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What is Considered Discrimination Under the Quebec Charter?

November 10, 2023

Ward v. Québec, 2021 SCC 43 

Commission on Human Rights and Youth Rights

October 29 2021 - The Supreme Court of Canada dealt with a rather high-profile case, Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, between a comedian, Ward, and a singer, Gabriel (the Commission was acting on his part); the case focused on Ward’s comedy routine which disparaged multiple public figures, namely Gabriel, who was in secondary school at the time. The nature of the comments and impersonations were in question, as Gabriel has a disability, Treachers Collins syndrome. Gabriel’s parents brought the action forward, filing a complaint with the Commission; the Commission determined there was a basis for discrimination and moved the proceeding along to the Tribunal. 

What Elements Prove Discrimination?

The Human Rights Tribunal considered three elements required to prove discrimination: (1) a distinction (2) based on a prohibited ground (3) that has the effect of nullifying or impairing the equal recognition or exercise of a human right or freedom [para. 16]. The Tribunal found that Ward’s comments about Gabriel satisfied all three requirements, and did not accept his freedom of expression defence, as his conduct was seen to have “exceeded the limits of what a reasonable person can tolerate in the name of freedom of expression” [para. 17]. Further, Ward was ordered to pay moral and punitive damages at $35,000 total. 

Appealing the Verdict

Ward appealed with the support of an appeal lawyer; the majority of the Court of Appeal dismissed the appeal and upheld the tribunal’s decision, with one dissenting justice pointing out the potential errors the tribunal had made in excluding “comparative or contextual analysis” in order to accurately find that Ward’s comments constituted different treatment [para. 21]. 

The Supreme Court of Canada allowed the appeal, finding that the comments were not discriminatory because they did not fulfill the elements of a discrimination claim as outlined in the Quebec Charter. Specifically, s.10 of the Quebec Charter states:

 “Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.”

Proving Discrimination in Quebec

In order to sufficiently prove that discrimination did take place, the three elements considered by the Human Rights Tribunal must be proven; in addition to this, it must be considered whether the right to protecting and maintaining one’s dignity is in conflict with the freedom of speech and, if so, whether the speech provokes animosity or hatred towards the complainant due to a prohibited ground of discrimination outlined in the Quebec Charter. 

From the court document: 

[4]                              It is important to begin by noting that this question draws attention to a trend by the Commission and the Tribunal, in their decisions, to interpret their home statute, the Quebec Charter, as giving them jurisdiction over cases involving allegedly “discriminatory” comments made by individuals, either in private or in public. With respect, we are of the view that this trend deviates from this Court’s jurisprudence and reflects a misinterpretation of the provisions at issue in this case, particularly ss. 4 and 10 of the Quebec Charter, which guarantee, respectively, the right to the safeguard of dignity and the equal recognition and exercise of human rights and freedoms, including in a context where expression is allegedly “discriminatory”. It leads to the suppression of expression whose content is perceived to be discriminatory and to significant monetary awards against the speakers.

[5]                              It must be recognized at the outset that the Quebec Charter, which elevates freedom of expression to a fundamental freedom, was not enacted to encourage censorship. It follows that expression in the nature of rude remarks made by individuals does not in itself constitute discrimination under that statute. But this does not mean that the Quebec Charter can never apply to expression of this kind in very specific circumstances. In this appeal, we therefore wish to clarify the legal framework that applies to a discrimination claim in a context involving freedom of expression.

Pursuing Discrimination Cases in Ontario with Karrass Law

If you suspect that discrimination is at play and costing you in Ontario, contact Karrass Law to get legal advice from leading civil lawyer Robert Karrass. Our team of legal experts will carefully assess the details of your case as it pertains to Ontario law and Canada’s Charter of Rights and Freedoms. To learn more about, book a consultation with Karrass Law.


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