Section 15 and Disability Flashcards
In the law today, is intent to discriminate required?
No. The law recognizes that much discrimination occurs unintentionally
What was the significance of [BC (Public Service Employee Commission) v BC Government Service Employees’ Union [1999] 3 SCR 3]?
the court discarded the distinction between direct and adverse effects discrimination and argued for a unified approach – a three-step test was established which employers must meet to establish a BFOR. The onus is on the complainant to establish the he or she has been discriminated against. The onus then shifts to the respondent to demonstrate that the discriminatory action constitutes a BFOR defense regardless of whether the discrimination is intentional or unintentional.
What are the 3 things an employer must prove to defend against a discrimination claim?
1) Show that it adopted the standard for a purpose rationally connected to the performance of the job;
2) Establish that it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
3) Establish that the standard is reasonably necessary to the accomplishment of the legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees without imposing undue hardship upon the employer.
What was the significance of Eaton v Brant County Board of Education [1997] ?
the court held, that there was no discrimination in that there was no burden or disadvantage placed on the child, nor was she denied a benefit. Subjective perceptions by a Charter applicant of discrimination are not sufficient. There must also be an objective basis for the finding of discrimination so that a reasonable person w the same characteristics and circumstances of the Charter applicant would perceive there to be discrimination and denial of human dignity.
What was the significance of Eldridge v BC?
that ‘once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner’. So, the Charter includes a duty to make reasonable accommodation, up to the point of undue hardship, for those adversely affected by a rule – a principle that is addressed in the s.1 analysis. So, this will require the government to take positive action.
