Battlefords and District Co-operative Ltd. v. Gibbs

Battlefords and District Co-operative Ltd. v. Gibbs
Collection
Supreme Court Judgments
Date
1996-10-31
Report
[1996] 3 SCR 566
Case number
24342
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Saskatchewan
Subjects
Constitutional law
Notes
SCC Case Information: 24342
Decision Content
Battlefords and District Co‑operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566
Battlefords and District Co‑operative Ltd. Appellant
v.
Betty‑Lu Clara Gibbs Respondent
and
The Saskatchewan Human Rights Commission Respondent
and
The Council of Canadians with Disabilities,
the Canadian Human Rights Commission,
the Ontario Human Rights Commission and
the Canadian Mental Health Association Interveners
Indexed as: Battlefords and District Co‑operative Ltd. v. Gibbs
File No.: 24342.
Hearing and judgment: May 1, 1996.
Reasons delivered: October 31, 1996.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for saskatchewan
Civil rights ‑‑ Discrimination ‑‑ Mental disability ‑‑ Insurance ‑‑ Employer’s insurance policy providing income replacement scheme for employees rendered unable to work ‑‑ In case of mental illness or disability, benefits terminated after two years unless employee remains in mental institution ‑‑ Whether scheme discriminatory ‑‑ The Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, s. 16(1).
G, an employee of the appellant, became disabled as a result of a mental disorder and was unable to perform the duties of her occupation. During the 90 days following the onset of her disability, G used up her sick leave and was then paid benefits under an insurance policy the appellant offered to its employees as a benefit of employment. Under the terms of the policy, any employee who was rendered unable to work was provided with a replacement income. If the disability in question was a mental illness, however, a clause in the policy provided that the replacement income benefit would terminate after two years, even if the person was unable ever to resume employment, unless the person with the mental disability remained in a mental institution. G’s insurance benefits were terminated after two years. Had she been unable to work because of a physical disability, the income replacement benefit would have continued, without regard to institutionalization. G filed a complaint claiming that the insurance provision violated s. 16(1) of the Saskatchewan Human Rights Code, which provides that no employer may discriminate against any person with respect to any “term or condition of employment” because of a disability. A board of inquiry determined that the policy was discriminatory and referred the matter back to the employer for remedial action. The Court of Queen’s Bench and the Court of Appeal upheld the ruling.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: Human rights legislation is “fundamental” or “quasi‑constitutional” and as such should be interpreted in a broad and purposive manner. On its face, it appears that here the complainant was denied a benefit as a result of her mental disability, thus falling into the definition of discrimination set out in Andrews. Following a purposive approach, it is not a justification for the employer to point out that the plan treated all employees equally prior to the materialization of the risk of disability. A contract that explicitly provides for distinctions on prohibited grounds, albeit distinctions that only potentially occur in the future, is contrary to the objects of human rights legislation. The Court of Appeal was correct, in the circumstances of this case, in finding discrimination on the basis of a comparison between the insurance benefits offered to those unable to work because of a physical disability and those unable to work because of a mental disability. The case law has consistently held that it is not fatal to a finding of discrimination based on a prohibited ground that not all persons bearing the relevant characteristic have been discriminated against. This Court’s decision in Brooks further supports the conclusion that discrimination against a subset of the relevant group, in this case the mentally disabled, may be considered discrimination against the relevant group generally for the purposes of human rights legislation.
It is appropriate in the circumstances of this case to compare the benefits received by the mentally disabled with those received by the physically disabled. Human rights law frequently distinguishes between physical and mental disability. A second broad factor that should influence a purposive approach is the particular historical disadvantage faced by persons with mental disabilities. The first step in determining the appropriate group to compare to mentally disabled employees in this case is to determine the purpose of the disability plan in all the circumstances. It is apparent that the plan at issue here was designed to insure employees against the income‑related consequences of becoming disabled and unable to work. Consequently, in determining whether the clause which limits the benefits extended to mentally disabled employees discriminates against the mentally disabled, it is appropriate to compare their income replacement benefits with those receiving disability benefits generally. The mental disability and the physical disability insurance were designed for the same purpose. However, the benefits are limited if an employee has a mental disability. Since a benefit is limited “because of” disability, the insurance plan provided by the appellant employer in the present case contravenes s. 16 of the Saskatchewan Human Rights Code.
Per McLachlin J.: Sopinka J.’s conclusion is agreed with, but concerns are expressed with respect to the formulation of the proposed purpose test. So long as the purpose is formulated broadly with reference to the need which the plan seeks to address and without reference to specific injuries or specific groups of people, it functions well. However, if the purpose is defined in terms of specific injuries or a specific target group, problems arise. If it is open to the employer and employee to define the purpose of benefits narrowly by reference to a target group without discrimination, the result may be to condone exclusion of many valid claims and permit de facto discrimination. On the other hand, if the employer provides even a minimal benefit to a person other than the target group, the purpose expands and discrimination is established. In defining the purpose of schemes, reference should thus not be made to specific disabilities and specific target groups. To permit this is to permit the kind of reasoning which led tribunals and courts in the past to deny benefits to pregnant women, on the ground that the schemes in question were intended to compensate for illness only. The focus of the inquiry should be placed on the need being provided for rather than on the class of person being compensated.
Cases Cited
By Sopinka J.
Applied: Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; referred to: Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Ontario Human Rights Commission and O’Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; R. v. Swain, [1991] 1 S.C.R. 933.
By McLachlin J.
Referred to: Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 15(1) .
Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1 [am. 1989‑90, c. 23], ss. 2(1)(d.1), (i.1), 3, 15, 16(1).
Authors Cited
Canada. House of Commons. Sub‑Committee on Equality Rights. Equality for All: Report of the Parliamentary Committee on Equality Rights. Ottawa: Queen’s Printer, 1985.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1994), 120 Sask. R. 166, 68 W.A.C. 166, 116 D.L.R. (4th) 109, [1994] 8 W.W.R. 609, 5 C.C.E.L. (2d) 1, 24 C.C.L.I. (2d) 1, 21 C.H.R.R. D/211, 94 C.L.L.C. ¶17,028, [1995] I.L.R. ¶1‑3121, affirming a judgment of the Court of Queen’s Bench (1993), 107 Sask. R. 202, 47 C.C.E.L. 211, 14 C.C.L.I. (2d) 308, 18 C.H.R.R. D/387, 93 C.L.L.C. ¶17,009, affirming a decision of the Board of Inquiry (1992), 18 C.H.R.R. D/384, 92 C.L.L.C. ¶17,044. Appeal dismissed.
Robert G. Richards and Robert W. Leurer, for the appellant.
Milton C. Woodard, for the respondents.
Carolyn McCool, for the intervener the Council of Canadians with Disabilities.
William Pentney and Margaret‑Rose Jamieson, for the intervener the Canadian Human Rights Commission.
M. David Lepofsky and Anthony D. Griffin, for the intervener the Ontario Human Rights Commission.
Janet L. Budgell and Jonathan P. A. Batty, for the intervener the Canadian Mental Health Association.
The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
1. Sopinka J. -- This appeal, which was dismissed on the date of the hearing with reasons to follow, concerns an allegedly discriminatory insurance policy which was offered as a “benefit of employment” to employees of the appellant, Battlefords and District Co-operative Ltd. The insurance policy in question provides an income replacement scheme, whereby employees who are rendered unable to work are provided with income replacement for as long as they are incapable of returning to their jobs. Where the cause of an employee's inability to work is a mental illness or mental disability, however, the income replacement benefits are terminated after only two years unless the employee remains housed within a mental institution. The question before the Court in this appeal can be briefly stated as follows: Is the insurance scheme provided by the appellant discriminatory within the meaning of s. 16(1) of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1. Specifically, the Court must answer whether the insurance scheme’s differentiation between mentally disabled employees and physically disabled employees amounts to “discrimination” under the Code.
Facts
2. Betty-Lu Clara Gibbs (the respondent) is an employee of Battlefords and District Co-operative Limited (the appellant). On November 30, 1987, Ms. Gibbs became disabled as a result of a mental disorder and was unable to perform the duties of her occupation. During the 90 days following the onset of her disability, Ms. Gibbs used up her sick leave and was then paid benefits under an insurance policy (Group Policy No. G-369) from March 5, 1988 to March 4, 1990. The policy in question was issued by the Co-operators Life Insurance Company and was extended to Ms. Gibbs through the collective agreement that existed between her employer and the union.
3. Under the terms of the policy, any employee who was rendered unable to work was provided with a steady stream of replacement income. The benefit was available for all employees regardless of status. As long as the employee had incurred a disability rendering him or her unable to work, the employee would receive replacement income. If the disability in question were a mental illness, however, clause 10.6 of the policy provided that the replacement income benefit would terminate after two years, even if the person was unable ever to resume employment. Benefits for the mentally disabled would only continue beyond the two-year period if the person with the mental disability remained in a mental institution.
4. Because of clause 10.6, Ms. Gibbs' insurance benefits were terminated in March of 1990. Had Ms. Gibbs' injury been physical in nature, the benefits would have continued until age 65 whether or not Ms. Gibbs was housed in an institution. As a result of this discrepancy, Ms. Gibbs claimed that the insurance provision was a discriminatory term of her employment, contrary to the provisions of The Saskatchewan Human Rights Code.
5. Ms. Gibbs filed her complaint pursuant to s. 16(1) of the Code. Under that provision, no employer may discriminate against any person with respect to any “term or condition of employment” because of a disability. A Board of Inquiry considered Ms. Gibbs’ complaint and determined that the policy was discriminatory: (1992), 18 C.H.R.R. D/384, 92 C.C.L.C. ¶17,044. The Board referred the matter back to the employer for remedial action, and the employer appealed to the Saskatchewan Court of Queen's Bench.
6. The employer's appeal was dismissed by Lawton J. ((1993), 107 Sask. R. 202, 47 C.C.E.L. 211, 14 C.C.L.I. (2d) 308, 18 C.H.R.R. D/387, 93 C.L.L.C. ¶17,009), and the employer appealed this decision to the Saskatchewan Court of Appeal. Once again, the employer's appeal was dismissed, with dissenting reasons delivered by Wakeling J.A.: (1994), 120 Sask. R. 166, 68 W.A.C. 166, 116 D.L.R. (4th) 109, [1994] 8 W.W.R. 609, 5 C.C.E.L. (2d) 1, 24 C.C.L.I. (2d) 1, 21 C.H.R.R. D/211, 94 C.L.L.C. ¶17,028, [1995] I.L.R. ¶1-3121. The employer now appeals to this Court.
Relevant Legislation
The Saskatchewan Human Rights Code
7. Prior to the 1989-90 Legislative Session, s. 16(1) of The Saskatchewan Human Rights Code provided as follows:
16. -- (1) No employer shall refuse to employ or continue to employ or otherwise discriminate against any person or class of persons with respect to employment, or any term or condition of employment, because of his or their race, creed, religion, colour, sex, marital status, physical disability, age, nationality, ancestry or place of origin.
In the 1989-90 Legislative Session, s. 16(1) was amended by striking out the word “physical” in front of the word “disability”. As a result, the protection of the section was extended to the mentally disabled. “Disability” and “mental disorder” were then defined as follows:
2(1) ...
(d.1) “disability” means:
. . .
(ii) any of:
(A) a condition of mental retardation or impairment;
(B) a learning disability or a dysfunction in one or more of the processes involved in the comprehension or use of symbols or spoken language; or
(C) a mental disorder;
. . .
(i.1) “mental disorder” means a disorder of thought, perception, feelings or behaviour that impairs a person's:
(i) judgment;
(ii) capacity to recognize reality;
(iii) ability to associate with others; or
(iv) ability to meet the ordinary demands of life;
Prior Judgments
1. Board of Inquiry (1992), 18 C.H.R.R. D/384
8. After reviewing all of the facts and the relevant cases, the Board of Inquiry determined that this case was materially similar to Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219. In Brooks, disability benefits were extended under a contract of employment to persons suffering from all manner of health-related conditions except for pregnancy. According to the Supreme Court of Canada, the exclusion of pregnant women from the disability plan amounted to a form of discrimination. In the Board of Inquiry's opinion, the instant case was largely indistinguishable from Brooks. According to the Board (at p. D/387):
Through an insurance contract, the respondent is attempting to differentiate between different classes of a group against whom discrimination is prohibited. Just as it is discriminatory to differentiate between pregnant and non-pregnant women, or women who are above or below the height of six feet, it is discriminatory to differentiate between people who are suffering mental disorders who are institutionalized and those who suffer from such disorders but are not institutionalized. Similarly, it is discriminatory to differentiate between people who are physically disabled and those who are mentally disabled by not compensating uninstitutionalized mentally disabled people while uninstitutionalized physically disabled people receive benefits.
As a result, the Board of Inquiry held that Ms. Gibbs had succeeded in establishing discrimination pursuant to s. 16(1) of the Human Rights Code. The Board accordingly remitted the matter back to the employer for remedial action.
2. Saskatchewan Court of Queen's Bench (1993), 107 Sask. R. 202
(a) Term or condition
9. As noted above, s. 16(1) of the Code prevents discrimination through the “terms or conditions” of a contract of employment. In the instant case, the employer argued that the “term or condition” at issue was the entitlement to the benefit of an employee insurance policy. According to the employer, the specific terms of the policy could not be referred to as “terms or conditions” of employment.
10. Lawton J. determined that this question was largely answered by this Court's decision in Brooks. In that case, this Court stated at p. 1238 that:
... if an employer such as Safeway enters into the field of compensation for health conditions and then excludes pregnancy as a valid reason for compensation, the employer has acted in a discriminatory fashion.
According to Lawton J. (at p. 209):
...it follows that if an employer such as the Co-op enters into the field of compensation for health conditions and then excludes mental disability as a valid reason for compensation equal to that given to others, the employer has acted in a discriminatory fashion.
Lawton J. further noted that no evidence had been led to explain the disparate coverage.
(b) Basis of comparison
11. According to the appellant, it was wrong for the Board of Inquiry to compare one class of disabled persons, namely the mentally disabled, with another, namely the physically disabled. Instead, the proper basis of comparison was to compare disabled persons with non-disabled persons. On this basis, there was no discrimination.
12. In Lawton J.'s opinion, the appropriate method of identifying discriminatory conduct had been established by this Court in Brooks. In that case, the Court, at p. 1236, stated that:
The plan singles out pregnancy for disadvantageous treatment, in comparison with any other health reason which may prevent an employee from reporting to work. With the sole exception of pregnancy, eligibility for compensation under the plan is available on broad and general terms. . . . No restrictions are placed on disability, with the solitary exception of pregnancy. It is difficult to conclude otherwise than that, as a result of the unfavourable treatment accorded to pregnancy vis-à-vis all other medical conditions, the Safeway plan discriminates on the basis of pregnancy.
Lawton J. noted that the foregoing passage makes it clear that the Court in Brooks was comparing pregnancy with other disabilities. Thus, a “disabled vs. disabled” basis of comparison was permitted. In Lawton J.'s view (at p. 211):
Using this approach, it is difficult to conclude otherwise than that, as a result of the unfavourable treatment accorded to mental disability vis-a-vis all other medical conditions, the Co-op plan discriminates on the basis of mental disability.
Having concluded that the complaint had been properly advanced under s. 16 of the Human Rights Code, not s. 15, a holding that responded to an argument that has been abandoned by the appellant in the present appeal, Lawton J. dismissed the employer’s appeal.
3. Saskatchewan Court of Appeal (1994), 120 Sask. R. 166
I. Jackson J.A. (Bayda C.J.S. concurring)
(a) Basis of comparison
13. According to the majority of the Saskatchewan Court of Appeal, Lawton J. had been correct to hold that the basis of assessing discrimination in this context was to compare persons with mental disabilities to persons with physical disabilities. According to Jackson J.A. (at pp. 177-78):
The employer provided a group benefits plan which replaced employment income for all employees who were unable to work, but for some of those employees replacement income terminated after two years and for others it might not. In this very real and immediate sense [Gibbs] was being discriminated against because of that disability.
The majority of the Court of Appeal thus found that the “term of employment” represented by the insurance contract was discriminatory, and accordingly ran afoul of s. 16(1) of the Code.
(b) Term or condition
14. Substantially for the reasons given by Lawton J. in the court below, Jackson J.A. was of the view that the provisions in the insurance contract amounted to “terms and conditions” of employment. The “benefit” of insurance coverage was granted as a term of employment, explicitly found within the collective agreement. The availability of that “benefit” depended upon the form of disability: for mental disabilities, long-term benefits were available only if institutionalization was required. For physical disabilities, institutionalization was unnecessary. As a result, the terms or conditions of employment amounted to discrimination.
15. The majority of the Court of Appeal held that the complaint had been properly brought under s. 16 of the Code, and the appeal was dismissed.
II. Wakeling J.A. (dissenting)
16. Wakeling J.A. dissented solely on the issue of whether the application should have been brought under s. 15(1) or s. 16 of the Human Rights Code. This argument has been abandoned by the appellant.
The Issue
17. Does the appellant’s disability plan, which places limitations on benefits for nervous, mental or emotional disability, but not for other kinds of disability, discriminate on the basis of disability contrary to s. 16(1) of The Saskatchewan Human Rights Code?
Analysis
18. The issue in this appeal involves an interpretation of s. 16(1) of The Saskatchewan Human Rights Code. In interpreting s. 16(1) and applying it to the facts of the instant case, it is necessary to consider the context in which the section appears. This Court has consistently held that human rights legislation is “fundamental” or “quasi-constitutional” and as such should be interpreted in a broad and purposive manner. As Lamer J. (as he then was) stated in Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at pp. 157-58:
When the subject matter of a law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.
In Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at pp. 546-47, this Court stated:
To begin with, we must consider the nature and purpose of human rights legislation. The preamble to the Ontario Human Rights Code provides the guide.... There we find enunciated the broad policy of the Code and it is this policy which should have effect.... Legislation of this type is of a special nature, not quite constitutional but certainly more than ordinary -- and it is for the courts to seek out its purpose and give it effect.
In Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321, at p. 339, I stated that:
Human rights legislation is amongst the most pre-eminent category of legislation.... One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed....
19. The purpose of The Saskatchewan Human Rights Code is found in its statement of objects, as set out in s. 3:
3. The objects of this Act are:
(a) to promote recognition of the inherent dignity and the equal inalienable rights of all members of the human family; and
(b) to further public policy in Saskatchewan that every person is free and equal in dignity and rights and to discourage and eliminate discrimination.
In defining the scope of “discrimination” under s. 16(1) of the Code, it is important to bear these objects in mind. A broad, purposive approach is required.
The Definition of Discrimination
20. Turning to the question of the appropriate definition of “discrimination,” in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 173-75, McIntyre J. stated:
What does discrimination mean? The question has arisen most commonly in a consideration of the Human Rights Acts and the general concept of discrimination under those enactments has been fairly well settled. There is little difficulty, drawing upon the cases in this Court, in isolating an acceptable definition. . . . I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.
21. In the case at bar, the respondent Ms. Gibbs alleges discrimination on the basis of mental disability. She became mentally disabled and unable to work. The appellant employer provided an insurance plan which extended an income replacement benefit to the respondent, but this benefit was terminated under clause 10.6 of the plan after two years because she was not institutionalized. Had the respondent been unable to work because of a physical disability, the income replacement benefit would have continued, without regard to institutionalization. Clearly, the insurance benefits offered by the employer made a distinction between physical and mental disabilities. If a person were unable to work because of a physical disability, he or she would be able to claim benefits until age 65, but if a person were unable to work because of a mental disability, benefits would only be available for two years, unless he or she were institutionalized. On its face, it appears that the complainant was denied a benefit as a result of her mental disability, thus falling into the definition of discrimination set out in Andrews, supra. The appellant essentially offers two arguments disputing a finding of discrimination, which I will consider in turn.
Term or Condition of Employment
22. The appellant submits that there was no discrimination based on mental disability, since the relevant term or condition of employment was an entitlement to insurance benefits under the policy, which all employees received equally. The purpose of insurance is to ameliorate the risk facing the beneficiary from future contingencies, such as disability. Given the contingent nature of insurance, the appellant submits that the plan was not discriminatory: when the contract was entered into, each insured employee enjoyed exactly the same protection from the harm of future disability.
23. While the appellant is correct in stating that before the insured risk of disability materialized, the plan gave each employee similar protection from future contingencies, this does not respond to an allegation of discrimination. Each employee certainly received a benefit in terms of “peace of mind” from the insurance before any risk materialized, and this benefit was distributed equally, but the insurance plan also certainly provided a significant benefit to employees after the risk of disability materialized, and this income replacement benefit was not distributed equally -- those who suffered from a mental disability received less than those suffering from a physical disability. The fact that it was initially unclear who would later be treated distinctively does not lessen the strength of the conclusion that the plan discriminated against those with a mental disability. It would be inimical to the objects of human rights legislation if a practice could be immunized from scrutiny under this legislation simply because its discriminatory effects are contingent on uncertain future events.
24. As noted above in the quotation from Zurich, supra, the purpose of human rights legislation is to protect the most vulnerable members of society. It would clearly be contrary to this purpose to fail to find discrimination where the discrimination is contingent on the very event that gives rise to the need for the protection of the Human Rights Code. In the present case, the discrimination was deferred until Ms. Gibbs became mentally disabled, which was precisely when she became vulnerable and the protection of human rights legislation was most needed. When Ms. Gibbs became mentally disabled, she was treated distinctively because of the type of her disability; this was discrimination under s. 16 of the Code.
25. Such reasoning is supported by this Court’s decision in University of British Columbia v. Berg, [1993] 2 S.C.R. 353. In that case, the Court decided that in treating a mentally ill student distinctively because of her illness, the University violated the British Columbia Human Rights Act. One of the central issues was whether the services offered by the University to its students were offered “to the public” within the meaning of the Act. It was argued that once a person had become a student of the University, the University ceased to provide services to the person as a member of the public. Lamer C.J., writing for the majority, stated at pp. 381-82:
... I find the distinction between discrimination in the admissions process and discrimination in the provision of accommodations, services and facilities to those already admitted unconvincing and subversive of the purpose of human rights legislation....
... such a distinction would allow such institutions to frustrate the purpose of the legislation by admitting students without discrimination, and then denying them access to the accommodations, services and facilities they require to make their admission meaningful. . . . [O]ne need do no more than ask the question “Can the legislature have intended that such activity would not be subject to scrutiny under the Act?” to make the answer, I think, clear.
Berg is instructive in analysing the case at bar. Following a purposive approach, it is not a justification for the employer to point out that the plan treated all employees equally prior to the materialization of the risk of disability. A contract that explicitly provides for distinctions on prohibited grounds, albeit distinctions that only potentially occur in the future, is contrary to the objects of human rights legislation. Does this constitute discrimination “with respect to ... [a] term or condition of employment” so as to attract the provisions of s. 16(1)? The appellant submits that it does not because when the contract was entered into the provision was neutral and no one could be said to be subjected to differential treatment at that stage. I would reject this submission. An employer can discriminate against an employee with respect to a term or condition of employment notwithstanding that the identity of the employee against whom differential treatment will operate will be determined by future events.
The Appropriate Comparison
26. The appellant also submits that the insurance plan should not be viewed as discriminatory since the proper comparison is not between the mentally disabled and the physically disabled, but rather between the disabled generally and the able-bodied. The purpose of the Act, the appellant submits, is to prevent discrimination against the disabled as compared to able-bodied persons, not as compared to other disabled persons. The appellant submits that disability insurance almost invariably distinguishes between types of disability, so if discrimination is found on the basis of a “disability-disability” comparison, a great number of insurance schemes will be held to discriminate.
27. In my view, the Court of Appeal was correct, in the circumstances of the present case, in finding discrimination on the basis of a comparison between the insurance benefits offered to those unable to work because of a physical disability and those unable to work because of a mental disability. In concluding that a “mental disability/physical disability” comparison is appropriate, I note first of all that in order to find discrimination on the basis of disability, it is not necessary that all disabled persons be mistreated equally. The case law has consistently held that it is not fatal to a finding of discrimination based on a prohibited ground that not all persons bearing the relevant characteristic have been discriminated against. For example, in Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, this Court held that sexual harassment of particular female employees constituted discrimination on the basis of sex. In dismissing the argument that since only a subset of female employees was harassed, the harassment was not sex discrimination, the Court stated at pp.1288-89:
The fallacy in the position advanced by the Court of Appeal is the belief that sex discrimination only exists where gender is the sole ingredient in the discriminatory action and where, therefore, all members of the affected gender are mistreated identically. While the concept of discrimination is rooted in the notion of treating an individual as part of a group rather than on the basis of the individual’s personal characteristics, discrimination does not require uniform treatment of all members of a particular group. It is sufficient that ascribing to an individual a group characteristic is one factor in the treatment of that individual. If a finding of discrimination required that every individual in the affected group be treated identically, legislative protection against discrimination would be of little or no value. It is rare that a discriminatory action is so bluntly expressed as to treat all members of the relevant group identically. In nearly every instance of discrimination the discriminatory action is composed of various ingredients with the result that some members of the pertinent group are not adversely affected, at least in a direct sense, by the discriminatory action.
28. The decision of this Court in Brooks, supra, further supports the conclusion that discrimination against a subset of the relevant group, in the instant case, the mentally disabled, may be considered discrimination against the relevant group generally for the purposes of human rights legislation. In Brooks, an insurance plan was held to discriminate against pregnant women. Clearly, not all women become pregnant, but the Court held that discrimination against pregnant women constituted sex discrimination. Writing for the Court, Dickson C.J. stated at p. 1247:
I am not persuaded by the argument that discrimination on the basis of pregnancy cannot amount to sex discrimination because not all women are pregnant at any one time. While pregnancy-based discrimination only affects part of an identifiable group, it does not affect anyone who is not a member of the group. Many, if not most, claims of partial discrimination fit this pattern. As numerous decisions and authors have made clear, this fact does not make the impugned distinction any less discriminating.
Thus, a finding of discrimination on the basis of disability, even though only a subset of disabled employees is mistreated, is permissible according to the case law. In this regard, a finding of discrimination on the basis of a “mental disability/physical disability” comparison is not inconsistent with past decisions of this Court. Further reasons are required, however, to conclude that such a comparison is appropriate in the circumstances of the present case.
29. A finding of discrimination based on the imposition of a burden or the withholding of a benefit must be rooted in a comparison of the treatment received by a person with the treatment received by other persons. As McIntyre J. stated in Andrews, supra, at p. 164:
The concept of equality has long been a feature of Western thought.... It is a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises.
30. In my opinion, it is appropriate in the circumstances of the present case to compare the benefits received by the mentally disabled with those received by the physically disabled. As a preliminary matter, there are two significant factors that influence a purposive approach to deciding the appropriate comparison in the case at bar. First, human rights law frequently distinguishes between physical and mental disability. In Saskatchewan, for example, the Human Rights Code was amended to replace “physical disability” as a prohibited ground with “disability,” indicating the legislature’s recognition that “mental disability” is distinct from and is not encompassed by “physical disability”. A distinct status for mental disability as a prohibited ground is explicitly envisioned in the Canadian Charter of Rights and Freedoms . Section 15(1) provides:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on ... mental or physical disability.
Mental disability thus has been treated as distinct from physical disability both in statutes and in the Constitution, which, all other things being equal, indicates that it was not inappropriate for the courts below to treat mental disability as distinct from physical disability.
31. Aside from the statutory and constitutional treatment of mental disability as a distinct prohibited ground, a second broad factor that should influence a purposive approach is the particular historical disadvantage faced by persons with mental disabilities. In Equality for All, a 1985 report of the Parliamentary Committee on Equality Rights, the following passage submitted to the Committee by the Canadian Mental Health Association, New Brunswick Division, is cited at p. 89:
Mental illness is one of the least understood and least accepted of all illnesses. It creates fear and stereotypical responses in people. Yet who are the mentally ill? Potentially they can be people who suffer from varying degrees of illness, from short term situations that temporarily incapacitate an individual to long term illnesses that require continuous support and attention. Psychiatric disabilities have many possible causes, sometimes physical, sometimes psychological and sometimes social. For a great many people, such illnesses are shameful and embarrassing and as a result they are very reticent to stand up for their rights or to protest when injustice has been done to them.
Indeed, the particular disadvantage facing the mentally disabled was recognized by this Court in R. v. Swain, [1991] 1 S.C.R. 933. Lamer C.J. stated at p. 994:
Furthermore, the fact that the claim involves the personal characteristic of insanity (which falls within the enumerated ground of mental disability) leaves no doubt in my mind that, if the differential treatment is “discriminatory” (which remains to be seen), the s. 15(1) claim fits within the overall purpose of remedying or preventing discrimination against groups suffering social, political and legal disadvantage in Canadian society. There is no question but that the mentally ill in our society have suffered from historical disadvantage