S.C.C. File No. IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE NOVA SCOTIA COURT OF APPEAL) DENISE BOULTER APPLICANT (APPELLANT) NOVA SCOTIA POWER INCORPORATED and ATTORNEY GENERAL OF NOVA SCOTIA RESPONDENTS (RESPONDENTS) APPLICATION FOR LEAVE TO APPEAL
(Pursuant to Section 40 of the Supreme Court of Canada Act, R.S.C. 1985, c. S-26)
Counsel for Denise Boulter Counsel for the Attorney General of Nova Scotia Counsel for Yvonne Carvery, et al and Affordable Energy Coalition Counsel for Nova Scotia Power Inc Counsel for Nova Scotia General Government and Employees Union Part I — Statement of Facts
A. Overview: Ensuring Substantive Equality
This is a case in which the Equality Rights Applicants mounted a systemic challenge to a
provision in the Nova Scotia Public Utilities Act(the “PUA”) that requires all members of the
same rate-class to pay identical rates for electricity. The provision is non-discretionary and
applies despite the fact that, as was accepted by the tribunal below, low-income people have
insufficient income to afford their basic needs, including the essential service of electricity.
Through the PUA, the Province has created a regulatory scheme for the benefit of all
electricity consumers in Nova Scotia. This regime includes an obligation to provide access to
service (i.e., a ‘right of access to electrical service’) as part of the ‘regulatory compact’.
Therefore, the government needs to ensure that the legislated pricing regime for access to this
service is configured in a way that protects the right of the most vulnerable to substantive
equality in their access. Shortly put, the Province’s enactment of protective regulatory
legislation, such as the PUA, must ensure that equality-seekers are accommodated so that they,
too, enjoy equal access to the benefits of the Act.
The legislated pricing structure, while facially-neutral and applicable to all, contravenes
the Applicants’ Equality Rights under s. 15 of the Charter as a result of adverse effect
discrimination. They have sought to establish this by showing that the legislation results in
adverse effects discrimination on the analogous ground of ‘poverty’ and, alternatively, that it
disproportionately impacts on the basis of six frequently intersecting grounds of discrimination.
This approach to ensuring substantive equality in access to electricity is one that, as the
evidence demonstrated, is taken in most states in the United States as well as being legislatively
proposed to the UARB by the Applicants is eminently do-able and, while perhaps surprising, is
widely practiced throughout the United States.
1 Public Utilities Act, R.S.N.S., 1989, c. 380, s. 67(1) (hereinafter “PUA”). 2 Court of Appeal Judgment: LTA, Tab 3C, para. 48. 3 This was judicially confirmed to be the case in Advocacy Centre for Tenants-Ontario v. Ontario (Energy Board),  O.J. No. 1970 (Ontario Sup. Ct. J. Div. Ct.) at para. 61, LTA, Tab 6A.
This case raises nationally important issues of whether the Equality Rights guarantee in
the Charter protects people living in poverty against discrimination on the basis of ‘poverty’. It
also seeks guidance from this Honourable Court about the proper role and identification of
comparator groups in s. 15 of the Charter and, lastly, how adverse effects discrimination is to be
proven in the context of disproportionate impact claims.
Rigid Pricing Structure for Electricity Requiring Accommodation for the Poor
The Applicants ask this Court to vindicate their right to substantive equality in the setting
of electricity rates by declaring that the single-rate rule (in s. 67 of the PUA) violates s. 15 of the
Charter and, as well, they seek an Order directing the Nova Scotia Utility and Review Board
(“UARB”) to take into account and accommodate their circumstances of disadvantage in the
design of an equality-compliant rate program.
C. The Evidence before the Nova Scotia Utility and Review Board Denise Boulter: Personal Background
Denise was married in 1985 and, subsequently divorced in 1990. After her divorce, she
found herself, unfortunately, in relationships which were marked by domestic violence—the
most recent of which ended in November 2003. She has two children; a son, Michael, born in
1990 and a daughter, Stacey, born in 1998.
She has suffered from clinical depression as well as an adjustment disorder periodically
throughout her adult life. Until approximately four years ago, Denise’s depression resulted in
her not being able to leave home for three weeks to a month at a time. In January 2003, she
started what has become ongoing therapy for the adjustment disorder and depression.
As someone who has had to rely on social assistance, Ms. Boulter has been in arrears on
many occasions with the electrical utility and has also had many disconnection notices sent to
her. Within the past two years, she made payments on her power bill arrears by taking money
4 In order to ensure that the s. 15 claims were adequately supported, the record before the UARB and the Appeal Book in the Court of Appeal ran to well over six thousand pages. It was, however, only filed electronically. A copy of the Table of Contents from the Appeal Book is found in the LTA, Tab 5A.
from her social assistance ‘personal allowance’ which is intended to be used for the purchase of
Sacrifices or Deprivations that She Suffered while Being in Receipt of Assistance 10.
One example illustrates the way in which Denise has had to choose which essential need
would go un-met was when she was no longer able to obtain food from the food bank and was
unable to pay the $5 co-pay for her Prozac prescription. Therefore, she had to immediately
discontinue taking this prescribed drug when her re-fill ran out. As a result of going off the
Prozac ‘cold turkey’, her emotions immediately began to fluctuate wildly. Within a couple of
days her emotions were all over the place–she found herself crying and soon thereafter, she
would be angry and, by the third day, she simply could not leave home.
As a survival strategy, Denise deviated from her prescribed daily dosage of two pills.
Instead, she would take two one day and one the next and follow this pattern consistently as a
way of ‘stretching out’ the medication. This has had some effects on her mood but she saw no
way around it given her financial circumstances. Out of embarrassment, she did not tell her
physician about deviating from the prescription.
By the spring of 2007, and, with the prospect of another power rate increase, Denise
foresaw that any rate increase would need to be paid for by having to cut back further on her
UARB Accepted the Applicants’ Evidence
The UARB accepted the Applicants’ evidence. This included evidence of the personal
experience of people living in poverty who stated that they had inadequate income with which to
pay for basic needs such as shelter and adequate food. This was supported, in turn, by the
evidence of nine experts who established, inter alia, that poverty is similar to other grounds of
discrimination prohibited by s. 15 in that it has served as an historic basis of disadvantage, it is
accompanied by pervasive stereotyping;the poverty line (including
those in receipt of social assistance) cannot afford a nutritious diet while also paying for shelter
5 Denise Boulter’s evidence is contained in the LTA, Tab 5B. 6 See the expert evidence filed by Bruce Porter which served as part of the evidentiary foundation for the contention that ‘poverty’ is an analogous ground of discrimination: LTA, Tab 5C.
uch of this latter evidence comes from the Province’s own
Two experts gave evidence on the U.S. experience of regulated pricing designed to
accommodate low-income people. One was a U.S.-based consultant retained by the Board-
appointed Consumer Advocate who gave evidence in the area of “regulatory policy, rate design
and low-income rates.” This witness established that accommodative, income-based rate regimes
are commonplace in the United States where most states have rate structures designed to ensure
substantive access to utilities by the poor.pplicants’ own expert was personally involved
in the design of many accommodative programs in the United States and spoke to the various
ways in which the income-based rates can operate.
Finally, an expert in social policy statistics provided evidence of the overrepresentation,
dramatically so in some cases, of members of equality-seeking groups such as single-mothers,
people with disabilities and visible minorities among the poor.
There was only a single sentence of rebuttal evidence adduced by the Respondent
Province—to the effect that it was unaware of any income-based utility rates in Canada. Judgment
The UARB dismissed the claim. It held that the PUA did not provide a right to affordable
electricity to anyone and, therefore, there was no distinction in the enjoyment of the benefits of
the Act between the affluent and the poorest of the poor. They both received equal treatment. E. The Nova Scotia Court of Appeal Judgment
The Applicants argued that the rigid prohibition of any accommodation in the setting of
electricity rates created a barrier in their statutory right to access electricity and, therefore,
7 See the expert evidence of Dr. Patricia Williams, LTA, Tab 5D. 8 See the expert evidence of Nancy Brockway, LTA, Tab 5E. 9 See the expert evidence of Roger Colton, LTA, Tab 5F, at pp. 51 et seq. 10 Respondent’s evidence of Scott McCoombs, LTA, Tab 5G. 11 UARB Judgment, LTA, Tab 3A at paras. 157-161.
constituted adverse effect discrimination on the analogous ground of ‘poverty’ contrary to s. 15
of the Charter. The Court of Appeal refused to follow earlier rulings from Nova Scotian courts
that discrimination on the analogous ground of ‘income’ or ‘poverty’ were included within s. 15.
The Court held that ‘poverty’ in not an analogous ground of discrimination within the meaning
The Court of Appeal then addressed the Applicants’ alternative argument that, despite
being facially-neutral, the impugned provision results in many Nova Scotians being unable to
access electricity and that this barrier to access impacts disproportionately on members of groups
possessing, in many cases, several intersecting personal characteristics protected by s. 15 of the
The Court of Appeal applied Hodge and rejected the comparator groups that had been
accepted by all parties during the Charter hearing before the Nova Scotia UARB and in their
pleadings to the Court of Appeal: ‘residential consumers of electricity in Nova Scotia who are
living in poverty compared with those who are not living in poverty’. The Court held that, in
light of its rejection of ‘poverty’ as an analogous ground, the proper comparator group analysis
ought to focus on comparing the experience of different groups of poor people with each other
(rather than, for example, the population as a whole). Thus:
[In the context of] the claimants’ submission based on sex, one would compare a female claimant under LICOale consumers of residential power also under LICO. To consider the disability claim, one would compare a disabled claimant under LICO with non-disabled consumers of residential power under LICO. And so on, for the other claimant categories in this s. 15(1) claim.
The Court then considered the statistical data concerning the distribution of poverty
among a variety of vulnerable groups in Nova Scotia. Despite the dramatic overrepresentation
among the poor of single mothers, people with disabilities and several other vulnerable groups,
the Court of Appeal concluded that, because of the presence of “substantial numbers” of people
12 UARB Judgment, LTA, Tab 3A, at para. 42. 13 The Court’s reference to “LICO” is to the Statistics Canada “Low Income Cut-Offs”, a statistical tool widely used by governments and others as a poverty line. 14 Court of Appeal Judgment, LTA, Tab 3C, para. 67.
among the poor who were not members of the claimant groups, but who also faced sever barriers
in their ability to access electricity, the claim must fail:
Both the complainant and comparator groups have substantial numbers of persons whose power costs add to their unwieldy burden of living expenses, forcing prioritization among basic needs. The PUA does not treat the complainants differently than it treats the comparator groups, either directly or by adverse effect, based on sex, race, ethnic or national origin, age, disability or marital 15
The disproportionality claim did not get squarely addressed because, the Court of Appeal noted,
there happened to be “substantial numbers” of poor people outside the claimant group, which, in
its view, was fatal to the disproportionality claim. It will be appreciated that this not only
completely undermines the disproportionate impact claim but verges toward a test for ‘direct
F. Legislative Background
Through the PUA, the Respondent Province, as is the case in all provinces, has created a
regulatory scheme, so as to avoid a situation in which, the Respondent Nova Scotia Power Inc.:
“would otherwise have an unacceptable degree of market power….[The Act provides] relief from
the potential misuse of monopolistic maes
throughout Canada, the Nova Scotia PUA has created: “an economic and social arrangement
dubbed the "regulatory compact", which ensures that all customers have access to the utility at a
fair price—nothing more.”PUA achieves this by legislatively requiring electricity
accessibility for all Nova Scotians (i.e., the ‘obligation to serve’ in PUA s. 52).
ensuring access to electricity for all, rates and terms of service are to be ‘reasonable and just’
15 Court of Appeal Judgment, LTA, Tab 3C, para. 83. (emphasis added) 16 Court of Appeal Judgment, LTA, Tab 3C, para. 65. 17 ATCO Gas and Pipelines Ltd. v. Alberta, 2006 SCC 4 at paras. 62-3, LTA, Tab 6C, and Nova Scotia (Public Utilities Board) v. Nova Scotia Power Corp. (1976), 18 N.S.R. (2d) 692 (A.D.), at para. 17, per Chief Justice MacKeigan, LTA, Tab 6T. 18 Section 52 of the PUA provides:
Every public utility is required to furnish service and facilities reasonably safe and adequate and in all respects just and reasonable.
Whilst, on the one hand, electricity rates are to be ‘reasonable and just’, impugned s. 67
of the PUA stipulates, on the other hand, that all consumers must pay the same rate. The
provision prohibits ‘discrimination’ in pricing; by that it means identical treatment:
Equal rates and charges for similar services 67 (1) All tolls, rates and charges shall always, under substantially similar circumstances and conditions in respect of service of the same description, be charged equally to all persons and at the same rate, and the Board may by regulation declare what shall constitute substantially similar circumstances and conditions.
Impugned s. 67(1) of the PUA permits no accommodation for those for whom identical treatment
effectively creates a barrier in their access to electricity and/or imposes unacceptable choices as
to which of their family’s basic needs will be met/un-met.
The Legislature (via s. 67 of the PUA) has opted for a pricing structure that works for
most Nova Scotians in terms of their ability to access electricity but which, effectively,
disproportionately excludes the poor/equality seekers from being able to enjoy their right to
regulated access to electricity and/or forces unacceptable choices on them as to which of their
family’s essential food and housing needs will go un-met. The ‘embedded norm’ in s. 67(1) is
one of either assumed affordability or indifference to it. As a result, the poor/equality seekers do
not have equal benefit of the regulatory regime created by government and, specifically, the legal
requirement that electricity will be ‘available to all Nova Scotians.’
In Equality Rights terms, the state has intervened to provide a benefit to Nova Scotians
by way of regulated access to electricity but has built in a structural barrier (s. 67’s equal-
treatment pricing formula) which prevents the most disadvantaged Nova Scotians from enjoying
equal benefit and protection of the law.
19 That this is the case was confirmed by the Nova Scotia Court of Appeal in: Dalhousie Legal Aid Service v. Nova Scotia Power Inc., 2006 NSCA 74 at paras. 25 & 39, LTA, Tab 6G, (leave to appeal dismissed  S.C.C.A. No. 376). See also the Court of Appeal Judgment, LTA, Tab 3C, para. 8. 20 Montreal TrustCo. of Canada v. Nova Scotia Power Inc., N.S.J. No. 382 (N.S.S.C.) per Palmeter A.C.J. at para. 10. (emphasis added)
Part II — Statement of Issues
This test case raises the following issues of public importance that warrant the
• Issue One: Is ‘poverty’ an analogous ground of discrimination within s. 15 of the
• Issue Two: What is the test for a violation of s. 15 of the Charter in cases of adverse
effect discrimination where it is sought to be established by the disproportionate impact of a facially-neutral provision? What is the proper role of comparator groups where there are distinctions arising from disproportionate impact rather than categorical exclusion such as in Eldridge and Vriend? How are the proper comparator groups to be identified?
Part III — Statement of Argument Issue One:
Is ‘poverty’ an analogous ground of discrimination within s. 15 of the Charter?
Some 24 years after section 15 of the Charter came into force, Canadians living in
poverty still do not know whether a fundamental basis of their disadvantage is a prohibited
ground of discrimination under s. 15 of the Charter. Former Supreme Court of Canada Justice
Gérard LaForest, as Chair of the Canadian Human Rights Act Review Panel (2000) appointed by
the Federal Justice Minister to conduct a comprehensive review of the Act, stated that during the
Panel’s consultations, “we heard more about poverty than about any other single issue.”
Even though poverty or social-economic related disadvantage is now a prohibited ground
of discrimination in all provincial human rights codes, the poor in Canada are unclear whether
the Equality Rights guarantee in the Charter protects them from discrimination at the hands of
The Court of Appeal, it is submitted, erred when it rejected ‘poverty’ as an analogous
ground because, in its view, poverty is not ‘immutable’. Resolving the role of immutability and,
more importantly, whether poverty is an analogous ground of discrimination is truly of national
importance—not just for the poor, but for all Canadians.
Disparate Case Law across Canada 30.
Over the past two decades, Canadian jurisprudence has been uneven on the question as to
whether poverty and/or socio-economic disadvantage are analogous grounds of discrimination. 21 Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 2000), LTA, Tab 5H, page 106.
In 1991, the British Columbia Supreme Court recognized ‘receipt of social assistance’ as an
analogous ground.x Court of Canada also held that “poverty is a
personal characteristic that can form the basis of discrimination.”e year, the Nova
Scotia Court of Appeal (en banco) considered a s. 15 challenge to residential tenancies
legislation that excluded tenants of public housing from the legislative protections enjoyed by
private-sector tenants. Hallett J.A., writing for the Court, stated: “I find that the impugned
provisions amount to discrimination on the basis of race, sex and income”.
on to hold that the legislation was discriminatory on the basis of ‘public housing tenancy’, citing
the fact that all the tenants had a low income “verging on or below poverty”.
(known as Sparks) was later applied by the Nova Scotia Supreme Court in R. v Rehberg where
Kelly J. stated: “I find in these circumstances, as was found in Sparks, that poverty is likely a
personal characteristic of this group, and in this instance poverty is analogous to the listed
grounds in s. 15.”ourt of Appeal drew upon both Sparks and
Rehberg to conclude in Falkiner that “receipt of social assistance” is an analogous ground of
Conversely, the Ontario Court of Appeal stated in obiter in R. v. Banks (2007) that
poverty is not an analogous ground of discrimination:
While the "poor" undoubtedly suffer from disadvantage, without further categorization, the term signifies an amorphous group, which is not analogous to the grounds enumerated in s. 15.
Indeed, while the Ontario Court of Appeal in Banks took care to distinguish its earlier ruling in
Falkiner, the Nova Scotia Court of Appeal in the instant case even questionedthecorrectness of
22 Federated Anti-Poverty Groups of British Columbia v. British Columbia (AG) (1991), 70 B.C.L.R. (2d) 325 (B.C.S.C.) at p.354, LTA, Tab 6L. 23 Schaff v. The Queen (1993), 18 C.R.R. (2d) 143 (T.C.C.) at para. 56, LTA, Tab 6AA. 24Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 101 D.L.R. (4th) 224 (N.S.C.A. en banco) at pp. 232-34, paras. 26 & 27, LTA, Tab 6H. 25 Sparks (supra) at para. 31, LTA, Tab 6H. 26 R. v. Rehberg (1993), 111 D.L.R. (4th) 336 (N.S.S.C.) at p. 361, para. 83, LTA, Tab 6Z. 27 Falkiner v. Ontario (Ministry of Community & Social Services) (2002), 59 O.R. (3d) 481 (C.A.), at paras. 84-93, LTA, Tab 6K. It is to be noted that the Court in Falkiner refused to follow an earlier Ontario ruling: Masse v. Ontario (Ministry of Community and Social Services),  O.J. No. 363 at para. 375, LTA, Tab 6Q. 28 R. v. Banks, 2007 ONCA 19 at para. 104, LTA, Tab 6V, leave denied  S.C.C.A. No. 139.
Falkinerbia Supreme Court rejected poverty as an analogous ground in
Federated Anti-Poverty Groups of B.C. v. Vancouver (City) (2002) stating that it was “a
proverbial handmaiden to those who seek protection under the enumerated grounds.”
mention was made of the same Court’s 1991 ruling to contrary effect.)
This survey reveals the equivocal state of the jurisprudence as to whether poverty and/or
socio-economic disadvantage is an analogous ground of discrimination. The uneven case law
makes this Court’s resolution of the issue a matter of compelling national importance.
Immutability: Its Role as a Factor in Determining Analogous Grounds and its Application to ‘Poverty’ 33.
The Nova Scotia Court of Appeal relied on the ‘immutability’ criterion from Corbie
to reject ‘poverty’ as an analogous ground:
Poverty is a clinging web, but….individuals may enter and leave poverty or gain and lose resources. Economic status is not an indelible trait like race, national or ethnic origin, color, gender or age.32
The ‘immutability’ factor referred to in Corbiere was said, in Vriend and Miron, to be
just one of several factors including: “historical social, political and economic disadvantage”,
whether a proposed ground is a ‘personal characteristic’, whether it has served as ‘the basis of
stereotypical attributes’ and a proposed ground’s ‘similarity to other prohibited grounds of
discrimination in human rights codes’:
All of these may be valid indicators…that their presence may signal an analogous ground. But the converse proposition—that any or all of them must be present to find an analogous ground—is invalid.
The Court of Appeal rejected ‘poverty’ because, in the Court’s view, it failed the
‘immutability’ criterion. ‘Immutability’has, in the case law, taken on a determinative
significance in analogous grounds assessments that is not only out of keeping with precedent but
which, more importantly, endangers the paramount goal of promoting substantive-equality. 29 Court of Appeal Judgment, LTA, Tab 3C, at paras. 38-39. 30 Federated Anti-Poverty Groups of B.C. v. Vancouver (City),  B.C.J. No. 493 at paras. 275-6, LTA, Tab 6M. 31 Corbiere v. Canada (Minister of Indian and Northern Affairs),  2 S.C.R. 203 at para. 13, LTA, Tab 6F. 32 Court of Appeal Judgment, LTA, Tab 3C, para. 42. 33 Miron v. Trudel,  2 S.C.R. 418 at para. 149, LTA, Tab 6R.
In addition, many commentators have observed that the actual degree to which poverty is
immutable is not meaningfully different than that of, say, marital status or religion. Thus, while
the Court of Appeal made the theoretically correct statement that: individuals may enter and
leave poverty, the actual evidence in the record from government sources states that, Canada-
wide, the odds of leaving poverty drop from 53% for people living in poverty for only one-year
one year to 27% after five years. well recognized; three-quarters
of young social-assistance clients come from families that had previously required social-
assistance.ed in data reported by the Canadian Council on
Social Development: For roughly 60 per cent, poverty proves to be a temporary situation, while
it is a recurrent problem for the remaining 40 per cent.
In reviewing whether ‘poverty’/‘social condition’ can properly be thought of as
immutable, the Canadian Human Rights Act Review Panel, found:
Research done for the Panel shows that poverty is immutable in the sense that it is beyond the control of most poor, at least over considerable periods of their lives. There is evidence that poverty is inherited because individuals whose parents were poor are more likely to live in poverty….Our research also shows that while people may move from social assistance to a low-paying job to employment insurance, few actually move into income levels high enough to escape their condition of poverty.
The evidence, from a wide range of sources, makes clear that the ability to change one’s
poverty status is very difficult. To maintain otherwise is, itself, part of the stereotyping which the
When this evidence of the duration of poverty is compared to the immutability of the
analogous ground of ‘martial status’, the result is striking. Thus, not only is it theoretically true
that a person’s marital status can change through the course of their lifetime, but it is notorious
that intimate relationships—whether married or common law—are entered into and ended at a
34 Province of Nova Scotia: Background Document to “Poverty Reduction Strategy Consultations” (November 2007), LTA, Tab 5I, at page 7. 35 Province of Nova Scotia: The Family Mosaic: Social Exclusion and Social Assistance: A Longitudinal Study of Lone-parent and Two-parent Families, LTA, Tab 5J, at page 39. 36 See Canadian Fact Book on Poverty, Canadian Council on Social Development (2000), LTA, Tab 5K, at xxiii. 37 Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 2000), LTA, Tab 5H, para. 8.
rate that is in the vicinity of 40%. A divorced person has actually experienced three different
Accordingly, not only should the immutability factor not assume determinative weight
but, when applied to ‘poverty’, it appears that it is no less immutable than other grounds of
discrimination which this Court has found to be analogous. As Prof. Hogg has noted; “neither
citizenship nor marital status is immutable in a strong sense.”
Recognition of ‘Poverty’ as Furthering the Purpose of Section 15 41.
Most fundamentally, recognition of ‘poverty’ as an analogous ground falls squarely
within the ameliorative purposes of s. 15: “The primary and oft-stated goal of s. 15(1) is to
combat discrimination and ameliorate the position of disadvantaged groups within society.”
This Court has not considered the question of whether ‘poverty’ is an analogous ground of
discrimination, however, some members of the Court have commented on poverty-based
disadvantage. Thus, former Justice L’Heureux-Dubé recognized that the poor are “one of the
most disadvantaged groups in society”and, when it comes to poverty-related barriers to the
equal enjoyment of Charter rights, the poor, in the words of the current Chief Justice, are not to
be regarded as “constitutional castaways”. Recognition of ‘Poverty’ as an Analogous Ground is Strongly Encouraged by International Human Rights Law 42.
In 1998, on the occasion of the review of Canada’s compliance with its obligations under
the International Covenant on Economic, Social and Cultural Rights, a United Nations treaty
body made the following recommendation for Canada to bring itself into compliance with its
The Committee again urges federal, provincial and territorial governments to expand protection in human rights legislation…to protect poor people in all jurisdictions from discrimination because of social or economic status.
38 P. W. Hogg, Constitutional Law of Canada, (5th ed.) at p. 55-23. 39 Auton (Guardian ad litem of) v. British Columbia (Attorney General),  3 S.C.R. 657 at para. 27, LTA, Tab 6D. 40 R. v. Prosper,  3 S.C.R. 236 at p. 288, para. 71, per L’Heureux-Dubé J. (Dissenting but not on this point), LTA, Tab 6Y. 41Prosper (supra)at 302, para. 102 per McLachlin J. (as she then was), LTA, Tab 6Y. 42 United Nations Committee on Economic, Social and Cultural Rights. Concluding Observations of the Committee on Economic, Social and Cultural Rights (Canada), E/C. 12/1/Add.31, 4 December 1998 at para. 51.
While this recommendation was made in the context of amending human rights statutes, it is
submitted that the same rationale applies to Canada’s human rights obligations in the Charter
which is, after all, the ‘primary vehicle through which international human rights achieve a
Recognition in Human Rights Legislation
In Andrews, and other cases, the Court stated that the interpretation of s. 15 would build
on the body of legislation and jurisprudence from the human rights field. Thus, recognition of a
ground as analogous will be informed by whether that ground, or a similar ground, has been
included in human rights legislation.
protection from discrimination because of either, source of income, receipt of public assistance
or social condition in their human rights legislation. It can fairly be stated, therefore, that a
legislative consensus exists nationallyination against poor people is both endemic
and has required legislative remediation through inclusion in fundamental human rights
Findings and Recommendations of the LaForest Report
In 1999, the Canadian Human Rights Act Review Panel chaired by former Supreme
Court Justice Gérard LaForest released its report, Promoting Equality, in which it recommended
the inclusion of “social condition” as a prohibited ground of discrimination in all areas covered
Our research papers and the submissions we received provided us with ample evidence of widespread discrimination based on characteristics related to social conditions, such as poverty, low education, homelessness and illiteracy….
43 R. v. Ewanchuk,  1 S.C.R. 330 at para. 73 per L’Heureux-Dubé J. with McLachlin J. and Gonthier J. concurring, LTA, Tab 6W. See also: Health Services and Support - Facilities SubsectorBargaining Assn. v. British Columbia,  2 SCR 391wherein this Court affirmed the principle from Slaight that: “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified” and “Canada's current international law commitments and the current state of international thought on human rights provide a persuasive source for interpreting the scope of the Charter.” (at paras. 70 and 78), LTA, Tab 6O. 44 Andrews at para. 38, LTA, Tab 6B, and Egan v. Canada,  2 S.C.R. 513 at para. 176, LTA, Tab 6I, and Miron at paras. 148-9, LTA, Tab 6R. 45 Only the Canadian Human Rights Act lacks a poverty/social condition ground of discrimination. 46 Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 2000), LTA, Tab 5H, page 110. Importantly, the Review Panel urged a definition of ‘social condition’ that would limit its scope to “disadvantaged groups”. 47 Ibid. LTA, Tab 5H, at page 107.
In its report, the Panel ultimately concluded that “it is essential to protect the most destitute in
Canadian society against discrimination.”
There is widespread scholarly support for the recognition of ‘poverty’ and/or ‘social
condition’ as analogous to the grounds already in s. 15. Justice Lynn Smith and Professor Bill
Black applied the Corbiere framework before concluding that ‘poverty’ fits the requisite criteria
Poverty would seem to meet most of the criteria for determining analogous grounds, and the additional factors incorporated within the ground of social condition strengthen this argument. By definition, poverty is associated with economic disadvantage, which in turn leads to social disadvantage. People living in poverty are subject to prejudice and stereotypes. For most, poverty is beyond the unilateral control of the individual and is at least as difficult to change as religion, citizenship or marital status. It is related statistically to enumerated grounds such as race and sex. While it almost never represents a fundamental choice in a person's life, it certainly is an important part of a person's life. In terms of residential and employment segregation and lack of educational opportunity, it has similarities to the conditions that gave rise to the phrase "discrete and insular minority." It is "inherited" in the sense that one's economic status and education level are statistically related to those of one's parents. Persons living in poverty lack their fair share of political influence, and programs related to poverty may be undervalued in the political process as compared with universal programs such as
Granting leave to appeal and, subsequently, recognizing ‘poverty’ as a ground of
discrimination would further this Court’s observation that equality rights protections, both
statutory and constitutional, are “often the final refuge of the disadvantaged and the
disenfranchised.the last protection of the most vulnerable members of society.”
“enshrines the fondest dreams, the highest hopes and finest aspirations of Canadian society. It
‘provides the foundation of a just society’….” This in turn should lead to a sense of dignity and
48 Ibid. LTA, Tab 5H, at page 110. 49 William Black & Lynn Smith "The Equality Rights" in Gerald-A. Beaudoin & Errol Mendes ed., Canadian Charter of Rights and Freedoms, (4th ed.) (Toronto: Butterworth, 2005) at pp. 1010-1011. See also: M. Jackman, “Constitutional Contact with the Disparities in the World: Poverty as a Prohibited Ground of Discrimination Under the Canadian Charter and Human Rights Law” (1994) 2 Review of Constitutional Studies 76 at 121. See also, S. Turkington, “A Proposal to Amend the Ontario Human Rights Code: Recognizing Povertyism”, (1993) 9 J. L. & Soc Pol’y 134. 50 Zurich Insurance Co. v. Ontario (Human Rights Commission),  2 S.C.R. 321, at p. 339, LTA, Tab 6CC.
worthiness for every Canadian and the greatest possible pride and appreciation in being a part of
Issue Two: What is the test for a violation of s. 15 of the Charter in cases of adverse effect discrimination where it is sought to be established by the disproportionate impact of a facially- neutral provision? What is the proper role of comparator groups where there are distinctions arising from disproportionate impact rather than categorical exclusion such as in Eldridge and Vriend? How are the proper comparator groups to be identified? Adverse Effects Discrimination and s. 15 of the Charter
This case was argued as an adverse effects discrimination claim on the basis of ‘poverty’,
but, it was also framed, alternatively, as a challenge to a facially neutral provision resulting, by
disproportionate impact, in adverse effects discrimination. On this front, the case was richly
evidenced with testimony, not only from the five claimants but also the evidence of nine experts
which documented the adverse effects, for example, on women, people with disabilities,
children, visible minorities, immigrants and divorced people. They are the ones who, the experts
confirmed, are disproportionately living in poverty and, thus, unable to enjoy equal access to
electricity because of the ‘one-price/no accommodation rule’ embedded in the challenged
This Court has commented on the fact that, in the modern era, direct or intentional
discrimination will be comparatively rare. In the future, the heavy lifting of equality rights work
will come from adverse effects litigation.e equality rights guarantee
will take place, if it will happen at all, in situations where government’s practices, programs or
legislation fail to accommodate the real life circumstances of disadvantaged groups. In situations
involving government oversight, neglect or where the legislature has embedded a norm that
works for most, but not for equality seekers, s. 15 holds the promise that those suffering
discrimination will be able to establish their case by demonstrating the adverse effects of facially
51 Vriend v. Alberta,  1 S.C.R. 493 at paras. 67-8, LTA, Tab 6BB. 52 While the evidence goes into the qualitative aspects of the denigration which marginalized groups face, the statistical disproportionality of many equality-seeking groups among the poor is set out at paras. 21 and 48 of the Court of Appeal Judgment: LTA, Tab 3C. 53 British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance),  3 S.C.R. 3 at para. 29, LTA, Tab 6E.
neutral legislation. After all, as this Court stated in Andrews and confirmed in Eldridge, ‘the
accommodation of differences is the essence of true equality’. Disproportionate Impact and Comparator Groups: Untrodden Ground and Fresh Questions
In the context of what is a potentially very promising Equality Rights guarantee, it is
striking, as Professor Hogg notes in his text, that in the 25 years since s. 15 came into effect:
Despite the commitment of the Supreme Court to substantive equality, and despite the industry of women's groups and other equality-seeking groups in developing equality cases for litigation, only two claims of indirect discrimination [i.e., Eldridge and Vriend
It is important to realize, however, that in both Eldridge and Vriend this Court had before
it adverse affect cases under s. 15 of the Charter that dealt with categorical exclusions from
benefits; all members of the class, because of their characteristics, were subject to disadvantage
per se. There was no need to consider the disproportionate impact, statistically, on the claimant
group. In Meiorin, a human rights case, this Court referred to the disproportionate impact of an
employment rule for forest firefighters but conducted no analysis of the principles underlying the
disproportionality issue nor of the identification of comparator groups. In fact, this Court has yet
to take the opportunity to flesh out the analysis of disproportionate impact discrimination in a s.
15 case or, in fact, a human rights case.
Comparator Group Analysis post-Kapp 51.
In light of this Honourable Court’s recent judgment in Kapp, questions have arisen
relating to the proper status of comparator groups, especially given the reaffirmation of the
overarching goal of substantive equality. The many critiques of comparator group analysis which
see it as having, possibly, led to formalistic, ‘similarly situated’ reasoning which, it is contended,
occurred here, are acknowledged by this Court itself in Kapp. 54 Andrews v. Law Society of B.C.,  1 S.C.R. 143 at p. 169, para. 31, LTA, Tab 6B, and Eldridge v. British Columbia,  3 S.C.R. 624 at para. 65, LTA, Tab 6 LTA, Tab 6J. 55 P. W. Hogg, Constitutional Law of Canada, (5th ed.) at p. 55-48. 56 See, e.g., Daphne Gilbert and Diana Majury, "Critical Comparisons: The Supreme Court of Canada Dooms Section 15" (2006), 24 Windsor Y.B. Access Just. 111.
This case also presents the situation of equality-rights claimants who possess several
intersecting grounds of discrimination. For example, the Applicant, Denise Boulter, is a woman
who is divorced and living as a single mother. She also has a mental disability.
While acknowledging the legitimacy of s. 15 claims based on intersecting grounds of
discrimicome before it. As a result, equality-
seekers remain unclear how comparator groups would be identified and/or how the
disproportionate impact would be assessed in that setting.
Accordingly, equality-seekers, including the Applicants, continue to need direction from
this Court on the following questions, all of which arise in this case:
• In a disproportionate impact case under s. 15, how are comparator groups to be identified
so as to further the goal of substantive equality; what were the proper comparator groups
• How is a comparator group analysis to be applied in the context of claimants possessing
several, intersecting grounds of discrimination?
• How much statistical overrepresentation among members of the claimant group must
there be in order for it to be considered ‘disproportionate’? Conversely, does the fact that
there are ‘substantial numbers’ of people outside the claimant group, but who are also
denied ‘equal benefit’, mean that a ‘disproportionate impact’ claim must fail?
C. Comparator Hodge Applied to Disproportionate Impact Situations
The Court of Appeal applied Hodge—a case which did not involve adverse effects
discrimination—to conclude that the comparators that had been proposed and accepted to that
point must be rejected. Despite the fact that the case deals with the economic inaccessibility of
electricity, the Court of Appeal stated that the determination as to whether the impugned
provision resulted in any distinctions in the accessibility of electricity ought to involve
comparisons exclusively between different groups of poor people; for example, between poor
people with disabilities and poor people without disabilities; women living in poverty and men in
57 Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497 at para. 37, LTA, Tab 6P.
poverty and visible minorities in poverty to non-visible minorities in poverty. In each case, the
comparison chosen by the Court of Appeal was between two groups—both of which are living in
poverty. Therefore, in terms of distinctions, they are equally disadvantaged in their attempt to
At the initial stage of the s. 15 analysis which seeks to discover whether the impugned
provision has created any distinctions in accessing electricity, the Court’s application of Hodge
ensured that the substantively disadvantaged would only be compared with each other. Given
this frame of reference, the result was predictable: poor people with disabilities and poor people
without disabilities share equal barriers in accessing electricity. The Court of Appeal stated the
The PUA does not treat the complainants differently than it treats the comparator groups, either directly or by adverse effect, based on sex, race, ethnic or national origin, age, disability or marital status.…the claimants have not established that s. 67(1) draws a distinction on a listed or analogous ground.58
The problematic choice of comparator groups becomes all the more clear if the Court of
Appeal’s reasoning is applied to some familiar cases. Thus, the female job applicants with a
lower aerobic capacity for the firefighter positions in Meiroin would, under the Court of
Appeal’s comparator-group reasoning, have been compared with men with lower aerobic
capacity. On this approach, both would have failed the firefighters’ aerobic test and, therefore,
there would have been no distinction shown between the two groups in their suitability for the
job, thus, no discrimination. Similarly, in the landmark American case of Griggs v. Duke Power,Appeal would have required that Black job
applicants without a high school education to be compared with white job applicants without a
high school diploma. The result would have been the same as the case at Bar; no discrimination
since both Blacks and whites would have been denied jobs. The Court of Appeal’s reasoning
effectively means that any disproportionate impact claim in Nova Scotia will be doomed because
the comparator groups will result in disadvantaged groups being compared to each other—a
formalistic but sure way to defeat a substantive equality claim.
58 Court of Appeal Judgment: LTA, Tab 3C,at paras. 83-4. 59 Griggs v. Duke Power Co., 401 U.S. 424 (1971), LTA, Tab 6N.
Moreover, in its selection of comparator groups, the Court of Appeal gave no
consideration whatsoever to the realities of those Charter equality-seekers, such as the claimants
in the present case, who go through life experiencing a confluence of several intersecting
grounds of disadvantage. Even though intersectional disadvantage serves to compound the
difficulties which equality-seekers are made to endure, this reality nowhere appears in the Court
The Court of Appeal’s approach to the selection of comparator groups in disproportionate
impact cases has, effectively, shut down such adverse effects claims from being advanced in
Nova Scotia. By applying Hodge in a way that identifies comparators as those which possess the
protected characteristic compared with their opposite, but in circumstances where both are
effectively excluded from access to the benefit of the law, it makes it impossible to ever prove
adverse effects discrimination by disproportionate impact because both comparator groups are
Disproportionate Impact: Defeated by ‘Substantial Numbers’ Outside the Claimant
The Court of Appeal’s approach to disproportionate impact analysis makes it impossible
to establish adverse effect discrimination where, for example, in the case of people with
disabilities, the Court can point to “substantial numbers” of able-bodied people who are also
disadvantaged. At two separate points in its reasoning on this question, the Court of Appeal cites
the fact that there were “substantial numbers” of people outside the claimant group who were
also disadvantaged as the reason for rejecting the claim of adverse effects by disproportionate
By adopting this view, the Court of Appeal effectively hollows out a core component of
substantive equality. After its decision in this case, it can be stated that in Nova Scotia all that
remains of substantive equality are either claims based on direct discrimination or, for adverse
effect claims, only cases of categorical exclusions such as in Eldridge or Vriend where all
members of the class, because of their characteristics, are subject to disadvantage per se.
60 Court of Appeal Judgment, LTA, Tab 3C, paras. 68 and 83. 61 See Dianne Pothier "BCGSEU: Turning a page in Canadian Human Rights Law”, (1999) 11(1) Constitutional Forum 19 at page 22.
Disproportionate impact-based violations of s. 15 will be defeated if “substantial numbers” exist
The Court of Appeal’s comparator group analysis clearly does not promote substantive
equality even through it relies on authority from this Honourable Court in support of its
reasoning on comparator group identification. The issue of comparator group selection in
adverse effect cases warrants guidance by this Court in order to ensure that it furthers the
The Court of Appeal’s dismissal of the disproportionate impact claim is equally
problematic insofar as it dismisses the claim because it was able to identify “substantial
numbers” of non-claimant members of the comparator group who were also disadvantaged. This
effectively strips the disproportionate impact doctrine—first enunciated in Griggs and adopted in
Part IV — Submission on Costs
This application for leave to appeal is: a) brought by an Applicant who is completely
reliant on social assistance and against whom a cost award would impose even greater hardship
and b) is public interest litigation advanced on behalf of all low-income people in Nova Scotia.
Finally, it raises issues of public importance within the meaning of subsection 40(1) of the
Supreme Court Act. For these reasons, the Applicants request that costs be awarded to the
Part V — Order Requested
That leave to appeal be granted with costs, in any event of the cause.
ALL OF WHICH IS RESPECTFULLY SUBMITTED. Dated at Halifax, Nova Scotia, this ____ day of April, 2009.
Counsel for the Applicant, Denise Boulter
PART VI: TABLE OF AUTHORITIES Advocacy Centre for Tenants-Ontario v. Ontario (Energy Board),  O.J. No. 1970 (Ont. Sup. Ct. J. Div. Ct.) .4 Andrews v. Law Society of B.C.,  1 S.C.R. 143.43, 48 ATCO Gas and Pipelines Ltd. v. Alberta, 2006 SCC 4 .22 Auton (Guardian ad litem of) v. British Columbia (Attorney General),  3 S.C.R. 657 .41 British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance),  3 S.C.R. 3 .48, 50 Corbiere v. Canada (Minister of Indian and Northern Affairs),  2 S.C.R. 203 .33, 34, 45 Dalhousie Legal Aid Service v. Nova Scotia Power Inc., 2006 NSCA 74 (leave to appeal dismissed  S.C.C.A. No. 376) .23 Dartmouth/Halifax County Regional Housing Authority v. Sparks (1993), 101 D.L.R. (4th) 224 (N.S.C.A. en banco).30 Egan v. Canada,  2 S.C.R. 513 .43 Eldridge v. British Columbia,  3 S.C.R. 624.48, 49, 50, 61 Falkiner v. Ontario (Ministry of Community & Social Services) (2002), 59 O.R. (3d) 481 (C.A.) .30, 31 Federated Anti-Poverty Groups of British Columbia v. British Columbia (AG) (1991), 70 B.C.L.R. (2d) 325 (B.C.S.C.) .30 Federated Anti-Poverty Groups of B.C. v. Vancouver (City),  B.C.J. No. 493 .31 Griggs v. Duke Power Co., 401 U.S. 424 (1971) .57, 63 Health Services and Support - Facilities SubsectorBargaining Assn. v. British Columbia,  2 S.C.R. 391.42 Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497 .53 Masse v. Ontario (Ministry of Community and Social Services),  O.J. No. 363.30 Miron v. Trudel,  2 S.C.R. 418.34, 43 Montreal TrustCo. of Canada v. Nova Scotia Power Inc., N.S.J. No. 382 (N.S.S.C.) .24 Nova Scotia (Public Utilities Board) v. Nova Scotia Power Corp. (1976), 18 N.S.R. (2d) 692 (A.D.).22 Ontario (Human Rights Commission) v Simpson-Sears Ltd.,  2 S.C.R. 536 (“O’Malley”).63 R. v. Banks, 2007 ONCA 19 .31
R. v. Ewanchuk,  1 S.C.R. 330 .42 R. v. Kapp, 2008 SCC 41.51 R. v. Prosper,  3 S.C.R. 236 .41 R. v. Rehberg (1993), 111 D.L.R. (4th) 336 (N.S.S.C.) .30 Schaff v. The Queen (1993), 18 C.R.R. (2d) 143 (T.C.C.) .30 Vriend v. Alberta,  1 S.C.R. 493 .34, 46, 49, 50, 61 Zurich Insurance Co. v. Ontario (Human Rights Commission),  2 S.C.R. 321.46
Treaties and Other International Instruments United Nations Committee on Economic, Social and Cultural Rights. Concluding Observations of the Committee on Economic, Social and Cultural Rights (Canada), E/C. 12/1/Add.31, 4 December 1998.42 Books and Articles
Black, William & Lynn Smith "The Equality Rights" in Gerald-A. Beaudoin & Errol Mendes ed., Canadian Charter of Rights and Freedoms, (4th ed.) (Toronto: Butterworth, 2005) .45 Gilbert, Daphne and Diana Majury, "Critical Comparisons: The Supreme Court of Canada Dooms Section 15" (2006), 24 Windsor Y.B. Access Just. 111.51
Hogg, P. W. Constitutional Law of Canada, (5th ed.) .40, 49 Jackman, M., “Constitutional Contact with the Disparities in the World: Poverty as a Prohibited Ground of Discrimination Under the Canadian Charter and Human Rights Law” (1994) 2 Review of Constitutional Studies 76 .45 Pothier, Dianne, "BCGSEU: Turning a page in Canadian Human Rights Law”, (1999) 11(1) Constitutional Forum 19 .61 Turkington, S., “A Proposal to Amend the Ontario Human Rights Code: Recognizing Povertyism”, (1993) 9 J. L. & Soc Pol’y 134 .45
PART VII: STATUTORY PROVISIONS Public Utilities Act, R.S.N.S., 1989, c. 380: Orders by Board respecting rates and charges of utility 44 The Board may make from time to time such orders as it deems just in respect to the tolls, rates and charges to be paid to any public utility for services rendered or facilities provided, and amend or rescind such orders or make new orders in substitution therefor. R.S., c. 380, s. 44. Duty to furnish safe and adequate service 52 Every public utility is required to furnish service and facilities reasonably safe and adequate and in all respects just and reasonable. R.S., c. 380, s. 52. Equal rates and charges for similar services 67 (1) All tolls, rates and charges shall always, under substantially similar circumstances and conditions in respect of service of the same description, be charged equally to all persons and at the same rate, and the Board may by regulation declare what shall constitute substantially similar circumstances and conditions.
(2) The taking of tolls, rates and charges contrary to the provisions of this Section and the regulations made pursuant thereto is prohibited and declared unlawful. R.S., c. 380, s. 67.
A publication of Pikes Peak Citizens for Life LifeLine April 2012 “Preventative Care?” $1.00 Abortion Payment The “birth control” pill – along with all its The Dept of Health and Human Services (HHS) injectable and implantable counterparts – IS has issued a “final” rule regarding the establish-ment of the state health care exchanges required und