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Human Rights - Charter s.15 Discrimination. Canada (Attorney General) v. Dominique
In Canada (Attorney General) v. Dominique (Fed CA, 2025) the Federal Court of Appeal dismissed a Crown appeal, here from a Federal Court ruling that "dismissed the Attorney General’s application for judicial review of a decision of the Canadian Human Rights Tribunal (the Tribunal)", that regarding "the funding of the operating costs for the self‑administered police service that the First Nation chose to establish in 1996 in connection with the First Nations Policing Policy (the Policy) implemented by the federal government ...".
Here the court notes the similarity between Charter s.15 and HRC discrimination doctrines, and (more usefully) further notes the contrasts that render cross-over use of Chater-HRC case law risky:[62] It is correct to say, as the Attorney General does, that the case law relating to section 15 of the Charter is relevant in human rights matters. In Canada (Attorney General) v. Canada Human Rights Commission, 2013 FCA 75 (CHRC FCA), this Court said that it "“informs the content of the equality jurisprudence under human rights legislation and ""vice versa""”" (CHRC FCA at para. 19). In this sense, the case law in these two areas is mutually influential.
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[64] What is important to remember in this regard is that, despite their obvious kinship, section 15 and human rights legislation do not use exactly the same legal tests in determining what is or is not discriminatory. As the Federal Court noted in CHRC FC, although this evolution did not take place in isolation, "“the analytical frameworks under section 15(1) of the Charter and under federal and provincial human rights statutes have evolved separately and have taken distinct forms”" (CHRC FC at para. 287).
[65] The differences between the two regimes were noted very early on by the Supreme Court in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 (Andrews). They are due in particular to the following:(a) Discrimination under subsection 15(1) of the Charter is limited to discrimination caused by the law, whereas discrimination under human rights legislation applies to conduct and behaviour, even private conduct and behaviour;
(b) The enumerated grounds of discrimination in subsection 15(1) of the Charter are neither exclusive nor exhaustive, unlike those set out in human rights legislation; and
(c) The exemptions or defences set out in human rights legislation, if established, "“generally have the effect of completely removing the conduct complained of from the reach of the "Act”, whereas infringements of a right guaranteed by section 15 of the Charter may be justified by the state under section 1 of the Charter. In other words, contrary to the way the Charter operates, acts of discrimination prohibited by human rights legislation—and the defences and exemptions that can be made against them—are "“absolute”"; there is therefore no "“middle ground”", contrary to what the Charter regime contemplates when the state successfully discharges its burden of proof under section 1.
(Andrews at 175-176.) [66] More fundamentally, this difference stems from the fact that the Charter and human rights legislation have distinct purposes: the Charter is a constitutional instrument, whereas human rights laws are not, even if they should be interpreted as almost constitutional in nature (Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 547 (Simpsons-Sears); Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 at para. 8 (Robichaud)). It has been said that these laws aim to identify discrimination, whether intentional or not, and eliminate it, and that in this way they are essentially remedial, in the sense that they are not aimed at punishing conduct but at providing relief for the victims as well as remedies that are "“effective, consistent with the ‘almost constitutional’ nature of the rights protected”" (Robichaud at para. 13; Simpsons‑Sears at 547).
[67] Finally, I note the warning of the Supreme Court majority in Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, an employment discrimination case that gave rise to a complaint under the Act. In this decision, the majority found that the Charter, absent a Charter challenge, "“cannot be used as an interpretative tool to defeat the purpose of the legislation or to give the legislation an effect Parliament clearly intended it not to have”" (Mossop at 582).
[68] What I take from that is that although the case law related to section 15 of the Charter and that related to human rights legislation might be mutually influential, section 15 case law cannot be indiscriminately applied to discrimination cases initiated under human rights legislation, i.e. without regard for the specific purpose and structure of these statutes. In particular, it is far from clear that the principles derived from the case law relating to section 15 of the Charter that the Attorney General raises here (absence of a positive obligation to eliminate social inequalities, incrementalism, and deference to choices made to this end), which mainly focus on the relationship between Parliament and the courts, can be transposed to this case, nor is, at the very least, the extent to which they can be. . A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services)
In A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services) (Ont Divisional Ct, 2025) the Divisional Court allowed a JR, here against an order that dismissed an HRTO claim involving an autistic child alleging age and disability discrimination.
This decision raises the interesting, and as far as I can tell novel, issue of a Charter challenge to an HRC provision - here a Charter s.15 'age' discrimination challenge to the OHRC's s.10 definition of 'age', the latter of which excludes people under 18 years of age but the former doesn't. The court is quite critical of the OHRT's treatment of the issue [paras 27-35], and remits to case back down for 'resolution'. The only doctrine I can glean from it is that courts may deem such cases unorthodox (reasoning that such cases could be brought as a Charter s.15 only, implicitly without prejudice: paras 22-23), but the venue decision was up to the claimant/s and that there was no absolute bar to such a proceeding (which I fully agree with, if only as a matter of tactical autonomy) - though in this case (a JR) it could be subject to JR discretion whether to proceed [JRPA s.2(1)] or grant a remedy [JRPA s.2(5)]:Discrimination based on Age
[14] A.H. challenged the declining caps in both the Childhood Budget and Core Clinical Services funding models of the Ontario Autism Program based on age. In the Childhood Budget approach, children over age six were entitled to less than children under age six who suffered comparable symptoms from their Autism Spectrum Disorder. The later Core Clinical Services model introduced funding cap decreases at ages four, ten, and fifteen without exception.
[15] In addition, as A.H.’s benefits were frozen from 2019 to 2023, A.H. claimed that existing but now frozen funding recipients were precluded from obtaining needed funding by reason of their ages.
[16] A.H. submitted that the decrease in funding caps based on age alone is impermissible age discrimination. A.H. submitted that in this particular case, A.H.’s need for funding increased with age due to comorbidities from which A.H. suffers. A.H. claimed that funding recipients should be able to apply for greater funding despite the caps applicable to children of their respective ages.
[17] At first blush it appears that A.H.’s claim for age discrimination is precluded by s. 10 of the Code.
[18] Section 10 of the Code defines “age” for the purposes of the statute as “18 years or more.” This precludes children who claim entitlement to funding from challenging the new funding programs for age discrimination under the Code. The is both because they are under 18 and because the distinctions made in funding cap levels are not included within the protected range of “age” under the Code.
[19] Where the Human Rights Code allows for claims by minors it says so expressly. For example, subsection 4 (2) of the Code provides that a contract for accommodation entered into by a 16- or 17-year-old person who has withdrawn from parental control is enforceable as if the person were 18 years old.
[20] There is no similar provision that would apply to allow A.H. to make the age discrimination claims advanced below. Therefore s. 10 of the Code appears to stand in the way of A.H.’s claim.
[21] As a result, A.H. challenged the constitutionality of s. 10 of the Code under s. 15 of the Charter of Rights. The Charter prohibits discrimination on the basis of age without the minimum age of 18 limitation contained in the Code. A.H. submitted that s. 10 is invalid under the Charter, so that A.H. and the other applicants should be entitled to challenge the funding programs under the age discrimination provisions of the Code without limitation by the minimum age in s. 10.
[22] This seems like a rather tortured path to traverse when A.H. and the other applicants remained free to challenge the government funding programs for age discrimination under s. 15 of the Charter itself. But it is an important principle in our civil justice system that litigants are entitled to choose the basis upon which they bring a legal proceeding provided that they state a justiciable claim in a court of competent jurisdiction.
[23] The corollary of a person’s right to make a claim that states a proper cause of action is that litigants who bring a proper claim to a court or tribunal are entitled to have a decision made on their claim. This applies with particular force to claims involving one’s rights under the Charter.
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