Court File No: 37551 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) B E T W E E N: S.A. APPELLANT (Appellant) AND: METRO VANCOUVER HOUSING CORPORATION RESPONDENT (Respondent) FACTUM OF THE INTERVENER, COUNCIL OF CANADIANS WITH DISABILITIES (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) Dianne Wintermute Michael Bossin Luke Reid Ashley Turcotte ARCH Disability Law Centre Community Legal Services Ottawa Centre 55 University Avenue, 15th Floor 1 Nicholas Street, Suite 422 Toronto, ON M5J 2H7 Ottawa, ON K1N 7B7 Tel: (416) 482 8255 Tel.: (613) 241-7008 TTY: (416) 482-1254 Fax: (613) 241-8680 Fax: (416) 482 2981 Email: [email protected] Email: [email protected] [email protected] [email protected] Counsel for the Intervener, Agent for the Intervener, Council of Canadians with Disabilities Council of Canadians with Disabilities TO: THE REGISTRAR AND TO: Michael A. Feder Nadia Effendi Patrick D.H. Williams BORDEN LADNER GERVAIS LLP MCCARTHY TÉTRAULT LLP Suite 1300, 100 Queen Street Suite 2400, 745 Thurlow Street Ottawa, ON K1P 1J9 Vancouver, BC V6E 0C5 Tel: (604) 643-5983 Tel.: (613) 237-5160 Fax: (604) 622-5614 Fax: (613) 230-8842 Email: [email protected] Email: [email protected] Counsel for the Appellant Ottawa Agent for the Appellant AND TO: Eileen E. Vanderburgh/ Marie-France Major Rachel Schechter SUPREME ADVOCACY LLP ALEXANDER HOLBURN BEAUDIN & 340 Gilmour St., Suite 100 LANG LLP Ottawa, ON K2P 0R3 P.O. Box 10057 2700-700 West Georgia Street Vancouver, BC V7Y 1B8 Tel: (604) 688-1351 Tel: (613) 695-8855 Fax: (604) 669-7642 Fax: (613) 695-8580 Email: [email protected] Email: [email protected] Counsel for the Respondent Ottawa Agent for Respondent AND TO: Geoffrey W. White/ Amy Mortimore David Taylor CLARK WILSON LLP CONWAY BAXTER WILSON LLP/s.r.l. 900 – 885 West Georgia Street 400 – 411 Roosevelt Avenue Vancouver, B.C. V6C 3H1 Ottawa, ON K2A 3X9 Tel.: (604) 891-7751 Tel.: (613) 691-0368 Fax: (604) 687-6314 Fax: (613) 688-0271 Email: [email protected] Email: [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, Disability Alliance BC Society Disability Alliance BC Society AND TO: Brendon Pooran/ Jennifer Macko Moira S. Dillon POORANLAW PROFESSIONAL SUPREME LAW GROUP CORPORATION 900 – 275 Slater Street 400-1500 Don Mills Road Ottawa, ON K1P 5H9 Toronto, ON M3B 3H4 Tel.: (613) 691-1224 Tel.: (416) 860-7572 Fax: (613) 691-1338 Fax: (416) 860-7577 Email: [email protected] Email: [email protected] Counsel for the Interveners, Agent for the Interveners, Canadian Association for Community Canadian Association for Community Living and People First of Canada Living and People First of Canada AND TO: Ewa Krajewska Nadia Effendi BORDEN LADNER GERVAIS LLP BORDEN LADNER GERVAIS LLP 40 King Street West Suite 1300, 100 Queen Street Toronto, ON M5H 3Y4 Ottawa, ON KIP 1J9 Tel.: (416) 367-6244 Tel : (613) 237-5160 Fax: (416) 361-7358 Fax: (613) 230-8842 Email : [email protected] E-mail : [email protected] Counsel for the Interveners, Agent for the Interveners, Income Security Advocacy Centre Income Security Advocacy Centre and HIV & AIDS Legal Clinic and HIV & AIDS Legal Clinic AND TO: Jonathan Eades/ Kate Hamm Pierre Landry ATTORNEY GENERAL OF BRITISH NOËL ET ASSOCIÉS, s.e.n.c.r.l COLUMBIA 111 rue Champlain 1001 Douglas Street, 3rd Floor Gatineau, Quebec Legal Services Branch J8X 3R1 Victoria, BC V8W 9J7 Tel. : (819) 771-7393 Tel.: (250) 387-2789 Fax: (819) 771-5397 Fax: (250) 952-3557 Email: [email protected] Email: [email protected] Counsel for the Intervener, Ottawa Agent for the Intervener, Attorney General of British Columbia Attorney General of British Columbia i TABLE OF CONTENTS PAGE PART I – OVERVIEW AND STATEMENT OF FACTS 1 PART II – POINTS IN ISSUE 1 PART III – STATEMENT OF ARGUMENT 1 A. Appeal Arises in a Particular Socio-Legal Context 2 B. Absolute Discretionary Trusts Help Meet Disability Related Costs 4 C. Absolute Discretionary Trusts Cannot Be Used In Eligibility Criteria 6 D. Canada Must Honour Its International Obligations 8 PART IV – SUBMISSIONS REGARDING COSTS 9 PART VI – TABLE OF AUTHORITIES 11 1 PART I – OVERVIEW AND STATEMENT OF FACTS 1. This Appeal arises from a decision of the British Columbia Court of Appeal in S.A. v. Metro Vancouver Housing Corporation 1 (“Appeal Decision”). The Council of Canadians with Disabilities (CCD) intervenes in this Appeal. The CCD takes no position on the facts in this Appeal. PART II - POINTS IN ISSUE 2. The issue in this Appeal is whether assets in which someone has a beneficial interest include absolute discretionary trusts and can therefore be taken into consideration when determining eligibility for a social program. PART III - STATEMENT OF ARGUMENT 3. The CCD respectfully submits that: (A) Context is critical to understand the broader impact of the Appeal Decision on persons with disabilities; (B) The purpose of absolute discretionary trusts is to assist with disability-related expenses; (C)The Appeal Decision unduly restricts eligibility to a variety of social programs for persons with disabilities; and (D) This Court’s determination of assets in which someone has a beneficial interest must conform with Canada’s international obligations under the Convention on the Rights of Persons with Disabilities (CRPD).2 A. Appeal Arises in a Particular Socio-Legal Context 4. Persons with disabilities represent a significant percentage of Canada's population. In 2012, almost 14% of the Canadian population, or 3.8 million individuals, reported 1 S.A. v. Metro Vancouver Housing Corporation 2017 BCCA 2, 410 D.L.R. (4th) 198 [Appeal Decision]. 2 Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 UNTS 3 at 70, Can TS 2010 No 8 (entered into force 3 May 2008, ratified by Canada 11 March 2010) [CRPD]. 2 having a disability that limited their daily activities.3 Forty-nine percent of that group stated that their disability was severe or very severe.4 5. While a number of government programs exist to attempt to remediate the existing social and economic disadvantage of persons with disabilities, full citizenship and inclusion is frequently denied to them. This Honourable Court has observed that the history of persons with disabilities in Canada is largely one of exclusion, marginalization and persistent disadvantage.5 This Court also acknowledged that persons with disabilities experience chronic economic and social barriers. These realities are confirmed in a number of Reports by Statistics Canada.6 6. A source of income for working age poor persons with disabilities is social assistance.7 Income security programs are typically programs of “last resort”.8 Social assistance programs are designed to meet the basic needs of persons with disabilities. By their very nature, social assistance programs cannot address all of the individualized needs of persons with disabilities. 7. Persons with disabilities often require additional supports, services and assistive devices to overcome obstacles and achieve the values of independence, autonomy and 3 Statistics Canada, Canadian Survey on Disability, 2012 (Ottawa: Minister responsible for Statistics Canada, 2015) at 3. The actual number of persons with disabilities is likely higher, since the report did not include persons under 15 years old, those who live in institutions or collective dwellings, or those who live on First Nations reserves. 4 Ibid at 6. 5 Eldridge v British Columbia (AG), [1997] 3 SCR 624 at para 56, 151 DLR (4th) 577. 6 See: Statistics Canada, Insights on Canadian Society – Persons with Disabilities and Employment, by Martin Turcotte, Catalogue No 75-006-X (Ottawa: Statistics Canada, 3 December 2014) & Supra note 3 7 Looking into poverty: Income sources of poor people with disabilities in Canada by Cam Crawford, (Toronto: Institute for Research and Development on Inclusion and Society (IRIS) and Council of Canadians with Disabilities, 2013) at 19. 8 Ibid at 14, 36. 3 inclusion in society.9 These supports can be costly and are frequently out of reach for persons with disabilities living in poverty.10 8. The costs of living that persons with disabilities are expected to bear are diverse and unique to each of them. For instance, many persons with disabilities state that they need an assistive device that they do not have.11 Others report that they cannot afford to take medications or will take them less often than prescribed because of cost.12 Living without proper assistive devices or adequate medication can lead to poor health outcomes that drive persons with disabilities into deeper poverty. 9. Cost-related barriers to inclusion in the community flow from the inaccessibility of public transportation and the unpredictability and difficulty in arranging para-transit. These factors significantly limit working outside the home and participation in the community,13 which could lead to isolation and loneliness. 10. Access to emergency health care is also challenging. Having to take a taxi to frequent medical appointments is a luxury few persons with disabilities can afford14 without family or other supports. Hiring personal support workers for the time necessary to attain independence is expensive and out of the reach of many persons with disabilities.15 9 Catalina Devandas-Aguilar, Report of the Special Rapporteur of the Human Rights Council on the Rights of Persons with Disabilities, UNGAOR, 71st Session, UN Doc A/71/314 (2016) at p 7. 10 Mitra, Sophie et al. “Extra costs of living with a disability: A review and agenda for research” (2017) 10:4 Disability and Health Journal 475 at 475. 11 Supra at note 3 at p. 18. 12 Ibid at p. 18. 13 Lucie Dumais & Marie-Noëlle Ducharme, "Les coûts du handicap au Québec : que font les ménages et comment les soutenir équitablement?" (2017) 11:2 European J of Disability Research 99–112 at 107; Note an English Summary of Results is Available at: Dumais, Lucie, Alexandra Prohet & Ducharme Marie-Noëlle.