"[1] The 1989 case Andrews v. Law Society of British Columbia[2] was the first Supreme Court of Canada judgment to articulate the framework for analysis of Charter equality claims.
164 Ten years later, the Supreme Court expanded on the section 15 equality analysis in Law v. Canada (Minister of Employment and Immigration),[3] stating that identification of a comparator group was necessary to determine whether the claimant had experienced discrimination.
[8] The complaint was heard in front of the Canadian Human Rights Tribunal, which ruled that there was no comparator group available to differentiate the welfare services on-reserve First Nations children received.
The 2011 Supreme Court case of Withler v. Attorney General (Canada)[9] was a section 15 Charter class action against federal legislation for alleged age discrimination.
The Court clarified that requiring a comparator group was not only inconsistent with leading jurisprudence, legislation and international commitments, but also affirmed that it "may even thwart the objective of substantive equality – the animating purpose of both section 15 of the Charter and the Canadian Human Rights Act.
"[8]: para 362 A number of scholars and organizations have criticized the comparator group analysis as favouring a formal approach to equality rather than a substantive one.
[10][11] A substantive equality approach recognizes, as the Court did in Andrews, that discrimination can be prevented or remedied by differential treatment according to the specific needs of the person or group targeted.
[13]: 81 For example, a deaf person who prefers to communicate using speech and lip-reading could be discriminated against by a government policy providing only sign-language interpretation, and no closed-captioning, during parliamentary debates.
Jurisprudence suggests that because of Aboriginal peoples' unique place in Canadian society, finding an appropriate comparator group is problematic.[8]: par.
The Federal Government has enacted various legislation that mandates all welfare services provided to on-reserve First Nations children be of the same standards as those offered by the reference province.[8]: par.