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88 In my view, this last part of the respondents’ argument is without merit. They rely on Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, for the proposition that the appellants must demonstrate prejudice or stereotyping that is distinct from that experienced by the comparator group. In Corbiere, this Court considered a s. 15(1) challenge to a provision of the Indian Act, R.S.C. 1985, c. I-5, which provided that only band members ordinarily resident on the reserve were entitled to vote in band elections. While both McLachlin and Bastarache JJ., writing for the majority, and L’Heureux-Dubé J., writing for a minority of four, recognized that off-reserve Aboriginal band members had been subject to particular historical disadvantage compared to those living on-reserve, nowhere can the suggestion be found that such relative disadvantage is a necessary condition for the first contextual factor to point towards discrimination. This point was eloquently made by Iacobucci J. in Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37, at para. 69, where he stated that “this enquiry does not direct the appellants and respondents to a ‘race to the bottom’, i.e., the claimants are not required to establish that they are more disadvantaged than the comparator group”. See also Granovsky, supra, at para. 67. Thus, while a finding of relative disadvantage may in certain cases be helpful to the claimant, the absence of relative disadvantage should in my view be seen as neutral when, as is the case here, the claimants belong to a larger group — disabled persons — who have experienced historical disadvantage or stereotypes.
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