Insurance and Human Rights: What Can Europe Learn from Canadian Anti-Discrimination Law?

DISCRIMINATION IN INSURANCE, Herman Cousy, Caroline Van Schoubroeck, eds., Maklu, Academia-Bruylant, 2007

25 Pages Posted: 20 Feb 2007 Last revised: 2 Apr 2015

See all articles by Trudo Lemmens

Trudo Lemmens

University of Toronto - Faculty of Law

Yves Thiery

K.U. Leuven University

Abstract

There has been considerable debate recently in Europe over the question whether and to what extent anti-discrimination provisions ought to protect people in the context of insurance. This chapter looks at how developments in Canadian anti-discrimination law could provide inspiration in the context of this debate.

The chapter first sketches a picture of Canadian equality law as it applies to insurance contracts. It notes two important developments that characterize Canadian law: the abandonment of the distinction between direct and indirect discrimination; and the emphasis, under a substantive equality approach, on the duty to accommodate. The chapter then discusses in detail how developments in Canadian equality law will likely affect a court's approach towards discrimination in the insurance context. The authors argue that as a result of decisions by the Canadian Supreme Court related to discrimination outside the context of insurance, insurance companies will face a higher burden of proof to justify distinctions made in the context of insurance. The chapter looks in detail at some of the recent case law in Canada which supports this argument. In the conclusion, the authors suggest how this approach could be used in the European context.

Keywords: discrimination, equality law, insurance, duty to accomodate, substantive equality

JEL Classification: K12, K1, K23, G22

Suggested Citation

Lemmens, Trudo and Thiery, Yves, Insurance and Human Rights: What Can Europe Learn from Canadian Anti-Discrimination Law?. DISCRIMINATION IN INSURANCE, Herman Cousy, Caroline Van Schoubroeck, eds., Maklu, Academia-Bruylant, 2007, Available at SSRN: https://ssrn.com/abstract=963696

Trudo Lemmens (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Yves Thiery

K.U. Leuven University ( email )

Tiensestraat 41
B-3000 Leuven
Belgium

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