state responds to the disabled by making three broad inquiries. Firstly, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant�s already disadvantaged position within society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Secondly, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? Thirdly, does the differential treatment discriminate in a substantive sense in remedying such ills as prejudice, stereotyping, and historical disadvantage? (Law v Canada [1999] 1 SCR 497 applied).
2. G is a victim of differential treatment since, although the CPP contribution requirements on their face apply the same set of rules to all contributors, in practice they operate unequally against those who want to work but whose disabilities prevent them from doing so. In this respect the CPP fails to recognise the barrier posed by G's temporary disability.
3. Further, the contributions provision makes a distinction based entirely on the existence and duration of G's disability. Even though temporary disability is not, by definition, immutable in the sense of being unchangeable, it is clearly a characteristic that is unchangeable for its duration and entirely outside the control of the victim.
4. However, to prove this differential treatment amounts to discrimination G must be able to show that the law in question perpetuates the view that persons with temporary disabilities are less capable or less worthy or recognition or value as human beings or as members as society. Relevant contextual factors include the existence of a pre-existing disadvantage or stereotyping; the relationship between the disability and the nature of the differential treatment; the ameliorative purpose or effect of the impugned law on other groups in society, and the nature and scope of the interest represented by the impugned law.
5. On none of these grounds does G demonstrate a convincing human rights dimension to his complaint. The temporary disabled cannot be said to have been the subject of pre-existing disadvantage or stereotyping. There is no direct correlation between the impugned CPP flexibility provision and G since the former is preoccupied with the plight of those suffering from a prolonged and severe disability (Vrieland v Alberta (1998) 4 BHRC 140 distinguished). This also demonstrates its ameliorative purpose. Further, such a provision is directed towards a narrow class of persons seeking a narrowly restricted benefit. In these circumstances G has failed to show that the government�s response through the design of the CPP or its application demeans persons with temporary disabilities, or casts any doubt on their worthiness as human beings.
6. Hence the CPP scheme reflects the dual purpose of s.15(1) which is not only to prevent negative discrimination, but also to ameliorate the position of groups within society who have suffered disadvantage by exclusion from mainstream society (dicta of Sopinka J in Eaton v. Brant County Board of Education [1997] 1 SCR 241 at para. 66 applied). It does this by affording differential treatment to those with a history of severe and permanent disabilities, rather than by assisting the more fortunate such as G.