Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

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Young v. Saanich Police Department, et al Page 40 resolve the issue. I must consider whether the policy had a more burdensome effect on Mr. Young because of his disability. [86] In Ontario (Human Rights Commission) v. Simpsons-Sears Ltd. (1985), 23 D.L.R. (4th) 321 at 332 (S.C.C.), McIntyre J. provided the following explanation of adverse effect discrimination in the context of employment policies: A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, "No Catholics or no women or no blacks employed here." There is, of course, no disagreement in the case at bar that direct discrimination of that nature would contravene the Act. On the other hand, there is no concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force. ... 2003 BCSC 926 (CanLII) It could be said that the CRHC has, for legitimate business reasons, adopted a policy that has had a disproportionate adverse effect on Mr. Young. The policy could be framed in various ways, but, in its essence, it dictates that tenants
Young v. Saanich Police Department, et al Page 41 whose marihuana smoking disturbs other tenants will be evicted. [87] Arguably, such a policy or conduct amounts to adverse effect discrimination. Though the rule, "No marihuana smoke" applies to all tenants equally, the effect of the rule is to impose a greater penalty or restrictive condition on Mr. Young because of his need to smoke marihuana, a characteristic 2003 BCSC 926 (CanLII) incidental to his disability. Mr. Young is, so the argument goes, by reason of this rule, effectively denied access to certain social housing. [88] I accept that such a finding (made possible only by the assumptions adopted at the outset) would establish the type of discrimination contemplated by s. 15, as defined by Iacobucci J. in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 88. The policy fails to take into account Mr. Young’s already disadvantaged position as a disabled person, resulting in substantively differential treatment between him and others on the basis of his need to smoke marihuana. The differential treatment is based on a characteristic incidental to his physical disability, which is an enumerated ground. Lastly, the differential treatment imposes a burden or withholds a benefit from Mr. Young in a manner that has the effect of perpetuating
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Young v. Saanich Police Department, 2003 BCSC 926 (CanLII).

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