Twenty Years of Litigating for Disability Equality Rights: Has it Made a Difference?

An Assessment by the Council of Canadians with Disabilities

Prepared for CCD by Yvonne Peters

Yvonne Peters is a lawyer specializing in equality and disability rights in Winnipeg, Canada

January 26, 2004

Twenty Years of Litigating for Disability Equality Rights: Has it Made a Difference?

An Assessment by the Council of Canadians with Disabilities

CONTENTS

PART I: INTRODUCTION

PART II: CONSTITUTION-MAKING AND THE RIGHTS OF PERSONS WITH DISABILITIES

1. The Exclusion of Persons with Disabilities from the Charter
2. From Disillusionment to Hope

PART III: THE JUDICIAL INTERPRETATION OF DISABILITY EQUALITY RIGHTS: SUCCESSES AND CHALLENGES

1. Concepts of Equality
   1. Formal Equality
   2. Proof of Intent
   3. Recognition of Unintentional Discrimination
   4. Substantive Equality
   
    
2. In Search of Legal Equality
   1. Defining Discrimination Under Human Rights Law
      1. The Early Days
      2. The Current Approach
         1. Need for a New Approach
         2. The New Three-Step Test
         3. Applying the Three-Step Test to Disability Rights Cases
      3. How Far Have Persons with Disabilities Come Under Human Rights Law
         1. Definition of Discrimination
         2. Proof of Discrimination
         3. Accommodation as an Essential Component of Substantive Equality
         4. Scope of Accommodation
         5. Definition of Disability
         6. Inclusivity of Employment Benefits
   2. Defining Equality Rights Under s. 15 of the Charter
      1. The Early Years
      2. Key Disability Rights Decisions Under the Charter
         1. Emily Eaton v. Brant County Board of Education
         2. Eldridge et al. v. British Columbia (Attorney General)
         3. R. v. Latimer all under the previous
      3. Current Trends
         1. Problems Arising from the Dignity Test
      4. How Far Have Persons with Disabilities Come Under the Charter?
      5. Some Thoughts on Future Litigation Strategies to Preserve a Substantive Theory of Equality
         1. Harmonizing Human Rights and Equality Rights Analyses
         2. Expanding Substantive Equality to Include Social Equality
         3. Using "Dignity" to Advance Equality

PART IV: CONCLUSION

APPENDICES

Appendix 1. Interview Guide

Appendix 2. List of Key Informants

 

Twenty Years of Litigating for Disability Equality Rights: Has it Made a Difference?

An Assessment by the Council of Canadians with Disabilities

"To fail to prohibit discrimination on the grounds of disability in any constitutionally entrenched Charter of Rights and Freedoms which does prohibit discrimination on the grounds of race, national or ethnic origin, colour, religion, sex or age is tantamount to rejecting the fundamental humanity of disabled Canadians." ¹

PART I: INTRODUCTION

The above words, written by Allan Simpson in 1980 (the then Chairperson of the Coalition of Provincial Organizations of the Handicapped), were aimed at Canada's legislators, who, at that moment were willing and prepared to ignore the rights of Canadians with disabilities. People with disabilities fought back and proved to the world that the voices of the disenfranchised can make a difference.

Over 20 years have passed since people with disabilities won the right to be recognized by Canada's Constitution. Securing Constitutional recognition was only the first step of affirming the equality rights of people with disabilities. Since that time, people with disabilities have stepped through the courthouse door and insisted that Canada's judicial system pay attention to their rights and irradicate discrimination from Canadian laws and institutions. This paper traces the evolution of disability equality rights; from demanding recognition and inclusion in human rights law, to becoming experienced litigators for a substantive vision of equality in Canada.The year 1980 was groundbreaking for Canadians with disabilities. After decades of isolation and exclusion from mainstream society, people with disabilities were finding their voice and asserting their claim to full citizenship. Influenced by the American Civil Rights Movement and the Women's Movement in Canada, people with disabilities recognized the need and the value of framing their issues within a political context that subscribed to principles of equality and full participation. The desire by persons with disabilities to be part of Canada's democratic process triggered the evolution of the Coalition of Provincial Organizations of the Handicapped (COPOH), a national cross-disability rights organization.

In the fall of 1980 COPOH was only a few years old and still in the early stages of developing its organizational structures. Nevertheless, its strength and resolve to advocate for the rights of persons with disabilities was seriously tested by Pierre Trudeau, the then Prime Minister of Canada. Mr. Trudeau fervently wished to bring Canada's Constitution home from Britain. His Constitutional reforms also included a passionate commitment to create a charter, which would set out the rights and freedoms of persons living in Canada.

Trudeau's Constitutional ambitions sparked a flurry of debates among individual politicians, between the various levels of governments and within the public at large. Of particular interest to persons with disabilities was Trudeau's proposed charter.

Although the proposed charter was designed for all Canadians, its guarantee of equality recognized the particular discrimination experienced by certain groups because of their race, sex, religion, age etc. Missing from this list was the discrimination experienced because of a disability. This glaring omission did not go unnoticed by COPOH's leaders. Recognizing that this was a critical moment in Canada's history, COPOH mounted its first major political campaign. Through skilled leadership and a fierce determination by its members to change the course of history, COPOH persuaded Canada to become one of the first countries to accord persons with disabilities Constitutional protection of their equality rights.

People with disabilities celebrated their Constitutional recognition with hope, optimism and a vision for a future based on respect for their rights and a commitment to equality. A couple of decades have passed since that momentous victory. It is therefore a good time to ask; "Has that future been achieved?"

The attainment of equality can be pursued through many avenues such as the mainstream political process, community development and the legal system. All avenues are important; however, this paper specifically examines how the courts have articulated the rights of persons with disabilities.

The Council of Canadians with Disabilities ("CCD") (formerly known as COPOH)² has played an active role in Canadian courts in an effort to promote a judicial understanding of equality that:

1. Recognizes the historical disadvantage and discrimination experienced by persons with disabilities; and
2. Supports the need to remove disability-based barriers and create an inclusive society.

CCD has intervened or initiated approximately 23 legal challenges. A successful legal challenge can serve as a benchmark or precedent that must be upheld and respected by governments and their agents.

CCD has played a central role in securing landmark decisions in the Supreme Court of Canada on the interpretation of the equality guarantee. But the fact remains that achieving equality through the judicial process is slow, time consuming, and requires significant human and financial resources. The purpose of this paper is to assess the progress made by persons with disabilities to advance their rights through the judicial process

This paper is structured as follows:

1. A brief description of CCD's (COPOH) fight to obtain inclusion in the equality guarantee of the Canadian Charter of Rights and Freedoms (the "Charter"); and
   
    
2. An analysis of key human rights and equality rights cases and their impact on the rights of persons with disabilities.

PART II: CONSTITUTION- MAKING AND THE RIGHTS OF PERSONS WITH DISABILITIES

The Exclusion of Persons with Disabilities from the Charter

During the 1970s, Pierre Elliot Trudeau, the then Prime Minister of Canada, began talking about patriating the British North America Act and entrenching a charter of rights in the Constitution. In light of Mr. Trudeau's thinking, Leon Mitchell, a disability rights activist and lawyer, advised COPOH to consider the value of ensuring that the rights of people with disabilities were included in a patriated Constitution.³ Consequently, at its first national conference COPOH passed the following resolution:

Be it resolved that C.O.P.O.H strongly recommend to the Federal Cabinet and all members of parliament that the human rights of physically handicapped citizens be entrenched in any new Canadian constitution.⁴

In 1980 Trudeau acted on his idea and reconvened the 32nd Parliament of Canada to consider a resolution asking the British Parliament to patriate the British North America Act. In the fall of 1980, the government of Canada released a document containing its "Proposed Resolution Respecting the Constitution of Canada." The government's proposal was tabled in both the House of Commons and the Senate and debate began immediately.

The first part of the government resolution outlined a Canadian Charter of Rights and Freedoms, which included: fundamental freedoms, democratic rights, mobility rights, legal rights, non-discrimination rights and language rights. The Resolution provoked a great deal of controversy with six provinces announcing their intention to challenge it in court. The government was force to invoke closure to move the debate on the Resolution from Parliament to a joint Parliamentary Committee on the Constitution (referred to as the Parliamentary Committee).

As the Constitutional debate heated up so did the efforts of COPOH. COPOH was gravely concerned about the exclusion of persons with disabilities from the non-discrimination clause. The clause read as follows:

Everyone has the right to equality before the law and to equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.

In a telegram addressed to Jean Chrétien, Minister of Justice, dated September 18, 1980, COPOH denounced this restrictive wording. On October 20, 1980, Jacques A. Demers, Special Advisor, responded on behalf of Jean Chrétien, and explained that careful consideration had been given to the grounds that should be included in a non-discrimination clause. The letter states:⁵

Since an entrenched Charter is by its very nature a generalized document which does not lend itself to detailed qualifications and limitations, it was ultimately decided to limit the grounds of non discrimination to those few which have long been recognized and which do not require substantial qualification. Unfortunately such is not yet the case with respect to those who suffer physical handicaps and consequently provision has not been made in the Charter for this ground.

COPOH responded by issuing an open letter to the members of the House of Commons and Senate, which harshly criticized the government's position and urged the construction of a more inclusive clause.⁶ Of particular concern was the two-tiered system of rights, which the government position seemed to be advocating. Writing for COPOH, Allan Simpson observed:

To fail to prohibit discrimination on the grounds of disability in any constitutionally entrenched Charter of Rights and Freedoms which does prohibit discrimination on the grounds of race, national or ethnic origin, colour, religion, sex or age is tantamount to rejecting the fundamental humanity of disabled Canadians….

If the Charter of Rights and Freedoms is entrenched as it is presently written, people who bring complaints of discrimination on the grounds of sex, age, race, religion and other grounds listed in 15(1) [the non-discrimination clause] to human rights commissions at the federal or provincial levels, will also be able to appeal to higher courts on constitutional grounds if they are not satisfied that they have been protected from discrimination by the Commission. Complaints of discrimination on the grounds of disability however, will not have a similar constitutional back-up and therefore obviously will not be given the same priority by human rights commissions when allocating limited staff resources….

In fact, it will become quite clear that discrimination against a person because he or she is disabled, while prohibited, is not as prohibited as discrimination against a person because of sex, age, race, religion and the other grounds listed in the constitution.

COPOH recognized that as a Constitutional document, the Charter would become the supreme law of Canada and would have precedence over other laws. In other words, all government laws, policies and programs would be required to conform to the principles articulated in the Charter. COPOH therefore, refused to back down and continued its relentless campaign to change the mind of the Liberal government.

COPOH deluged parliamentarians with letters and telegrams expressing its frustration and disappointment at being excluded from Charter protection. In November 1980 COPOH took its frustration to the streets and held its first demonstration on Parliament Hill.

According to the Ottawa Citizen, Allan Simpson, the then National chairperson of COPOH, and a participant in the demonstration, asserted that "the government had given no more than lukewarm support to enshrining the rights of the handicapped in the constitution." He said that "coalition members were prepared to take their case to the United Nations or to ask the British Parliament to delay patriation of the constitution until their demands were met.⁷

On January 12, 1981, Jean Chrétien made a statement to the Parliamentary Committee concerning the non-discrimination clause of the proposed Charter.⁸ In his statement he accepted an amendment to the non-discrimination clause of the proposed Charter. The amendment stemmed from recommendations made by the Advisory Council on the Status of Women and the National Association of Women and the Law.

Mr. Chrétien proposed that section 15 of the Charter be entitled 'equality rights' rather than 'non-discrimination' "to stress the positive nature of this important part of the Charter." He also proposed that the section be reworded as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular without discrimination based on race, national or ethnic origin, colour, religion, sex or age.

Despite intense lobbying, once again people with disabilities found themselves on the outside looking in. Similar to the comments expressed earlier by his Special Advisor, Mr. Chrétien argued⁹:

The position of the government is that certain grounds of discrimination have long been recognized as prohibited. Race, national or ethnic origin, colour, religion and sex are all found in the Canadian Bill of Rights and are capable of more ready definition than others.

Arguably, Mr. Chrétien's new wording was a slight improvement in that it promoted an open-ended list of prohibited grounds of discrimination. Under such wording, in the future courts could conceivably read in disability as a prohibited ground of discrimination. However, COPOH was not comforted by this new wording. For all intents and purposes it still created a hierarchy of rights; some rights were worthy of specific identification and protection while others were not.

From Disillusionment to Hope

As the groundswell for inclusion continued to increase, more and more politicians became interested and even supportive of COPOH's demands. Of particular note was the all-party Parliamentary Special Committee on the Disabled and the Handicapped (referred to as the Obstacles Committee) appointed by Parliament to examine and make recommendations on the physical and social barriers encountered by Canadians with disabilities.

Members of the Committee earnestly lobbied their respective caucuses for support for COPOH's position. In a show of solidarity on the matter, the Committee crafted a carefully worded recommendation which all parties could support and which was included in their first report to Parliament as:

Should it be the will of Parliament to entrench Human Rights in a patriated Constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicaps.¹⁰

COPOH's lobbying efforts eventually paid off and it was invited to present a brief to the joint Parliamentary Committee on the Constitution. In its submission, COPOH argued that an amendment to the proposed Charter would benefit people with disabilities in three specific ways.¹¹

First and foremost, it would give symbolic profile to the rights of people with disabilities. At the time of the Charter debate, many people with disabilities were still subjected to discrimination without recourse to legal remedies.¹² Inclusion in the Charter would therefore affirm the rights of people with disabilities as well as providing an opportunity for legal redress.

Second, because the Constitution is recognized as the supreme law of Canada, all laws in Canada are required to comply with the standards of the Charter. Inclusion of the ground of disability in s.15, the equality guarantee, would serve as a catalyst for eliminating disability discrimination from all current and future municipal, provincial and federal laws.

The primacy feature of the Charter distinguished it from ordinary human rights legislation. Laws and related government policies and programs that violate the Charter could be struck down and declared to be of no force or effect. Human rights legislation on the other hand, is generally designed to achieve an individual solution and does not have the power to strike down discriminatory laws.

Finally, it was believed that Charter recognition would reinforce the protection available to people with disabilities under human rights legislation. In conjunction with the Charter campaign, COPOH was also working to secure protection of rights in provincial and federal human rights legislation. There was a concern that the omission of people with disabilities from the Charter would inadvertently create a first and second class approach to human rights in that disability rights would be seen by human rights commissions as less deserving of attention and resources.

David Smith, now a Senator, and then representing the federal riding of Don Valley East and the Chair of the Obstacles Committee, recounts his efforts to persuade the liberal caucus to support the inclusion of persons with disabilities¹³:

We had countless caucus meetings on the Charter and the repatriation of the constitution. I gave this speech four or five times, about why this [disability rights] wasn't included, and why it was a shortcoming.

A few weeks later Senator Smith got up in caucus to give the same speech and Mr. Trudeau said "David, you can sit down. We're putting it in. We don't need to hear that speech again."¹⁴

Consequently, at the eleventh hour, January 28, 1981, Jean Chrétien announced that discrimination on the ground of mental and physical disability would be included in the equality clause. As a result s.15 now reads:

Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

It is unclear what exactly changed the justice Minister's mind. Perhaps it was the fact that denying the rights of persons with disabilities during the International Year of Disabled Persons could become a political embarrassment, or perhaps the lobbying efforts of COPOH and others really did make a difference.

On April 17, 1982 in a ceremony held on Parliament Hill, the Queen proclaimed Canada's Constitution Act 1982 into force. Her proclamation not only marked the patriation of Canada's Constitution, it also gave life to the Canadian Charter of Rights and Freedoms found in Part I of the Constitution Act.

Many Canadians celebrated this important milestone in Canada's history. But the biggest round of applause and the greatest sigh of relief undoubtedly came from Canadians with disabilities.

The inclusion of disability rights in the Charter still ranks as one of the disability movement's most significant achievements. As stated by Laurie Beachell, Executive Director of CCD, "The Charter lobby was the coming of age for the disability rights movement."¹⁵ Since 1982, Constitutional protection for people with disabilities has served as a beacon for transforming discrimination and disadvantage into rights and equality.

PART III: THE JUDICIAL INTERPRETATION OF DISABILITY EQUALITY RIGHTS: SUCCESSES AND CHALLENGES

A. Concepts of Equality

To understand fully the significance of CCD's contribution to equality in Canada, it is helpful to review the various interpretations of equality that have evolved over time. David Lepofsky describes equality as having gone through four transformations.¹⁶

1. Formal Equality

The first incarnation of equality can be traced back over two millennia to the time of Aristotle. According to the original Aristotelian conception of equality, like cases should be treated alike. This version of equality is sometimes referred to as "formal equality". Essentially formal equality requires that all persons who are in the same situation be accorded exactly the same treatment.

To obtain equality, an individual or group must demonstrate that they are the same as others. For persons with disabilities this would mean demonstrating that they were the same as non-disabled persons. A society based on able-bodied norms makes it extremely difficult for persons with disabilities to fulfill this proposition.

2. Proof of Intent

In the early 50's and 60's Canada and the United States began to recognize that discrimination occurred where members of disadvantaged groups were intentionally or deliberately singled out for different or harsher treatment than their more advantaged counterparts; e.g. overtly denying job opportunities to persons because of their race or sex. According to this version of equality, it is necessary to prove that there is intent to discriminate against an individual or a group.

This version of equality does not take into account the fact that even though there may not be intent to discriminate, policies and practices that do not include the needs of all persons may still have an unintentional discriminatory impact. For instance, a building that can only be accessed by climbing steps has an unintentional discriminatory impact on persons who use wheelchairs. This version of equality does not take into account that, in certain instances, equality requires differential treatment; e.g. providing written materials in formats other than print.

3. Recognition of Unintentional Discrimination

The third version of equality recognizes both intentional and unintentional forms of discrimination. Unlike the previous version of equality, it acknowledges that even though a policy or practice may be neutral and applied equally to all persons, it may still have a negative or adverse impact on some disadvantaged groups. For example, an employment rule that requires all employees to be able to answer the office phone creates an employment barrier for some persons who are deaf.

Under this version of equality the concept of the "duty to accommodate" was introduced by the courts to counter the discriminatory effects of unintentional discrimination. However, this version of equality promotes an artificial distinction between intentional and unintentional discrimination, which can be problematic for disability rights cases. As discussed below, one of the key problems has been whether both intentional and unintentional forms of discrimination required a duty to accommodate. In many instances it has been deemed to arise only where adverse/unintentional discrimination is established.

4. Substantive Equality

Recently, Canada has begun to move towards a more substantive version of equality. Under this version it is not necessary to identify discrimination as intentional or unintentional. In either instance, human rights law clarified that where discrimination was established, the respondent has to demonstrate that she/he has made every attempt to accommodate the complainant short of undue hardship.

Under this version, the courts now recognize that, in some cases, differential treatment may be necessary to achieve full equality. Moreover, the duty to accommodate has been elevated to a key principle of substantive equality. This means that respondents such as employers are obligated to engage in a thorough process to determine how workplace standards can be revised to be more inclusive.

B. In Search of Legal Equality

In Canada, there are two main sources of human rights law; human rights legislation enforced federally and in all provinces and territories, and in s. 15 (the equality guarantee clause) of the Charter contained in Canada's Constitution. It is important to understand the differences between human rights legislation and the Charter.

The Charter is designed to promote equality and to protect individuals from discrimination by all governments in Canada. Human rights legislation also prohibits discrimination with respect to government action as well as from the private sector.

Discrimination on the ground of disability is prohibited in all human rights statutes in Canada. Similarly and as previously discussed, disability discrimination is also prohibited by the Charter. It is therefore essential that both sources of human rights law be assessed to determine the progress of disability rights in Canada.

The Supreme Court of Canada ("SCC") has stated that generally the principles applied under the Human Rights Acts are equally applicable to questions of discrimination under s. 15(1) of the Charter.¹⁷ It is therefore useful to begin the CCD assessment by examining the evolution of discrimination under human rights law before engaging in an analysis of decisions under the Charter. Moreover, CCD has played an important role in many pivotal human rights cases that inform today's comprehensive understanding of discrimination.

1. Defining Discrimination Under Human Rights Law

a. The Early Days

In the early days of human rights law, the emphasis was on proving that the discriminator intended to discriminate. While people with disabilities often encounter attitudes that are blatantly and intentionally discriminatory, they are more likely to encounter barriers that are unintentional, but that discriminate against them because of a world based on able-bodied norms.

The first human rights cases intervened in by CCD dealt with the issue of ensuring that human rights law prohibited both intentional/direct and unintentional/indirect discrimination. The decisions at issue were Bhinder v. CN¹⁸ and O'Malley v. Simpsons-Sears.¹⁹

In 1985, the SCC issued concurrent judgments in these cases. In both instances the Court ruled unanimously that human rights law included both intentional and unintentional discrimination. (Note, the Court often uses the terms "adverse effect" or "adverse impact" discrimination when referring to unintentional or indirect discrimination.) McIntyre J. speaking for the Court stated:²⁰

An employment rule, honestly made for sound economic and business reasons and equally applicable to all to whom it is intended to apply, may nevertheless be discriminatory if it affects a person or persons differently from others to whom it is intended to apply. The intent to discriminate is not a governing factor in construing human rights legislation aimed at eliminating discrimination. Rather, it is the result or effect of the alleged discriminatory action that is significant.

Not only did the Court expand the definition of discrimination; it also addressed the issue of the "duty to accommodate". Curiously, even though the cases were decided at the same time, the Court rendered two decisions that seemed to go off in opposite directions.

In O'Malley, which was decided under the Ontario Human Rights Code, McIntyre J. ruled that where a case of adverse effect discrimination is made out, the employer has a duty to take reasonable steps to accommodate short of undue hardship in the operation of the employer's business.²¹ In this case, the complainant advised her employer that she was required to observe the Sabbath of her religion, which would prevent her from working from Friday sundown to Saturday sundown. She requested that her religious observance be accommodated which was denied by her employer. The Court declared the rule that all employees be available for work on Friday evenings to be adverse effect discrimination, which was compounded by the employer's refusal to consider accommodating the employee's religious requirements.

In Bhinder, which was decided under the Canadian Human Rights Act, the Court also ruled that adverse effect discrimination was prohibited. However, it went on to say that where adverse effect discrimination could be characterized as a bona fide occupational requirement or qualification ("BFOR/Q") there was no duty to accommodate.²² In other words, employers could escape the duty to accommodate by arguing that the discriminatory action complained of was a BFOR. A BFOR/Q is a standard that has been demonstrated to be rationally connected to the business in question, has been imposed in good faith, and is reasonably necessary to carry out the objectives of the business.²³

The duty to accommodate is a central principle of disability equality rights. It requires employers to take steps to remove employment barriers. For example, an employer who requires a blind employee to use a computer can eliminate employment barriers for that person by installing speech reader software on the computer, thereby accommodating that employees need to access print information. Consequently, the Court's recognition of indirect or adverse effect discrimination and the corresponding duty to accommodate was a significant accomplishment for disability rights. However, this success was tainted by the Court's determination that an employer could answer a claim of discrimination by establishing that the action in question was a BFOR/Q. Fortunately, a few short years later, the Court recognized the errors of its ways, reversed its position, and affirmed that even where adverse effect discrimination is made out to be a BFOR/Q, the employer is still obligated to provide accommodation short of undue hardship.²⁴

The Bhinder and O'Malley jurisprudence indicated that there were limits as to how far an employer would have to go to provide accommodation. The Court adopted the term "undue hardship" and stated that employers would not be required to provide accommodations where they could prove that it would cause an undue hardship. While definitive criteria for establishing undue hardship has not been articulated, two key SCC decisions have provided guidance in this area.

In Alberta Human Rights Commission v. Central Alberta Dairy Pool²⁵ Wilson J. had the following to say about "undue hardship":

I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the board of inquiry in the case at bar - financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case.

Unlike its American counterpart, the SCC rejected the de minimus test, which only required employers to make minimal efforts to accommodate.²⁶ It stipulated that "more than mere negligible effort" is required to satisfy the duty to accommodate. The use of the term "undue" infers that some hardship is acceptable.²⁷

Thus, to argue undue hardship, employers have to prove significant financial cost which will vary in assessment, depending on availability of revenue. The size of the business will also be a factor. For example, it might be much more difficult for a small corner store, as opposed to a government department or agency, to accommodate employees who need time off to observe their religion.

Finally, an accommodation that places others at risk, such as allowing a person with poor vision to drive a forklift in a crowded warehouse, may constitute undue hardship.

However, with respect to the impact of accommodation on other employees the Court said that the employer must establish that actual substantial interference with the rights of other employees will result from the adoption of the accommodating measures. The interference must be something more than a minor inconvenience.²⁸

Nor can an employer or a union rely on provisions of a collective agreement to fend off a complaint of discrimination if such provisions are found to be discriminatory. For example, a collective agreement that does not allow an employee to rearrange her/his shifts so that she/he can observe the Sabbath of her/his religion will be found to be in violation of human rights law. In other words, an employer and a union cannot contract out of human rights obligations.²⁹

While the provisions of a collective agreement cannot absolve the parties from the duty to accommodate, the effect of the agreement is relevant in assessing the degree of hardship which may occur if there is interference with the agreed upon terms. Substantial departure from the normal operation of the conditions and terms of employment in the collective agreement may constitute undue interference in the operation of the employer's business.³⁰

b. The Current Approach

In 1999 the SCC issued two decisions that clarified the analysis to be used when assessing a claim of discrimination. More importantly, these decisions endorsed a much bigger, more transformative version of accommodation; a version that defines accommodation as a central feature of substantive equality.

(i) Need for a New Approach

In the Meiorin case³¹ the Court acknowledged the value of the earlier cases which recognized both direct and adverse effects discrimination. However, the Court opined that the time had come for a clearer and more contemporary approach to discrimination, and subsequently discarded the conventional approach of categorizing discrimination as "direct" or "adverse effect" discrimination. It argued for a unified approach for a number of reasons including:

(1) It recognized the spuriousness of trying to fit an action into a category of direct or adverse effect discrimination; that is, in many instances, a work rule can be characterized as both direct or adverse effect discrimination.

For example, the ability to walk quickly could be construed as direct discrimination against persons who cannot walk quickly because of a disability. In this scenario, an employer could argue that the requirement was a BFOR/Q and escape a human rights complaint. On the other hand, the ability to walk quickly could be characterized as adverse effect discrimination on the ground of disability, thereby raising the need for accommodation. The Court rejected the duel remedy approach to human rights violations.

(2) Under a conventional analysis, a rule, which adversely discriminates, is often permitted to stand as long as accommodation short of undue hardship is offered. This arrangement maintains the legitimacy of the offending rule and treats accommodation as an exception or extraordinary measure. In this way, able-bodied, white, male norms remain in tact as the dominant standard. Citing Gwen Brodsky and Shelagh Day,³² McLachlin J. observed:

The difficulty with this paradigm is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, able-bodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves "normal" to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are "accommodated".

Accommodation, conceived this way, appears to be rooted in the formal model of equality. As a formula, different treatment for "different" people is merely the flip side of like treatment for likes. Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed. Accommodation seems to mean that we do not change procedures or services, we simply "accommodate" those who do not quite fit. We make some concessions to those who are "different", rather than abandoning the idea of "normal" and working for genuine inclusiveness.

McLachlin concludes that reasonable accommodation contemplated by previous jurisprudence reduces the right to be free from discrimination to a question of whether the mainstream can afford to confer proper treatment on those adversely affected, within the confines of its existing formal standard. If it cannot, she argues that the edifice of systemic discrimination receives the law's approval.³³

(3) The conventional approach to discrimination does not accord with the analysis being applied to the equality rights provision of the Charter. Under s. 15(1), a claimant must show that a law infringes her/his rights either in purpose or effect. In other words, the analysis is the same whether the discrimination is intentional or unintentional.

(ii) The New Three-Step Test

In the Meiorin case, the SCC set out a new three-step test which employers must meet to establish a BFOR/Q.³⁴ Under human rights law, the onus is on the complainant to establish that she/he has been discriminated against. The onus then shifts to the respondent to demonstrate that the discriminatory action or behavior constitutes a BFOR/Q defense regardless of whether the discrimination is intentional or unintentional. Under this test an employer must

1. Show that it adopted the standard for a purpose rationally connected to the performance of the job;
   
    
2. Establish that it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
   
    
3. Establish that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees without imposing undue hardship upon the employer. The third step explicitly incorporates a duty to accommodate into a BFOR/Q defense.

The Court recommended that in assessing a claim of discrimination, it may be helpful to conduct a separate review of the process employed to craft an accommodation solution and the substance of the accommodation measure, if one was offered. The Court asserted that employers must take steps to provide individual assessments of an employee's skills and abilities as well as exploring alternative methods of performing a job. The Court recommended asking the following questions when conducting an accommodation analysis³⁵:

1. Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
   
    
2. If alternative standards were investigated and found to be capable of fulfilling the employer's purpose, why were they not implemented?
   
    
3. Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
   
    
4. Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purpose?
   
    
5. Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
   
    
6. Have other parties, such as a union, who are obliged to assist in the search for possible accommodation fulfilled their roles?

By enacting human rights statutes and providing that they are applicable to the workplace, McLachlin argued that the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced by a more inclusive standard.³⁶

(iii) Applying the Three-Step Test to Disability Rights Cases

A few months after deciding the Meiorin case, the SCC had an opportunity to consider a human rights complaint involving disability discrimination. In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (Grismer)³⁷ the B.C. Superintendent of Motor Vehicles cancelled the complainant's drivers licence on the ground that he did not meet required vision standards. The complainant had a condition that limited most of his left side peripheral vision in both eyes. The refusal was based on a blanket policy that denied drivers licences to all persons with this disability. Despite the fact that he was able to pass all the requisite tests, the superintendent made no attempt to provide an individual assessment of the complainant's ability to drive safely.

The Court applied the three-step test set out in Meiorin. Under this test, the claimant successfully established prima facie discrimination by showing that he was denied a licence on the basis of his physical disability. The superintendent was then required to show that he had taken steps to accommodate the complainant short of undue hardship. The superintendent failed this step of the test because he did not undertake an individual assessment of the complainant's ability to meet the requirement of reasonable road safety to determine his illegibility for a driver's licence.³⁸

In upholding the complainant's claim the Court stressed that³⁹:

The Superintendent fell into error because he abandoned his reasonable approach to licensing and adopted an absolute standard which was not supported by the evidence. Those who provide services subject to the Human Rights Code must adopt standards that accommodate people with disabilities where this can be done without sacrificing their legitimate objectives and without incurring undue hardship. This does not suggest that safety standards must be lowered.

With respect to the argument of undue hardship the court noted that excessive cost may justify a refusal to accommodate those with disabilities, but one must be wary of putting too low a value on accommodating the disabled. Impressionistic evidence of increased expense will not generally suffice.

c. How Far Have Persons with Disabilities Come Under Human Rights Law

To date, most of the leading human rights cases dealing with the definition of discrimination and the duty to accommodate have focused primarily on the rights of religious minorities. While these cases have succeeded in propounding key human rights principles, there is still some uncertainty as to how and to what extent these principles will be applied to the case of disability discrimination. Nevertheless, the current body of human rights principles offers a promising framework on which to construct future disability rights claims. This hope is further augmented by a handful of disability rights cases which proffer support for a comprehensive disability rights analysis under human rights law.

David Baker, a disability rights lawyer in Ontario, believes that the jurisprudence has already had a positive impact on disability rights.⁴⁰ According to Baker, because of the gains made in human rights jurisprudence employers now take the duty to accommodate "extremely seriously" which has enabled him to secure significant accommodation remedies.

The following is a summary of pertinent gains made by persons with disabilities under human rights law.

(i) Definition of Discrimination

Both direct and adverse effect forms of discrimination are prohibited by human rights law. A broad definition of discrimination is important to a disability rights analysis.

Although persons with disabilities still face overt forms of discrimination, the most damaging forms of discrimination stem from an otherwise neutral practice or policy, which is now considered to be adverse effect discrimination. It can be argued that adverse effect discrimination encompasses systemic discrimination. Systemic discrimination is at the root of much of the disadvantage which confronts persons with disabilities because, as a general rule, societal institutions in all their forms (i.e. employment arrangements, health care, education, architecture) are designed with only able-bodied persons in mind. Because disability has not been considered at the 'drawing board' stage of public policy and institutional development, systemic barriers exist from the outset.

(ii) Proof of Discrimination

Where a complainant substantiates discrimination, the onus shifts to the employer and/or service provider to prove that she/he has not engaged in discrimination by complying with the requirements of a three-step test. Step three of this test is of particular interest to persons with disabilities as it demands that the employer and/or service provider prove that the rule or policy in question is reasonably necessary ant that it is impossible to provide accommodation short of undue hardship. In short, the duty to accommodate is a core component of the establishment of a BFOR/Q.

(iii) Accommodation as an Essential Component of Substantive Equality

In practical terms, the duty to accommodate is often regarded as an entitlement belonging to the aggrieved party. However, under current human rights law, the duty to accommodate only arises where an employer or service provider must defend her/himself against a complaint of discrimination.

Regardless of how the duty is manifested, it is clear that the courts have begun to interpret accommodation as a process for transforming norms that are based on majoritarian values into norms that are more inclusive of all abilities and characteristics. Over the last couple of decades accommodation has evolved from a concept that promoted minor tinkering to a concept that has the potential to redefine the meaning of status quo.

(iv) Scope of Accommodation

For accommodation to be meaningful to people with disabilities, it must include both systemic measures and individual adaptations. For example, systemic measures are needed to eliminate broad structural barriers. On the other hand, because disability is not a homogeneous characteristic, and because disabilities vary from person to person, individual accommodations are essential to disability equality rights. Support for a spectrum of accommodation can be derived from both the Meiorin and Grismer cases.

(v) Definition of Disability

Over the past couple of decades, discrimination on the ground of disability has come to be prohibited in all Canadian human rights statutes. Disability discrimination is prohibited in matters such as employment and employment related activities, housing and the provision of goods and services.

Generally the term "disability" has been broadly defined to include physical, mental and psychological disabilities. However, in 2000, the SCC clarified that a "handicap" may be real or perceived⁴¹; that is, a person may have no limitations in everyday activities but may still be subject to prejudice and stereotypes because of a perceived disability. For example, discrimination based on a perceived disability occurs where a person is denied a job because a pre-employment medical discloses that she/has a defect of the spinal column even though the person experiences no discernible physical limitations.

Consequently, it is now clear that the term disability goes beyond a medical diagnosis to include the circumstances in which a distinction is made. As stated by the Court: "The emphasis is on the effects of the distinction, exclusion or preference rather than the precise cause or origin of the handicap."⁴²

This pronouncement may be particularly important in the realm of genetic testing. As the scope and demand for genetic testing increases it is likely that predispositions to certain diseases and conditions will be identified which will undoubtedly raise a host of human rights issues.

(vi) Inclusivity of Employment Benefits

The SCC denounced an employment practice that provides employment benefits to some employees with disabilities while excluding others. In Battlefords and District Co-operative Ltd. v. Gibbs⁴³ the employer provided an income replacement benefit to those employees who were rendered unable to work because of a disability. However, where the cause of an employee's inability to work was a mental illness or mental disability, the income replacement benefits were terminated after two years unless the employee remained housed within a mental institution. Conversely, if the employee was unable to work because of a physical disability, her/his benefits continued without regard to type of treatment.

This practice not only reinforced stereotypes about the type of treatment required by persons with mental disabilities, it also favoured one disability group over another group. The Court found this practice to be a violation of the Saskatchewan Human Rights Code.

2. Defining Equality Rights Under s. 15 of the Charter

In 1982, the Canadian Charter of Rights and Freedoms was proclaimed into force as part of Canada's Constitution. As a Constitutional document, the Charter is regarded as supreme law. Parliament and the legislatures must now ensure that government laws, policies and actions conform to the standards set out in the Charter.⁴⁴

Section 15 of the Charter did not come into force until April 17, 1985. Governments requested a three-year exemption to give them time to audit their laws and to ensure compliance with the Charter. Although this delay was disappointing for persons with disabilities, it provided an opportunity for all equality-seekers to consider how best to utilize their newly secured equality rights. Of particular concern were the financial resources that would be required to mount a Charter challenge. Without an ability to access the courts to enforce their rights, the promise of equality would continue to be illusory and out of reach for equality-seekers.

The Women's Legal Education and Action Fund ("LEAF") spearheaded a movement to pressure the federal government to establish a fund which could be used by equality-seekers to support court challenges. CCD eagerly endorsed this concept. Amazingly, the idea struck a cord with the federal government and in 1985 the Court Challenges Program (of Canada) was established.

From the outset, CCD has assumed a leadership role in obtaining a comprehensive interpretation of equality under the Charter. It was an intervenor in the first case to be decided by the SCC under s. 15 of the Charter. Since that case CCD has intervened in 11 Charter cases.

In most cases, CCD has participated in Charter litigation as an intervenor at the appeal level. An intervenor is an interested party that is given leave by the Court to participate in a particular case. To obtain intervenor status in a matter, a party must demonstrate that it has a particular expertise that will assist the court in rendering a decision.

An intervenor is not associated with the parties originating the action, and is generally less interested in the actual outcome of the case and more interested in the legal principles applied to resolve one or more of the issues before the court. In the case of Charter litigation, equality-seeking organizations have played a vital role in supplying the court with broad social science evidence beyond what is usually provided by the parties to the litigation whose concern is more likely to be limited to one discrete issue.

The Charter does not contain a definition of equality. Hence, Charter litigation has focused primarily on identifying those legal principles that will foster a substantive theory of equality. This focus is slightly different than that of human rights law, which tends to be more concerned with defining discrimination.

Arguably, the interpretation of equality is still very much at an evolutionary stage. Significant gains have been made but an interpretation that addresses the deeply rooted structural inequities in Canadian society is still a distant goal. Set out below is a brief overview of the judicial progress made under the Charter.

a. The Early Years

The first case to be decided by the SCC was Andrews v. Law Society of British Columbia.⁴⁵ CCD, in partnership with LEAF, intervened in the case and urged the Court to reject a formal approach to equality and adopt instead a more inclusive, more substantive interpretation. The decision in Andrews was monumental, establishing a landmark precedent on which to build future equality rights jurisprudence.

The Andrews case sets out a two-step approach to s. 15(1). The first step is to determine whether or not an infringement of a guaranteed right has occurred. The second step is to determine whether, if there has been an infringement, it can be justified under s. 1 of the Charter.

McIntyre J. writing for the majority adopted the following analysis⁴⁶ to determine whether discrimination has occurred for the purposes of meeting the first step of the s. 15 test.

A complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.

The Court also articulated some principles to guide a s. 15 analysis which include:

(1) Acceptance of a purposive approach to the interpretation of s. 15

Under a purposive approach the Court considers the purpose of the guarantee in question in light of the interests it was meant to protect. Wilson J., writing for the minority in Andrews⁴⁷, most clearly articulated the 'purpose' behind s. 15 as "designed to protect those groups who suffer social, political and legal disadvantage in our society..." whose members can be identified by their persistent exposure to 'stereotyping, historical disadvantage or vulnerability to political and social prejudice..."

One of the first disability rights cases to apply this principle was R. v. Swain.⁴⁸ Under a purposive analysis, the Court recognized that the stigma of mental illness can be very damaging and that historically the mentally ill have been the subjects of abuse, neglect and discrimination in our society.

Establishing the social context for an equality rights claim is the essence of a purposive approach. As discussed later in this paper, social context has proven to be an important tool for informing the court on the impact of disability-based discrimination and the remedy needed to fulfill disability equality rights aspirations.

(2) Rejection of the equation of equality with sameness of treatment and adoption of an effects-based approach

The Andrews case clearly rejects a formal model of equality. It recognizes that identical treatment may frequently produce serious inequality.⁴⁹ However, it also recognizes that substantive equality requires same treatment in some instances and differential treatment in others.

In describing equality McIntyre J. succinctly states: "the accommodation of differences ... is the essence of true equality."⁵⁰ Similar to human rights law, discrimination under s. 15 assesses both the purpose and effect of the impugned law. This is an important feature for persons with disabilities as much of the discrimination they experience is more likely to stem from the adverse effect of a law or policy rather than from a deliberate act of discrimination.

Since the decision in Andrews, the SCC judges have expressed significant differences of opinion as to what constitutes an appropriate s. 15 analysis.⁵¹ A thorough analysis of these differences is beyond the scope of this paper. However, in short, the difficulty seems to lie in how the various members of the Court interpret the existence of discrimination.

In Andrews, it was pointed out that not every distinction or differentiation in treatment would transgress the equality guarantee.⁵² Factors such as the legislative relevance of an impugned law⁵³, or the extent to which a law infringes a claimant's dignity⁵⁴ have been introduced by some judges as devices to ascertain which differences are acceptable and which are not. Recent analytical trends under s. 15 are explored later in this paper. Despite differences in approach by members of the Court, persons with disabilities have made some initial progress under the Charter.

b. Key Disability Rights Decisions Under the Charter

(i) Emily Eaton v. Brant County Board of Education

One of the first cases to address squarely the issue of disability rights under the Charter was handed down by the SCC in February 1997 in the matter of Eaton v. Brant County Board of Education.⁵⁵ Emily Eaton was a 12-year old girl with multiple disabilities. For three years she attended her neighbourhood school in an integrated setting. However, her teachers eventually decided that remaining in an integrated classroom was not in her best interest. It was decided to place her in a special education classroom. Her parents objected and launched a legal challenge to the school's decision.

Unfortunately, the Eaton's were not successful at the SCC level. Sopinka J. noted that disability is not a homogeneous characteristic. This fact he argued raises the "difference dilemma" whereby segregation can be both protective of equality and violative of equality depending upon the person and the state of disability.⁵⁶ With this understanding in mind, he determined that Emily Eaton would not be burdened or disadvantaged by a placement in a special educational environment.

While the actual results of the decision are a disappointment to persons with disabilities, the Court offered some useful principles for framing a disability equality rights claim. Reiterating its caution that not all distinctions constitute Charter violations, the Court went on to say that distinctions based on presumed rather than actual characteristics have particular significance when applied to persons with physical or mental disabilities.⁵⁷

Sopinka observed that in the case of disability, the purpose of s. 15 has two aims. First it must prevent discrimination caused by prejudices and stereotypes, and second, it must address the disadvantage caused by a society based solely on "mainstream" attributes to which disabled persons will never be able to gain access. He further observes that "..it is the failure to make reasonable accommodation, to fine tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them."⁵⁸

In summary, the Eaton case represents a move towards a social construction of disability. It advances the proposition that it is no longer acceptable to expect persons with disabilities to fit into a mainstream society premised on able-bodied norms. Like human rights jurisprudence, the Eaton case makes it clear that under the Charter, governments have a duty to accommodate the needs of persons with disabilities. Accordingly, the SCC reached the important conclusion that it is discriminatory to require a blind person to take a written test that is not available in an alternative formats, such as large print or Braille, or to require a person using a wheelchair to enter a library by ascending stairs rather than a ramp.

On the subject of integrated education, the Court asserted that a decision making body must first determine whether the integrated setting can be adapted to meet the special needs of an exceptional child. Where this is not possible (that is, where aspects of the integrated setting which cannot reasonably be changed interfere with meeting the child's special needs), the principle of accommodation will require a special education placement outside of this setting.⁵⁹

The contributions of the Eaton case to a substantive disability equality rights analysis are mixed. The Court correctly acknowledged that disability discrimination goes beyond stereotyping to include barriers created by an ablest society. However, its acceptance that segregation can sometimes be the best form of accommodation is troubling. While it is true that in some situations, persons with disabilities can benefit from services designed specifically to meet their unique needs, it is also true that segregation has been used to oppress and exclude persons with disabilities. Therefore, any form of judicial sanctioning of the use of segregation clearly has the potential to ignite alarm bells within the disability community.

(ii) Eldridge et al. v. British Columbia (Attorney General)

Shortly after the Eaton case, the SCC handed down its most definitive articulation of disability rights under the Charter in the matter of Eldridge et al. v. British Columbia (Attorney General).⁶⁰ At issue in this case was the B.C. government's refusal to provide sign language interpretation to enable deaf patients to communicate effectively with their health care providers.

Decisions in the lower courts, the B.C. Supreme Court and the B.C. Court of Appeal, demonstrate how easily the lack of a contextual analysis can undermine a disability rights claim. The B.C. Supreme Court determined that interpreting services were ancillary services and therefore not medically required.⁶¹ With those words the Court placed responsibility for the inaccessibility of medical services on the "communication handicaps" of deaf people, and not on the underinclusive legislation. This pronouncement promoted and enforced the norm of able-bodyism.

Furthermore, the Court noted that the Medical Services Plan treated everyone the same. The plan covered payment for a list of medically required services for all persons including deaf persons. No ancillary services of any kind were covered for deaf or hearing persons.⁶² In the Court's opinion, "The failure of the Medical Services Plan to provide for funding of interpreting services cannot be said to be discriminatory when it does not provide for funding of any other non-medical service."⁶³

The B.C. Supreme Court did not consider the disadvantage which accrues to deaf people in the context of medical services provided in an auditory and verbal environment. The negative effect of this underinclusive piece of legislation was hardly noted.

The plaintiffs fared no better in the B.C. Court of Appeal. It too decreed that the legislation in question provided the benefit of free medical services equally to the hearing and deaf populations. Because sign language interpretation was not deemed to be medically necessary, the responsibility for obtaining such services fell to the deaf persons.⁶⁴ Once again, the Court's analysis was devoid of any understanding of the historical disadvantage experienced by deaf persons when accessing services designed with only hearing persons in mind.

The SCC emphatically disagreed with the lower courts and issued a stunning reversal of the B.C. Court of Appeal. The Court ruled that the failure to provide sign language interpretation constituted adverse effect discrimination against deaf persons.⁶⁵ It argued that the notion that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits "bespeaks a thin and impoverished vision of s. 15(1)."⁶⁶

The Court clarified that the Charter can apply to legislation in two ways:

1. A law may be found to be discriminatory on its face which cannot be justified;
   
    
2. A law may be valid but the actions of a decision-maker(s) operating under that law may be discriminatory. In that situation, the law remains intact but a remedy can be fashioned to redress the effects of the discriminatory action. In other words, where a government delegates a government function to a non-government body or agency, the reach of the Charter will be in full effect.

On its face, the Medicare system applies equally to the deaf and hearing populations. Thus the legislation in and of itself is not discriminatory. The discrimination arose not because the legislation was discriminatory on its face, but because the government and its agents failed to ensure that deaf persons benefited equally from the services provided under the legislation.

The Court endorsed the view that the adverse effects discrimination is especially relevant in the case of disability.⁶⁷ In Eldridge the adverse effects experienced by deaf persons emanated from a failure to ensure that deaf persons benefited equally from a service offered to everyone. Effective communication was regarded as an essential component of the health care system. The Court ruled that the government is required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services.⁶⁸

In deciding the Eldridge case, the SCC applied a contextual analysis and recognized the long-standing disadvantage experienced by persons with disabilities. It said:

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions.⁶⁹

This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw. As a result, disabled persons have not generally been afforded the "equal concern, respect and consideration" that s. 15(1) of the Charter demands. Instead, they have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able bodied norms.⁷⁰

In discussing the principle of accommodation, the Court adopted the human rights doctrine which incorporates the principle as part of a defence against a claim of discrimination. Consequently, in a Charter analysis, the Court determined that the adequacy of accommodation measures should be considered under s. 1, (the section which permits discrimination only if it can pass a stringent justification test).⁷¹

In summary, the major legal gains made under the Eldridge case are:

1. The recognition that adverse effects discrimination is a critical component of a disability rights analysis.
   
    
2. The recognition that the reach of the Charter applies to governments and those entities delegated to carry out government activities.
   
    
3. The recognition that while a particular act may not be considered discriminatory, the activities carried out under the auspices of the act may be so characterized.
   
    
4. The requirement that when a government or its agent provides a benefit to the public, it must make special efforts to ensure that all persons have the opportunity to benefit equally.
   
    
5. The recognition that the historical disadvantage experienced by persons with disabilities is an important aspect of a s. 15 contextual analysis.

(iii) R. v. Latimer

The case of R. v. Latimer,⁷² is not a Charter case per se. It is a criminal law case which deals with the conviction of Robert Latimer for the murder his severely disabled daughter. According to the Criminal Code of Canada, accused persons convicted of second-degree murder are required to serve a mandatory minimum sentence of 10 years of imprisonment for life.⁷³

Mr. Latimer argued that this sentence amounted to cruel and unusual punishment and requested the SCC to grant him a Constitutional exemption from this sentence. Latimer did not deny the murder. He pleaded for compassion and argued that he was driven to commit murder by the necessity to spare his daughter from further pain and suffering. His protestations struck a cord with the trial jury,⁷⁴ which recommended one year of imprisonment before parole. The judge accepted this recommendation and granted Latimer a Constitutional exemption from the mandatory sentence.

The Saskatchewan Court of Appeal confirmed Latimer's conviction but reversed the trial Judge's sentence and imposed the mandatory minimum 10-year sentence.⁷⁵ The SCC dismissed Mr. Latimer's appeal on both his conviction and his sentence, thereby upholding the requirement that Latimer be sent to prison for a minimum of 10 years.

Throughout the trial process and his subsequent appeals, Latimer's plight garnered overwhelming public sympathy. After years of fighting for social issues such as the right to live, work and participate in the community as equal citizens, disability rights activists were taken aback by the relentless, passionate, public-wide debate on the fundamental issue of whether it is legally and morally acceptable for a father to take the life of his severely disabled daughter. Organizations like CCD were compelled to intervene in the case to ensure that Latimer's actions and arguments were scrutinized in accordance with the requirements of the Charter's guarantee of equality.⁷⁶

While the SCC did not engage in an extensive s. 15 analysis of Latimer's arguments, it is clear when reviewing its decision that disability equality rights were an important consideration in its determination. The Latimer case is an important example of how the Charter can be used to ensure that Canada's justice system is guided by principles of equality.

c. Current Trends

In 1999 the SCC attempted to craft a more unified approach to analyzing s.15 claims. In an effort to synthesize the approaches set out in earlier cases, Law v. Canada (Minister of Employment and Immigration)⁷⁷ proposes a revised three-step test for establishing a violation of s. 15. Under this approach a claimant must show:

1. The impugned law, in purpose or effect, draws a distinction;
   
    
2. The distinction is drawn on a ground of discrimination prohibited by s. 15 of the Charter; and
   
    
3. The distinction, in purpose or effect, constitutes discrimination.

To a large measure, the three-step approach is similar to the two-step approach set out in Andrews. Each step is informed by s.15's purpose of protecting human dignity and freedom.⁷⁸ The focus of the third step is on substantive violations of equality rights.

According to Dr. Sheilah Martin, a legal commentor on Constitutional law,⁷⁹ what is different about the Law approach is that to establish discrimination, there must be a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1), which is said to be the safeguarding of a person's human dignity. Consequently, the current approach now seems to demand that in addition of establishing differential treatment, a claimant must also show a violation of human dignity. In other words, a claimant must illustrate that the differential treatment perpetuates the view that she/he is less capable or less worthy of recognition or value as a human being or as a member of Canadian society.⁸⁰

In the Law decision, Iacobucci J. sets out four factors that may be relevant when assessing whether a claimant has been discriminated against and experienced a loss of dignity.⁸¹ Each factor is designed to uncover the nature of the discrimination experienced by an individual or group. These factors are:

1. Whether the claimant suffers preexisting disadvantage, stereotyping or prejudice; that is, identifying the historical context for the claim of discrimination;
   
    
2. The relationship between the ground, such as disability, and the claimant's circumstances or characteristics; that is, does the impugned law take into account the experiences, characteristics or needs of the claimant's group?' According to Donna Greschner, a legal commentator on Constitutional law, this factor was decisive in Eldridge where policy makers failed to consider the needs of deaf people in the delivery of medical services.⁸²
   
    
3. The ameliorative purpose or effects of the law; that is, is the law designed to correct patterns of disadvantage or discrimination? Greschner notes⁸³ that this factor makes it clear that s. 15(2) (the affirmative action clause) represents an exemplification of equality and not an exception.
   
    
4. The nature and scope of the affected interests; that is, the more severe the consequences are for an individual or group, the more likely it is that a law will be found to be discriminatory.

This revised approach was applied in Granovsky v. Canada (Minister of Employment and Immigration).⁸⁴ The challenge in this case was to the Canada Pension Plan which, the claimant alleged, was discriminatory because it did not take into account the fact that persons with temporary disabilities may not be able to make contributions for the minimum qualifying period because they are periodically unable to work. The SCC rejected this challenge because the appellant had not demonstrated a convincing human rights dimension to his claim; that is, nothing in the legislation was seen to demean the dignity of persons with temporary disabilities or undermine their worthiness as human beings. ⁸⁵

Mr. Granovsky was seeking a ruling that would broaden the "drop-out" provisions of the Canada Pension plan, currently available to persons with permanent disabilities, to include persons with temporary disabilities. The Court rejected his request. It arrived at this conclusion by choosing to compare Mr. Granovsky with persons with permanent disabilities rather than with able-bodied workers. In this way, the Court declared Mr. Granovsky to be in a more fortunate position than that of persons with permanent disabilities. Had the Court been persuaded to use able-bodied workers as the comparator group, the results may have been different.

The case of Nova Scotia (Workers' Compensation Board) v. Martin⁸⁶ attracted a different result under the Law analysis. In this case, injured workers suffering from chronic pain were denied workers benefits by the Nova Scotia Workers Compensation Act. The SCC compared injured workers suffering from chronic pain to other injured workers entitled to compensation benefits. It found that injured workers with chronic pain were discriminated against by the Act contrary to s. 15 of the Charter on the basis of their disability.

The Court affirmed the notion that persons with disabilities must be treated, as much as possible, on an individualized basis. The Court applied the four contextual factors set out in Law and concluded that the denial of benefits to workers with chronic pain was an affront to their dignity. It stated that the essence of the claim is the lack of correspondence between the differential treatment imposed by the Act and the true needs and circumstances of persons with chronic pain.⁸⁷

It was not necessary for the claimants to show that they experienced historical disadvantage. Rather, it was enough that, similar to the Gibbs case, distinctions were drawn between different disabilities.

The Court also allowed that in appropriate cases, economic interest can go to a claimant's human dignity.⁸⁸ Thus, the Court found that the dignity of Mr. Martin and Ms. Laseur was affected by a loss of income as well as a denial of services. Of particular importance is the Court's warning to governments who attempt to argue that disability discrimination is necessary.

In my view, when a legislative provision that draws a distinction based on disability is found not to correspond to the needs and circumstances of the claimants to such a degree that it demeans their essential human dignity, the government will face a steep evidentiary burden if it chooses to allege that the provision is rationally connected to the objective of providing the best available treatment to such claimants.⁸⁹

(i) Problems Arising From the Dignity Test

Although the Nova Scotia Worker's Compensation case produced a positive result for persons with disabilities under the "dignity" test, equality-seekers worry that this concept could be used to limit claims under s. 15.

The Court's recent focus on "dignity" is not really a new human rights concept. Many international human rights instruments are premised on respect for "human dignity".⁹⁰ The difficulty lies in how "dignity" is understood and interpreted by decision-makers.

Martin highlights a number of problems associated with identifying dignity as the core feature of equality rights.⁹¹ Set out below is a brief summary of some of her concerns.

1. It is a very broad concept and hard to define.
   
    
2. It means different things to different people, depending on context and circumstances.
   
    
3. It belongs more in the realm of individual rights than to group based historical disadvantage.
   
    
4. Because it is a malleable concept, dignity runs the risk of becoming a mask for the exercise of judicial discretion.
   
    
5. Anchoring equality claims on a concept that is so amorphous, offers no real guidance to the court which often must adjudicate complex equality rights violations.
   
    
6. The difficulty may not be so much with the claimant proving that her/his dignity has been offended, but with the ability of the court to determine when such an infringement is unreasonable or a breech of equality rights. Thus, defining personal dignity becomes the jurisdiction of the court, which could be very problematic for equality-seekers whose rights have historically not been well understood by the mainstream.

The potential for problematic results under a dignity lens is illustrated by the SCC's ruling in Gosselin v. Quebec (Attorney General).⁹² At issue was a regulation that permitted the Quebec government to provide a lower level of social assistance (a monthly sum of $170) to persons between the ages of 18 and 30 unless they participated in a work program. The number of persons in this category far outnumbered the number of available work opportunities. Nevertheless, in a slim majority, the Court upheld the regulation and determined that it did not demean the dignity of such persons and was therefore not an infringement of s. 15. Remarkably, the Court did not engage in a full examination of the disadvantages experienced by these young people and further intimated that, because of their youth, they may even be advantaged in their search for economic security.

The jurisprudence flowing from the Law case and the prominence of dignity is a troubling challenge in the quest for substantive equality. Fortunately, it is a challenge acknowledged by many equality rights supporters, a number of whom have put forward ideas and strategies for ensuring that dignity is used to continue, and not limit, the equality project. Some of these ideas are explored in the next part of this paper.

d. How Far Have Persons with Disabilities Come Under the Charter?

The proclamation of the Canadian Charter of Rights and Freedoms and its Constitutional guarantee of equality expands the scope of disability equality rights. The disability rights community has steadfastly maintained the importance of constitutional recognition of disability equality rights as one prong of a larger political strategy aimed at securing the full and equal participation of persons with disabilities in all aspects of society.⁹³ Arguably, to date, the recognition of disability equality rights under the Charter has been more symbolic than substantive. However, the significance of such symbolic value should not be under-estimated, particularly when considered in the context of profound oppression and disadvantage which permeates the history of persons with disabilities.

Similar to the gains made under human rights jurisprudence, the greatest gains made under the Charter have been the attainment of comprehensive principles essential to a substantive interpretation of equality. The Court's recognition of adverse effects discrimination, its rejection of same treatment and its proclamation that s. 15 is about remedying legal, social and political disadvantage are major accomplishments. However, from a disability rights point of view, the most significant accomplishment has been the Eldridge decision. This case, combined with the Court's shift towards a social construction of disability in the Eaton case, offers a promising foundation on which to base future Charter challenges.

Unfortunately, recent cases that impose what appears to be, an independent dignity requirement, have the potential to be problematic for persons with disabilities. Can a court that is primarily made up of persons who have been influenced by able-bodied views, truly understand the intense damage visited on the dignity of persons with disabilities when denied full access and full inclusion in mainstream society?

The SCC's ruling in the Eaton case suggests that the Court is still unwilling to embrace a full model of disability equality rights, and moreover, signals that it will uphold forms of segregation if it deems it to be in the best interest of the person with a disability. Consequently, forms of paternalism well known to persons with disabilities may still linger in the Court's assessment of dignity as it pertains to disability rights.

e. Some Thoughts on Future Litigation Strategies to Preserve a Substantive Theory of Equality

As described above, equality-seekers have made some initial progress under the Charter. However, the Law case seems to have taken us to a critical turning point in Charter litigation. Based on a survey of a few equality rights commentators, the following section provides a brief summary of some key ideas that may serve as useful starting points when evaluating future Charter litigation strategies.

(i) Harmonizing Human Rights and Equality Rights Analyses

The current s. 15 analysis requires a two-part inquiry:

1. Is there a denial of equality? and
   
    
2. Does the denial amount to discrimination?

Some of the difficulties encountered by the court can be traced to the existence of these two distinct inquiries. David Lepofsky suggests that s. 15 should be seen as guaranteeing one comprehensive, compendious right.⁹⁴ He recommends that a s. 15 analysis follow the model set by human rights legislation.

Plaintiffs would have the burden to show: (1) that they were denied or impeded in their access to or full enjoyment of a right, benefit or opportunity extended by law or by government, or (2) that they were subjected to such a burden or obligation, due directly or indirectly to their disability or other Charter-prohibited ground, whether by purpose or effect. Once this is shown, the burden would shift to government to justify such discrimination as a reasonable limit.

Under this more simplified analysis, the need for qualifying factors such as harm to dignity becomes less important. Where it is necessary to place limitations on equality, the matter can be assess under s. 1 of the Charter. The adoption by the Meiorin case of a substantive version of accommodation and its requirement for a respondent to prove that it is impossible to provide accommodation short of undue hardship could serve as a useful tool in assessing the need for a limitation.

While simplicity is a laudable goal, care must be taken not to inadvertently open the door to claims of formal equality. Thus establishing a form of disadvantage must continue to be the cornerstone of proving discrimination.

(ii) Expanding Substantive Equality to Include Social Equality

Greschner promotes a notion of substantive equality that encompasses recognition of the inequity in the distribution of resources, the lack of political and social power and freedom from exploitation and oppression.⁹⁵ She argues that an assessment of an impugned law should focus on "economic, social and political circumstances - at the existing distribution of resources - and asking how the impugned law affects them. "Does it make disparities and inequalities worse, or better?"⁹⁶

Although she expresses some concerns about how the Law approach was fashioned, Greschner does not share the same level of concern about the Law decision as other critics. Rather she believes that, with the incorporation of some safeguards, it has the potential to bolster substantive equality.⁹⁷ In particular, she views the contextual factors identified by Iacobucci in the third step of the Law approach to be helpful in avoiding formal equality claims.

However, Greschner concurs with some of the concerns raised by Martin about the use of dignity in establishing discrimination. She proposes that harm to individual dignity is replaced with a theory of "belonging" to three communities within Canada: the universal human family; political communities; and identity communities demarcated on enumerated and analogous grounds.⁹⁸

Her theory requires the courts to look at the ways in which particular groups are treated as second-class members within a larger society. Rather than grappling with the abstract notion of dignity, the courts are invited to consider the meaning of full membership in a community. Applying the theory of belonging to the situation of persons with disabilities, a court could be urged to examine the economic and social barriers that prevent persons with disabilities from relocating to other parts of the country and choosing where and in what setting they will live. In other words, such barriers could be regarded as undermining a sense of belonging, and thereby reinforcing a sense of second class status. The focus is on the system of rules that excludes or prevents certain groups from belonging to communities and not solely on the dignity of the individual.⁹⁹ Perhaps under a theory of belonging, the results in Eaton may have been different with the focus being on inclusion rather than exclusion.

 

The clock cannot be turned back. The loss of dignity as a component of discrimination has been duly raised and noted, and now must be contended with by equality-seekers. Martin offers some suggestions as to how dignity can be used to the advantage of equality-seekers.¹⁰⁰

1. An equality claim should not be based on loss of dignity alone, even where it is possible. It should be incorporated into a broad theory of equality that advocates for full membership in society.
   
    
2. Any reference to human dignity should also be phrased in terms of equal concern, dignity and respect because these latter concepts reinforce that equality is also intended to protect belonging to universal human family, political communities, and identify communities or society.
   
    
3. The following excerpt cited in Law and reiterated in the Lavoie¹⁰¹ case should be referenced in equality arguments.

   The purpose of section 15 is:

   …to prevent the violation of the essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

   
    
4. It is important to argue and emphasize that while Justice Iacobucci referred to the purpose of s. 15(1) in terms of "human dignity," he also described it as having many components. It should be emphasized that "the goal of assuring human dignity by the remedying of discriminatory treatment" does not cover the whole subject. When speaking of human dignity it should be emphasized that the purpose behind the equality guarantee was to eradicate entrenched and systematic forms of social disadvantage so as to "ameliorate the lot of those groups within society which have been and continue to be its victims."
   
    
5. In Andrews the guarantee of equality was described as protecting groups against social, political and legal disadvantage. It follows then that the preservation of dignity must also include protection against economic disadvantage, because economic disadvantage is often the root cause of social political and legal exclusion.
   
    
6. The focus should be on the pursuit of equality. Arguments should be developed that show how discrimination contributes to the loss of human dignity and thereby the loss of equality.

PART IV: CONCLUSION

Over the past 20 years, CCD has acquired extensive experience as a test case litigator in human rights and equality rights cases. Given that the initiation of legal challenges represents only one aspect of CCD's broad mandate, its litigation accomplishments are impressive.

To date, most of CCD's legal challenges have occurred as interventions at the appellant stage of a case. It has acted as an intervenor on its own, and in coalition with other equality-seeking organizations.

Litigating by way of interventions has its drawbacks and benefits. On the down side, the intervening party has no control over the issues brought before the court and no control over the types of arguments proposed by the originating parties. Generally speaking, intervenors cannot overstep the scope of the arguments as set out by the originating parties. The intervention process is therefore, for the most part, a reactive form of test case litigation.

However, in the early days of the Charter there were fewer cases coming before the SCC. Interventions were important as the interpretation of s. 15 was just beginning, and thus input from equality-seekers was essential. In addition, interventions are generally much less expensive and less time consuming than the resources needed to pursue a matter through a trial process. Consequently, in light of the many other demands on CCD's time, interventions have been beneficial and a useful method of ensuring that, when required, the views and concerns of persons with disabilities are presented to the Court.

Information collected through interviews with key informants supports the view that much progress has been made with respect to both the overall legal interpretation of equality and the Court's specific understanding of disability rights. But the interview results also suggest that the real work is just beginning. (See Appendix 1. for the Interview Guide and Appendix 2. for a list of Key Informants.)

The number of equality rights cases going before the SCC is rapidly increasing, as is the complexity of equality arguments.¹⁰² As the interview results disclose, a number of factors now need to be considered when designing a litigation strategy. Ensuring that the "dignity" test promotes rather than limits equality, and expanding the scope of equality to address social and economic inequities are just some examples of the legal hurtles currently confronting equality-seekers.

It is more than true to say that persons with disabilities have come along way since Jean Chrétien advised them that their rights were too nebulous and undefinable to be included in Canada's Constitution. They have broken down the doors of Parliament and succeeded in gaining Constitutional protection of their rights. They have been instrumental in bringing about some of Canada's leading human rights and equality rights cases.

Despite the insistence of the lower courts in the Eldridge case to render the disadvantage of deaf persons invisible, persons with disabilities created a milestone by persuading the SCC to recognize their historic disadvantage in society, and to declare that they are entitled to receive equal benefit of the law. These are indeed very hopeful signs. But sophisticated, abstract legal principles, no matter how cutting edge, do not alone ensure that persons with disabilities will have the services, housing and income security they require to live with equality, independence and dignity, unless they are taken seriously by all levels of government.

The role of Canada's judicial system is to function as the legal arm of government. It serves as an independent body to advise governments on how to interpret and apply the law. Consequently, the ruling in the Eldridge case should have set the bells ringing in Parliament and legislatures across the country. Alas, there is no evidence that even a note was sounded.¹⁰³

The breadth of the challenges yet to be surmounted by persons with disabilities is starkly illustrated by the government agency of Via Rail which recently decided to appeal a ruling, rendered by the Canadian Transport Agency, requiring it to improve train access for persons with disabilities.¹⁰⁴ It is profoundly disappointing that after 18 years of s. 15 being in effect, and six years after the ruling in Eldridge, governments still persist in disputing the right of persons with disabilities to basic access.

The realization of rights is similar, in many ways, to building a solid house. Before you can add floors, walls and finally a roof, you need to ensure that a firm foundation has been put in place. Persons with disabilities have clearly succeeded in laying down some important footings on which to demand that Canadian society begin to restructure its institutions to be inclusive and respectful of disability equality rights.

Law reform is the logical companion of test case litigation. It is law reform that will ultimately create a world that is welcoming and respectful of the equality rights of persons with disabilities. The highest court of Canada has prescribed a number of foundational principles on which to base this process. It is therefore incumbent on governments at all levels to take heed and do what is demanded of them by principles of social justice and the Charter's guarantee of equality to persons with disabilities.

Appendix 1.

Interview Guide
Equality Rights Charter Litigation Strategies

1. Do you think that Charter litigation has helped to advance equality rights in Canada?
   
    
2. If you are or have been involved in an organization engaged in Charter litigation, what criteria is used to select cases? Does your organization have a specific litigation strategy? (Please indicate the name of the organization.)
   
    
3. Is the criteria successful in identifying appropriate test cases? (Please describe.)
   
    
4. Is the litigation strategy effective? (Please describe.)
   
    
5. In your opinion, what are the successes of Charter litigation?
   
    
6. In your opinion, what are the failures of Charter litigation?
   
    
7. What impact has the Charter had on the recognition of disability rights?
   
    
8. What are the components of an effective Charter litigation strategy?
   
    
9. Additional comments.

Appendix 2.

List of Key Informants

Vangelis Nikias (Former Chairperson of CCD's Human Rights Committee)

Jim Derksen (Chairperson of CCD's Human Rights Committee)

David Baker (Ontario human rights lawyer)

Sarah Lugtig (Former Equality Rights Director, Court Challenges Program of Canada)

Gwen Brodsky (B.C. equality rights lawyer)

Shelagh Day (Human rights expert)

Diana Majury (Former member of LEAF's Legal Committee, commenting personally on LEAF's litigation strategy)

---

¹ An Open Letter to the Commons and the Senate issued by Allan Simpson (National Chairperson) on behalf of the Coalition of Provincial Organizations of the Handicapped, October 28, 1980. (Government of Manitoba Archives)
² In 1994 COPOH changed its name to the Council of Canadians with Disabilities (CCD).
³ Interview with Jim Derksen, the Chairperson of the CCD Human Rights Committee.
⁴ Report of COPOH's National Employment Conference, June 25-27, 1978, resolution 6.78/4.
⁵ A letter addressed to Mr. Allan Simpson, National Chairman of COPOH, written on behalf of Jean Chrétien by Jacques A. Demers, Special Adviser, Office of the Minister of Justice and Attorney General of Canada, October 20, 1980. (Government of Manitoba Archives).
⁶ Supra note 1.
⁷ "Handicapped Protest" Ottawa Citizen (November 4, 1980).
⁸ Statement by the Honourable Jean Chrétien, Minister of Justice, to the Special Joint Committee on the Constitution, January 12, 1981. (Government of Manitoba Archives).
⁹ Ibid.
¹⁰ October 30, 1980 interim report; Government of Canada. Parliament. House of Commons. Special Committee on the Disabled and the Handicapped. 1981. Obstacles: Report of the Special Committee on the Disabled and the Handicapped. (Ottawa: Minister of Supply and Services Canada).
¹¹ "Brief to the Joint Parliamentary Committee on the Constitution," (COPOH). 1980b. November at pp. 2-5.
¹² For example, the Canadian Human Rights Act only prohibited discrimination against persons with physical disabilities and only in relation to employment.
¹³ H. Posthuma, "Are we there yet?" Canadian Disability (Spring 2003).
¹⁴ Ibid.
¹⁵ Interview with Laurie Beachell.
¹⁶ D. Lepofsky, "Discussion: The Charter's Guarantee of Equality to People with Disabilities - How Well is it Working?" (1998) 16 Windsor Y.B. Access Just. 155.
¹⁷ Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 145.
¹⁸ Bhinder v. Canadian National Railway Company, [1985] 2 S.C.R. 561.
¹⁹ Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536.
²⁰ Ibid. at paragraph 18 and cited with approval in Bhinder at paragraph 41.
²¹ Ibid. at paragraph 23.
²² Supra note 18 at paragraph 47.
²³ At the time of the Bhinder and O'Malley decisions the leading case regarding the establishment of a Bona Fide Occupational Requirement/Qualification was Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202.
²⁴ Infra notes 25 and 26.
²⁵ Alberta Human Rights Commission v. Central Alberta Dairy Pool, [1990] 72 D.L.R. (4th) 417 at 439; [1990] 2 S.C.R. 489.
²⁶ Central Okanagan School Dist. No. 23 v. Renaud, [1992], 16 C.H.R.R. D/425 (S.C.C.).
²⁷ Ibid. at paragraph 19.
²⁸ Ibid. at paragraph 20.
²⁹ Ibid. at paragraph 25.
³⁰ Ibid. at paragraph 26.
³¹ British Columbia (Public Service Employee Relations Committee) v. BCGSEU, [1999] 3 S.C.R. 3.
³² Ibid. at paragraph 41.
³³ Ibid. at paragraph 42.
³⁴ Ibid. at paragraph 54.
³⁵ Ibid. at paragraph 65.
³⁶ Ibid. at paragraph 68.
³⁷ British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868.
³⁸ Ibid. at paragraph 44.
³⁹ Supra note 37 at 868, case summary.
⁴⁰ Interview with David Baker, June 6, 2003. Mr. Baker practices in Toronto, Ontario as a human rights lawyer specializing in disability rights.
⁴¹ Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665.
⁴² Ibid. at 666.
⁴³ Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566.
⁴⁴ See s. 32 of the Charter.
⁴⁵ Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
⁴⁶ Ibid. at 182.
⁴⁷ Ibid. at 154.
⁴⁸ R. v. Swain, [1991] 1 S.C.R. 933 at 973.
⁴⁹ Supra note 45 at 164.
⁵⁰ Ibid. at 169.
⁵¹ See for example Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; and Thibaudeau v. Canada [1995] 2 S.C.R. 627.
⁵² Supra note 45 at 168.
⁵³ See for example the judgement of Gonthier in Egan, Supra note 51.
⁵⁴ See for example Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703.
⁵⁵ Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241.
⁵⁶ Ibid. at paragraph 69.
⁵⁷ Ibid. at paragraph 66.
⁵⁸ Ibid. at paragraph 67.
⁵⁹ Ibid. at paragraph 77.
⁶⁰ Eldridge v. British Columbia (A.G.), [1997] 3 S.C.R. 624.
⁶¹ Eldridge v. British Columbia (A.G.), [1992] B.C.J. No. 2229.
⁶² Ibid.
⁶³ Ibid.
⁶⁴ Eldridge v. British Columbia (A.G.), [1995], B.C.J. No. 1168.
⁶⁵ Supra note 60.
⁶⁶ Ibid.
⁶⁷ Ibid.
⁶⁸ Ibid.
⁶⁹ Ibid.
⁷⁰ Ibid.
⁷¹ See for example R. v. Oakes, [1986] 1 S.C.R. 103.
⁷² R. v. Latimer , [2001] 1 S.C.R. 3.
⁷³ Criminal Code of Canada, R.S.C. 1985, c. C-46, s. 745(b).
⁷⁴ R. v. Latimer, [1997] S.J. No. 849. (Sask. C.A.).
⁷⁵ R. v. Latimer, [1998] 131 C.C.C. (3d) 191.
⁷⁶ R. v. Latimer, [2001], 193 D.L.R. (4th) 577, 150 C.C.C. (3d) 129 (S.C.C.) (Intervenors' factum).
⁷⁷ Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
⁷⁸ Ibid. at paragraph 51.
⁷⁹ Dr. Sheilah Martin, Q.C., "Court Challenges: Law," (prepared for the Court Challenges Program of Canada) May 2002.
⁸⁰ Supra note 77 at paragraph 102.
⁸¹ Ibid., beginning at paragraph 62.
⁸² D. Greschner, "The Purpose of Canadian Equality Rights," [2002] v. VI, No. 26 Rev. Constit. Studies, 291 at 319.
⁸³ Ibid.
⁸⁴ Supra note 54.
⁸⁵ Ibid at 70.
⁸⁶ Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] S.C.C. 54.
⁸⁷ Ibid. at paragraph 91.
⁸⁸ Ibid. at paragraph 103.
⁸⁹ Ibid. at paragraph 115.
⁹⁰ For example, The Universal Declaration of Human Rights begins with "a recognition of the inherent dignity and ... the equal and inalienable rights of all members of the human family."
⁹¹ Supra note 79.
⁹² Gosselin v. Quebec (Attorney General), 2002 S.C.C. 84.
⁹³ Interview with Jim Derksen, Chairperson of CCD Human Rights Committee, November 2003.
⁹⁴ D. Lepofsky, "A Report Card on the Charter's Guarantee of Equality to Persons with Disabilities after 10 Years - What Progress? What Prospects?" (1997), 7 N.J.C.L. 263.
⁹⁵ D. Greschner, "Does Law Advance the Cause of Equality?" [2001], 27 Queen's L.J. 299.
⁹⁶ Ibid.
⁹⁷ Ibid.
⁹⁸ Supra note 82.
⁹⁹ Ibid. at 320.
¹⁰⁰ Supra note 79.
¹⁰¹ Lavoie v. Canada, [2002] 1 S.C.R. 769 at paragraph 100.
¹⁰² For example in March 2004, the SCC will hear four s. 15 cases dealing with social and economic rights. One of these cases is Auton v. British Columbia, which deals with the rights of children to receive state funded health services to ameliorate the effects of autism.
¹⁰³ Information gathered through interviews with key informants.
¹⁰⁴ CCD v. VIA Rail Canada Inc., File No. U3570/00-81. Available online at: http://www.cta-otc.gc.ca/media/communique/ 2003/030327_e.html