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Charter - s.15 Discrimination - 'Partial'. McQuade v. Canada (Attorney General)
In McQuade v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed a class plaintiffs' certification motion appeal, this where they "sought certification of a class proceeding, as representative plaintiffs, on behalf of a class of current and former regular members of the RCMP with an Operational Stress Injury".
Here the court considers a Charter s.15 civil claim (discrimination in mental versus physical disability), here in the context of whether the federal CLPA s.9 ['Special Provisions respecting Liability - No proceedings lie where pension payable'] applied to bar some or all of the class proceeding - though only on the preliminary 'some basis in fact' [the obverse of the 'plain and obvious' that it would fail standard] class certification standard:[79] More fundamentally, I do not agree with the Federal Court’s conclusion that a Charter claim premised on the same facts as a tort claim which is barred by section 9 of the CLPA will necessarily be similarly barred. The cases cited do not stand for this proposition.
[80] In Prentice v. Canada, 2005 FCA 395, [2006] 3 F.C.R. 135 [Prentice], the plaintiff member of the RCMP was entitled to compensation for injury suffered from various peace-keeping missions and sought damages from the RCMP, claiming a breach of his rights under section 7 and subsection 15(1) of the Charter. The Federal Court of Appeal granted a motion to strike the statement of claim, having determined that the plaintiff’s Charter claims were, when "“stripped of [their] artifices”", a disguised civil action against the Crown, prohibited by sections 8 and 9 of the CLPA: Prentice at paras. 69, 70.
[81] Similarly, in Lafrenière, the appellant received disability awards relating to his service in the Canadian Armed Forces and sought further damages from the Crown, based on alleged breaches of various Charter rights. This Court confirmed that the entire claim should be struck based on section 9, and cautioned that the real nature of the action must be determined, not the characterization of the wrong by an artful pleader: Lafrenière at para. 60. The Court concluded that the plaintiff’s Charter complaints were completely unsupported, a disguised action in liability against the Crown, and prohibited by section 9 of the CLPA.
[82] These decisions tell us that there must be an inquiry as to whether the Charter claim is a "“real”" Charter claim or another type of claim, such as a tort claim, dressed up as a Charter claim. If the latter, and the claim based on its true character would be barred by section 9, then it necessarily follows that the disguised Charter claim would also be barred.
[83] While the respondent submits that the Federal Court found the Charter claim to be a disguised civil claim, I disagree. The Federal Court concluded that because the Charter claim and the systemic negligence claim were premised on the same facts, the Charter claim was also barred: Reasons at para. 83. According to the Federal Court, the nature of the claim does not matter: "“[s]ection 9 of the CLPA applies to the whole fact situation”": Reasons at para. 78, citing Kift v. Canada (Attorney General), 2003 CanLII 11719 (ON SC), [2002] O.J. No. 5448 (QL/Lexis) at para. 9, 2002 CarswellOnt 8593 (WL) (S.C.J.).
[84] The cases cited by the Federal Court do not stand for this proposition either. The "“same set of facts”" framework, while appropriate in the context of a tort claim, does not clearly apply to determine whether a Charter claim may be barred by section 9.
[85] Uncertainty regarding the application of section 9 of the CLPA to a Charter claim was expressed in Dumont. This Court concluded in the context of a section 9 challenge to a claim under section 7 of the Charter, that in the event of a Charter breach "“it is far from certain that section 9 of the Act can be relied upon to exclude a fair and appropriate remedy”", and that it would be up to the judge responsible to determine whether it would be appropriate to add further compensation: Dumont at para. 78.
[86] In Prentice, this Court did not opine on whether, even if there were a Charter violation, the action would be barred by Crown immunity: at para. 77. Similarly, in Lafrenière this Court did not conclude that section 9 bars a Charter claim as on the facts of the case, there was no real Charter claim. As the Court observed (at para. 49): "“The Supreme Court of Canada, like this Court, has not yet had an opportunity to decide the substantive question as to whether the immunity provided for in section 9 of the CLPA also applies to remedies sought under the Charter.”"
[87] Sherbanowski v. Canada, 2011 ONSC 177 [Sherbanowski], also cited by the Federal Court, provides some support for the view that section 9 can bar a Charter claim on the same basis as a tort claim. The Ontario Superior Court determined that the plaintiff’s claims of negligence, breach of fiduciary duty, breach of contract, misrepresentation and breach of Charter rights were barred by section 9 as they had the same factual basis as the plaintiff’s disability pension: Sherbanowski at paras. 43-44. See also Gervais c. R., 2019 QCCS 1087 at paras. 74-76. Two recent cases of the Federal Court relied on the motion judge’s analysis here to reach a similar conclusion: Dunn at paras. 109-111; Fowler at para. 18.
[88] The unsettled state of the law regarding whether the appellants’ subsection 15(1) Charter claim (assuming it were properly pleaded) would be barred by section 9 of the CLPA ought to have been considered by the Federal Court. This alone would have weighed in favour of a determination that it was not "“plain and obvious”" that there was no reasonable cause of action based on subsection 15(1) of the Charter: Nunavut Tunngavik Incorporated et al. v. The Commissioner of Nunavut et al., 2024 NUCA 9 at paras. 23-24; Mohr v. National Hockey League, 2022 FCA 145, [2021] 4 F.C.R. 465 at para. 52. . Michel v. Canada (Attorney General)
In Michel v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal partially allowed an appeal, here from a denied class action certification motion that resulted when "the Federal Court declined to allow the plaintiffs leave to amend their Third Amended Statement of Claim (the Statement of Claim) and to reapply for certification".
The court considered 'partial discrimination' (SS: a better term might be 'inchoate' discrimination) - the concept that sub-classes of a larger group (eg. pregnant women) can be fully discriminated against, while the larger class (eg. women) are only 'partially' discriminated against:[87] To establish a breach of section 15 of the Charter, it is not necessary that all members of a protected group be negatively impacted by the impugned law or government practice or be affected by them in the same way at step one of the section 15 test.
[88] The Supreme Court has recognized that so-called "“partial discrimination”" satisfies section 15. The relevant underlying jurisprudence was summarized relatively recently by Justice Abella in paragraphs 72–75 of Fraser, where she noted that "“claimants need not show that the criteria, characteristics or other factors used in the impugned law affect all members of a protected group in the same way”" (at para. 72). As noted by Justice Abella in Fraser, this principle is rooted in two seminal cases from human rights jurisprudence, Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, 1989 CanLII 96 [Brooks] and Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, 1989 CanLII 97 [Janzen].
[89] In Brooks, the Supreme Court held that "“[t]he fact that discrimination is only partial does not convert it into non‑discrimination”" (at 1248, quoting James MacPherson, "“Sex Discrimination in Canada: Taking Stock at the Start of a New Decade”" (1980) 1 C.H.R.R. C/7 at C/11). The Court there found that a plan that denied benefits to pregnant women was discrimination against women more generally, stating (at 1247) that it was:... not persuaded by the argument that discrimination on the basis of pregnancy cannot amount to sex discrimination because not all women are pregnant at any one time. While pregnancy-based discrimination only affects part of an identifiable group, it does not affect anyone who is not a member of the group. [90] To similar effect, in Janzen, the Supreme Court held that the sexual harassment of two female employees was discrimination on the basis of sex. The Court rejected the employer’s argument that sex discrimination had not occurred because only some of the female employees had been sexually harassed. Chief Justice Dickson held that discrimination need not be equal across the class (at 1288–89):While the concept of discrimination is rooted in the notion of treating an individual as part of a group rather than on the basis of the individual’s personal characteristics, discrimination does not require uniform treatment of all members of a particular group. It is sufficient that ascribing to an individual a group characteristic is one factor in the treatment of that individual. If a finding of discrimination required that every individual in the affected group be treated identically, legislative protection against discrimination would be of little or no value. It is rare that a discriminatory action is so bluntly expressed as to treat all members of the relevant group identically. In nearly every instance of discrimination the discriminatory action is composed of various ingredients with the result that some members of the pertinent group are not adversely affected, at least in a direct sense, by the discriminatory action. To deny a finding of discrimination in the circumstances of this appeal is to deny the existence of discrimination in any situation where discriminatory practices are less than perfectly inclusive. It is to argue, for example, that an employer who will only hire a woman if she has twice the qualifications required of a man is not guilty of sex discrimination if, despite this policy, the employer nevertheless manages to hire some women. [91] These concepts were imported into the Charter context in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. There, the Supreme Court, citing the above human rights jurisprudence, stated "“that differential treatment can occur on the basis of an enumerated ground despite the fact that not all persons belonging to the relevant group are equally mistreated”" (at para. 76).
[92] The fact that partial discrimination may violate section 15 of the Charter has also been recognized by several appellate courts: see, e.g., Stadler v. Director, St Boniface/St Vital, 2020 MBCA 46 at para. 75, leave to appeal to SCC refused, 39269 (26 November 2020); Jacob v. Canada (Attorney General), 2024 ONCA 648 at para. 104; Haseeb at paras. 67–68; Brink at para. 84.
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