Test for Discrimination
Moore v. BC (Education), 2012 SCC 61. To prove discrimination, a complainant has to prove that:
- they have a characteristic protected by the Human Rights Code [Code];
- they experienced an adverse impact with respect to an area protected by the Code; and
- the protected characteristic was a factor in the adverse impact.
Once a complainant proves these three things, the respondent can defend itself by proving its conduct was justified. If the respondent proves its conduct was justified, then there is no discrimination. If the respondent’s conduct is not justified, discrimination will be found to occur (para. 33).
The leading cases about the justification defence are found under the areas of discrimination: employment, tenancy, services customarily available to the public and unions or occupational associations.
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [Bombardier]. Discrimination can take many forms, including “adverse effect” or “indirect” discrimination (para. 32). It is not necessary to prove a “causal” connection between a protected characteristic and the adverse treatment. Rather, there must be a “connection”, or the protected characteristic must be a “factor” in the adverse treatment (para. 49).
Stewart v. Elk Valley Coal Corp., 2017 SCC 30. The test set out in Moore is confirmed. The principles set out in Bombardier are confirmed. Discrimination can take many forms, including ‘indirect’ discrimination, where an otherwise neutral policy may have an adverse effect on certain groups. There is no requirement to provide discriminatory intent (para. 44).There is no requirement to prove stereotypical or arbitrary decision-making, since this would improperly focus on whether there is a discriminatory attitude. The focus is on whether there is a discriminatory impact (para. 45). There must be a link or connection between the protected characteristic and the adverse treatment. The protected characteristic need only be “a factor” in the adverse treatment, not a “significant” factor or a “material” factor (para. 46).