Gosselin v. Quebec (Attorney General)

In 1984 the Quebec government created a new social assistance scheme. Section 29(a) of the Regulation Respecting Social Aid (the Regulation), made under the 1984 Social Aid Act, set the base amount of welfare payable to persons under the age of 30 at roughly one third of the base amount payable to those 30 and over. Under this scheme, participation in one of three education or work experience programs allowed people under 30 to increase their welfare payments to either the same as, or within $100 of, the base amount payable to those 30 and over. In 1989 this scheme was replaced by legislation that no longer made an age-based distinction.

Louise Gosselin, a welfare recipient, brought a class action challenging the 1984 social assistance scheme on behalf of 75,000 unnamed welfare recipients under 30 subject to the differential regime from 1985 to 1989. The Appellant argued that the 1984 social assistance regime violated the right to life, liberty and security in ss. 7 and the right to equality in 15(1) of the Canadian Charter of Rights and Freedoms (Canadian Charter) and the right to social measures provided by for law that ensured an adequate standard of living in s. 45 of the Quebec Charter of Human Rights and Freedoms (Quebec Charter). She requested that s. 29(a) of the Regulation be declared to have been invalid from 1987 (when it lost the protection of the “notwithstanding clause” that exempted Quebec laws from the Canadian Charter) to 1989, and that the government of Quebec be ordered to reimburse all affected welfare recipients for the difference between what they actually received and what they would have received had they been 30 years of age or over, for a total of roughly $389 million, plus interest.

The Superior Court dismissed the class action. The Court of Appeal upheld the decision. The Supreme Court’s analysis considered, among several issues, the extent to which the Canadian Charter restricts a government’s discretion to extend assistance to different groups of welfare recipients.

The Court held that Quebec’s social assistance scheme, as it stood from 1987 to 1989, did not violate ss. 7 or 15(1) of the Canadian Charter, or s. 45 of the Quebec Charter.

The Court held that the differential welfare scheme did not breach s. 15(1) of the Canadian Charter, because it had a rational connection and was proportionate to the legitimate end of encouraging more young people to work or study. The Court considered that the aim of s. 15 was to protect equal membership and full participation in Canadian society. Section 15 was directed at discrimination that harmed a person’s dignity, rather than formal distinctions. A scheme was designed to integrate youth into the workforce and promote their long-term autonomy could not be said to fall within the types of discrimination that it was designed to prevent. The Court considered that youth were not a group facing pre-existing disadvantage, that the law was appropriately structured to solve the problem of youth unemployment in the long-term, that the program did not indicate that older welfare recipients were valued more, and that Gosselin had not provided evidence that the program had had an adverse effect or failed to meet the needs of young welfare recipients.

The Court also declined to interpret s. 7 as including positive obligations to provide an adequate standard of living. Although it accepted that s. 7 could potentially be broadly interpreted in future cases, it considered that such development should be incremental. At present, the provision referred only to “deprivations” of life, liberty or security, and did not place a positive obligation on the state. Furthermore, the Court considered the factual record could not support a s. 7 claim, as Gosselin had not provided sufficient evidence that the scheme had caused actual hardship.

Finally, the Court held that the scheme did not violate s. 45 of the Quebec Charter, because the Social Aid Act was in fact a measure provided by law that satisfied s. 45’s requirements. The Court considered that s. 45 created an obligation to provide social assistance schemes, but put the content of those schemes beyond review.

The appeal was dismissed.

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“Whatever sympathy Ms. Gosselin’s economic circumstances might provoke, I simply cannot find that she has met her burden of proof in showing that the Quebec government discriminated against her based on her age. In my respectful view, she has not demonstrated that the government treated her as less worthy than older welfare recipients, simply because it conditioned increased payments on her participation in programs designed specifically to integrate her into the workforce and to promote her long-term self-sufficiency.” Para. 19

“Perfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required to find that a challenged provision does not violate the Canadian Charter.  The situation of those who, for whatever reason, may have been incapable of participating in the programs attracts sympathy.  Yet the inability of a given social program to meet the needs of each and every individual does not permit us to conclude that the program failed to correspond to the actual needs and circumstances of the affected group.  As Iacobucci J. noted in Law, supra, at para. 105, we should not demand “that legislation must always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter”.” Para. 55.

“Logic and common sense support the legislature's decision to structure its social assistance programs to give young people, who have a greater potential for long-term insertion into the workforce than older people, the incentive to participate in programs specifically designed to provide them with training and experience. As indicated above, the government's purpose is a relevant contextual factor in the s. 15(1) analysis insofar as it relates to how a reasonable person in the claimant's circumstances would have perceived the incentive-based welfare regime. In this case, far from ignoring the actual circumstances of under-30s, the scheme at issue was designed to address their needs and abilities. A reasonable person in the claimant's circumstances would have taken this into account.” Para. 44.

“As the trial judge emphasized, the record contains no first-hand evidence supporting Ms. Gosselin’s claim about the difficulties with the programs, and no indication that Ms. Gosselin can be considered representative of the under-30 class. It is, in my respectful opinion, utterly implausible to ask this Court to find the Quebec government guilty of discrimination under the Canadian Charter and order it to pay hundreds of millions of taxpayer dollars to tens of thousands of unidentified people, based on the testimony of a single affected individual. Nor does Ms. Gosselin present sufficient evidence that her own situation was a result of discrimination in violation of s. 15(1).” Para. 47.