Withler
Continued From Page 2
between the purpose of the legis-
lation and the needs of those
included (as opposed to
excluded) from the benefit in
question. Like the ‘mirror com-
parator group’ which is now
firmly rejected, the ‘correspond-
ence factor’ has been criticized
for recognizing only formal
equality [i.e. treats likes alike].
Another concern relates to the
extent to which resource alloca-
tion is relevant to the equality
analysis [under s. 15], as opposed
to whether a violation of an
equality right is justified under
s. 1 of the Charter.”
Schulich Law School professor
Dianne Poithier of Halifax, whose
writing was referenced by the
court, said there is still “a lot of
uncertainty” in Withler’s wake,
including “who do you compare
[s. 15 claimants] to?”
Given the court’s doctrinal
twists and turns since s. 15 came
into force in 1985, there is little
predictability for lawyers, clients
and judges, Poithier said.
“It seems like ultimately the
tests don’t matter,” she suggested.
“[We are left with the court’s] gut
reactions as to what’s fair. It’s not
very helpful. They will get to the
result they want, and use the test to
rationalize how to get there. But
the tests themselves don’t seem to
be that controlling.”
In Poithier’s view, the court
was too deferential to the gov-
ernment’s purpose in creating
the impugned benefit scheme,
while not delving deeply enough
into the scheme’s adverse impacts
on the widows. “There is a really
skimpy analysis of the effects of
the scheme,” she said.
BENCHER ELECTIONS
DAN GUTTMAN: TORONTO BENCHER
EXPERIENCED – PROGRESSIVE – COMMUNITY-MINDED:
Chair of Toronto Network, Human Rights
Watch 2009 Recipient of the Arlene
Goss Award (Advocates’ Society)
* Lead counsel in recent SCC decision
in CLA v. Ontario Successfully argued
30 cases at the Ontario Court of Appeal
* Adjunct Professor University of
Windsor (Constitutional Litigation) and
Osgoode Hall Law School (Trial Practice) Crown
Counsel, Constitutional Law Branch and Criminal Law
Division (Ontario) Married to Shaun O’Brien (Partner,
Cavalluzzo Hayes) with three children
to address in any
meaningful way
the reality that
the older one
gets, the more
one needs a last-
illness, and
death, benefit.”
He said the
judges rightly
emphasized the importance of
courts taking a “contextual
approach” to discrimination claims
by examining the “relevant” cir-
cumstances and the purpose and
impact of the legislative scheme.
“But in this case I believe the
court’s perspective for that context
was to view equality from an alti-
tude of 30,000 feet rather than
from, or near, the ground level
where real people live.”
Chief Justice McLachlin and
Justice Abella said comparison is
“at the heart” of s. 15( 1) analysis,
but so is “a contextual inquiry into
whether the impugned law per-
petuates disadvantage or negative
stereotyping.”
In establishing that an
impugned law creates a distinction
that denies a benefit that others are
granted, or carries a burden that
others do not, “it is unnecessary to
pinpoint a particular group that
precisely corresponds to the claim-
ant group except for the personal
characteristic or characteristics
alleged to ground the discrimina-
tion,” they said.
Arvay
Go to www.danguttman.com
for more details and to share your ideas
A FRESH VOICE TO RAISE YOUR PERSPECTIVES AND CONCERNS
COOPER & SANDLER LLP
“They will get to the
result they want, and
use the test to
rationalize how to get
there. But the tests
themselves don’t seem
to be that controlling.
the WILL
Who have practiced criminal law since 1953,
support their senior partner
MARK SANDLER
For re-election as a Bencher
to get things done.
Will McDowell for Bencher
To find out where Will stands
visit willmcdowell.ca
Highlights of Work as an Elected Bencher: Chair, Appeal Panel (authoring over 50 reported judgments and responsible for adjudicator education); Co-Chair, Tribunals Committee (spearheading new rules of practice and procedure and adjudicator’s code of conduct); Chair, Law Foundation of Ontario; Former Chair, Tribunal Composition Task Force; Former Member, Equity and Aboriginal issues Committee; Former Member, Human Rights Monitoring Group; Former Member, Professional Regulations Committee; Former Member, Government Relations Committee.
www.criminal-lawyers.ca
“Provided that the claimant
establishes a distinction based on
one or more enumerated or analo-
gous grounds [of discrimination],
the claim should proceed to the
second step of the analysis” which
enquires into whether the law
works “substantive inequality.”
“In cases involving a pension
benefits program such as this case,
the contextual inquiry at the
second step of the s. 15( 1) analysis
will typically focus on the purpose
of the provision that is alleged to
discriminate, viewed in the broader
context of the scheme as a whole,”
they said. “It will ask whether the
lines drawn are generally appropri-
ate, having regard to the circum-
stances of the persons impacted
and the objects of the scheme.” n
litigate.com
Reasons: Withler v. Canada (Attorney General),
[2011] S.C.J. No. 12.
