Prima Facie Discrimination: Is Tranchemontagne Consistent with the Supreme Court of Canada’s Human Rights Code Jurisprudence?

Abstract

In Ontario (Disability Support Program) v Tranchemontagne, the Ontario Court of Appeal incorporated the Charter test for discrimination into the inquiry for whether a claimant has established a prima facie case of discrimination under the Ontario Human Rights Code. This standard requires a claimant to establish that a rule is substantively discriminatory, in the sense of perpetuating disadvantage, stereotyping or prejudice, before the burden shifts to the respondent to establish a statutory defence or show that the rule was bona fide under the circumstances. This paper argues that by incorporating these substantive, normative elements into the prima facie case, the Court of Appeal has undermined 30 years of stable Supreme Court jurisprudence establishing that for the purpose of human rights legislation, a prima facie case requires only evidence of a causal or factual link between the protected characteristic and the differential treatment. While a serious debate can be had as to whether or not the test for discrimination under human rights legislation should mirror the Charter approach, it is submitted that this requires the courts to acknowledge that such a change represents a significant departure from the Supreme Court jurisprudence. Furthermore, to the extent that such a change is deliberate, it is incumbent upon the courts to justify this rather large reorientation of the law.