D. The Supreme Court Speaks: Andrews v Law Society of British Columbia

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 337-340

Page 337

Andrews,¹⁸the first equality case to reach the Supreme Court of Canada, was of fundamental importance in charting the future direction of section 15 interpretation. A number of intervenors made submissions, including the Women’s Legal Education and Action Fund (LEAF) and the Coalition of Provincial Organizations of the Handicapped (COPOH). The case involved a challenge to the citizenship requirement for admission to the Law Society of British Columbia. The Court held, in a 4:2 decision, that this violated section 15 and was not justified under section 1 of the Charter.

Page 338

The most significant aspect of the case was the Court’s conceptualization of section 15. It soundly rejected exclusive reliance on formal equality and the similarly situated test, which the Court said "cannot be accepted as a fixed rule or formula for the resolution of equality questions arising under the Charter."¹⁹The Court emphasized that the purpose behind section 15 was to protect vulnerable groups from discrimination. In the Court’s view, this meant that section 15 could not be used to challenge every differential treatment created by a law. To succeed in a section 15 claim, a litigant would have to show (1) that there had been a denial of one of the four equality provisions in section 15 - equality before or under the law or equal benefit or protection of the law - and (2) that this differential treatment was discriminatory on the basis of a personal characteristic constituting an enumerated or analogous ground within section 15.

The Court also made it clear that there was a threshold requirement for invoking section 15: there must be discrimination on an enumerated or analogous ground. The enumerated grounds were described as "the most common and probably the most socially destructive and historically practised bases of discrimination."²⁰No attempt was made to define "analogous grounds" precisely at this point. Justice MCINTYRE noted that "[t]he enumerated grounds in s 15(1) are not exclusive and the limits, if any on grounds for discrimination which may be established in future cases await definition."²¹The insistence on enumerated or analogous grounds significantly restricted the reach of section 15 and closed the door on attempts to use the equality guarantee to review all legislative distinctions.²²The Court insisted, however, that the restriction of section 15 to discrimination on enumerated and analogous grounds was needed to ensure that...