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Return to First Part of Chapter
5. Discrimination Law since Law v Canada (1999)
(a) Overview
In addition to my own criticism of Law's 'human dignity' focus [s.4(c) above], much academic criticism and judicial back-pedalling had followed in the 20 years since 1999. The two post-Law (2009) cases that I have chosen to review below are reflective of this reversal.
The first (and very recent) case, Ermineskin Indian Band and Nation v Canada (SCC, 2009) is remarkable not for its in-depth s.15 analysis (it was rather brief), but rather for its complete lack of any mention of either Law or 'human dignity' whatsoever, a hugely telling point on the status of Law at present.
The second case, Tranchemontagne v Director (ODSP) (Div Ct, 2009) and (Ont CA, 2010) emanated from the Social Benefits Tribunal (SBT) re-hearing ordered by the SCC in the 2006 version of that same case. The case is useful for its frank and thorough analysis of the state of discrimination law in Canada at the time. Further, it is also useful for present purposes as formally it is a Code-only case, though it thoroughly addressed the Code/Charter relationship.Note:
The case of Tranchemontagne was further appealed to the Ontario Court of Appeal in 2010. While the CA preferred the Tribunal's treatment of the Law test to that the Divisional Court, I find the Divisional Court's treatment of the post-Law debate more useful on that issue. The disagreement that the CA had with the Divisional Court's ruling is stated here:[72] As I explain below, I would not adopt the Divisional Court's post-Kapp test for three reasons: (1) it overlooks the requirement that the claimant prove disadvantage; (2) it implies it is unnecessary for the claimant to show that the disadvantage perpetuates prejudice or stereotyping; and (3) it reverses the burden of proof by requiring the responding party to rebut a claim of discrimination. (b) Ermineskin Indian Band and Nation v Canada (SCC, 2009)
. Background
Leaping ahead now to 2009 we have the Supreme Court of Canada case in Ermineskin Indian Band and Nation v Canada.
This case revolved around the issue of whether the federal Crown, as fiduciary to natives in Canada, had an obligation to invest and thus grow monies which it held in trust for natives. The case was complicated by the need to determine the full nature of the legal relationship between the natives and the Crown, in light of historic treaty and surrender documents. The monies subject of the dispute were royalties from the exploitation of oil and gas reserves on native lands, which reserves technically had to be held by the Crown in order to be exploited. The arrangement did pay interest, but at periodically-adjusted Canada bond rates.
The case was dismissed at all levels of the federal courts, including the SCC (Rothstein J writing for the whole court).
On conventional law issues alone, the SCC found that the statutory and legal instrument framework in which the arrangement existed did not require or allow that the funds be invested as would be required of a private fidicuary. The s.15 treatment follows.
. Discrimination Analysis
In a relatively brief s.15 analysis, the SCC found that there was no s.15 discrimination because, while there was differentiation between natives and non-natives by virtue of the application of the Indian Act, it was not 'discriminatory' in the sense of perpetuating historical disadvantage through prejudice or stereotyping. Rothstein J for the court reasoned that while the interest actually paid was in fact lower than might have been achieved with diversified investment other advantages accrued to the nativ es, particularly the liquidity created by the holding of the funds in the huge Consolidated Revenue Fund and the security of guaranteed return rates. As well, the investment sought by the bands could have been achieved by negotiated release of the monies directly to the band or to private trustees on their behalf.
The court stated: [para 201]
Given these considerations, I am unable to agree that the impugned provisions of the Indian Act infringe s. 15(1) of the Charter under the test established in Andrews and reaffirmed in Kapp: "(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?" (Kapp, at para. 17). There is a distinction between Indians and non-Indians, but that distinction is not discriminatory. The provisions do not preclude investment, provided the investments are made by the bands or trustees on their behalf after expenditure of funds from the CRF to the bands and the release of the Crown from further responsibility with respect to the royalties. Such an approach involves greater control and decision making by the bands themselves. Any expenditure of the funds for investment is required to be in the best interests of the bands. Until the funds are expended by the Crown for the purposes of investment by the bands or trustees on their behalf, they are held by the Crown in the CRF and the bands are provided with liquidity and a return on the royalties. The case, with its complete silence of the issue of "human dignity" can be viewed as a move away from Law analysis, and a reversion to an Andrews analysis. However it can equally be viewed as the failure of the native applicants to adequately prove in evidence an allegation of material inequality. That is, in conventional litigation terms, they failed to show any harm or damage by the arrangement - something that Rothstein J with his business background pointed out.
(c) Tranchemontagne v Director (ODSP) (Div Ct, 2009)
This case was the continuation of the SCC 2006 Tranchemontagne case, sent back to the Social Benefits Tribunal (SBT) after it was determined that the SBT has jurisdiction to consider the Human Rights Code in deciding cases before it. The SBT then held that a provision of the Ontario Disability Support Program Act (ODSP) that excluded persons from eligibility for income support if their sole substantial disabling condition was an addiction, was discriminatory under the Human Rights Code and refused to apply it against the applicant. The Divisional Court upheld this finding against a government appeal.
The case is interesting for its comments on the application of Law and as well for the fact that it is a Code-only case, a nice merger of current discrimination law stripped of its Charter features.
The court (Bellamy J writing) commented as follows on the s.15 analysis: [para 57] The Tribunal agreed with the Director's submissions and concluded the Law test did apply, but decided that only the first two inquiries were necessary. The third inquiry, requiring the claimant to show an impact on his human dignity, was not necessary. The Tribunal relied upon para. 104 of Gwinner v. Alberta (Minister of Human Resources and Employment) (2002), 217 D.L.R. (4th) 341 (Alta. Q.B.), aff'd on appeal (2004), 245 D.L.R. (4th) 158 (C.A.), leave to appeal to S.C.C. refused, 30449 (January 20, 2005), [2004] S.C.C.A. 342: "[i]n many, if not most cases under human rights legislation, the elaborate third step scrutiny to determine if the dignity interest of the Claimant is truly engaged, will neither be necessary nor appropriate."
[para 58] The Tribunal determined that the third step need not always be applied in the human rights context, and specifically was not required in these circumstances (page 11). In so concluding, it said:The Tribunal cautions, however, that each case must be assessed and analyzed on its own merits regarding the engagement of the third step scrutiny under the Law test. In other words, based upon the facts and evidence in these cases, the Appellants [respondents in this appeal] have established substantive inequality under the first two steps and it is not necessary to explore whether the prima facie case of discrimination that they have established under the Code also includes a violation of their human dignity as required under the third test in the Law case. The appropriateness of dispensing with the key third step of Law ('human dignity') in Code-only cases was the subject of further comment by the court [still in Tranchemontagne v Director (ODSP) (Div Ct, 2009)]:[para 86] In the human rights context, there has been a lack of consensus with respect to whether the third test in Law must be applied in all human rights cases. The Tribunal was alive to this resistance, and Greckol J. noted it in Gwinner [(Alta CA, 2004); leave to appeal to SCC refused], supra, at para. 104 when she said:In many, if not most, cases under human rights legislation, the elaborate third step scrutiny to determine if the dignity interest of the Claimant is truly engaged, will neither be necessary nor appropriate. I draw this conclusion for at least three reasons. First, in cases where claimants pass the first two steps of the discrimination analysis, they will have shown distinction based on a ground which is enumerated as a protected ground in the human rights legislation ... Second, in Meiorin, Grismer ... and City of Montreal, [2000] 1 S.C.R. 665, three important human rights cases considered by the Supreme Court of Canada after Law, the elaborate third step dignity analysis was not employed. Finally, many human rights tribunals to date have resisted application of the elaborate approach to step three of the equality analysis, and resisted any argument that the decision in Law has imported a requirement that the claimant establish a violation of human dignity as an element of a prima facie case under human rights legislation. [Emphasis added and citations omitted.] [para 87] The answer to whether or not the third step in Law must be undertaken, I believe, has been provided in the form of direction from the Supreme Court of Canada in its recent decision in R. v. Kapp, [2008] 2 S.C.R. 483.
[para 88] By the time Kapp was heard, nearly twenty years had passed since the Supreme Court had handed down its first s. 15 decision in Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6 (cited to QL) ( Andrews). The court took the opportunity presented in Kapp to review some of the s. 15 jurisprudence developed since then. In so doing, McLachlin C.J., and Abella J., writing jointly for the court (Bastarache J. dissenting, but not on this point), reviewed the Law test, and in particular the human dignity test. There is no doubt that human dignity is an essential value underlying the s. 15 equality guarantee, but critics of this part of the test - and there were many - pointed out how confusing and difficult it was to apply human dignity as a test, despite the court's guidance of the four contextual factors. The court noted how this test, intended as a philosophical enhancement, was being applied in a way that created an additional burden on equality claimants.
[para 89] The court spelled out that Law did not impose a new and distinctive test for discrimination. Instead, the court said Law had simply affirmed the approach to substantive equality under s. 15 set out in Andrews, which established the following two-part test for showing discrimination under s. 15(1) of the Charter:1. Does the law create a distinction based on an enumerated or analogous ground?
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? [para 90] The four contextual factors offered in the third part of the Law test were not to be read literally, but instead were to be read "as a way of focusing on the central concern of s. 15 identified in Andrews - combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping" (para. 24). Although the human dignity analysis required in step three of Law addresses the "conceptual underpinnings of substantive equality" (para. 20), it was not intended as a legal test, and most definitely was not to be applied as a formulaic test for determining substantive inequality.
[para 91] In referring to the test in Andrews as being the "template" which "subsequent decisions [like Law] have enriched but never abandoned" (para. 14), the Supreme Court was sending a strong signal that courts should return to the Andrews analysis. The three-step test in Law was "in substance, the same" as the Andrews test, it said (para. 17).
[para 92] The Supreme Court has now, in essence, clarified that there is no substantive difference between pre- and post-Law equality jurisprudence despite Law's imposition of the third, dignity-focused step. Second, it has recognized the confusion that narrow and mechanical application of the Law test has caused. Third, it has set out an approach to discrimination analysis that accurately reflects twenty years of jurisprudence in this area: the principled analysis of the Andrews "template" with the "philosophical enhancement" of Law.
[para 93] Most recently, the Supreme Court has had the opportunity to further confirm its return to its equality analysis roots. The court was presented with a claim of discrimination in Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9. In examining the claim, the court returned to the Andrews "template." Not only did the court not refer to Law, but it also did not mention "human dignity," nor did it explicitly address any of the four contextual factors identified in Law. Rather, the court refocused its contextual analysis by addressing the broader context of the distinction in issue in its substantive equality analysis (para. 193):The question of whether discrimination exists is to be determined with regard to context, looking beyond simply the legislation in question. In R. v. Turpin, [1989] 1 S.C.R. 1296, this Court stated:In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context. [para 94] For all these reasons, I find it was not an error for the Tribunal to have decided the matter based only upon the first two prongs of Law. (d) The Current State of Charter Discrimination Law
The third Law step ('discrimination' as such), with the 'human dignity' concept at its core was itself at the heart of Iacobucci J's analysis in that case. While some courts have been more polite than others in the reasons given for bypassing that aspect of it wholesale (sometimes blaming parties and courts for interpreting it in too formulaic a fashion), to see it so summarily trashed in so many recent cases is almost insulting to its author, and it does reflect the widespread animosity that his approach has engendered.
On this issue my own view is that it is the duty of the SCC to give workable guidance to the citizenry, the profession and the lower courts, and that Law failed in that task miserably.
This does not mean to say that differential treatment now equates with discrimination, nor does it mean that 'historic disadvantage' is an irrelevant issue. Rather what has happened is that the role of 'human dignity' in centrally defining pernicious discrimination has been both marginalized and demoted. It may still be looked to if other concepts [such as simple arithmetic (as is often the case in underinclusive benefit cases)] fail to identify pernicious discrimination, but it is an examination of last resort.
Or, more simply put [and repeating para 89 from Tranchemontagne v Director (ODSP) (Div Ct, 2009) above]:[para 89] The court spelled out that Law did not impose a new and distinctive test for discrimination. Instead, the court said Law had simply affirmed the approach to substantive equality under s. 15 set out in Andrews, which established the following two-part test for showing discrimination under s. 15(1) of the Charter:1. Does the law create a distinction based on an enumerated or analogous ground?
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? There will still be confusion with the application of the comparator class concept [see s.6, below], though as that discussion illustrates even that has been dispensed with in any mandatory formal sense in recent cases (it has never had robust, consistent application).
(e) The Current State of Code Discrimination Law
. Tranchemontagne v Director (ODSP) (Div Ct, 2009)
As is discussed in s.2 ["Code and Charter Compared"], Charter discrimination analysis is considerably more laborious than Code analysis.
I continue on the issue of present 'Code-only' discrimination analysis with more useful extracts from the Tranchemontagne v Director (ODSP) (Div Ct, 2009):[para 99] Nine months after Law, the Supreme Court released its decision in B.C. (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 S.C.R. 868 (Grismer) [author: a 'Code-only' case]. At para. 20, the court adopted the following test: "Once the plaintiff establishes that the standard is prima facie discriminatory, the onus shifts to the defendant to prove on a balance of probabilities that the discriminatory standard is a BFOR [bona fide occupational requirement] or has a bona fide and reasonable justification." The court never referred to Law.
[para 100] When human rights challenges have been made to benefits or benefit-conferring government legislation, some courts have required the third step of Law to be conducted: Gwinner, supra; Ontario Secondary School Teachers' Federation v. Upper Canada District School Board et al. (2005), 78 O.R. (3d) 194 (Div. Ct.) (OSSTF); and Attorney General for Ontario et al. v. Ontario Human Rights Commission et al., and Mental Health Legal Committee et al., Intervenors, (2007), 88 O.R. (3d) 455 (Div. Ct.), leave to appeal dismissed, unreported (C.A.) (Braithwaite).
[para 101] Gwinner concluded that the third prong of Law should be used where the respondent government "raises a serious question as to whether the dignity interest of the Claimants is engaged" (para. 103). OSSTF concluded that the arbitration decision before it was not wrong in having applied the full Law test, because, as in Gibbs, supra, and Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 (Brooks), the purpose of the impugned benefit had to be explored in order to determine if discrimination existed. In Braithwaite, this court decided the Law test applied to a case involving a challenge to a government service and was appropriate where the challenge was to legislation under s. 1 of the Code. It then assessed the Tribunal's application of Law, and decided that a strict application of the third prong was necessary.
[para 102] Gwinner, OSSTF and Braithwaite must now be viewed in light of the two subsequent decisions by the Supreme Court in Kapp and Ermineskin, neither of which require use of the more complicated Law test.
[para 103] In addition, in the human rights context, the claimant is only required to put forward a prima facie case of discrimination, at which point the burden shifts to the respondent to demonstrate that either the prima facie case is rebutted or that one of the statutory exceptions applies: O'Malley. This was the case in both Gibbs and Brooks. The complainants showed a prima facie case of differential treatment based on a prohibited ground, at which point the respondent tried to rebut it. See Gibbs at para. 21, Brooks at pp. 1236-1237. Following is the court's application of Code discrimination analysis to the facts in Tranchemontagne v Director (ODSP) (Div Ct, 2009):[para 104] What test should the Tribunal now use, given the Supreme Court's reaffirmation of Andrews? First, in my view, it is no longer necessary to apply a human dignity test. In any event, the concept of human dignity, recognized in the preamble to the Human Rights Code in Ontario, is already an integral part of the Code and need not be proven. Second, I believe the test established by the Supreme Court in O'Malley, reaffirmed by that court in Meiorin and Grismer, should apply, informed by Andrews.
[para 105] Adapted for the present human rights context, in a case such as this involving the provision of services pursuant to a government benefit program, the test might read as follows:1. Has the complainant established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground under the Human Rights Code?
2. Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the respondent established a statutory defence under the Code? [para 106] In the matter before us, the Director had conceded that differential treatment based on a prohibited ground existed. As a result, the Tribunal was correct in deciding that the two complainants had established a prima facie case. It was then up to the Director to rebut this prima facie case. It did not do so to the satisfaction of the Tribunal. . Comment
This is a refreshing analysis, where the applicant/complainant proves prima facie discrimination simply by showing a distinction based in a prohibited (and Code-enumerated) ground (see Ch.3: "Prohibited Grounds"). The burden then shifts to the respondent to show either that the distinction is not pernicious discrimination (ie. does not manifest or further historic disadvantage or prejudice), or a statutory defence (see Chapters 2,3 and 6 for these).
Ironically, given all of the doctrinal fuss the courts have engaged in over the years, Bellamy's approach to Code discrimination analysis here is essential the pure statutory one set out in the Code. The only clarification required is the obvious one that an "infringement" of "equal treatment" (the Code's terminology for 'discrimination': Code s.1-6,9) is not to be read literally in the sense of 'sameness'. 'Discrimination' in Bellamy's formula requires additionally the "creat[ion of] a disadvantage by perpetuating prejudice or stereotyping" (what I have sometimes referred to as "pernicious discrimination"). This is an entirely reasonable and manageable qualifier that runs throughout practically all the cases to date. Now however that it is plainly stated it lends itself to functional application.
That said, Bellamy J appears to place no burden on a Code-applicant to demonstrate pernicious discrimination, but rather structures it as a defence available to a respondent if they can meet the onus of proving the absence of pernicious effect [para 105], ie.: 2. Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? This structuring of burden is counter to that traditionally required in common law proceedings - where applicants bear the burden of making out a full prima facie case, and I can make out no justification for this.
6. The 'Comparator Group' Concept
(a) Overview
Another concept that has been limping along consistently in lock-step with discrimination analysis since its onset is that of 'comparator' analysis. This concept emanates from the obvious fact that 'discrimination' is inherently a comparative concept: ie. if the government decided to throw everyone in jail there would be injustice, but no discrimination.
Since Code discrimination is structured by group identification, the instinct is to seek another group against whose rights and treatment those of the applicant's group can be contrasted.
How exactly this is done can have huge consequences for an allegation of discrimination, and a large part of many discrimination cases is spent by the parties jockeying for a favourable comparator structuring.
For example, in the Tranchemontagne v Director (ODSP) (Div Ct, 2009) case the appellant Crown alleged an error in setting the comparator group by the Social Benefits Tribunal:[para 107] The appellant submits that when the Tribunal conducted the Law contextual analysis, it made fatal errors in identifying the appropriate comparator group, errors that ultimately caused it to ignore the evidence of the Director's medical expert. The appellant suggests that the Tribunal failed to recognize that the distinguishing factor identified by s. 5(2) is whether addiction is the sole impairment. As a result, it focused on alleged differential treatment between those with addictions and those without, rather than those whose sole impairment is addiction and those who have other or additional impairments. Further, the Tribunal misinterpreted s. 5(2) as treating the respondents differently from other addicted persons on the basis of how they became addicted. Finally, the Tribunal erred in identifying as comparator groups two groups that were not required to meet the s.5(2) criteria: (1) those persons eligible for ODSP support who were "grandparented" from the previous legislation (the Family Benefits Act, ODSPA Regulation 222/98, s. 4 (1)[1.]), and (2) addicted persons eligible for ODSP benefits who were in receipt of a Canada Pension Plan disability pension. As the following discussion shows it may be a concept on the way out, at least in its manifestation as a formal discrimination analysis step. The need to compare the lot of rights-claimant with that of others will never go away.
(b) Comparators in Law
According to Iacobucci J in Law, the need to formulate a suitable 'comparator' class, whose situation may be contrasted with that of the rights-claimant, is an essential aspect of discrimination analysis. Logically this is a step preceding the application of the three-step 'test' set out in Law, though that is not made clear in the judgment.
I find it hard to isolate this 'comparator' class approach from the highly-criticized (and fascism-compatible, according to McIntyre J in Andrews) 'similarly-situated test' discussed above [see s.3(c)]. However it is quite suitable when one is comparing apples to apples where allegations of material inequality constitute the discrimination claim (the approach is a mainstay of Ontario's now mostly-spent Pay Equity legislation).
In any event, vast pregnant orchards do lie waiting for a good material anti-discrimination harvest, although Iacobucci J in Law is markedly light on detail on how the comparator classes are to be cast:[para 56] As discussed above, McIntyre J. emphasized in Andrews, supra, that the equality guarantee is a comparative concept. Ultimately, a court must identify differential treatment as compared to one or more other persons or groups. Locating the appropriate comparator is necessary in identifying differential treatment and the grounds of the distinction. Identifying the appropriate comparator will be relevant when considering many of the contextual factors in the discrimination analysis.
[para 57] To locate the appropriate comparator, we must consider a variety of factors, including the subject-matter of the legislation. The object of a s. 15(1) analysis is not to determine equality in the abstract; it is to determine whether the impugned legislation creates differential treatment between the claimant and others on the basis of enumerated or analogous grounds, which results in discrimination.
[para 58] When identifying the relevant comparator, the natural starting point is to consider the claimant's view. It is the claimant who generally chooses the person, group, or groups with whom he or she wishes to be compared for the purpose of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge. However, the claimant's characterization of the comparison may not always be sufficient. It may be that the differential treatment is not between the groups identified by the claimant, but rather between other groups. Clearly a court cannot, ex proprio motu, evaluate a ground of discrimination not pleaded by the parties and in relation to which no evidence has been adduced: see Symes, supra, at p. 762. However, within the scope of the ground or grounds pleaded, I would not close the door on the power of a court to refine the comparison presented by the claimant where warranted. So that's the way we do it, just let the parties agree on what the comparators are? Right, that's going to happen a lot. And how exactly does a court know when the comparator class selected is inappropriate? We would not know from these sparse statements.
(c) The End of the Comparator?
The court in Tranchemontagne v Director (ODSP) (Div Ct, 2009) was also faced, as part of the Crown appeal, with this issue:[para 107] The appellant submits that when the Tribunal conducted the Law contextual analysis, it made fatal errors in identifying the appropriate comparator group, errors that ultimately caused it to ignore the evidence of the Director's medical expert. The appellant suggests that the Tribunal failed to recognize that the distinguishing factor identified by s.5(2) is whether addiction is the sole impairment. As a result, it focused on alleged differential treatment between those with addictions and those without, rather than those whose sole impairment is addiction and those who have other or additional impairments. Further, the Tribunal misinterpreted s. 5(2) as treating the respondents differently from other addicted persons on the basis of how they became addicted. Finally, the Tribunal erred in identifying as comparator groups two groups that were not required to meet the s.5(2) criteria: (1) those persons eligible for ODSP support who were "grandparented" from the previous legislation (the Family Benefits Act, ODSPA Regulation 222/98, s. 4 (1)[1.]), and (2) addicted persons eligible for ODSP benefits who were in receipt of a Canada Pension Plan disability pension. On this issue Bellamy J commented:[para 108] Equality jurisprudence evinces a considerable history of approaching discrimination as a largely comparative concept. In Law, the Supreme Court identified comparative analysis as being an essential component of determining discrimination: "a court must identify differential treatment as compared to one or more other persons or groups." Later, in Hodge v. Canada (Minister of Human Resources and Development), [2004] 3 S.C.R. 357 at para. 18 the Supreme Court noted that "a misidentification of the proper comparator group at the outset can doom the outcome of the whole s.15(1) analysis. In fact, the seemingly straightforward selection of a comparator group has proven to be the Achilles' heel in a variety of recent cases ... "
[para 109] The Supreme Court has begun to move away from this strict position. In Kapp, at para. 22, the court acknowledged the criticism that has followed this formalistic approach:Criticism has also accrued for the way Law has allowed the formalism of some of the Court's post-Andrews jurisprudence to resurface in the form of an artificial comparator analysis focused on treating likes alike. [para 110] The court then listed a large number of authors who had written critically about the comparator analysis. The majority of the critiques were recent and flowed from subsequent interpretations of Law by lower courts.
[para 111] As noted above, in Ermineskin, supra, the Supreme Court had its first opportunity to address s. 15(1) since its decision in Kapp. How the court chose to resolve the issue of the "Achilles' heel" of comparator groups is instructive. The court rejected a rigid application of the comparator group analysis in favour of the contextual analysis it had articulated in Andrews. Rothstein J, writing for the court, at paras. 193-194, referenced Turpin, supra, which had been released contemporaneously with Andrews and which had emphasized the importance of addressing the broader context when determining whether or not a distinction leads to discrimination. Rothstein J. stressed the need to look beyond the legislation in question and to address "the broader context of a distinction in a substantive equality analysis" (at para. 194). In so doing, one should look at the larger social, political and legal context as delineated in Turpin.
[para 112] The court, it seems, has responded to the criticisms it hinted at in Kapp, including academic criticism about the judicial tool of a "comparator group" becoming a barrier as a result of its inflexible application. This tool had been used in discrimination analysis in a way that suggested that there might be only one appropriate comparator group, or that the entire case could stand or fall based on a single comparison. As is the case with respect to the dignity requirement in the third Law step, the Supreme Court is moving away from the requirement to identify a specific comparator group against which the discriminatory effect of impugned legislation is to be assessed. At the very least, it would appear the court is moving away from the necessity for a formalistic comparator-group analysis.
[para 113] The Supreme Court's analysis in Kapp and Ermineskin should not be taken as an indication that comparisons are irrelevant to equality inquiries. Indeed, the court did make a comparison in Ermineskin. What the court did not do, though, was conduct a strict comparator analysis as it had done previously on numerous occasions. It would seem from the court's most recent pronouncements on the issue that a discrimination claim does not turn on identification of a single correct comparator group. However, comparison may nonetheless be useful, for example in the initial stage of discrimination analysis, as evidence of the fact of distribution of benefits or burdens among different individuals or groups. Well, if comparator analysis it isn't dead, it's hurting.
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