Equality

Formula for finding discrimination w/in s15 of the Charter:

A rule/law imposes a disadvantage (retirement) on a defined group by X (age),
and X is one of the grounds of discrim listed / analogous to s15
+ The rule/law perpetuates disadvantage and prejudice, or stereotyping
suffered by the group. (look for ameliorative effects on other groups ,or the
rule/law fails to correspond to the complainant's characteristic/circumstances)
= s15 has been breached.

The real threat to equality in Can = private actors – and freedom of property and
contract – now mostly made subordinate to egalitarian values by HR legsil in the
provs

Bill of Rights s1(b) gurantees equality before the law – but has been rendered
irrelevant w/ arrival of s15 of the Charter (April 15, 1985)

s15: expresses equality in 4 ways:

1. under the law
2. before the law
3. protection of the law
4. benefit of the law

(see also s32)

Listed Grounds
It also gurantees against discrim based on sex, religion, race, national or ethnic
origin, colour, age or mental or physical disability

s15(2) – auth affirmative action programs

“Individual” - prob n/a to a corporation

“Law” burden on Parlt/Govt of Can and Legisl/govt of each province (s32) and it
includes:
-all action taken under statutory auth
-conduct taken under auth of law ( and a collective agreement = law for s15)

Private action
s32 excludes private action – s15 does not apply to private acts of discrimination
HR Codes do apply to private action and SCC has held they take precedents over
other statutes – note: HR Codes are themselves subject to the Charter
Blainey – HR Code exception for single sex sports teams Court held breach of s15
in that the applicant was deprived of the benefit of the human rights code on the
basis of sex

Similar challenge against Ont HR Code which indirectly permitted mandatory

retirement – age discrim only applied up to age 65 = breach of s15, but the law
was upheld under s1

“under the law” -> means judicial review on equality grounds can be as to
substance of a law
“benefit of the law” -> means legislature providing benegfits subject to equality
review

formal equality only captures direct discrimination – vs – substantive equality

which refers to indirect and direct discrimination

Andrews – Court held s15 prohibits discrimination – only where based on a listed
or analagous ground

Equallity is only protected where there is a violation of equaity that amounts to

“Discrimination”:
1) challenged law (directly / indirectly) imposes a disadvantage (burden /
withheld benefit) on the claimant in comparison w/other comparable
persons.

2) the disadvantage is based on a ground listed in s15 or an analogous ground

3) the disadvantage = impairment of human dignity of the claimant /

“discrimination”

Once there is a finding of discrimination the challenged law is in breach of s15.

(And it is rare that s1 justification is available because of the human dignity
element)

Listed / Analagous Grounds

-listed grounds commonality = personal characteristics of individuals that cannot

easily be changed and which are often the target of prejudice or stereotyping
-the affirative action clause (s15(2)) suggests the role of s15 is correct discrim
against disadv groups/ individuals – not to elim all unfairness from our laws – but
to elim discrimination based on immutable personal characteristics.

Andrews v Law Soc of BC – first s15 SCC case – challenge to stat reqt that all
members of thebar had to be citizens of Can. SCC held the law to be contrary s15
and not saved by s1.
SCC devised the “enumerated and analogous approach” and held citizenship = an
analogous ground.

Analogous Grounds:
-what a person is rather than what they do/their actions
-immutable / can only be changed w/ great difficulty or cost
-not voluntarily chosen

Recognized Grounds:
soft grounds – where court also reqd human dignity element or defeat of s1:
citizenship – Andrews
marital status – Miron v Trudel

firmer ground:
sexual orientation – Egan v Canada

unaccepted grounds:
place of residence (other than Indian Reserve)
occupation
substance orientation
temporal distinctions (ie change in the law creating distinction btw those who
were governd by the law before the change and those who are govrnd by the new
law)
claims against govt (priv for the Crown etc)

Impairment of human dignity:

Law v Canada – added the additional element of impairment of “human dignity”
In Law the claimant was deprived of a CPP survivor-benefit because she was
under 35 = discrimin based on age, a listed ground. But the court futher reqd that
she show that the distinction based on age also impaired her human dignity

Factors for analysis of impairment of human dignity:

1. pre-existing disadv, stereotyping, prejudice or vulnerability
2. correspondence btw distinction and claimant's characteristics
3. existence of ameliorative purposes or effects on other groups
4. nature of the interests affected
*note this is no longer the test but the new one (Kapp, below is very similar)

In Law claimant lost her case because of the correspondence factor – denial of
CPP surv benefs to spouses under 35 accurately corresponded to the
circumstances of the claimant or others – younger persons could be expected to
find and retain employment more so than older spouses.

cp NS v Martin – where Court held short term remedial programs instead of full
workers comp benefits for chronic pain did not correspond to the needs of injured
workers suffering from that condition

Often seems to come down to the correspondence factor --> which Courts use to
assess the legitimacy of the statutory purpose and the reasonableness of using a
listed or analogous ground to accomplish that purpose. (Leaves very little to be
done at s1 stage)
Problem with human dignity reqt:
-burden is on the claimant to est human dignity --> if they cant it never moves
forward to the s1 analysis (where the burden is on the govt to show
reasonableness/justification)
=big hurdle to having the law struck down even though disadvantage based on an
analogous ground has been established

R v Kapp – replaced “human dignity” reqt with “discrimination” reqt:

Hogg: but its kinda the same thing

*Discrimination is now defined as: “the perpetuation of disadvantage or

stereotyping”.
Factors for”discrimination” (R v Kapp):
A) Perpetuation of disadvantage and prejudice:
1.pre-existing disadvantage, stereotyping, prejudice or vulnerability
2.Nature of interest affected
3.existence of ameliorative purposes or effects on other groups
B)Stereotyping:
4.correspondence btw distinction and claimant's characteristics

note: in Ermineskine – Indian funds invested by Crown – the court held that the
disadvantage based on race was not enough but did not address the 4 factors
above before concluding that it did not in this case perpetuate diasdvantage
through prejudice or stereotyping.
-does not mean the factors dont matter but court will not always go through them

Disadvantage

1. Comparator Groups:
-burden / obligation that is imposed on the claimant is not imposed on others
(Andrews)

Ask:
1. is group claimant compares herself to the appropriate comparator group?
2. is the disticntion that the law makes btw them disadvantageous to the
claimant?

-must share all the characteristics w/ claimant that qualify for benefit/burden –
except the listed / analogous ground.

eg. woman challenging law that confers benefit on men --> comparative group is
men who qualify for the benefit --> if claimant possesses all the qualifications for
the benefit other than sex = then disadv suffered by reason of sex

Hodge v Canada – woman was common law parnter – separated from spouse
shortly before he died – argued discrim because if legally married she would have
been enitled to the benefit even if she moved out – Court held: wrong comparator
group – she should have compared herself to former spouses not married spouses
livig apart – bc effect of her moving out = end to the common law marriage.
Former spouses treated equally whether legally married or not.

Auton v BC – wrong to compare autism claimants with other fully funded therapies
bc the autismm therapy had only recently become recognized as medically
necessary. Funding of new therapies may be legitimately denied due to
uncertainty and admin difficulties – -Claimant would have to show other
comparable novel therapies being funded to show disadvantage.

NS v Martin – court chose to compare chronic pain sufferers to persons suffering

from other work-related injuries. So that claim suceeded

Resut --> Claimant will point to a comparative group that is better treated and
govt will counter with a group that is treated worse or the same or that does not
exist.

2. Disadvantage:
Next, claimant reqd to show there is a disadvantage.

copare treatment prov to claimant w/ treat prov to comp group --> if claimant is
treated less favourably = disadvantage

Thibadeau v Canada – any disadvantage imposed on claimant should be netted

out against any advantage granted to the claimant group
-disadvantage of having to pay income tax on support payments was offset by
higher support payments

Eaton v Brant Conty Board of Edu – child of cerbral palsy placed in special ed class
= not a disadvantage from child's point of view.

Objective and Subjective Disadvantage:

Ie. whether the Court thinks its a disadvantage (obj) or the claimant thinks so
(subj)

Usu the courts analyze disadv on a subjective basis -> whether the applicant
suffers a disadvantage themselves
(Egan; McKinney)

But occasionally the court considers the disadvantage from an objective point of
view --> Thibadeau; and Swain)

R v Swain – accused chose not to raise defence of insanity – but rule that Crown
could – if not raised, sentence finite – if raised, at L-G's discretion indefinitely.
Mental disab = listed ground
Court held not really a disadv because spared of being convicted for an offence
for which he did not have the requisite guilty mind (by reason of insanity).

Really both apply : ask would a reasonable person who shares the attributes and
circumstances of the claimant would suffer a disadvantage?

Group Disadvantage:

Miron v Trudel – membership in a disadvantaged group not a prerequisite,

but merely an indicator of ananalogous ground.
Law – membership in a vulenrable/ diadvantaged group should be a central
consideration but it is not per se determinative of an impairment of human
dignity.
-It is enough to establish that claimant is disadvantaged by the legal distinction
under challenge – but also that th legal distinction rests on a listed or analogous
ground.

Background:
R v Turpin – murder offence – no right in Ont to elect trial by judge alone – but in
Alta you could – SCC rejected the s15 argument on basis that the 3 accused were
not members of a diadvantaged group.
-Not enough to show disadvantage by the law – need to show if not obvious
that the distinction employed by the statute defines a group that is
disadvantaged in other respects.
Province of residence not a disadv – the claim was outside the scope of s15 –
it did nothing to advance the purpose of s15 to remedy or prevent
discrimination against groups suffering social, political, and legal disadv
in our society.

Judicial review of discriminatory laws can be viewed as the correction of a failure

of the political process – to represent adequately a “discrete and insular
minority”.
But Hogg argues political powrlessness although valuable to consider should not
be a prerequisite. --> SCC agrees.

R v Hess – rape prov challenged under s15 – SCC: if Turpin reasonning taken too
far, then men could not claim s15 protection bc not an otherwise disadvantaged
group. No good - discriination against men is contrary to s15.

Direct and Indirect Discrimination

Substantive equality
-law may be discriminatory on its face or in its effect or in its application.

Effect:
Indirect discrimination – caused by a law that does not expressly employ any
of the categories in s15 but the law has a disproportionately adverse effect
on persons defined by any of the prohibited categories.
Application:
No discriminatory qualfications in the statute but when applied the procedures are
discriminatory. --> law will not be held invalid under s15 but the Court will
invalidat past applications of the law and require non-discrimatory procedures be
adopted in future.

-not nec to show law was passed with the intention of being discriminatory – mere
fact that law has a disprop adverse effect is sufft.

-but tough one to prove = only 2 claims of indirect discrim have succeeded:
1. Eldridge v BC – BC heathcare plan failed to provide for publicly funded sign
language - the law was “neutral” no one recd sing-lang interp – but really the only
disadv group were deaf persons = breach of s15.

2. Vriend v Alberta – Alta HR legisl failed to protect on basis of sex orientation –

did not protect either homosexuals or heterosexuals – but was found to disprop
impact = discrim against homosexuals in breach of s15.

Unintended Discrimination

intention not an ingred of s15

-mere fact of disproportionately adverse effect on persons in a prohibited
category (along with an impairment of human dignity) is enough to establish a
breach of s15

Reasonable Accomodation
govt has to provde reasnbl accom for those who might be disrim against by
otherwise neutral laws
OHRC v Simpsons-Sears – employer under a duty to make reasonable
adjustments to emplee work schedule – disproportionately adverse effect
Saturday sabbath observers = discrimination on basis of religion.
-could have been cured by reasnbl accom – ie failure to prov reasnbl accom =
discrimination
Justification under s1

Nfld v NAPE – Nfld financial crisis – postponed implementation of collective

agreements incr wages of female hosp workers to achieve pay equity w/men – the
law withheld a benefit on basis of sex and to maintain wages that did not do
justice to female workers' contribution = a breach of human dignity. The
postponement was justified under s1 – due to wage freezes for all public sector
employees in Nfld.

Affirmative Action

s15(1) implements a substantive definition of equality – not a formal one -->

different treatment in providing equity for disadvantaged groups is an expression
of equality – not an “exception” to it.
s15(2) is not an “exception” to equality in s15(1) it enables govts to pro-actively
combat discrimination.
R v Kapp – If a program meets the criteria of 15(2) then it is valid under that
section and no s15(1) analysis is reqd. If the program fails to meet s15(2) criteria
– s15(1) analysis must be undertaken to determine whether it is discrinimatory.

In Kapp – communal commercial fishing licence avail only to Indian bands – auth
them to fish for salmon in Fraser River – for exclusive 24-hr period before non-
aboriginal licences took effect. Non-aborig licence holders claimed the program
was unconstl bc priv access discrim on basis of race -
SCC unanim: upheld the program. It was restricted by race which is a listed
ground under s15 but the “object” of the program was the “amelioration of
conditions” of the Indian bands which the judges held were “disadvantaged”
groups.

Test for attack against a program under s15(1) (Kapp):

Affirmative Action Programs will succeed:
Where program targets a group listed in/analogous to s15(1) and
1) the group is disadvantaged; and
2) the purpose of the program is the improvement of the conditions of the
group

Discrim permitted by the Constitution

The following provisions that discriminate on s15(1) grounds are sheltered by

their constitutional status.

Age – ss23 (30 yrs old to be appointed to the Senate), 29 (mand retirement age of
senator is 75) ,99 (mand retire age of judge is 75)
-no challenges yet, but see above

Race – s91(24) (Indian prereq to Indian Act – (protected in Lavell; Canard))

Religion – s93 (Relig education provisions – distinct treat of RC school exspressly
perm by Constitution)

Province of residence – ss91, 92 (to require uniformity of provl laws would be

inconsistent with the distrib of powers)

Citizenship – s6 (right to remain in Canada avail to citizens only – that was

specifically contemplated by s6)

Language – s16-23 (special status to Fr and Eng compared to all other linguistic
groups – if a benefit were conferred to Fr speaking citizens but not to German-
speaking citizens would normally breach s15 – but in the case of min lang rights
prov for in the Const the difft treatment is specif contempl)

Race
-a racial distinction in a statute would be upheld if it established an affirmative
action program valid under s15(2)
-maybe upheld if outside s15(2) but pursued a benign purpose of an affirmative
action kind

Religion
-public funding of the schools of a relig denom would be prohibited by s15
-but s93 gurantees rights of suppoters of those relig schools that existed at time
of confed
-otherwise s15 challenge likely to succeed against benefits being conferred on
Christians and denied to other religions (eg the cases that were made under s2(a)
freedm of exprssn against sunday observance laws and religious practices in
public schools).

Sex
Direct Discrimination
Brooks v Can Safeway – Court confirmed that since pregnancy is a condition to
which only women are vulnerable any disadvantage premised on preganancy
should be characterized as discrminaton by sex.
R v Hess – CC provision criminalising statutory rape for men and not women held
by the majority to not be discrim but minority spoken for by McL said it was
discrim but justif under s1 – because young females and not males ran the risk of
getting pregnant
Weatherall v Canada – prisoner chall frisk searches of males could be made by
female guards but of females could not be made by male guards – Court only held
it was “doubtful” that s15 violated – but even if it were humanizing effect of
having females in prison and employment equity were justif under s1
Benner v Can – citizenship provs re being born to a Cdn father vs mother outside
Can – struck down – no rational basis for it to be justif under s1.
Trociuk v BC – father challenged prov that allowed mother to leave father's name
off birth certificate and choose the surname of the child. Court held it was discrim
on basis of sex bc father at a disadvantage in comparison with mother and
excluding father's name from registration and naming process = impaired with
their human dignity.
Nfld v NAPE – Public Sector Restraint Act – female workers pay equity delayed =
discrim based on sex since it put the women at a disadv and impaired their
dignity to be paid less then their work was worth.

Systemic Discrimination
legislation that is on its face is gender-neutral may give rise to a disprop adverse
impact on women
-it may be indirect and unintended and may req reasonable accom to alleviate
Symes v Can – challenged Income Tax Act by not allowing business persons to
deduct the full costs of childcare – held not to be discrim on the basis of sex –
because evid may show women disproportionately bore social cost of childcare
but didnt show they bore the financial
cost disproportionately so the tax deduction would benefit men as much as
women.

Section 28
Guarantees the rights and freedoms referred to in the Charter equally to male and
female persons.
stronger than s15 becaue – unlike s15 override power does not apply to s28; and
possibly not even s1 – bc s28 is worded “notwithstanding anything in this Charter”

Age

-age is a characteristic shared by everyone – each individ passes through all ages
-age is related to ability
Law v Canada – court upheld CPP benefits scheme whr widows under 35 not
entitled – court too judicial notice that those younger widows more likely to be
able to support themselves then older ones.
Gosselin v Quebec – welfare recip under 30 rec'd 1/3 of the standard amount and
had to tae work exper/edu programs to get the rest – distinction held not to be
discriminatory bc it did not impair human dignity – the law did not treat young peo
as less worthy or deserving of respect if anyhting it treated them as more capable
of benefiting from the workfare programs
-Wynberg v Ontario – provl govt program supp therapy to preschool children –
until age 6 – it was held not to be discriminatory even though the
distinction btw those who benefitted and those who didnt was based on
age because it did not impair human dignity – expert opinion was that that
age group benefitted most – the program was time intensive and time consuming
(20-40 hours one-on-one therapy)

McKinney – (3 / 4 mand retirement cases held to be outside the Charter bc

universities and hospitals operated outside control of govt – the 4th was a
community college more tightly cotrolled by govt) even though the Charter was
held not to apply the SCC discussed the constitutionality of the provsions as
though s15 did apply – the Court held that mand retirment = discrimination
but was saved by s1 so that mand retirmnt was upheld.

Mental Physical Disability

-by definition an impairment in ability
Granovsy v Can – CPP provision for benefit only where person who becaemunabel
to work due to disab had contrib to CPP for 5 / 10 past yrs – but if perm diab
during that time you didnt have to contrib complainant was only temp diabld
during that time so he couldnt take advantage of the drop-our provision – claimed
breach of s15 – SCC rejected the claim on the basis that the drop out prov recog
the greater need of those with a perm disab who werent able to contrib to CPP –
not an impairment of the human dignity of those who had been temp disabled. (ie
couldnt cp himself to a group that was more in need of the benefit of the prov due
to more severe dabibility).

Occupation
rejected as an analogous ground for discrim – adverse effects on an industry
relate essentially to the type of work they do and the person they are – no
“differential treatment based on personal characteristics”