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Charter - s.15 Discrimination - Pleadings. 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".
Here the court usefully considers adequate pleadings for Charter s.15 claims:[71] To establish a breach of section 15 of the Charter, a claimant must establish that the impugned law or state action: (1) "“creates a distinction based on enumerated or analogous grounds, on its face or in its impact”;" and (2) "“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 [Sharma] at para. 28, citing R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679 at paras. 56 and 141, Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113 [Fraser] at para. 27, and Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548 at paras. 19–20).
[72] Under the first step, the claimant is required to establish a nexus between the impugned law or state action and the claimed disproportionate impact: Sharma at para. 43; Weatherley v. Canada (Attorney General), 2021 FCA 158 at para. 42; Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 at para. 165. This requires the claimant to establish that the state action or impugned law to some degree caused or contributed to the claimed disproportionate impact. As noted in paragraph 45 of Sharma:Section 15(1) claimants must demonstrate that the impugned law or state action created or contributed to the disproportionate impact on the claimant group at step one …. Both terms ⸺ “created” and “contributed to” ⸺ describe cause. “Contributed to” merely recognizes that the impugned law need not be the only or the dominant cause of the disproportionate impact.
(Emphasis in original.) [73] As to the nature of the evidence required to establish the requisite nexus, to again quote from the decision of the majority of the Supreme Court in Sharma, this time at paragraph 49:To give proper effect to the promise of s. 15(1), however, a claimant’s evidentiary burden cannot be unduly difficult to meet. In that regard, courts should bear in mind the following considerations:(a) No specific form of evidence is required.
(b) The claimant need not show the impugned law or state action was the only or the dominant cause of the disproportionate impact ⸺ they need only demonstrate that the law was a cause (that is, the law created or contributed to the disproportionate impact on a protected group).
(c) The causal connection may be satisfied by a reasonable inference. Depending on the impugned law or state action at issue, causation may be obvious and require no evidence. Where evidence is required, courts should remain mindful that statistics may not be available. Expert testimony, case studies, or other qualitative evidence may be sufficient. In all circumstances, courts should examine evidence that purports to demonstrate a causal connection to ensure that it conforms with standards associated to its discipline.
(d) Courts should carefully scrutinize scientific evidence [citations omitted].
(e) If the scientific evidence is novel, courts should admit it only if it has a “reliable foundation” [citations omitted].
(Emphasis in original.) [74] Under the second step of the test for establishing a violation of section 15 of the Charter, the claimant must establish that the impugned law or state action imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating the disadvantage of the group to which the claimant belongs. Factors that may be considered in this regard include whether the impugned law or state action relies on arbitrary distinctions or otherwise furthers stereotypes or prejudicial notions about the group: Sharma at paras. 51–53.
[75] In terms of the sort of evidence required to meet step two of the test to establish a breach of section 15 of the Charter, as noted at paragraph 55 of Sharma:(a) The claimant need not prove that the legislature intended to discriminate [citations omitted].
(b) Judicial notice can play a role at step two. As this Court recognized in Law, “a court may take judicial notice of notorious and undisputed facts, or of facts which are capable of immediate and accurate demonstration, by resorting to readily accessible sources of indisputable accuracy” [citations omitted]. Of note here, the Court has taken judicial notice of the history of colonialism and how it translates into higher levels of incarceration for Indigenous peoples (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 60).
(c) Courts may infer that a law has the effect of reinforcing, perpetuating, or exacerbating disadvantage, where such an inference is supported by the available evidence [citations omitted]. One must bear in mind, however, that inference is not mere assertion; nor is it a priori reasoning.
(Emphasis in original.) [76] The foregoing elements that must be established to substantiate a violation of section 15 of the Charter inform the nature of the pleadings required in a section 15 case. While it is not necessary (and is indeed improper) to plead evidence detailing how the two elements of the section 15 test will be established, it is necessary that a claimant set out the material facts it alleges support each step of the section 15 test. As noted in paragraph 56 of Brink (citing Mancuso at paragraph 19), "“[p]laintiffs must plead—in summary form but with sufficient detail—the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant the ‘who, when, where, how and what’ of the actions that allegedly give rise to its liability”".
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