Ten years have passed since the Supreme Court of Canada issued its rulings in and , but these decisions are still regarded as authority for what respondents must prove to justify prima facie discrimination. That being said, courts and tribunals have now applied this accommodation framework in hundreds of cases resulting in considerable jurisprudence on the subject. In this report, I begin by considering two recent Supreme Court of Canada decisions, and which, according to some, have changed the accommodation framework and lowered the high standard which and set for respondents. Next, I describe how adjudicators have interpreted and applied these two recent Supreme Court decisions in order to provide a sense of whether they are, in effect, lessening the onerous burden that was once put upon respondents. Lastly, I examine some of the obstacles facing complainants at this second stage of the discrimination analysis, obstacles which predate the and decisions and that continue to pose problems for rights claimants.
Having outlined the facts and holdings in and , I turn to the question of whether these cases have modified the standard which respondents must meet to justify prima facie discrimination.
Employment discrimination: age discrimination and …
The above discussion demonstrates that regardless of whether and lowered the standard that respondents must meet to justify prima facie discrimination, decision makers have frequently applied a lower standard—a standard for which there is no authority in the jurisprudence. What is clear is that while the onus is, in theory, on respondents at the second stage of the analysis, complainants have still encountered a number of obstacles at this stage.