After a seven-year battle, a provincial tribunal has ruled two Greater Sudbury men were discriminated against and had their human rights violated after being denied a disability pension based on the fact both are alcoholics.
However, the Ontario government ruled it would be appealing a decision of Ontario’s Social Benefits Tribunal (SBT), which oversees appeals from citizens who have been denied access to the Ontario Disability Support Program (ODSP) and Ontario Works (OW).
The two local men, Norm Werberski and Robert Tranchemontagne, both applied for a disability pension back in 1999.
Tranchemontagne claimed he suffered from back pain, seizures and alcoholism. His claim was denied by the director of ODSP of the Ministry of Community and Social Services in September 1999 on the basis he did not have a substantial physical or mental impairment as defined by the ODSP Act.
Werberski applied for ODSP benefits in October of 1999 as a person with a disability relying on impairments related to alcohol and drug dependence, antisocial personality disorder, depression, insomnia and poor motivation.
His application was denied in December of 1999. The tribunal found Werberski’s only substantial impairment was due to his alcoholism and, therefore, he was ineligible for ODSP benefits.
Werberski has qualified for ODSP for some time now, but based on other health problems.
Both men approached the Sudbury Legal Clinic and for the past seven years, lawyers, including Terry Copes, have been fighting their case, first before Ontario’s Divisional court, Ontario Court of Appeal, then the Supreme Court of Canada and earlier this year before the SBT.
Copes received the news recently the government would be appealing, which will likely drag this case on for at least another year.
Canada’s highest court ruled earlier this year, the SBT “is presumed able to consider any legal source that might influence its decision on eligibility” and Ontario’s Human Rights Code is one such source. The Supreme Court also ordered the SBT to again fully review appeals by Tranchemontagne and Werberski.
In a 23-page ruling released a couple of weeks ago, the SBT ruled a section of the ODSP Act contravenes the Human Rights Code.
That section included a clause that a person would not be eligible for income support if the person is dependent on alcohol or addicted to alcohol, a drug or some other chemically active substance.
After reviewing testimony from the appeal process and applying legal tests, the SBT ruled both Sudbury men had their human rights violated by being denied ODSP benefits.
“In reaching this conclusion, the tribunal finds the appellants have been discriminated against not just because of their addiction, but because of how they became addicted...the ODSP act accords different treatment to the appellants on the basis of how they became addicted rather than on the basis of disability.
“The tribunal has no difficulty in accepting this treatment not only places the appellants at a disadvantage as compared to other persons with the same disability, but also stigmatizes the appellants.
“The tribunal is satisfied the appellants would have been found to be persons with a disability at the initial tribunal hearings had it not been for subsection 5(2) of the ODSPA. Now that that section has been found to violate the appellants’ rights under the code, the tribunal finds the appellants are persons with a disability and are entitled to income support under the ODSPA.”
Copes, who made final arguments on this case back in September, said both clients are thrilled with the decision.
The provincial government has made it clear the SBT doesn’t have the authority to “make blanket decisions” and other citizens who believe they have been denied ODSP benefits because of alcoholism would have to present their own cases, said Copes.
“The decision only binds the provinces on these two individuals and anyone else with similar claims in a similar situation will have to go through the process and bring their case to the SBT,” he said. “The province has made it clear the SBT can only rule on each case on its own merits, but that being said, the SBT decision is clear and others in similar circumstances who make similar arguments should expect similar decisions,” he said.
Both clients continue to have problems with their alcoholism, which has long ago been recognized in society as a disease, said Copes.
This case has long-reaching ramifications, said Copes.
“I think it clearly shows the government can’t single out one particular group, in this case people with alcohol addictions, and treat them differently from everyone else,” he said.
In this case, government lawyers didn’t try and argue alcoholism wasn’t a disease, but instead strongly suggested there were treatment and counselling programs available, said Copes.
The problem was the programs they suggested are only now available in 15 of 47 municipalities across Ontario and none of them were available to either Sudbury men when benefits were denied back in 1999, said Copes.
Both men will “automatically qualify” for substantial retroactive benefits dating back to 1999 if the SBT decision stands following the appeal process, he said
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