Can There Be a Unified Doctrine of Anti-discrimination in Canada?

This article provides a justification for applying distinct legal tests to adjudicate discrimination claims against a private person under a human rights code and claims that a law is discriminatory contrary to section 15 of the Canadian Charter of Rights and Freedoms. The basis for this distinction is that the legal wrong of discrimination by one person against another differs from the legal wrong of discrimination by a state-enacted law. A person commits wrongful discrimination against another when, in the course of a one-to-one interaction between the two, she fails to adjust her behaviour towards the other in a way that is made appropriate by the fact that the other possesses certain personal characteristics. However, the wrong that a discriminatory law represents cannot be understood in terms of such a failure on the part of the state. The tests used to adjudicate code claims against private persons and section 15 Charter challenges to laws accordingly ought to reflect how the legal relationship between private persons is distinct from the state-subject legal relationship. In addition to informing the development of the section 15 Charter test, appreciating this difference has other doctrinal implications, such as informing whether that test should apply to claims that a law is discriminatory contrary to a human rights code