What factors are considered in determining whether a ground of discrimination is analogous to s. 15 of the Charter?
British Columbia, Canada
The following excerpt is from Arishenkoff v. British Columbia, 2002 BCSC 951 (CanLII):
In Thibaudeau v. Canada, 1995 CanLII 99 (SCC), [1995] 2 S.C.R. 627 McLachlin J. (as she then was) discussed the factors to be considered in determining whether a ground of discrimination is analogous at para. 205: …it is essential to ask whether the characteristic on the basis of which the prejudicial distinction is made may be used to make irrelevant distinctions that are contrary to human dignity. The fact that the group in question has historically been disadvantaged, that it constitutes a discrete and insular minority, that the distinction is based on an immutable personal characteristic rather than on an individual’s merit, capacities or circumstances, that the ground under consideration is similar to one of the enumerated grounds, or that the legislatures and courts have recognized that distinctions based on the ground under consideration are discriminatory, are all factors which may help on deciding whether a ground of discrimination is an analogous ground for the purposes of s. 15 of the Charter.
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