Law v. Canada (Minister of Employment and Immigration)
,  1 S. C. R. 497 is a leading Supreme Court of Canada
decision that created the Law test
for establishing equality right
claims under section 15
of the Canadian Charter of Rights and Freedoms
The case involved Nancy Law, a 30-year old widow
without dependants 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 dependants 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). The tribunal held that the legislation did not violate Law's rights. The majority held that even if it did it would be justified under section 1 of the Charter. However, the dissenting opinion found that the age distinction was arbitrary and Parliament could have targeted those in need better. The Federal Court of Appeal upheld the tribunal's decision.
The question before the Supreme Court was "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."
Prior to this case there had been a sharp divide in the Court in the interpretation of the section 15 test established in Andrews v. Law Society of British Columbia. The dispute culminated in this case where the test was reformulated to reflect both sides of the dispute.
Reasons of the Court
The unanimous court, in an opinion written by Iacobucci J.
, held that the Canada Pension Plan did not violate section 15(1).
Iacobucci examines the past cases on section 15, noting the ongoing dispute between the Justices. However, there remains a consensus on the purpose and approach, which he enumerates.
First, the approach must not be mechanical, rather it should be flexible, purposive and contextual. The steps in the test must function as a point of reference, not strict guidelines, and must allow for expansion and modification by cases in the future. The analysis must be remedy oriented in order to properly identify and solve situation of discrimination.
Second, the analysis generally should focus on three issues.
- whether a law imposes differential treatment between the claimant and others, in purpose or effect;
- whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and
- whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.
Analysis of the issues should establish whether the law causes differential treatment, and then whether the differential treatment constitutes discrimination. From this Iacobucci formulates a new test to establish a discrimination claim.
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 grounds? and
- (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 deserving of concern, respect and consideration.
To successfully make a claim, it must be established that the law, in purpose or effect, conflicts with the purpose of section 15.
On the third stage of analysis Iaccobucci enumerates four factors that should be considered. Their purpose are to establish if the law demeans their dignity. This must be done from a hybrid, subjective/objective, point of view. Namely, "that of the reasonable person, in circumstances similar to those of the claimant, who takes into account the contextual factors relevant to the claim."
The four factors are as follows:
- Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. The effects of a law as they relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of "discrete and insular minorities" should always be a central consideration. Although the claimant's association with a historically more advantaged or disadvantaged group or groups is not per se determinative of an infringement, the existence of these pre-existing factors will favour a finding that s. 15(1) has been infringed.
- The correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. Although the mere fact that the impugned legislation takes into account the claimant's traits or circumstances will not necessarily be sufficient to defeat a s. 15(1) claim, it will generally be more difficult to establish discrimination to the extent that the law takes into account the claimant's actual situation in a manner that respects his or her value as a human being or member of Canadian society, and less difficult to do so where the law fails to take into account the claimant's actual situation.
- The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. An ameliorative purpose or effect which accords with the purpose of s. 15(1) of the Charter will likely not violate the human dignity of more advantaged individuals where the exclusion of these more advantaged individuals largely corresponds to the greater need or the different circumstances experienced by the disadvantaged group being targeted by the legislation. This factor is more relevant where the s. 15(1) claim is brought by a more advantaged member of society.
- The nature and scope of the interest affected by the impugned law. The more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1).
This case in some respects contradicted the earlier section 15 case Andrews v. Law Society of British Columbia
, in which it was ruled that differential, detrimental treatment directly affecting an enumerated or analogous ground constituted a violation of section 15, and that any discussion about the law's purpose or reasonableness should then take place in the section 1 analysis. As constitutional legal scholar Peter Hogg
has written, by examining whether the challenged law undermines dignity while still looking at section 15, and not yet section 1, Law
moved much of the analysis of the law's purpose and reasonableness from the traditional section 1 test, and into section 15. This means that a person who claims his section 15 rights are violated must himself prove his dignity was undermined.