What is the test for discrimination in the context of a disability claim?

Ontario, Canada


The following excerpt is from Ontario (Attorney General) v. Ontario Human Rights Commission, 2007 CanLII 56481 (ON SCDC):

Law v. Canada, supra, directs a decision-maker to engage in a purposive and contextual analysis when analyzing discrimination, making three broad inquiries (at para. 88): (A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society, resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and (C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

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