It took nearly two decades for Jasmin Simpson to get her day in court. It took only two months from the end of submissions for the Court to rule in her favour.

On October 26, 2020, the Ontario Superior Court of Justice held that Ms. Simpson had proved that the Canada Student Loans Program (“CSLP”) including the Ontario Student Assistance Program (“OSAP”) violated her rights under section 15 of the Canadian Charter of Rights and Freedoms. As of November 25, 2020, the deadline to appeal this decision has passed.

Ms. Simpson is blind, Deaf, and has lupus. As a result of her disabilities, it took her far longer to complete her undergraduate and graduate programs. During this extra time, she accumulated 60% more student debt than her non-disabled peers completing comparable programs.

Ms. Simpson argued that this extra debt burden was discriminatory on the basis of disability.

In its recent decision, the Court agreed.

The Court held that there was “no dispute” but that people with disabilities face a wide range of barriers in Canadian society. It found that people with disabilities are less likely to pursue postsecondary education, face a range of financial barriers that leave them more likely to earn a lower income and to be under-employed, and that at least some students with disabilities are likely to take longer to complete their post-secondary education.

It held that, where students with disabilities take longer to complete their post-secondary education, the operation of the student loan programs is such that they are burdened with additional debt.

However, the Court accepted that the experiences of students with disabilities are variable, with some students receiving repayment assistance to redress their debt. The Court held that, in the abstract, it was “impossible to know” in which circumstances the CSLP and OSAP had fully redressed the extra debt borne by students with disabilities.

Ultimately, the Court did not strike down the student loans programs, but rather held that the question of whether the student loans programs operate in a discriminatory way will depend on how the programs are administered in specific cases. For Ms. Simpson, Canada and Ontario did not operate the program to cure her extra debt burden.

The Court found that this violation was not justified under section 1 of the Charter: imposing and not redressing Ms. Simpson’s additional debt “was not a reasonable option open to the respondent governments”, (a failure under the “minimal impairment” branch of the section 1 justification test) (at para XX).

For her remedy, the Court awarded Ms. Simpson a declaration that her extra debt is not payable. Canada and Ontario were both ordered to return to Ms. Simpson the money she paid towards her extra debt, including interest amounts.

While the Court was cautious that its decision was individualized, it noted that it would be clearly unsatisfactory to require other students like Ms. Simpson to bring individual Charter litigation, like she did. As a result, the Court noted a “constitutional constraint” on the governments to operate their programs in a way that does not infringe the equality rights of students with disabilities who take longer, and end up with extra debt as a result.

Both governments are responsible for ensuring the tools of their programs are used so that others do not experience the same adverse effects as Ms. Simpson did.

Bakerlaw has written previously about Ms. Simpson’s case here (link). In earlier posts, we shared how Ms. Simpson had turned down a settlement that would have cancelled all of her debt: she turned it down because it would not help students other than herself.

The Court’s recent decision means that students with disabilities who take longer, like Ms. Simpson, are entitled to have their extra debt taken into account and redressed by the student loans programs.

While it took nearly twenty years, that’s a win.

You can read the Court’s full decision here (link).

Think your situation similar to Ms. Simpson’s? Check back here for more information about how to request a review of your student loan debt. We will be posting more on that soon!