|
Charter - s.15 Discrimination - Standing. 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 considers interesting Charter s.15 discrimination doctrine that an individual member of a discriminated class may seek a remedy - or even be granted standing - even though they are not personally impacted by the discrimination:[93] Thus, the fact that not all members of the class the appellant seeks to certify may have been assessed as posing the same risk as that indicated by the scores from the CRS and the impugned tools would not necessarily forestall a claim that the CRS and these tools systemically discriminate against class members.
[94] Another related point bears mention. There is some support in the case law for a finding that a member of a protected group that is subject to systemic discrimination may be awarded a remedy even if they are not personally adversely impacted by the impugned policy.
[95] In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, 1997 CanLII 327, three deaf individuals launched a section 15 claim against the provincial government alleging its failure to provide funding for sign language interpreters for deaf persons when they receive medical services resulted in deaf persons receiving medical services of lesser quality. In the context of finding a breach of section 15 and outlining an "“effective communication”" standard, Justice La Forest, writing for the Court, explained at paragraph 83 that:... it is not in strictness necessary to decide whether, according to this standard, the appellants’ s. 15(1) rights were breached. This Court has held that if claimants prove that the equality rights of members of the group to which they belong have been infringed, they need not establish a violation of their own particular rights. [96] In support of this principle, Justice La Forest cited his earlier decision in Egan v. Canada, [1995] 2 S.C.R. 513, 1995 CanLII 98 at 531, which disposed of an argument that a homosexual couple could not challenge legislation on the grounds that the couple was not negatively affected by the denial of a spousal allowance because the analysis centered on homosexual couples generally:In this case, however, the respondent contends that the appellants have suffered no prejudice because by being treated as individuals they have received considerably more in combined federal and provincial benefits than they would have received had they been treated as “spouses”. I would simply dispose of this argument on the ground that, while this may be true in this specific instance, there is nothing to show that this is generally the case with homosexual couples, which is the point the respondent must establish.
(Emphasis added.) [97] Justice Cory, dissenting but not on this point, similarly stated, at pages 591–92 in Egan, that the focus of the analysis remained on homosexual couples generally rather than the couple in question:First, the relief sought in this action is a finding pursuant to s. 52(1) of the Constitution Act, 1982 that a portion of the Act is unconstitutional. Section 52(1) operates to invalidate all or a part of any Act when it is found to be inconsistent with the Constitution. The appellants are not alleging that the discrimination is unique or particular to their personal situation but, rather, that the Act discriminates against all homosexual common law couples who are living in a state which is comparable to heterosexual common law couples. It follows that the appellants must demonstrate that homosexual couples in general are denied equal benefit of the law, not that they themselves are suffering a particular or unique denial of a benefit. The precise mathematical calculation of benefits which could be paid to couples either as individuals or as a couple is of little assistance as it will inevitably vary from case to case depending upon the particular economic circumstances of each couple and each member of that couple. Rather, a reading of the legislation reveals that it denies the spousal allowance to all homosexual common law couples and thus, it is established that the Act has denied equal benefit of the law.
(Emphasis in original.) [98] More recently, these principles were applied in King & Dawson v. Government of PEI, 2019 PESC 27 [King PESC], aff’d 2020 PECA 13 [King PECA] in a class action context. There, the class action alleged that a disability support program violated section 15 by excluding those with mental disabilities, and the plaintiffs sought a declaration confirming the Charter breach, an amendment of the legislation, and damages pursuant to subsection 24(1) of the Charter.
[99] The lower court certified the class action. The certified class was "“All living persons currently or formerly resident of Prince Edward Island between October 1, 2001 to the present who claim to suffer, or to have suffered, from a mental disability”" (King PESC at para. 36). The Court rejected concerns for the size of the class and the possibility that certain class members’ claims would fail, finding that such concerns were not for the certification stage (King PESC at paras. 38, 45–48).
[100] The lower court’s commonality analysis similarly disposed of concerns that all class members would not succeed on an individual basis. The defendant argued that the claim for discrimination should not be prosecuted by class action as the class members did not have the same stake in the issue as it relates to the occurrence of discrimination and the appropriate remedy under subsection 24(1). The Court relied on Eldridge to dismiss both of these concerns.
[101] The Court of Appeal upheld the certification order. It explicitly rejected a class definition that included as an element that the member was denied supports under the program because of their mental illness, which would require the Court to prematurely judge the merits of the members’ claims (King PECA at paras. 49, 52–53). The Court of Appeal also showed deference to the certification judge’s reliance on Eldridge in dismissing concerns at the certification stage for the different stakes of each class member in the discrimination claim (King PECA at paras. 63–67, 80).
[102] In light of the foregoing, it is not plain and obvious in the instant case that a claim for a violation of section 15 of the Charter based on the alleged systemic discrimination suffered by class members by reason of the CRS and the impugned tools discloses no cause of action. Thus, the plaintiffs should have been provided leave to advance such a claim unless the Federal Court did not err in finding that there were no common questions related to the section 15 claim for which a class proceeding was the preferable procedure.
[103] In conducting its commonality and preferability analysis, the Federal Court did not consider the class members’ claims for a declaration and damages based on systemic discrimination by reason only of being subjected to the CRS and the impugned tools regardless of whether class members were individually classified at the same risk level as determined via the CRS and the impugned tools. The fact that the Federal Court did not consider this aspect of the plaintiffs’ section 15 claim is not surprising since most of the Statement of Claim was focussed on the class members’ section 7 claims, which, the appellant concedes, are individual in nature.
[104] It seems to me that whether the CRS and the impugned tools discriminate against class members, in the aggregate, is a question that may be answered in common as it concerns the overall effect of the impugned tools on all class members. Moreover, I agree with the appellant that, to be a common question meriting certification, it is not necessary that the question establish liability for any class member.
[105] Determining whether a proposed class proceeding displays the requisite commonality to justify certification is to be approached purposively to ascertain whether the common issue(s) are essential element(s) of each class member’s claim and whether addressing them commonly will avoid duplication of fact-finding or legal analysis. It is not necessary that the common issues predominate over individual issues, that answers to them settle liability, or that class members be identically situated in respect of the common issues. Rather, the requisite commonality will exist if the common issue will meaningfully advance class members’ claims, which may be said to be the case unless individual issues are overwhelmingly more significant: Pro-Sys at para. 108; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534 at paras. 38–40; Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3 at paras. 44–46; Brake v. Canada (Attorney General), 2019 FCA 274, [2020] 2 F.C.R. 638 at para. 76; Canada v. Greenwood, 2021 FCA 186, [2021] 4 F.C.R. 635 at para. 180, leave to appeal to SCC refused, 39885 (17 March 2022).
|
