Limitation of Benefits to the Mentally Disabled Discriminatory

Gibbs v. Battlefords and Dist. Co-operative Ltd. (1996), 27 C.H.R.R. D/87 (S.C.C.)

The Supreme Court of Canada dismisses an appeal by Battlefords and District Co-operative Limited from a decision of the Saskatchewan Court of Appeal. The Court of Appeal upheld a Board of Inquiry ruling that the Co-operative discriminated against Betty-Lu Clara Gibbs on the ground of mental disability because of the terms of an employment-related insurance plan.

Ms. Gibbs is an employee of the Battlefords and District Co-operative Limited. She became disabled in 1987 as a result of a mental disorder and was unable to work. Ms. Gibbs used up her sick leave, and then was paid benefits under an insurance policy that was part of the benefit package provided to employees pursuant to their collective agreement.

Under the terms of the policy, any employee who became unable to work was provided with replacement income for as long as the disability prevented the employee from working or until age 65. However, if the disability in question was a mental disability, the replacement income would terminate after two years, even if the person was unable to resume employment, unless the employee remained in a mental institution. Because of this provision, Ms. Gibbs’ insurance benefits were terminated in March 1990. Had her disability been physical in nature, the benefits would have continued until age 65 whether or not Ms. Gibbs was in an institution.

The issue in this appeal is: does the Co-operative’s disability plan, which places limitations on benefits for mental disability, but not for other kinds of disability, discriminate on the basis of disability contrary to s. 16(1) of The Saskatchewan Human Rights Code?

The Co-operative argues that there was no discrimination based on mental disability, since the relevant term or condition of employment was an entitlement to insurance benefits under the policy, which all employees received equally. Given the contingent nature of insurance, when the contract was entered into each insured employee enjoyed exactly the same protection from the harm of future disability.

Sopinka J., writing for the Court, rejects this argument. He finds that while each employee enjoyed the same "peace of mind" from the insurance before any risk materialized, the insurance plan also provided a significant benefit to employees after the risk of disability materialized and this benefit was not distributed equally. Those with mental disabilities received less than those with physical disabilities. It would be inimical to the objects of human rights legislation if a practice could be immunized from scrutiny under this legislation simply because its discriminatory effects are contingent on uncertain future events. In Ms. Gibbs’ case, the discrimination was deferred until she became vulnerable and most in need of human rights protection.

The Co-operative also argues that the insurance plan should not be viewed as discriminatory since the appropriate comparison is not between the mentally disabled and the physically disabled but rather between the disabled generally and the able-bodied. The purpose of the Code is to prevent discrimination against the disabled as compared to able-bodied persons, not as compared to other disabled persons.

The Court also rejects this argument. The "mental disability-physical disability" comparison is appropriate. First of all, to find that there is discrimination on the basis of disability it is not necessary to find that all disabled persons are mistreated equally. It is not fatal to a finding of discrimination that not all persons in the group bearing the relevant characteristic have been discriminated against. Discrimination against a sub-set of the group, in this case those with a mental disability, can be considered discrimination against persons with disabilities.

In addition, if the comparator group is all persons without a disability, a claim of discrimination on the basis of inadequate disability insurance benefits is not likely to be successful. Such a result seems contrary to the purpose of human rights legislation, especially given the particular historical disadvantage facing mentally disabled persons.

In this case, the insurance plan was designed to insure employees against the income-related consequences of becoming disabled and unable to work. The benefits for those with mental disabilities and those with physical disabilities were designed for the same purpose: to insure against the income-related consequences of being unable to work because of disability. Consequently, it is appropriate to compare the benefits available to those with mental disabilities to the benefits available to those with physical disabilities. The true character or under-lying rationale of the insurance plan was to provide income replacement for those unable to work because of disability, and consequently limiting benefits on the basis of mental disability are discriminatory.

The Court also finds that the insurance context which was relevant in Zurich Insurance Co. v. Ontario (Human Rights Comm.) (1992), 16 C.H.R.R. D/255 (S.C.C.) is not relevant here. In Zurich the company led evidence to show that there was a justification for the discrimination in its automobile insurance scheme because it would have been impractical to base the calculation of the risk of accidents on any other data than that related to sex and age. In this case, the limit on benefits available to a mentally disabled employee unless he or she is institutionalized appears to be grounded on a stereotypical assumption concerning the behaviour of mentally disabled persons.

The appeal is dismissed.

In a separate judgment, McLachlin J., who agrees with Sopinka J. regarding the outcome, states her concerns with respect to the formulation of the purpose test.

Under the proposed test, discrimination is determined by examining the true purpose of the insurance plan. Discrimination will exist if benefits received for the same purpose differ on the basis of a characteristic not relevant to the purpose of the insurance scheme. In the instant case, the defined purpose of the scheme is to insure employees against the income-related consequences of becoming disabled and unable to work. When the purpose is framed broadly with reference to the need which the plan seeks to address and without reference to specific injuries or specific groups of people, the nature of the disability becomes an irrelevant characteristic. Therefore, to distinguish benefits on the basis of disability constitutes discrimination.

However, if it is open to the employer and employee to define the purpose of a benefit narrowly by reference to a target group, like alcoholics, as Sopinka J. suggests it would be in his judgment, the result may be to condone exclusion of many valid claims and permit de facto discrimination against others similarly disabled from other causes. McLachlin J. concludes that in defining the purpose of schemes, reference should not be made to specific disabilities and specific target groups, but rather to the broad purposes. Subject to these concerns, she agrees with the judgment of Sopinka J.

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