At the Crossroads in Discrimination Law: How the Human Rights Codes Overtook the Charter in Canadian Government Services Cases

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Journal of Law & Equality



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In Ontario (Director, Disability Support Program) v Tranchemontagne, the Ontario Court of Appeal entered on to 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 Ontario Human Rights Code (OHRC) instead of under section 15(1) of the Canadian Charter of Rights and Freedoms.' The doctrinal question at issue was whether the traditional jurisprudential test for discrimination under the human rights codes should be used to analyze a challenge to a statute or whether that statutory standard should be displaced by the tests 2 usually applied under section 15(1) of the Charter. As I will argue, however, lurking beneath this doctrinal question is a set of much more fundamental issues about the relative purpose and scope of constitutional equality and statutory anti-discrimination protection in Canadian equality law