OBSTACLES TO CROSSING THE DISCRIMINATION THRESHOLD

CONNECTING INDIVIDUAL EXCLUSION TO GROUP-BASED INEQUALITIES

Abstract

In two important unanimous judgments, Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Centre) and Kahkewistahaw First Nation v Taypotat, the Supreme Court of Canada concluded that there was insufficient evidence of discrimination. Consequently, it dismissed both claims without requiring that the defendants justify the allegedly exclusionary criteria being challenged. While these cases arose in very different factual and legal contexts, there are troubling common threads that tie them together. Most poignantly, in both cases, the plaintiffs do not succeed in proving what is often referred to as a prima facie case of discrimination, and the predominant justification for this failure is the inadequacy of the evidence. These cases, therefore, provide an important starting point for thinking about how to prove discrimination.  They raise questions regarding the use of the terminology “prima facie discrimination”, the role of factual inferences in statutory or constitutional discrimination analysis and the significance of broader evidence about social context in individual discrimination cases. Finally, they remind us that how plaintiffs lose matters. The fact that the Court did not get beyond the preliminary finding of prima facie discrimination stands in stark contrast to many anti-discrimination cases where the heart of the dispute revolves around the adequacy of the justification for the challenged exclusionary criteria.