What is the test for a discrimination claim under s. 15(1) of the Charter of Canada?

Ontario, Canada


The following excerpt is from R. v. Skedden, 2000 CanLII 22745 (ON SC):

In Law v. Canada (Minister of Employment and Immigration) (1999), 1999 CanLII 675 (SCC), 60 C.R.R. (2d) 1, 170 D.L.R. (4th) 1 (S.C.C.), Iacobucci J. speaking for a unanimous court summarized ten main guidelines for an analysis under s. 15 of the Charter at pp. 35-36 C.R.R., para. 88 D.L.R.: (2) The approach adopted and regularly applied by this court to the interpretation of s. 15(1) focuses on three central issues: (A) whether a law imposes differential treatment between the claimant and others, in purpose or effect; (B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and (C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee. The first issue is concerned with the question of whether the law causes differential treatment. The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1). (3) Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries: (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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