Andrews v. Law Society of British Columbia
Encyclopedia
Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 is the first Supreme Court of Canada
case to deal with section 15
(equality rights) of the Canadian Charter of Rights and Freedoms
. In the case the court outlined a test, sometimes called the Andrews test to determine if there has been a prima facie violation of equality rights.
subject permanently resident in Canada, met all the requirements for admission to the provincial bar with the exception that he was not a Canadian citizen. Andrews brought a motion to strike down the requirement for citizenship on the grounds it violated s. 15 of the Charter.
At the Trial level, Supreme Court of British Columbia
held in favour of the Law Society. On appeal to the British Columbia Court of Appeal
the ruling was overturned.
The court held that section 42 of Barristers and Solicitors Act violated s. 15 and it could not be saved under s. 1. The majority was written by Wilson J. with Dickson C.J. and L'Heureux-Dubé J. concurring.
In dissent McIntyre J. and Lamer J. disagreed on the point of the s. 1 analysis, believing that it would be upheld on the basis of "reasonable limit". The opinion on the "test", however, was unanimous.
Irwin Nathanson, Q.C., and Rhys Davies, for the appellant Law Society of British Columbia.
Joseph Arvay
, for the appellant Attorney General of British Columbia.
Elizabeth C. Goldberg and David Lepofsky, for the intervener the Attorney General for Ontario.
Jean-Yves Bernard and Julie Hudon, for the intervener the Attorney General of Quebec.
Alison Scott, for the intervener the Attorney General of Nova Scotia.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
Richard F. Taylor, for the intervener the Attorney General for Alberta.
P. B. C. Pepper, Q.C., for the intervener the Federation of Law Societies of Canada.
D. G. Cowper and W. S. Martin, for the respondents.
Mary Eberts and Gwen Brodsky, for the intervener the Women's Legal Education and Action Fund.
J. David Baker, for the intervener the Coalition of Provincial Organizations of the Handicapped.
Steven Barrett, for the interveners the Canadian Association of University Teachers and the Ontario Confederation of University Faculty Associations.
As such, the suggestion to apply the same legal rules to groups or individuals who are "similarly situated" ("similarly situated test" where likes a treated alike and dislikes differently) was firmly rejected. The case of Bliss v. Canada, a pre-Charter SCC case where a pregnant woman was denied employment benefits, was considered as an example of the problems with such an approach.
Instead the court concentrated on the prohibition on discrimination.
The court states the discrimination must be based on an "enumerated or analogous grounds", and the individual seeking to strike down a law must demonstrate the existence of differential treatment based on either of the two grounds. From there the onus shifts to the Crown who must show the law justified under s. 1.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
case to deal with section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
(equality rights) of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. In the case the court outlined a test, sometimes called the Andrews test to determine if there has been a prima facie violation of equality rights.
History
Andrews, a BritishUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
subject permanently resident in Canada, met all the requirements for admission to the provincial bar with the exception that he was not a Canadian citizen. Andrews brought a motion to strike down the requirement for citizenship on the grounds it violated s. 15 of the Charter.
At the Trial level, Supreme Court of British Columbia
Supreme Court of British Columbia
The Supreme Court of British Columbia is the superior trial court for the province of British Columbia. The BCSC hears civil and criminal law cases as well as appeals from the Provincial Court of British Columbia. Including supernumerary judges, there are presently 108 judges...
held in favour of the Law Society. On appeal to the British Columbia Court of Appeal
British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
the ruling was overturned.
Judgment
The issue put to the court was whether the requirement of Canadian citizenship for admission to the British Columbia bar is an infringement upon or denial of the equality rights guaranteed by s. 15(1) of the Charter. And if so, whether it is justified under s. 1.The court held that section 42 of Barristers and Solicitors Act violated s. 15 and it could not be saved under s. 1. The majority was written by Wilson J. with Dickson C.J. and L'Heureux-Dubé J. concurring.
In dissent McIntyre J. and Lamer J. disagreed on the point of the s. 1 analysis, believing that it would be upheld on the basis of "reasonable limit". The opinion on the "test", however, was unanimous.
Important Figures
List of important figures in the appeal:Irwin Nathanson, Q.C., and Rhys Davies, for the appellant Law Society of British Columbia.
Joseph Arvay
Joseph Arvay
Joseph Arvay, QC is a Canadian lawyer who has argued numerous landmark cases involving civil liberties and constitutional rights. In 2000 he was awarded the Walter S. Tarnopolsky Human Rights Award; described by Madam Justice Michèle Rivet as "one of Canada's most tireless civil rights and human...
, for the appellant Attorney General of British Columbia.
Elizabeth C. Goldberg and David Lepofsky, for the intervener the Attorney General for Ontario.
Jean-Yves Bernard and Julie Hudon, for the intervener the Attorney General of Quebec.
Alison Scott, for the intervener the Attorney General of Nova Scotia.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
Richard F. Taylor, for the intervener the Attorney General for Alberta.
P. B. C. Pepper, Q.C., for the intervener the Federation of Law Societies of Canada.
D. G. Cowper and W. S. Martin, for the respondents.
Mary Eberts and Gwen Brodsky, for the intervener the Women's Legal Education and Action Fund.
J. David Baker, for the intervener the Coalition of Provincial Organizations of the Handicapped.
Steven Barrett, for the interveners the Canadian Association of University Teachers and the Ontario Confederation of University Faculty Associations.
Reasoning
The court first defined a general approach to the equality guarantee. The court stated that the section is not a general guarantee of equality, rather it is only concerned with equal application of the law. It was further stated that it should be recognized that not all differences in treatment will result in inequality and that identical treatment may result in inequality.As such, the suggestion to apply the same legal rules to groups or individuals who are "similarly situated" ("similarly situated test" where likes a treated alike and dislikes differently) was firmly rejected. The case of Bliss v. Canada, a pre-Charter SCC case where a pregnant woman was denied employment benefits, was considered as an example of the problems with such an approach.
Instead the court concentrated on the prohibition on discrimination.
- . . . discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classified. (p. 280)
The court states the discrimination must be based on an "enumerated or analogous grounds", and the individual seeking to strike down a law must demonstrate the existence of differential treatment based on either of the two grounds. From there the onus shifts to the Crown who must show the law justified under s. 1.