Week 10 - Equality Rights (Women)

What does s. 15(1) provide? What is the difference between an enumerated and an analogous ground of discrimination?

• s15(1) lists the grounds you cannot discriminate against

• Enumerated: grounds already specifically listed in s15(1)

  • SCC said this list is not exhaustive, in particular would suggest that list follows

•  Analogous: may be other grounds akin to grounds already listed in s15(1), said it will recognize and open to finding new analogous grounds under s15(1)

  • Not common for this to happen, last time was 1999

• How would the court define equality? What it should mean/what we should to do achieve it - people disagree on forms of this

  • Engages normative questions, leaves SCC to make tough decisions

What is formal equality? What consequences flow where s. 15(1) is applied according to the principles of formal equality?

• One conception of formal equality is formal equality - every individual awarded same scheme of rights and entitlements, everyone gets the same packages

  • Supports uniform application of s15 - idea that social group differences are irrelevant to s15(1), it should be available to minority and majority groups on equal terms

  • A white person should be able to claim race based discrimination, men should be able to claim sex inequality, etc.

• Consequences of uniform approach to s15(1): if you apply s15 uniformly, it can exacerbate preexisting inequalities and make it worse for disadvantaged groups

• Early years of s15 (first 3 years): 591 equality rights cases covering all court levels, of those 44 were sex discrimination cases, and only 9 were made by/made on behalf of women

  • Only 17 were brought by historically disadvantaged groups (all of s15)

  • Clear inequalities, dominant groups bringing many more challenges than minority groups

What approach has the Supreme Court of Canada taken to defining equality? What must a claimant prove to establish a s. 15(1) rights violation?

• Substantive equality approach under s15: first stated that in first seminal s15 cases 1989 SCC

  • Rejection of idea that treating everyone equally = treating everyone identically

  • We must treat people based on historical and social context of group, not every distinction in law results in inequality for the purposes of s15

    • Doesn’t necessarily make law discriminatory, depends on the consequences that the distinction of law generates

    • Whether that amounts to discrimination - does it cause disadvantage, stereotyping, prejudice? If yes, then we have discrimination for the purposes of s15

• Andrews 1989: test changed many times under SCC, then 2008 went back to Andrews

• Substantive approach fights back against inequality, favours a finding that s15(1) has been infringed (doesn’t mean that a minority group will always win, but helps them)

What is adverse impact or adverse effect discrimination?

• A law is discriminatory on its face if it creates a distinction based on an enumerated or analogous ground; in Phillips, the law drew a distinction based on sex, constituting direct discrimination.

• A question arises where a law does not explicitly mention race, sex, or another protected ground but still creates a distinction in practice.

• Such laws may affect people differently, producing a disproportionate impact on minority or disadvantaged groups (for example, a rule requiring hats in court disproportionately affects women who wear a hijab for religious reasons).

• These laws can be challenged under section 15 as adverse impact (or indirect) discrimination.

• It does not matter that the law’s language is neutral, that it does not explicitly reference a protected ground, or that lawmakers did not intend discrimination; the effects of the law are what matter.

• Adverse impact discrimination claims are rare, with only a small number of successful cases reaching the Supreme Court of Canada, and they have become even harder to succeed after R v. Sharma (2022).

What problems arise with grounds-based approaches when it comes to protecting equality rights?

• Grounds-based approach: requires claimants to fit discrimination under a ground of discrimination (enumerated or analogous) of s15, make arguments of how a disadvantaged group is negatively affected by the law

• Problematic because identity categories are complex, hard to make broad general claims about any groups (intersectionality)

  • Ex. discrimination of women as a group - denying that a category is divided by other categories (indigeneity, disability, etc.)

  • No one experience that women experience, discrimination will vary in relation to their positioning of other identity markers

  • Intersectionality creates unique forms of discrimination that only some members of a broad group experience

    • Ex. Black women who were slaves experienced a hyper form of sex and race based discrimination that white women did not face

  • Ground based claims struggle because claimants who experience intersectional discrimination cannot create a grounds based claim for all women, because not all women are facing that form of oppression (See DeGraffenreid v GM)

  • Doesn't mean all hope is lost: see Law V Canada

    • However has not embraced intersectional claims

DeFraffenreid v. General Motors (Intersectionality)

• American case

• Brought in pursuit of title 7 of Civil Rights Act, employers cannot discriminate based on race, sex, etc. (grounds based approach)

• Took a seniority based layoff, all employees hired after 1970 got fired - result was every black female employee was laid off

  • CRA was passed in 1964, prior to that GM had not hired any black women, by 1970 there was only one black woman working as a janitor

• 5 black women laid off claimants, argued this layoff perpetuated past discrimination that CRA tried to remedy, layoff discriminated them based on the fact that they were black women experiencing sex and racial discrimination (intersectional discrimination claim)

  • Did not win, district court said that they didn't see any discrimination, since not all black people were not discriminated then it didn’t count (you can only bring a claim based on entire group)

    • Sex: GM hired white women prior to 1964

    • Race: GM hired black men prior to 1964

  • Court refused to accept that you can have a form of discrimination based on intersectional grounds - they would have won if all the white women and all the black men also experienced that form of discrimination

• Denies reality that groups are divided on these other identity markers

Law v. Canada (1999) (SCC)

• SCC said claimant can bring forth an intersectional claim under s15 using more than one ground, or a combination of grounds

• Claims coming forward can be treated as a new analogous ground, or a synthesis of grounds already recognized under s15

• However, SCC has never seen a case based on an intersectional claim, has not embraced intersectional argumentation

  • In theory you can win, but they have not seen a case as such

What has the Supreme Court of Canada’s record on s. 15 looked like? Why do McGill and Gilbert argue that s. 15 has gone into a state of dormancy?

• Success rate for all s15 claims was 27.9% (Ryder study), M and G tell us that following the years of Ryder study that the success rate went lower - 2005-18 dropped to 9.5%

  • M and G: Success rate so low that s15 has gone into a state of dormancy

  • Many claimants have abandoned the idea of bringing such an idea to court because they think they won’t win, they will use other charter sections to succeed

  • SCC also avoiding to take up s15 analyses, they are always deciding to take up other charter ground instead of s15 (if other section cases are present)

    • Why?: M and G say court doesn’t want to deal with s15 because of the backlash they have received due to notable decisions they have made, and the low win rate in relation to other cases

Egan v. Canada (1995) (SCC)

• 1st way of positive obligation

• Amending s 15 to include s*xual orientation, where claimants can bring up situations that are covered under this section

• Right: Case of court exceeding authority - creating a new right is antidemocratic because it is not representative of the public, the courts made this decision

  • Violates democracy and interpretivism

• S15 of charter has list of prohibited lines of discrimination, but doesn’t have sexual orientation

• To remedy exclusion, SCC read sexual orientation into S15

• Created a new right, a form of positive activism (changing texts created by officials)

Corbiere v. Canada (Minister of Indian and Northern Affairs (1999) (SCC)

• Last time SCC recognized a new analogous ground, indigenous person living off reserve

Immutability/Immutable Characteristics

• Personal characteristic either very difficult to change, cannot be changed, or a character trait that it would be unreasonable to ask a person to change to avoid discrimination (ex. religion)

• Only immutable characteristics apply to s15(1)

Phillips (1986) (Nova Scotia Appeal Division)

• Challenge to NS Family Benefits Act - provided benefits to single moms but not single dads, unless single father was disabled

• Male applicant in this case was an able bodied male, he said that he wanted this benefits extended to him or for the act to be struck down

• NS Court of Appeal struck down act to remedy Phillips inequality

Andrews v. Law Society of British Columbia (1989) (SCC)

• Substantive equality approach under s15: first stated that in first seminal s15 cases 1989 SCC

• Rejection of idea that treating everyone equally = treating everyone identically

• We must treat people based on historical and social context of group, not every distinction in law results in inequality for the purposes of s15

  • Doesn’t necessarily make law discriminatory, depends on the consequences that the distinction of law generates

  • Whether that amounts to discrimination - does it cause disadvantage, stereotyping, prejudice? If yes, then we have discrimination for the purposes of s15

• SCC said they were going back to Andrews Test, after trying other formulations and it not going well

R v. Kapp (2008) (SCC) and Andrews-Kapp Test

• SCC said they were going back to Andrews Test, after trying other formulations and it not going well

Andrews-Kapp Test - Direct Discrimination

1. Does the law on its face create a distinction based on an enumerated or analogous ground?

   1. Court will ask: In the text of the law, is a distinction created and is it an enumerated or analogous ground

   2. Claimant must fit claimant under a ground of discrimination, or convince court to create a new ground (difficult to do)

2. Does the distinction in the law impose a burden or deny a benefit in a way that reinforces, perpetuates or exacerbates the claimant’s disadvantage?

   1. Does it create stereotyping, prejudice, disadvantage?

   2. Court contextualizes claim by considering who is being discriminated against, and is this claim being brought by a historically disadvantaged group

   3. Purpose for s15 is to prevent further prejudice for historically disadvantaged groups - avoid outcome like in Phillips (winning a claim at the expense of a historically disadvantaged group - single mothers)

Andrews-Kapp Test - Adverse-Impact Discrimination

1. Does the law in its effect create a distinction based on an enumerated or analogous ground?

2. Does the distinction in the law impose a burden or deny a benefit in a way that reinforces, perpetuates or exacerbates the claimant’s disadvantage?

• Even laws of general application can be deemed unconstitutional under s15(1)

Direct Discrimination v. Adverse Effects/Impact Discrimination

• Direct vs Indirect

• Eldridge (1997) (SCC), Vriend (1989) (SCC) - example of one of the successful adverse impact cases to come out of SCC

Fraser v. Canada (Attorney General) (2020) (SCC)

• Example of one of three successful Adverse impact cases to come out of SCC

• Sex discrimination case, first successful case where female claimants won

  • Took 35 years

  • Fraser v Canada came out one month after 2020 report

• Context: female claimants employed by RCMP, dispute over pension sharing credits for job sharing (overly female)

  • While this happened, 2016 class action lawsuit where female claimants argued gender discrimination (violence, sexual assault and harassemnt) within RCMP workplace, huge settlement

  • 2304 claimants (-2017) were eligible for compensation, $100 million fund to pay claimants

  • Report came out in 2020: workplace showed issue of gender and racial violence in workplace

• Fraser v Canada came out, court influenced by this context (even though they were split)

R v. Sharma (2022) (SCC)

• As of 2022, even harder for success in adverse impact cases

• ‘Clarifying’ 

• Majority made two important statements: 

  • 1) if you're bringing an adverse impact discrimination claim, claimant must bring evidence to prove causation (proof that it creates a negative impact) to pass part 1 of test

  • 2) if law leaves a disadvantaged group in the same state they were before the law, they will not strike law down in s15, claim won’t succeed if it doesn’t make it worse

Newfoundland Treasury Board v. N.A.P.E. (2004) (SCC)

• Called one of the most striking equality cases ever rendered by SCC

• Collective agreements between NF public sector unions and hospital workers, agreement included provisions stating province couldn’t discriminate employees based on sex

  • However female nurses were severely underpaid, violating agreement

• Acknowledged systemic discrimination, to remedy it NF entered a pay equity agreement with public sector union (1988)

  • Determined how much nurse salaries ought to be, undertook process, once completed nurses would get retroactive pay back to 1988

• 1991 review process complete and it was time to raise nurses salaries, but province said they could not afford to do every they said they would (NF in midst of financial crisis)

  • Province argued their credit rating was at stake, they could not afford to pay female workers

  • They passed PSRA 1991 (see below)

Newfoundland Treasury Board v. N.A.P.E. (2004) (SCC) - Public Sector Restraint ACT (NL) (1991)

• Deferred start date of salary increase to 1991 - on

• Act extinguished retroactive pay, province saved $24 million 

• Nurses filed s15 claim under sex discrimination, litigation presented a problem for the province because their claim was that they were struggling financially

  • Previous SCC rulings saying you could never establish a reasonable limit under the issue of cost - you cannot say “we cannot afford to respect rights”

  • However, NF won the case. SCC established a cost plus principle

Newfoundland Treasury Board v. N.A.P.E. (2004) (SCC) - Cost Plus Principle

• SCC said not only financial considerations that were motivating province, other policy and public services considerations were at hand, which led to NF decision

• NF let off the hook for its own rights violations

  • SCC came to decision based on neo-liberal ideals important to SCC, government and economic imperatives plays a big role in charter cases

  • Case calls into question SCC commitment to substantive equality and its commitment to protect of historically disadvantaged groups

  • Court not living up to promise of substantive equality

Québec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux (2018) (SCC)

• First ever win for a female claimant bringing a sex discrimination case to SCC

  • Took 33 years to get one direct discrimination claimant (men had one before women did)