Section 67(1), Public Utilities Act, R.S.N.S. 1989 c. 380, which prohibits the Nova Scotia Utility and Review Board from setting a rate for low income consumers different from that chargeable to other consumers for the same circumstances and conditions respecting electrical service, was found not to discriminate by adverse effect based on the listed categories of sex, race, national or ethnic origin, age and disability in section 15(1) of the Charter of Rights and Freedoms and the recognized analogous category of marital status. Poverty was not considered an analogous ground under section 15(1) Charter.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Poverty – Charter of Rights and Freedoms – Utility services – Electricity rates – Judicial review – Compliance with legislation

Boulter v. Nova Scotia Power Inc., [2009] N.S.J. No. 64, 2009 NSCA 17, Nova Scotia Court of Appeal, February 13, 2009, J.W.S. Saunders, M.J. Hamilton and J.E. Fishaud JJ.A.

The appellants applied to the Nova Scotia Utility and Review Board for an order that section 67(1), Public Utilities Act, which prohibited the Board from setting a rate for low income consumers different than the rate chargeable to other consumers for the same circumstances and conditions respecting electrical service, discriminated based on poverty, which is an analogous ground under section 15(1) of the Charter. Alternatively, the appellants argued that women, racial minorities, recent immigrants, the aged, the disabled, single mothers and their children were disproportionately represented among the poor, and contended that section 67(1) discriminated by adverse effect based on the categories of sex, race, national or ethnic origin, age and disability in section 15(1) and the recognized analogous category of marital status.

The Board determined that the Public Utilities Act did not give anyone, in either “persons in poverty” comparator group or “persons not in poverty” comparator group “affordable energy”. The rates were based on Nova Scotia Power Inc.’s costs plus reasonable return, not the consumer’s ability to pay. The Act relieved consumers in both groups from the effects on price and supply of unchecked monopolistic market power. Accordingly, in the Board’s view, the claimants had not proven that the Act imposed differential treatment between those living in poverty and those not living in poverty. The Board dismissed the Charter challenge.

The issues before the Court of Appeal in reviewing the Board’s decision were whether poverty could be considered an analogous ground under section 15(1) of the Charter and whether, by excluding the option of an income based rate assistance program, section 67(1), Public Utilities Act, created a distinction based on poverty.

In deciding the first issue, the Court applied the test in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, which required consideration of whether poverty is a personal characteristic that either (1) is actually immutable, or (2) is constructively immutable because it is changeable at an acceptable cost to personal identity or, put differently, the government has no legitimate interest in expecting the individual to change. The Court held that poverty was not a personal characteristic under Corbiere because it was not immutable or constructively immutable.

The Court held that financial circumstances can change and individuals can enter and leave poverty or gain and lose resources. Economic status, in the opinion of the Court, was not an indelible trait like race, national or ethnic origin, colour, gender, or age. Further, the government has a legitimate interest, not just to promote affirmative action that would ameliorate the circumstances attending an immutable characteristic, but to eradicate that mutable characteristic of poverty itself. That objective is shared by those living in poverty. Economic status, poverty or wealth, is not an adopted emblem of identity like religion, citizenship or marital status, that the individual observes peacefully free of government meddling. Thus, in the Court’s opinion, poverty does not suit the legal pattern for an analogous ground. Further, the Court found that the comparator analysis did not establish that the Public Utilities Act created a distinction based on sex, race, national or ethnic origin, age, disability or marital status.

The claimants attempted to circumvent this analysis suggesting that while relevant to direct discrimination, it is supplanted for adverse effect to discrimination by a need to show only that the Public Utilities Act failed to ameliorate the over representation of section 15(1) protected groups among the poor. The Court disagreed with this contention holding that the comparator analysis applied generally to section 15(1) claims for either direct or adverse effect to discrimination. The analysis requires consideration of a distinction by comparing the claimant to a comparator. It is necessary even for adverse effect discrimination that the claimants’ group or subgroup be treated differently than the comparator group, whose members do not have the protected characteristic but are otherwise similar to those in the claimant group or subgroup.

The Court concluded that the claimants failed to establish that section 67(1) of the Public Utilities Act drew a distinction on a listed or analogous ground and dismissed the appeal.

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