Boulter v. Nova Scotia Power Inc.: Challenging our own Stereotypes
The Supreme Court of Canada has recently announced it will deliver judgment in the application for leave to appeal in Boulter v. Nova Scotia Power Incorporated, 2009 NSCA 17. In anticipation of such judgment, it is worthwhile to re-examine the issues at stake in the decision. While much has been written on the mechanics of whether poverty can meet the criteria to be considered an analogous ground, this article focuses on the underlying policy rationale of the “personal characteristics” standard. In particular, it considers the potential utility of the Supreme Court reconceptualising this standard.
At issue in Boulter was the constitutional validity of legislation requiring the Utility and Review Board to set the same power rates for all consumers. The appellants argued poverty was an analogous ground under s. 15(1) of the Canadian Charter of Rights and Freedoms, and the legislation discriminated against the poor. In dismissing the appeal, the Court of Appeal held that poverty was neither an immutable characteristic of the individual nor constructively immutable, and thus did not meet the criteria to be considered an analogous ground.
While an argument can be made that poverty can be seen as constructively immutable, (see Daniel Del Gobbo, (Mis)Construing Kapp to Preclude the Impoverished,) the entire immutable characteristics doctrine is somewhat puzzling. The purported policy rationale of s. 15 is to promote equality by preventing legislation being passed that exacerbates existing inequalities. In Law v. Canada,  1 S.C.R. 497, the Supreme Court of Canada set out the tests for determining a discrimination claim. Under the first branch of the Law test, one must inquire as to whether the impugned law draws a formal distinction between the claimant and others on the basis of one or more personal characteristics. In Corbiere v. Canada,  2 S.C.R. 203, the Court established the criteria to identify an analogous ground. The Court held that the common thread running through all enumerated grounds in s. 15 is that they serve as the basis for stereotypical decisions made on the basis of a personal characteristic that is immutable, or changeable only at great cost to personal identity.
The decision to limit the scope of s. 15 to discrimination based on personal characteristics has a valid objective. As McIntyre J. wrote in Andrews v. Law Society of British Columbia,  1 S.C.R. 143:
Distinctions based upon 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.
The purpose of such enumerated and analogous grounds, then, is to serve as an indicator for suspect decision making. The adoption of “personal characteristics” serves as a bright line, clearly demarcating between decisions based on stereotypical decisions and those based upon merit. However, as Professor Alan Dale Gibson points out in “Analogous Grounds of Discrimination Under the Canadian Charter: Too Much Ado About Next to Nothing”, (1991) 29 Alta. L. Rev. 772, the “personal characteristic” standard is inherently incompatible with the notion of discrimination. Discrimination is based upon broad stereotypes of a group, rather than one’s personal characteristics. The Court recognized such difficulties in Corbiere when it introduced the concept of a “constructively immutable” characteristic; thus, grounds such as marriage and religion which would not be easily encompassed by the umbrella of immutable “personal characteristics” can nonetheless fit under the Court’s expanding definition of what may constitute discrimination. Yet the Court relegates other factors such as personal care and social assistance to the side, despite their potential to serve as bases for discriminatory decision making.
In adopting the “personal characteristics” standard as an indicator for discrimination, the Court runs the risk of ignoring discrimination on other grounds. The real danger lies in relying on preconceived notions of what may constitute discrimination, and dismissing actual discrimination where it doesn’t fit tidily in our prior definitions. One is well served to remember Wilson J.’s caution in R. v. Turpin,  1 S.C.R. 1296:
If the larger context is not examined, the s. 15(1) analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation.
Returned to Boulter, one is struck by the Court’s repeated refusal to recognize poverty as an analogous ground of discrimination. In Sparks v. Dartmouth/Halifax County Regional Housing Authority, 1993 CanLII 3176 (NS C.A.), the court largely avoided the poverty argument in favour of finding the ground of distinction was “public housing tenant”. While the end result may have been the same, the Court’s refusal to extend its analysis beyond the confines of the narrow boundaries it itself has created is troubling. What would be the difference if an individual is denied tenancy on the basis of their race or ethnicity instead of on the basis of their impoverished state? In both situations the individual would be experiencing discrimination on the basis of a stereotype about a particular group. Are we prepared only to recognize discrimination when it occurs to members of a sub-group on a recognized analogous ground, denying s. 15 protection to other segments of the population?
Whether or not poverty should be considered an analogous ground, and whether the legislation in Boulter is indeed discriminatory is not at issue here. The refusal to consider poverty as an analogous ground since it fails to meet the “personal characteristics” standard, however, is a matter of some concern. The “personal characteristics” standard has the effect of drastically reducing the scope of s. 15 protection. Though useful as an indicator of discrimination, its use as a gatekeeper function for s. 15 defeats its very purpose.
In reconceptualising the criteria to establish analogous grounds, perhaps the “personal characteristics” standard could be replaced with a more flexible approach that has the potential to encompass all grounds of discrimination, regardless of whether they conform to our preconceived norms. For example, the “distinct community” standard in Commission For Racial Equality v. Dutton,  QB 783, could theoretically include poverty as an analogous ground. Perhaps we can also rephrase McIntyre J.’s explanation of discrimination in light of our expanding conceptions of what constitutes discrimination.
Distinctions based upon stereotypes of an individual 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.
While this would expand the scope of s. 15 protection, this is by no means a bad thing. The focus on stereotypes stemming from one’s association with a group acts both to encompass other discriminations and specify a specific and identifiable disadvantaged group. It is indeed the collective characteristics of the group –be it gender, sexual orientation, or religion– that is the target of the stereotypical assumptions. In removing the “personal characteristics” standard, it is our hope that an analysis for analogous grounds can take place free from our own myths and stereotypes of what may constitute discrimination.