C. The Scope of the Equality Guarantee

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 334-337

Page 334

While section 15 of the Charter was clearly a departure from section 1(b) of the Bill of Rights, its precise meaning was far from clear. The early cases had to confront questions about the scope of the guarantee, particularly the issue of who could claim its protection. As well, there was debate (which continues to the present) about the appropriate method of interpreting section 15 and its interrelation with section 1.⁹Section 15 contains a list of characteristics that should not be the basis for discriminatory treatment. This list incorporates the most common grounds for discrimination found in human rights codes: race, national or ethnic origin, sex, age, religion, and physical or mental disability.¹⁰These are commonly referred to as the "enumerated grounds" of discrimination. Although the original draft of section 15 treated the list of enumerated grounds as more limited in its coverage, the final wording that was adopted makes it clear (because it includes the words "in particular") that the list of prohibited grounds of discrimination is not exhaustive and that further grounds may be added by the courts. As a result, the Supreme Court has accepted that other "analogous grounds" can also form the basis of equality claims.

Page 335

Many early cases dealt with laws challenged on grounds not included in the "enumerated" grounds in section 15. These cases involved challenges to laws setting shorter limitation periods for suing municipalities, regulatory provisions of various kinds, including the ban on actions in tort for work-related accidents covered by workers’ compensation legislation, and regulations prohibiting the use of aluminum cans in order to protect the steel industry from competition. The courts were required to consider the purpose underlying section 15 to decide whether to allow these claims. Since all laws make distinctions between individuals and groups, it is almost always possible to say that a law discriminates in that it imposes burdens or confers benefits on some but not others. Was section 15 meant to give the courts a mandate to oversee the general rationality of the legislative process? Did it forbid different treatment of individuals unless there could be shown in a court of law to be a reasonable basis for doing so? Or did the words "without discrimination" signal a narrower purpose, namely, that the section was meant to address the adverse treatment of certain groups only on the basis of characteristics, such as those listed, which have led to prejudice, stereotype, and unjust disadvantage in many societies, including our own¹¹Initially, some lower courts...