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Vriend v. Alberta, [1998] 1 SCR 493


Challenge of omission of sexual orientation from Alberta’s Individual Rights Protection Act by Vriend after he was dismissed from his employment for being gay. Legislative history showed it was a deliberate omission. Challenged under s.15.


Does a legislative omission fall under the ambit of the Charter?


Under-inclusive laws can be subject to Charter review and can violate rights.


*Threshold test: “Some matter within the authority of the legislature” which is the proper subject of a Charter analysis
*Argument that legislative omissions are outside the jurisdiction of the courts is refuted – court qualifies by saying deference is considered in s.1 analysis
**Also, this was a deliberate failure to act by the legislature
*Positive act encroaching on rights not required by s.32 – the Charter will be engaged even if the legislature refuses to exercise its authority (through oversight or omission)
*The applicability of a Charter challenge shouldn’t depend upon legislative form – would be illogical and unfair [legislative intent is not important]
**Want to avoid a “sphere of inaction” where the Charter does not apply because it has not been legislated – this is backwards violation
*Underinclusive laws can be subject to Charter review
**Does NOT impose positive obligations on State to initiate action against inequalities – just to fix the gap by looking at impact of law on particular group

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