ENDNOTES2017-03-03T18:35:38+00:00

[1] Yukon Human Rights Act, R.S.Y. 2002, c. 116, s. 13, online:  Yukon Human Rights Commission <http://www.yhrc.yk.ca/pdfs/Unofficial%20Consolidation%20Eng.pdf> [emphasis added].

[2] Rosalie Abella, “Report of the Royal Commission on Equality in Employment” (Ottawa:1984), online: Library and Archives Canada <http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/abella1984eng/abella1984-eng.htm> [Abella Commission]. Justice Abella authored the 1984 federal Royal Commission on Equality in Employment, in which she coined the term employment equity, a strategy for reducing barriers in employment faced by women, visible minorities, people with disabilities, and Aboriginal peoples.

[3] Abella Commission, note 2 at 7 [emphasis added].

[4] Mark Drumbl & John Craig, “Affirmative Action in Question: A Coherent Theory for Section 15(2)” (1997) 4 Rev. Const. Stud. 80 at 82.

[5] Global Rights, “Affirmative Action: A Global Perspective” (Washington: Global Rights: Partners for Justice, 2005), online: Global Rights <http://www.globalrights.org/site/DocServer/AffirmativeAction_GlobalPerspective.pdf?docID=2623> at 14 [Global Rights].

[6] Marcia Rioux & Tamara Daly, “Constructing Disability and Illness” in T. Bryant, D. Raphael & M. Rioux eds., Staying Alive: Critical Perspectives on Health, Illness, and Health Care, 2nd ed. (Toronto: Canadian Scholars’ Press, 2010) at 347.

[7] Juha Mikkonen & Dennis Raphael, “The Social Determinants of Health: The Canadian Facts” (May 2010), online: Social Determinants of Health: The Canadian Facts <http://www.thecanadianfacts.org/authors.html> at 50 (last accessed: 30 June 2010).

[8] Council of Canadians with Disabilities, “As a Matter of Fact: Poverty and Disability in Canada” (2010), online: Council of Canadians with Disabilities <http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/poverty-disability-canada> (last accessed: 30 May 2010). See also, Council of Canadians with Disabilities, “Poverty and Disability: Senate Committee Hears from Canadians with Disabilities” (April 2008) online: Council of Canadians with Disabilities <http://www.ccdonline.ca/en/socialpolicy/poverty/senate-committee> (last accessed: 30 May 2010). Marie White, Chairperson of the Council of Canadians with Disabilities (CCD) says, “Having a disability for many means a lifetime of living in poverty”.

[9] Council of Canadians with Disabilities, note 8.

[10] Mikkonen & Raphael, note 7 at 50 -51.

[11] Errol Mendes, “Taking Equality into the 21st Century: Establishing the Concept of Equal Human Dignity” (2000) 12 N.J.C.L. 3 at 5.

[12] Anne Bayefsky, “Defining Equality Rights” in A. Bayefsky & M. Eberts, eds., Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) 1 at 1. Bayefsky described equality of results as “a principle requiring action, which will achieve more equality in resources and rights. Equality of results will sometime require inequality of opportunity.”

[13] Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 [Andrews].

[14] Mendes, note 11 at 5.

[15] Andrews, note 13 at 169. Justice McIntyre adopted the observation from Justice Dickson (as he then was) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 347 that “the interests of true equality may well require differentiation in treatment.”

[16] Peter W. Hogg, Constitutional Law of Canada, 5th ed. vol. 2 (Toronto: Carswell, 2007) at 55-53.

[17] Council of Canadians with Disabilities (CCD), “Factum of the Intervenor, R. v. Lovelace” (November 1999), at para. 22, online: CCD <http://www.ccdonline.ca/en/humanrights/promoting/lovelace> (last accessed: 16 April 2010) [CCD Lovelace Factum]. At para. 22, the intervener provided: “Governments say they would be discouraged from acting affirmatively if they must include all who would benefit from the outset.”

[18]  Colleen Sheppard, “Litigating the Relationship between Equity and Equality” (1993) Ontario Law Reform Commission Study Paper, online: Ontario Law Reform Commission <http://people.mcgill.ca/files/colleen.sheppard/Litigating_Equity_Equality.pdf> at 61 (last accessed: 16 April 2010) [emphasis added]. Professor Sheppard found: “Nor should it violate the equality guarantees for the government to make certain choices in the kinds of initiatives or programs it wants to implement. It should be open to governments, for example, to decide to develop an urban housing project for single parents or a special education program for children with physical disabilities. The equality guarantees should not be reduced to a requirement that all problems be solved or addressed at the same time and allocated the same amount of resources.”

[19] Edward M. Iacobucci, “Antidiscrimination and affirmative action policies: Economic efficiency and the Constitution” (1998), 36 Osgoode Hall L.J. 293.

[20] Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37 at para. 64 [Lovelace].

[21] R. v. Willocks (1995), 22 O.R. (3d) 552 (Ont. Ct. J. (Gen. Div.) at para. 86 [Willocks] [emphasis added].

[22] Roberts v. Ontario (Ministry of Health) (1989), 10 C.H.R.R. D/6353 (Ontario Board of Inquiry) [Roberts OBI]. Chairperson Backhouse in her Board of Inquiry decision found, “The Assistive Devices Program draws distinctions between able-bodies and physically disabled individuals, but this is not determinative of the issues of “equality” or “discrimination”. In this situation, the able-bodied have no need of the devices within the program…The disabled, by contrast, have need of these devices if they are to obtain access to opportunities, benefits and advantages available to able-bodied members of society…The program does not violate notions of equality. Indeed the essence of equality requires that these distinctions be made.”

[23] Drumbl &Craig, note 4 at 86 [emphasis added].

[24] Drumbl &Craig, note 4.

[25] Thomas Sowell, Affirmative Action Around the World: An Empirical Study (New Haven:Yale University Press, 2005).

[26] M.B. Abram, “Affirmative Action: Fair Shakers and Social Engineers” (1986) 99 Harvard L.R. 1312 at 1323. Abram found that “perhaps the most ironic weakness of the social engineers’ redistributive approach is that it fails to help those particular members of disadvantaged groups who are most in need of assistance”.

[27] Frank De Zwart, “The Logic of Affirmative Action: Caste, Class and Quotas in India” (2000) 43 Acta Sociologica  235.

[28] Pay Equity Act, R.S.O. 1990, c. P.7.

[29] Employment Equity Act, S.C. 1995, c. 44. The Employment Equity Act sets as its goal  “…giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of difference.”

[30] Walter Tarnopolsky, “The Equality Rights in the Canadian Charter of Rights and Freedoms” (1983) 61 Can. B. Rev. 242 at 257.

[31] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 15(2) [Section 15(2)].

[32] McKinney v. University of Guelph, [1990] 3 S.C.R. 229 [McKinney]. Justice LaForest held that “One need simply examine s. 15(2) which provides that s. 15(1) “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups . . .”. There would be no need to refer to programs and activities if s. 15(1) were confined to legislative activity.” In the same way, Justice Wilson found:  “”Activity” cannot, in my view, be read narrowly in order to be equated with “law”. Subsection (2) must be read together with subs. (1). It would not have been necessary to exempt programs and activities from the ambit of subs. (1) if they were not included in subs. (1) in the first place. I believe that the inclusion of these words in subs. (2) provides strong support for the proposition that s. 15(1) was not intended to apply only in the narrow context of discriminatory legislation or “rules” analogous thereto.”

[33] Human Rights Code, R.S.O. 1990 [Code], c. H.19, s. 14(2).

[34] Code, note 33  at s. 14(2).

[35] Code, note 33  at s. 14(6).

[36] Code, note 33  at s. 14(8).

[37] Code, note 33  at s. 14(2).

[38] Code, note 33  at s. 14(9).

[39] British Columbia Human Rights Code, [RSBC 1996] c. 210, s. 42.

[40] Saskatchewan Human Rights Code, S.S. 1979 c. S-24.1, s.16.

[41] Nova Scotia Human Rights Act, R.S., c. 214, s.. 6.

[42] Saskatchewan Human Rights Commission, “Equity Works: The Equity Program of the Saskatchewan Human Rights Commission”, online: http://www.shrc.gov.sk.ca/equity/whatis.html (last accessed: 30 June 2010).

[43] Alberta Human Rights Act, R.S.A., 2000, c. a-25.5.

[44] Alberta Human Rights Act, note 43 at s. 11.

[45] Charte des droits et libertés de la personne du Québec, LRQ, c. C-12, s. 87 [Quebec Charter].

[46] Quebec Charter, note 45.
[47] Global Rights, note 5.

[48] U. S. Const., Amend. V & XIV.

[49] Jason Morgan-Foster, “From Hutchins Hall to Hyderabad and Beyond: A Comparative Look at Affirmative Action in Three Jurisdictions” (2003) 9 Wash. & Lee Race & Ethnic Anc. L.J. 73, at 75.

[50] Roozbeh Baker, “Balancing Competing Priorities: Affirmative Action in the United States and Canada (2009) 18 Trans-national Law and Contemporary Problems 527 at 528 [emphasis added].

[51] Baker, note 50 at 532

[52] Plessy v. Ferguson (1896), 163 US 537 – 1896 (US Supreme Court) [Plessy].

[53] Adarand Constructors Inc. v. Pena 515 U.S.200 (U.S.1995) at 240.[Adarand]

[54] Regents of the University of California v. Bakke, 438 U.S. 265 (U.S.1978).[Bakke]

[55] Gratz v. Bollinger, 539 U.S. 244 (U.S.S.C. 2003),, online: Cornell University Law School <http://www.law.cornell.edu/supct/html/02-516.ZS.html> [Gratz].

[56] Grutter v. Bollinger 539 U.S. 306 (U.S.S.C. 2003), online: Cornell University Law School <http://www.law.cornell.edu/supct/html/02-241.ZS.html> [Grutter].

[57] – Morgan-Foster, – – – – (-, note 49 at 75.

[58] Morgan-Foster, note 49 at 81.

[59] -The Constitution of the Republic of India, Part XVI. Articles 330 – 342 on Reservations. “Nothing … shall prevent the State from making any special provision for the advancement of any socially and educationally backward class of citizens, or for the Scheduled Castes and the Scheduled Tribes.”

[60] Shilpa Kannan, “Critics slam India’s education quotas ” (29 April 2008), online: BBC News <http://news.bbc.co.uk/2/hi/business/7371752.stm>.
[61] Global Rights, note 5 at 23.

[62] Rishab Dara, “Ashoke Kumar Thakur v. Union of India and Others etc., [2007] RD-SC 609” (17 May 2007), online: Rishab Dara <http://www.rishabhdara.com/sc/view.php?case=22294>.

[63] Equality Act, UK 2010 c. 15 part 11.

[64] Government Equalities Office, “Equality Act 2010”, online: Government Equalities Office <http://www.equalities.gov.uk/equality_bill.aspx> [emphasis added].

[65] Government Equalities Office, “Equality Act Impact Assessment” (UK, April 2010), online: Government Equalities Office <http://www.equalities.gov.uk/pdf/Equality%20Act%20Impact.pdf> at 179.

[66] Charter of Fundamental Rights of the European Union, 2000-12-18 EN Official Journal of the European Communities C 364 “Chapter III – Equality”, online:  Charter of Fundamental Rights <http://ec.europa.eu/justice_home/unit/charte/en/charter-equality.html>.

[67] Kalanke v. Freie Hansestadt Bremen, 1995 E.C.R. I-3051, [1996] 1 C.M.L.R. 175 (1995) [Kalanke].

[68] Manfed Zuleeg, “Gender Equality and Affirmative Action Under the Law of the European Union” (1999) 5 Colum. J. Eur. L. 319-328.

[69] Dagmar Schiek, “Sex Equality Law After Kalanke and Marschall” (2002) 4 European Law Journal 148.

[70] Louis Charpentier, “The European Court of Justice and the Rhetoric of Affirmative Action” (1998) Robert Schuman Centre Working Paper, No 98/30, online: Robert Schuman Centre<http://www.eui.eu/DepartmentsAndCentres/RobertSchumanCentre/Publications/WorkingPapers/9830.aspx> (last accessed: 30 June 2010).
[71]Global Rights, note 5.

[72] Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), UN GAOR, 660 U.N.T.S. 195, (1965), Supp. No. 14, UN Doc. A/6014.

[73] International Convention on the Elimination of All Forms of Discrimination Against Women, U.N.G.A. Res. 34/180, G.A.O.R. 34th Session, Supp. No. 45, p. 193, 19 LLM 3 [emphasis added].

[74] General Comment 18: Non-discrimination, 37th sess., (1989), online: Office of the Commissioner of Human Rights <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3888b0541f8501c9c12563ed004b8d0e?Opendocument> at para. 10 [emphasis added].

[75] International Convention on the Rights of Persons with Disabilities, UN GAOR, 7th Sess., Annex II, A/AC.265/2006/2 (2006).
[76] This question was at issue in Tranchemontagne v. Ontario (Director, Disability Support Program),  [2006] 1 S.C.R. 513, 2006 SCC 14 [Tranchemontagne].

[77] Russel Jurianz, “Recent Developments in Canadian Law: Anti-Discrimination Law Part 1” (1987) 19 Ottawa L. Rev. 447 at 486. Jurianz elaborated: “While the Court will not be able to review the content of government programs under the Charter, they will be able to review both the content of, and the pre-conditions for, all programs under existing human rights legislation.”

[78] Jurianz, note77. He continued:  “…subsection 15(2) will have no application to affirmative action voluntarily undertaken by private employers and institutions” at 482.

[79] Jurianz, note 77 at 483.

[80] Ontario Human Rights Commission, “Guidelines on Special Programs” (1997), online: Ontario Human Rights Commission <http://www.ohrc.on.ca/en/resources/Policies/specialprogramsen> (last accessed: 31 May 2010) [OHRC Guidelines on Special Programs].

[81] Beatrice Vizkelety, “Affirmative Action, Equality and the Courts: Comparing Action Travail des Femmes v. CN and Apsit and the Manitoba Rice Farmers Association v. The Manitoba Human Rights Commission” (1990-1991) 4 C.J.W.L. 287.

[82] Action Travail des Femmes v Canadian National Railway Co., [1987] 1 SCR 111 [Action Travail]. At page 1143, For the Court, Chief Justice Dickson held:  “The goal is not to compensate past victims or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past, although some such individuals may be beneficiaries of an employment equity scheme. Rather, an employment equity program is an attempt to ensure that future applicants and workers from the affected group will not face the same insidious barriers that blocked their forebears.”

[83] Apsit Manitoba Rice Farmers Association v.The Manitoba Human Rights Commission, [1987] 50 Man. R. (2d) 92 (Q.B.). [emphasis added] [Apsit].

[84] Apsit, note 83.

[85] Silano v. British Columbia, [1987] 42 D.L.R . (4th) 407 (B.C.S.C.) [Silano].

[86] Andrews, note 13.

[87] Harrison v University of British Columbia, [1990] 77 DLR (4th) 55 (SCC) at para. 66 [Harrison].

[88] Ontario (Human Rights Commission) v. Ontario, [1994], 19 O.R. (3d) 387 (C.A.) at 401 [Roberts] [emphasis added].

[89] Eaton v. Brant County Board of Education, [1995] 22 O.R. (3d) 1 at paras. 10-11 (Ont. CA) [reversed on other grounds, Supreme Court of Canada, No. 24668, October 9, 1996, [1996] S.C.J. No. 98 [Eaton][emphasis added].

[90] Drumbl & Craig, note 4 at 84.

[91] Schafer v. Canada (Attorney General), [1997] 149 DLR (4th) 705; 35  OR (3d) 1 (Ont. CA); leave to appeal dismissed, 2 SCCA no. 516 (S.C.C.) [Schafer].

[92] Schafer, note 91 at para. 157.

[93] Schafer, note 91 at para. 227.

[94] Lovelace v. Ontario, 33 O.R. (3d) 735 (Ont. C.A.) at paras. 65 [Lovelace COA].

[95] Lovelace COA, note 94 at para. 64.

[96] Lovelace, note 20 at para. 41.

[97] Lovelace, note 20 at para. 49.

[98] Lovelace, note 20  at para. 69.

[99] Lovelace, note 20 at para. 108.

[100]R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41  at para. 38[Kapp].

[101] Kapp, note 100 at para. 41.

[102] Kapp, note 100 at para. 55. “Section 15(2)’s purpose is to protect government programs targeting the conditions of a specific and identifiable disadvantaged group, as contrasted with broad societal legislation, such as social assistance programs.”

[103] Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development), [2009] ABCA 239 atpara 19 [Cunningham].

[104] Cunningham, note 103 at para. 31.

[105] Linda Jean, Chief of the Micmac Nation of Gespeg, in her own name and in the name of all the other members of her Band, et al. v. Minister of Indian and Northern Affairs Canada, et al., [2009] FCA 377 [Jean].

[106] Jean, note 105 at para. 8-9.

[107] Women’s Legal Education and Action Fund (LEAF), factum to Federal Court of Appeal, online: LEAF <http://www.leaf.ca/legal/facta/2009-micmac1.pdf> (last accessed: 30 May 2010). [LEAF Jean factum].

[108] LEAF Jean factum, note 107 at para. 23 [emphasis added].

[109]  Cooper v. Ontario (Attorney General) (2009) 99 O.R. (3d) 25, 311 D.L.R. (4th) 480 at paras 14-16 [Cooper].

[110] Ena Chadha, “Running on Empty: the “Not so special status” of Para-Transit Services in Ontario” (2005) 20 W.R.L.S.I. 1.

[111] Odell et al. v. Toronto Transit Commission, [2001] OHRBID No. 2 at paras. 40 and 44 [Odell]. See also Chadha, note110.

[112] Neusch and Fox v. Ontario (Ministry of Transportation) et al., [2002] O.H.R.B.I.D. No. 11 (Ontario Board of Inquiry (Human Rights Code) [Neusch].

[113] Ontario Human Rights Commission, “Position Paper: Whether the para-transit services provided by public transit services in the cities of Toronto, Hamilton, London, and Windsor are special programs under the Ontario Human Rights Code” (October 2006), online: Ontario Human Rights Commission <http://www.ohrc.on.ca/en/resources/discussion_consultation/ParatransitPaperEN> (last accessed: 16 April 2010) [OHRC Paratransit].

[114] Wynberg v. Ontario (2005), 252 D.L.R. (4th) 10 at para. 621 [Wynberg Superior Court].

[115] Wynberg Superior Court, note 114 at para. 617 and para. 740.

[116] Wynberg v. Ontario, [2006] 82 O.R. (3d) 561 (C.A.) at para. 25 [Wynberg CA].

[117] Ball v. Ontario (Ministry of Community and Social Services), [2010] O.H.R.T.D. No. 316, 2010 HRTO 360 [Ball].

[118] Ball, note 117 at paras. 120-121.

[119] Ball, note 117 at paras. 120-121.

[120] Justice Anne Molloy was on the 3-person panel. Interestingly, Justice Molloy was Mr. Roberts’ counsel in Ontario Human Rights Commission v. Ontario (1994), 19 O.R. (3d ) 387. (Ontario C.A.) [Roberts].

[121] Larromana v. Director of Ontario Disability Support Program, [2010] ONSC 1243. [Larromana].

[122] See, e.g., Daniel Del Gobbo and Stephanie DiGiuseppe, “Transposing Tranchemontagne into the Charter Context: Section 15(2) – Parts one and two” (March  2010) online: The Court <http://www.thecourt.ca/2010/03/23/transposing-tranchemontagne-into-the-charter-context-s-152/> (last accessed: 6 April 2010).

[123] Larromana, note121.

[124] Glenn Kauth, “Signs of trouble in the human rights system” (2009), online: Law Times <http://www.lawtimesnews.com/200909285489/Commentary/Editorial-Signs-of-trouble-in-the-human-rights-system> (last accessed: 16 April 2010).

[125] Michael McKiernan, “LAO vows to fix “unacceptable hotline waits” (10 May , 2010), online: Law Times < http://www.lawtimesnews.com/201005106844/Headline-News/LAO-vows-to-fix-unacceptable-hotline-waits >. See also Tracey Tyler, “Legal aid facing “troubling cuts: Loss of researchers especially worrying, storefront lawyers say”, Toronto Star (Feb 18 2010), online:  <http://www.thestar.com/news/ontario/article/767241–legal-aid-facing-troubling-cuts >. See also, Maria Calabrese, “Lawyers feel that Legal Aid is being dismantled in Ontario” (2010), online: The North Bay Nugget <http://www.nugget.ca/ArticleDisplay.aspx?e=2532488>.

[126] Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38.

[127]Marissa Olanick, “Reconsidering Kapp – An Unintended Barrier to Future Equality Claims?” (2009), online: The Court <http://www.thecourt.ca/2009/08/07/reconsidering-kapp-an-unintended-barrier-to-future-equality-claims>/>. Olanick found that “Many legal commentators have given up on s. 15 as a tool for advancing substantive equality.”

[128] James R. Hendry, “Section 7 and Social Justice” (Presented at the 8th Annual Charter Conference, Ontario Bar Association, Toronto: 18 September 2009).

[129] Antonella Ceddia, “Alternatives for Advancing Social Justice – Human Rights – Alternative to Section 15” (Presented at the 8th Annual Charter Conference, Ontario Bar Association, Toronto: 18 September 2009).

[130] Jurianz, note 77 at 486. Jurianz pointed out: “While the Court will not be able to review the content of government programs under the Charter, they will be able to review both the content, of, and the pre-conditions for, all programs under existing human rights legislation.”

[131] Charter, note 31 at s. 15(2).

[132] Code, note 33 at s. 14.

[133] Colleen Sheppard, “Litigating the Relationship between Equity and Equality” (1993) Ontario Law Reform Commission Study Paper, at 10. online: Ontario Law Reform Commission <http://people.mcgill.ca/files/colleen.sheppard/Litigating_Equity_Equality.pdf> (last accessed: 16 April 2010) [Sheppard] at 8.

[134] Sophia Moreau, “The Promise of Law v. Canada” (2007) 57 U. T. L. J. 415.

[135] Abram, note 26 at 1322.

[136] Drumbl  & Craig, note 4 at 85.

[137] Drumbl & Craig, note 4 at 86

[138] Drumbl & Craig, note 4 at 86.

 

[140] Abella Commission, note 2 at 8.

[141] Abella Commission, note 2 at 13 – 14.

[142] Sheppard,note 133 at 24.

[143] Sheppard, note 133 at 10. She argued:  “If one concentrated only on eliminating the discrimination and resulting inequality experienced by individuals on a one-by-one basis, equality, like a horizon, would never be reached. The egalitarian society which treats its members with equal concern and respect requires for its realization concepts that go beyond the traditional, purely individualistic notions predominant in nineteenth century thought.”

[144] Sheppard, note 133 at 10.

[145] Sheppard, note 133 at 12 [emphasis added].

[146] Shelagh Day & Gwen Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1996) 75 Canadian Bar Review 433 at 462 and 470. Day and Brodsky found: “Dealing with accommodation as an individual matter when sex and race discrimination are at issue is a cop-out, a tactic that is likely to sidestep dealing directly with the social construction of the “normal” as male and white. However, with disability the subordinating effect of the category of disability can only be eliminated by 1) using group-based measures, such as making buildings, transportations and communication systems accessible and 2) making individualized adjustments to workplace or service systems.”

[147] Ena Chadha & C. Tess Sheldon, “Promoting equality: economic and social rights for persons with disabilities under section 15.” (2004) National Journal of Constitutional Law 16:1, 27 at 27.

[148] Sheppard, note 133 [emphasis added].

[149] T. Friesen “The Right to Health Care” (2001) 9 Health L. J. 205 at para. 2

[150] See e.g., Symes v. Canada, [1993] 4 S.C.R. 695 [Symes].

[151] Friesen, note 149 at para. 4.

[152] Sheilah Martin, “Balancing Individual Rights to Equality and Social Goals” (2001) 80 Canadian Bar Review 299. On page 329, Martin noted: “The Court said that the interests protected by human dignity relate to the realization of personal autonomy and self-determination, self-respect and physical and psychological integrity and empowerment. These rights fall within the classic liberal tradition …Dignity belongs more to the realm of individual rights than to group based historical disadvantage…. It removes from view how oppression operates.”

[153] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 78 [Eldridge].

[154] Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (Toronto: Ontario Human Rights Commission, 2000).

[155] Sheppard, note 133 at 61.

[156] Sheppard, note 133 at 61.

[157] Sheppard, note 133 at 61. Professor Sheppard elaborated: “The Charter imposes on legislatures no obligation to redress all social or economic inequalities.”

[158] See e.g., Egan v. Canada, [1995] 2 S.C.R. 513. Justice Sopinka found at page 573 that “This court has recognized that it is legitimate for the government to make choices between disadvantaged groups and that it must be provided with some leeway to do so.”

[159] Abella Commission, note 2 at 14.

[160]  Kapp, note 100 at para. 55. The majority of the Court found that “Section 15(2)’s purpose is to protect government programs targeting the conditions of a specific and identifiable disadvantaged group, as contrasted with broad societal legislation, such as social assistance programs.”

[161] Chadha, note 110 at 10.

[162] Chadha, note 110 at 12.

[163] Eaton, note 89 at para. 10.

[164] Eaton, note 89 at paras 10-11.

[165] The Centre for Universal Design (1997). The Principles of Universal Design, Version 2.0. Raleigh, NC: North Carolina State University. Copyright © 1997 NC State University, The Centre for Universal Design.

Also see Molly Follette Story, “Principles of Universal Design” in Wolfgang F.E. Preiser et al. eds., Universal Design Handbook, (New York: McGraw-Hill, 2001) at 10.3.

[166] Vizkelety, note 81 at 291

[167] Grutter, note56.

[168] Pauline Rosenbaum & Ena Chadha, “Reconstructing disability: Integrating disability theory into Section 15” (2006) 33 (2d) Sup. Ct. L. Rev. 343.

[169] Ani B. Satz, “Disability, vulnerability, and the limits of antidiscrimination” (2008) 83 Wash. L.Rev. 513.

[170] Martha Albertson Fineman, “The vulnerable subject: Anchoring equality in the human condition” (2008) 20 Yale J.L. & Feminism 11.

[171] British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [Meiorin] at para. 41.

[172] Day & Brodsky, note 146 at 462. The authors continued: “It allows those who consider themselves “normal” to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are ‘accommodated’ ”.

[173] Day & Brodsky, note146.

[174] Jerome  Bickenbach, Physical Disability and Social Policy (Toronto: University of Toronto Press, 1993) at 237.  Bickenbach describes accommodation as a “necessary condition of political equality”.

[175] Yvonne Peters, “Twenty Years of Litigating for Disability Equality Rights: Has it Made a Difference?” An Assessment by the Council of Canadians with Disabilities” (January 2004), online: Council of Canadians with Disabilities <http://www.ccdonline.ca/publications/20yrs/20yrs.htm#IIIB1ciii> (last accessed: 20 August 2008).

[176] Lovelace, note 96 at para. 108. Justice Iaccobuci set out “…However, as already stated, we may well wish to reconsider this matter at a future time in another case”. See also Kapp, note 100 at para. 41, where the Chief Justice and Justice Abella found: “However, at this early stage in the development of the law surrounding s. 15(2), the test we have described provides a basic starting point – one that is adequate for determining the issues before us on this appeal, but leaves open the possibility for future refinement.”

[177] Edgar-Andre Montigny, “Tranchemontagne/Werbeski – The Saga Continues” (June 2009), online: ARCH Disability Law Centre <http://www.archdisabilitylaw.ca/sites/all/files/ARCH%20Alert%20-%20June%208%2009%20-%20Text.txt>. “The recentl Supreme Court of Canada decision in R. v. Kapp appears to raise the question of whether a court needs to consider the impact of the program or whether a court can simply accept the government’s position that a program in question is an “ameliorative program”. Even if the mere claim that a program is ameliorative is sufficient to protect it from claims of discrimination by those who are not part of the targeted group, it is far from certain whether the same could be said in cases where the claim of discrimination comes from a member of the very group the program is to benefit. It would seem in such cases there would be a greater need to examine the actual impact of the program rather that just accept a claim that the program was intended to benefit a disadvantaged group.“

[178] Ankur Bhatt, “Cunningham v. Alberta: Aboriginal “Double Dipping””, (May 2003), online: The Court <http://www.thecourt.ca/2010/04/08/cunningham-v-alberta-aboriginal-double-dipping/> (last accessed: 23 May 2010) [emphasis added].

[179] R. v. Willocks (1995), 22 O.R. (3d) 552 (Ont. Ct. J. (Gen. Div.) [Willocks].

[180] Willocks, note 179.

[181] Lovelace, note 20 at para. 85 [emphasis added].

[182] Sheppard, note 133 at 60.

[183] Gwen Brodsky & Shelagh Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back?, (Ottawa: Canadian Advisory Council on the Status of Women, 1989) chapters 7 and 8 at 30. [emphasis added].

[184] Abella Commission, note 2 at 13.

[185] Edward Iaccobucci, “Antidiscrimination and Affirmative Action Policies: Economic Efficiency and the Constitution” (1998), 36:2 Osgoode Hall L.J. 293 at 326 [Emphasis in original].

[186] R. v. Turpin, [1989] 1 S.C.R. 1296 [Turpin].

[187] Kapp, note 100 at para. 55.

[188] LEAF Jean factum, note 107 at para. 39 .

[189] Lovelace, note 20  at para. 69.

[190] Lovelace, note 20  at para. 70.

[191] Eldridge, note 153 at para. 56 per La Forest J.

[192] Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54 at paras. 86-88 [Martin & Laseur]. Justice Gonthier for the unanimous court found that the exclusion of “chronic pain” from workplace compensation programs constituted a violation of Section 15(1) of the Charter, unjustified by Section 1. See also Cunningham, note 119 para. 41.

[193] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law][emphasis added].

[194] Kapp, note 100 at para. 54.

[195] Martin & Laseur, note 192 at para. 76 [emphasis added].

[196] Sheppard, note 133 at 9-10. Professor Sheppard found: “Defining a “social group” may create difficulties; moreover, deciding who is entitled to represent a particular social group may cause further problems, particularly if there is intra-group conflict.”

[197] Abram, note 26 at 1321.

[198] Sheppard, note 133 at 23.

[199] Fiona Sampson, “Granovsky v Canada (Minister of Employment and Immigration): Adding Insult to Injury” (2005) 17 C. J. W. L. 72.

[200] Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566 [Gibbs]. In Gibbs, the Court held as discriminatory an insurance scheme which offered reduced benefits to persons with mental health issues, than not persons with other kinds of disabilities.

[201] Vriend v. Alberta, [1998] 1 S.C.R. 493 [Vriend]. The Court found that the exclusion of the ground of “sexual orientation” from Alberta’s human rights statute violated Section 15(1), unjustified by Section 1 of the Charter. As a remedy, the words “sexual orientation” were ordered to be read into the prohibited grounds of discrimination in the statute.

[202] Martin & Laseur, note 192. Justice Gonthier for the unanimous Court found that the exclusion of “chronic pain” from workplace compensation programs constituted a violation of Section 15(1) of the Charter, unjustified by Section 1.

[203] Kapp, note 100 at para. 28 [emphasis added].

[204] Kapp, note 100 at para. 60.

[205] Robertsnote 88 at 339. The Court of Appeal found that “Special programs must be designed and must operate so that restrictions within [the] program are rationally connected to the program. Otherwise, the provider of the program will be promoting the very inequality and unfairness it seeks to alleviate.”

[206] OHRC Guidelines on special programs, note 80 [emphasis added].

[207]Apsit, note83. The Manitoba Court of Queens Bench found: A bald assertion by government that it has adopted a program which “has as its object the amelioration of conditions of disadvantaged individuals or groups …” does not ipso facto meet the requirements to sanctify the program under section 15(2) of the Charter. The government can not employ such a naked declaration as a shield to protect an activity or program which is unnecessarily discriminatory. “

[208] Kapp, note 100 at para. 54. Chief Justice McLachlin and Justice Abella provided as follows: “Governments, as discussed above, are not permitted to protect discriminatory programs on colourable pretexts.”

[209] Kapp, note 100 at para. 45 [emphasis added].

[210] Kapp, note 100 at para. 115. Justice Basterache found: “The declarations of Minister Crosbie and government officials explaining the rationale for the program clearly relate to agreements with bands on the regulation and management of the fishery.”

[211] Kapp, note 100 at para. 48.

[212] Gibbs, note 200 at para. 39. Justice Sopinka provided: “By following an approach to defining the purpose of the insurance scheme that is consonant with the goals of human rights legislation, the narrow, formalistic approach to discrimination found in earlier pregnancy cases [see Bliss] is avoided under the analysis here and in Brooks.”

[213] R. v. Morgentaler, [1993] 3 S.C.R. 463 at 483-85 [Morgantaler].

[214]  Miron v. Trudel, [1995] 2 S.C.R. 418 at 212 [Miron] [emphasis added].

[215] Ball, note 117 at para. 77 [emphasis added].

[216] Martin, note 152 at 332.

[217] CCD Lovelace Factum, note 17 at para. 26 [emphasis added]. “Persons with disabilities experience discrimination not only as a result of prejudice and stereotyping, but as a consequence of neglect and paternalism. It is no exaggeration to say that people with disabilities have been killed by good intentions….A program that was benign and ameliorative at the outset, may become discriminatory as attitudes change or new evidence about a programs effect becomes available.”

[218] CCD Lovelace Factum, note 17 at para. 29 [emphasis added]. “The reasons for retaining a program may be completely different from the reasons for having initiated it, particularly after the adverse effect of the program on its supposed beneficiaries have been drawn to the attention of the government.”

[219] Andrews, note 13 at 152. Justice McIntyre: “While legislatures must inevitably draw distinctions among the governed, such distinctions should not bring about or reinforce the disadvantage of certain groups and individuals by denying them the rights freely accorded to others.”

[220] Kapp, note 100 at para. 54.

[221] Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84 at para. 41 [Gosselin]: “The government’s short-term purpose in the scheme at issue was to get recipients under 30 into work and training programs that would make up for the lower base amount they received while teaching them valuable skills.”

[222] Kapp, note  at para. 48.

[223] Jurianz, note 77 at 493.

[224] David Lepofsky & Jerome Bikenbach , “Equality rights and the physically handicapped” in AF Bayefsky and M. Eberts eds., Equality Rights and the Canadian Charter of Rights and  Freedoms (Toronto: Carswell, 1985) 323 at page 355. [emphasis added] “the better view is that the defendant must establish that the impugned program has some serious likelihood of achieving its ameliorative goal.”

[225] Lepofsky & Bickenbach, note 224 at 355.

[226] CCD Lovelace Factum, note 17 at para. 31.

[227] Kapp, note 100 at para. 23 .

[228] Cunningham, note 103 at para. 21.

[229] Cunningham, note 103 at 37 [emphasis added].

[230] Law, note 193 at para. 72.

[231] Martin & Laseur, note 192 at paras. 86-88; see also Cunningham, note 119 at para. 41.

[232] Charter, note 54 at s. 1.

[233] R. v. Oakes [1986] 1 S.C.R. 103 [Oakes].

[234] Sophia Moreau, “The Wrongs of Unequal Treatment” (2004) 44:3  U.T.L.J. 291 at 8.

[235] Martin, note 152 at 327.

[236] Martin, note 152 at 321.

[237] Law, note 193 at para. 105.

[238] Law, note 193 at para. 106. Justice Iaccobucci found: “Parliament is entitled, under these limited circumstances at least, to premise remedial legislation upon informed generalizations without running afoul of s. 15(1) of the Charter and being required to justify its position under s. 1. I emphasize, though, that under other circumstances a more precise correspondence will undoubtedly be required in order to comply with s. 15(1). In particular, a more precise correspondence will likely be important where the individual or group which is excluded by the legislation is already disadvantaged or vulnerable within Canadian society.”

[239] Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 at para. 67 [Granovsky] . Justice Binnie held:  “I do not suggest that s. 15 claims can properly be decided by pitting groups of disadvantaged people against each other to determine who is more disadvantaged. The fact the CPP drop-out provision “corresponds to the greater need or the different circumstances” of the permanently disabled is, however, a relevant contextual factor.”

[240] Lovelace COA note 94 at para. 64. The Court of Appeal found that ”If government affirmative action programs can be too readily challenged because, for example, they do not go far enough in remedying disadvantage, governments will be discouraged from initiating such programs.”

[241] Sheppard, note 133 at 23.

[242] LEAF Jean factum, note 107 at para. 12 [emphasis added].

[243] Lepofsky & Bickenbach, note 224 at 355.

[244] CCD Lovelace Factum, note 17 at para. 11.

[245] Kapp, note 100 at para. 41.

[246] Jonnette Watson Hamilton, “A Vote for R. v. Kapp as the Leading Equality Case of the Past Decade”, (January 2010), online: The University of Calgary Faculty of Law Blog on Developments in Alberta Law <http://ablawg.ca/2010/01/13/a-vote-for-r-v-kapp-as-the-leading-equality-case-of-the-past-decade/> (last accessed: 31 May 2010).

[247] McKinney v University of Guelph, [1990] 3 S.C.R. 229 [McKinney]. The Supreme Court found that excluding persons over 65 years of age from human rights protections violated Section 15(1).

[248] But see Brown v. British Columbia (Minister of Health), (1990), 66 DLR (4th) (BSSC) [Brown]. In that case, the exclusion of AZT from a drug funding program was found not to offend Section 15(1). Brown is sometimes characterized as a barrier to the development of positive rights.

[249] Bliss v. Attorney General of Canada, (1979] 1 S.C.R. 183 [Bliss].

[250] Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 [Brooks].

[251] Brooks, note 250 at 1240. [emphasis added].

[252] Sheppard, note 133 at 60.

[253] Eldridge, note 153 at para. 73.

[254]OHRC Paratransit, note113.

[255] OHRC Guidelines on Special Programs, note 80.

[256] Vriend, note 201..

[257] Roberts note 88 at 402.

[258] Sheppard, note 133 at 33 [emphasis added].

[259] CCD Lovelace Factum, note 17.

[260] Dickason v. University of Alberta, [1992] 2 S.C.R. 1103 at 1120 [Dickason].

[261] Lovelace, note 96 at para. 106.

[262] Lovelace, note 96 at para. 107.

[263] Chadha, note 110 at 10.

[264] Chadha, note 110 at 12.

[265] Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 [Rizzo].

[266] Tarnopolsky, note 30 at 257-259.

[267] Lovelace COA, note94.

[268] Lepofsky & Bickenbach, note 224 at 354.

[269] OHRC Guidelines on Special Programs, note80.

[270] Roberts, note 88 at 13.

[271] Ontario, Legislative Assembly, Official Reports of Debates (Hansard), 5, (December 9, 1980) at 5096-5098.

[272] Ontario, Legislative Assembly, Official Reports of Debates (Hansard), 4  (December 1, 1981) at 4114.

[273] Eldridge, note 153 at para. 56.

[274] Granovsky, note 239 at para. 67.

[275] Lovelace, note 20 at para. 69.

[276] Martin & Laseur, note 192.

[277] Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357, 2004 SCC 65 [Hodge]. In Hodge, the widow of a common-law relationship was unable to access CPP survivor benefits. Non-married spouses were required to be living with the contributor for a specified period. A survivor who divorced would not have been able to access the CPP benefits. The Court replaced the claimants chosen comparator (“separated married spouses”) group with “divorced spouses”.

 

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