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Charter - s.15 Discrimination - 'Partial'. Michel v. Canada (Attorney General)
In Michel v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal partially allowed an appeal, here from a denied class action certification motion that resulted when "the Federal Court declined to allow the plaintiffs leave to amend their Third Amended Statement of Claim (the Statement of Claim) and to reapply for certification".
The court considered 'partial discrimination' (SS: a better term might be 'inchoate' discrimination) - the concept that sub-classes of a larger group (eg. pregnant women) can be fully discriminated against, while the larger class (eg. women) are only 'partially' discriminated against:[87] To establish a breach of section 15 of the Charter, it is not necessary that all members of a protected group be negatively impacted by the impugned law or government practice or be affected by them in the same way at step one of the section 15 test.
[88] The Supreme Court has recognized that so-called "“partial discrimination”" satisfies section 15. The relevant underlying jurisprudence was summarized relatively recently by Justice Abella in paragraphs 72–75 of Fraser, where she noted that "“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”" (at para. 72). As noted by Justice Abella in Fraser, this principle is rooted in two seminal cases from human rights jurisprudence, Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, 1989 CanLII 96 [Brooks] and Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, 1989 CanLII 97 [Janzen].
[89] In Brooks, the Supreme Court held that "“[t]he fact that discrimination is only partial does not convert it into non‑discrimination”" (at 1248, quoting James MacPherson, "“Sex Discrimination in Canada: Taking Stock at the Start of a New Decade”" (1980) 1 C.H.R.R. C/7 at C/11). The Court there found that a plan that denied benefits to pregnant women was discrimination against women more generally, stating (at 1247) that it was:... not persuaded by the argument that discrimination on the basis of pregnancy cannot amount to sex discrimination because not all women are pregnant at any one time. While pregnancy-based discrimination only affects part of an identifiable group, it does not affect anyone who is not a member of the group. [90] To similar effect, in Janzen, the Supreme Court held that the sexual harassment of two female employees was discrimination on the basis of sex. The Court rejected the employer’s argument that sex discrimination had not occurred because only some of the female employees had been sexually harassed. Chief Justice Dickson held that discrimination need not be equal across the class (at 1288–89):While the concept of discrimination is rooted in the notion of treating an individual as part of a group rather than on the basis of the individual’s personal characteristics, discrimination does not require uniform treatment of all members of a particular group. It is sufficient that ascribing to an individual a group characteristic is one factor in the treatment of that individual. If a finding of discrimination required that every individual in the affected group be treated identically, legislative protection against discrimination would be of little or no value. It is rare that a discriminatory action is so bluntly expressed as to treat all members of the relevant group identically. In nearly every instance of discrimination the discriminatory action is composed of various ingredients with the result that some members of the pertinent group are not adversely affected, at least in a direct sense, by the discriminatory action. To deny a finding of discrimination in the circumstances of this appeal is to deny the existence of discrimination in any situation where discriminatory practices are less than perfectly inclusive. It is to argue, for example, that an employer who will only hire a woman if she has twice the qualifications required of a man is not guilty of sex discrimination if, despite this policy, the employer nevertheless manages to hire some women. [91] These concepts were imported into the Charter context in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. There, the Supreme Court, citing the above human rights jurisprudence, stated "“that differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are equally mistreated”" (at para. 76).
[92] The fact that partial discrimination may violate section 15 of the Charter has also been recognized by several appellate courts: see, e.g., Stadler v. Director, St Boniface/St Vital, 2020 MBCA 46 at para. 75, leave to appeal to SCC refused, 39269 (26 November 2020); Jacob v. Canada (Attorney General), 2024 ONCA 648 at para. 104; Haseeb at paras. 67–68; Brink at para. 84.
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