EQUALITY
EQUALITY 1
Canada 6
Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143: Whether the Canadian citizenship requirement for admission to the British Columbia bar infringed or denied the equality rights 7
R. v. Turpin [1989] 1 S.C.R. 1296: Whether the Criminal Code, which gives accused persons in Alberta (but not in any other province) an election to be tried before a judge alone, violates appellants' equality rights 9
Edmonton Journal v. Alberta (Procureur Général), [1989] 2 S.C.R. 1326 10
Douglas/Kwantlen Faculty Assn. v. Douglas College [1990] 3 S.C.R. 570 11
Weatherall v. Canada (Attorney General) [1993] 2 S.C.R. 872: Constitutionality of frisk searching and patrolling of cell ranges conducted in male prisons by female guards. 13
Insurance Corp. of British Columbia v. Heerspink (1982), 3 C.H.R.R. D/1163 (S.C.C.) [Eng. 6 pp.]: Special Status of Human Rights Legislation Defined -- Unacceptable risk to insurance company as reasonable cause for discriminatory action-- insurance policy terminated without reasonable cause because applicant charged with trafficking in marijuana 13
Saskatchewan (Human Rights Comm.) v. Saskatchewan (Dept. of Social Services) (1988), 9 C.H.R.R. D/5181 (Sask. C.A.) [Eng. 9 pp.]. Saskatchewan Court of Appeal Rules Social Assistance is a Public Service; social assistance benefits reduced for single person-- discriminated against because of his marital status because as a childless unmarried person, applicant was paid less in social assistance than a childless married person. 15
Saskatchewan (Human Rights Commission) v. Saskatoon (City) [1989] 2 S.C.R. 1297: Mandatory retirement -- Alleged discrimination on the basis of age -- Defence of bona fide occupational qualification 16
Benner v. Canada (Secretary of State) [1997] 1 S.C.R. 358: -- Citizenship -- Children born abroad before February 15, 1977 of Canadian fathers granted citizenship on application but those of Canadian mothers required to undergo security check and to take citizenship oath 18
Miron v. Trudel [1995] 2 S.C.R. 418: Automobile insurance -- Standard automobile policy prescribed by provincial legislation extending accident benefits to "spouse" of policy holder -- Term "spouse" not including unmarried common law spouse -- Appropriate remedy 21
Thibaudeau v. Canada [1995] 2 S.C.R. 627: -- Alimony -- Income tax -- Divorced wife refusing to include in computing income amounts received from ex-husband as alimony for maintenance of children -- 27
Large v. Stratford (City) [1995] 3 S.C.R. 733: Discrimination on basis of age -- Mandatory retirement -- Police officer -- Defence of bona fide occupational requirement -- Board of Inquiry finding that mandatory retirement at age 60 for police officers not a bona fide occupational requirement -- Whether Board properly applied subjective and objective tests for a bona fide occupational requirement 35
Dickason v. University of Alberta [1992] 2 S.C.R. 1103: Mandatory retirement -- Provincial legislation prohibiting discrimination on basis of age -- Employer may show that alleged contravention "reasonable and justifiable in the circumstances" -- Whether university's policy of mandatory retirement at age 65 justified 38
R v S (S) [1990] 2 S.C.R. 254: Discrimination on the basis of province of residence -- Ontario failing to implement alternative measures programmes pursuant to s. 4 of the Young Offenders Act 43
Mckinney v. University of Guelph [1990] 3 S.C.R. 229: Age discrimination -- Mandatory retirement at age 65 -- Whether or not mandatory retirement policy "law" 45
Sex discrimination cases 55
Brooks v. Canada Safeway Ltd. (1989), 10 C.H.R.R. D/6183 (S.C.C.) [Eng./Fr. 23 pp.]: Sex Discrimination Includes Pregnancy -- employee disability plan discriminated against pregnant employees 55
Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes (1987), 8 C.H.R.R. D/4210 (S.C.C.) [Eng./Fr. 24 pp.] S.C.C. Upholds Affirmative Action -- Order of a Tribunal requiring Canadian National Railway to hire one woman in every four new hires into unskilled blue-collar jobs. 57
Gould v. Yukon Order of Pioneers (1996), 25 C.H.R.R. D/87 (S.C.C.) [Eng./Fr. 55 pp.] S.C.C. Upholds Right of Club to Refuse Membership to Women -- refusal of membership in a men's organization is not a discriminatory denial of services 58
Canada (Attorney General) v. Mossop (1993), 17 C.H.R.R. D/349 (S.C.C.) [Eng./Fr. 61 pp.] Family Status Does Not Include Sexual Orientation --"family status" in the Canadian Human Rights Act does not give a gay employee the right to be covered by a benefit provision in his collective agreement 60
Janzen v. Platy Enterprises Ltd. (1989), 10 C.H.R.R. D/6205 (S.C.C.) [Eng./Fr. 31 pp.] Sexual Harassment is Sex Discrimination -- sexual advances by co-worker -- definition of sexual harassment -- survey of the law 61
Zurich Insurance Co. v. Ontario (Human Rights Comm.) (1992), 16 C.H.R.R. D/255 (S.C.C.) [Eng./Fr. 46 pp.]: Discriminatory Auto Insurance Rates Allowed for Bona Fide Reasons: age, sex and marital status discrimination in automobile insurance premium rates -- age group 25 and under -- male gender affected -- single male discriminated against 62
R v. Hess R. v. Nguyen [1990] 2 S.C.R. 906: Criminal Code prohibiting sexual intercourse with a female person under the age of fourteen years 65
Discrimination by employer 68
Canada (Attorney General) v. Grover (No. 1) (1992), 18 C.H.R.R. D/1 (Can.Trib.) [Eng./Fr. 57 pp.] Employer Ordered to Remedy Discriminatory Treatment-- -- employment terminated -- promotion denied -- because of race, colour and national origin. 68
Chiswell v. Valdi Foods 1987 Inc. (1994), 25 C.H.R.R. D/400 (Ont. Bd.Inq.) [Eng. 8 pp.]: Joking Constitutes Discrimination-- racial slurs and harassment 69
by supervisor -- poisoned environment -- jokes by supervisor -- discrimination based on stereotype -- employer's obligation to provide workplace free from harassment 69
Canada ( Attorney General) v. Uzoaba (1995), 26 C.H.R.R. D/428 (F.C.T.D.) [Eng./Fr. 7 pp.] Negative employment evaluation -- poisoned environment -- racial slurs and harassment ---Court upholds Tribunal decision that race discrimination formed basis of employer actions 70
Disability cases: 71
Canadian Odeon Theatres Ltd. v. Huck (1985), 6 C.H.R.R. D/2682 (Sask. C.A.) [Eng. 13 pp.] Treatment of wheelchair user in theatre discriminatory 72
Ouimette v. Lily Cups Ltd. (1990), 12 C.H.R.R. D/19 (Ont. Bd.Inq.) [Eng. 16 pp.]: employment terminated because of allergy -- flu is not a disability -- definition of "handicap" 73
Canada (Attorney General) v. Robinson (1994), 21 C.H.R.R. D/113 (F.C.A.) [Eng./Fr. 23 pp.] Soldier first policy for armed forces upheld -- employment terminated on basis of epilepsy -- individual assessment to determine medical fitness -- duty to accommodate in case of direct discrimination 74
Québec (Comm. des droits de la personne) c. Coutu (No 2) (1995), 26 C.H.R.R. D/31 (Trib.Qué.) [Fr. 24 pp.]: Exploitation of disabled persons in care facility -- nature and purpose of human rights legislation -- care facility policy discriminatory for economic reasons -- compensation for wilful exploitation and injury to dignity and self-respect 76
Ripplinger v. Ryan (1996), 24 C.H.R.R. D/435 (Sask. C.A.) [Eng. 6 pp.] Barrier-free access for wheelchair user -- restaurant service denied to wheelchair user -- refusal to provide barrier-free access based on economic reasons -- duty to accommodate short of undue hardship-- compliance with act does not preclude human rights subscriptions violation 78
Gibbs v. Battlefords and Dist. Co-operative Ltd. (1996), 27 C.H.R.R. D/87 (S.C.C.) [Eng./Fr. 22 pp.]: disability benefits denied on the basis of nervous disorder -- distinction between mental and physical disability -- mentally disabled employee entitled to same medical benefits as other disabled employees 80
Eaton v. Brant County Board of Education [1997] 1 S.C.R. 241: Physical disability -- Child with physical disabilities identified as being an "exceptional pupil" -- Child placed in neighbourhood school on trial basis -- Child's best interests later determined to be placement in special education class -- Whether placement in special education class and process of doing so absent parental consent infringing child's equality rights 82
Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624: -- Physical disability -- Publicly funded medicare -- Medicare not providing for sign language interpreters -- Whether, and in what manner, the Charter applies to the 86
decision not to provide sign language interpreters for the deaf as part of the publicly funded scheme for the provision of medical care 86
Symes v. Canada [1993] 4 S.C.R. 695: -- Income tax -- Child care expenses -- Partner in law firm deducting wages paid to nanny in her income tax returns -- Whether child care expenses deductible as business expenses -- If not, whether equality rights violated 90
Sexual Orientation Cases 94
Haig v. Canada (1992), 16 C.H.R.R. D/226 (Ont. C.A.) [Eng. 7 pp.]: Sexual Orientation Included as Ground of Discrimination Under Canadian Human Rights Act -- definition of sexual orientation -- protection based on non-enumerated 94
grounds of discrimination -- equal treatment -- equality in the administration, substance and benefit of the law 94
Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont. Bd.Inq.) [Eng. 41 pp.] Ontario Government Employee Benefit Plans Discriminate on Basis of Sexual Orientation -- employee benefits denied -- sexual orientation as ground of discrimination in human rights legislation 95
Moore v. Canada (Treasury Board) (1996), 25 C.H.R.R. D/351 (Can.Trib.) [Eng./Fr. 22 pp.] Denial of Benefits to Same-Sex Partner Discriminatory 99
Dwyer v. Toronto (Metro) (No. 3) (1996), 27 C.H.R.R. D/108 (Ont. Bd.Inq.) [Eng. 32 pp.] Restrictions on Benefits on the Basis of Sexual Orientation Discriminatory -- discrimination against lesbian and gay employees who have partners of the same-sex with respect to three categories of employment benefits: uninsured benefits (such as leave to care for ill dependents); insured benefits (such as extended health); and survivor pension entitlement 101
Vriend v. Alberta (1997), 31 C.H.R.R. D/1 (S.C.C.) [Eng./Fr. 62 pp.] Alberta Legislative Inaction on Sexual Orientation Discriminatory sexual orientation as ground of discrimination in human rights legislation -- employment terminated -- equality in the administration, substance and benefit of the law -- relationship between equality under human rights legislation and equality under the Charter 105
Egan v. Canada [1995] 2 S.C.R. 513: Old age security legislation providing for allowance for spouse of pensioner – Definition of "spouse" restricted to person of opposite sex 109
Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554: Discriminatory practice -- Family status -- Employee denied bereavement leave to attend funeral of father of his male companion -- Collective agreement providing for leave upon death of a member of an employee's "immediate family" -- "Immediate family" including common-law spouse of opposite sex -- Federal legislation prohibiting discrimination on basis of "family status" -- Whether denial of bereavement leave based on family status 116
United States 120
DENNIS v. UNITED STATES, 339 U.S. 162 (1950) 120
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944) 121
Germany 121
German Basic Law 121
74 BVerf GE 163 (1987) 122
GBL Article 3.1. 125
78 BVerfGE 104 (1988) 125
GBL Article 3.1. 132
GBL Article 3.2. 132
GBL Article 3.3. 132
85 BVerfGE 191 (1992) 132
India 136
This section requires elaboration: 136
State of Gujarat v Shri Ambica Mills AIR 1974 SC 1300 at 1314-15. 136
INDIAN CASES ON AFFIRMATIVE ACTION 1990 96 136
1 AJIT SINGH JANUJA V STATE OF PUNJAB AIR 1996 SC 1189 136
2.UNION OF INDIA V VIRPAL SINGH CHAUHAN 1996 SC448 137
3. VALASAMMA PAUL V COCHIN UNIVERSITY AIR 1996 SC 1011. 137
4. INDRA SAWHNEY V UNION OF INDIA AIR 1993 SC 447 138
INDRA SAWHNEY V. UNION OF INDIA AIR 1993 SC 477. 138
ECONOMIC CRITERION TEST 138
The limits of reservation 140
EUROPEAN COMMUNITY 140
Employment: equal treatment: elaborate on these cases 141
Sexual orientation: Homosexual rights: elaboration required 142
STUBBINGS AND OTHERS v. THE UNITED KINGDOM (36-37/1995/542-543/628-629) 22 October 1996: rules on limitation preventing alleged victims of child sexual abuse from commencing civil proceedings 142
VAN RAALTE v. THE NETHERLANDS (108/1995/614/702) 21 February 1997: exemption from obligation to pay contributions under social welfare scheme applying to unmarried childless women aged 45 or over but not to men in the same position 146
SHEFFIELD AND HORSHAM v. THE UNITED KINGDOM (31-32/1997/815-816/1018-1019) 30 July 1998: whether respondent State has a positive obligation to recognise for legal purposes new sexual identities of applicants, both male to female post-operative transsexuals 148
UNITED KINGDOM 149
Botswana 149
Final Constitution
Equality
9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
Interim Constitution
8 Equality
(1) Every person shall have the right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.
(3)a.This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms. b.Every person or community dispossessed of rights in land before the commencement of this Constitution under any law which would have been inconsistent with subsection (2) had that subsection been in operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to and in accordance with sections 121, 122 and 123.
(4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.
Canada
Constitution Act, 1982. [1]
Equality Rights
15. (1) Every individual is equal before the and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.