Paper – Comparing the Incomparable in Human Rights Claims: Moore Guidance, 2013
Paper presented at the Ontario Bar Association’s 2013 Annual Human Rights Update: Keeping on Top of Key Developments Part II.
This paper focuses on the Supreme Court of Canada decision in Moore v. British Columbia (Ministry of Education) and the use of a strict comparative analysis when framing and adjudicating statutory human rights claims.
In this paper, ARCH provides a brief history of the analyses used both in the Charter and statutory human rights frameworks. ARCH also provides a review of the Moore and First Nations Child and Family Caring Society decisions, several decisions released prior to Moore which demonstrate the devastating effects of importing a strict comparator analysis into statutory human rights adjudication, and a small sampling of recent decisions from the Human Rights Tribunal of Ontario (HRTO) following the Moore decision where comparative elements exist. Lastly, ARCH argues that a comparator analysis is particularly problematic in duty to accommodate disability cases.
Available in PDF and RTF formats.