CERB $5,000 income eligibility requirement not unconstitutional: court

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OTTAWA – The federal government’s $5,000 income eligibility requirements for CERB violated Charter equality rights but the breach was justifiable due to the urgency of the pandemic, according to a new Ontario Court of Appeal ruling.

In a unanimous ruling released last week, a panel of three judges overturned a lower court’s ruling that the government did not violate a disabled Ontario woman’s rights when it required applicants to the $2,000-per-month Canadian Emergency Response Benefit (CERB) to have earned at least $5,000 in the previous year.

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But they also found that the Charter breach was justified in the face of COVID-19, because the government was acting quickly to implement emergency aid programs like CERB (and its successor the CRB) in response to pandemic lockdowns.

“The benefits of the impugned programs in making temporary income support available, quickly and efficiently, to the millions of workers affected by the pandemic, outweighed the negative financial impact for those unable to meet the income threshold,” Justice Lorne Sossin wrote on behalf of the panel with Patrick J. Monahan and Lene Madsen.

The ruling could significantly impact how the government designs future benefits programs that might include a minimum income requirement for eligibility.

The case stems from Valerie Jacob, an immunocompromised woman suffering from Crohn’s disease who was only able to work a limited number of hours weekly due to her “severe and prolonged” disability since 2007.

Because of her illness, she received the Canada Pension Plan Disability Benefit (CPP-D), an income replacement program, all the while earning a small amount of income working part time.

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When the pandemic began in March 2020, Jacob lost her part-time job at Winners but was ineligible to apply for CERB because she did not meet the income eligibility requirement. The program required applicants to have earned at least $5,000 in 2019 or 2020 and excluded income from benefits like CPP-D.

Jacob sued the government, arguing that the “arbitrary” income threshold failed to consider the abilities of disabled workers and violated their right to equality guaranteed by section 15 of the Charter of Rights and Freedoms.

Last summer, the Ontario Superior Court struck down her lawsuit, finding that the eligibility requirements didn’t have a “disproportionate impact” on disabled workers namely because they also excluded ineligible non-disabled workers.

But the Ontario Court of Appeal disagreed with the trial court’s conclusions, finding the judge made a “palpable and overriding error” in finding that Jacob and other disabled workers weren’t disproportionately affected by the $5,000 income test.

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The panel noted that government data showed disabled workers were 60 per cent more likely to have earned less than $5,000 from annual employment than non-disabled workers.

It also noted that up to 14 per cent of CPP-D recipients supplemented their benefits with employment income, but that CERB and CRB were designed as if CPP-D recipients had no ties to the labour market.

“The income threshold, together with the manner of calculating that income threshold, exacerbated the disadvantage she already was experiencing as a worker with a disability,” Sossin wrote.

“The overrepresentation of workers with a disability in the group of those found ineligible for the CERB and CRB based on the income threshold reflects this disproportionate impact.”

But the panel stopped short of saying that the violation of Jacob’s Charter rights was unconstitutional.

That’s because the “extraordinary nature of the crisis” facing Canada during the COVID-19 pandemic and lockdowns meant that the government needed to act quickly to get financial support in place for laid-off workers.

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The violation of Jacob’s rights was a “minimal impairment” compared to the goal of setting up CERB and distributing emergency funds as quickly and to as many people as possible. The situation allowed for a “reasonable limit” on her rights as defined by section 1 of the Charter.

“I would conclude Canada satisfied the minimal impairment threshold in light of the extraordinary nature of the crisis facing the Government in the COVID-19 pandemic, together with the temporary and emergency nature of the CERB and CRB programs,” Sossin wrote.

In an interview, Jacob’s lawyer, Sujit Choudhry, said his client was disappointed in the court’s decision and was considering seeking leave to appeal to the Supreme Court of Canada.

“Respectfully, we don’t agree that the fact of the pandemic should have meant that the discrimination was justified,” he said.

Choudhry also noted that the ruling is likely to force the government to rethink how it sets up future programs that might include a minimum work income threshold. He also argued that other program eligibility requirements that appear “neutral” on their face could also be challenged as discriminatory.

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He pointed to employment insurance, which requires applicants to have worked a certain number of insurable hours to be eligible for the program.

“The hours requirement might discriminate in its impact against members of certain protected groups. So, it’s facially neutral, but it’s unequal in its impact,” he said.

National Post

cnardi@postmedia.com

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