What is the test for discrimination under s. 15(1) of the BC Human Rights Code?

Ontario, Canada


The following excerpt is from R. v. Badesha, 2011 ONCJ 284 (CanLII):

[113] The court went on to note that in Andrews v. Law Society of B.C., 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, referred to above, McIntyre J. explained that “every difference in treatment between individuals under the law will not necessarily result in inequality” and quoted from his judgment at page 182; However, in assessing whether a complainant’s rights have been infringed under s. 15(1), it is not enough to focus on the alleged ground of discrimination and decide whether or not it is an enumerated or analogous ground. The effect of the impugned distinction or classification on the complainant must be considered. Once it is accepted that not all distinctions and differentiations created by law are discriminatory, then a role must be assigned to s. 15(1) which goes beyond mere recognition of the legal distinction. A complainant under s. 15(1) must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.

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