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Charter - s.15 Discrimination (4). Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
Here the court considers the Charter s.15 ['discrimination'] challenge to this testing:[33] Finally, the Application Judge rejected the appellants’ section 15 claim on the basis that the first prong of the section 15 test was not met. In particular, he found that the appellants had failed to establish that the Impugned requirements create a distinction or have a disproportionate impact based on an enumerated or analogous ground of discrimination, which is the first prong of the test applicable to a section 15 analysis (Decision at para. 170, citing R. v. Sharma, 2022 SCC 39 at para. 28 (Sharma)). In this respect, the Application Judge noted that the Impugned requirements only applies to a category of workers at nuclear facilities and opined that these workers do not form a "“protected group”" for the purposes of section 15. He further noted that the appellants had adduced no evidence to show that the Impugned requirements may result in a situation where safety-critical workers affected by a drug or alcohol dependency are members of a disadvantaged group or may experience a disadvantage (Decision at para. 172).
[34] The Application Judge emphasized that an analogous ground of discrimination under section 15 cannot be found without compelling reasons based on personal characteristics that are either immutable or constructively immutable. He noted in this respect that the Supreme Court of Canada, in R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74 (Malmo-Levine), had rejected attempts to recognize "“occupational status”" or "“substance orientation”" as analogous grounds of discrimination under section 15 (Decision at paras. 173–79).
[35] The Application Judge also indicated that had a full section 15 analysis been conducted, the second prong of the section 15 test, which requires a demonstration that the Impugned requirements have the effect of reinforcing, perpetuating or exacerbating a disadvantage would not have been satisfied (Decision at paras. 170, 180). In this respect, the Application Judge noted a "“few deficiencies”" in the appellants’ arguments, such as the lack of evidence, statistical or otherwise, supporting the claim that a disproportionate number of safety-critical workers have drug or alcohol dependencies and would be affected by the Impugned requirements. He also found that the appellants had failed to explain how the Impugned requirements would result in an arbitrary disadvantage for safety-critical workers with drug or alcohol dependencies (Decision at paras. 181–82).
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(3) Section 15
[159] Section 15 guarantees to every individual equality before and under the law as well as equal protection and benefit of the law without discrimination. A section 15 claim is made out if the claimant demonstrates that the impugned law or state action: (i) creates a distinction based on enumerated or analogous grounds, on its face or in its impact; and (ii) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage (Sharma at para. 28). The impact at stage 1 of the analysis must be "“disproportionate”" as "“[a]ll laws are expected to impact individuals”" (Sharma at para. 40).
[160] The Application Judge concluded that the appellants’ claim failed at the first prong of the test. The appellants contend that the Application Judge erred in concluding as he did: (i) by focussing on the safety-critical workers’ job category at nuclear facilities, instead of drug dependency as a category of disability, one of section 15’s enumerated grounds of discrimination; (ii) by holding, without conducting a human rights analysis, that persons who have a drug dependency are not persons with a disability for the purposes of section 15; and (iii) by refusing to recognize the possibility of discrimination by conflating "“substance orientation”" with "“drug dependency”".
[161] These contentions are unpersuasive. The fact the Application Judge focussed on the safety-critical workers’ job category was certainly consistent with the first prong of the section 15 analysis which requires demonstration that the impugned state action creates a distinction based on enumerated or analogous grounds, on its face or in its impact. Here, on its face, the Impugned requirements creates a distinction based on job category. The record is clear in this respect: safety-critical workers are targeted because they hold safety-critical positions in a highly regulated, safety-first, work environment that presents unique risks of causing damages of catastrophic proportions to the public and the environment. As is well settled, a distinction between job categories is not a distinction based on an enumerated or analogous ground of discrimination for the purposes of section 15 (Baier v. Alberta, 2007 SCC 31 (CanLII), [2007] 2 S.C.R. 673 at paras. 65−66, quoting from Delisle v. Canada (Attorney General), 1999 CanLII 649 (SCC), [1999] 2 S.C.R. 989 at para. 44). There are no errors here.
[162] The question then becomes whether the impugned requirements create a distinction based on an enumerated or analogous ground due to their alleged impacts on workers suffering from drug dependency. The Application Judge did consider, but rejected, that "“drug dependency”" could possibly be a potential ground of discrimination thereby engaging the second prong of the section 15 analysis (Decision at para. 172).
[163] What is key, in my view, to the Application Judge’s finding in that regard is not so much his reluctance to apply a human rights analysis to this question, as he was urged to do by the appellants, but the fact that the appellants "“have not brought any evidence to support that there are drug dependencies amongst [s]afety-[c]ritical [w]orkers.”" (Decision at paras. 172, 175). In particular, there is no evidence on record "“statistical or otherwise […], about the demographic make-up of [s]afety-critical [w]orkers, to support [the appellants’] claim that a disproportionate number of these Workers have drug dependencies and would be affected by the impugned provisions of the [RD2.2.4].”" (Decision at para. 181).
[164] As I noted in the section 8 analysis of these Reasons, one important – if not, the most important – feature of the appellants’ claim that the Impugned requirements amount to an unreasonable seizure is the fact that there is no evidence on record of impairment problems at nuclear sites. Again, this fact is not disputed.
[165] As stated in Sharma, to succeed on that point, the appellants needed to present sufficient evidence to prove the Impugned requirements "“in [their] impact, create[] or contribute[] to a disproportionate impact on the basis of a protected ground.”" (Sharma at para. 42) (italicized in original). This burden required comparison between the appellants’ alleged protected group and other groups (Sharma at para. 50), notably, here, non-substance dependent workers at Canada’s nuclear facilities. As correctly noted by the Application Judge, there is no such evidence in this case whereas this evidentiary burden had to be fulfilled by the appellants (Sharma at para. 50).
[166] We are therefore left to speculate that there might be a protected group of safety-critical workers suffering from a drug or alcohol dependency and as to what would be the impact of the Impugned requirements on them compared to the impact on other groups, especially given that none of these workers have been impacted so far by these requirements as a result of the Stay Orders.
[167] Although for slightly different reasons, I agree with the Application Judge that the appellants’ section 15 claim must be rejected at the first step of the analysis. Therefore, there is no need to consider whether an analogy can be drawn between "“substance orientation”" on the one hand (which was rejected as an analogous protected ground in Malmo-Levine; and "“drug dependency”" on the other, as analogous grounds of discrimination for the purposes of section 15.
[168] But even accepting that "“drug dependency”" is an analogous ground of discrimination, I agree with the Application Judge that the appellants have failed to demonstrate that the Impugned requirements impose "“burdens or den[y] benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating the group’s disadvantage.”" (Sharma at para. 51). Put differently, the appellants have failed to show that the Impugned requirements are discriminatory in a substantive sense, that is, that they are arbitrary, prejudicial or stereotyping. . Mitanidis v. Ontario (Transportation)
In Mitanidis v. Ontario (Transportation) (Div Court, 2024) the Divisional Court briefly resolves a Charter s.15 ['equality rights'] argument, here regarding a driver's license suspension:[20] .... To establish that equality rights under s. 15 of the Charter are infringed, Mr. Mitanidis must show that the decision creates a distinction based on an enumerated or analogous ground on its face or in its impact. And secondly, that this imposes a burden or denies a benefit in a manner that reinforces or perpetuates disadvantage. He has met neither step. The evidence in this case indicates that the Minister received information that Mr. Mitanidis’ driving privilege should be reviewed for medical reasons. The Minister’s decision to request a medical examination was made on the basis of the police officer’s observation after a traffic stop. In these circumstances, the Minister’s request for further information in the form of a medical examination was entirely consistent with the highway safety purposes of the Act and was not discrimination within the meaning of s. 15 of the Charter. . Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court considers the Charter s.15 'discrimination' protection:[10] As for ss. 2(b) and 15 of the Charter, we agree with the application judge that the TGEWA does not infringe the appellants’ free expression and equality rights. The Act does not suppress expression, directly or in its impact. Nor does the Act draw an adverse distinction cognizable under s. 15(1). The TGEWA attributes responsibility to the Sri Lankan state at the time of the civil war, not Sinhala-Buddhists, for what it deems a “Tamil genocide”. Anyone who cites the TGEWA to marginalize Sinhalese Ontarians, as perpetrators or supporters of the “Tamil Genocide” or otherwise, does so in error.
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(3) The Right to Equality
i. General Principles and the Reasons Below
[153] Section 15(1) of the Charter states: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. [154] To establish a breach of s. 15(1), a claimant must demonstrate that the impugned law or state action:i. Creates a distinction based on enumerated or analogous grounds, either on its face or in its impact; and
ii. Imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage.
R. v. Sharma, 2022 SCC 39, 165 O.R. (3d) 398, at para. 28. [155] The application judge held that the appellants’ s. 15(1) claims failed at both stages. She rejected the appellants’ submission that the TGEWA drew a racial distinction against Sinhala-Buddhists by accusing them of having collectively committed a genocide. At most, the Act lays blame on the Sri Lankan state by identifying it as the perpetrator of a genocide. A claim that a state is responsible for a genocide does not tar everyone who shares the same nationality, ethnicity or religious affiliation as those comprising the majority of the state.
[156] The application judge further found that the TGEWA had no discriminatory impact. The focus of the appellants’ challenge was on the assertions in the preamble of the Act. But the preamble creates no rights or liabilities that could amount to legal benefits or detriments that disfavour Sinhala-Buddhists. Moreover, the operative provisions of the TGEWA declaring a commemorative week are purely symbolic.
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iii. Analysis
[162] We dismiss this ground of appeal.
[163] We reject Mr. Hewage’s submission that the TGEWA draws an express racial distinction against Sinhala-Buddhists. The impugned portions of the TGEWA’s preamble state that the Sri Lankan government’s allegedly genocidal policies were “Sinhala-Buddhist centric”, not that Sinhala-Buddhists are, as a racial group, collectively responsible for them. Likewise, claiming that the Sri Lankan state “orchestrated” a genocide does not imply that Sinhala-Buddhists are collectively responsible for “executing” the alleged genocide.
[164] Additionally, we agree with the application judge that the TGEWA has no discriminatory impact. The focus of Mr. Hewage’s claim – the Act’s preamble – creates no rights or liabilities to the legal detriment of Sinhala-Buddhists. Further, the Act’s operative provisions are purely symbolic. They merely encourage public reflection on a conflict for which the Act holds the Sri Lankan state – not Sinhala-Buddhists as a racial group – responsible.
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