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Supreme Court revisits what is a “factor” in discrimination

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In human rights law, courts and tribunals will often find it useful to determine whether a claimant has established a prima facie case of discrimination 1. The test requires that the complainant has a protected characteristic under the relevant human rights legislation; that the complainant suffered disadvantage or adverse impact; and that the protected characteristic was a factor or had contributed to the disadvantage or adverse impact 2.

With respect to the third part of the test, the law is well established that the protected characteristic need not be the sole reason for the adverse treatment. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center) 3, a case decided under the Quebec Charter of human rights and freedoms 4, the Supreme Court of Canada clarified, at paragraphs 47-51, that in considering whether a protected characteristic was a factor,

. . . the decision or action of the person responsible for the distinction, exclusion or preference need not be based solely on the prohibited ground;… it is enough if that decision or action is based in part on such a ground. … In other words, for a particular decision or action to be considered discriminatory, the prohibited ground need only have contributed to it …

A recent decision of the Supreme Court, however, raises questions about what it means for a prohibited ground to have contributed to, or have been a factor in, a decision or action such that it may constitute discrimination. Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse) 5 overturned a Quebec Human Rights Tribunal’s decision, which found that a comedian’s jokes mocking the disability of a well-known child singer amounted to discrimination under the Quebec Charter. This case has received considerable media attention, primarily as it addresses the relationship between the right to be free from discriminatory conduct and the right to freedom of expression. However, the reasons for the majority of the Supreme Court in Ward also raise questions about the prima facie test for discrimination itself.

The Tribunal found the reason the child singer was targeted by the comedian was not because of his disability, but because he was a public personality who seemed to be “untouchable.” The Tribunal went on to find, however, that the jokes themselves were clearly related to his disability, and found liability on that basis.

At paragraphs 96-102 of their decision, the majority of the Supreme Court held that the Tribunal’s analysis should have stopped at the point where it found the decision to select the child singer as a subject of his jokes was not because of his disability. The Supreme Court held that the Tribunal erred by focusing on the content of the jokes, rather than the reason why the comedian decided to target the child singer in the first place (Ward, paragraph 98). In essence, it determined that the alleged discriminatory action was the initial decision to target the child singer, not the making of the offensive jokes about his disability. As the Tribunal had determined that his disability was not a factor in why he was targeted, there was as such no discrimination.

The minority of the Supreme Court argued that this approach ignores the well-established principle that discrimination is not based on the intention of the person who engaged in the objectionable conduct, but based on the impact of the conduct on the victim (Ward, paragraph 134) 6. The reason why the comedian chose to target the child singer — his intention — should be irrelevant. Whether or not there was discrimination should be based on the impact of the jokes.

There is much more to this decision which is beyond the scope of this article, and the significance of the fact that the role that the target was a public personality, the conflicting rights issue under the Quebec Charter, and the question of whether this was properly a case of defamation, rather than discrimination, all deserve further analysis. However, the approach taken by the majority in this case does open up some significant questions respecting the prima facie test, and in particular, in what circumstances a personal characteristic may be considered to have contributed, or to have been a factor, in considering whether discrimination has occurred.

This article has been selected for publication in the April 2022 edition of the Employment and Labour Law Reporter:

Bruce Best, “Supreme Court revisits what is a “factor” in discrimination”, Case Comment on Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), (2022) 32 ELLR 5

1 It should be noted, however, that the prima facie test is a threshold issue to determine if a defence need be put forward, and it is not necessary to consider (though it may be useful to do so) where a case has been fully defended. See Peel Law Association v Pieters, 2013 ONCA 396, at paragraphs 81-84.
2 See British Columbia Human Rights Tribunal v Schrenk, 2017 SCC 62, at paragraph 86, and Moore v British Columbia (Education), 2012 SCC 61, at paragraph 33.
3 2015 SCC 39
4 CQLR, c. C 12
52021 SCC 43
6This principle has been a fundamental part of Canadian human rights law for decades; see Ontario (Human Rights Commission) v Simpson-Sears Ltd, 1985 CanLII 18 (SCC).

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