During the 1980s, Quebec changed their social welfare program and made the rates available to people under the age of 30 lower than those that were available to people over 30. However, they added some programs (education, job-training) that would provide youth with skills necessary to obtain full-time work, and also enabled them to receive compensation closer to the levels for individuals over the age of 30. Gosselin had a very hard life, and spent periods not being able to participate in these programs and earn the extra compensation. She claims that this violates her s.15(1) rights on the basis of her age, and also her s.7 right to security of the person. She is claiming for some 75,000 people who were affected by this program (which was repealed) for a total of over $300 million, plus interest.
- Do the changes to the social welfare system in Quebec constitute discrimination under s.15(1) of the Charter?
- Do the changes to the social welfare system in Quebec constitute discrimination under s.7 of the Charter.
- Do the changes to the social welfare system in Quebec constitute discrimination under s. 45 of the Quebec Charter of rights.
Appeal is dismissed
All of the justices agree that this is a distinction, and that it is based on an enumerated ground (age). Therefore, the only issue is whether this constitutes "discrimination" under s.15(1).
McLachlin, writing for majority, runs through the Law test, and considers the four factors. She states that people under 30 are not a historically disadvantaged group, that there is a correspondence between the nature of the act and the actual needs of the claimants as this is trying to help younger individuals secure work, that there is an ameliorative purpose (or at least a neutral purpose), and that although this interest is important, the government was acting to help them in the long run. She also focuses on the fact that there is simply not enough substantive evidence to support Gosselin's claim. She also clarifies that legislative intent is only relevant insofar as it would help a reasonable person in the claimant's situation determine whether or not their dignity has been harmed, and it is not a determinative factor for "discrimination".
The dissenting justices, each writing their own opinion, argue that the legislative intent should not be considered at all, as it is the effect of the legislation that is the most important factor. They also state that the assumption of the majority that people under 30 have and easier time finding employment is not correct. They find that there was evidence at the time that the youth were having a harder time finding work, and were in fact disadvantaged. Essentially they argue that this is obviously a distinction, and that it is made on the basis of a ground that cannot be altered by the claimant. Finally, they state that the "reasonable" comparator individual would be a member of the majority of youths who did not take part in the government endorsed programs, and that it is very likely that they would feel disadvantaged on the basis of their age. They find that this violation is not saved by s.1.
L'Heureux-Dube states that a violation of the fourth factor (nature and scope of the impugned right) if very serious, is enough to constitute discrimination.
Seven of the justices agreed that the s.7 claim must fail because the right to security of the person does not protect people from poverty.
- The framework from Law v Canada (Minister of Employment and Immigration) is upheld.
- Legislative intent is given consideration in deciding whether or not discrimination has occurred, and is not only saved for the s.1 justification.