What constitutes discrimination in the context of s. 15 of the Canadian Human Rights Code?

61. In Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at p. 171 and at pp. 174-75, McIntyre J. for the court gave this definition of what constitutes discrimination: It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component. . . . I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

62. In Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513, I developed an approach to interpreting and applying the equality guarantee of the Charter which had the primary objective of giving effect to its purpose, that is, the elimination of discrimination, as opposed to focusing on the enumerated or analogous grounds of the provision. I was concerned that, by focusing on the grounds, we risked ignoring state action which, given its impact on a particular group, would effect or encourage inequality in the surrounding socio-economic context. I advocated “putting ‘discrimination’ first”, at para. 55, through the following principled, three-stage method of analysis: In my view, for an individual to make out a violation of their rights under s. 15(1) of the Charter, he or she must demonstrate the following three things: (1)that there is a legislative distinction; (2)that this distinction results in a denial of one of the four equality rights on the basis of the rights claimant’s membership in an identifiable group; (3)that this distinction is “discriminatory” within the meaning of s. 15.