View source for Constructive Discrimination

[[Category:Human Rights]]

==<i>Human Rights Code</i>, R.S.O. 1990, c. H.19{{HRC}}==

<b>Constructive discrimination</b>

11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a)  the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b)  it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

==<i>Contini v. Rainbow District School Board</i>, 2012 HRTO 295 (CanLII){{Contini v. Rainbow District School Board}}==

[17]           Discrimination can be direct or indirect.  Direct discrimination occurs when an individual is treated adversely because of a personal characteristic covered by the <i>Code</i> such as disability.  See <i>Andrews v. Law Society of British Columbia</i>, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143.{{Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC)}}

[18]           Indirect discrimination, as provided for in section 11 of the Code, recognizes the reality that discrimination can occur when neutral rules that do not appear to be discriminatory have a disproportionate and adverse impact on a group identified by one of the personal characteristics covered by the <i>Code</i>.  An example of indirect or “constructive discrimination” (as it is referred to in the <i>Code</i>) is the case of <i>British Columbia (Public Service Employee Relations Commission) v. BCGSEU</i>, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”){{Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC)}}, in which an aerobic standard that disproportionately prevented women from obtaining firefighter jobs was found to be discriminatory.  See also <i>Ontario Human Rights Commission v. Simpsons-Sears Ltd.</i>, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 in which the requirement to work Friday evenings was found to be discriminatory for an employee who, for religious reasons, was prohibited from working on Friday evenings.{{Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC)}}

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<b><u>[25]           In determining the issue of constructive discrimination, I have considered whether the respondent’s bussing policies, which are neutral on their face in that they do not factor in Code-related grounds, have a discriminatory impact on the applicant, a disabled parent.</u></b>  In this case, I cannot conclude that the bussing policy indirectly discriminates against the applicant.

<b><u>[26]           The Tribunal and the Courts have recognized, on a number of occasions, discrimination and obstacles which individuals with physical and mobility disabilities face in society.</u></b>  See, for example, <i>Wozenilek</i>{{Wozeilek v. 7-Eleven Canada, 2009 HRTO 926 (CanLII)}}, supra, <i>Turnbull v. Famous Players Inc.</i>, 2001 CanLII 262;{{Turnbull v. Famous Players Inc., 2001 CanLII 26228 (ON HRT)}} <i>Council of Canadians with Disabilities v. VIA Rail Inc.</i>, 2007 SCC 15 (CanLII), [2007] 1 S.C.R. 650,{{
Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 (CanLII)}} and <i>Ontario Human Rights Commission v. Lepofsky</i>, 2005 HRTO 36.{{Ontario Human Rights Commission v. Lepofsky, 2005 HRTO 36 (CanLII)}}

==<i>Peart v. Ontario (Community Safety and Correctional Services)</i>, 2014 HRTO 611 (CanLII){{Peart v. Ontario (Community Safety and Correctional Services)}}==

[1]           This is an Application dated June 25, 2009, and filed under s. 53(5) of the <i>Human Rights Code</i>, R.S.O. 1990, c. H.19,{{HumanRightsCode}} as amended (the “<i>Code</i>”), alleging discrimination with respect to services because of race, ancestry, place of origin, colour, ethnic origin and citizenship. The underlying complaint was filed with the Ontario Human Rights Commission on August 9, 2005, and amended on October 27, 2005.

[2]           In summary, the applicant alleges that s. 10(5) of the <i>Coroners Act</i>{{Coroners Act}}, R.S.O. 1990, c. C.37 as amended, discriminates against migrant farm workers in Ontario, and specifically migrant farm workers employed under the Seasonal Agricultural Workers Program (“SAWP”), on the basis that it denies them the benefit of a mandatory inquest into workplace deaths which currently is extended to workers in the mining and construction industries.

[16]        On November 5, 2003, legal counsel wrote to make submissions in support of an inquest being held into Ned Peart’s death. In these submissions, legal counsel reviewed the vulnerable status of migrant farm workers in Ontario and particularly, at that time, their lack of coverage under the <i>Occupational Health and Safety Act</i>{{Occupational Health and Safety Act}}, R.S.O. 1990, c. O.1 (“<i>OHSA</i>”). Specifically, with regard to Mr. Peart’s death, legal counsel stated his understanding that the equipment in use on the day of Mr. Peart’s death was not in good working condition, and that one of the wheels on the bin had become jammed such that Mr. Peart and the co-worker were required to exert an unnecessary amount of force to move the bin father back into the kiln. Legal counsel also noted the lack of any safety mechanisms in place to prevent the bin from toppling over onto Mr. Peart. He also stated his understanding that the farm owner did not have training procedures in place regarding the proper procedures for loading or unloading the kiln, or any training or policies regarding the proper and safe operation of the machinery in question.

<b>The <i>Coroners Act</i> and the Office of the Chief Coroner</b>

[23]        The goals and powers of coroners are derived from the <i>Coroners Act</i>. Coroners are appointed under s. 3 of the Act based on community need. Coroners in Ontario are required to be physicians, which is not required in most other jurisdictions. There are approximately 320 investigating coroners in Ontario, who are supervised by ten Regional Supervising Coroners. There also is a Chief Coroner and two Deputy Chief Coroners, one for inquests and one for investigations.

[24]        Coroners conduct investigations and preside over inquests in the public interest, and address such issues as public policy, allocation of public resources, and safety of public institutions. The goal is to advance public safety through independent death investigations and recommendations. The coroner’s motto is “we speak for the dead to protect the living”.

<b>Migrant Farm Workers as a Vulnerable Group</b>

[55]        I heard evidence from Dr. Kerry Preibisch, who is an Associate Professor in the Department of Sociology and Anthropology at the University of Guelph, specializing in international migration. Her research focuses on: temporary migration programs, migrant rights, and development; labour and globalized agro-food systems; gender, migration and rural livelihoods in Latin America; and immigration and social change in rural Canada. Dr. Preibisch testified about the background and operation of the SAWP and the specific forms of vulnerability faced by migrant workers who enter Canada through the SAWP.

<i>The Seasonal Agricultural Workers Program (“SAWP”)</i>

[60]        Dr. Preibisch testified that temporary visa workers, particularly those employed in precarious, low-skilled occupations, are more vulnerable than Canadian or permanent resident workers. She testified that, although they share some of the same rights as Canadian or permanent resident workers, they cannot enforce these rights in the same way.

<i>The closed nature of the employment relationship</i>

[61]        One of the key factors identified by Dr. Preibisch that influences the vulnerability of temporary visa workers under the SAWP is the closed nature of their work permits, that are valid only with a single, designated employer. They are severely limited in their ability to change employers if they are dissatisfied with their working conditions or treatment. In order for a SAWP worker to initiate a change in employer, the SAWP worker would first have to find an employer willing to hire them and apply for a new work permit. The potential employer would then have to apply to Human Resources and Skills Development Canada (“HRSDC”) to hire the temporary worker and be assessed for eligibility. The process to request a change in employer can take weeks or months, which has been highlighted as a major problem for temporary visa workers. Temporary visa workers are not authorized to work while they are waiting for a new work permit. In addition, many SAWP workers are unaware that they can change employers or that their work permits are separate from their visa.

[63]        At the hearing, I heard evidence that, notwithstanding these barriers to changing employers, a significant number of SAWP workers in fact were transferred between employers while in Canada. Dr. Preibisch explained that the vast majority of these transfers were employer-initiated, as opposed to being initiated by the SAWP worker, and form a standard part of different farm operations utilizing SAWP workers to harvest crops with different growing seasons. While the respondent referenced evidence from FARMS, an organization which is a non-profit, private sector run organization incorporated federally to manage certain aspects of the SAWP, and led evidence from Mr. Anderson about the number of such transfers, the respondent did not provide evidence regarding the reason for these transfers or how many were employer-initiated as opposed to being worker-initiated. <b><u>In this regard, I prefer Dr. Preibisch’s evidence that the vast majority are employer-initiated. In my view, the fact that there are a significant number of such employer-initiated transfers does not detract from the difficulties and barriers faced by SAWP workers in changing employers due to poor working conditions or treatment.</b></u>

<i>Risk of repatriation</i>

[65]        I heard evidence that SAWP workers have been fired and repatriated for a range of reasons that would be considered unfair by provincial employment standards and human rights legislation. Dr. Preibisch testified that research on the SAWP, as well as case files from front-line outreach workers, have documented testimonies of workers that have been fired and arrangements made for their deportation for refusing unsafe work, for being injured or ill, for becoming pregnant, for questioning their employer, or for making a telephone call, among others. I have documents in evidence before me to support this assertion, including information provided by FARMS regarding the reasons given by employers for the repatriation of migrant farm workers from 1993 to 2011. The standard employment agreement entitles employers to terminate a SAWP worker’s employment and cause the worker to be repatriated “for non-compliance, refusal to work, or any other sufficient reason”. Dr. Preibisch testified that this gives employers a wide, unfettered discretion to prematurely end a migrant worker’s contract.

[66]        Dr. Preibisch testified that dismissed SAWP workers have little recourse to query the grounds of their dismissal, as there are no institutions in Ontario or at the federal level that investigate if temporary visa workers have been unjustly fired. <b><u>While a SAWP worker theoretically could file a human rights or employment standards application or complaint if the reason for their dismissal was in violation of such legislation, barriers to the filing of such applications or complaints include: a lack of knowledge among migrant workers of their legal rights in Canada; the fact that deportation usually occurs swiftly after a migrant worker’s employment is terminated, giving them little time or access to file such applications or complaints; and the potential repercussions of such action on the worker’s ability to continue to participate in the SAWP program in subsequent years.</b></u>

[69]        SAWP workers comply with repatriation in many cases for a lot of reasons: sometimes on the misguided notion that will not be kicked out of the program; many do not know that their work permit is separate from their visa and that they can legally stay in Canada even though the work permit has ended; or because they cannot financially sustain themselves if they stay or pay for another ticket home.

<i>Employer’s ability to recall SAWP workers</i>

70]        Dr. Preibisch testified that, while most employers participating in the SAWP recall the same workers year after year and consider their ability to do so one of the benefits of the SAWP, SAWP workers do not generally have recall rights that oblige employers to recall the same group of migrants from year to year. She testified that the lack of recall rights can foster worker acquiescence to unfair employment practices or poor living conditions, as migrants perceive their job security hinges on garnering employer favour.

<i>Economic need</i>

[74]        Dr. Preibisch testified that income from participation in the SAWP is usually the primary income stream for the worker’s family. She cited research indicating that in Mexico, the average SAWP worker works a five-month contract in Canada and remits $5,000 to $6,000 during that period, which is equal to 2.2 times an annual salary in Mexico based on that country’s minimum wage. While this may not be a huge amount of money, Dr. Preibisch testified that it can mean the difference between a decent life and one of desperation. As a result, SAWP workers highly value their Canadian jobs, which is one of the reasons why they do what is in their power to hold on to those Canadian jobs.

<i>Living conditions</i>

[75]        Dr. Preibisch testified that housing arrangements also may exacerbate SAWP workers’ vulnerability. She testified that employer-provided housing can foster paternalistic relationships if SAWP workers depend heavily on their employer for transportation into town or to access services, including health care. In addition, she testified that research has shown that employer-provided housing can lead to employers extending their control over the workplace into the personal lives of SAWP workers. Further, when SAWP workers living in employer-provided housing lose their jobs, they also lose their accommodations.

<i>Social isolation and lack of services</i>

[77]        Due to their immigration status, SAWP workers are ineligible for the range of services and protections associated with citizenship or permanent residency. For example, immigration services are not provided funding to work with temporary residents.

[78]        SAWP workers also do not enjoy the same level of social protection as Canadian citizens or permanent residents in terms of the social services they can access. For example, regular and sickness benefits for employment insurance can generally only be collected while the SAWP worker is in Canada and has a valid work permit. The SAWP worker must also meet other criteria to receive such benefits, including having worked a sufficient number of hours. SAWP workers also face information gaps regarding the benefits they can access. To further exacerbate the situation, because SAWP workers spend significant segments of their working lives in Canada, they often do not qualify for benefits within their home country.

<i>Employer selection of SAWP workers</i>

[89]        Dr. Preibisch testified that there is evidence that employers select SAWP workers on the basis of their nationality and other criteria. This occurs both formally, whereby employers on their application indicate which nationality of workers they seek to hire, or informally, when employers or their representatives communicate to the ministries of labour within migrant-sending countries the gender (and often skill set) of the workers they want to hire. Some employers communicate additional criteria verbally, including the preferred skill set, height, and weight of workers. As a result, Dr. Preibisch states that employment opportunities in Canada for SAWP workers are based on formal and informal discriminatory hiring practices.

<i>Health and safety risks</i>

[99]        Dr. McLaughlin testified that workers in agriculture, an industry with numerous hazards, long and fluctuating hours, and changing environmental conditions, face compounded risks. She referenced studies from the United States which investigated migrant farm worker health and safety issues and found that workplace accidents are common, and farm labour has that nation’s highest incidence of workplace fatalities and disabling injuries. Many more recent studies have documented that farm workers in the United States experience widespread and systematic health concerns, and that health and safety problems among farm workers in the United States are both more prevalent and occur with greater frequency than among other occupational groups. The most commonly discussed concerns are injuries, musculoskeletal disorders, cardiovascular disease, hypertension, premature death, certain cancers, hearing loss, dermatological concerns, eye and ear problems, infectious diseases (such as TB and various STIs), diabetes, respiratory and lung diseases, mental disorders (often related to stress), climate-caused illnesses, ulcers, bladder, kidney and liver disorders, and reproductive problems such as infertility, birth defects and miscarriages.

[100]     She states that the reports further conclude that vulnerable groups such as seasonal and migrant workers and ethnic minorities are especially at risk, and that migrant and seasonal farm workers suffer morbidity and mortality rates greater than the vast majority of the American population, due in large part to hazards, poverty, substandard living conditions, migrancy, and language and cultural barriers.

[109]     Dr. McLaughlin also testified about the social exclusion experienced by migrant farm workers, and its impact on their health. She states that social support and connectedness are important factors for mitigating the various stresses experienced by migrant farm workers, for sustaining mental, emotional and physical health, and for facilitating access to benefits and services.

<I>Points raised by the respondent</i>

[130]     The respondent notes that workers under the SAWP are entitled to statutory protections under the OHSA (since 2006), the Workplace Safety and Insurance Act (“WSIA”), and the ESA, and that Ministry inspectors have attended to complaints from migrant farm workers under the SAWP. The statutory protections are not disputed by the applicant’s witnesses. <b><u>But the existence of these statutory protections does not address the significant barriers to accessing these benefits by migrant farm workers, as identified by Dr. Preibisch and Dr. McLaughlin, including the fear of being fired and repatriated by their employer, being excluded from participation in the SAWP in subsequent years, lack of knowledge and understanding about their statutory rights, language and cultural barriers, and the difficulty in proceeding with statutory claims given the limited time these workers spend in Canada.</b></u>

[131]     The respondent notes that the Ministry of Labour and health and safety information providers such as the Canadian Agricultural Safety Association and WSPS publish information on these statutory rights in a variety of languages, including Spanish. <b><u>While this addresses in part the language barrier experienced particularly by Mexican SAWP workers in being able to become aware of their statutory rights, this does not address the other significant barriers identified by the applicant’s witnesses.</b></u>

[134]     The respondent notes that SAWP workers can raise grievances with liaison officers and/or with the Ministry of Labour. The respondent cites the Verduzco study, which found that 85% of Mexican workers indicated they knew how to contact the Mexican consulate and 77% knew that the consulate has a duty to support them. The respondent also notes that the Worker Advisor appointed under the WSIA is also available to assist farm workers. With regard to liaison and consular officials, Dr. Preibisch in particular spoke to the dual role and inherent conflict of interest of these officials in supporting workers on the one hand, and yet not alienating employers on the other, in the context of the competition between migrant-sending countries for SAWP placements. <b><u>On top of that, the same barriers still exist to making complaints, whether with liaison or consular officials or with government ministries, in terms of the fear of being labelled a “troublemaker” and fired and repatriated and jeopardizing future placements. While actual rates of repatriation may be relatively low, it is the broad discretion afforded to employers to repatriate SAWP workers and the fear of triggering such action which serves as a powerful barrier to SAWP workers in making complaints about their employers.</b></u>

[141]     The respondent states that local community groups, advocacy groups and employers have made advances in integrating migrant farm workers into Ontario communities. This is not disputed, but was referred to by Dr. McLaughlin as a “drop in the bucket”. As I have stated above, there are many good employers under the SAWP who treat their workers well and take significant steps to integrate them into the community. The work of local churches, community groups and advocacy groups in this regard is also to be recognized and commended. <b><u>But these steps forward do not detract, in my view, from the overwhelming evidence that I have heard in this proceeding regarding the vulnerability that migrant farm workers experience as a whole.</b></u>

<b>The Racialized Nature of SAWP Workers</b>

<b><u>[142]     SAWP workers by definition are identified by their citizenship, race, ancestry, colour, ethnic origin and place of origin, all of which are prohibited grounds of discrimination under the <i>Code</i>.</b></u> SAWP workers are drawn either from Caribbean countries or from Mexico. SAWP workers from Caribbean states are predominantly Black, and those from Mexico are predominantly Hispanic. There is no doubt that these workers form a protected group under the <i>Code</i> identified by personal characteristics protected under the <i>Code</i>.

[144]     Dr. Galabuzi testified that the racial character of SAWP workers has implications for their vulnerability in the Canadian labour market. He testified that the origin of the SAWP was an attempt to try to resolve a conflict between the Canadian government, that was opposed to the migration of racialized workers, and especially Black workers, and agricultural employers desperate for workers to do their work and for workers who were “un-free” in order to ensure that employers would maintain stability in their enterprises.

[145]     Dr. Galabuzi testified that the concept of “un-free” labour means that one is dealing with a category of workers who, because of their immigration status and also because they are racialized, have very limited choices in their ability to negotiate better working conditions or wages, to deny work, or to resist the intensification of their work. He testified that the other dimension of “un-free” labour refers to employers who are seeking workers who are sufficiently un-free so that employers can maintain “flexibility” over their workforce to impose and control the conditions of work, compensation, and work assignment in order to ensure the lowest cost production.

[146]     Dr. Galabuzi identified four factors that contribute to the identification of work as “precarious”, which has implications for the undermining or vulnerability that workers have with regard to their health. These factors are: (1) the nature of the work they do and the worker’s ability to control the work; (2) how the work is organized, and particularly instability or insecurity in terms of tenure; (3) compensation for that work; and (4) potential exposure to health and safety risks or unsafe working conditions.

<b>Comparative death rates in mining, construction and agriculture</b>

[227]     As stated in my previous Interim Decision, <b><u>it is the applicant’s burden to establish that deaths among SAWP workers would fall within the criteria set out in s. 10(5) of the <i>Coroners Act</i>.</b></u> Absent specific evidence to establish that a particular death was the result of an accident that occurred at the work site during the course of the worker’s employment, I am not prepared to make that assumption. As a result, I find that it has been proven in evidence before me that four deaths of SAWP workers during the period from 1994 to July 2011 would satisfy the criteria set out in s. 10(5).

<B>Analysis and Decision</b>

<b><u>[267]     There is no dispute that the holding of a coroner’s inquest is a “service” within the meaning of s. 1 of the <i>Code</i>: <i>Ontario (Attorney General) v. Ontario (Human Rights Commission)</i>{{Ontario (Attorney General) v. Ontario (Human Rights Commission)}}, (2007) 2007 CanLII 56481 (ON SCDC), 88 O.R.(3d) 455 (Div.Ct.).</b></u>

[268]     The parties submit that, in the context of a challenge to legislation or government policy, the discrimination analysis to be used is the analysis used in the context of challenges to legislation under s. 15(1) of the Charter, relying in this regard on the decision of the Court of Appeal in <i>Ontario (Disability Support Program) v. Tranchemontagne</i>, 2010 ONCA 593.{{Ontario (Disability Support Program) v. Tranchemontagne}} <b><u>While the Court of Appeal in <i>Tranchemontagne</i> did state that there is “no principled reason for adopting a different meaning for the term discrimination as it appears in s. 1 of the <i>Code</i> than has been ascribed to that term in the Charter context”, the Court did proceed to discuss the differences between the <i>Code</i> and the Charter and indicate that the nature of the evidence required to establish discrimination and the stringency of the test for discrimination may depend upon the context.</b></u>

[269]     In <i>Marakkaparambil v. Ontario (Health and Long-Term Care)</i>, 2007 HRTO 24{{Marakkaparambil v. Ontario (Health and Long-Term Care)}}, <b><u>this Tribunal held that where there is a challenge to legislation or a government benefit plan or scheme, the framework of analysis utilized under s. 15 of the Charter applies; while noting that such an analysis may well not be applicable when analyzing specific actions or individual decisions that are alleged to be discriminatory, as opposed to legislation or a government policy or program.</b></u> In my view, the <i>Marakkaparambil</i> decision is consistent with the approach taken by the Court of Appeal in <i>Tranchemontagne</i>, and I adopt and apply the reasoning and approach taken in <i>Marakkaparambil</i> at least to the extent that it applies to challenges to legislation. <b><u>As the issue in this case is whether s. 10(5) of the <i>Coroners Act</i> is inconsistent with the right to be free from discrimination in the provision of services protected under s. 1 of the <i>Code</i>, it is my view that the analysis under s. 15 of the Charter applies.</b></u>

[270]     As a result, the following two-step s. 15 discrimination analysis developed by the Supreme Court of Canada in <i>R. v. Kapp</i><{{R. v. Kapp}} applies, namely: (1) whether the law creates a distinction based upon a ground protected under the <i>Code</i>; and (2) whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping: <i>R. v. Kapp</i>, 2008 SCC 41 (CanLII), [2008] 2 S.C.R. 483 at para. 17.

<i>Step One: Disparate Impact</i>

[271]     Turning to the first step of the test, the question before me is whether s. 10(5) of the Coroners Act creates a distinction based upon the prohibited grounds of discrimination alleged before me, namely race, colour, ancestry, place of origin, ethnic origin or citizenship.

[272]     The applicant submits that s. 10(5) of the <i>Coroners Act</i> purports to treat everyone in like manner, in the sense that all farm workers are excluded from the benefit of a mandatory inquest in the event of a workplace death. However, the applicant submits that this has an indirect and disproportionately negative impact on SAWP workers, who are uniformly racialized, of Caribbean or Mexican origin, and non-citizens, and fails to take into account SAWP workers’ already disadvantaged position within Canadian society, which results in substantively differential treatment as compared to others on the basis of race, place of origin and citizenship. <b><u>It is submitted that the disparate effect that s. 10(5) has on the vulnerable workplace situation of SAWP workers cannot be viewed in isolation from the broader historical, sociological and systemic context in which they have suffered disadvantage and marginalization as a racialized and non-citizen group in our society.</b></u>

[275]     The main issue is whether s. 10(5) of the <i>Coroners Act</i> creates a distinction based upon a prohibited <i>Code</i> ground or grounds. <b><u>Obviously, no such distinction is made on the face of the legislation. Rather, the distinction made in s. 10(5) is on the basis of occupational category: persons employed in the mining and construction industries have the benefit of a mandatory inquest into workplace deaths; persons employed in all other industries, including agriculture, do not. As noted by the respondent, occupational category is not a ground of discrimination protected under the <i>Code</i>. To say that, however, does not end the analysis.</b></u>

[278]     In order to understand this point, one can look at the Meiorin case: <i>British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU)</i>, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3.{{>British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU)}} That case involved an allegation of constructive or adverse effect discrimination in relation to an aerobic standard required for forest firefighters. Obviously, an aerobic standard is not a requirement, qualification or factor that is discrimination on a prohibited ground. However, the evidence demonstrated a disproportionate impact on women due to the imposition of this aerobic standard: specifically, 65 to 70% of men were able to pass the fitness tests, which included meeting the aerobic standard, on their first attempt; while only 35% of women had similar success. <b><u>In identifying this as adverse effect discrimination, the Court was called upon to compare two groups that were defined by the “neutral rule”: those who were able to meet the aerobic standard; and those who were not.</b></u> When comparing these two groups, the Court found that 65 to 70% of men were able to make it into the first group, while only 35% of women were able to do so.

<b><u>[279]     The point here is that an adverse effect analysis involves and necessitates the identification of groups that are defined by the neutral rule or requirement, and then a comparison between these groups to assess whether there is a disproportionate impact upon a group identified by a protected ground.</b></u> In the context of s. 10(5), this would involve a comparison between the group receiving the benefit of a mandatory inquest, namely those working in the mining and construction industries, and the group excluded from s. 10(5), namely those working in any other sector, or perhaps those working in agriculture. One then needs to compare these groups to determine whether the exclusion of those working in other sectors, or perhaps specifically in the agriculture sector, has a disproportionate impact on a group identified by a prohibited ground.

<b><u>[288]     In my view, on the basis of the evidence before me, the applicant has satisfied the first step of the discrimination analysis, namely by demonstrating that s. 10(5) of the <i>Coroners Act</i>, while setting out a neutral requirement on its face, has a disproportionate impact on the group of SAWP workers which is identified by prohibited grounds of discrimination, particularly on the grounds of citizenship and race.</b></u> I make this conclusion both on the basis of the higher representation of non-resident workers in the agriculture industry as compared to the mining and construction sectors, once SAWP workers are fully accounted for in the data, and on the basis of the higher representation of visible minority workers in agriculture as compared to the other two sectors, again once SAWP workers are fully accounted for in the census data.

<i>Step Two: Contextual Analysis and Substantive Equality</i>

[290]     At the end of the day, in my view, I need to discern the purpose of s. 10(5) from its context within the entire scheme of the <i>Coroners Act</i>. In this regard, I need to be guided by the Divisional Court’s decision in <i>Braithwaite</i>{{Ontario (Attorney General) v. Ontario (Human Rights Commission)}}, above. While I appreciate that the <i>Braithwaite</i> decision was rendered prior to the Supreme Court’s decision in <i>R. v. Kapp</i>, which re-formulated the applicable discrimination analysis, the Divisional Court in <i>Braithwaite</i> <b><u>nonetheless draws conclusions about the legislative purposes served by requiring mandatory inquests in certain circumstances under the <i>Coroners Act</i>, including the circumstances set out in s. 10(5), which I believe are necessary for me to consider.</b></u>

<b><u>[292]     As I read the Braithwaite decision, there are three rationales that support the requirement for mandatory inquests: (1) the vulnerability of the circumstances in which the deceased lived or worked; (2) the lack of routine public oversight; and (3) the risks or dangers that were faced by the deceased.</b></u>

<b><u>[293]     To these, I would add a fourth factor, based upon the legislative scheme of the <i>Coroners Act</i>, which is the extent to which the requirement to hold a mandatory inquest furthers the purposes of an inquest.</b></u> The purposes of an inquest can, in part, be gleaned from the factors set out in s. 20 of the Act, which are required to be considered by the coroner in deciding whether to hold a discretionary inquest. These are: whether the answers to the “five questions” are known; the desirability of the public being fully informed of the circumstances of the death through an inquest; and the likelihood that the jury on an inquest might make useful recommendations directed to the avoidance of death in similar circumstances. I also have had regard to s. 30 of the Act, which provides that an inquest shall inquire into the circumstances of the death and determine the “five questions” (sub-s. (1)) and that the inquest jury may make recommendations directed to the avoidance of death in similar circumstances or respecting any other matter arising out of the inquest (sub-s. (3)).

[298]     In my view, the factors regarding the purpose underlying s. 10(5) of the <i>Coroners Act</i> which are most relevant to the issue I need to decide are the factors relating to the risk or dangers confronted by the targeted population and the purposes served by the requirement to hold a mandatory inquest.

[325]     While this is a contextual inquiry, it also involves a comparative analysis. For example, in the <i>Withler</i>{{Withler v. Canada (Attorney General)}} case itself, <b><u>the Court examined the legislative framework of benefits as a whole and the full suite of benefits provided to various individuals, and compared the different needs and circumstances of the group of younger benefit recipients with those of older benefit recipients, to assess whether the reduction in the supplemental death benefit for older recipients was consistent with the overall legislative scheme. What was rejected by the Court was the narrow mirror comparator analysis applied by the dissenting judge at the B.C. Court of Appeal, that focused narrowly on the reduction of one benefit without broader examination of the scheme as a whole.</b></u> The Court held that a broader contextual analysis was required. But, as stated above, a broader contextual analysis still requires an element of comparison between the group that receives the benefit and the excluded group, in the context of the overall legislative scheme and the purposes served by the benefit in issue.

<b><u>[330]     Here there is a group that receives the benefit of s. 10(5) of the Coroners Act and a group that is excluded from this benefit which, due to adverse impact, has a disproportionate impact on the basis of protected personal characteristics. This, in my view, requires and necessitates a contextual approach that considers the purposes underlying the extension of the benefit to particular groups and considers those purposes in the context of the excluded group.</b></u> This necessarily involves some element of comparison between these groups, in the contexts of the purposes of the provision at issue, but is not the end of the search for substantive equality. Rather, in the context of the comparison of these groups in relation to the legislative purposes underlying the provision at issue, I need to consider whether the exclusion of migrant farm workers results in substantive discrimination on the basis articulated above. I will turn to this question below. But in the context of considering this question, it is my view that I do need to consider the relative or comparative positions of the two groups at issue in the context of the legislative scheme. This, in my view, is what the Federal Court means by saying that comparison can be an evidentiary tool to identify substantive discrimination.

[334]     The applicant also relies upon <i>Quebec (Attorney General) v. A.</i>, 2013 SCC 5.{{Quebec (Attorney General) v. A.}} This case addressed the question of whether it was valid to exclude de facto spouses from the matrimonial and support rights granted to married and civil union spouses and whether this exclusion violated s. 15 of the Charter. Abella J., while in dissent as to the result, was in the majority in relation to her discussion of the s. 15 analysis. In this context, she reviewed the Court’s previous decision in <i>Nova Scotia (Attorney General) v. Walsh</i>, 2002 SCC 83 (CanLII), [2002] 4 S.C.R. 325{{Nova Scotia (Attorney General) v. Walsh}}, which addressed a challenge under s. 15 of the Charter to the exclusion of unmarried spouses under Nova Scotia’s <i>Matrimonial Property Act</i>. In the <i>Walsh</i> case, the Court held that the comparator group of married spouses was not perfectly mirrored by the group of unmarried persons, based upon the heterogeneity of the composition of the latter group. Abella J. held (at para. 346) that such a formalistic comparator approach “short-circuited the analysis of the adverse impact experienced by a significant proportion of unmarried spouses”. In my view, Abella J. is simply re-stating what was indicated in <i>Withler</i>, which is that a rigid mirror comparator approach is not consistent with the concept of substantive equality. Once again, I do not see this approach as being at odds with the approach I have taken in this case, which is based upon a contextual analysis of s. 10(5) of the <i>Coroners Act</i> in the context of the legislative scheme as a whole and the purposes underlying the provision at issue.

[336]     Accordingly, in light of the contextual and comparative analysis above in relation to the purposes of s. 10(5) of the <i>Coroners Act</i> in the context of the legislative scheme as a whole, I will consider the second step of the discrimination analysis that applies here, <b><u>which is whether the distinction at issue creates a disadvantage by perpetuating prejudice or stereotyping.</b></u> In making this determination, I have been mindful of the comments made by Abella J. in <i>Quebec (Attorney General) v. A.</i>, above, in relation to this step of the discrimination analysis. While Justice Abella was in dissent on the result in that case, her discrimination analysis was accepted by the majority of the Court.

[342]     In this context and on the basis of the evidence before me, I cannot conclude that the lack of a mandatory inquest requirement into the workplace deaths of migrant farm workers in fact operates as an indication that their lives are of lesser value or their safety less worthy of protection. <b><u>Rather, the focus on persons employed in the mining and construction industries represents a recognition of the greater degree of risk of traumatic workplace fatalities that these groups face, particularly at the time the provision at issue was added to the <i>Coroners Act</i> and continuing to this day. In contrast, the evidence before me demonstrates that SAWP workers are at significantly lower risk of traumatic workplace fatality.</b></u>

[345]     While I appreciate the vulnerabilities experienced by SAWP workers, I cannot find that their exclusion from the mandatory inquest requirement under s. 10(5) of the <i>Coroners Act</i> results in substantive inequality for this group when the purposes and context of this provision are taken into account.

[346]     For all of the foregoing reasons, the Application is dismissed.

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