Comparator groups analysis in Canadian equality law

Last updated

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.

Contents

The analysis requires the claimant to prove that she or he has been discriminated against in comparison to another group identified by the claimant or by the Court. The appropriate comparator group was described by the Supreme Court of Canada as a group with whom "the claimant shares the characteristics relevant to qualification for the benefit or burden in question, except for the personal characteristic that is said to be the ground of wrongful discrimination." [1]

Background and origins

The 1989 case Andrews v. Law Society of British Columbia [2] was the first Supreme Court of Canada judgment to articulate the framework for analysis of Charter equality claims. The Court formulated a test requiring that the claimant prove that differential treatment on a ground enumerated in section 15 or on an "analogous" ground had occurred and the treatment had caused harm or stereotyping. [2] :par. 178-183 The Court described equality as a comparative concept, stating that the condition of discrimination "may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises." [2] :par. 164

Ten years later, the Supreme Court expanded on the section 15 equality analysis in Law v. Canada (Minister of Employment and Immigration) , [3] stating that identification of a comparator group was necessary to determine whether the claimant had experienced discrimination. [3] :para 24 The Court is not bound by the group chosen by the claimant but can redefine the group based on "biological, historical, and sociological similarities or dissimilarities" between the claimant and others. [3] :par. 56-58

The Supreme Court maintained in later cases that the identification of a comparator group was crucial to being able to assess the differential treatment claimed by the claimant. [4] In Hodge v. Canada (Minister of Human Resources Development) in 2004, the Supreme Court reiterated that comparator groups were not a "threshold issue" and that the entire Law test was to be applied on the basis of comparing the claimant and his or her treatment to other groups. [1] :para 17 In R. v. Kapp [5] in 2008, however, the Court recognized that the comparator group analysis could resurface in the shape of a formal analysis "focussed on treating likes alike." [5] :para 22 This decision marked the beginning of a shift of the Supreme Court away from the comparator group analysis.

Recent developments and applications

The requirement to identify a comparator group is no longer necessary when making a discrimination complaint under section 15 of the Charter or section 5(b) of the Canadian Human Rights Act (CHRA), [6] though it may still be employed as tool to show discrimination.

In 2007, the First Nation Child and Family Caring Society [7] (FNCFCS) brought a complaint against the Federal Government of Canada for racial discrimination in the provision of child welfare services pursuant to section 15 of the Charter and section 5(b) of the CHRA. [8] The complaint was heard in front of the Canadian Human Rights Tribunal, which ruled that there was no comparator group available to differentiate the welfare services on-reserve First Nations children received. Therefore, discrimination could not be proven. The FNCFCS then appealed to the Federal Court.

The 2011 Supreme Court case of Withler v. Attorney General (Canada) [9] was a section 15 Charter class action against federal legislation for alleged age discrimination. Though the Court ruled against the claimants, it laid to rest the idea that a comparator group was necessary to make a discrimination complaint. It said "[i]n summary, a mirror comparator group analysis may fail to capture substantive inequality, may become a search for sameness, may shortcut the second stage of the substantive equality analysis, and may be difficult to apply. In all these ways, such an approach may fail to identify — and, indeed, thwart the identification of — the discrimination at which s. 15 is aimed." [9] :para 60

As Withler was decided only ten days before the FNCFCS Tribunal ruling, the Tribunal did not consider it when it made its decision. However, the 2012 Federal Court appeal relied heavily on Withler. The Court clarified that requiring a comparator group was not only inconsistent with leading jurisprudence, legislation and international commitments, but also affirmed that it "may even thwart the objective of substantive equality – the animating purpose of both section 15 of the Charter and the Canadian Human Rights Act." [8] :para 362

Criticism

Formal and substantive equality

A number of scholars and organizations have criticized the comparator group analysis as favouring a formal approach to equality rather than a substantive one. [10] [11] A substantive equality approach recognizes, as the Court did in Andrews, that discrimination can be prevented or remedied by differential treatment according to the specific needs of the person or group targeted. Formal equality, by contrast, analyzes whether the law in question treats the individual rationally according to his or her characteristics, without taking account of that individual's disadvantage or whether the treatment would perpetuate that disadvantage. [12] :106 The danger of the formal equality analysis is that it "can readily...forgive state policies that impose subordinating differential treatment on disadvantaged groups so long as those policies have a rational basis." [12] :127 By asking claimants to identify the relevant comparator group, analyses can then fall into an assessment of whether the claimant has been or simply should be treated "the same" as the group in question without regard to his or her disadvantage.

Non-comparative types of discrimination

Some forms of discrimination, such as stereotyping, may not lend themselves to an analysis by comparison with other groups. [13] :81 For example, a deaf person who prefers to communicate using speech and lip-reading could be discriminated against by a government policy providing only sign-language interpretation, and no closed-captioning, during parliamentary debates. The claimant in this case is not claiming that she be treated like others based on assumptions that she is like other deaf people, but that she be treated on the basis of the personal characteristics. [13] :89 In this case, comparing her treatment to that of deaf people who communicate using sign-language would not resolve the discrimination, because the government could respond by taking away any interpretation for the hearing-impaired during parliamentary debates and thus treating all deaf people the same. [13] :90

Problems in choice of comparator group

Claimants or courts may have difficulty choosing the right comparator group. For example, to assess whether a government's act had consequences in terms of equality of treatment, the claimant would need to be situated in a group that would then be compared to another group that is being treated differently. For example, in the case of Vriend v. Alberta , [14] the claim was that the exclusion of 'sexual orientation' as a prohibited ground of discrimination in the Alberta Individual Rights Protection Act amounted to discrimination. To understand if this omission treated homosexuals differently from other vulnerable groups, they would need to be compared to just such groups. However, if the claim is that the failure to include homosexuals perpetuated oppression against them, then the relevant comparator group might be dominant social groups that oppress homosexuals. [13] :27

Comparator groups and disabilities

The Supreme Court has acknowledged that requiring a comparator group for discrimination claims based on disability is problematic. [8] :par. 292–293 Comparator groups for those with disabilities have either been drawn from those with no disabilities or those with different disabilities. [15] Either scenario can impede access to substantive justice. In Moore v. British Columbia (Education), [15] a complaint was brought on behalf of Jeffrey, a dyslexic child, for discrimination in education. At issue was whether Moore should be compared to the general population, to other students with disabilities or whether the comparator group analysis was "both unnecessary and inappropriate." [15] :para 25 The Supreme Court reasoned that comparing Moore to the general student population was inappropriate on the grounds that he needed special programs, while other students did not. [15] :para 22 The Court also rationalized that comparing a dyslexic student to other special needs students would allow the province to discriminate equally against all students with disabilities and still be immune from discrimination complaints. [15] :para 30 The Court decided against using a comparator group analysis.

Comparator groups and First Nations

Jurisprudence suggests that because of Aboriginal peoples' unique place in Canadian society, finding an appropriate comparator group is problematic. [8] :par. 335–337 Services that are normally provided through provincial jurisdiction are provided to First Nations peoples by the federal government, which owes a fiduciary duty to them. No other group receives the same treatment, meaning that comparator groups would be difficult to identify and could possibly bar First Nations people from making discrimination complaints on the basis of race in the provision of services. [8] :par. 339 Regardless of the difficulties, the Federal Court has named a possible comparator group for on-reserve Aboriginal children, when comparing the quality of welfare services. The Federal Government has enacted various legislation that mandates all welfare services provided to on-reserve First Nations children be of the same standards as those offered by the reference province. [8] :par. 374–377 Accordingly, children who receive off-reserve welfare services would be the comparator group. How this will affect the FNCFCS complaint is yet to be determined.

Related Research Articles

<i>Egan v Canada</i> Supreme Court of Canada case

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 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.

British Columbia v British Columbia Government Service Employees' Union [1999] 3 SCR 3, 1999 SCC 48 – called Meiorin for short – is a Supreme Court of Canada case that created a unified test to determine if a violation of human rights legislation can be justified as a bona fide occupational requirement (BFOR).

Section 2 of the Canadian Charter of Rights and Freedoms ("Charter") is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association.

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.

<span class="mw-page-title-main">Freedom of religion in Canada</span> Overview of religious freedom in Canada

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

<i>Auton (Guardian ad litem of) v British Columbia (AG)</i> Supreme Court of Canada case

Auton v British Columbia (AG), [2004] 3 S.C.R. 657, 2004 SCC 78 is a leading decision of the Supreme Court of Canada wherein the Court ruled that government funding for non-core medically necessary treatments is not protected under section 15(1) of the Canadian Charter of Rights and Freedoms.

Section 6 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice of entering and exiting Canada, and moving within its boundaries. The section is subject to the section 1 Oakes test, but cannot be nullified by the notwithstanding clause.

Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.

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.

<i>Hodge v Canada (Minister of Human Resources Development)</i> Supreme Court of Canada case

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.

<span class="mw-page-title-main">Canadian administrative law</span> Law governing the government agencies of Canada

Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies in Canada. That is, the law concerns the manner in which courts can review the decisions of administrative decision makers such as a board, tribunal, commission, agency, or Crown minister, while exercising ministerial discretion.

<span class="mw-page-title-main">Human rights in Canada</span>

Human rights in Canada have come under increasing public attention and legal protection since World War II. Prior to that time, there were few legal protections for human rights. The protections which did exist focused on specific issues, rather than taking a general approach to human rights.

<i>R v Kapp</i> Canadian Supreme Court decision

R v Kapp, 2008 SCC 41 is a Supreme Court of Canada 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 case stemmed from an appeal by John Michael Kapp and a group of non-aboriginal commercial fishers who staged a "protest" fishery with the intention of being charged by law enforcement and challenging the constitutional status of an exclusive Aboriginal commercial fishing license.

Lewisham LBC v Malcolm[2008] UKHL 43 was a case concerning disability discrimination and the application of equality legislation in the United Kingdom, relevant for UK labour law. It replaced the head of disability-related discrimination from the DDA 1995 with the Equality Act 2010 section 15 on discrimination arising from disability.

<span class="mw-page-title-main">Refugee health care in Canada</span>

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.

Honda Canada Inc v Keays, 2008 SCC 39, [2008] 2 SCR 362 is a leading case of the Supreme Court of Canada that has had significant impact in Canadian employment law, in that it reformed the manner in which damages are to be awarded in cases of wrongful dismissal and it declared that such awards were not affected by the type of position an employee may have had.

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.

References

  1. 1 2 Hodge v Canada (Minister of Human Resources Development) , 2004 SCC 65 , [2004] 3 SCR 357, Supreme Court (Canada)
  2. 1 2 3 Andrews v Law Society of British Columbia , 1989 CanLII 2 , [1989] 1 SCR 143, Supreme Court (Canada)
  3. 1 2 3 Law v. Canada (Minister of Employment and Immigration) , 1999 SCC 675 , [1999] 1 SCR 497, Supreme Court (Canada)
  4. Granovsky v Canada (Minister of Employment and Immigration), 2000 SCC 28; Lovelace v Ontario, 2000 SCC 37
  5. 1 2 R v Kapp , 2008 SCC 41 , [2008] 2 SCR 483, Supreme Court (Canada)
  6. "Canadian Human Rights Act". Laws-lois.justice.gc.ca. Archived from the original on 2015-02-26. Retrieved 2015-02-27.
  7. "home | FNCFCS". First Nation Child and Family Caring Society. Archived from the original on 2015-02-27. Retrieved 2015-02-27.
  8. 1 2 3 4 5 6 First Nations Child and Family Caring Society v. Attorney General of Canada, 2012 FC 445.
  9. 1 2 Withler v. Attorney General (Canada) , 2011 SCC 12 , [2011] 1 SCR 396, Supreme Court (Canada)
  10. Fiona Sampson (2004). "LEAF and the Law Test for Discrimination: An Analysis of the Injury of Law and How to Repair It" (PDF). Women's Legal Education and Action Fund. Retrieved 2015-02-27.[ permanent dead link ]
  11. Donna Greschner, "Does Law Advance the Cause of Equality?" (2001) 27 Queen's L.J. 299 at 301; Diana Majury, "The Charter, Equality Rights, and Women: Equivocation and Celebration" (2002) 40 Osgoode Hall L.J. 297, at 306
  12. 1 2 Bruce Ryder, Cidalia C. Faria and Emily Lawrence, "What's Law Good For? An Empirical Overview of Charter Equality Rights Decisions" (2004) 24 S.C.L.R. (2d) 103.
  13. 1 2 3 4 Sophia R. Moreau, "Equality Rights and the Relevance of Comparator Groups" (2006) 5 J.L. & Equal.
  14. Vriend v Alberta , 1998 CanLII 816 , [1998] 1 SCR 493, Supreme Court (Canada)
  15. 1 2 3 4 5 Moore v. British Columbia (Education) , 2012 SCC 61 , [2012] 3 SCR 360, Supreme Court (Canada)