What is the test for establishing unfairness and unequally treated in the provisions of the Human Rights Act?

“Unfairly and unequally” in the first element are not defined in the Act, but the terms reflect the language in Kruse v. Johnson and in the common law test. It is helpful to consider the differential treatment of classes of persons as being “unequal” in the sense of giving permission to one and refusing it to another, which is factual discrimination. It is also helpful to consider the unequal treatment as being “unfair” in the sense that it is intended to favour or hurt a particular person, or class of persons, without taking into account the public interest. However, there may be other ways in which a challenger could establish unfairness, given the relatedness between the concepts of discrimination, bad faith and unreasonableness.

The second element of s. 351(2) is the lack of reasonable justification. This also reflects the language in Kruse v. Johnson. The use of the word “justification” suggests that it should fall to the municipal council, as the author of the bylaw, to defend it. However, because the common law states that the onus clearly rests upon the challenger of the bylaw, he or she must initially establish that the bylaw is operating “unfairly and unequally” before the onus would shift to the municipality to provide its “reasonable justification”.