Critical Comparisons: The Supreme Court of Canada Dooms Section 15

Posted: 23 Apr 2011

See all articles by Daphne Gilbert

Daphne Gilbert

University of Ottawa - Common Law Section

Date Written: 2006

Abstract

Comparison has become a central component of the equality analysis under section 15 of the Charter of Rights and Freedoms. While comparison can be a useful tool in understanding inequalities and crafting appropriate remedies, the current understanding of comparison employed by Canadian courts has been reduced to requiring the claimant to describe a single ‘correct’ comparator group that applies to his or her situation. This restrictive use of comparison revives the formal equality approach rejected by the Supreme Court of Canada 15 years ago, and leads to overly simplistic analyses. It is therefore necessary to rethink the use of comparison and comparator groups in section 15 equality jurisprudence. Following a discussion of the rise of comparator groups under section 15, the Supreme Court of Canada decisions in Granovksy v. Canada (Minister of Employment and Immigration), Auton (Guardian ad litem of) v. British Columbia (Attorney General) and Falkiner v. Ontario (Director, Income Maintenance Branch, Ministry of Community and Social Services) are used to demonstrate the problems with the current comparator group approach. The paper ends with some preliminary thoughts on a more flexible and open use of comparison in equality jurisprudence.

Suggested Citation

Gilbert, Daphne, Critical Comparisons: The Supreme Court of Canada Dooms Section 15 (2006). Windsor Yearbook of Access to Justice, Vol. 24, No. 1, 2006. Available at SSRN: https://ssrn.com/abstract=1816423

Daphne Gilbert (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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