LEAF and the Law Test for Discrimination

The 2004 paper “Leaf and the Law Test for Discrimination: An Analysis of the Injury of Law and How to Repair It” examines the flaws in the equality rights test set out in Law v. Canada and sets out LEAF’s preferred equality rights analysis.

In early 2002, LEAF’s National Legal Committee to take the initiative in examining the Law test, and to plan how best to respond to the problems with the test. It was decided that there is a need to strengthen and sharpen equality rights analyses, and re-invigorate our strategies in order to be effective in the current complicated equality context. To this end, LEAF sponsored a two-part Colloquium in September 2003 and February 2004 addressing the theme “In Pursuit of Substantive Equality.” The overall goal of the Colloquium was to generate provocative think pieces and discussion that would advance our equality analyses and develop strategies to achieve substantive equality. This Colloquium provided an opportunity for legal experts and community advocates (including academics, activists, lawyers and front-line workers interested in social justice issues) to meet to analyze the Law decision and to strategize about options for reform.

In addition to organizing, contributing to, and participating in the Law Colloquium, the National Legal Committee conducted regular study sessions at which it analyzed key components of the Law test.

All of this collective work product informed LEAF’s Supreme Court interventions, heard within a month of each other, NAPE (Newfoundland Association of Public Employees) v. Newfoundland, and Connor Auton v. British Columbia (Attorney General).

The paper provides a summary of the results of LEAF’s work on the Law project, including background on the case, problems with the discrimination test in Law and subsequent cases, LEAF’s guiding equality rights principles, and LEAF’s preferred equality rights analysis.

Download the paper below.