Mumme on Charter-like Claims Under Human Rights Codes on SSRN

Claire Mumme of Osgoode Hall Law School has posted "The Strange History of Charter-Like Claims Against Legislated Government Services Under the Human Rights Codes in Canada" on SSRN. The article will appear in the Journal of Law and Equality.

Here's the abstract:

In Tranchemontagne v. Ontario (Director, Disability Support Program), the Ontario Court of Appeal entered onto the most recent battleground in the world of statutory human rights law: a challenge to the content of a statutorily-created government program under the auspices of the Human Rights Code instead of under section 15(1) of the Canadian Charter of Rights and Freedoms. In recent years government services claims under the Codes, of the sort exemplified by Tranchemontagne, have gained increasing visibility. In government services claims a challenge is brought under the Human Rights Codes to the substantive content of a statute that creates a government program, or discretionary decision-making under the statute’s terms.
These claims are almost identical to ones that would otherwise be brought under the section 15(1) constitutional equality provision, and the Codes provide an almost identical remedy. They do so in a much more accessible manner, because the Tribunals are faster and less expensive. And it can be argued, the analytical framework for determining a violation of the Human Rights Codes is significantly friendlier to claimants than is the constitutional test. A government service claim under the Codes thus allows claimants to effectively bypass a constitutional claim altogether. The availability of the lower burden of proof and the more accessible human rights framework is under increasing pressure, however. Government lawyers have recently begun arguing, as they did in Tranchemontagne 2, that the same jurisprudential test ought to apply under the Codes and under the Charter. But, as this article will seek to demonstrate, the relatively straightforward question of which jurisprudential standard should apply masks the complicated history of the role of statutory government services claims within Canadian equality law.
In this paper I explore the history of government services claims under the Human Rights Codes and their relationship to Bill of Rights and Charter equality claims. I argue that, much like section 15(1) claims, there is a tension in statutory government services claims between the courts’ ability to sit in judgment over the political decisions of elected officials, and the need for counter-majoritarian protection against state decisions that violate fundamental rights. Concerns over how to balance this tension has led the Supreme Court of Canada to narrow the constitutional equality provision in claims against state spending. This indeed is a significant part of the reasons why government services claims have become more prominent under the Codes. Yet, as the history presented here demonstrates, this democratic tension has not been explicitly examined in regards to government services claims under the Human Rights Statutes. And it is because of this absence, I argue, that the issue is now starting to creep towards the surface in the current debate over the appropriate jurisprudential standard in government services cases under the Codes. Indeed, at the core of the recent trend towards merging the constitutional and statutory standards appears to be a growing judicial unease over the differences between private and public sector discrimination.