Boulter v Nova Scotia Power Incorporation, 2009 NSCA 17 (CanLII) (13 February 2009) This decision of the Nova Scotia Court of Appeal considered whether discrimination on the grounds of poverty is contrary to the right to equality under the Canadian Charter of Rights. The Court held that poverty is not a prohibited ground of discrimination under the Charter of Rights and it is therefore lawful to discriminate against low income earners.
The decision also confirms that the comparator test must be used when determining whether conduct is directly or indirectly discriminatory under the Charter of Rights.
Under the Public Utilities Act, the Utility and Review Board is required to set the same power rates for all consumers of power, regardless of income. Boulter, the Affordable Energy Coalition and others ('the appellants') claimed that this requirement prevents the Board from setting lower rates for low income earners and so discriminates based on poverty. The appellants claimed that poverty is an analogous ground under s 15(1) of the Charter, which provides that:
"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."
Alternatively, the appellants argued that the failure to set a lower rate for low income earners indirectly discriminates against certain minority groups that are disproportionately represented among the poor, such as women, racial minorities, recent immigrants, the aged, people with disability, and single mothers and their children.
The individual appellants were representative of these groups and testified to the hardship caused by expensive electricity rates. One appellant, a single mother of one, gave evidence that she spends approximately 14% of her income on electricity. Further expert evidence showed that almost all people who rely on minimum wage earnings and all people who receive income assistance are unable to meet their basic needs, such as food, shelter and essential services, placing their health at risk.
The Court of Appeal followed the two-part test for showing discrimination under s 15(1) that was established in R v Kapp, 2008 SCC 41, which in turn restates the test in Law v Canada (Minister of Employment and Immigration),  1 SCR 497. The test is:
- 1. Does the law create a distinction based on an enumerated or analogous ground?
- 2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
In considering whether 'poverty' is an analogous ground, the Court of Appeal applied the test in Corbiere v Canada (Minister of Indian and Northern Affairs)  2 SCR 203, which is to consider whether the ground is 'a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity' and which 'we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law'.
Applying this test, Fichaud J held that poverty is not an analogous ground, as it is neither immutable nor is it something that the government should not expect us to change or which 'is changeable only at unacceptable cost to personal identity'. To the contrary, Fichaud J held that:
"Economic status is not an indelible trait like race, national or ethnic origin, color, gender or age. As to the second test, the government has a legitimate interest, not just to promote affirmative action that would ameliorate the circumstances attending an immutable characteristic, but to eradicate that mutable characteristic of poverty itself. That objective is shared by those living in poverty."
The Court then considered the appellants' complaint that the fixed power rate disproportionately disadvantages certain minority groups and so discriminates on listed and recognized analogous grounds under the Charter of Rights; namely, the grounds of sex, age, race, national or ethnic origin, disability or marital status.
To do this, the Court applied the 'comparator test'. That is, the Court identified and compared the claimant groups to comparator groups which
"mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground listed as the basis of the discrimination."
The appellants argued that the element of poverty should be removed from the comparator group. However, given that the Court had already decided that poverty is not an analogous ground under s 15(1), the Court refused to do so. As a result, the comparator group was held to simply be a power consumer without the enumerated or analogous trait. For example, when considering the disability claim the Court compared a disabled consumer with a non-disabled consumer of residential power.
On that basis, the Court held that the power rating process does not discriminate because it disadvantages all low income earners equally, regardless of sex, race, national or ethnic origin, age, disability or marital status. As stated by the Fichaud J, '[i]n each case, the claimant group and the comparator group both have substantial numbers living in poverty'.
The Court of Appeal held that the comparator test applies generally to claims for either direct or adverse effect (indirect) discrimination. The appellants had argued that if legislation perpetuates an existing disadvantage, then this is sufficient to prove that it indirectly discriminates (or causes an 'adverse effect distinction') under s 15(1). However, Fichaud J held that such an approach 'would afford simply a freestanding duty of affirmative action instead of what the Charter intends, a remedy for differential treatment (on protected grounds) that is discriminatory.'
Relevance to the Victorian Charter
Section 8(3) of the Victorian Charter protects the right to equality before the law and equal protection of the law without discrimination. However, 'discrimination' under the Charter is defined to mean discrimination on the basis of an attribute listed in s 6 of the Equal Opportunity Act 1995 (Vic) ('EO Act'). Poverty is not a listed attribute and, unlike the Canadian Charter of Rights, the Victorian Charter contains no scope for establishing 'analogous' grounds of discrimination in addition to those that are explicitly listed in the EO Act. As a result, the right to equality under the Charter is more limited than that under the Canadian Charter of Rights, and a Charter claim of discrimination on the basis of poverty would be unlikely to succeed.
The decision is available at http://www.canlii.org/en/ns/nsca/doc/2009/2009nsca17/2009nsca17.html.
Melanie Schleiger is a lawyer with Lander & Rogers and a Board member of the Human Rights Law Resource Centre