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Charter - s.15 Discrimination - Test (2). Heegsma v. Hamilton (City)
In Heegsma v. Hamilton (City) (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of a JR Charter s.7 and s.15 "challenge the City of Hamilton’s by-law that prohibits installing tents and sleeping in public parks in the City and to challenge the City’s actions removing them from public parks in Hamilton during the relevant period" seeking declarations and damages.
Here the court briefly considers a Charter s.15 ['discrimination'] issue:[90] As recently reaffirmed by the Supreme Court in Quebec (Attorney General) v. Kanyinda, 2026 SCC 7, 511 D.L.R. (4th) 201, to establish an infringement of s. 15(1) of the Charter, a claimant must show that: (1) the law or policy at issue disproportionately impacted a protected group; and (2) that the distinction reinforces, perpetuates or exacerbates the disadvantages faced by the protected group. On the first part of the analysis, “[w]here a measure does not explicitly distinguish based on a protected ground, the claimant can still show that the law creates a distinction in effect because of the law’s disproportionate impact on the protected group” (emphasis in original): Kanyinda, at para. 50.
. Chalifour-Racine v. Canada (Attorney General)
In Chalifour-Racine v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal allows a Charter s.15 ['discrimination'] JR, this brought against a ruling by the Appeal Division of the Social Security Tribunal supporting provisions of the EI Act which require that claimants "are not entitled to receive some or all of the regular employment insurance (EI) benefits that they otherwise would have been entitled to receive when they lose their employment shortly before, during, or shortly following their maternity and parental leaves".
Here the court usefully sets out the general test for Charter s.15 discrimination issues:[95] The case law also recognizes that for a law or governmental action to be found to be discriminatory, it need not affect all members of a protected group in the same way, and so- called "“partial discrimination”" satisfies section 15: Kanyinda at paras. 39, 56; Fraser at paras. 72–75; Brooks at p. 1248; Michel v. Canada (Attorney General), 2025 FCA 58 [Michel] at para. 88. Thus, in the context of sex-based discrimination, a law or governmental action that disproportionately impacts pregnant women or women who have had children will be found to constitute discrimination on the basis of sex even though all women do not bear children: Brooks at p. 1248; Fraser at paras. 72–73; Kanyinda at para. 42.
[96] According to the majority in Kanyinda, the test to establish a violation of section 15 of the Charter is now well-established and requires a claimant to show that the impugned law or provision: (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: Kanyinda at para. 48, citing Sharma at para. 28, Fraser at para. 27, Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464 [Alliance] at para. 25; and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522 at para. 22. Given this definitive statement in Kanyinda, earlier formulations of the section 15 test set out in cases such as Law and Withler are no longer applicable. Thus, as the applicants contend, it is no longer necessary that a provision be shown to be arbitrary or to perpetuate stereotypes or prejudices faced by the group to which the claimants belong to be found to be violative of section 15. As the majority of the Supreme Court held at paragraphs 67 and 68 of Kanyinda:[67] Finally, at the second step of the s. 15(1) test, there is no need to show that the challenged measure stereotypes or causes prejudice towards the protected group (Fraser, at para. 78). In Quebec v. A, Abella J., writing for a majority on this issue, clarified these were not additional requirements at step two because such an approach incorrectly focuses the inquiry on whether a discriminatory attitude exists as opposed to a discriminatory impact (para. 327). The key question under step two is whether the law worsens or reinforces the disadvantage experienced by the protected group.
[68] Nor is it necessary to prove that the distinction is arbitrary (Fraser, at para. 80). In other words, an infringement is still made out in circumstances where there is a rational connection between a disadvantage and legitimate state objective (para. 79). An inquiry under s. 15(1) centres on the effects, rather than the purpose, of the challenged measure on a protected group (para. 41; Andrews, at p. 174). [97] Under the first step of the section 15 test, the claimant is required to establish a nexus between the impugned law or governmental action and the claimed disproportionate impact: Kanyinda at paras. 41–42; Sharma at para. 43; Weatherley at para. 42; Power Workers’ Union v. Canada (Attorney General), 2024 FCA 182 at para. 165. This requires the claimant to establish that the impugned law or governmental action 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. [98] Evidence required to establish this nexus includes evidence about: (1) the situation of the claimants’ group; and (2) the results produced by the impugned law or practice: Kanyinda at para. 52; Sharma at para. 49; Fraser at para. 56. Evidence falling into the first category may be from the claimants themselves, an expert witness, or the court may take judicial notice of certain facts: Kanyinda at para. 53; Fraser at paras. 55–57. Evidence in the second category may take different forms, including statistics, expert testimony, case studies, or qualitative evidence. It is also open to a Court to reasonably infer an adverse impact on a protected group where the disproportionate impact on the group is "“apparent and immediate”": Kanyinda at para. 55, citing Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548 [Taypotat] at para. 33, Fraser at para. 61, and Sharma at para. 49.
[99] The first step of the section 15 test is not meant to be onerous, but a claimant must nonetheless establish that the impugned law or governmental action disproportionately impacts the group to which they belong.
[100] Under the second step of the section 15 test, as noted, a claimant must establish that the impugned law or governmental action imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage. The second step focusses on the extent to which the protected group to which the claimant belongs has historically been disadvantaged in respect of the matters addressed by the impugned provision or governmental action in issue and the impact of such action or provision on that disadvantage. The second step in the section 15 analysis is required because not all distinctions are discriminatory; rather, only those that perpetuate, reinforce, or exacerbate disadvantage faced by the group to which a claimant belongs will be found to violate section 15: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at para. 28; Withler at para. 31; Taypotat at para. 18.
[101] Evidence relevant to the second step of the section 15 analysis includes some of the same evidence that is considered under the first step of the analysis about the historical disadvantage of the group to which the claimants belong and about the impact of the impugned governmental action or provision on that group. According to the majority of the Supreme Court in Sharma, three points may be made about the evidentiary burden at the second step of the section 15 test:(a) The claimant need not prove that the legislature intended to discriminate (Fraser, at para. 69; Ontario v. G, at para. 46, citing Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 62; Andrews, at p. 173).
(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” (para. 77, citing J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (1992), at p. 976). …
(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 (Law, at para. 75). One must bear in mind, however, that inference is not mere assertion; nor is it a priori reasoning.
Sharma at para. 55. [102] Under the second step of the section 15 analysis, contrary to what the applicants say, legislative context is relevant, and the Supreme Court did not dispute its relevance in Kanyinda, where the majority stated as follows at paragraph 65:The broader legislative context may also be relevant to the analysis at step two (Sharma, at para. 56). The relevance and weight of the legislative context will depend on the nature of the case. For example, Wagner C.J., in R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, found it necessary to put more weight on legislative context given that the provision at issue in the Youth Criminal Justice Act, S.C. 2002, c. 1, formed part of a comprehensive, “multifaceted legislative scheme” that sought to balance the competing needs of the claimant group (para. 144). However, while it may be relevant to examine how a scheme seeks to balance competing legislative objectives, benefit a protected group, or allocate limited resources, these considerations are only one aspect of a broader analysis on whether a provision has a discriminatory character. In other words, the emphasis on context must not conflate an analysis of the discriminatory impact of a measure on a disadvantaged group with a consideration of whether the distinction is justified based on legislative objectives (Fraser, at paras. 79-80). As Wagner C.J. emphasized in C.P., justifying a provision based on whether it “is relevant to a legitimate state objective or on the basis of the ameliorative effect” of the scheme at issue is “properly left to the inquiry under s. 1 of the Charter, and then only to the extent that they can specifically justify the impugned limitation” (para. 153, citing Fraser, at para. 69). To emphasize legislative context in a way that blurs this line risks improperly shifting the analysis under s. 15(1) towards an implicit balancing of government interests, an inquiry better left to s. 1. The analytical distinction between finding a Charter right infringement and justifying this infringement under s. 1 has long been part of this Court’s jurisprudence (Andrews, at p. 178; see also Oakes, at p. 134; Centrale, at para. 35; Fraser, at para. 79). [103] Finally, the second step of the section 15 analysis recognizes that a government is not under any constitutional obligation to address historic disadvantages faced by particular groups in society nor is it prevented from addressing disadvantage incrementally: Sharma at paras. 63–65; Thibaudeau v. Canada, 1995 CanLII 99 (SCC), [1995] 2 S.C.R. 627 at p. 655; Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624 [Eldridge] at para. 73; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657 at para. 41; Alliance at para. 42. However, when a government legislates to provide a benefit to a historically disadvantaged group, it must do so in a non-discriminatory manner: Kanyinda at para. 66; Eldridge at para. 73; Alliance at para. 42.
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