June 1, 2002 Fraser Forum In a recent ruling, the Court of Appeal of Ontario struck down the “spouse-in-the-house” rule. The rule was established in 1995 under a regulatory reform of welfare in the province, and was implemented by the newly- elected Conservative government. For the purposes of welfare, it considers two people to be common-law spouses as soon as they move in together. The result is that welfare recipients have their benefits reduced or ended depending on the financial situation of the person with whom they cohabit. The court ruled that “the current definition of spouse in section 1(1)(d) of Regulation 366 under the Family Benefits Act is too broad to capture only spousal or marriage-like relationships” and consequently the definition of spouse subjected the respondents “to differential treatment on the basis of three prohibited grounds of discrimination: sex, marital status, and receipt of social assis- tance.” Apart from issues of fair treatment of welfare recipients who decide to cohabit and retain their benefits com- pared with recipients who marry and lose theirs, the most damaging aspect of the ruling is that it recognizes “receipt of social assistance as a ground of Charter protection.” This judicial interpretation, if applied to other current or future welfare reforms in Ontario, or in a future case at the Supreme Court of Canada, will have a detrimental impact on the ability of provincial governments to reform welfare.
In deciding upon a section 15 violation, the court found that receipt of social assistance, much like race, or ethnicity, for example, “fits the expansive and flexible concept of immutability” adopted by the Supreme Court of Can- ada. In other words, the court finds that receipt of social assistance, which signifies a person’s economic condition, is a “characteristic that is difficult to change, at least for a significant period of time,” or is otherwise immutable. This is unsound. Not only does it fly in the face of the evidence about how Canadians earn income, it also leaves the door open to genuinely pernicious expansion of the grounds for litigating just about everything. Canadians’ incomes are not immutable. Evidence from longitudinal data tracking of individuals’ incomes shows that over a five-year period, 45 percent moved up at least one quintile (Webber et al., 1999).
The current decision does more than misunderstand reality. It also sets aside good previous judgments. In Masse v. Ontario (Ministry of Community and Social Services), a lower court found that provincial regulations that reduced welfare payments by 21.6 percent did not violate section 15 of the Charter because welfare recipients were not a protected or analogous group under this section. In rejecting the notion that poverty should be considered a ground of dis- crimination analogous to those enumerated in section 15, Judge J. O’Driscoll stated, “In my view, poverty embraces many more persons than those in receipt of social assistance.”
If the logic articulated in this recent Court of Appeal of Ontario case is adopted by the Supreme Court of Can- ada upon appeal, or in its forthcoming decision in Louise Gosselin v. Attorney General of Quebec (the first charter challenge to poverty and homelessness to reach the Supreme Court), we run the risk of defining receipt of social assistance as an immutable characteristic of an analogous or protected group under the equality provisions of the Charter. What chance, then, for extant and future welfare reforms in Ontario or other provinces?
For example, the Ontario requirement that a person who refuses to participate in a workfare program can be cut off welfare for up to 6 months may, under this interpretation, violate section 15 of the Charter because of the protected or analogous nature of welfare recipients. Moreover, potential future reforms that have proven successful in the United States, such as ending the entitlement to welfare by imposing a time limit on assistance, and immediate work requirements combined with “full-cheque” sanctioning of a recipient’s monthly welfare income upon the first instance of non-compliance with welfare provisions, may also be deemed a violation under section 15.
Although the ruling deals explicitly with the “spouse-in-the-house” rule in Ontario, it has the potential to affect current and future welfare policy across Canada. Defining the receipt of welfare as immutable, and thus welfare recipients as a protected or analogous group under section 15 of the Charter, has the potential to undo current and potential welfare reforms that are aimed at establishing welfare as temporary assistance available in the transition to employment. Welfare reforms in the US, such as those under the Personal Responsibility and Work Opportunity Reconciliation Act, have proven very successful in reducing the number of American welfare recipi- ents. Their numbers have declined from a high of 14.2 million in 1994 (5.5 percent of the population) to 5.8 million in June 2000 (2.1 percent of the population). It would be truly unfortunate if such effective tools of welfare reform were unavailable in Can- ada because of poor judicial reasoning.