Law v Canada (Minister of Employment and Immigration)

Law v Canada (Minister of Employment and Immigration)
Law v Canada (Minister of Employment and Immigration)
	Supreme Court of Canada
Hearing: January 20, 1998; December 3, 1998 ; Judgment: March 25, 1999
Full case name	Nancy Law v Minister of Human Resources Development
Citations	[1999] 1 SCR 497, 1999 CanLII 675, 170 DLR (4th) 1, 43 CCEL (2d) 49, 60 CRR (2d) 1
Docket No.	25374
Ruling	The Canada Pension Plan did not violate the equality right under section 15(1) of the Charter.
Court membership
	Chief Justice: Antonio Lamer ; Puisne Justices: Claire L'Heureux-Dubé, Charles Gonthier, Peter Cory, Beverley McLachlin, Frank Iacobucci, John C. Major, Michel Bastarache, Ian Binnie
Reasons given
Unanimous reasons by	Iacobucci J

Last updated June 04, 2023

Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 is a leading Supreme Court of Canada decision on section 15 of the Canadian Charter of Rights and Freedoms . The ruling is notable because the court created the Law test, a significant new tool that has since been used by Canadian courts for determining the validity of equality rights claims under section 15. However, the Law test has since been discredited by the Supreme Court.

Background

The case involved Nancy Law, a 30-year-old seeking survivor benefits under the Canada Pension Plan (CPP) which are limited only to people over age 35, disabled or with dependants at the time of the deceased's death. Otherwise, the survivor claimant is not entitled to benefits until he or she reaches age 65.

She appealed to the Pension Plan Review Tribunal on the basis the age requirement was in violation of her equality rights under section 15(1) of the Charter (which specifically names age as a grounds on which one has rights against discrimination). The tribunal held that the legislation did not violate Law's rights. The majority held that even if it did it would be justified under section 1 of the Charter. However, the dissenting opinion found that the age distinction was arbitrary and Parliament could have targeted those in need better. The Federal Court of Appeal upheld the tribunal's decision.

The question before the Supreme Court was "whether ss. 44(1)(d) and 58 of the Canada Pension Plan infringe s. 15(1) of the Charter on the ground that they discriminate on the basis of age against widows and widowers under the age of 35, and if so, whether this infringement is demonstrably justified in a free and democratic society under s. 1".

Prior to Law, there had been a sharp divide in the Court in the interpretation of the section 15 test established in Andrews v Law Society of British Columbia . The dispute culminated in this case where the test was reformulated to reflect both sides of the dispute.

Reasons of the court

The unanimous court, in a judgement written by Iacobucci J, held that the Canada Pension Plan did not violate section 15(1).

Iacobucci examines the past cases on section 15, noting the ongoing dispute between the justices. However, there remains a consensus on the purpose and approach, which he enumerates.

First, the approach must not be mechanical, rather it should be flexible, purposive and contextual. The steps in the test must function as a point of reference, not strict guidelines, and must allow for expansion and modification by cases in the future. The analysis must be remedy oriented in order to properly identify and solve situation of discrimination.

Second, the analysis generally should focus on three issues.

whether a law imposes differential treatment between the claimant and others, in purpose or effect;
whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and
whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

Analysis of the issues should establish whether the law causes differential treatment, and then whether the differential treatment constitutes discrimination. From this Iacobucci formulates a new test to establish a discrimination claim.

Test

The test must make three broad inquiries.^[1]

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

The entire analysis must focus on the purpose of section 15 which is:

to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

To successfully make a claim, it must be established that the law, in purpose or effect, conflicts with the purpose of section 15.

Contextual factors

On the third stage of analysis, Iaccobucci enumerates four factors that should be considered. Their purpose are to establish if the law demeans their dignity. This must be done from a hybrid, subjective/objective, point of view. Namely, "that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim".

The four factors are as follows:

Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of "discrete and insular minorities" should always be a central consideration. Although the claimant's association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.
The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. Although the mere fact that the impugned legislation takes into account the claimant's traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant's actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant's actual situation.
The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.
The nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1).

Commentary

This case in some respects contradicted the earlier section 15 case Andrews v Law Society of British Columbia, in which it was ruled that differential, detrimental treatment directly affecting an enumerated or analogous ground constituted a violation of section 15, and that any discussion about the law's purpose or reasonableness should then take place in the section 1 analysis. As constitutional legal scholar Peter Hogg has written, by examining whether the challenged law undermines dignity while still looking at section 15, and not yet section 1, Law moved much of the analysis of the law's purpose and reasonableness from the traditional section 1 test, and into section 15. This means that a person who claims his section 15 rights are violated must himself prove his dignity was undermined.^[2]

Reactions to Law have been varied, but responses for the most part have been negative. The decision provoked many criticisms by legal scholars centered around the third stage of the section 15 analysis: the elusive concept of human dignity. In an attempt to move towards an understanding of equality as substantive rather than formal, the Court in Law replaced its earlier focus on analogous grounds in Andrews with one focused around the idea of human dignity. This has been criticized on a variety of grounds: it is a vague and abstract term, lacks coherence, is subjective, conflates multiple concepts, is a circular argument that begs the question of equality and has been imbued with undue importance and centrality in equality claims.

The human dignity test has notably been criticized for being a vague, abstract, and general term. The concept of human dignity has been characterized as being fundamentally inimical to equality claims analyses and has been deemed "…too abstract and general to demarcate the specific province of section 15 or to assist in resolving equality litigation."^[3]^: 316 Similarly, criticisms have been levelled against the Court on the ground that the human dignity test is muddled and is not sufficiently coherent a concept so as to effectively address concerns of equality claimants. This confusion may be due to the circularity of the concept of human dignity as a factor to consider in equality claims. For example, the Court in Eldridge v British Columbia (AG) wrote that the purpose of section 15(1) was to express "a commitment … to the equal worth and human dignity of all persons".^[4] Human dignity cannot be both a factor in and a definition of equality. "Dignity requires respect, and respect is acknowledgment of human dignity."^[5]^: 92 Another scholar identifies the same problem, arguing that harm to dignity is itself a type of harm, so it cannot be a factor in determining whether there has indeed been harm.^[6]^: 671

Many criticisms levelled against the focus on human dignity point to inconsistencies in the Supreme Court's own definition of the term. Iacobucci J has variously characterized the term as referring to "personal autonomy and self-determination", "physical and psychological integrity and empowerment", as well as "self-respect and self-worth",^[7] indicating a conflation of different understandings of equality. One scholar notes that this confusion "[forms] a haphazard amalgamation and intermingling of dignity",^[8]^: 13 and that it is a disservice to our understanding of equality by failing to distinguish between human dignity and human interest.^[8]^: 17 Similarly, the Court has at times linked the concept of dignity with the imposition of disadvantage and prejudice while at other times linked it with the redress of discrimination.^[3]^: 318

Substantially, the human dignity test has been widely criticized on the grounds that it sets a dangerous precedent for section 15 equality claims because its vague nature does not lend itself well to consistent and comprehensible application by the Court in the future, and because it puts forth a conception of equality that is formal rather than substantive. One scholar writes that "[t]he Courts' muddled and inconsistent application of human dignity suggests that it should be excised from Charter discourse altogether".^[8]^: 25

In attempting to address these concerns and on the heels of the controversial Law decision, scholars proposed various alternatives to the human dignity test. It was widely accepted that the section 15 claims were inadequately addressed using the previous formulations following Andrews, yet the Court's decision in Law was seen as inadequately addressing these concerns. One writer argued the Court should replace the human dignity test with a "reformulated grounds approach focused on human vulnerability and concrete human interests"^[8]^: 2 that would be focused on individual and group vulnerability and which would take into account of a variety of factors, including the four enumerated contextual factors of the human dignity test.^[8]^: 2 Another proposed an increased focus on the concept of accommodation, as this should, in any case, be the central focus of any section 15 claim.^[3]^: 321 Yet another critic of the human dignity test proposed an understanding of human dignity reformulated as a concept of personal autonomy,^[5]^: 84 an approach more favourable to empirical analyses and thus more coherent, and which is substantiated in part by the Supreme Court's own definition of human dignity.^[7]^{: para 53}

Lastly, an analysis of case law reveals that the six section 15 claims to reach the Supreme Court immediately following the Law decision were all denied on the ground they did not fulfill the human dignity requirement.^[6]^{: 670–671} However, another analysis of section 15 claims reports that the success rate of claimants under Law was greater than the success rate under Andrews.^[9] One scholar has explained this phenomenon by suggesting Law did not create a new test of human dignity, but rather that the court crystallized a pre-existing yet implicit criterion into law.^[6]^: 654 That said, a disproportionately high number of section 15 claims under Law fail at this third stage of the test (63.6%).^[9]

Supreme Court response to criticisms of Law

In R v Kapp , the Supreme Court addressed these widespread criticisms of the human dignity test:

But as critics have pointed out, human dignity is an abstract and subjective notion that, even with the guidance of the four contextual factors, cannot only become confusing and difficult to apply; it has also proven to be an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be. Criticism has also accrued for the way Law has allowed formalism of some of the Court’s post-Andrews jurisprudence to resurface in the form of an artificial comparator analysis focussing on treating likes alike.^[10]^{: para 22}

While the Supreme Court noted these criticisms, it did not explicitly reject human dignity as a factor in equality claims. It noted the centrality of the concept but read down the Law decision by noting that the human dignity test should not be seen as a separate and straightforward criterion or test. Rather, the Court implied that the concept of human dignity should instead be considered generally as an important factor in deciding s. 15 equality claims^[10]^{: para 22} and that it should remain a central idea.

Moreover, despite many claims that Law furthered a formalistic understanding of equality at the expense of substantive equality, the Supreme Court in Kapp explicitly noted that the human dignity test and the Law decision in general confirmed "Andrews’ interpretation of s. 15 as a guarantee of substantive, and not just formal equality. Moreover, Law made an important contribution to our understanding of the conceptual underpinnings of substantive equality."^[10]^{: para 20}

Related Research Articles

Egan v Canada, [1995] 2 SCR 513 was one of a trilogy of equality rights cases published by a very divided Supreme Court of Canada in the spring of 1995. It stands today as a landmark Supreme Court case which established that sexual orientation constitutes a prohibited basis of discrimination under section 15 of the Canadian Charter of Rights and Freedoms.

Andrews v Law Society of British Columbia, [1989] 1 SCR 143 is the first Supreme Court of Canada case to deal with the equality rights provided under Section 15 of the Canadian Charter of Rights and Freedoms. British law graduate Mark David Andrews challenged the validity of Section 42 of the Barristers and Solicitors Act contending that the Canadian citizenship requirement for being called to the bar violated Section 15 of the Charter.

Section 1 of the Canadian Charter of Rights and Freedoms is the section that confirms that the rights listed in the Charter are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an individual's Charter rights. This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as child pornography, hate speech, and obscenity.

Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life, liberty and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.

Section 15 of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution of Canada, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs.

Gosselin v Quebec (AG) [2002] 4 SCR 429, 2002 SCC 84, is the first claim under section 7 of the Canadian Charter of Rights and Freedoms to a right to an adequate level of social assistance. The Supreme Court of Canada rejected the Charter challenge against a Quebec law excluding citizens under age 30 from receiving full social security benefits.

Canadian Foundation for Children, Youth and the Law v Canada (AG), [2004] 1 S.C.R. 76, 2004 SCC 4 – known also as the spanking case – is a leading Charter decision of the Supreme Court of Canada where the Court upheld section 43 of the Criminal Code that allowed for a defence of reasonable use of force by way of correction towards children as not in violation of section 7, section 12 or section 15(1) of the Charter.

Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustainable Development Goal 16, established in 2015, underscores the link between promoting human rights and sustaining peace.

Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference.

Lovelace v Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37, was the leading decision by the Supreme Court of Canada on section 15(2) of the Charter, which shields affirmative action programs from the equality requirement of section 15(1). The Court decided that distribution of casino profits to a select group of aboriginals is not discriminatory. The leading case on section 15(2) is now R. v. Kapp, 2008 SCC 41.

Canada (AG) v Lavell, [1974] S.C.R. 1349, was a landmark 5–4 Supreme Court of Canada decision holding that Section 12(1)(b) of the Indian Act did not violate the respondents' right to "equality before the law" under Section 1 (b) of the Canadian Bill of Rights. The two respondents, Lavell and Bédard, had alleged that the impugned section was discriminatory under the Canadian Bill of Rights by virtue of the fact that it deprived Indian women of their status for marrying a non-Indian, but not Indian men.

Trociuk v British Columbia (AG), 2003 SCC 34 is a leading Supreme Court of Canada decision on section 15(1) of the Canadian Charter of Rights and Freedoms where a father successfully challenged a provision in the British Columbia Vital Statistics Act which gave a mother complete control over the identity of the father on a child's birth certificate on the basis it violated his equality rights.

Miron v Trudel, [1995] 2 S.C.R. 418 is a famous Supreme Court of Canada decision on equality rights under section 15 of the Canadian Charter of Rights and Freedoms where the Court found "marital status" was an analogous ground for discrimination. The Court held that an insurance benefit provided only to married couples discriminated against common-law couples.

Hodge v Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357 was a decision by the Supreme Court of Canada regarding section 15 of the Canadian Charter of Rights and Freedoms. The Court found that in considering equality rights, comparator groups are needed to demonstrate that one has suffered differential treatment. Courts may reject the rights claimant's view as to what an appropriate comparator group would be.

Lavoie v Canada, [2002] 1 SCR 769, 2002 SCC 23 is a leading decision of the Supreme Court of Canada on whether preference on basis of citizenship infringed equality guarantee under section 15(1) of the Canadian Charter of Rights and Freedoms. The Court found that the federal Public Service Employment Act (PSEA), which gave preference to citizens when referring to departments, was discriminatory. The violation was saved under section 1 of the Charter as a reasonable limitation on equality rights.

R v Kapp, 2008 SCC 41 is a Supreme Court of Canada case dealing with an appeal from a British Columbia Court of Appeal decision that held that a communal fishing license granted exclusively to Aboriginals did not violate section 15 of the Canadian Charter of Rights and Freedoms. The Supreme Court dismissed the appeal on the basis a distinction based on an enumerated or analogous ground in a government program will not constitute discrimination under section 15 if, under section 15(2): (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. In other words, the Court found that the prima facie discrimination was allowed because it was aimed at improving the situation of a disadvantaged group as allowed by section 15(2) of the Charter.

The "comparator group" is an element that has been used in Canadian jurisprudence to analyze statutory human rights complaints and claims pursuant to section 15 of the Canadian Charter of Rights and Freedoms. Section 15 guarantees equality rights and the right to be free from discrimination on certain enumerated grounds.

Refugee health care is the provision of health services to refugees and refugee claimants. As early as 2009, health researchers identified particular medical needs and health vulnerabilities amongst these populations. Compared to other immigrants, they report more physical, emotional, and dental problems and, compared to those born in Canada, they have higher rates of infections and chronic diseases that are both treatable and preventable.

Substantive equality is a fundamental aspect of human rights law that is concerned with equitable outcomes and equal opportunities for disadvantaged and marginalized people and groups in society. Scholars define substantive equality as an output or outcome of the policies, procedures, and practices used by nation states and private actors in addressing and preventing systemic discrimination.

Orozco v Attorney General (2016) 90 WIR 161, also known as Orozco v AG, the Orozco case, or the UNIBAM case, was a landmark case heard by the Supreme Court of Belize, which held that a long-standing buggery statute breached constitutional rights to dignity, equality before the law, freedom of expression, privacy, and non-discrimination on grounds of sex, and which declared the statute null and void to the applicable extent. The decision decriminalised consensual same-sex intercourse for the first time in 127 years, and established that the constitutional right to non-discrimination on grounds of sex extended to sexual orientation.

References

↑ See para. 88
↑ Hogg, Peter W. (2003). Constitutional law of Canada (Student ed.). Carswell. pp. 1082–1083. ISBN 978-0-459-24085-1.
1 2 3 Greschner, Donna (2002). "The Purpose of Canadian Equality Rights". Review of Constitutional Studies. 6 (2): 291-323. ISSN 1192-8034.
↑ Eldridge v British Columbia (AG), [1997] 3 SCR 624.
1 2 Agarwal, Rahool Parkash (2006). "An Autonomy-Based Approach to Section 15(1) of the Charter" (PDF). Review of Constitutional Studies. 12 (1): 83–117. ISSN 1192-8034.
1 2 3 Réaume, Denise G. (2003). "Discrimination and Dignity". Louisiana Law Review. 63 (3): 645–695. ISSN 0024-6859.
1 2 Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497.
1 2 3 4 5 Fyfe, R. James (2007). "Dignity as Theory: Competing Conceptions of Human Dignity at the Supreme Court of Canada". Saskatchewan Law Review. 70 (1): 1–26. ISSN 0036-4916.
1 2 Ryder, Bruce; Faria, Cidalia; Lawrence, Emily (2004). "What's Law Good For?: An Empirical Overview of Charter Equality Rights Decisions". The Supreme Court Law Review: Osgoode's Annual Constitutional Cases Conference. 24 (1): 10.
1 2 3 R v Kapp, [2008] 2 SCR 483.

External links

Full text of Supreme Court of Canada decision at LexUM and CanLII

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.

[1] See para. 88

[2] Hogg, Peter W. (2003). Constitutional law of Canada (Student ed.). Carswell. pp. 1082–1083. ISBN 978-0-459-24085-1.

[Greschner-3] 1 2 3 Greschner, Donna (2002). "The Purpose of Canadian Equality Rights". Review of Constitutional Studies. 6 (2): 291-323. ISSN 1192-8034.

[4] Eldridge v British Columbia (AG), [1997] 3 SCR 624.

[Agarwal-5] 1 2 Agarwal, Rahool Parkash (2006). "An Autonomy-Based Approach to Section 15(1) of the Charter" (PDF). Review of Constitutional Studies. 12 (1): 83–117. ISSN 1192-8034.

[Réaume-6] 1 2 3 Réaume, Denise G. (2003). "Discrimination and Dignity". Louisiana Law Review. 63 (3): 645–695. ISSN 0024-6859.

[Law-7] 1 2 Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497.

[Fyfe-8] 1 2 3 4 5 Fyfe, R. James (2007). "Dignity as Theory: Competing Conceptions of Human Dignity at the Supreme Court of Canada". Saskatchewan Law Review. 70 (1): 1–26. ISSN 0036-4916.

[Ryder-9] 1 2 Ryder, Bruce; Faria, Cidalia; Lawrence, Emily (2004). "What's Law Good For?: An Empirical Overview of Charter Equality Rights Decisions". The Supreme Court Law Review: Osgoode's Annual Constitutional Cases Conference. 24 (1): 10.

[Kapp-10] 1 2 3 R v Kapp, [2008] 2 SCR 483.

[1]

[2]

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]