MS ALICIA YASHCHESHEN PLAINTIFF - v. -, 2019 SKQB 29

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2019 SKQB 29 Date: 201 9 01 25 Docket: QB 747 of 2018 Judicial Centre: Regina BETWEEN: MS ALICIA YASHCHESHEN PLAINTIFF - and - THE ATTORNEY GENERAL OF CANADA – CANADA STUDENT LOANS DEFENDANT Appearing: Alicia Yashcheshen self-represented Gwendoline A. MacIssac for the Attorney General JUDGMENT BARRINGTON-FOOTE J.A JANUARY 25, 2019 ex officio [ 1 ] The applicant, Alicia Yashcheshen, is a student with a medical disability. She has applied for an order exempting her from the application of s. 16(2) (

d) of the Canada Student Financial Assistance Regulations , SOR/95-329 [ Regulations ] and striking that provision as invalid. She says s. 16(2) (d), which precludes a borrower from applying for a new student loan for three years after their absolute discharge from bankruptcy, is contrary to s. 15(1) of the Canadian Charter of Rights and Freedoms [ Charter ], as it does not exempt those who declare bankruptcy due to disability. [ 2 ] On December 22, 2017, I ordered the issue of infringement be heard separately from the issue of justification pursuant to s. 1 of the Charter . For the reasons that follow, it is my view s. 16(2) (

d) does not infringe s. 15(1) of the Charter . In the result, the application is dismissed. I. Legislation [ 3 ] Section 15(1) of the Charter is as follows:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [ 4 ] Section 16(2) of the Regulations provides that a borrower is eligible for a new student loan: 16(2) … (

d) if the borrower is released from the borrower’s student loans and guaranteed student loans by reason that an absolute order of discharge is granted under the Bankruptcy and Insolvency Act , three years have passed since the date of the order. II. Background: Canada Student Loans and Canada Student Grants [ 5 ] The Government of Canada first established a program of student financial assistance in 1918. The Canada Student Loan Program [CSLP], which is provided in partnership with participating provinces, was established in 1964.

It is a needs-based program designed to promote access to post-secondary education for students who require financial assistance for their studies. Canada Student Loans [CSL] are advanced without collateral, in part due to the expectation students will be able to repay the loans, as students with post-secondary educations have higher average lifetime earnings. The program also provides Canada Student Grants [CSG]. [ 6 ] The CSLP is governed by the Canada Student Loan Act , RSC 1985, c S-23 and the Regulations .

At the application stage, the student’s financial need is determined by assessing their financial resources against expenses related to post-secondary education. There are various provisions to accommodate students with permanent disabilities. A student facing exceptional costs as a result of a permanent disability who would not otherwise have an assessed need may be eligible for CSGs and CSLs.

Students with permanent disabilities are eligible for up to 520 weeks of financial assistance, while non-disabled students are eligible for a maximum of 340 weeks, or 400 weeks for a doctoral program. [ 7 ] There are other accommodations provided for students with a permanent disability. Non-disabled students must be enrolled in at least 60% of a full course load to be considered full-time. A student with a permanent disability taking between 40% and 59% of a full course load may elect to be considered full-time. There are also CSGs for students with a disability.

The Canada Student Grant for Students with Permanent Disabilities [CSG-PD] is a fixed amount of $2,000 per year for full-time or part-time students with permanent disabilities. In the 2015-2016 fiscal year, 31,356 students received $65 million in CSG-PDs. Students may also be eligible for the Canada Student Grant for Services and Equipment for Students with Permanent Disabilities [CSG-ESPD], which assists with costs for education related services and equipment related to a permanent disability. CSG-ESPDs are a non-repayable grant of up to $8,000 per school year.

In 2015-2016, $23.5 million in CSG- ESPDs were given to 9894 students. Similar grants were in place prior to 2009, when the current CSGs were put in place. [ 8 ] Students who withdraw from or complete their post-secondary education enter repayment in accordance with their student loan agreement six months after the end of their last period of study. Those who cannot afford their payments may be eligible for the Repayment Assistance Plan [RAP]. In the first stage of RAP, the borrower pays no payments or affordable payments, and interest payments are deferred.

In the second stage of RAP, the borrower continues to make affordable payments while Canada pays the balance that would have been due. Recipients of the second stage of RAP are ineligible for grants or loans until their loan is paid in full. However, they may be eligible for interest-free status while in-study. [ 9 ] The RAP for borrowers with a permanent disability [RAP-PD] provides repayment assistance and enables them to have their loans written off over a ten-year period. Those without permanent disabilities have a 15-year write-off period.

The borrower’s affordable payment takes account of additional living costs faced by borrowers with permanent disabilities. In 2015-2016, 19,273 borrowers with permanent disabilities received repayment assistance under this program. [ 10 ] Student loans are specifically addressed by the Bankruptcy and Insolvency Act, RSC 1985, c B-3 [ BIA ]. An order of discharge releases a bankrupt from all claims provable in bankruptcy, except those specified in the BIA . CSLs are one such exception. Section 178(1) of the BIA provides as follows: 178

(1) An order of discharge does not release the bankrupt from … (

g) any debt or obligation in respect of a loan made under the Canada Student Loans Act , the Canada Student Financial Assistance Act or any enactment of a province that provides for loans or guarantees of loans to students where the date of bankruptcy of the bankrupt occurred (

i) before the date on which the bankrupt ceased to be a full- or part-time student, as the case may be, under the applicable Act or enactment, or (ii) within seven years after the date on which the bankrupt ceased to be a full- or part-time student;… [ 11 ] A borrower who claims hardship can apply pursuant to s. 178(1.1) for the release of their student loan debt. That subsection is as follows: 178

(1.1) At any time after five years after the day on which a bankrupt who has a debt referred to in paragraph (1)(

g) or (g.1) ceases to be a full- or part-time student or an eligible apprentice, as the case may be, under the applicable Act or enactment, the court may, on application, order that subsection (1) does not apply to the debt if the court is satisfied that (

a) the bankrupt has acted in good faith in connection with the bankrupt’s liabilities under the debt; and

(

b) the bankrupt has and will continue to experience financial difficulty to such an extent that the bankrupt will be unable to pay the debt. [12] However, the release does not make the discharged borrower eligible for new student loans. That is so as a result of s.16(2)(

d) of the Regulations, which provides that borrowers remain ineligible for CSGs and CSLs for three years after an absolute orderof discharge despite that release. Section 16(2)(

d) is the only provision challenged by the applicant. III. Facts [13] The applicant suffers from Crohn’s disease. That is the source of the disability which grounds her application. Sheattended the University of Regina from September 2003 to January 18, 2008, when she was required to withdraw. In May 2008, she wasgranted a retroactive medical withdrawal for the fall 2006, winter 2007 and fall 2007 semesters. She resumed her studies in the fall of2008. In September 2010, she transferred to the First Nations University of Canada.

She completed a Bachelor of Arts in Justice Studiesin 2011. [14] On July 4, 2008, the applicant filed an assignment in bankruptcy. In January 2010, she was discharged from her debts.As a result of s. 178(1) of the BIA, that discharge did not include her CSLs. Despite her bankruptcy, she continued to receive CSG-PDsand CSGs for students from low income families between 2008 and 2011. She was enrolled in at least 40% of a full course load duringthat period. Her last period of study ended August 31, 2011.

When she entered repayment March 1, 2012, she had student loans of$73,689.53. [15] The applicant received assistance from March 1, 2012 to August 31, 2012 and from September 1, 2012 to February 28,2013 pursuant to the RAP-PD. During this period, she was not required to make any payments. She applied for further repaymentassistance in 2013, but failed to provide necessary documentation. On several occasions while in repayment, she considered applying forthe Severe Permanent Disability Benefit to have her loans forgiven.

She was informed that if she qualified for that program, she wouldno longer be eligible for CSLs. She did not pursue the matter further. [16] The applicant’s CSL went into arrears March 30, 2013. On June 6, 2016 she applied pursuant to s. 178(1.1) of the BIAfor a release of that debt. Canada did not oppose the application. On July 22, 2016, the Registrar in Bankruptcy ordered that the applicantbe discharged from her CSL obligations, which then totalled $79,843.18.

As a result, she became ineligible for CSGs and CSLs until July22, 2019. [17] Following her discharge from bankruptcy, the applicant applied for a full-time student loan. She was informed on June29, 2017 by the Government of Saskatchewan that it was unable to provide her with funding. At the date of this application, theapplicant was enrolled as a full-time student in a Masters program at the University of Saskatchewan. IV.

Section 15 of the Charter [18] As Abella J., writing for the majority, stated in Quebec (Attorney General) v Alliance du personnel professionnel ettechnique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 SCR 464: 25 Since Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, this Court has emphasizedsubstantive equality as the engine for the s. 15 analysis (R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Quebec (Attorney General) v. A,2013 SCC 5, [2013] 1 S.C.R. 61; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548).

The test for a primafacie violation of s. 15 proceeds in two stages: does the impugned law, on its face or in its impact, create a distinction based onenumerated or analogous grounds; if so, does the law impose "burdens or denies a benefit in a manner that has the effect of reinforcing,perpetuating, or exacerbating ... disadvantage" (Taypotat, at paras. 19-20). 26 The first step of the s. 15(1) analysis is not a preliminary merits screen, nor an onerous hurdle designed to weed out claims ontechnical bases.

Rather, its purpose is to ensure that s. 15(1) of the Charter is accessible to those whom it was designed to protect. The"distinction" stage of the analysis should only bar claims that are not "intended to be prohibited by the Charter" because they are notbased on enumerated or analogous grounds…For that reason it is not appropriate, at the first step, to require consideration of otherfactors — including discriminatory impact, which should be addressed squarely at the second stage of the analysis. The focus mustremain on the grounds of the distinction. [19]

Section 15 cases often relate to legislation that, on its face, draws distinctions based on enumerated or analogousgrounds.

Section 162(

d) does not draw such distinctions. It is facially neutral, treating students with and without medical disabilities thesame. The applicant says that denies medically disabled students equal benefit of the law. It is accordingly a claim of adverse effectsdiscrimination. As LaForest J. noted in Eldridge v British Columbia (Attorney General), (SCC), [1997] 3 SCR 624[Eldridge]: 61 This Court has consistently held that s. 15(1) of the Charter protects against this type of discrimination.

In Andrews [Andrews vLaw Society of British Columbia, (SCC), [1989] 1 SCR 143]] supra, McIntyre J. found that facially neutral laws may bediscriminatory.

"It must be recognized at once", he commented, at p. 164, "...that every difference in treatment between individuals underthe law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality"; see alsoBig M Drug Mart Ltd., [ (SCC), [1985] 1 SCR 295] supra, at p. 347…. [20] In Eldridge, the court found that s. 15 imposed a positive duty on government to ensure that measures were taken toenable deaf persons to access medical services, as effective communication was an indispensable component of the delivery of healthcare. [21] Sopinka J. described adverse effects discrimination in relation to those with disabilities in Eaton v Brant County Boardof Education, (SCC), [1997] 1 SCR 241, which related to a decision to move a child with cerebral palsy from aneighbourhood school to a special education class.

As he stated:

67 The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untruecharacteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one ofthe objectives. The other equally important objective seeks to take into account the true characteristics of this group which act asheadwinds to the enjoyment of society's benefits and to accommodate them.

Exclusion from the mainstream of society results from theconstruction of a society based solely on "mainstream" attributes to which disabled persons will never be able to gain access.…The blindperson cannot see and the person in a wheelchair needs a ramp. …it is the failure to make reasonable accommodation, to fine-tunesociety so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, whichresults in discrimination against them. … [22] Applicants who allege adverse effects face an added evidentiary burden at the first step of the s. 15 analysis:establishing a distinction.

As McLachlin C.J.C. and Abella J. noted in Withler v Canada (Attorney General), 2011 SCC 12, at para 61,[2011] 1 SCR 396 [Withler], comparison plays a role throughout the s. 15 analysis: 62 The role of comparison at the first step is to establish a "distinction". Inherent in the word "distinction" is the idea that theclaimant is treated differently than others.

Comparison is thus engaged, in that the claimant asserts that he or she is denied a benefit thatothers are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated oranalogous grounds of s. 15(1). [23] Where the claim alleges direct discrimination, “identifying the distinction will be relatively straightforward, because alaw will, on its face, make a distinction on the basis of an enumerated or analogous ground” (Withler, para 64). Where directdiscrimination is alleged, on the other hand: …the claimant will have more work to do at the first step.

Historical or sociological disadvantage may assist in demonstrating that thelaw imposes a burden or denies a benefit to the claimant that is not imposed on or denied to others. The focus will be on the effect of thelaw and the situation of the claimant group. [24] This evidentiary burden reflects the broader requirement for an adequate factual foundation to enable the court toconduct the Charter enquiry: see, for example, MacKay v Manitoba, (SCC), [1989] 2 SCR 357 (QL), at paras 9-11. [25] Fraser v Canada (Attorney General), 2018 FCA 223 demonstrates this evidentiary burden.

The applicants were formermembers of the R.C.M.P. who took advantage of a job sharing policy to balance the demands of their work with the need to care for theirchildren.

They argued that provisions in the Royal Canadian Mounted Police Superannuation Act, RSC 1985, c R-11 and RoyalCanadian Mounted Police Superannuation Regulations, CRC, c 1393 which provided for the calculation of their pension benefits on thebasis of hours worked – resulting in a reduction in those benefits – infringed s. 15, as pension benefits were not reduced by those whotook leave without pay for more than three months. [26] Gleason J.A. noted (at para. 40) that where the impugned legislation draws distinctions based on enumerated oranalogous grounds, “the first step of the

section 15 test is readily met as of the distinction is apparent on the face of the legislation”.However, the impugned law was facially neutral. Accordingly, the claim was one of adverse effect discrimination, and as she put thematter: 46 … in order to establish a case of adverse effect discrimination, it is necessary to identify the impugned neutral rule and to presentevidence to establish how it adversely or disproportionately negatively impacts a claimant or his or her group based on an enumerated oranalogous ground.

As Abella J., writing for a unanimous Supreme Court, noted in Taypotat, there "must be enough evidence to show aprima facie breach [...] [which] must amount to more than a web of instinct" (at para. 34). *** 47 …Here, the neutral rules in the RCMPSA and the Regulation that the appellants claim adversely impact them and other RCMPmembers who job-share are the provisions that establish that pension buy-back is only available for those who take leaves of absencewithout pay of three months or more. To meet the first step of the

section 15 analysis, the appellants were required to show that theserules negatively impact them in a disproportionate way and that such impact is due to a protected or analogous ground. [27] The court found that the applicants did not establish an infringement of s. 15 of the Charter for two reasons. First, itfound the loss of benefits could not be viewed in isolation from the remainder of the remuneration package available to those who jobshared and those on leave without pay. There was no evidence as to the relative value of the two benefits packages.

As such, the courtfound (at para. 50) that the applicants failed to establish adverse impact. [28] Second, it found that the applicants failed to establish that differential treatment, if any, was based on an enumerated oranalogous ground. As Gleason J.A. commented: 52 …there was no evidence before the Federal Court to suggest that the option of a leave without pay was unavailable (either actuallyor practically) to female RCMP members who had young children. Nor was there any evidence to suggest that more men than women ormore childless individuals than those with children had opted to take leaves without pay.

In the absence of such evidence, one cannotconclude that any difference in pension treatment between members who job-share compared to those who take a leave without pay isbased on an enumerated or analogous ground. [29] Kahkewistahaw First Nation v Taypotat, 2015 SCC 30, [2015] 2 SCR 548 also demonstrates the need for evidence atthe first step. There, the impugned legislation required that a candidate for election as Chief or a band counsellor have a grade 12education. The applicants were residents of the reserve who lacked that qualification.

They alleged the education requirement had adisproportionate effect on older community members living on the reserve. [30] The court found that the claim failed as a result of a lack of evidence linking the educational requirement in thelegislation to a disparate impact on an enumerated or analogous group. Abella J. summarized the available evidence as follows: 24 In this case…there is virtually no evidence about the relationship between age, residency on a reserve, and education levels in the

Kahkewistahaw First Nation to demonstrate the operation of such a "headwind". Nor is there any evidence about the effect of the education provisions on older community members, on community members who live on a reserve, or on individuals who belong to both of these groups. [ 31 ] The court reached this conclusion despite census data which demonstrated the number of Canadians with less than a high school education was higher for 55-64 year olds than for those between 25 and 34 or 25 and 64. The Federal Court of Appeal took judicial notice of that data.

Abella J. held that the data was too general: 31 Census data can certainly be a useful evidentiary tool to demonstrate that a law has a disadvantaging impact. But this case is about a particular Election Code in a particular First Nations community. I find it difficult to draw even a weak inference about the correlation between age and education among the almost 2000 members of the Kahkewistahaw First Nation from census data about the Canadian population generally.

As a result, in my respectful view, the Court of Appeal erred in taking judicial notice of this data as a key to its conclusion that the Kahkewistahaw First Nation's Election Code would have a disadvantaging effect on older community members. [ 32 ] She also found (at para. 32) that aggregate educational data relating to Aboriginal people in Canada did not bridge the evidentiary gap, as follows: 32 The second statistical basis for the Federal Court of Appeal's finding was aggregate educational data in the C.D. Howe Report dealing with all aboriginal people in Canada: pp. 4-5.

The Federal Court of Appeal used this data to conclude that the provision would have a disproportionate impact on older community members in the Kahkewistahaw First Nation . But the data relates to all Aboriginal people in Canada, including the Métis, the Inuit, and First Nations. It is less helpful in shedding light on the relationship between age and education in the specific context of the members of the Kahkewistahaw First Nation.

It captures a vastly larger, more diverse population than the community affected by the Code in this case and does not meaningfully illuminate whether and to what extent the Grade 12 education requirement functions to disadvantage older community members of the Kahkewistahaw First Nation. [ 33 ] As to the nature of the evidentiary burden at the first step of the s. 15 analysis, she commented as follows: 34 I think intuition may well lead us to the conclusion that the provision has some disparate impact, but before we put the Kahkewistahaw First Nation to the burden of justifying a breach of s. 15 in its Kahkewistahaw Election Act , there must be enough evidence to show a prima facie breach.

While the evidentiary burden need not be onerous, the evidence must amount to more than a web of instinct. The evidence before us, even in combination, does not rise to the level of demonstrating any relationship between age, residence on a reserve, and education among members of the Kahkewistahaw First Nation, let alone that arbitrary disadvantage results from the impugned provisions. [ 34 ] In the result, the application failed at the first step of the s. 15 analysis. V.

Analysis [ 35 ] In her brief of law, the applicant identified five characteristics that she alleges are enumerated or analogous grounds: 1) low income in June due to inability to work full-time hours as a result of her medical disability; 2) high cost of medical related expenses; 3) high cost of her special diet; 4) low income as a result of being female; and 5) the failure to accommodate her disability during her undergraduate studies, thereby increasing the cost of her education. [ 36 ] Four of these five “grounds” are results of her medical disability that would impact her ability to repay her CSLs.

Although she refers briefly to lower incomes and higher bankruptcy rates among women, her claim focuses strongly on the discrimination on the basis of disability, rather than gender. In her view, the waiting period imposed by the impugned provision constitutes a denial of equal benefit of the law under the first step of the equality analysis because there are no exemptions for students who declare bankruptcy due to a medical disability.

As she puts it, the discrimination results from the fact that disabled bankrupts face the same “penalty” as able-bodied persons who are not disadvantaged or members of a historically stereotyped group. [ 37 ] In the result, the applicant was obliged, at the first step of the s. 15 analysis, to adduce some evidence that the law denies a benefit to the claimant that is not imposed on or denied to others, based on an enumerated or analogous ground. The correct focus, in the language of Withler , is on the effect of the law and the situation of medically disabled students – and particularly women – who are bankrupt.

As McLachlin C.J.C. noted in Auton (Guardian ad litem of) v British Columbia (Attorney General) , 2004 SCC 78 , [2004] 3 SCR 657 : 27 …The primary and oft-stated goal of s. 15(1) is to combat discrimination and ameliorate the position of disadvantaged groups within society. Its specific promise, however, is confined to benefits and burdens "of the law." … 29 Most s. 15(1) claims relate to a clear statutory benefit or burden. Consequently, the need for the benefit claimed or burden imposed to emanate from law has not been much discussed.

Nevertheless, the language of s. 15(1) as well as the jurisprudence demand that it be met before a s. 15(1) claim can succeed. [Emphasis added]

[ 38 ] The difficulty with Ms. Yashcheshen’s application is that there is virtually no evidence as to the impact of s. 16(2) (

d) on disabled bankrupts. There is evidence that the applicant declared bankruptcy in 2008 due to the effect of her disability on income and expenses. Her briefs – which are not evidence – assert that disabled applicants for CSLs have less prospects for earning an income and obtaining educational funding elsewhere and that they graduate with 60% more student debt. Her October 27, 2017 brief asserts that there are more women bankrupts with student loan debt than men, and cites a 1999 study which is not in evidence for the proposition that the higher bankruptcy rate is a result of the fact women earn less than men.

It also refers to studies which are not in evidence relating to the importance of education to those with “medical difficulties” and “chronic illness”. [ 39 ] The shortcomings in this evidence are readily apparent. There is no evidence that students with medical disabilities are more likely to be unable to meet their CSL repayment obligations, to file for bankruptcy in circumstances that would engage s. 178(1) (g), or to apply for relief pursuant to s. 178(1.1) of the BIA .

There is no evidence as to the number of disabled students who are denied access to CSLs to continue their education after they are discharged pursuant to s. 178(1.1) . Although there may be a certain intuitive appeal to the applicant’s claim, that amounts to no more than – in the language of Withler – a “web of instinct”. With the greatest respect, there is simply insufficient evidence as to the effect of the law on borrowers who are disabled bankrupts, and thus, that the lack of an “exemption” from the effect of s. 16(2)(

d) denies a benefit or imposes a burden as a result of an enumerated or analogous ground. VI. Conclusion [ 40 ] In the result, this application fails at the first step of the s. 15 analysis. For that reason, it is not necessary that I consider the second step of the analysis. [ 41 ] I also note that there is a reasonable argument that even if there was evidence that borrowers with medical disabilities are more likely to file for bankruptcy, s. 16(2)(d) – the law that is alleged to have a disproportionate impact – does not have a disproportionate impact on those borrowers.

Section 16(2) treats able-bodied and medically disabled students in the same fashion. Their abilities, income and expenses have no effect on their eligibility to apply during the three year period of ineligibility. [ 42 ] Any disproportionate impact on medically disabled bankrupts – assuming it could be shown to exist – may be better understood to have arisen earlier in the process: that is, as a result of the fact that the CSLP requires that all borrowers repay their loans, regardless of why they cannot pay.

That, in turn, raises the interesting question as to whether disabled borrowers could demonstrate that the obligation to either repay a loan or suffer the consequences – repayment being an essential characteristic of the very benefit that the medically disabled borrower has applied for and received – is discriminatory in the sense contemplated by s. 15, particularly given the existing accommodations available to those with medical disabilities in relation to both eligibility and repayment.

Further, even if a court found a prima facie breach of s. 15, these contextual factors would be relevant to the s. 1 analysis. [ 43 ] The application is dismissed. There shall be no order as to costs. J.A. B.A. BARRINGTON-FOOTE