Date: Fri, 13 Oct 2006 16:39:26 +0200

From: Tsachi Keren-Paz

Subject: Liability for data security breaches

From where does the right not to be discriminated against arise? It would be hard to find a duty if there is no right. On what grounds am I not allowed to discriminate on what am I (e.g., religious affiliation in marriage/dating?)

In terms of dating, for example, some grounds for exclusion might be reasonable (sexual identity, religion) with respect to others (such as race) I would say that the exclusion is unreasonable but there is no duty of care.

Obviously, establishing duty in appropriate cases is indeed the difficult question. However, the tort of negligence has always developed new categories of duty and I don't see a principled reason why it could not or should not do so with respect to discrimination. The problem of line drawing is not any easier for the legislature than to courts. Discriminatory interactions can easily be conceived (at least at times) as active creation of risk, and not merely as failure to rescue/aid. Balancing the conflicting interests has been the traditional role of common law courts. It was the common law's individualistic bent, rather than its lack of institutional capacity or conceptual apparatus, that prevented development of judicially-crafted anti-discrimination norms.

Tsachi Keren-Paz
Faculté de droit de l'Université de Montréal
Pavillon Maximilien-Caron, bureau A-7450,
3101 chemin de la Tour
C.P. 6128, succ. Centre-Ville
Montréal Québec Canada
Phone: 514-343-7211 (w) 514-489-2871 (h)

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