Andrews v Law Society of British Columbia
|Andrews v Law Society of British Columbia|
|Hearing: October 5, 6, 1987
Judgment: February 2, 1989
|Full case name||The Law Society of British Columbia and The Attorney General of British Columbia v. Mark David Andrews and Gorel Elizabeth Kinersly|
|Citations|| 1 S.C.R. 143|
|Prior history||Judgment for Andrews and Kinersly in the Court of Appeal for British Columbia.|
|A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group, infringes s. 15 equality rights.|
|Chief Justice: Brian Dickson
Puisne Justices: Jean Beetz, Willard Estey, William McIntyre, Antonio Lamer, Bertha Wilson, Gerald Le Dain, Gérard La Forest, Claire L'Heureux-Dubé
|Majority||Wilson J., joined by Dickson C.J. and L'Heureux-Dubé JJ.|
|Dissent||McIntyre J., joined by Lamer J.|
|Beetz, Estley, and Le Dain JJ. took no part in the consideration or decision of the case.|
Andrews v Law Society of British Columbia,  1 SCR 143 is the first Supreme Court of Canada case to deal with section 15 (equality rights) of the Canadian Charter of Rights and Freedoms. In the case the court outlined a test, sometimes called the Andrews test to determine if there has been a prima facie violation of equality rights. This case expanded the application of s.15 of the Charter by adding analogous grounds for discrimination to the extent enumerated grounds.
Andrews, a British subject and a permanent resident in Canada, met all the requirements for admission to the provincial bar with the exception that he was not a Canadian citizen. Andrews brought a motion to strike down the requirement for citizenship on the grounds it violated s. 15 of the Charter.
The issue put to the court was whether the requirement of Canadian citizenship for admission to the British Columbia bar is an infringement upon or denial of the equality rights guaranteed by s 15(1) of the Charter. And if so, whether it is justified under s 1.
The majority of the court held that section 42 of Barristers and Solicitors Act violated s 15 and it could not be saved under s 1. The majority was written by Wilson J. with Dickson C.J. and L'Heureux-Dubé J. concurring. In dissent McIntyre J. and Lamer J. disagreed on the point of the s 1 analysis, believing that it would be upheld on the basis of "reasonable limit" and prefered to be deferential to the House of Commons. Justice La Forest wrote a separate decision. All three decisions however, adopted the s 15 analysis used by McIntyre.
The test set out by McIntyre and adopted by the majority held that claims under s 15 would be assessed based on:
- Actual differential treatment,
- Based on one of the enumerated prohibited grounds in s 15 or one that is analogous to those grounds,
- Which is discriminatory because of an imposed burden or denied benefit.
List of important figures in the appeal:
Irwin Nathanson, Q.C., and Rhys Davies, for the appellant Law Society of British Columbia.
Joseph Arvay, for the appellant Attorney General of British Columbia.
Elizabeth C. Goldberg and David Dinklecock, for the intervener the Attorney General for Ontario.
Jean-Yves Bernard and Julie Hudon, for the intervener the Attorney General of Quebec.
Alison Scott, for the intervener the Attorney General of Nova Scotia.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
Richard F. Taylor, for the intervener the Attorney General for Alberta.
P. B. C. Pepper, Q.C., for the intervener the Federation of Law Societies of Canada.
D. G. Cowper and W. S. Martin, for the respondents.
Mary Eberts and Gwen Brodsky, for the intervener the Women's Legal Education and Action Fund.
J. David Baker, for the intervener the Coalition of Provincial Organizations of the Handicapped.
Steven Barrett, for the interveners the Canadian Association of University Teachers and the Ontario Confederation of University Faculty Associations.
The court first defined a general approach to the equality guarantee. The court stated that the section is not a general guarantee of equality, rather it is only concerned with equal application of the law. It was further stated that it should be recognized that not all differences in treatment will result in inequality and that identical treatment may result in inequality.
As such, the suggestion to apply the same legal rules to groups or individuals who are "similarly situated" ("similarly situated test" where likes are treated alike and dislikes differently) was firmly rejected. The case of Bliss v. Canada, a pre-Charter SCC case where a pregnant woman was denied employment benefits, was considered as an example of the problems with such an approach.
Instead the court concentrated on the prohibition on discrimination.
- . . . discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on 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 classified. (p. 280)
The court states the discrimination must be based on an "enumerated or analogous grounds", and the individual seeking to strike down a law must demonstrate the existence of differential treatment based on either of the two grounds. From there the onus shifts to the Crown who must show the law justified under s. 1.
The majority found that the citizenship requirement was not strongly linked to a person's capabilities to practice law, and so found it in violation of s 1.
Andrews was the leading case during the first decade of s 15 jurisprudence. By holding that the phrase "in particular" in s 15 made the listed grounds non-exhaustive and recognizing citizenship as an analogous ground, the court opened the door to include other historically marginalized groups that were not explicitly protected under that section such as members of Canada's LGBT community.
In the 1999 case Law v Canada (Minister of Employment and Immigration), the Supreme Court tightened the Andrews test, limiting burdensome differences in treatment to those that a reasonable person would say violated the claimant's dignity as a human being. This position was reversed by the Supreme Court in the 2008 case R v Kapp, back to the original test, but re-adjusted in Quebec (Attorney General) v A in 2013 and again by Kahkewistahaw First Nation v Taypotat in 2015. However, much of the Andrews approach remained the same through these cases.