What is the effect of the trial judge's failure to fully state and consistently apply the appropriate comparator group?
Canada (Federal), Canada
The following excerpt is from Withler v. Canada (Attorney General), [2011] 1 SCR 396, 2011 SCC 12 (CanLII):
Rowles J.A., dissenting, would have allowed the appeal. In her view, the trial judge erred by failing to fully state and consistently apply the appropriate comparator group. Rowles J.A. accepted the claimants’ submission that, pursuant to the mirror comparator approach, the appropriate comparator group was comprised of surviving spouses who both received an unreduced supplementary death benefit and were eligible for a survivor’s pension. She cautioned, at paras. 58-59, that a “contextual analysis” did not invite a “broad, generalized examination of the facts in evidence”, but rather entailed a “directed inquiry” focussed through the application of the four factors set out in Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497.
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