American economist, Milton Friedman, has pointed out that discrimination can impose economic costs on those engaging in discrimination as well as upon their victims (Milton Friedman, Capitalism and Freedom, 2002). David Lewis and Ian Currie have made a valuable contribution by pointing out how these costs can be quantified in the interests of better-informed decision-making.

Economic analysis is costly to procure, and human rights tribunals do not have jurisdiction to make cost awards. So, while valuable, this kind of evidence should be used with discretion in the interests of enhancing rather than reducing access to justice.

Lewis and Currie have made a valuable contribution towards identifying the role economic analysis can play in leading a long overdue re-evaluation of general damage awards and in highlighting the need to consider benefits as well as costs when applying the rarely used undue hardship standard.

With respect to the former, a Human Rights Commission, acting as an intervener, should shoulder the cost of providing a Tribunal with a detailed economic report, thereby creating a test case in which a human rights tribunal would be invited to review the meagre awards [see the Pinto Report critique (link)] made in previous cases. Thereafter the case should specify what evidence would be required in successive cases, without the need for economic evidence in every case.

The expert report of one of the authors, David Lewis, in the Simpson v. Canada (A.G.) et al., 2020 ONSC 6465 [Link] Charter case in which he points out the cost of making student loan debt equitable must be set against the benefit of more students with disabilities graduate and complete post-graduate training. As he points out there is an established correlation between completing one’s education and becoming financially self-sustaining tax payers. Reductions in social assistance costs and increases in tax revenues should be taken into account when deciding whether ending discriminatory student loans would cause loan granting governments undue hardship. Lewis concludes that it is within the realm of economic probability that governments would profit rather than suffer loss by ending the practice of imposing discriminatory debt on students with disabilities. To read more about this case, visit our blog page here (Link).

Economic analysis of undue hardship will not be required in every case. The onus of proving undue hardship rests on the respondent. If respondents intend to use economic analysis to support their undue hardship defenses, they should be expected to factor in benefits as well as costs or have their analysis disregarded as incomplete. Applicants should only be expected to provide economic analysis if respondents submit cost-benefit economic reports to which a reply is required.

David Lewis and Ian Currie’s recently published paper titled “Should Economics Play a Greater Role in the Adjudication of Human Rights Claims? The Examples of Injury to Dignity and the Duty to Accommodate” examines whether economic analysis can help provide firmer foundations for the adjudication of human rights claims in establishing monetary awards for injury to dignity and, in accommodation cases, better capturing benefits for society.

The paper in its entirety can he found here (Link)