The Charter - Equality Rights - Legistation (RTA)

Canadian Charter of Rights and Freedom

15 (1) 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, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

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24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Human Rights Code, R.S.O. 1990, c. H.19

17 (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.

Wynberg v. Ontario, 2006 CanLII 22919 (ON CA)

[119] However, the result of this chronology is that the evidentiary record addressing the circumstances of the two comparator groups is very limited. This has important implications for the comparative approach that must be followed at each step of the s. 15(1) analysis. To reiterate those steps, we quote from Chief Justice McLachlin's majory judgment in Gosselin, supra, at para. 17:

To establish a violation of s. 15(1), the claimant must establish on a civil standard of proof that: (1) the law imposes differential treatment between the claimant and others, in purpose or effect; (2) one or more enumerated or analogous grounds are the basis for the differential treatment; and (3) the law in question has a purpose or effect that is discriminatory in the sense that it denies human dignity or treats people as less worthy on one of the enumerated or analogous grounds.

[120] The first step in the s. 15(1) analysis is for the claimants to show the required differential treatment. The claim here is that the Minister, acting under s. 8(3) of the Act, has accorded differential treatment to the claimants compared to the comparator groups. It is asserted that by failing to provide the claimants with intensive behavioural intervention consistent with the IEIP Guidelines, the Minister has failed to ensure that they have available to them appropriate special education programs and services without payment of fee as required by s. 8(3). The claimants say that, by contrast, the Minister has ensured that the comparator groups receive appropriate special education programs and services. [page595]