Premature Justification: The Place of Comparator Group Analysis in Discrimination Law in Canada and New Zealand

Abstract

Despite its status as a fundamental concept in human rights law, what constitutes discrimination has tended to elude categorical definition in either New Zealand or Canadian law. The prevailing approach toward discrimination accepts it as an inherently comparative concept, and despite suggestions by some that discrimination could be re-framed in a non-comparative manner, this does not appear appropriate for every circumstance given the structure of much discrimination legislation. If discrimination continues as a comparative concept, then some form of comparison is necessary in determining prima facie discrimination. Comparator group analysis, while criticised by some, appears to be a valuable method of analysis in the first step of determining discrimination, but should never replace a more nuanced evaluation of the deeper issues behind an allegedly discriminatory law. Mirror comparison analysis especially has the effect of allowing for premature justification of disputed legislation, and unquestioning acceptance by the courts of such disputed policy. Comparator groups which include as part of their characterisation the disputed point of alleged discrimination result in building it implicitly into the comparator group itself, in a way that views the chosen comparator as the only possible comparison and which lends legitimacy to the alleged purpose without considering how accurate or meaningful the distinction is when considered against the situational background of the case. To use comparator analysis as the sole assessment mechanism allows for superficial considerations of the claimant's situation which denies them the right to have the court question any problematic assumptions and fully address the underlying legitimacy of the law. Recent cases in both New Zealand and Canada indicate the evolving use of comparator group analysis not as a formal, simplistic and definitive approach, but as a flexible tool within a spectrum rather than the definitive approach. It is possible that a move away from formal comparator group analysis, while maintaining a simplified approach toward a consideration of comparison, could be appropriate and apt. Viewing comparator group analysis not as a hard and fast rule, but as a flexible tool which can expand or contract as needed, or as one factor within a spectrum rather than the definitive approach, may be a useful way of approaching this analytical method.