Originally published in THE LAWYERS WEEKLY
A look at the evolution of mirror comparator groups
Counsel in equality rights cases have spent a lot of time in recent years in front of the mirror — specifically, trying to figure out the appropriate "mirror comparator group" to meet the s. 15 equality rights test.
The Supreme Court of Canada (SCC) intended to clarify the s. 15 test in R v. Kapp,  S.C.J. No. 42. The test had come under significant criticism following the decisions in Law v. Canada,  1 S.C.J. No. 12 and Hodge v. Canada,  S.C.J. No. 60. Last month, in Withler v. Canada,  S.C.J. No. 12, the SCC got rid of mirror comparator groups, but in doing so, confused the Kapp framework, making it less clear exactly what claimants and their lawyers have to prove to demonstrate inequality under the Charter.
In Law, the SCC seemed to abandon the s. 15 test from Andrews v. Law Society of British Columbia,  S.C.J. No. 6. Instead of the two-pronged test focused on differential treatment and discrimination, Law required a three-part test focusing on dignity. The SCC also identified four contextual factors, which were intended to assist courts in deciding whether a claimant's dignity interest had been infringed. Though dignity played a central role in the Law test, a number of claims foundered in identifying an appropriate comparator group.
In Hodge, the SCC made clear that the claimant had the burden of identifying a comparator group that "mirrors the characteristics of the claimant" but for the impugned personal characteristic. As a fore- warning, the SCC noted that misidentification of the comparator group can "doom the outcome" of the s. 15 challenge.
The complexity (and perhaps incomprehensibility) of the mirror comparator group analysis was demonstrated in Auton v. British Columbia,  S.C.J. No. 71, where the SCC described the appropriate comparator group as "a non-disabled person or a person suffering a disability other than a mental disability (here autism) seeking or receiving funding for a non-core therapy important for his or her present and future health, which is emergent and only recently becoming recognized as medically required."
Kapp was intended to take s. 15 back to its Andrews roots. The court acknowledged the disapproval of Law and Hodge, citing 20 scholarly articles criticizing the decisions. Moreover, Kapp gave independent force to s. 15(2), which protects affirmative action programs from Charter scrutiny. In the five SCC decisions following Kapp, neither Hodge nor mirror comparator groups are mentioned at all, suggesting that the court had abandoned that concept as well.
To the extent there was any dispute, Withler clarified the issue: "A formal equality analysis based on mirror comparator groups can be detrimental to the analysis." But Withler takes at the same time as it gives.
First, Withler ignores s. 15(2), which Kapp suggests is the first unit of analysis if the claimant proves differential treatment. Withler is about survivor benefits for families of federal civil servants and Canadian forces members. It's arguable that these benefits are a "law, program or activity" that ameliorated the conditions of disadvantaged individuals or groups. The court should have at least considered its impact to be consistent with Kapp and the new framework for s. 15 claims involving a government benefit or program.
Second, Withler still invokes comparator groups, even if it discards the "mirror" analysis. Chief Justice Beverly McLachlin says in the decision that it is "unnecessary to pinpoint a particular group that precisely corresponds to the claimant group" but nonetheless the decision, and the other post-Kapp decisions before it, all rely on fairly specific comparisons. In Withler, the comparator group is survivors under the age of 60 or 65. In Kapp, it's aboriginal commercial fishers. In Alberta v Hutterian Brethren of Wilson Colony,  S.C.J. No. 37, it's non-Hutterian drivers.
Withler leaves lawyers and judges with the impression that comparator groups are unimportant to the s. 15 analysis. If you "sort of " identify the advantaged group, that's enough to merit a finding of distinction, and you can move onto the discrimination analysis. But equality is a necessarily comparative concept — there will always be a group that enjoys the benefits of the impugned law and to whom the claimants are being compared, hence the claim for "unequal" treatment. If courts aren't required to properly identify the comparator group, how can they be sure that the law creates a distinction?
The outcome, coupled with the Kapp approach of considering almost anything, but not necessarily everything, in the discrimination analysis, is that judges have even broader discretion when deciding s. 15 claims. The courts risk deciding cases using ends-based reasoning — if it looks like discrimination, that will be sufficient even if there isn't a precise distinction.
The problem with this approach is two-fold. First, there is no certainty for claimants. They can't have a reasonably good idea of whether their claim will succeed, which is harmful to both equality rights and the litigation process. Second, conservative judges have more tools to deny equality claims, something which the Hodge critics clearly didn't intend.
Withler might go a long way in addressing the criticisms of Hodge, but it's more likely to lead to another reframing by the SCC.
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