Review for 3136 Final exam
Equality Rights (section 15)
Andrews v. Law Society of British Columbia (1989) was the first s. 15 case to reach the Supreme Court.
Issue: *whether the requirement of Canadian citizenship for admission to the British Columbia bar is an
infringement upon or denial of the equality rights guaranteed by the s. 15(1) of the Charter.
* and if so, whether it is justified under s. 1
McIntyre wrote for unanimous court on the interpretation of s. 15. The court stated that the discrimination
must be based on an “enumerated(race, national or ethnic origin, colour, religion, sex, age, or mental or
physical disability) or analogous grounds,” and the individual seeking to strike down a law must demonstrate
the existence of differential treatment based on either of the two grounds. From there the onus shifts to the
Crown who must show that the law is justified under s. 1.
The Court held that citizenship qualified as an analogous (to national or ethnic origin) ground of
The "Andrews test" asked two questions:
1. Has the law made a distinction based on personal characteristics (either those listed in s.15 or
characteristics that are "analogous" or like the characteristics listed in s.15).
2. Has there been discrimination, within the meaning set out above?
Thibaudeau v. Canada (1995) – marital status
The claimant was unable to establish that she had suffered a disadvantage by reason of her marital status. She
argued that the tax provision discriminated against separated custodial parents, because in an intact family
the income tax on money spent on child support would be paid by the spouse who earned the income.
The SCC by the majority of 5 to 2 held that Section 56(1)(b) ITA does not infringe the equality rights
guaranteed by s.15(1) of the Charter.
Cory and Iacobucci JJ: * the group of single custodial parents receiving child support payments is not placed
under a burden by the inclusion/deduction regime.
* Although there may be some cases in which the gross-up calculations shift a portion of the payer's tax
liability upon the recipient spouse, one cannot necessarily extrapolate from this that a "burden" has been
created, at least not for the purposes of s.15(1). Sections 56(1)(b) and 60(b) operate at the level of the couple
and are designed to minimize the tax consequences of support payments, thereby promoting the best
interests of the children by ensuring that more money is available to provide for their care. In Miron v. Trudel (1995), there was a first debate over marital status as being an analogous ground, but the
opinion of the Court was very controversial(4 – support, 4 – against, 1 – does not matter). However, in Nova
Scotial v. Walsh(2002), the Court was unanimous that marital status was an analogous ground.
The majority of the Court held that the matrimonial property regime of Nova Scotia, which was restricted to
the persons who were legally married, did not breach the s. 15, because it did not impair the human dignity of
the common-law spouses who were excluded by reason of their marital status.
*applying Law test*
Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ:
Examination of the context in which the discrimination claim arises also involves a consideration of the
relationship between the grounds and the claimant’s characteristics or circumstances. The MPA deems
married persons to have agreed to an economic partnership wherein both pecuniary and non-pecuniary
contributions to the marriage partnership are considered to be of equal worth entitling each spouse, inter alia,
to an equal division of a pool of assets upon marriage breakdown. The MPA also confers other benefits and
imposes other obligations on the spouses. The decision to marry, which requires the consent of each spouse,
encapsulates within it the spouses’ consent to be bound by the MPA proprietary regime. Unmarried
cohabitants, on the other hand, maintain their respective proprietary rights and interests throughout the
duration of their relationship and at its end. If they so choose, however, they are able to access all of the
benefits applicable to married couples under the MPA. They are free to marry, enter into domestic contracts,
own property jointly or register as domestic partners. There is thus no discriminatory denial of a benefit in
this case because those who do not marry are free to take steps to deal with their personal property in such a
way as to create an equal partnership between them.
Per Gonthier J.: There is agreement with the majority reasons. Legislative provisions that attach burdens
and advantages to marriage are not discriminatory in and of themselves. Legislatures are entitled to define
and promote fundamental institutions such as marriage, which is founded on the consent of the parties and is
contractual in nature. It is therefore fitting that certain attributes, rights and obligations which serve to give
marriage its unique character are not conferred on unmarried couples.
Law v. Canada (1999)
facts: The case involved Nancy Law, a 30-year old widow without dependents who was denied survivors
benefits under the Canada Pension Plan, which are usually given to those 65 or over, or to the disabled, or to
those with dependents at the time of death.
She appealed to the Pension Plan Review Tribunal on the basis that the age requirement was in violation of
her equality rights under section 15(1) of the Charter (which specifically names age as a grounds on which
one has rights against discrimination).
Issues: "whether ss. 44(1)(d) and 58 of the Canada Pension Plan infringe s. 15(1) of the Charter on the
ground that they discriminate on the basis of age against widows and widowers under the age of 45, and if so,
whether this infringement is demonstrably justified in a free and democratic society under s. 1." Decision and Reasoning:
The unanimous court, in an opinion written by Iacobucci J., held that the Canada Pension Plan did not violate
The test must make three broad inquiries.
(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the
basis of one or more personal characteristics, or (b) fail to take into account the claimant's already
disadvantaged position within Canadian society resulting in substantively differential treatment
between the claimant and others on the basis of one or more personal characteristics?
(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous
(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit
from the claimant in a manner which reflects the stereotypical application of presumed group or
personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that
the individual is less capable or worthy of recognition or value as a human being or as a member of
Canadian society, equally deserving of concern, respect, and consideration?
The entire analysis must focus on the purpose of section 15 which is:
to prevent the violation of 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 de