|
Human Rights (Ont) - Discrimination - Constructive. Ontario (Minister of Children, Community and Social Services) v. D.I
In Ontario (Minister of Children, Community and Social Services) v. D.I (Ont Divisional Ct, 2025) the Divisional Court allowed a Crown-initiated JR, here from HRTO findings that the respondent "had a prima facie case for discrimination" and "the discrimination could not be saved under s. 14 [SS: 'Special programs'] of the Code".
Here the court considers HRC s.11 ['Constructive discrimination']:[109] As a defence raised following a finding of prima facie discrimination, Ontario bore the burden of establishing the defence: Haseeb, at paras. 53-54; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 at para. 20 [“Grismer”]. Specifically, s. 11 of the Code codifies the bona fide justification test that was set out by the Supreme Court in Grismer. Under this test, a responding party can only justify an otherwise discriminatory standard – such as a discriminatory benefits program design – by showing that 1) the discriminatory standard was adopted for a goal that is rationally connected to the function being performed; 2) the standard was adopted in good faith, in the belief that it was necessary for the fulfillment of the goal; and 3) the standard was in fact necessary to accomplish the goal, including a requirement to show proof that the responding party could not accommodate persons with the characteristics of the claimant without incurring undue hardship: Grismer, at paras. 20-22, 25, 30- 31; NJ, at para. 23; Al-Turki, at para. 107; JL, at paras. 100-104. . Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke
In Ontario (Minister of Children, Community and Social Services) v. Robinson-Cooke (Div Court, 2024) the Divisional Court dismissed a Crown JR respecting a claimant-successful (and unusual) ODSP 'guide dog benefit' (GDB) HRTO 'disability' decision.
Here the court considers constructive discrimination:[9] .... Section 11 of the Code is the statutory prohibition against constructive discrimination where an apparently neutral rule has an adverse impact/effect on an individual because of a protected ground of discrimination. Section 11 of the Code provides as follows:11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
|
