approach the ideal of full equality before and under the law . . . the main consideration must be
the impact of the law on the individual or the group concerned". In this the Court has staked out a
different path than the United States Supreme Court, which requires a discriminatory intent in
order to ground an equal protection claim under the Fourteenth Amendment of the Constitution;
see Washington, Mayor of Washington, D.C. v. Davis, 426 U.S. 229 (1976), Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), and Personnel
Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979).
63 This Court first addressed the concept of adverse effects discrimination in the context of
provincial human rights legislation. In Simpsons-Sears, the Court was faced with the question of
whether a rule requiring employees to be available for work on Friday evenings and Saturdays
discriminated against those observing a Saturday Sabbath. Though this rule was neutral on its
face in that it applied equally to all employees, the Court nevertheless found it to be
discriminatory. Writing for the Court, McIntyre J. commented as follows, at p. 551:
A distinction must be made between what I would describe as direct discrimination and the
concept already referred to as adverse effect discrimination in connection with employment.
Direct discrimination occurs in this connection where an employer adopts a practice or rule which
on its face discriminates on a prohibited ground. For example, "No Catholics or no women or no
blacks employed here." . . . On the other hand, there is the concept of adverse effect
discrimination. It arises where an employer for genuine business reasons adopts a rule or
standard which is on its face neutral, and which will apply equally to all employees, but which has
a discriminatory effect upon a prohibited ground on one employee or group of employees in that it
imposes, because of some special characteristic of the employee or group, obligations, penalties,
or restrictive conditions not imposed on other members of the work force.
See also Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R.
489, and Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970. I note that in
Andrews, McIntyre J. made it clear that the equality principles developed by the Court in human
rights cases are equally applicable in s. 15(1) cases. The definition of adverse effects
discrimination set out in Simpsons-Sears, moreover, has been expressly adopted in the context
of s. 15(1); see Egan, supra, at para. 138 (per Cory J.).
64 Adverse effects discrimination is especially relevant in the case of disability. The
government will rarely single out disabled persons for discriminatory treatment. More common are
laws of general application that have a disparate impact on the disabled. This was recognized by
the Chief Justice in his dissenting opinion in Rodriguez, supra, where he held that the law
criminalizing assisted suicide violated s. 15(1) of the Charter by discriminating on the basis of
physical disability. There, a majority of the Court determined, inter alia, that the law was saved by
s. 1 of the Charter, assuming without deciding that it infringed s. 15(1). While I refrain from
commenting on the correctness of the Chief Justice's conclusion on the application of s. 15(1) in
that case, I endorse his general approach to the scope of that provision, which he set out as
follows, at p. 549:
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