Equality Rights and Pay Equity: Déjá Vu in the Supreme Court of Canada

2018 ◽  
Author(s):  
Jonnette Watson Hamilton ◽  
Jennifer Koshan
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Pay Equity ◽  
Equality Rights ◽  
The Supreme Court ◽  
Deja Vu ◽  
Déjà Vu

scholarly journals Intersections and Roads Untravelled: Sex and Family Status in Fraser v Canada

2021 ◽  
Vol 30 (2) ◽  
pp. 29-42
Author(s):  
Jennifer Koshan
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Attorney General ◽  
Sex Discrimination ◽  
Supreme Court Of Canada ◽  
Family Status ◽  
Pay Equity ◽  
Employment Benefits ◽  
Equality Rights ◽  
The Supreme Court

It has been a long road to the judicial recognition of women’s inequality under the Cana‑ dian Charter of Rights and Freedoms.1 The Supreme Court of Canada ruling in Fraser v Can‑ ada is significant for being the first decision where a majority of the Court found adverse effects discrimination based on sex under section 15,2 and it was only two years prior that a claim of sex discrimination in favour of women was finally successful at the Court,3 almost 30 years after their first section 15 decision in Andrews v Law Society of British Columbia. 4 1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], s 15. 2 Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser]. 3 Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux,  2018 SCC 17 [Alliance] (majority found sex discrimination under s 15 and rejected the government’s justification argument under s 1 in the pay equity context). See also Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18 [Centrale] (majority found violation of s 15 but accepted the government’s s 1 argument, also in the pay equity context). For comments on these decisions see Fay Faraday, “One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020) 94 SCLR (2d) 301; Jonnette Watson Hamilton & Jennifer Koshan, “Equality Rights and Pay Equity: Déjà Vu in the Supreme Court of Canada” (2019) 15 JL & Equality 1. See also British Columbia Teachers’ Federation v British Columbia Public School Employers’ Association, 2014 SCC 70 (a one-paragraph decision restoring an arbitrator’s award allowing a s 15 employment benefits claim by women); Newfoundland (Treasury Board) v NAPE, 2004 SCC 66 (finding a violation of s 15 but accepting the government’s s 1 argument, again in the pay equity context).4 [1989] 1 SCR 143, 56 DLR (4th) 1.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

scholarly journals Interpretation of Equality of Rights in the Canadian Charter of Rights and Freedoms and the Practice of the Canadian Supreme Court

2020 ◽  
Vol 11 ◽  
pp. 67-72
Author(s):  
Tatyana A. Vasilyeva ◽  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Decisive Role ◽  
Supreme Court Of Canada ◽  
Constitutional Review ◽  
Canadian Charter ◽  
Human Rights Protection ◽  
Equality Rights ◽  
The Supreme Court ◽  
The Right

The Canadian system of human rights protection is an original one. The Supreme Court of Canada is one of the most influential constitutional review bodies in the field of human rights. At the time of its adoption, the Canadian Charter of rights and freedoms had the broadest catalog of equality rights in Western countries, formed on the basis of the Bill of rights and provincial human rights codes case-law, as well as the activities of political movements and groups of equality advocates who played a decisive role in its drafting. In Canada, a distinction is made between the enumerated in Charter and analogous grounds of discrimination established by court. The plaintiffs may claim differences on the basis of the enumerated or analogous grounds, or indicate the necessity to establish new analogous grounds. Article 15 (the right to equality) is recognized as one of the most conceptually complex provisions of the Charter. It is aimed at ensuring equality in the process of law drafting and implementation, as well as protecting human dignity. The Supreme Court of Canada is considering the provisions of the first part 1 of article 15, which enshrines the right to equality, and part 2 of this article, which provides for affirmative actions to assist disadvantaged groups as interrelated, reflecting the understanding of equality according to which affirmative actions are considered not as an exception, but as one of its best manifestations.

scholarly journals Comment on Fraser v Canada (AG): The More Things Change

2021 ◽  
Vol 30 (2) ◽  
pp. 85-96
Author(s):  
Richard Moon
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Academic Career ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Special Issue ◽  
Canadian Charter ◽  
Equality Rights ◽  
The Supreme Court

Very early in my academic career I wrote two pieces about section 15.1 The first was written in 1987, before the Supreme Court of Canada had heard any section 15 cases,2 and the second in 1989 was a comment on Andrews v Law Society of British Columbia, the first of the Court’s section 15 decisions.3 When I re-read these pieces recently it struck me that with a few minor updates they could be read as comments on the Court’s recent decision in Fraser v Canada(Attorney General). 4 The same issues and tensions that were there at the beginning of section 15 are still there. They are built into the concept of constructive/effects discrimination and are not about to disappear. Shamelessly, I have reconstituted these two earlier pieces into a comment, of sorts, on the Fraser case. Other contributors in this special issue of the Constitutional Forum have set out the facts of the Fraser case and so I have not done so here. 1 Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Richard Moon, “Discrimination and Its Justification: Coping with Equality Rights under the Charter” (1988) 26:4 Osgoode Hall LJ 673.3 Richard Moon, “A Discrete and Insular Right to Equality: Comment on Andrews v. Law Society of British Columbia”(1989) 21:3 Ottawa L Rev 563.4 2020 SCC 28 [Fraser].

scholarly journals Vriend v. Alberta, Law v. Canada, Ontario v. M. and H.: The Latest Steps on the Winding Path to Substantive Equality

1969 ◽  
pp. 683
Author(s):  
Craig D. Bavis
Keyword(s):  
Supreme Court ◽  
Analytical Framework ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
Substantive Equality ◽  
The Supreme Court ◽  
Significant Case ◽  
The Law

This article traces the continuing development of the analytical framework used by the Supreme Court of Canada to evaluate infringements of equality rights challenged under s. 15(1) of the Charter. This is achieved through examining the Court's recent decisions in Vriend, Law, and M. v. H. in the context of the claims heard in Andrews, the 'equality trilogy' of Miron, Egan, and Thibaudeau, and the subsequent equality cases heard by the Court. This article follows the initial analytical framework introduced in Andrews, through the Court's split in 1995. It then examines subsequent cases, finding that Vriend stands as a significant case in the evolution, and that the Court's restatement of its method in Law demonstrates a renewal of the Court's unanimous commitment to substantive equality as first articulated in Andrews and indicates that the troubling position favoured by a minority of judges in 1995 has been abandoned. In examining the application of the Law analysis in M. v. H., this article recognizes the possibility that the approach may be too subjective and warns that undue focus on legislative purpose instead of effect may undermine substantive equality.

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