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Finally read Uber v Heller, and what struck me the most is how much more nuanced the majority's view of inequality and power dynamics is in this “classic case of unconscionability” as compared to the usual approach in equality rights cases. 1/7
Under s. 15 class, occupational status, and inadequate housing are not protected grounds. Capitalism and liberalism tell us these are not immutable characteristics, and that our courts can only remedy discrimination based on immutable characteristics. 2/7
As a result the Charter's equal rights protections are denied to Black, Indigenous and racialized peoples because of the economic barriers to putting forward the necessary statistical or expert evidence to link economic discrimination to protected grounds like race. 3/7
Uber is a welcome example of the majority, within the realm of private law, grounding inequality in an analysis of power, wealth distribution and taking an expansive view of the impacts of class and socio-economic disadvantage. 4/7
When assessing inequality of bargaining power, the majority in Uber emphasizes inequality should not be measured formalistically or have 'rigid limitations,' but at the very least includes "differences in wealth, knowledge or experience..." 5/7
The majority accepts that disadvantage can arise from "the contingencies of the moment," a far cry from the focus in s. 15 on immutable characteristics. 6/7
I think the framing of discrimination in s. 15 has a lot to gain from the majority's analysis. First and foremost, any inquiry into discrimination should begin with an assessment of power and its distribution, not 'immutability.' 7/7
