Returning to Human Rights Roots: “Human Dignity” and Comparator Groups are Out, Substantive Equality is In

Human rights claimants and those committed to a principled approach to human rights will take some comfort from the Ontario Divisional Court’s recent decision in Tranchemontagne v. Ontario. The Divisional Court has clarified the discrimination test to be applied under the Human Rights Code. It also has clarified that the Charter’s s. 15 equality test should not be applied to claims made under human rights legislation. The “human dignity” test and rigid comparator group analysis used by some adjudicators are also to be discarded in favour of a more substantive approach to discrimination. The Divisional Court’s decision is not free of all problems but it does signal a significant step toward a more principled approach to statutory human rights. It is not yet clear whether the Ontario government will appeal the Divisional Court’s decision.

Background

The Divisional Court’s decision in Tranchemontagne v. Ontario, [2009] O.J. No. 1613 is the most recent iteration of a 10 year legal journey. The case is well known to many in the human rights community. It involved two individuals who challenged a provision that barred them from receiving disability benefits under the Ontario Disability Support Program Act (“ODSPA”). The provision in question excluded from eligibility persons who are dependent on, or addicted to, alcohol or drugs. The individuals sought to have the Social Benefits Tribunal (“SBT”) rule that the provision was discriminatory under the Human Rights Code. In its initial decision, the SBT found that it did not have jurisdiction to consider a challenge to legislation under the Code. The case made its way to the Supreme Court of Canada which ruled that the SBT did have the jurisdiction to consider the human rights challenge. The Supreme Court ruled that any statutory tribunal empowered to decide questions of law has the jurisdiction to apply the human rights legislation.

Fast Forward: Clarifying the Test for Discrimination

The Tranchemontagne case was remitted back to the SBT for determination. The SBT concluded that the impugned provision was discriminatory and contrary to the Code. The Ontario government sought judicial review to the Divisional Court, which upheld the SBT’s decision as correct.

The Court’s decision is significant for ODSPA claimants who are dependent on alcohol or drugs. It clarifies that these claimants should not be barred from receiving ODSPA benefits.

Just as significant are the Court’s conclusions in relation to the appropriate test to be applied in discrimination cases under human rights legislation. Over the past several years there has been a general lack of clarity on this issue. Many administrative decision makers and courts have applied the Charter’s s. 15 equality test to discrimination cases arising under human rights legislation. Until recently, a claimant alleging an s. 15 violation was required to show that their “human dignity” had been infringed. After widespread criticism of this subjective and malleable test, the Supreme Court in R. v. Kapp, [2008] 2 S.C.R. 483 returned to its equality rights roots by reaffirming the equality test set out in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. The Supreme Court reaffirmed the substantive approach to equality taken in Andrews. It also eliminated “human dignity” as a separate component of the s. 15 test.

Following on the Supreme Court’s heels, the Ontario Divisional Court’s decision in Tranchemontagne signals a return to the courts’ statutory human rights roots, albeit with some modifications. The decision is significant for the following reasons:

(1) The Divisional Court ruled that the Charter’s s.15 test is not to be applied in statutory human rights cases. However, the Court did reaffirm the notion that Charter and statutory human rights analyses should inform one another. The Court determined that the appropriate test is the test long ago set out by the Supreme Court in Ontario (Human Rights Commission) v. Simpson Sears Ltd, [1985] 2 S.C.R. 536 (“O’Malley”) but informed by the Court’s decision in Andrews.

The Court set out a modified O’Malley test as follows:

(i) The claimant must establish a prima facie case demonstrating a distinction on a prohibited ground under the Human Rights Code;

(ii) If a prima facie case is made out, the respondent must establish that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping. Alternatively, the respondent must establish a statutory defence under the Code.

This test is modified from the O’Malley test which only permitted respondents to defend against a discrimination claim by establishing a bona fide requirement (“BFOR”) defence. Under the O’Malley test, a respondent could not defend against a discrimination claim by showing that the distinction did not “create a disadvantage by perpetuating prejudice or stereotyping”. This language is taken from the Supreme Court’s s. 15 analysis in Andrews and its recent reformulation of the s. 15 test in Kapp. The language is somewhat more malleable and less strict than the previous BFOR defence.

(2) The Court confirmed that the “human dignity” component previously accepted as part of the s. 15 test is not to be applied in statutory human rights cases. This is a welcome development for claimants. The Divisional Court’s decision makes clear that a claimant does not have the burden of showing that a distinction has infringed their human dignity in order to make out a discrimination claim.

(3) The Court also rejected the rigid application of a comparator group analysis in favour of a more substantive and contextual analysis to discrimination. Like the human dignity test, the comparator group analysis used in Charter and statutory human rights cases had caused significant problems in recent years. Several human rights cases have been dismissed due to the application of a narrow formulaic comparator group analysis focused on treating likes alike. This allowed for the triumph of formalism over substance. Although the Divisional Court affirmed the notion that discrimination is a comparative concept, it rejected a strict comparator group analysis. The Court held that, although a comparison may be useful at the initial stage of the discrimination analysis, a discrimination claim does not turn on the identification of a singled correct comparator group. This clarification is welcome as many human rights claims in recent years have hinged on a formalistic comparator group analysis rather than addressing the real substance of the discrimination being alleged.

Conclusion

As noted above, it is not yet clear whether the Ontario government will appeal the Divisional Court’s decision in Tranchemontagne. For now, the decision is a significant one for any person, trade union or other organization claiming a violation of the Human Rights Code. It also applies to all statutory human rights claims regardless of the forum within which the claim is being made. That is, the decision applies whether the discrimination claim is being made before the Human Rights Tribunal of Ontario, an arbitrator, any other administrative or human rights tribunal, or the courts.