Factum of the Intervener Egale Canada Inc
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Court of Appeal File No.CA031546 COURT OF APPEAL ON APPEAL FROM THE BRITISH COLUMBIA SUPREME COURT Between: VANCOUVER RAPE RELIEF SOCIETY Respondent (Petitioner) - and – KIMBERLEY NIXON Appellant (Respondent) - and – BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL Respondent (Respondent) - and – EGALE CANADA INC. Intervener _____________________________________________________ _________ FACTUM OF THE INTERVENER EGALE CANADA INC. SACK GOLDBLATT MITCHELL MANDELL PINDER 20 Dundas Street West, Suite 1130 500 – 1080 Mainland Street Toronto, Ontario Vancouver, British Columbia M5G 2G8 V6B 2T4 Cynthia Petersen Lindsay A. Waddell (tel) 416-979-6440 (tel) 604-681-4156 (fax) 416-591-7333 (fax) 604-681-0959 (e) [email protected] (e) [email protected] Solicitors for the Intervener Co-counsel Egale Canada Inc. 1 OPENING STATEMENT 1. The intervener Egale Canada Inc. (hereafter “Egale”) is a national organization that advances equality and justice for lesbian, gay, bisexual and transgendered people and their families. 2. By order dated October 7, 2004, Mr. Justice Smith granted Egale leave to intervene in the within appeal on the following issues only: (i) whether the Law test for proof of discrimination under s.15 of the Charter should be applicable in the context of human rights legislation and if so, whether it requires modification in any respect; and (ii) the proper interpretation and constitutionality of s.41 of the B.C. Human Rights Code. 3. Mr. Justice Smith further ordered that Egale “will confine its factum and submissions strictly to the public interest aspects of these issues. In particular, it will not touch on the merits of the appellant’s case against the respondent.” PART 1 -- STATEMENT OF FACTS 4. The B.C. Human Rights Tribunal made numerous findings of fact in this case. Egale submits that there is no basis for this Court to interfere with any of the factual findings made by the Tribunal. 5. Egale accepts the summary of facts as set out in the appellant’s factum. PART 2 -- ERRORS IN JUDGMENT A. The Lower Court Applied the Wrong Analytical Framework 6. Egale submits that the lower Court committed a serious error by applying the analytical framework developed under s.15 of the Canadian Charter of Rights and Freedoms (hereafter 2 “the s.15 test”) to Ms. Nixon’s claim under the British Columbia Human Rights Code, and by consequently requiring Ms. Nixon to prove injury to her dignity in order to succeed in her claim. Vancouver Rape Relief Society v. Nixon, [2003] B.C.J. No. 2899 at paras.72-73, 126 and 164 (B.C. S.C.) (QL) 7. Under all Canadian human rights legislation, including the British Columbia Human Rights Code, a complainant bears the initial burden of proof, but is required to establish only prima facie discrimination on a balance of probabilities. Once prima facie discrimination is shown, the onus shifts to the respondent to rebut the claim of discrimination and prove that no violation of human rights has occurred. Ontario (HRC) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 at para.28; British Columbia (PSERC) v. BCGSEU (“Meiorin”), [1999] 3 S.C.R. 3 at paras.19 and 54; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (CHR) (“Grismer”), [1999] 3 S.C.R. at para.23 8. It is well established in Canadian jurisprudence that the s.15 test is not applicable in determining whether there is prima facie discrimination under human rights legislation. The Supreme Court of Canada has explicitly articulated two separate tests to be applied in these two different contexts, based on a recognition of crucial distinctions between the protections afforded by human rights statutes and the constitutional equality rights guaranteed by the Charter. Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Meiorin, supra; Grismer, supra; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal et Boisbriand, [2000] 1 S.C.R. 665 9. The Supreme Court first articulated its approach to s.15(1) of the Charter in 1989 in Andrews v. Law Society of B.C. In so doing, it specifically considered and rejected the possibility of adopting the analytical framework that had been developed to decide discrimination claims under human rights statutes. After identifying significant differences between the Charter and human rights legislation, the Court ruled that “a different approach under s.15(1) is therefore required.” Andrews, supra at para.39 3 10. The Supreme Court’s s.15 jurisprudence has evolved since Andrews, as has its jurisprudence with respect to human rights claims. In a trilogy of cases decided in 1999 (i.e., Law v. Canada (Minister of Employment and Immigration) (“Law”) (March 1999), British Columbia (PSERC) v. B.C.G.S.E.U. (“Meoirin”) (September 1999), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (“Grismer”) (December 1999)), the Court reconsidered its prior equality jurisprudence and re-formulated its analytical approaches to both human rights claims and Charter equality claims. The Court did not adopt a uniform framework for assessing such claims, but rather continued its long-standing practice of maintaining analytically distinct approaches. In the two human rights cases (i.e., Meoirin and Grismer) that were decided just a few months after the s.15 test was articulated in Law, the Court did not embark on an analysis of whether the impugned distinction affected the complainants’ dignity interests. Law, supra at paras. 37-39; Meoirin, supra; Grismer, supra 11. Since then, other Courts and tribunals have confirmed that the s.15 test does not apply to discrimination claims under human rights legislation (including the Tribunal that decided this case at first instance). Wignall v. Canada, [2003] F.C.J. No. 1627 at paras. 8-12 (T.D.) (QL); Dame v. South Fraser Health Region, [2002] B.C.H.R.T.D. No. 22 at paras. 67-69 (QL); Cominco Ltd. v. Cominco Ltd., [2001] B.C.H.R.T.D. No. 46 at para. 91 (QL); Nixon v. Vancouver Rape Relief Society, [2002] B.C.H.R.T.D. No. 1 at para. 124 (QL) 12. The lower Court in this case held that it was bound to apply the s.15 test to Ms. Nixon’s claim because of the ruling in B.C.G.S.E.U. v. British Columbia (PSERC) (“Reaney”), in which this Court ruled that the analytical framework articulated in Law governed the determination of whether there was a violation of the B.C. Human Rights Code. It is apparent from the Reaney decision, however, that the parties in Reaney neither raised nor argued the issue of whether the s.15 test is appropriate in a human rights context. The Court in Reaney therefore did not consider the important distinctions between Charter equality rights and legislated human rights protections, nor did it have the benefit of submissions based on the aforementioned jurisprudence. This likely explains the anomaly of the Reaney ruling. The decision (to apply the 4 s.15 test to a human rights claim) in Reaney is, in our submission, not only anomalous, but also clearly wrong. B.C.G.S.E.U. v. British Columbia (PSERC) (“Reaney”), [2002] B.C.J. No. 1911 at paras.12-13 (C.A.) (QL) 13. As recognized by the Supreme Court of Canada in Andrews, there are significant differences between the Charter and human rights legislation, which militate in favour of maintaining analytically distinct approaches to discrimination claims under these two instruments. One of the key differences is that, although human rights statutes apply to governments, they are aimed primarily at regulating the actions of private persons, whereas the Charter only regulates government actors. The components of the s.15 test reflect the fact that all Charter claims arise in the context of a challenge to either legislation or a government decision, practice, program or policy. The application of the “contextual factors” which comprise the s.15 test consists, inter alia, of considering the “constitutional and societal significance attributed to the interest or interests adversely affected”, whether the claimant has been denied access to a “fundamental social institution”, and whether their exclusion from an under-inclusive law or program “affects a basic aspect of full membership in Canadian society”. These questions are frequently answered affirmatively in the context of under-inclusive legislative schemes because of the significant impact of state-sanctioned exclusion from a public program. These same questions would, however, hardly ever be answered affirmatively in the context of assessing the effect of private sector policies, practices or programs. Consequently, importing these Charter factors into the human rights context, where complaints are usually against private sector entities, sets a virtually unreachable threshold for establishing prima facie discrimination. Law, supra at paras.51 and 74; Andrews, supra at para.38; McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at paras.172-174 and 179-181 14. The lower Court decision in this case highlights the inappropriateness of importing an analysis designed to measure the effect of governmental action into the assessment of a private sector human rights claim. The central question to be answered by the s.15 test is whether the claimant’s dignity was infringed. In considering this question, the lower Court contrasted Ms. 5 Nixon’s exclusion from Rape Relief with legislated exclusion from a statutory benefits scheme, as follows: ...exclusion by a small relatively obscure self-defining private organization cannot have the same impact on human dignity as legislated exclusion from a statutory benefit program…because any stereotyping or prejudice arising from legislated exclusion bears the imprimateur of state approval and therefore some wide public acceptance.