Race-Based Pricing: Canada’s Latest Form of Legalized Discrimination

Peter Shawn Taylor
December 5, 2019
Amidst the divisions cleaving Western society in the 1960s and 1970s, one thing seemingly everyone came to agree upon was the importance of equality before the law. But almost as soon as this hard-fought concept was universally accepted, it came under direct assault – often by its former champions. Today officially-sanctioned discrimination in the name of equality of outcomes is commonplace – and getting worse. Peter Shawn Taylor reports on the newest “Canadian value”: a Crown corporation charging different prices for different races.

We’re all equal. It says so right there on the first page of the Canadian Human Rights Act. All Canadians should have the opportunity to live their lives free from “discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

Got that? Discrimination in any form you can name – and probably a few you hadn’t even thought of – is strictly forbidden in Canada.

Well, not really. A few pages later, Canada’s vaunted human rights legislation drops any pretense to what is called formal equality and endorses a broad right to discriminate by any means conceivable, so long as such actions are meant to “prevent disadvantages that are likely to be suffered by, or eliminate or reduce disadvantages that are suffered by, any group.” Similar exceptions can be found in all provincial human rights codes and the Charter of Rights and Freedoms.

Officially sanctioned discrimination: special programs create opportunities open only to some people.

These carve-outs – what the Canadian Human Rights Commission (CHRC) calls “special programs” – are what make officially-sanctioned discrimination part of daily life in Canada. They permit employment equity programs to advertise positions exclusively for visible minorities or other privileged groups. They allow scholarships for women to attend university to study STEM subjects without making similar offers to young men to study nursing or education. They facilitate expensive accommodations for people with disabilities, as well as a broad range of other opportunities only some people can take advantage of, such as seniors’ discounts, student and family rates and even ladies’ night promotions at bars. This sort of special treatment is now part of the landscape in Canada.

But are we ready for race-based pricing?

Facebook recently carried ads announcing a peculiar race-based price reduction available only to certain travellers: “VIA Rail is offering a 33% discount for Indigenous people – a comfortable way to travel for less.” If you have an “Indian Status” card, or similar proof you’re Métis or Inuit, you can get your train ticket for less than those who don’t.

This racially-focused promotion is likely to come as a shock to many, but is apparently not new news. Despite its recent appearance on social media, VIA public relations advisor Karl-Philip Marchand Giguere explains that “the discount has been offered for a long time.” So long, in fact, he can’t say exactly when it first began. He does note, however, that in 2016 it was expanded from just Economy to cover all tickets except VIA’s luxurious Prestige class. The deal “is offered as part of our commitment to maintaining and enhancing relationships with Indigenous communities,” Giguere explained in an email. “It is the spirit of collaboration and reconciliation that drives us.”   

Regardless of what the spirit of reconciliation may cause a federal Crown corporation to do, charging different prices for people of different races will strike those millions of Canadians still quaintly committed to old-style equality before the law as unfair and outrageous. VIA’s race-based pricing scheme appears to be without parallel in the rest of the Canadian travel sector. Or any other commercial enterprise. As such, it must be seen as a dramatic and worrisome escalation in the attack on the principle that all Canadians deserve to be treated equally.

Pragmatically, it also opens a Pandora’s box of potential new forms of routine discrimination. Consider the precedent VIA’s discount sets. If race-based pricing becomes a broadly accepted method of addressing historical injustices or current financial disadvantage − or perhaps simply the means for businesses to “maintain and enhance relationships” with any particular group − then Canadian consumers could soon find themselves faced with lengthening menus of prices that vary by heritage and claims to redress.

Should businesses in locations with a high proportion of visible minorities – Surrey, B.C. or Brampton, Ontario, for example – be allowed to post discounts to their non-white clientele? There is a substantial economic literature regarding the financial difficulties faced by new immigrants to Canada. Are they therefore deserving of a bargain at the gas station or grocery store? Perhaps one not available even to people of the same ethnicity who were born in Canada? Given the long record of historical disadvantages faced by Chinese immigrants imported to help build Canada’s transcontinental railway in the late 1800s, arguably there’s no stronger candidate for VIA’s 33 percent discount than Chinese-Canadians.

And will all these special prices remain mere lists, or become complex matrices in which those with “intersecting” claims to victimization pile one discount upon the other like so many coupons at the checkout counter? The mind boggles.

Queen’s University law professor Bruce Pardy laments how true equality is degenerating into different rules for different groups.

“I can understand why people may find it objectionable to vary prices by race, as we aren’t used to seeing discrimination in this form,” acknowledged Bruce Pardy, a law professor at Queen’s University in Kingston, Ontario, in an interview. “But,” he points out, “it is not inconsistent with the already very objectionable idea that you can have different rules for different groups of people across a broad range of other areas.”

Pardy notes that the concept of formal equality, in which all individuals are promised equal treatment before the law, comes with a long British common-law pedigree and might be considered one of the hardest-fought achievements of modern Western civilization. It was also once the defining goal of the U.S. Civil Rights movement. In recent decades, however, it has been increasingly displaced by what is benignly called “substantive equality,” in which the objective is sameness of outcomes. “These two things are obviously incompatible with each other,” says Pardy. “You can’t have equality in the application of the law, and also seek to make everyone’s outcomes equal.” The Canadian legal system, Pardy notes regretfully, has put its weight behind the second of the two.

Besides being patently unequal, attaching special privileges to certain groups also weakens one of the most important ties holding Canadians together. “It is becoming a source of division in society,” Pardy warns. “A lot of people have lost sight of the bigger picture when it comes to equality before the law. And once that’s lost, it’s hard to get it back.” Pardy cites Thomas Sowell, the noted conservative African-American author and columnist: “When people get used to special treatment, equal treatment seems like discrimination.”

Equality of every person before the law, regardless of race or other innate criteria – what progressives today condescendingly dismiss as “formal equality” – was one of Western civilization’s hardest-won achievements.

While Canadians in general have considerable sympathy and respect for Indigenous people, want to see them succeed and are willing to help, the notion that certain races should be asked to pay more than other races ought to strike all open-minded citizens as noxiously and dangerously unfair. With so much talk of defining Canadian values during the recent federal election, surely we can all agree that charging some races more than others is most certainly not a Canadian value. It may even violate federal human rights legislation.

According to CHRC documentation, special programs designed to further substantive equality must meet several criteria, including that they should be “temporary” and that “there must be a demonstrable connection between the program and its intended goals.” Consider the case of a female-only scholarship for STEM studies. The underlying premise may be highly suspect, since there is considerable evidence that career preferences vary voluntarily by gender and are not the result of patriarchal conspiracies. Nonetheless, there is at least a putative link between the argument that women are underrepresented in STEM and the purpose of the award. And if it can ever be proven that STEM programs have become 50 percent female, then presumably scholarships of this sort will be terminated. The same goes for employment equity programs, which seek to push certain groups into job areas where they are not currently well-represented.

Raced-based pricing: will Via Rail’s 33% Indigenous discount unleash a flood of imitators throughout the economy?

There is, however, no obvious connection between the many real problems faced by Indigenous people on and off reserves and the supposed remedial action of cheap train travel. Rather than addressing substantive issues such as a lack of employment opportunities in rural Canada, resource development miasma, social diseases such as addiction or governance issues on reserves, VIA’s race-based pricing system seems a rather transparent attempt at expiating white/corporate guilt. The firm is attempting to portray itself as a friend to the Indigenous community, but in a way that is decidedly unfriendly to all its other customers. The longstanding nature of the discount also argues against any claims to it being “temporary.”

Aside from eroding hard-won legal principles, corrupting existing laws and creating needless social stigma through discriminatory treatment, there’s also the issue of dollars and cents. One-way business class from Toronto to Ottawa can cost $300; a couple travelling on VIA’s famous cross-country “The Canadian” from Toronto to Vancouver can expect to pay over $6,000 return for a modest sleeper cabin. Cutting their train fare by a third would be an attractive proposition for folks of all races.

If VIA’s discriminatory pricing regime were to become the subject of a complaint to the CHRC, the firm would have to prove how its discount directly addresses ongoing native conditions. It seems a tall order. Unfortunately, while VIA’s native discount appears to fail the specific criteria for a special program under federal human rights legislation, its odds of surviving are still very good. Canada’s human rights tribunals and court system have proven themselves uninterested in defending formal equality.

Children vs. seniors: only one “special” (i.e., discriminatory) human rights program has ever been successfully challenged. The kids lost.

CHRC senior counsel Brian Smith admitted in an interview that he’d never heard of VIA’s race-based pricing system and could not offer an opinion on whether it falls afoul of his enabling legislation. But asked about the procedure for complaining about VIA’s policy, he could recall only one previous example of a successful challenge to a special program. In 1994 an Ontario health care policy that offered financial help to children 18 and under to purchase vision-assistance devices was held to discriminate against senior citizens. “There is surprisingly little case law about special programs,” Smith notes.

What case law there is suggests judges and human rights tribunal adjudicators are dismissive of anyone who dares challenge the orthodoxy of special programs for special groups. In 2012, for example, Kyle Maclean of London, Ontario complained to the Ontario Human Rights Commission about a “ladies night” promotion at the Barking Frog bar that required men to pay a $20 cover charge but only charged women $10. While a gender-variable entrance fee seems a rather obvious violation of basic fairness principles, tribunal adjudicator Mark Hart nearly laughed Maclean out of the room.

Given the under-representation of women throughout management and politics, Hart blustered, it’s inconceivable that a man could ever claim to be hard done by. “In my view, the notion that charging a lower cover charge for women somehow demeans men as a gender in the overall societal context does not bear scrutiny,” Hart wrote. The societal context of this case – an assumption that permeates the human rights system – is that men can never be considered victims of discrimination. (Unless, of course, they fall into some other special group.)

Hart posited the whole purpose of a ladies’ night is to “increase the attendance of men because of the presence of more women” attracted by their cut-rate entrance fee. Having to pay a higher cover change, he implies, is thus an investment in male bar patrons’ odds of getting lucky. While there may be some truth to this, it’s unfortunate how little interest the human rights business shows in defending the basic principle that everyone should be treated equally regardless of age, sex, religion, gender identity, etc. – as our laws proclaim.

Similarly, in 2016 Joseph Bate, a white, able-bodied male employee of the Canada Revenue Agency (CRA), argued in Federal Court that he was discriminated against because of his employer’s employment equity program. Appealing an earlier CHRC decision that went against him, Bate pointed out that 102 of the 107 workers in his office already belonged to a designated group requiring preferential treatment: women, Indigenous people, visible minorities and/or persons with disabilities.

The Barking Frog’s “ladies night”promotion was not seen by Ontario’s Human Rights Commission as fundamentally unfair to men.

Given that his office was clearly over-represented by all these supposedly disadvantaged populations, Bate asserted that the ongoing employment equity campaign should be immediately wound down. Indeed, it should also have been declared a triumphant success. Nonetheless, the court upheld the tribunal’s dismissal. The crucial issue, the judge declared, is not how one particular office or even the overall agency may be doing in terms of employing certain groups. So long as it can be proven that members of a designated group are disadvantaged somewhere − in any region or any job category throughout the CRA – then employment equity programs remain necessary.

With this as the standard, it seems impossible to imagine that any employment equity program will ever disappear, regardless of progress made or its supposedly temporary nature. In fact, the more logical assumption is that we will see far more of this sort of officially approved discrimination. And not just more of the same, but a steady production of novel rationales and ever-more harmful types of unequal treatment – all in the name of anti-discrimination, of course – until the very meaning of equality has disappeared completely.

Race-based pricing? Expect to see a lot more of it, and not just at your local train station.

Peter Shawn Taylor is Senior Features Editor at C2C Journal and a freelance writer based in Waterloo, Ontario.

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