H. Important Aspects of the Test for Equality

AuthorRobert J. Sharpe - Kent Roach
ProfessionCourt of Appeal for Ontario - Faculty of Law, University of Toronto
Pages351-361

Page 351

1) Analogous Grounds

It has been accepted, at least since Andrews, that equality rights claims can be based not only on one of the nine particular grounds of discrimination listed in section 15(1) of the Charter but also on grounds of discrimination analogous to those listed. To date, the Supreme Court

Page 352

has accepted that marital status,66sexual orientation,67citizenship (or non-citizenship),68and off-reserve residence for Aboriginal people69constitute analogous grounds of discrimination that fall within section 15(1)’s ambit. On the other hand, marijuana users,70workers denied the right to sue their employers by workers’ compensation schemes,71 as well as RCMP officers and health-care workers who are treated differently from other employees for the purpose of labour relations, have been held not to constitute groups discriminated against on analogous grounds.72

Page 353

How is a court to determine whether or not a ground is similar enough to be included as analogous? The Supreme Court has usually identified unacceptable forms of discrimination as focusing on "personal characteristics," that is, characteristics that are somehow inherently part of an individual’s identity. Moreover, the Court seems to require such characteristics to be either "immutable" - in the way that, say, race or ethnic origin cannot be changed - or "constructively immutable." By constructive immutability, the Court is referring to a characteristic that "the government has no legitimate interest in expecting us to change to receive equal treatment under the law."73The Supreme Court engaged in its most comprehensive examination of analogous grounds in Corbiere v Canada.74The case involved a section 15 claim by Indian band members who were denied the right to vote in their band’s elections if they did not reside on their band’s reserve. The Court found that "Aboriginality residence" or the off-reserve status of band members was an analogous grounds of discrimination. The Court took a contextual approach and stressed that "the ordinary ‘residence’ decisions faced by the average Canadian should not be confused with the profound decisions Aboriginal band members make to live on or off their reserves, assuming choice is possible. The reality of their situation is unique and complex. Thus no new water is charted, in the sense of finding residence, in the generalized abstract, to be an analogous ground."75Discriminating on the basis of residence is an analogous ground of discrimination for Aboriginal people but not for non-Aboriginal people.

The majority’s discussion of how to identify analogous grounds was as follows:

What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s 15 - race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the

Page 354

thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.76The majority in Corbiere also stressed that analogous grounds, once identified and accepted by the courts, will always "serve as jurisprudential markers for suspect distinctions associated with stereotypical, discriminatory decision making"77This view differs from the approach of L’Heureux-Dubé J, who would have limited the finding of analogous grounds to the case at hand. In Corbiere the entire Court agreed that there was substantive discrimination because the denial of the vote to off-reserve band members was based on a stereotype that they were not interested in or affected by the decisions of their band.

2) Comparator Groups

Until recently, equality cases put considerable weight on comparator groups to establish discrimination contrary to section 15. In Hodge v Canada (Minister of Human Resources and Development), 78 Binnie J stated that while it was up to the claimant to make the initial choice of the comparator group, the correctness of that choice was a matter of the law for the court to decide on the following principle:

The appropriate comparator group is the one which mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter.79

Page 355

This principle creates a kind of "but for" test. The comparator group is the group entitled to the legal benefit that the claimant is deprived of and resembles the claimant’s group in all relevant respects, except that its members do not share the personal characteristic that is the basis for exclusion. The claimants belong to the group that would be entitled to the legal benefit being sought but for possessing the disqualifying personal characteristic; the comparator group gets the legal benefit because it does not share that disqualifying characteristic.

In Hodge, the claimant had been in a common law relationship with the deceased for twenty-two years, but left him because of alleged verbal and physical abuse. When he died five months later, she sought but was denied a survivor’s pension under the Canada Pension Plan because at the time of his death, she was no longer considered to be his "spouse." Had they been married but separated, she would have received the pension. Hodge argued that she belonged to the category of "separated common law spouses," whose treatment under the CPP was discriminatory compared to the treatment of "separated married spouses." Justice Binnie disagreed and found that the appropriate comparison was to formerly married spouses who had divorced their husband or wife. Both divorcées and common law spouses who no longer lived with their partners were former spouses, and neither was eligible for a CPP survivor’s pension. Therefore, while the claimant had identified the right group (separated spouses), she could not meaningfully compare her treatment under the CPP to that group, because she was a former (that is, not a separated) spouse. Hodge establishes that a court does not have to defer to the claimant’s choice of comparator group. As Binnie J put it, "the correctness of the choice is a matter of law for the court to determine."80Auton (Guardian ad litem of) v British Columbia (Attorney General)81 demonstrates the importance of this approach to comparator groups. The claimants were infants suffering from the developmental disorder autism. They claimed the provincial government discriminated against them by not funding a particular kind of behavioural therapy. They contended that they should be compared either to non-disabled Canadian children or adults with mental illness who received funding for medically necessary treatment, and this argument succeeded both in the British Columbia Supreme Court and the British Columbia Court of Appeal. Chief Justice MCLACHLIN, writing for the majority, rejected these comparators, however. The behavioural therapy that the petition-

Page 356

ers sought was only emerging, but the groups that they wanted to be compared to typically received funding only for therapies that were well established.82Chief Justice MCLACHLIN concluded:

[T]he appropriate comparator for the petitioners is a non-disabled person or a person suffering a disability other than a mental disability (here autism) seeking or receiving funding for a non-core therapy important for his or her present and future health, which is emergent and only recently becoming recognized as medically required.83Chief Justice MCLACHLIN found that the evidence did not show that...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT