Charter - s.15 Discrimination. Fraser v. Canada (Attorney General)
In Fraser v. Canada (Attorney General) (SCC, 2020) the Supreme Court of Canada engages in an adverse impact Charter s.15 analysis, with substantial consideration of prior doctrine [paras 27-82].
. Weatherley v. Canada (Attorney General)
In Weatherley v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal sets out an analysis of the s.15 discrimination section of the Charter on the issue of underinclusive benefits, focussing on the needs of the evidentiary record in such challenges:
(1) Section 15(1) of the Charter. Meekis v. Ontario
 Section 15(1) provides that "“[e]very 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”".
 Under the Canada Pension Plan, Parliament has made difficult decisions allocating scarce benefits among recipients. In case after case, the Supreme Court has said that benefits plans such as this are difficult to strike down under section 15(1) of the Charter. These cases have never been overruled and still bind us.
 In Gosselin v. Quebec (Attorney General), 2002 SCC 84,  4 S.C.R. 429 at para. 55, the Supreme Court held that courts cannot insist on "“[p]erfect correspondence between a benefit program and the actual needs and circumstances of [an] applicant group.”" While exclusion from participation in benefits programs "“attracts sympathy”", 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”" (at para. 55).
 This led the Supreme Court in Gosselin to hold that an infringement of section 15(1) of the Charter cannot be deduced simply from the fact that benefits legislation leaves a group, even a vulnerable group, outside a benefits scheme (at para. 55):
The fact that some people may fall through the program’s cracks does not show that the law fails to consider the overall needs and circumstances of the group of individuals affected, or that all distinctions contained in the law amount to discrimination in the substantive sense intended by s. 15(1). To the same effect is the Supreme Court’s decision in Law v. Canada, 1999 CanLII 675 (SCC),  1 S.C.R. 497, 170 D.L.R. (4th) 1 at para. 105. This Court described Law’s contribution to our understanding of section 15(1) and the Plan in this way:
…[B]enefits legislation, like the [Canada Pension] Plan, is aimed at ameliorating the conditions of particular groups. However, social reality is complex: groups intersect and within groups, individuals have different needs and circumstances, some pressing, some not so pressing depending on situations of nearly infinite variety. Accordingly, courts should not demand “that legislation must always correspond perfectly with social reality in order to comply with s. 15(1) of the Charter”: Law, supra at paragraph 105.(Micelli-Riggins at para. 56.)
 More recently, in Withler v. Canada (Attorney General), 2011 SCC 12,  1 S.C.R. 396, the Supreme Court held that the assessment whether benefits legislation offends section 15(1) must be conducted sensitively, keeping front of mind the challenge of allocating scarce resources (at para. 67):
In cases involving a pension benefits program such as this case, the contextual inquiry at the second step of the s. 15(1) analysis will typically focus on the purpose of the provision that is alleged to discriminate, viewed in the broader context of the scheme as a whole. Whom did the legislature intend to benefit and why? In determining whether the distinction perpetuates prejudice or stereotypes a particular group, the court will take into account the fact that such programs are designed to benefit a number of different groups and necessarily draw lines on factors like age. It will ask whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme. Perfect correspondence between a benefit program and the actual needs and circumstances of the applicant group is not required. Allocation of resources and particular policy goals that the legislature may be seeking to achieve may also be considered.In Withler, the Supreme Court also instructed (at paras. 38 and 66) that courts should give some margin of appreciation under section 15(1) to the judgment calls made by legislators when assessing whether their benefits legislation improperly discriminates.
 For these reasons, the Supreme Court has suggested that only something quite discernable or concrete—such as an illegitimate or arbitrary "“singling out”" of a particular group—can prompt the Court to find that benefits legislation infringes section 15(1):
It is not open to Parliament or a legislature to enact a law whose policy objectives and provisions single out a disadvantaged group for inferior treatment: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC),  2 S.C.R. 203. On the other hand, a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect does not offend this principle and does not give rise to s. 15(1) review. This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner….(Auton (Guardian ad litem of) v. British Columbia (A.G.), 2004 SCC 78,  3 S.C.R. 657 at paras. 41-42.)
Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address.
 But even then, a section 15(1) claimant may still not have enough to succeed. This is because "“[c]rafting a social assistance program…is a complex problem, for which there is no perfect solution”" and "“[n]o matter what measures the government adopts, there will always be some individuals for whom a different set of measures might have been preferable”": Gosselin at para. 55. In the same vein, this Court has put it this way:
When presented with an argument that a complex statutory benefit scheme, such as unemployment insurance, has a differential adverse effect on some applicants contrary to section 15, the Court is not concerned with the desirability of extending the benefits in the manner sought. In the design of social benefit programs, priorities must be set, a task for which Parliament is better suited than the courts, and the Constitution should not be regarded as requiring judicial fine-tuning of the legislative scheme.(Krock v. Canada (Attorney General), 2001 FCA 188, 89 C.R.R. (2d) 170 at para. 11.)
 This Court has also said that "“constitutional tinkering with complex, interlocking statutory provisions”" in order "“to cure an apparent arbitrariness in the operation of a justifiable cut-off in a benefits scheme”" is "“likely to create unforeseen anomalies of its own”": Nishri v. Canada, 2001 FCA 115, 84 C.R.R. (2d) 140 at para. 43.
 As can be seen from this analysis of earlier section 15(1) cases in the area of benefits legislation, the applicant faces a high hurdle. Subsection 63(6) of the Canada Pension Plan does not suffer from any of the severe deficiencies identified in cases such as Auton. Whatever detrimental effects result from subsection 63(6)—and as we shall see, the evidence suggests there are none—they are likely to be "“a consequence of…complicated rules within a complicated scheme in support of a Plan that is not a general social welfare scheme available to all in every circumstance”", not a consequence of discrimination: Runchey at para. 126.
 To establish that subsection 63(6) infringes section 15(1) of the Charter, the applicant must show that subsection 63(6) creates a distinction based on an enumerated or analogous ground and subsection 63(6) imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage: Fraser at para. 27.
 The applicant’s claim fails at the first step of the analysis. The evidence filed before the Social Security Tribunal does not establish that subsection 63(6) draws a distinction on the basis of sex or denies a benefit.
 On its face, subsection 63(6) does not discriminate between men and women. But section 15(1) requires us to go beyond the face of a law. A law seemingly neutral on its face may be discriminatory if, in effect, it has a disproportionate, adverse effect on women: Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC),  1 S.C.R. 143, 56 D.L.R. (4th) 1 at 182 S.C.R. We must focus on substantive equality not facial superficialities.
 The Supreme Court has described substantive equality in the following way:
Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the applicant group.(Withler at para. 39.)
 Here is where the applicant takes her stand. She says that the seemingly neutral law in subsection 63(6) indirectly places women at a disadvantage. She claims adverse effects discrimination or a violation of substantive equality: see Fraser at para. 30.
 But nothing in Supreme Court case law, new or old, eliminates her obligation to adduce evidence in support of her claim.
 Recently, the majority of the Supreme Court provided a "“clear account of how to identify adverse effects discrimination”", including the nature of the evidence a claimant is required to adduce: Fraser at para. 50.
 In Fraser, as a general matter, the majority of the Supreme Court instructs us that "“[t]wo types of evidence”" are "“especially helpful in proving that a law has a disproportionate impact on members of a protected group”": first, "“evidence about the situation of the claimant group”" and, second, "“evidence about the results of the law”" (at para. 56) or the "“results of a system”" (at para. 58). On the second type of evidence, what must be shown is "“a disparate pattern of exclusion or harm”" from the law "“that is statistically significant and not simply the result of chance”" (at para. 59). Inherent in this is a requirement to lead some evidence that the law being challenged causes or at least contributes to the impact. In other words, there should be "“evidence…about the results produced by the challenged law”" (at para. 60). Both types of evidence are not always required and evidentiary standards should not be applied too rigorously: Fraser at paras. 61 and 67. But claimants still have to lead some evidence to support their claim.
 This makes sense. After all, "“courts are courts and have to act like courts”": Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 79 Imm. L.R. (4th) 1 at para. 59. The general rule is that courts act only on the basis of evidence unless a legislative provision creates a factual presumption or the doctrine of judicial notice, a very narrow, restricted doctrine, applies: Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161, 483 N.R. 275 at paras. 79-80; Canada v. Kabul Farms, 2016 FCA 143, 13 Admin. L.R. (6th) 11 at para. 38.
 This is so under the Charter. Under the Charter, courts, "“firmly grounded in the discipline of the common law methodology”", deal "“only with the challenge the Charter challengers have advanced and…the evidence the parties have offered concerning that challenge”": MacKay v. Manitoba, 1989 CanLII 26 (SCC),  2 S.C.R. 357, 61 D.L.R. (4th) 385 at 363 S.C.R.; Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC),  2 S.C.R. 1086, 73 D.L.R. (4th) 686 at 1099-1101 S.C.R.; Canadian Council for Refugees at para. 59; Brian Morgan, "“Proof of Facts in Charter Litigation,”" in Robert J. Sharpe, ed., Charter Litigation (Toronto: Butterworths, 1987), 159 at 162. As we shall see, the Supreme Court’s most recent section 15(1) pronouncements in Fraser and Taypotat do not uproot MacKay and Danson, foundational cases regularly relied upon over the last three decades by every court in the country.
 As well, from the earliest days of the Charter, claimants have been required to demonstrate, through evidence, some sort of nexus between a particular action of the state, such as legislation, and an infringement of a Charter right or freedom: see, e.g., RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC),  2 S.C.R. 573, 33 D.L.R. (4th) 174; Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC),  1 S.C.R. 441, 18 D.L.R. (4th) 481 at 447 and 490 S.C.R.; Symes v. Canada, 1993 CanLII 55 (SCC),  4 S.C.R. 695, 110 D.L.R. (4th) 470 at 764-765 S.C.R.; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44,  2 S.C.R. 307 at para. 60; Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101 at paras. 73-78; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62,  3 S.C.R. 176 at paras. 126, 131-134; R. v. Kokopenace, 2015 SCC 28,  2 S.C.R. 398 at paras. 251-253; Canadian Council for Refugees at para. 57.
 Decades of unbroken Supreme Court case law forbids courts from getting around that evidentiary requirement through judicial notice, assumptions or guesswork: MacKay, above; Danson at 1101 S.C.R.; Moysa v. Alberta (Labour Relations Board), 1989 CanLII 55 (SCC),  1 S.C.R. 1572, 60 D.L.R. (4th) 1; Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC),  3 S.C.R. 483, 76 D.L.R. (4th) 700 at pp. 549-50 S.C.R.; R. v. Penno, 1990 CanLII 88 (SCC),  2 S.C.R. 865, 59 C.C.C. (3d) 344 at pp. 881-82 S.C.R.; Waldick v. Malcolm, 1991 CanLII 71 (SCC),  2 S.C.R. 456, 83 D.L.R. (4th) 114 at pp. 472-73 S.C.R.; Symes; R. v. Find, 2001 SCC 32,  1 S.C.R. 863; R. v. Malmo-Levine, 2003 SCC 74,  3 S.C.R. 571 at para. 28; R. v. Spence, 2005 SCC 71,  3 S.C.R. 458 at para. 68.
 Unsurprisingly, the Supreme Court has applied these longstanding and fundamental principles to equality claims under section 15(1): Symes at para. 134; Fraser; Taypotat. As Fraser puts it (at paras. 57 and 60), there should be evidence grounded in the actual situation of the discrimination claim including "“the circumstances of the claimant group”" and "“evidence…about the results produced by the challenged law”" on that group: see also Taypotat at paras. 24, 27 and 31-32. If a court does not have this—for example, where a claimant under section 15(1) has offered insufficient evidence and is relying on nothing more than a "“web of instinct”"—it must reject the section 15(1) claim: Taypotat at para. 34; Fraser at para. 60.
 A classic example of a claimant relying on only a "“web of instinct”" is where the claimant files general evidence about other groups and the evidence "“is silent”" about the individuals actually affected by the impugned law: Taypotat at para. 27. General statistical data that says nothing about particular individuals affected by the impugned law, here subsection 63(6), is simply not helpful: Taypotat at para. 31. Evidence that "“captures a vastly larger, more diverse population than the community affected”" by the impugned law is also not helpful at all: Taypotat at para. 32.
 That aptly describes the evidentiary record here. The nature and quality of the evidence is just as general and unduly broad as that filed in support of the section 15(1) claim in Taypotat. It is sparse and unhelpful to boot.
In Meekis v. Ontario (Ont CA, 2021) the Court of Appeal considered the Charter s.15 issue of adverse impact discrimination:
 Section 15(1) of the Charter states as follows:. Kandaharian (Litigation Guardian of) v. York Catholic District School Board
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. Abella J., writing for a majority of the Supreme Court of Canada in Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, summarized the proper s. 15 analysis as follows, at para. 27:
Section 15(1) reflects a profound commitment to promote equality and prevent discrimination against disadvantaged groups. To prove a prima facie violation of s. 15(1), a claimant must demonstrate that the impugned law or state action: In Fraser, the claimants were retired female members of the RCMP who had temporarily participated in job sharing in order to work reduced hours while raising their children. Their participation in this scheme resulted in reduced pension contributions, which they were not entitled to offset, and, consequently, reduced retirement income. The majority found that the impugned scheme was a form of “adverse impact discrimination”, which violated s. 15(1) of the Charter and could not be saved under s. 1.
• on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and
• imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. [Citations omitted.]
 Abella J. explained the concept of adverse impact discrimination in the following terms, at paras. 30 and 52-53:
Adverse impact discrimination occurs when a seemingly neutral law has a disproportionate impact on members of groups protected on the basis of an enumerated or analogous ground. Instead of explicitly singling out those who are in the protected groups for differential treatment, the law indirectly places them at a disadvantage. Although recently elaborated upon in Fraser, the concept of adverse impact discrimination is not new to s. 15 jurisprudence. For instance, in Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC),  3 S.C.R. 624, at para. 77, La Forest J., for a unanimous court, asserted as follows:
In order for a law to create a distinction based on prohibited grounds through its effects, it must have a disproportionate impact on members of a protected group. If so, the first stage of the s. 15 test will be met.
How does this work in practice? Instead of asking whether a law explicitly targets a protected group for differential treatment, a court must explore whether it does so indirectly through its impact on members of that group … A law, for example, may include seemingly neutral rules, restrictions or criteria that operate in practice as “built‑in headwinds” for members of protected groups … To assess the adverse impact of these policies, courts looked beyond the facially neutral criteria on which they were based, and examined whether they had the effect of placing members of protected groups at a disadvantage. [Citations omitted].
This Court has consistently held … that discrimination can arise both from the adverse effects of rules of general application as well as from express distinctions flowing from the distribution of benefits … [Section 15] makes no distinction between laws that impose unequal burdens and those that deny equal benefits. If we accept the concept of adverse effect discrimination, it seems inevitable, at least at the s. 15(1) stage of analysis, that the government will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services.
In Kandaharian (Litigation Guardian of) v. York Catholic District School Board (Div Court, 2022) the Divisional Court considered the application of Charter s.15 religious equality to a case where a separate school board objected to a non-Catholic student holding a school trustee position [para 51-65].
. Ontario Teacher Candidates’ Council v. The Queen
In Ontario Teacher Candidates’ Council v. The Queen (Div Ct, 2021) the Divisional Court set out the basics of a s.15 Charter adverse impact discrimination case:
The Applicable Principles
 Section 15 of the Charter provides:
15(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. To show a prima facie breach of s. 15, the Applicants must show that the law or state action: (i) on its face or in its impact creates a distinction based on enumerated or analogous grounds; and (ii) imposes burdens or denies benefits in a manner that has the effect of reinforcing, exacerbating or perpetuating disadvantage. Once a prima facie violation of s. 15(1) is made out, the onus shifts to the Respondent to establish that the violation is justified pursuant to s. 1: Fraser v. Canada (Attorney General), 2020 SCC 28,  S.C.J. No. 28, at para. 27.
 In Fraser, the Supreme Court of Canada confirmed that s. 15 protects against adverse impact discrimination, which occurs when neutral laws have a disproportionate impact on members of enumerated or analogous groups. Abella J., writing for the majority, identified the principles from the equality jurisprudence under s. 15 and under both U.K. and U.S. case law. It is helpful to summarize those principles here:
• Whether the legislature intended to create a disparate impact is irrelevant; On the second part of the test, there is no “rigid template” of factors relevant to the inquiry into whether the law has the effect of reinforcing, perpetuating or exacerbating disadvantage: Fraser, at para. 76, citing Quebec (Attorney General) v. A, 2013 SCC 5,  1 S.C.R. 61, at para. 331. The harm may include economic exclusion or disadvantage, social exclusion, psychological harms, physical harms or political exclusion and must be viewed in light of any systemic or historical disadvantages faced by the claimant group: Fraser, at para. 76.
• If claimants successfully demonstrate that a law has a disproportionate impact on members of a protected group, they need not independently prove that the protected characteristic “caused” the disproportionate impact;
• It is also unnecessary to inquire into whether the law itself was responsible for creating the background social or physical barriers which made a particular rule, requirement or criterion disadvantageous for the claimant group; and
• Claimants need not show that the criteria, characteristics or other factors used in the impugned law affect all members of a protected group in the same way.
Fraser, at paras. 69-72.
 Abella J. went on to find that “[p]erpetuation of disadvantage does not become less serious under s. 15(1) because it was relevant to a legitimate state objective”: Fraser, at para. 79. The test for a prima facie breach of s. 15(1) is concerned with the discriminatory impact of legislation on disadvantaged groups. The question of whether the distinction is justified is “an inquiry properly left to s. 1”: Fraser, at para. 79.
 In Fraser, the majority of the Supreme Court provided guidance as to the type of evidence that would be helpful in proving a disproportionate impact on members of a protected group. The two types of evidence are: (i) evidence about the circumstances of the claimant group; and (ii) evidence about the results produced by the challenged law: Fraser, at para. 56.
 On the first type, evidence about the physical, social, cultural or other barriers faced by the claimant group will be helpful to provide the court with the full context of the claimant group’s situation. The evidence may come from the claimant, expert witnesses, or through judicial notice and would show that membership in a certain group is associated with characteristics that have disadvantaged group members: Fraser, at para. 57.
 In terms of evidence about the results produced by the challenged law or state action, courts will benefit from evidence about the outcomes produced by the impugned law or policy. This may include statistical evidence which is helpful to establishing “a disparate pattern of exclusion or harm that is statistically significant and not simply the result of chance”: Fraser, at para. 59. There is, however, no universal measure for what level of statistical disparity is necessary to demonstrate disproportionate impact and the court should not craft rigid rules on this issue: Fraser, at para. 59.
 Ideally, evidence of both group circumstances and statistics would be provided. However, both are not necessarily required. The majority nonetheless cautioned that evidence of group circumstances alone could amount to no more than a “web of instinct” if too far removed from the institution, community or other circumstances subject to the discrimination claim: Fraser, at para. 60.