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should be considered when determining whether a personal characteristic deserves to be

recognized as an analogous ground. In this regard, LHeureux-Dub J was following the approach articulated by McLachlin J in Miron, above. What are the implications of the apparent shift from Miron to Corbire from a broader, more flexible inquiry to one that focuses
on the single requirement of immutability?
3. The Court has ruled that the following personal characteristics do not qualify as analogous grounds: employment status or occupation (Re Workers Compensation Act, [1989] 1
SCR 922, 56 DLR (4th) 765; Delisle v. Canada (Deputy Attorney General), [1999] 2 SCR 989,
176 DLR (4th) 513, with respect to the RCMP; and Health Services and Support-Facilities
Subsector Bargaining Assn. v. BC, [2007] 2 SCR 391, 283 DLR (4th), with respect to health
care workers; but see Dunmore v. Ontario (Attorney General), 2001 SCC 94, 207 DLR (4th)
513, per LHeureux-Dub J, who alone would have found agricultural workers to be an analogous group); province of residence (R v. Turpin, [1989] 1 SCR 1296, 48 CCC (3d) 8; Haig v.
Canada, [1993] 2 SCR 995, 105 DLR (4th) 577); persons charged with war crimes or crimes
against humanity outside of Canada (R v. Finta, [1994] 1 SCR 701, 112 DLR (4th) 513); persons bringing a claim against the Crown (Rudolph Wolff & Co. v. Canada, [1990] 1 SCR 695,
69 DLR (4th) 392); and marijuana users (R v. Malmo-Levine, [2003] 3 SCR 571, 2003 SCC
74, 233 DLR (4th) 415).
4. Apart from citizenship, sexual orientation, marital status, and Aboriginality-residence,
what other personal characteristics ought to be recognized by the courts as analogous
grounds of discrimination? Should family status be recognized? See Thibaudeau v. Canada,
[1995] 2 SCR 627, 124 DLR (4th) 449, per McLachlin J (separated or divorced custodial
parenthood an analogous ground) and Schafer v. Canada (Attorney General), (1997) 149
DLR (4th) 704 (Ont. CA), application for leave to appeal to SCC dismissed (whether adoptive parent status an analogous ground). Should language be recognized? Or would its recognition undermine the integrity of the constitutional scheme of language rights? See Lalonde
v. Ontario (Commission de restructuration des services de sant) (2001), 56 OR (3d) 505
(CA). Should poverty, or social condition, be recognized? Or would its recognition involve
the courts in adjudicating issues with complex socioeconomic and political dimensions best
left to legislatures? See M. Jackman, Constitutional Contact with the Disparities in the
World: Poverty as a Prohibited Ground of Discrimination Under the Canadian Charter and
Human Rights Law (1994), 2 Review of Constitutional Studies 76; Masse v. Ontario (Ministry
of Community and Social Services) (1996), 134 DLR (4th) 20 (Ont. Div. Ct.); application for
leave to appeal to SCC dismissed (recipients of social assistance not a protected or analogous
group); Falkiner v. Ontario (Director, Income Maintenance Branch, Ministry of Community
and Social Services) (2002), 212 DLR (4th) 633 (Ont. CA) (receipt of social assistance recognized as an analogous ground; spouse in the house rule imposed on social assistance recipients found to discrinate on the basis of three grounds: receipt of social assistance, sex,
and marital status); R v. Banks (2007), 275 DLR (4th) 640 (Ont. CA), leave to appeal to SCC
dismissed (law prohibiting squeegeeing does not violate s. 15, poverty not an analogous
ground); and Boulter v. Nova Scotia Power Inc., 2009 NSCA 17, 307 DLR (4th) 293 (poverty
not an analogous ground; provision in Public Utilities Act requiring that rates be set the
same for all customers and precluding the setting of lower rates for low income consumers
does not violate s. 15). Several provincial human rights codes recognize social condition as
a prohibited ground of discrimination. See the Quebec Charter of Human Rights and Free-

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doms, RSQ, c. C-12, s. 10 (social condition) and Human Rights Code, RSO 1990, c. H.19,
s. 2 (receipt of social assistance).

C. The Appropriate Comparator Group

In Law, the Supreme Court of Canada emphasized that equality is a comparative concept
and that establishing differential treatment on the basis of an enumerated or analogous
ground involves comparing the treatment of the claimant under the law or government action in issue to that of other persons or groups. Locating the appropriate comparator has
thus become part of the s. 15 analysis:
[56] McIntyre J emphasized in Andrews that the equality guarantee is a comparative
concept. Ultimately, a court must identify differential treatment as compared to one or more
other persons or groups. Locating the appropriate comparator is necessary in identifying differential treatment and the grounds of the distinction. Identifying the appropriate comparator
will be relevant when considering many of the contextual factors in the discrimination
analysis.
[57] To locate the appropriate comparator, we must consider a variety of factors, including
the subject-matter of the legislation. The object of a s. 15(1) analysis is not to determine equality in the abstract; it is to determine whether the impugned legislation creates differential treatment between the claimant and others on the basis of enumerated or analogous grounds, which
results in discrimination. Both the purpose and the effect of the legislation must be considered
in determining the appropriate comparison group or groups. Other contextual factors may also
be relevant. The biological, historical, and sociological similarities or dissimilarities may be relevant in establishing the relevant comparator in particular, and whether the legislation effects
discrimination in a substantive sense more generally .
[58] When identifying the relevant comparator, the natural starting point is to consider the
claimants view. It is the claimant who generally chooses the person, group, or groups with
whom he or she wishes to be compared for the purpose of the discrimination inquiry, thus setting the parameters of the alleged differential treatment that he or she wishes to challenge.
However, the claimants characterization of the comparison may not always be sufficient. It may
be that the differential treatment is not between the groups identified by the claimant, but rather
between other groups. Clearly a court cannot, ex proprio motu, evaluate a ground of discrimination not pleaded by the parties and in relation to which no evidence has been adduced .
However, within the scope of the ground or grounds pleaded, I would not close the door on the
power of a court to refine the comparison presented by the claimant where warranted.

The issue of whether the claimant has chosen the appropriate comparator group is typically
addressed in the initial stages of the s. 15 analysis, before the analysis of disadvantage and/
or discrimination.