A review of Tribunal decisions that have been released since Moore indicates that the
Tribunal is most often not importing a comparator analysis into its decisions. There are,
however, some decisions that do utilize elements of a comparative approach. In
Barber, the applicant challenged the services provided to her by a Community Care
Access Centre. The Tribunal held that:
(t)he Code prohibits discrimination, which is a comparative concept. To
establish discrimination because of disability, the applicant must show that
she experienced substantive discrimination as compared with others,
because of her disability, by the SECCAC.^129It remains to be seen whether the Tribunal will adopt a comparator analysis or elements
of a comparator analysis in its decisions.
Following Moore the Federal Court of Appeal released a decision that interpreted Moore
as follows:
(T)he Supreme Court reiterated that the existence of a comparator group
does not determine or define the presence of discrimination, but rather, at
best, is just useful evidence. It added that insistence on a mirror
comparator group would return us to formalism, rather than substantive
equality.^130It has been suggested that comparator evidence may be useful and relevant in limited
cases, for example, if the need for disability accommodation is best demonstrated by
showing that others without that disability can access a service. In this sense,
comparator evidence may be a useful tool for proving a prima facie case of
discrimination, within the O’Malley framework for analyzing statutory human rights
claims.^131
(^129) Barber v. South East Community Care Access Centre, supra note 68 at para 26.
(^130) Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75 (CanLII)at para 18.
(^131) “Comparing the Incomparable in Human Rights Claims: Moore Guidance”, Laurie Letheren and
Roberto Lattanzio, 2013 Ontario Bar Association Human Rights Review at 22- 23.