Formulaic Comparisons: Stopping the Charter at the Statutory Human Rights Gate

• Author: Andrea Wright
• Pages: 409-441

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Formulaic Comparisons:

      

 

Andrea Wright1

A. INTRODUCTION

is paper examines the emergence of another troubling trend in statu-

tory human rig hts jurisprudence: the increasing reliance on and misuse

of rigid comparative formulas. Statutory human rights tribunals and

reviewing courts are frequently neglecting or d isplacing the broad and

adaptable O’Malley test — the agship test for a prima facie case of dis-

crimination — in favour of restrictive comparator-group analyses, and re-

ductive tests that require comparative evidence in order to meet the prima

facie burden. A principal source of this trend is the ascendancy of compara-

tive formulas i n Charter jurisprudence. ese formulas cause claimants

to thread their discrimination experiences through templates that are ill-

tting and rig id, and that oen operate like forma l-equality analyses. e

result i s oen the de-contextualization of the complaint, and the denia l

of substantive equality. e O’Malley test does not require such formulaic

rigidity, and its application in statutory human rights jurisprudence should

be revitalized . Indeed, the O’Malley test , like many other governing prin-

ciples of statutory human rights jurisprudence, reects a conceptualization

of equa lity that focuses on the ourishing of every individual in all her

or his pa rticularity, not on formal istic comparisons of societal groups. Its

reinvigoration is therefore all the more imperative.

Specically, this paper rst reviews two methodologies increasingly be-

ing applied by statutory human rights tribunals: comparator-group anal-

     

yses, and the Shakes/Israeli test. It exa mines their eects, par ticularly in

contrast to the analysis that the neglected O’Malley test aords. It posits

that the comparator-group test requires ar ticial and precarious compari-

sons with “others,” which look and operate like formal-equality analyses,

lead to poor choices of “comparator groups,” and oen neglect the essential

question of the discrimination complaint — what position the claimant

would have been in were it not for the gravamen of the complaint. e pa-

per next examines the perils of the Shakes/Israeli test, which, while easing

a claimant’s burden in some ways, requires the claimant to adduce evidence

of the treatment or qual ications of others. is is evidence which is usu-

ally not within the complainant’s control, is oen imbued with the same

hidden discriminatory norms that are impugned in the rst place, and most

importantly, takes on conclusory status to the exclusion of the vast scope of

potential evidence that might otherwise e stablish a discrimination claim.

Fact patterns of discrimination are in nitely diverse, and there should be

as many avenues to establishing a prima facie case of discrimination as there

are manifestations of discrimination.

is paper posits that the roomy O’Malley test a llows for such plente-

ous consideration of discrimi nation complaints, in all their variety; while

the formulaic use of rigid comparative tests reduces a discrimination fact

pattern to a thread of itself, a thread which must be woven through narrow

comparative-formula templates if a complaint is to succeed. e result is of-

ten formalist analysis, the eacement of the gravamen of the complaint, the

de-contextualizing of a claimant’s experience, and the denial of substantive

equality. e continued application of these comparative formulas threat-

ens the gainful equa lity framework that the O’Malley test aords.

is paper therefore urges steadfast application of the O’Malley test in

statutory human rig hts cases, whatever the formula ic, comparative trends

in the Cha rter context. It questions the Charter proposition that equa lity

is necessari ly comparative, and hig hlights furt her aws of such a concep-

tualization, including the abstractionist, essential ist, and contradictory

premise that a historical ly-disadvantaged g roup can be tidily compared

to an identiable and historically-advantaged “other” group. It posits that

while comparisons with the conditions of others may be the long-estab-

lished convention of equality discourse, they should at most be probative

of an ideal condition, not conclusor y. It urges a conceptualization of equal-

ity a s the attainment of particularized idea ls, not comparative ones; and

discusses numerous statutory human rights principles and cases that apply

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individualized, unipolar considerations of a claimant’s circumstance, such

as Meio rin a nd Brooks. It concludes that as long as Charter jurisprudence

rigidly conceptualizes equal ity as comparative, and as long as statutory hu-

man rights jurisprudence plenteously conceptualizes equality as the attain-

ment of societal conditions that allow the ourishing of every individual in

all her or his pa rticularity, it is the latter framework that oers the g reater

potential for the achievement of substantive equa lity in Canada. e

O’Malley test, and other statutory human rig hts constructs, must there-

fore be reinvigorated, and the Charter’s increasing comparative formulism

should be stopped at the statutory human rights gate.

B. COMPARATIVE METHODOLOGIES IN STATUTORY HUMAN RIGHTS

JURISPRUDENCE: A SURVEY OF SOME PROMINENT AND/OR RECENT

EXAMPLES OF THEIR ERRONEOUS APPLICATION

Statutory human rights case s in the employment context can roughly be

categorized into three types of complaints: () complaints that allege that a

rule, standard, or practice in t he employment context was discriminatory,

or that the denial of a benet or service was discriminatory; () complaints

that a hiring, promotion, or dismissal decision was discrim inatory; and ()

complaints of harassment or other discriminatory conduct. e governing

test for whether a complaint of discrimination has been made out — the

O’Malley test — is broad and adaptable enough to be applied in all three

categories of cases. It states:

e complainant must rst establish a prima facie case of d iscrimina-

tion; that is, one that covers t he allegations made and which, if they are

believed, is complete and sucient to justify a verdict in the complainant’s

favour in the absence of an answer from the respondent. e burden then

shis to the respondent to provide a reasonable explanation for the oth-

erwise discriminatory rule/practice/conduct. If the respondent provides

such an expla nation, the complainant has the ev identiary burden of dem-

onstrating that the explanation provided was merely a pretext and that the

true motivation behind the employer’s actions was in fact discriminatory.

In its generalit y, the O’Malley test appropriately oers to complain-

ants, who would otherwise have a “herculean” task, t he chance to prove

a prima facie ca se of discri mination in a vital ly large number of ways:

through indi rect evidence, through “subtle scent(s),” throug h agg regated

pieces of evidence, through clumsy sums of evidence, through considera-