![handle is hein.journals/jleq18 and id is 1 raw text is: Can There Be a Unified Doctrine of Anti-discrimination in Canada?
Anthony Sangiuliano*
ABSTRACT
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.
I. INTRODUCTION
Anti-discrimination law typically has two primary sources-statutes and
constitutional provisions.' A basic challenge that courts encounter when
Anthony Sangiuliano, PhD candidate, Sage School of Philosophy, Cornell University,
Ithaca, NY, United States; Adjunct Professor, Faculty of Law, University of Toronto,
Canada. I thank Denise Reaume, Michael Dorf, Avihay Dorfman, Faisal Bhabha,
Sophia Moreau, Andy Yu, Lea Briere-Godbout, three anonymous reviewers, and the
editors of the Journal of Law and Equality for feedback that helped me improve this
article. I also thank the Social Sciences and Humanities Research Council of Canada
and the Canadian Bar Association for financial assistance.
1 There are also some common law doctrines prohibiting discrimination. See e.g. Canada
Trust Co v Ontario Human Rights Commission (1990), 74 OR (2d) 481, 69 DLR (4th) 321
(CA). However, the Supreme Court of Canada has foreclosed the common law development
of a tort of discrimination in light of the comprehensive statutory frameworks that prohibit
discrimination. Seneca College v Bhadauria, [1981] 2 SCR 181, 124 DLR (3d) 193. For an
argument favouring the continued recognition of common law anti-discrimination](ViewImageLocal?handle=hein.journals/jleq18&div=1&collection=&method=preview&ext=.png&size=3)
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