Claiming Social and Economic Rights in Canada 1)International Law 2) Canadian Charter of Rights and Freedoms 3)Inter-Governmental Agreements 4)Human Rights Legislation 5) Aboriginal Treaty Rights
UN Committee on Economic Social and Cultural Rights General Comment No. 9 It is generally accepted that domestic law should be interpreted as far as possible in a way which conforms to a State's international legal obligations. Thus, when a domestic decision maker is faced with a choice between an interpretation of domestic law that would place the State in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter. Guarantees of equality and non-discrimination should be interpreted, to the greatest extent possible, in ways which facilitate the full protection of economic, social and cultural rights.
CESCR Concluding Observations 1993 The Committee notes, in particular, that the courts have applied section 15 of the Charter to extend parental benefits and security of tenure in the field of housing. The Committee was informed that the process of interpretation of the Charter is still in its early stages, but that its provisions and the interpretations adopted by the Supreme Court in early cases suggest that Canadian courts will give full consideration to the rights in the Covenant when interpreting and applying the Canadian Charter of Rights and Freedoms.
21. The Committee is concerned that in some court decisions and in recent constitutional discussions, social and economic rights have been described as mere "policy objectives" of governments rather than as fundamental human rights. The Committee was also concerned to receive evidence that some provincial governments in Canada appear to take the position in courts that the rights in article 11 of the Covenant are not protected, or only minimally protected, by the Charter of Rights and Freedoms. The Committee would like to have heard of some measures being undertaken by provincial governments in Canada to provide for more effective legal remedies against violations of each of the rights contained in the Covenant. 22. The Committee was very concerned to learn that the "Court Challenges Programme" has been cancelled.
23. The Committee is concerned to learn that in a few cases, courts have ruled that the right to security of the person in the Charter does not protect Canadians from social and economic deprivation, or from infringements of their rights to adequate food, clothing and housing. 24. The Committee is concerned that provincial human rights legislation has not always been applied in a manner which would provide improved remedies against violations of social and economic rights, particularly concerning the rights of families with children, and the right to an adequate standard of living, including food and housing. 30. The Committee encourages the Canadian courts to continue to adopt a broad and purposive approach to the interpretation of the Charter of Rights and Freedoms and of human rights legislation so as to provide appropriate remedies against violations of social and economic rights in Canada.
Human Rights Committee, 1999 Concluding Observations 12. The Committee is concerned that homelessness has led to serious health problems and even to death. The Committee recommends that the State party take positive measures required by article 6 to address this serious problem. 18. The Committee is concerned that differences in the way in which the National Child Benefit Supplement for low-income families is implemented in some provinces may result in a denial of this benefit to some children. This may lead to non-compliance with article 24 of the Covenant. 20. The Committee is concerned that many women have been disproportionately affected by poverty. In particular, the very high poverty rate among single mothers leaves their children without the protection to which they are entitled under the Covenant. …The Committee recommends a thorough assessment of the impact of recent changes in social programmes on women and that action be undertaken to redress any discriminatory effects of these changes.
Slaight Communications Inc. v. Davidson,  1 S.C.R.1038. Employer's right to freedom of expression must be limited to protect the right to work as protected in the ICESCR. Charter rights must be interpreted consistently with Canada's international human rights obligations, according to a presumption that the Charter accords at least the same level of protection as international human rights instruments.
Slaight Communications “Especially in light of Canada's ratification of the International Covenant on Economic, Social and Cultural Rights, and commitment therein to protect, inter alia, the right to work in its various dimensions found in Article 6 of that treaty, it cannot be doubted that the objective in this case is a very important one. In Reference Re Public Service Employee Relations Act (Alta.), supra, I had occasion to say at p. 349: The content of Canada's international human rights obligations is, in my view, an important indicia of the meaning of the "full benefit of the Charter's protection". I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”
Slaight Communications Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. Accordingly, an adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so.
Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817. The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries. …. Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter. …
Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817. International treaties and conventions are not part of Canadian law unless they have been implemented by statute … Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review. As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330: [T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.]
II. Canadian Charter of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Irwin Toy Ltd. v. Quebec (Attorney General),  • wide latitude to protect vulnerable groups • Under section 1, governments must be given Right to Security of the Person in section 7 does not include corporate economic rights but may include ESC rights
Irwin Toy Ltd. v. Quebec (Attorney General),  “Corporate commercial economic rights must be distinguished from economic rights recognized in international human rights documents. The former do not enjoy constitutional protection in Canada, but this does not preclude protection of rights such as the right to shelter or the right to social security.”
Irwin Toy: Standard of Reasonableness Review of Protective Measures for Vulnerable Groups “Vulnerable groups will claim the need for protection by the government whereas other groups and individuals will assert that the government should not intrude. In Edwards Books and Art Ltd., supra, Dickson C.J. expressed an important concern about the situation of vulnerable groups (at p. 779): In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.”
Irwin Toy: Deference to Protection of Vulnerable Groups “Thus, as courts review the results of the legislature's deliberations, particularly with respect to the protection of vulnerable groups, they must be mindful of the legislature's representative function. For example, when "regulating industry or business it is open to the legislature to restrict its legislative reforms to sectors in which there appear to be particularly urgent concerns or to constituencies that seem especially needy" (Edwards Books and Art Ltd., supra, at p. 772). ... This Court will not, in the name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups.”
Dartmouth/Halifax County Regional Housing Authority v. Sparks (N.S.C.A) • Exclusion of public housing tenants from protections of security of tenure afforded other tenants discriminate on the ground of poverty, race and sex • Legislative protections of public housing tenants "read into" the legislation to conform with right to equality in section 15 of the Canadian Charter.
Sparks: Poverty is Analogous Ground of Discrimination “Low income, in most cases verging on or below poverty, is undeniably a characteristic shared by all residents of public housing;… Poverty is, in addition, a condition more frequently experienced by members of the three groups identified by the appellant. The evidence before us supports this. Single mothers are now known to be the group in society most likely to experience poverty in the extreme. … This is no less a personal characteristic of such [page234] individuals than non- citizenship was in Andrews. To find otherwise would strain the interpretation of "personal characteristic" unduly.”
Eldridge v British Columbia (Attorney General), 1997 • Government's refusal to fund a program to provide interpreter services for the deaf and hard of hearing in hospitals and healthcare provision violates right to equality. • Right to equality places positive obligations on governments to provide resources necessary for equality in healthcare, including in situations of pre-existing disadvantage not attributable to government action. • Discretionary decisions relating to resource allocation must conform with this positive obligation.
Eldridge v British Columbia: obligation to allocate resources to equality “[T]he respondents and their supporting interveners maintain that s 15(1) does not oblige governments to implement programs to alleviate disadvantages that exist independently of state action. .... They assert, in other words, that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits. In my view, this position bespeaks a thin and impoverished vision of s 15(1) [equality rights]. It is belied, more importantly, by the thrust of this Court’s equality jurisprudence.”
Eldridge: Discretion Consistent with Positive Obligations “the appellants proposed an alternative argument akin to the framework set out in Slaight. … Under this theory, it is not the legislation that is constitutionally suspect, but rather the actions of delegated decision-makers in applying it. In my view, this is the correct approach to the Charter application issue in this case. …The Act does not list those services that are to be considered benefits; instead, it delegates the power to make that determination to a subordinate authority..”
Eldridge: Remedial Deference “A declaration, as opposed to some kind of injunctive relief, is the appropriate remedy in this case because there are myriad options available to the government that may rectify the unconstitutionality of the current system. It is not this Court's role to dictate how this is to be accomplished. Although it is to be assumed that the government will move swiftly to correct the unconstitutionality of the present scheme and comply with this Court's directive, it is appropriate to suspend the effectiveness of the declaration for six months to enable the government to explore its options and formulate an appropriate response.”
Vriend v. Alberta,  • The omission of sexual orientation in Alberta's human rights legislation violates the right to equality in the Canadian Charter. • The right to equality is a positive right such that a government's 'failure to act' may constitute discrimination. • The appropriate remedy is for the court to "read in" this additional ground. • The comparison for a substantive equality analysis is between the group that needs the protection (gays and lesbians) and those who do not (heterosexuals). • j
Vriend v. Alberta, : Review of Inaction “[Governments] put forward the position that courts must defer to a decision of the legislature not to enact a particular provision, and that the scope of Charter review should be restricted so that such decisions will be unchallenged. I cannot accept this position. Apart from the very problematic distinction it draws between legislative action and inaction, this argument seeks to substantially alter the nature of considerations of legislative deference in Charter analysis.”
Vriend v. Alberta: Deference to Choice not to Legislate Protection “The notion of judicial deference to legislative choices should not, however, be used to completely immunize certain kinds of legislative decisions from Charter scrutiny.”
Vriend v. Alberta: Substantive Equality Comparison • … the exclusion of the ground of sexual orientation, considered in the context of the social reality of discrimination against gays and lesbians, clearly has a disproportionate impact on them as opposed to heterosexuals. Therefore the IRPA in its underinclusive state denies substantive equality to the former group.
M. v. H., (1999) SCC • Denial of benefits because of heterosexual definition of "spouse" violates rights of same sex partners right to equality. • Bastarache, J. outlines factors to consider in assessing question of judicial deference.
M. v. H: Factors for Deference • The nature of the interest affected • Vulnerability of the group affected • Whether possible to isolate the challenged provision from the complex legislative scheme • Whether government is arbitrating social needs • Whether the legislative history shows equal concern and respect for group affected • Whether the government's interest in setting social policy would be threatened
Dunmore v. Ontario (Attorney-General),  • Repeal of legislative protections passed by a previous government to extend the right to organize and bargain collectively to agricultural workers violates the right to freedom of association. • Resulting in "under-inclusive" protection of the right to freedom of association
Dunmore v. Ontario: Retrogressive Measure and the Obligation to Protect “The history of labour relations in Canada illustrates the profound connection between legislative protection and the freedom to organize. It may be suggested that legislative protection is so tightly woven into the fabric of labour relations that, while there is no constitutional right to protective legislation per se, the selective exclusion of a group from such legislation may substantially impact the exercise of a fundamental freedom”
Gosselin v. Quebec (Attorney General),  • Majority: No discrimination against those under thirty denied adequate rates of assistance if they are not enrolled in training or workfare programs. • Justice Louise Arbour in dissent: the right to security of the person imposes a positive obligation on governments to provide adequate assistance to persons in need. • Majority finds the facts of the case do not warrant such a finding but this 'novel' interpretation may be applied in a future case.
Gosselin: Arbour, J. on the Right to Security of the Person “To [the claimants in this case] such a purely negative right to security of the person is essentially meaningless: theirs is a world in which the primary threats to security of the person come not from others, but from their own dire circumstances. In such cases, one can reasonably conclude that positive state action is what is required in order to breathe purpose and meaning into their s. 7 guaranteed rights.”
Gosselin: Mclachlin C.J. for Majority on the Right to Security of the Person “With due respect for the views of my colleague Arbour J., I do not believe that there is sufficient evidence in this case to support the proposed interpretation of s. 7. I leave open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances. However, this is not such a case.”
Newfoundland (Treasury Board) v. N.A.P.E.,  • Cancellation of $24 million pay equity award is discrimination on the ground of sex in violation of section 15 of the Charter. • The violation was justified as a reasonable limit under section 1 of the Charter on the basis of the serious fiscal crisis facing the Province of Newfoundland.
N.A.P.E.: Comparator Group “The Act draws a clear formal distinction between those who were entitled to benefit from pay equity, and everyone else. The appropriate comparator group consists of men in male-dominated classifications performing work of equal value.”
N.A.P.E.: Separation of Powers • The Charter has placed new limits on government power in the area of human rights, but judicial review of those limits involves the courts in the same role in relation to the separation of powers as they have occupied from the beginning, that of the constitutionally mandated referee
N.A.P.E.:Onus in Reasonableness Review “to substitute an onus under s. 1 on the complainant to show that his or her exercise of the right is reasonable, it would again contradict the text of s. 1 in which the word "reasonable" modifies "limits" not "rights". Nowhere in the Charter is it suggested that the exercise of fundamental rights and freedoms should be presumed unreasonable unless and until a claimant proves the contrary.”
N.A.P.E.:On Available Resources Standard “the requirement that the measure impair "as little as possible" the infringed Charter right cannot be applied in a way that is blind to the consequences for other social, educational and economic programs. … The budget is simply a forum for juggling spending priorities of all types. It is not convincing simply to declare that an expenditure to achieve a s. 15 objective must necessarily rank ahead of hospital beds or school rooms.
N.A.P.E.:On Budgetary Considerations “I believe we should affirm what we said in Martin, supra, namely that "[b]udgetary considerations in and of themselves cannot normally be invoked as a free-standing pressing and substantial objective for the purposes of s. 1 of the Charter" (para. 109). But we should also affirm the factual finding by the Newfoundland courts that the spring of 1991 was not a normal time. It was an exceptional financial crisis that called for an exceptional response.”
Auton v. British Columbia, 2004 (SCC) • Failure to provide funding for intensive behavioural therapy for autistic children not discrimination under s.15 • No obligation to provide benefit • No discrimination if there is no comparator
Auton: No Equality Claim to Benefit the Law has not Conferred • “Eldridge was concerned with unequal access to a benefit that the law conferred and with applying a benefit-granting law in a non-discriminatory fashion. By contrast, this case is concerned with access to a benefit that the law has not conferred. For this reason, Eldridge does not assist the petitioners.”
Auton:Comparator Group • “the appropriate comparator in this case is a member of a non-disabled group or a person suffering a disability other than a mental disability that requests or receives funding for non-core therapy important to present and future health, but which is emergent and only recently becoming recognized as medically required. On the evidence adduced here, differential treatment either directly or by effect is not established.”
Chaoulli v. Quebec (Attorney General), 2005 SCC • Right to life and personal security includes right to timely access to healthcare. • In the context of waiting lists for services in the public healthcare system, prohibition of private health insurance violates the right to life and personal security under the Quebec Charter of Human Rights and Freedoms • Split decision on application of section 7 of Canadian Charter.
Chaoulli: Standing • The issues in the instant case are of public interest and the test from Minister of Justice of Canada v. Borowski,  2 S.C.R. 575, applies. The issue must be serious, the claimants must be directly affected or have a genuine interest as citizens and there must be no other effective means available to them. These conditions have been met.
Chaoulli: Violation of Right to Life and Security • “I find that the trial judge did not err in finding that the prohibition on insurance for health care already insured by the state constitutes an infringement of the right to life and security. This finding is no less true in the context of s. 1 of the Quebec Charter. Quebeckers are denied a solution that would permit them to avoid waiting lists, which are used as a tool to manage the public plan.”
Inter-Governmental Agreements:The Canada Assistance Plan Terms of Agreement 6(2) An agreement shall provide that the province (a) will provide financial aid or other assistance to or in respect of any person in the province who is a person in need described in paragraph (a) of the definition "person in need" in section 2, in an amount or manner that takes into account the basic requirements of that person;
Finlay v. Canada (Minister of Finance), (1986) SCC • Recipient of social assistance granted "public interest standing" to challenge alleged provincial government non-compliance with Canada Assistance Plan Act, • Challenging failure to provide assistance to persons in need "consistent with basic requirements“ when clawing back 5% of payment for overpayment recovery
Finlay: On Public Interest Standing "The respondent does not have a sufficiently direct, personal interest in the legality of the federal cost- sharing payments, as distinct from provincial compliance with the conditions and undertakings imposed by the Plan, to bring him within the general requirement for standing to sue, without the consent of the Attorney General, for a declaration or an injunction to challenge an exercise of statutory authority. He should, however, be recognized, as a matter of judicial discretion, as having public interest standing to bring his action.”
Finlay Standing Cont’d “His action raises justiciable issues. The issues are serious ones, and the respondent has a genuine interest in them. If the respondent were denied standing there would be no other way in which the issues could be brought before a court. The respondent should be recognized as having standing to sue for the injunctive, as well as the declaratory, relief prayed for in his statement of claim.”
Finlay v. Canada (Minister of Finance) (1993) SCC • Provinces must provide social assistance in an amount that is compatible with basic requirements, • Some flexibility is permitted in the standard imposed.