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96 Can. B. Rev. 1 (2018)

handle is hein.journals/canbarev96 and id is 1 raw text is: 










VoL. 96                         2018                            No. 1



  OBSTACLES TO CROSSING THE DISCRIMINATION
        THRESHOLD: CONNECTING INDIVIDUAL
     EXCLUSION TO GROUP-BASED INEQUALITIES

             Colleen Sheppard* & Mary Louise Chabot**


In two important unanimous judgments, Quebec (Commission des droits
de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier
Aerospace Training Centre) and Kahkewistahaw First Nation v Taypotat, the
Supreme Court of Canada concluded that there was insufficient evidence of
discrimination. Consequently, it dismissed both claims without requiring that
the defendants justify the allegedly exclusionary criteria being challenged.
While these cases arose in very different factual and legal contexts, there are
troubling common threads that tie them together. Most poignantly, in both
cases, the plaintiffs do not succeed in proving what is often referred to as aprima
facie case of discrimination, and the predominant justification for this failure
is the inadequacy of the evidence. These cases, therefore, provide an important
starting point for thinking about how to prove discrimination. They raise
questions regarding the use of the terminology 'rimafacie discrimination the
role offactual inferences in statutory or constitutional discrimination analysis
and the significance of broader evidence about social context in individual
discrimination cases. Finally, they remind us that how plaintiffs lose matters.
The fact that the Court did not get beyond the preliminary finding of prima
facie discrimination stands in stark contrast to many anti-discrimination cases
where the heart of the dispute revolves around the adequacy of the justification
for the challenged exclusionary criteria.




        Professor, Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill
University. I wish to acknowledge research support from the Social Sciences and Humanities
Research Council.
    ..  BCL/LLB, Faculty of Law, McGill University, 2017.


THE CANADIAN BAR REVIEW

   LA REVUE DU BARREAU
          CANADIEN

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