[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