SUPREME COURT RULES ADDICTION CONSIDERED DISABILITY

Even though alcoholism and drug addiction are clearly defined as
disabilities under Ontario's Human Rights Code, thousands of
Ontarians have been denied disability benefits for substance abuse
addictions. That's about to change following a Supreme Court of
Canada ruling Friday.

A seven-year legal battle ended in victory for two Sudbury men and
the Sudbury Legal Clinic that represented them following a majority
4-3 decision by the country's top court.

The court ruled legislation under provincial human rights codes must
now be considered by all government tribunals when handling appeal
cases by Canadian citizens applying for benefits, specifically,
disability benefits.

The court ruled government agencies such as Ontario's Social Benefits
Tribunal (SBT), which hears appeals from citizens originally denied
access to the Ontario Disability Support Program (ODSP), must
consider provisions under provincial human rights regulations before
rendering decisions. This includes provisions detailing alcoholism
and drug addiction as defined disabilities.

In far too many cases, the SBT simply rejects appeals and refers
people to the Ontario Human Rights Commission, where less than six
percent of cases are ever heard, said Grace Kurke, legal counsel for
the Sudbury Legal Clinic.

It this specific case, two Sudbury men, Norman Werbeski and Robert
Tranchemontagne, applied for ODSP benefits in 1998 and 1999,
respectively.

After more than two years of waiting, both claims were denied eight
months apart in 2001 and both decisions were appealed to the SBT.

Both claims were again rejected, with the tribunal ruling they
considered both men to be alcoholics who didn't suffer from any other
significant physical disability.

Both men argued they each had serious physical disabilities other
than alcoholism and one claimed psychological issues as well.

The specific provision noted by the SBT in rejecting the appeals
states an appellant is not eligible for ODSP benefits if "the person
is dependent on or addicted to alcohol, a drug or some other
chemically active substance."

However, the Ontario Human Rights Code clearly states alcoholism and
drug addiction is a disability and benefits can't be denied if other
satisfactory disabilities are proven, said Kurke.

In the case against Werbeski and Tranchemontange, the SBT quickly
rejected the appeals focusing on the alcoholism provision, which
contravenes human rights legislation, which the Supreme Court made
clear takes precedence, said Kurke.

The SBT's decision against the two Sudbury men was accepted by a
divisional court. However, another appeal to the Ontario Court of
Appeal last year was successful and the case was referred to the
country's top court.

Kurke and lawyers for several community agencies presented arguments
before the Supreme Court in December. They were opposed by lawyers
for the Ministry of Community and Social Services and the SBT.

Friday's ruling makes it clear government tribunals like the SBT are
"quasi constitutional bodies...that do have the power" to hear all
evidence presented by appellants relating to provincial human rights
codes and issues before making final decisions, said Kurke.

They can't simply "pass the buck" and dismiss cases based on
provisions the court has made clear do not supercede human rights
legislation, said Kurke.

"The decision means vulnerable people can claim human rights
considerations and be protected by provisions under the human rights
code before every tribunal in the country," said Kurke. "These
tribunals can't tell people any longer to go away insisting they
don't have the authority to deal with human rights issues."

The Supreme Court ruling does not mean Werbeski and Tranchemontagne
will receive ODSP and retroactive benefits, but the court made clear
the SBT will have to hear their appeals again and must reconsider its
decision stating alcoholism as sufficient cause for denying benefits,
said Kurke.

Because human rights legislation clearly states alcoholism and drug
addiction are disabilities, Kurke is confident she will win the case
when it returns before the SBT.

"This is a huge victory for disadvantaged people across this country
as it brings human rights considerations to the forefront in ways
that have not previously been the case in this country," said Kurke.

In a 45-page decision, the court ruled "since the SBT has not been
granted the authority to decline jurisdiction, it can't avoid
considering the issues relating to the (human rights) code in these
cases. "Moreoever...the SBT is the most appropriate forum to decide
those issues."

The SBT is meant to be an efficient, effective and quick process and
regularly rejecting appeals by imposing human rights code compliance
"will inevitably have an impact on its ability to assist the disabled
community in a timely way," read the decision.

Kurke successfully argued a section in the Ontario disability act
constituted discrimination and was, therefore, inapplicable because
the human rights code has primacy over other legislation.

"Instead of analyzing this argument, the SBT held it did not have the
jurisdiction to consider the applicability of the section of the
code...the appellants' appeals were therefore dismissed without the
benefit of a ruling that their treatment was discriminatory," said
the Supreme Court decision.

The court ruled the SBT and other tribunals most now consider
provisions of human rights legislation in rendering all decisions.

"It becomes clear that the SBT had the jurisdiction to consider the
code in determining whether the appellants were eligible for support
pursuant to the disability act...at that point, the SBT had the
responsibility of applying the code in order the render a decision
that reflected the whole law of the province."