Contents
The Legal Test for Proving Discrimination
Overview
The leading authority on proving discrimination in Canadian human rights law is the 2012 Supreme Court of Canada decision in Moore v. British Columbia (Education).
The Supreme Court of Canada clarified and simplified the test for establishing a prima facie case of discrimination. The decision moved the analysis away from formal distinctions and toward a practical assessment of whether a protected characteristic was a factor in adverse treatment.
The Moore Test
The Court held that an applicant must establish three elements:
- The applicant has a characteristic protected from discrimination
- The applicant experienced adverse treatment or impact
- The protected characteristic was a factor in the adverse treatment
If these elements are established, discrimination is made out on a prima facie basis.
What “a factor” means
The Court emphasized that the protected ground need not be:
- the sole cause
- the primary cause
It is sufficient if the protected characteristic was a contributing factor.
This is a critical point. Employers often defend cases on the basis that there were legitimate business reasons for the decision. That may be true, but it does not defeat the claim if the protected ground also played a role.
Focus on substance, not form
The Supreme Court rejected rigid or technical approaches to the analysis.
The proper question is whether the applicant has been denied a benefit or subjected to a burden in a manner that is connected to a protected ground.
The analysis must focus on:
- the actual impact on the individual
- the real substance of the conduct, not how it is characterized by the employer
Adverse impact discrimination
Moore is particularly important for confirming that discrimination includes both direct discrimination and adverse impact discrimination.
A neutral rule or policy may still be discriminatory if it has a disproportionate impact on a protected group.
The burden shifts
Once a prima facie case is established, the burden shifts to the respondent.
The employer must then justify the conduct, typically by showing:
- a bona fide occupational requirement
- that accommodation was provided to the point of undue hardship
Application in employment cases
In the employment context, the Moore test applies broadly to termination decisions, discipline, failure to accommodate, workplace policies and investigative processes.
The key issue is always the same: was the protected ground a factor in the adverse treatment?
Causation and evidence
Moore does not eliminate the need for evidence.
Applicants must still establish a factual basis to support the inference that a protected ground was a factor.
This may be done through direct evidence, circumstantial evidence or reasonable inferences drawn from patterns of conduct.
However, speculation or subjective belief is insufficient.
Relationship to recent cases
Recent tribunal decisions continue to apply Moore in a disciplined way.
Cases such as the Niagara coaching letter decision illustrate the point that even where adverse treatment is established, the claim will fail if there is no evidence connecting the conduct to the protected ground. This is reviewed subsequently.
Moore lowers the threshold from primary cause to a factor, but it does not eliminate the requirement of causation.
Conclusion
Moore remains the governing framework for discrimination claims in Canada.
The test is simple in formulation but demanding in application:
- identify the protected ground
- establish adverse treatment
- prove that the ground was a factor in that treatment
Absent that causal connection, the claim cannot succeed.