University of Toronto Journal of Law & Equality VOLUME 16 EDITORIAL BOARD & STAFF Editors-in-Chief Angela Hou Amitpal Singh Senior Editors Maria Alexiou Mashoka Maimona Ahmed Elahi Robert Nanni Olivia Eng Samantha Pajak Michelle Huang Sonia Patel Jenna Kara Madeline Stewart Richard Kennedy Juela Xhaferraj Daniel Korman Anju Xing Tessa Latowsky Lucas Youmans Faculty Advisor Denise Réaume Administrative Assistant Vanessa Zhang Copy Editor Stacy Belden Associate Editors Temitope Ajibode Kayly Machado Natalie Chan Nicole Nowoselski Leora Chapman Flint Patterson Vivien Cheng Haleigh Ryan Christopher Cook Alannah Safnuk Jaime Corbett Lien Shi Jenna D’Aurizio Seema Sidhu Maija Fiorante Aryaman Vaideeswaran Kirsten Hart Chandrasekar Ventakaraman Katie Lawless Natasha Williams Advisory Board The Hon. Claire L’Heureux-Dubé Will Kymlicka The Hon. Robert J. Sharpe David Lepofsky The Hon. Lynn Smith Bruce Porter Joe Arvay Cynthia Petersen Bill Black Jim Phillips Gwen Brodsky Sophia Moreau Brenda Cossman Ayelet Shachar Shelagh Day Martha Shaffer Mary Eberts Colleen Sheppard Martha Jackman Jean Teillet University of Toronto Journal of Law & Equality The Journal of Law & Equality (JLE) is published annually. The JLE accepts submissions on a rolling basis, generally issuing one call for submissions in the Fall and another in the Winter. Submissions: Submissions to the Journal of Law & Equality must be in electronic format. The preferred electronic format is Microsoft Word. The JLE’s student staff will review all submissions, and those that continue to be considered for publication are passed on for anonymous peer review. The JLE cannot guarantee publication of any article submitted. If the author has submitted his or her paper for review by another journal, the author must indicate this upon submission to the JLE. Style: All articles submitted must use footnotes (endnotes are not acceptable) and must conform to the most recent edition of the Canadian Guide to Uniform Legal Citation (a.k.a., the McGill Guide). Canadian spellings are used in accordance with the Oxford Canadian Dictionary. Submissions should be made via our online system, Journal Production Services, at <jps.library.utoronto.ca/index.php/utjle/index>. All email communications relating to submissions, editorial content, and other inquiries should be addressed to [email protected]. Citation: (2020) 16 JL & Equality University of Toronto Journal of Law & Equality VOLUME 16 – SUMMER 2020 Editors’ Note i Amitpal Singh and Angela Hou ARTICLES Attesting to Fundamental Human Rights: The Backlash 1 to the Active Promotion of Equality in Canada Daphne Gilbert How (Not) to Interpret Moore and Meiorin: Using Two 37 Recent Arbitral Awards to Point the Way Maryam Shahid Ethno-racial Legal Clinics and the Praxis of Critical Race 69 Theory in Canada Vincent Wong Parental Undocumented Status as an Analogous Ground of 93 Discrimination Tiran Rahimian Editors’ Note The events of the last few months have reminded us of the law’s intimate and often Janus-faced relationship with equality. Public demonstrations across the world have made plain the urgent need for decisive change in our societies and our legal systems. Careful, incisive legal scholarship has an important role to play in our collective understanding of the evolving relationship between law and equality. In this issue of the Journal of Law & Equality, our authors marshal theoretical insights, legal analysis of public policy issues, and doctrinal arguments to further that understanding. We hope that our readers find this issue as timely and impactful as we do. Daphne Gilbert’s paper, “Attesting to Fundamental Human Rights: The Backlash to the Active Promotion of Equality in Canada,” considers the federal government’s 2018 initiative requiring applicants to its popular Canada Student Jobs program to attest that the funded position would not perform work that actively undermined equality rights, including reproductive rights. Despite challenges that the initiative violated religious freedom, state neutrality, and free expression, Gilbert argues that the program should survive Charter scrutiny. Gilbert contends that the attestation only requires applicants to acknowledge the existing state of reproductive rights law in Canada; however, it does not require any endorsement of the existing law. She concludes that the attestation is a useful and instructive example of how the government can actively incorporate human rights protections in all of its policies. In “How (Not) to Interpret Moore and Meiorin: Two Recent Arbitral Awards Point the Way,” Maryam Shahid considers two recent awards concerning nurses terminated from their employment because of drug addiction. She lauds these decisions for resisting two common, but problematic, lines of argument. First, respondents often point to theft or use of narcotics at work, rather than to addiction itself, as the reason for termination. Accepting such reasoning, Shahid argues, would be tantamount to requiring complainants to prove a discriminatory intention. Second, the respondents in both cases attempted to offer rigid, overstated workplace goals, at the bona fide occupational requirement (BFOR) stage of the analysis. Using the freedom to choose their own legitimate workplace goals, respondents may characterize these goals in such a way as to allow them to improperly bypass the later stages of the BFOR analysis, particularly the viability of individual accommodation. Shahid concludes by proposing a simpler, clearer two-part BFOR test that remedies the current test’s shortcomings. ii EDITORS’ NOTE VOL. 16 Vincent Wong’s article, “Ethno-racial Legal Clinics and the Praxis of Critical Race Theory in Canada” uses critical race theory (CRT) to examine the development and current practice of Ontario’s ethno-racial legal clinics. Wong builds on Amna A. Akbar’s “Toward a Radical Imagination of the Law” to interrogate how law, capitalism, and the state operate in tandem to produce structural inequality. Wong argues that CRT offers a robust theoretical framework to advance racial justice, as demonstrated by the ethno-racial clinics themselves. Second, Wong shows through the epistemology of “looking to the bottom” that ethno-racial clinics provide a useful vehicle to understand structural racism. The article highlights the potential of Ontario’s ethno-racial legal clinics to transform the traditional client-centric approach to law to one that builds community power and facilitates social change, despite the institutional and bureaucratic pressures pulling their practice of law back to the traditional paradigm. In “Parental Undocumented Status as an Analogous Ground of Discrimination,” Tiran Rahimian looks into the tendency to make Canadian- born children’s eligibility for government social and health services dependent on their parents’ immigration status. Rahimian argues that parental undocumented status can and should be recognized as an analogous ground of discrimination under section 15 of the Canadian Charter of Rights and Freedoms. Distinctions between Canadian-born children based on parental “undocumentedness,” argues Rahimian, perpetuates arbitrary disadvantages with long-term developmental repercussions, inseparable from stereotypes of “anchor babies” as social “parasites” that drain public resources and unjustly benefit from their parents’ “illegal” presence. Rahimian takes stock of recent developments in the section 15 jurisprudence, noting a shift towards a purposive and relational disadvantage-focused inquiry rather than a rigid immutability standard, a trend that is well suited to recognizing distinctions based on parental undocumented status as discriminatory. We wish to thank the many people who made this issue possible, including our excellent team of senior and associate editors, our anonymous peer reviewers, and the support staff at the University of Toronto. We give special thanks to Denise Réaume, our faculty advisor, for her invaluable guidance. Finally, we offer our gratitude to our authors for choosing the Journal of Law & Equality as the venue for their research. Amitpal Singh and Angela Hou Editors-in-Chief Journal of Law & Equality, Volume 16 Attesting to Fundamental Human Rights: The Backlash to the Active Promotion of Equality in Canada Daphne Gilbert∗ ABSTRACT This article defends a 2018 federal government initiative requiring applicants to its popular Canada Student Jobs program to attest that the funded position would not perform work that actively undermined equality rights, including reproductive rights. Anti-choice groups, churches, and some small business owners protested that this attestation requirement violated Charter rights to freedom of religion and expression. Litigation to challenge the constitutionality of the attestation is underway. Opponents accused the government of requiring a “values test” in what should otherwise be a routine job grants program. The author argues that the attestation does not interfere with expression. It does not require applicants to affirm a belief in anything they reject; it merely requires confirmation of acknowledgement of the existing state of the law. Moreover, the attestation is a laudable example of the positive promotion of Charter rights and values. The author concludes that the government should be encouraged to actively incorporate human rights protections in all of its programs and policies. I. INTRODUCTION In 2018, the federal government added a box that needed to be checked by applicants to its popular Canada Student