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Human Rights (Ontario) Law
(30 September 2009)

Chapter 4 - "Discrimination"

  1. Overview and Lament
    (a) Lament
    (b) Overview
  2. Charter and Code Compared
    (a) Overview
    (b) Government versus Plenary Coverage
    (c) Enumerated v Analogous Grounds
    (d) Code v Charter Defences
    . Charter s.1 Defence
    . Code Exemptions
    . Comment
  3. Discrimination Law Before Law v Canada (1999)
    (a) Overview
    (b) Andrews Case Background
    (c) McIntyre J's s.15 Analysis in Andrews
    (d) Andrews Considered in Law
  4. Law v Canada (1999)
    (a) Background
    (b) The s.15 Analysis in Law
    (c) Comment on Law and Human Dignity
    (d) Summary of the Law Principles
  5. Discrimination Law since Law v Canada (1999)
    (a) Overview
    (b) Ermineskin Indian Band and Nation v Canada
    . Background
    . Discrimination Analysis
    (c) Tranchemontagne v Director (ODSP) (Div Ct, 2009)
    (d) The State of Charter Discrimination Law in 2009
    (e) The State of Code Discrimination Law in 2009
    . Tranchemontagne v Director (ODSP) (Div Ct, 2009)
    . Comment
  6. The 'Comparator Group' Concept
    (a) Overview
    (b) Comparators in Law
    (c) The End of the Comparator?

------------------------------


1. Overview and Lament

(a) Lament

Discrimination law - which cross-applies broadly across both the Charter of Rights and Freedoms and provincial and federal Human Rights Codes - and despite its primary importance to the Canadian constitutional (and in the case of the Code, quasi-constitutional) legal framework has been, almost since its inception into Canadian law in the early 1960s (with the first provincial Human Rights Codes) intolerably incoherent. I will not say that it is complex, though the process of trying to determine intelligible and consistent themes within it is, for complexity might credit it with at least a deep level of consistency.

Despite over 50 years of human rights discrimination law in Canada (24 of them with the Charter), the Supreme Court still - to this day - hesitates on setting anything like a firm and committed analytic framework, all in the name of vagaries like the need to maintain flexibility to address new situations, the importance of a 'contextual and purposive' approach. Nascent analytic tests are proposed, with normal legal-test stages, only to be supplemented at the end with the addition that: 'oh yes, and if all t hat is met you must still show that the situation is "discriminatory"' (typically by reference to historic disadvantage) (as though that was not what we were after in the first place). Principles are proposed and immediately thereafter cautioned and excepted into meaninglessness.

All of the following concepts - and more, whatever variable meaning is given to them at the particular moment, and wherever located in the analysis-of-the-moment, appear in this jurisprudential history:
  • similarly-situated
  • discrete and insular minority
  • immutable personal characteristics
  • distinction
  • differentiation
  • adverse effect discrimination
  • direct discrimination
  • equality
  • enumerated and analogous grounds of discrimination
  • intentional versus effective discrimination
  • comparator classes
  • 'human dignity' (my personal favourite, as will be seen in the
    discussion of the Law case, below)
There are other areas of law as unsettled (a kind word) as this, and they are almost always political areas where the courts dither about treading on the toes of the legislature (or reaching into the pockets of the executive) - aka the "justiciability" issue. Standards of judicial and appellate review are one, jurisdictional line-drawing between competing tribunals is another (a theme discussed in Ch.17, s.6: "Remedies and Offences: The Civil Courts and the Code"). Courts faced with these issues, even (as i s occasionally the case) given coherent guidance from above, seem congenitally unable to refrain from asserting their own personal views in the justiciability debate.

But make no mistake, what underpins all this inconsistency and equivocation is 'justiciability': the ever-tense line-drawing between the courts (on the one hand) and the legislature and the executive governments (on the other). The battleground is policy - both public and private, an area in which the relatively new Human Rights Codes (and the even newer Charter) directly require tribunals and courts to intervene.

But they really don't want to go there, so frequently they just end up making fuzzy, bad law.

(b) Overview

Sections 3-6 of this chapter, set out this unfortunate history to date, largely with my wholesale 'cut and paste' of the 'history to date' written by Iacobucci J in the 1999 Supreme Court of Canada case Law v Canada (Minister of Employment and Immigration), and the more recent and cogent comments of Bellamy J from the 2009 Ontario Divisional Court case of Tranchemontagne v Director (ODSP). I honestly didn't have the patience to try to psycho-analyse the doctrinal struggles in detail, and doubt that it would be a useful project on anything other than a forensic level.

In Chapter 2 I address the practice-relevant issue of the relationship between substantive (rights) Code law and Charter law. Readers will see that they are integrally related and cannot safely be isolated from each other.

In the final sub-sections of Ch.5 ["Discrimination Law since Law v Canada (1999)"], I try to set out the current state of both Code and Charter discrimination analysis (again, they are integrally intertwined).

Finally in Ch.7 ["Simon's Homegrown Realpolitik Discrimination Test ver. 1.0"], hating to leave my readers bereft of any hope in this important area of law, I attempt to set out what I believe is a discernable 'realpolitik' of discrimination law. This 'realpolitik' is comprised of plain but unspoken and unacknowledged criteria which really dictate when a discrimination claims will be successful. Further, I believe that when the realpolitik test is met, the facts of any good case can insert themselves happil y into whatever the doctrinal criteria of the moment are.


2. Charter and Code Compared

(a) Overview

The substantive (rights) law of the Ontario Human Rights Code is set out in Chapters 2-5, and may be described as prohibiting discrimination on certain enumerated group-membership grounds (eg. race, sex, disability, etc) in certain areas of human activity (eg. employment, provision of goods and services, accomodation).

The Charter on the other hand covers to all areas of human activity impacted by state action, and expands the prohibited grounds from those specifically enumerated to unspecified (called 'analogous') grounds of discrimination:
Charter s.15(1)
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.
At their hearts though, the similarities between the various (and very
similar) provincial Human Rights Codes and s.15 of the Charter are
obvious. This has led quite naturally to the cross-application of
principles of law developed in one area to the other. Given that Codes
came into law (since 1962) before s.15 of the Charter (in force 1985)
this cross-pollination was originally one-way with the leading Code
cases of Ontario (OHRC) v Simpsons-Sears (SCC, 1985) [the
"O'Malley" case] lending itself early on as a model for the seminal
SCC s.15 Charter case of Andrews v Law Society of British
Columbia
(1989):
[para 37]
What does discrimination mean? The question has arisen most commonly in a consideration of the Human Rights Acts and the general concept of discrimination under those enactments has been fairly well settled. There is little difficulty, drawing upon the cases in this Court, in isolating an acceptable definition. In Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at p. 551, discrimination (in that case adverse effect discrimination) was described in these terms: "It arises where an employer ... adopts a rule or standard ... which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force". It was held in that case, as well, that no intent was required as an element of discrimination, for it is in essence the impact of the discriminatory act or provision upon the person affected which is decisive in considering any complaint. At page 547, this proposition was expressed in these terms:

The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.

[para 38]
The Court in the case at bar must address the issue of discrimination as the term is used in s. 15(1) of the Charter. In general, it may be said that the principles which have been applied under the Human Rights Acts are equally applicable in considering questions of discrimination under s. 15(1).
The Ontario Divisional Court in Tranchemontagne v Director (ODSP) (Div Ct, 2009) recently re-affirmed that cross-application of Code-Charter discrimination law is still the case:
[para 98]
After Andrews, and indeed after Law, the Supreme Court itself articulated an approach to human rights cases that did not incorporate the analysis developed under the Charter. For example, in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (BCGSEU), [1999] 3 S.C.R. 3 (Meiorin), released just six months after Law, the Supreme Court examined whether there should be a different approach to overt or covert discrimination depending upon whether the alleged discrimination occurred under human rights legislation or under the Charter. At para. 48, the court dismissed adopting different approaches. Importantly, though, when discussing what approach to use in its subsequent analysis, the court did not adopt the Law framework.
That said, the two areas of law have clear distinctions which need to be identified and appreciated [see s.5(d) and (e) respectively for the 'latest' in Charter and Code approaches generally]. Generally it may be said that substantive Code law is generally 'simpler' to deal with and more friendly to the rights-applicant. This is not to say - by ANY means that, in Ontario at least, it has been easier to advance Code cases - the Ontario Human Rights Commission has seen to that admirably by their Kafkaesque pr ocedural barriers [see these discussions in Ch.1: "Overview"].

But a new day is here with the advent of the Tranchemontagne v Director (ODSP) (SCC, 2006) case, and now enforcement of substantive human rights law is no longer held as a monopoly. Plus we have a revised Code, which holds out the possibility (do NOT hold your breath on this) of a robust new approach to the advancement of applications.

In any event, the balance of this chapter covers the distinction between Code law and Charter law.

(b) Government versus Plenary Coverage

The charter applies against law and government action, while the Ontario Human Rights Code applies against both those and private behaviour as well [Code s.9, 47(1)].

As McIntyre J out it in Andrews v LSBC (SCC, 1989):
[para 38]
Certain differences arising from the difference between the Charter and the Human Rights Acts must, however, be considered. To begin with, discrimination in s. 15(1) is limited to discrimination caused by the application or operation of law, whereas the Human Rights Acts apply also to private activities.
(c) Enumerated v Analogous Grounds

Recall that Code discrimination is structured by coverage of certain areas of human activity [see Ch.2: "Protected Activities"], within which discrimination on certain grounds [see Ch.3: "Prohibited Grounds"] is (you guessed it) prohibited. All of the 'prohibited grounds' of discrimination in the Code are listed IN the Code. The 'standard' list includes:
  • race,
  • ancestry,
  • place of origin,
  • colour,
  • ethnic origin,
  • citizenship,
  • creed,
  • sex,
  • sexual orientation,
  • age,
  • marital status,
  • family status, and
  • disability.
"Record of offences" and "receipt of social assistance" are sometimes added to this list for some selected areas of protected activity.

The Charter on the other hand, expresses its prohibition in broad terms, listing some grounds for the sake of clarity only. These 'enumerated grounds' - which are NOT exhaustive of Charter protection - are as follows:
  • race,
  • national or ethnic origin,
  • colour,
  • religion,
  • sex,
  • age or
  • mental or physical disability.
Periodically, in specific case the courts will effectively append new grounds (called 'analogous') to this list, if they share similar characteristic to those enumerated. This is the realm of the arcane concepts of 'discrete and insular minorities' and 'immutability'. Examples of this being done include the leading Andrews case (there 'non-citizens') and perhaps most prominently the lesbian and gay cases such as Egan v Canada (SCC, 1995).

As McIntyre J put it in Andrews v LSBC (SCC, 1989):
[para 38]
Certain differences arising from the difference between the Charter and the Human Rights Acts must, however, be considered.

...

Furthermore, and this is a distinction of more importance, all the Human Rights Acts passed in Canada specifically designate a certain limited number of grounds upon which discrimination is forbidden. Section 15(1) of the Charter is not so limited. The enumerated grounds in s. 15(1) are not exclusive and the limits, if any, on grounds for discrimination which may be established in future cases await definition. The enumerated grounds do, however, reflect the most common and probably the most socially destructive and historically practised bases of discrimination and must, in the words of s. 15(1), receive particular attention. Both the enumerated grounds themselves and other possible grounds of discrimination recognized under s. 15(1) must be interpreted in a broad and generous manner, reflecting the fact that they are constitutional provisions not easily repealed or amended but intended to provide a "continuing framework for the legitimate exercise of governmental power" and, at the same time, for "the unremitting protection" of equality rights: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155.
So there you have it, Codes have a fixed and discrete list of prohibited grounds, while the Charter has that (though a smaller list) plus an open-ended category which can always expand. Obviously, if you have a case grounded in a Code-enumerated ground (but not an enumerated Charter ground), and it it is otherwise 'Code-suitable' you would want to locate it in the conceptually simpler Code regime.

(d) Code v Charter Defences

. Charter s.1 Defence

The Charter 'defence' is s.1:
Charter s.1
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
This is the well-known proportionality test, and it is the governmental defence to any allegation of Charter violation.

. Code Exemptions

The Ontario Human Rights Code, on the other hand, has a range of defences contained within it. Some are general and some are specific, in the form of de facto exemptions from the operation of the main Code discrimination provisions.

As such defences are conditioned by the protected area of human activity addressed by the Code, these defences are considered in Ch.2 ["Protected Activities"]. Examples of some of these include a general exemption from discrimination in residential accomodation where the occupant shared bathroom and/or kitchen facilities with the landlord, or the well-known "bona fide occupational requirement" that operates as a de facto defence with respect to several prohibited grounds of discrimination in
employment.

As such defences are conditioned by the prohibited ground of discrimination addressed by the Code, they are considered in Ch.2 ["Prohibited Grounds"]. Examples of some of these are some exemptions for disability-related incapacity and creed exemptions allowing discrimination by religious institutions with respect to the performance of marriages.

As well, some general exemptions do apply as well, the most prominent being the 'special program' (affirmative action) exemption for programs designed to alleviate the consequences of discrimination on prohibited and other grounds. These are discussed in Ch.6 ["General Exceptions"].

. Comment

McIntyre J in Andrews v LSBC (SCC, 1989) see these two types of defences as different in nature from each other:
[para 39]
It should be noted as well that when the Human Rights Acts create exemptions or defences, such as a bona fide occupational requirement, an exemption for religious and political organizations, or definitional limits on age discrimination, these generally have the effect of completely removing the conduct complained of from the reach of the Act.

...

Where discrimination is forbidden in the Human Rights Acts it is done in absolute terms, and where a defence or exception is allowed it, too, speaks in absolute terms and the discrimination is excused. There is, in this sense, no middle ground. In the Charter, however, while s. 15(1), subject always to subs. (2), expresses its prohibition of discrimination in absolute terms, s. 1 makes allowance for a reasonable limit upon the operation of s. 15(1). A different approach under s. 15(1) is therefore required. While discrimination under s. 15(1) will be of the same nature and in descriptive terms will fit the concept of discrimination developed under the Human Rights Acts, a further step will be required in order to decide whether discriminatory laws can be justified under s. 1. The onus will be on the state to establish this. This is a distinct step called for under the Charter which is not found in most Human Rights Acts, because in those Acts justification for or defence to discrimination is generally found in specific exceptions to the substantive rights.
There is some truth to this in the sense that the Code 'defences' are often structured as catgorical exemptions, while the Charter s.1 defence requires for evidenced and reasoned justification. That said, in practical terms the invocation of a Code defence may require just as much 'justification', particularly with the operation of the much-litigated employment "bona fide occupational requirement".


3. Discrimination Law Before Law v Canada (1999)

(a) Overview

The 1989 Supreme Court of Canada case of Andrews v Law Society of BC is the first definitive Charter s.15 discrimination case. The case takes a bit of deciphering as there were three separate judgments, although there was unanimity on the all-important issue of the interpretation and analysis to be taken on substantive s.15 discrimination, and this was embodied in the judgment of McIntyre J. It is that judgment that I will review here.

This being a Legal Guide focussing on Ontario Human Rights Code 'discrimination', and as per s.2 (above), I will not review those parts of the judgment that are unique to the Charter, such as the s.1 treatment, or the 'analogous' class analysis.

(b) Andrews Case Background

This was an early s.15 Charter case (the s.15 Charter equality provisions only came into force in 1985), and it alleged that a BC Law Society requirement that members be Canadian citizens (excepted for permanent residents after three years residency) was illegally discriminatory.

The Charter-claimant moved for a court declaration that the situation constituted unjustifiable s.15 discrimination, which was unsuccessful at trial level but successful on appeal to the BCCA. A further appeal by the Law Society to the SCC (heard by six judges) was dismissed (thus upholding the finding of discrimination) in three separate judgments [3 (Dickson, WILSON, L'Heureux-Dube), 2 (MACINTYRE, Lamer), and 1 (LAFOREST)].

(c) McIntyre J's s.15 Analysis in Andrews

McIntyre found a s.15 violation, but held it saved under a deferential application of s.1, though he was in the minority on this latter point and the Charter-claimant was ultimately successful.

McIntyre was at pains to criticize some earlier discrimination analysis advanced by McLachlin J (then of the BC Court of Appeal, now Chief Justice of the SCC), what he called the "similarly-situated test".

In McIntyre's view the 'similarly-situated test' was that persons who are "similarly situated be similarly treated" and conversely, that persons who are "differently situated be differently treated" [para 27]. MacIntye J criticized this test as simplistic and potentially tolerant of harsh treatment of minorities. He even went so far as to state that a literal application of the test would have tolerated nazi segregation treatment of jews, a perhaps unfortunate example in hindsight given
McLachlin J's subseq uent career path.

McIntyre continued to make the worthwhile point that 'equality' is not 'sameness' of treatment:
[para 26]:
It [equality] is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises. It must be recognized at once, however, that every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality. This proposition has found frequent expression in the literature on the subject but, as I have noted on a previous occasion, nowhere more aptly than in the well-known words of Frankfurter J. in Dennis v. United States, 339 U.S. 162 (1950), at p. 184:

It was a wise man who said that there is no greater inequality than the equal treatment of unequals.

...

To approach the ideal of full equality before and under the law -- and in human affairs an approach is all that can be expected -- the main consideration must be the impact of the law on the individual or the group concerned. Recognizing that there will always be an infinite variety of personal characteristics, capacities, entitlements and merits among those subject to a law, there must be accorded, as nearly as may be possible, an equality of benefit and protection and no more of the restrictions, penalties or burdens imposed upon one than another. In other words, the admittedly unattainable ideal should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another.
He was further quite confident that he could formulate an acceptable definition of "discrimination", which he then articulated as follows:
[para 37]
I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.
(d) Andrews Considered in Law

To give a flavour for how Andrews was viewed and applied in the following 10 years (1989 to 1999), following are extracts from Iacobucci's judgment (for the full court) in Law v Canada (Minister of Employment and Immigration), characterizing Andrews. They help in highlighting the parts of Andrews viewed as significant since 1989.
[para 6]
In accordance with McIntyre J.'s caution in Andrews, supra, I think it is sensible to articulate the basic principles under s. 15(1) as guidelines for analysis, and not as a rigid test which might risk being mechanically applied. Equality analysis under the Charter must be purposive and contextual. The guidelines which I review below are just that -- points of reference which are designed to assist a court in identifying the relevant contextual factors in a particular discrimination claim, and in evaluating the effect of those factors in light of the purpose of s. 15(1).

[para 23]
McIntyre J. in Andrews adopted an approach to s. 15(1) which focuses upon three central elements: (1) whether a law imposes differential treatment between the claimant and others; (2) whether an enumerated or analogous ground of discrimination is the basis for the differential treatment; and (3) whether the law in question has a "discriminatory" purpose or effect. In these reasons, for the sake of convenience, I will refer only to discriminatory laws, and not to the various other forms of potentially discriminatory state action. The first element -- differential treatment -- relates to, but is not determinative of, the issue of equality for the purpose of s. 15(1). The second and third elements in McIntyre J.'s approach determine whether the differential treatment in question constitutes discrimination within the meaning of s. 15(1) of the Charter. In his detailed discussion of these three elements, McIntyre J. made clear that the analysis of each element is to be undertaken in a purposive and contextualized manner, taking into account the "large remedial component" (p. 171) of s. 15(1), and the purpose of the provision in fighting the evil of discrimination.

.....

[para 30]
In summary, then, the Andrews decision established that there are three key elements to a discrimination claim under s. 15(1) of the Charter: differential treatment, an enumerated or analogous ground, and discrimination in a substantive sense involving factors such as prejudice, stereotyping, and disadvantage. Of fundamental importance, as stressed repeatedly by all of the judges who wrote, the determination of whether each of these elements exists in a particular case is always to be undertaken in a purposive manner, taking into account the full social, political, and legal context of the claim.
In those ten years (1989-1999) numerous cases considered s.15 Charter issues, and of course similar Code discrimination cases, and in all of them the Andrews case loomed large:
[para 31]
The general approach adopted in Andrews was regularly applied in subsequent decisions of the Court: see, e.g., Turpin, supra; R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906; McKinney, supra; T?treault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Swain, supra; Symes v. Canada, [1993] 4 S.C.R. 695; Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; Thibaudeau v. Canada, [1995] 2 S.C.R. 627; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Vriend v. Alberta, [1998] 1 S.C.R. 493.

4. Law v Canada (1999)

(a) Background

The Law case (the name is unfortunately confusing), while ostensibly building on the Andrews heritage, marked a significant and much criticized shift in discrimination analysis towards a grounding concept of "human dignity".

The Charter-rights claimant in this case was a 30 year old surviving spouse with no children who applied for survivor's benefits under the Canada Pension Plan. CPP rules imposed a 1/120th reduction on the amount of pension otherwise (currently) payable for each month that the applicant was under 45 years of age, the net result being that anyone under 35 was effectively ineligible until she took her own CPP retirement pension.

She appealed this up the CPP appeal chain without success (Minister of National Health and Welfare, Pension Plan Review Tribunal, Pension Appeals Board, and Federal Court of Appeal), arguing that it was prohibited age discrimination (an enumerated ground) under Charter s.15, which reads:
s.15(1)
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.
Further appeal to the SCC (Iacobucci J writing for a unanimous court) was dismissed against the Charter-claimant, on the ground that s.15 was not invoked (and thus no s.1 defence was required).

(b) The s.15 Analysis in Law

Iacobucci J, writing for the full court, took the oppourtunity to expound extensively on s.15 discrimination analysis:
[para 39]
In my view, the proper approach to analyzing a claim of discrimination under s. 15(1) of the Charter involves a synthesis of these various articulations. Following upon the analysis in Andrews, supra, and the two-step framework set out in Egan, supra, and Miron, supra, among other cases, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).
The main divergence from Andrews occurs in the third step, (ie. pernicious "discrimination" as such) with its' shift away from a 'historic disadvantage' foundation a much broader (and vaguer) central concept of 'human dignity'. Iacobucci J does this in the course of a review of several successive 'purposive' approaches applied in cases since Andrews:
[para 42]
What is the purpose of the s. 15(1) equality guarantee? There is great continuity in the jurisprudence of this Court on this issue. In Andrews, supra, all judges who wrote advanced largely the same view. McIntyre J. stated, at p. 171, that the purpose of s. 15 is to promote "a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration". The provision is a guarantee against the evil of oppression, he explained at pp. 180-81, designed to remedy the imposition of unfair limitations upon opportunities, particularly for those persons or groups who have been subject to historical disadvantage, prejudice, and stereotyping.

....

[para 48]
Similar observations were made in Miron, supra, by McLachlin J. and in Egan, supra, by L'Heureux-Dub? J. and Cory J., all of whom found that the fundamental purpose of s. 15(1) is the protection of human dignity. Cory J. stated in Egan, supra, at para. 128, that the equality guarantee "recognizes and cherishes the innate human dignity of every individual". As he explained, at para. 179, "the existence of discrimination is determined by assessing the prejudicial effect of the distinction against s. 15(1)'s fundamental purpose of preventing the infringement of essential human dignity". Similarly, in Miron, supra, at para. 131, McLachlin J. stated the overarching purpose of s. 15(1) as being "to prevent the violation of human dignity and freedom by imposing limitations, disadvantages or burdens through the stereotypical application of presumed group characteristics rather than on the basis of merit, capacity, or circumstance".
It is not hard in cases of such a philosophically large dimension to find lots of various high-flown language and in my view there is nothing to favour focussing on "human dignity" any more than numerous other rhetorical themes. In any event, what matters for the meaningful day-to-day application of law is that the citizens, the profession and the lower courts be given solid functional direction. In that light the quick and negative attack (on the vagueness of "human dignity" concept) that followed Iacobucc i J's Law approach renders his following comments achingly ironic:
[para 52]
As noted above, one of the difficulties in defining the concepts of "equality" and "discrimination" is the abstract nature of the words and the similarly abstract nature of words used to explain them. No single word or phrase can fully describe the content and purpose of s. 15(1).

However, in the articulation of the purpose of s. 15(1) just provided on the basis of past cases, a focus is quite properly placed upon the goal of assuring human dignity by the remedying of discriminatory treatment.

[para 53]
What is human dignity? There can be different conceptions of what human dignity means. For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects a specific, albeit non-exhaustive, definition. As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?
(c) Comment on Law and Human Dignity

Well we really got away from abstractions there, didn't we? So glad we are now dealing with nice concrete, easy-to-assess issues like:
  • personal autonomy
  • self-determination
  • physical and psychological integrity
  • empowerment
  • self-respect
  • self-worth
  • etc
All sarcasm aside, the real mischief of the "human dignity" focus is it's shift into further realms of social metaphysics and away from the more relevant theme of material inequality. Shortly after Law was released I described this in conversation as the 'Ann Landers' approach to discrimination law, holding that any screwing-over of a minority, no matter how egregious in effect, is excusable if done in a polite and respectful manner.

In a very real sense the shift to 'human dignity' is a re-embracing of the position, earlier dispensed with in Ontario (OHRC) v Simpsons-Sears (SCC, 1985) [para 12], that all human rights discrimination had to be intentional to be illegal. That change produced from that time forward an almost entirely effect-concerned discrimination analysis, the 'intention'-based ones having all but disappeared from the landscape with the greater public awareness and intolerance for obvious discrimination.

Let me explain this point further. "Dignity" is inherently a social concept, focussed on inter-human relations. I have dignity in relation to others in my society. Alone on a desert island for 20 years and it's not something I think about until a boat shows up and I'm caught wearing my second-best coconut. Dignity is inherently a 'status'-grounded concept, not a materially-grounded concept. "Dignity" defines itself hierarchically within society between those lacking it, and those who have it. As a concept it keeps company with concepts such as 'face', and 'personal slight'. When we are there, we are now well into the realm of open, direct and yes - intentional - discrimination (ie. no blacks, no women, etc).

I am not saying that human dignity considerations have no place in discrimination analysis - as they are the most overt and obvious forms of discrimination and should be prohibited - but they shift us inexorably back into the old inter-personal framework of intentionality at the expense of the far more common indirect, materially-demonstrable forms that dispense with intentionality considerations entirely.

(d) Summary of the Law Principles

To summarize, following is a direct extract from Iacobucci J's own summary in Law:
[para 88]
Before moving on to apply the principles that I have just discussed to the facts of this case, I believe it would be useful to summarize some of the main guidelines for analysis under s. 15(1) to be derived from the jurisprudence of this Court, as reviewed in these reasons. As I stated above, these guidelines should not be seen as a strict test, but rather should be understood as points of reference for a court that is called upon to decide whether a claimant's right to equality without discrimination under the Charter has been infringed. Inevitably, the guidelines summarized here will need to be supplemented in practice by the explanation of these guidelines in these reasons and those of previous cases, and by a full appreciation of the context surrounding the specific s.15(1) claim at issue. It goes without saying that as our s. 15 jurisprudence evolves it may well be that further elaborations and modifications will emerge.

General Approach

(1) It is inappropriate to attempt to confine analysis under s.15(1) of the Charter to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach.

(2) The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues:

(A) whether a law imposes differential treatment between the claimant and others, in purpose or effect;

(B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and

(C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

The first issue is concerned with the question of whether the law causes differential treatment. The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

(3) Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:

(A) Does the impugned law

(a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or

(b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

and

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

Purpose

(4) In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

(5) The existence of a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1) is essential in order to found a discrimination claim. The determination of whether such a conflict exists is to be made through an analysis of the full context surrounding the claim and the claimant.

Comparative Approach

(6) The equality guarantee is a comparative concept, which ultimately requires a court to establish one or more relevant comparators. The claimant generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry. However, where the claimant's characterization of the comparison is insufficient, a court may, within the scope of the ground or grounds pleaded, refine the comparison presented by the claimant where warranted. Locating the relevant comparison group requires an examination of the subject-matter of the legislation and its effects, as well as a full appreciation of context.

Context

(7) The contextual factors which determine whether legislation has the effect of demeaning a claimant's dignity must be construed and examined from the perspective of the claimant. The focus of the inquiry is both subjective and objective. The relevant point of view is that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim.

(8) There is a variety of factors which may be referred to by a s.15(1) claimant in order to demonstrate that legislation demeans his or her dignity. The list of factors is not closed. Guidance as to these factors may be found in the jurisprudence of this Court, and by analogy to recognized factors.

(9) Some important contextual factors influencing the determination of whether s. 15(1) has been infringed are, among others:

(A) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of "discrete and insular minorities" should always be a central consideration. Although the claimant's association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.

(B) The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. Although the mere fact that the impugned legislation takes into account the claimant's traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant's actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant's actual situation.

(C) The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.

and

(D) The nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1).

(10) Although the s. 15(1) claimant bears the onus of establishing an infringement of his or her equality rights in a purposive sense through reference to one or more contextual factors, it is not necessarily the case that the claimant must adduce evidence in order to show a violation of human dignity or freedom. Frequently, where differential treatment is based on one or more enumerated or analogous grounds, this will be sufficient to found an infringement of s. 15(1) in the sense that it will be evident on the basis of judicial notice and logical reasoning that the distinction is discriminatory within the meaning of the provision.
With necessary modifications as discussed in s.2 ["Code and Charter Compared"], this framework can apply to Human Rights Code cases as well.

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