Anti-discrimination jurisprudence, pursuant to statutory human rights regimes, and
equality jurisprudence, pursuant to s.15 of the Charter, have long informed one another.
Recently, Tribunal and court jurisprudence revealed a trend of divergence away from
the O’Malley test and towards importing elements of a Charter analysis for adjudicating
statutory human rights claims. In several cases before the Tribunal, litigants and
adjudicators sought to import a Charter-like comparator group analysis in order to frame
and adjudicate duty to accommodate disability claims.^127
The Supreme Court, in its 2012 decision in Moore v. British Columbia (Ministry of
Education), provided much needed direction regarding the appropriate test for analyzing
statutory human rights claims. The Court rejected the application of Charter tests when
analyzing duty to accommodate disability claims, holding that, “(i)t is not a question of
who else is or is not experiencing similar barriers”, and that the use of a comparator
analysis, “risks perpetuating the very disadvantage and exclusion from mainstream
society the Code is intended to remedy...”^128 Justice Abella summarized the O’Malley
test as follows:
[T]o demonstrate prima facie discrimination, complainants are required to
show that they have a characteristic protected from discrimination under
the Code; that they experienced an adverse impact with respect to the
service; and that the protected characteristic was a factor in the adverse
impact. Once a prima facie case has been established, the burden shifts
to the respondent to justify the conduct or practice, within the framework of
the exemptions available under human rights statutes. If it cannot be
justified, discrimination will be found to occur.A more detailed analysis of the Moore decision and its impact upon the test for
establishing discrimination pursuant to statutory human rights regimes, see: “Comparing
the Incomparable in Human Rights Claims: Moore Guidance”, Laurie Letheren and
Roberto Lattanzio, 2013 Ontario Bar Association Human Rights Review.
(^127) See, for example: Ball v. Ontario (Community and Social Services), 2010 HRTO 360 (CanLII) at paras
62- 128 76.
Moore, supra note 62 at paras. 30-31.