Sexual Orientation Cases

The following (non-exhaustive) case listing was prepared by the Research Branch of the Library of Parliament, at the request of Svend Robinson, MP.

TABLE OF CONTENTS

AGE OF CONSENT TO SEXUAL ACTIVITY
CUSTOMS
DANGEROUS SEXUAL OFFENDER
DISCRIMINATION IN EMPLOYMENT, SERVICES AND ACCOMMODATION
FAMILY LAW
HATE-MOTIVATED CRIME
HATE PROPAGANDA
IMMIGRATION AND REFUGEE
SAME-SEX BENEFITS
OTHER

AGE OF CONSENT TO SEXUAL ACTIVITY

• R. v. L. (L.A.) (1986), 24 C.R.R. 158 (Ont. Prov. Ct. (Fam. Div.)) (in pre-Andrews case, court finding denying defence of consent to charge of buggery [under previous Criminal Code section] on basis of age violates section 15 of Charter: no mention of sex of partner or of sexual orientation)

• R. v. Robinson (1988), 4 W.C.B. (2d) 178 (case digest) (Ont. Dist. Ct.) (in pre-Andrews case, court finding denial of defence of consent to charge of buggery under previous section of Criminal Code not violating section 15: no mention of sex of partner or of sexual orientation)

• R. v. H. (D.) (1989), 64 Alta. L.R. (2d) 414 (case digest) (Alta. Prov. Ct.) (court finding section of Criminal Code not violating section 15, as justifiable protection of unmarried children: no mention of sex of partner or of sexual orientation)

• R. v. Schnare, February 15, 1990 (N.S. Prov. Ct.) (court finding section of Criminal Code not discriminating against gays: details not known, case not available for review)

• R. c. Roy, [1995] R.J.Q. 282 (C.Q.), decision under appeal, Appeal No. 500-10-000304-947 (section 159 of Criminal Code not infringing Charter section 7, subsections 11d) or 15(1): court finding that in absence of evidence, unable to find sexual orientation an analogous ground under the Charter, that sexual orientation innate characteristic or that accused member of disadvantaged group)

• Halm v. Canada, [1995] 2 F.C. 331 (T.D.), decision under appeal, Appeal No. A-171-95 (court setting aside deportation order against individual convicted of sodomy in U.S. on basis that equivalent section of Criminal Code, upon which validity of deportation order dependent, in violation of section 15 on of Charter on grounds of age and sexual orientation)

• R. v. M. (C.) (1995), 23 O.R. (3d) 629, 30 C.R.R. (2d) 112 (Ont. C.A.), affirming (1992), 75 C.C.C. (3d) 556, 11 C.R.R. (2d) 363 (Ont. Ct. (Gen. Div.)) [lower court decision based solely on Charter section 7] (majority: section 159 denial of defence of consent in respect of criminal charge of engaging in anal intercourse with consenting person aged 14 to 18 years violating section 15 of Charter on basis of age only; concurring minority: section 15 violation based primarily on sexual orientation, age and marital status grounds engaged solely through their relationship to sexual orientation: section 159 declared of no force or effect)

• R. v. Jewell and Gramlick, Doc. CA C18639, C18641, July 21, 1995 (Ont. C.A.) (court quashing convictions under section 159 of homosexual hebophile [attraction to mid-adolescent males] on basis of decision in C. (M.))

• R. v. McGowan (1995), 102 C.C.C. (3d) 461 (Ont. Ct. (Prov. Div.)) (in obscenity case involving homosexual activities, including anal intercourse, between and with fourteen year old males, court noting that under C. (M.) decision, anyone 14 or over can consent to most forms of non-exploitive sexual conduct without criminal consequences)

• R. v. Keen, Doc. CA M18146, May 13, 1996 (Ont. C.A.) (court denying application for extension of time to file notice of appeal against sentences imposed in July 1994 upon conviction of numerous offences, including anal intercourse, on basis, inter alia, that as matter had been finally judicially decided before section 159 declared of no force and effect in C. (M.), change in law not applicable: no mention of age of victim or sexual orientation)

CUSTOMS

• Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (1996), 131 D.L.R. (4th) 486 (B.C.S.C.), decision under appeal, Appeal No. CA 21811 (court finding that although provisions of the Customs Act and Tariff authorising "prior restraint" or seizure of material imported by gay bookstore not infringing Charter guarantees under subsection 2(b) and section 15, plaintiffs entitled to declaration that relevant provisions construed and applied by Customs officials in violation of those sections [court subsequently granting plaintiff bookstore an interim injunction to enjoin continued policy of systematic inspection by Customs: 134 D.L.R. (4th) 293 (B.C.S.C.)])

DANGEROUS SEXUAL OFFENDER

• Klippert v. The Queen, [1967] S.C.R. 822 (Court upholding male accused’s sentence as dangerous sexual offender for unspecified acts of "gross indecency" with consenting men)

DISCRIMINATION IN EMPLOYMENT, SERVICES AND ACCOMMODATION

• Re Damien and Ontario Human Rights Commission (1976), 12 O.R. (2d) 262 (H.C. (Div. Ct.)) (court declining to entertain arguments as to Commission’s jurisdiction to deal with complaint of discrimination on grounds of sex [meaning sexual orientation] in relation to dismissal until employer granted status in proceedings: no ruling dealing with substantive jurisdictional question in authorities consulted)

• Board of Governors of the University of Saskatchewan v. Saskatchewan Human Rights Commission (1976), 66 D.L.R. (3d) 561 (Sask. Q.B.) (Human Rights Commission prevented from investigating employment-related complaint based on sexual orientation because ground of "sex" limited to gender)

• Gay Alliance Toward Equality v. Vancouver Sun (1979), 97 D.L.R. (3d) 577 (S.C.C.) (newspaper’s refusal to publish advertisement for gay paper not in violation of British Columbia Human Rights Act)

• Following the addition of "sexual orientation" to the Charte des droits et libertés de la personne du Québec in 1977, a number of complaints on that ground were resolved in favour of the complainants, either through mediation by the Commission des droits de la personne du Québec, or through court action. These include:

• Commission des droits de la personne du Québec c. Le Progrès du Saguenay Ltée. et Paul Bergeron, File No. 150-02-000354-79, April 24, 1979, unreported (C.P.Q.) (CDPQ instituting court action seeking damages on behalf of Centre homophile d’aide et de libération Inc., having found newspaper’s refusal to publish advertisement of second Congress of Gays in violation of Québec Charte des droits et libertés de la personne: matter settled out of court)

• L’Association A.D.G.Q. c. La Commission des écoles catholiques de Montréal (1979), 112 D.L.R. (3d) 230, [1980] C.S. 93 (C.S.Q.) (refusal to rent school facilities to homosexual association in violation of Québec Charte des droits et libertés de la personne)

• CDPQ mediation of a student’s complaint alleging a teacher had awarded a failing grade owing to his sexual orientation resulting in the college awarding a passing grade (File M-M-02, 131-1, April 30, 1980)

• Mediation of a complaint based on a Montreal newspaper’s refusal of an ad for a gay club resolved with agreement on the form of the ad (File M-M-02, 325-1, September 7, 1980)

• Damages awarded to two male teachers dismissed because of their sexual orientation and to two female teachers dismissed because they were perceived as lesbians (Droits et libertés, vol. 5, no. 5, May-June 1982 [Bulletin of the CDPQ])

• C.D.P.Q. v. Anglsberger (1982), 3 C.H.R.R. D/892 (C.P.Q.) (damages awarded to transsexual man refused service in a restaurant [decision based on "civil status" or "état civil"])

• CDPQ intervention resulting in restaurant compensating two waiters alleging harassment by the restaurant manager on the basis of sexual orientation (File no. M-M-02, 509-1, 510-1 [date not indicated in reference])

• An experienced caregiver refused an employment interview because he was gay awarded damages by the CDPQ (File no. M-NO 01, 263-1 [date not indicated in reference])

• A gay couple forbidden from dancing together in a "straight" club awarded monetary compensation (File no. Q-Q 01, 018-1, 019-1 [date not indicated in reference])

• Santa Claus association agreeing to modify an ad calling for recruits without homosexual tendencies (File no. M-M 00, 040-257 [date not indicated in reference])

• Stiles v. Canada (1986), 3 F.T.R. 234 (T.D.), decision affirmed A-271-86 (procedural ruling upholding plaintiff’s right to bring section 15 Charter challenge against denial of transfer from R.C.M.P. to C.S.I.S.: in October 1988, with plaintiff’s consent, court order issued dismissing action)

• Sylvestre v. Canada, [1986] 3 F.C. 51 (section 7 Charter challenge to dismissal from armed forces unsuccessful)

• Bordeleau v. Canada (1989), 32 F.T.R. 21 (T.D.) (procedural ruling upholding plaintiff’s right to bring action, including section 15 Charter challenge, against dismissal from armed forces: action discontinued April 1994)

• Brown v. British Columbia (Minister of Health) (1990), 48 C.R.R. 137 (B.C.S.C.) (although sexual orientation within scope of Charter section 15, province’s refusal to fully fund AZT treatment not discriminatory)

• Canada (Minister of National Defence) v. Canada (Security Intelligence Review Committee), T76390, March 29, 1990, [1990] F.C.J. No. 278 (Q.L.) (F.C.T.D.) (court dismissing application to prohibit S.I.R.C. from investigating complaint of member of armed forces related to revocation of security clearance based on her sequal orientation)

• Ms. M.D. Douglas and Chief of the Defence Staff, File No. 1170/Douglas, August 11, 1990 (Security Intelligence Review Committee) (committee finding respondent erred in not concluding that armed forces policy of denial of security clearance on basis of homosexuality inconsistent with subsections 2(d) and 15(1) of the Charter [see also Douglas v. Canada [1993], below])

• Haig and Birch v. Canada (1992), 94 D.L.R. (4th) 1 (Ont. C.A.) (plaintiff Birch prevented from lodging complaint related to employment in armed forces owing to absence of sexual orientation in Canadian Human Rights Act: section 15 Charter challenge to contest that omission successful)

• Douglas v. Canada, [1993] 1 F.C. 264 (T.D.) (section 15 Charter challenge related to release from employment in armed forces: parties settling for declarations that plaintiff’s section 15 rights denied, and that armed forces policy contrary to the Charter)

• Jan Waterman and the Ontario Human Rights Commission v. National Life Assurance Company of Canada et al. (1993), 18 C.H.R.R. D/176 (Ont. Board of Inquiry) (complaint under Ontario Human Rights Code arising from denial of permanent employment upheld)

• Bruce Coles and Brian O’Neill v. Ministry of Transportation and Pat Jacobson, File no. 92-018/09, October 1994 (Ont. Bd. of Inquiry) (same-sex couples to be treated on same basis as heterosexual common law couples by provincial transportation ministry, e.g., re registering co-ownership of vehicle)

• Crozier v. Asselstine (1994), 22 C.H.R.R. D/244 (Ont. Bd. of Inquiry) (board allowing employee complaint alleging harassment on basis of sexual orientation, reasoning that that such harassment constitutes discrimination on ground of sexual orientation)

• A. v. Colloredo-Mansfeld (No. 3) (1994), 23 C.H.R.R. D/328 (Ont. Bd. of Inquiry) (board finding complaint of harassment on ground of sexual orientation in relation to tenancy not within jurisdiction, on basis that relevant provision of Human Rights Code does not include sexual orientation among prohibited grounds of harassment)

• Re Cami Automotive Inc. and C.A.W., Local 88 (1994), 45 L.A.C. (4th) 71 (Arbitrator) (in relation to grievance allowed in part on other grounds, arbitrator finding harassment on basis of sexual orientation not covered by Ontario Human Rights Code and, even if ground were proscribed, matter not within jurisdiction as neither union nor company responsible for harassment of grievor)

• Bertrand c. Hôpital Général Juif, [1994] R.J.Q. 2087 (T.D.P.Q.) (tribunal’s first ruling to deal with complaint based on sexual orientation finding that while isolated incident in bad taste, not constituting violation of prohibition in Québec Charte des droits et libertés de la personne against harassment on that ground)

• Grace v. Mercedes Homes Inc. (1995), 23 C.H.R.R. D/350 (Ont. Bd. of Inquiry) (board dismissing complaints of gay couple alleging discrimination in housing accommodation)

• Potter v. Korn (1995), 23 C.H.R.R. D/319 (B.C. C.H.R.), application for judicial review dismissed (1996), 134 D.L.R. (4th) 437, sub nom. Korn v. Potter (B.C.S.C.) (council finding lesbian couple discriminated against by doctor’s refusal to provide artificial insemination services)

• Commission des droits de la personne du Québec v. Camping & plage Gilles Fortier Inc., J.E. 95-287 (T.D.P.Q.) (tribunal finding campground policy denying accommodation to two or more adults of same sex unless part of a family group indirectly discriminating on basis of sexual orientation, since by definition all gay and lesbian couples excluded)

• Vriend v. Alberta (1996), 132 D.L.R. (4th) 595, 25 C.H.R.R. D/1 (Alta. C.A.), reversing (1994), 20 C.H.R.R. D/358 (Alta. Q.B.), leave to appeal to the Supreme Court of Canada granted, File No. 25285 (majority: omission of sexual orientation from Individual Rights Protection Act not a violation of section 15 of the Charter, constitutionality of Act not dependent on perfect emulation of section 15; dissent: Legislature’s omission tantamount to approving ongoing discrimination against homosexuals and in violation of section 15)

• In January 1996, it was reported that a gay rights group—Humans Against Homophobia—had filed a complaint with the Nova Scotia Human Rights Commission, alleging that a Halifax coffee shop had discriminated against gay couples in at least two "homophobic" incidents [according to officials at the Nova Scotia Human Rights Commission, privacy considerations preclude their divulging any information concerning complaints, including as to whether a complaint has been lodged]

FAMILY LAW

• Case v. Case (1974), 18 R.F.L. 132 (Sask. Q.B.) (court finding homosexuality a factor to be considered but not a bar to award of custody—custody awarded to father as opposed to lesbian mother living with same-sex partner)

• North et al. v. Matheson (1975), 20 R.F.L. 112 (Ont. Co. Ct.) (application for order requiring registration of same-sex marriage denied)

• K. v. K. (1976), 23 R.F.L. 58 (Alta. Prov. Ct.) (court awarding custody to lesbian mother living with same-sex partner)

• D. v. D. (1978), 3 R.F.L. (2d) 327 (Ont. Co. Ct.) (court awarding custody of children to bisexual father)

• Bernhardt v. Bernhardt (1979), 10 R.F.L. (2d) 32 (Man. Q.B.) (court not awarding lesbian mother in a relationship custody of child wishing to stay with her)

• B. v. B. (1980), 16 R.F.L. (2d) 7 (Ont. Prov. Ct.) (court awarding custody of daughter to lesbian mother living with same-sex partner on basis that in the child’s best interest)

• Bezaire v. Bezaire (1981), 20 R.F.L. (2d) 358 (Ont. C.A.) (court finding homosexuality not in itself a ground for refusing to award custody: the best interests of the child and the effect of parents’ life-style on those interests are determinative—custody of children awarded to father rather than lesbian mother)

• Monette c. Sylvestre, [1981] C.S. 731 (homosexuality not in itself an obstacle to parental custody rights)

• Palmer v. Palmer (1981), 15 Sask. R. 20 (Sask. Q.B.) (custody removed from unemployed father having homosexual tendencies and awarded to recovered alcoholic mother living with stable man)

• Johnston c. Rochette (1982), 3 C.H.R.R. D/1133 (C.S.Q.) (court finding provision in separation agreement prohibiting lesbian mother’s access to children while partner present in violation of Québec Charte des droits et libertés de la personne: provision struck down)

• Cloutier c. Trudel, [1982] C.S. 951 (court denying custodial father’s application to prevent lesbian mother’s access to daughters while any other woman present, no indication that mother would incite children to adopt sexual orientation she had chosen)

• Droit de la famille–14, File no. 750-12-002454-82, December 22, 1982 (C.S.Q.) (court finding homosexuality in no way indicating lesbian mother unable to fulfil role: custody awarded to her)

• Droit de la famille–31 (1983), 34 R.F.L. (2d) 127 (C.S.Q.) (court granting divorce against both parties owing to father’s adultery and mother’s homosexuality: court finding homosexuality not in itself a ban to the award of custody, but constituting a negative element in present case—custody awarded to father)

• M. v. M. (1984), 42 R.F.L. (2d) 55 (P.E.I.S.C.) (marriage annulled on basis that wife transsexual, a fact not known at time of marriage)

• Elliott v. Elliott (1984), 25 A.C.W.S. (2d) 304 (B.C.S.C.) (court awarding custody to father engaged to be married rather than to lesbian mother living in discreet homosexual relationship)

• Carson v. Carson (1985), 46 R.F.L. (2d) 102 (N.B.Q.B.) (court denying access to gay father convicted of sexually assaulting male victim; father’s conduct not relevant, however, to division of matrimonial property)

• Worby v. Worby (1985), 48 R.F.L. (2d) 369 (Sask. Q.B.) (court denying overnight access to father living with same-sex partner for as long as life-style in effect)

• Anderson v. Luoma (1986), 50 R.F.L. (2d) 127 (B.C.S.C.) (claim for maintenance refused, constructive trust principles applied to divide assets of same-sex couple)

• Boucher v. Boucher (1986), 72 N.B.R. (2d) 100 (N.B. Q.B.) (court denying custody to father with criminal record for homosexual acts and fired for homosexual activities, in part because steady employment not guaranteed owing to homosexual behaviour)

• Daller v. Daller (1988), 18 R.F.L. (3d) 53, 22 R.F.L. (3d) 96 (Ont. C.A.) (court declining to remove child from lesbian mother’s custody on basis that homosexual relationship not having detrimental effect and not in child’s best interest to grant father’s claim for custody)

• P.B. v. P.B., April 6, 1988 (Ont. Prov. Ct. (Fam. Div.)) (court delaying overnight access for gay father cohabiting with same-sex partner and ordering partners to sleep in separate rooms during overnight access)

• Saunders v. Saunders (1989), 20 R.F.L. (3d) 368 (B.C. Co. Ct.) (gay father sleeping with partner during child’s visits denied overnight access on basis that not in child’s best interests to be exposed to "unnatural" relationship)

• L. (M.B.C.) v. C. (E.W.) (1989), 89 N.S.R. (2d) 309 (N.S. T.D.) (court upholding family court recommendation to end pedophile father’s custody and prevent access)

• E.(A.) v. E.(G.), September 22, 1989 (Nfld. S.C.) (court granting access to discreet gay father cohabiting with partner, but delaying overnight access to allow grandparents to get used to situation)

• B. v. A. (1990), 29 R.F.L. (3d) 258 (Ont. Master) (court finding transsexual not having undergone surgical genital alteration not a "man" within definition of "spouse" in Ontario Family Law Act and therefore not entitled to interim support under Act)

• Monk v. Doan (1990), 94 Sask Rev. 316 (Sask. Q.B.) (custody granted to lesbian aunt whose cohabitation with long term partner conducted in discreet and dignified way)

• Brunet v. Davis, [1992] O.J. No. 1586 (Q.L.), Action No. 4633/89, April 16, 1992, unpublished (Ont. Ct. (Gen. Div.)) (court dividing property of same-sex couple)

• C.(L.) v. C.(C.) (1992), 10 O.R. (3d) 254 (Ont. Ct. (Gen. Div.)) (application for declaration of nullity of marriage between women granted)

• Forrest v. Price (1992), 48 F.L.R. 72 (B.C.S.C.) (court dividing property of same-sex couple)

• Robertson v. Geisinger (1991), 36 R.F.L. (3d) 261 (Sask. Q.B.) (court granting custody to lesbian mother as opposed to gay father on basis of child’s best interest)

• S. v. S., Doc. Cranbrook 02278, July 9 and November 30, 1992 (B.C. S.C.) (although lesbianism by itself not rendering mother unfit for custody, court denying custody to lesbian mother wanting to relocate, since children upset by marriage breakdown, wife not in a stable relationship and no way of knowing what kind of relationships she would establish or how they would affect children)

• Sleeth v. Wasserlein, 36 R.F.L. (3d) 278 (B.C.S.C.) (court ruling settlement agreement between same-sex partners on breakdown of relationship not tainted by compulsion or mistake constituting valid enforceable contract)

• Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 104 D.L.R. (4th) 214 (Ont. Ct. (Gen. Div.)), decision under appeal, Appeal No. C 15711, sub nom. Schoucervou C. et al. (formerly Layland) v. Ontario (M.C.C.R.) (majority: common law limitation of marriage to persons of opposite sex not in violation of section 15 of the Charter; dissent: the common law does not prohibit same-sex marriages in Canada, restricting marriage to heterosexual couples infringes section 15 on basis of sexual orientation)

• K. (Re) (1995), 23 O.R. (3d) 679 (Ont. Ct. (Prov. Div.)) (court finding opposite sex definition of "spouse" in Child and Family Services Act under which same-sex couples prevented from making joint applications for adoption an infringement of section 15 of the Charter and not saved by section 1, court expanding definition of "spouse" by "reading in" same-sex terms)

• Ghidoni v. Ghidoni, Doc. Nanaimo 5920/009596, 11 October 1995 (B.C.S.C.) (court ordering joint custody by consent to mother and "transvestite or transsexual" father on basis, inter alia, of expert evidence that father’s "gender disorder" not detrimental to his having custody)

• Ouellet v. Ouellet, Doc. A5602/94, 9 May 1996 (Ont. Ct. (Gen. Div.) (court partially granting bisexual mother’s custody application on basis, inter alia, that sexual orientation only relevant to degree it affects or is likely to affect children’s well-being)

• M. v. H. Doc. CA C23867, C25140, 18 December 1996 [1996] O.J. No. 4419 (Q.L.) (Ont. C.A.), affirming, 132 D.L.R. (4th) 538, 35 C.R.R. (2d) 123 (Ont. Ct. (Gen. Div.)), (interlocutory rulings reported at (1994), 20 O.R.(3d) 70, 50 R.F.L. (3d) 92 (Ont. Ct. (Gen Div.)) (parties conceding opposite-sex definition of "spouse" in Family Law Act preventing same-sex partners from applying for spousal support violation of section 15 of the Charter, majority of court finding exclusion not justified under section 1 and issuing declarations replacing opposite sex terms in definition) issuing suspended order severing and replacing opposite sex terms in definition: remedy to take effect in one year barring legislative activity to ensure constitutionality)

HATE-MOTIVATED CRIME

• R. v. Atkinson, Ing and Roberts (1979), 43 C.C.C. (2d) 342 (Ont. C.A.) (court increasing sentences issued by trial judge following three unprovoked "gay-bashing" assaults)

HATE PROPAGANDA

• League for Human Rights B’Nai Brith Canada (Midwest Region) v. Manitoba Knights of the Ku Klux Klan (1993), 18 C.H.R.R. D/406 (C.H.R.T.) (tribunal noting Haig decision reading in sexual orientation as proscribed ground in Canadian Human Rights Act and finding recorded telephone messages at issue likely to incite hatred on numerous grounds, including sexual orientation)

• John Payzant and Canadian Human Rights Commission and Tony McAleer, Canadian Liberty Net and Harry Vaccaro, T.D. 4/94, January 27, 1994, unreported (C.H.R.T.), application for judicial review dismissed (1996), 132 D.L.R. (4th) 672 (F.C.T.D.) sub nom McAleer v. Canada (Human Rights Commission) (tribunal finding telephonic messages likely to incite hatred on basis of sexual orientation, complaints of discrimination upheld: first federal tribunal decision under Canadian Human Rights Act based solely on sexual orientation)

IMMIGRATION AND REFUGEE

• Sherwood Atkinson (Sheri de Cartier), 5 Immigration Appeal Cases 185 (1972) (deportation order of post-operative transsexual [male to female] charged with pursuing sexual activities with male upheld under provision of pre-1978 Immigration Act barring entry into Canada of persons practising "homosexualism")

• Vulpen v. Minister of Employment & Immigration, File No. V796100, August 29, 1980 (Immigration Appeal Board), reversed A17981, 1982 (F.C.A.) (Board finding transsexual sponsoree same sex as husband, and therefore not his spouse within meaning of immigration regulations)

• The case of Morrissey and Coll v. Canada, filed in Federal Court in January 1992, raised a Charter challenge to the Immigration Act’s exclusion of gay and lesbian partners under "family class" sponsorship provisions. In September 1992, immigration officials granted the foreign partner permanent residency as an independent applicant, thus avoiding Charter litigation. The Carrott and Underwood case, a second Charter challenge on the "family class" issue initiated in February 1992, was also resolved out of court.

• Jorge Inaudi, April 9, 1992, No. T9104459 (Convention Refugee Determination Division ("CRDD") of Immigration and Refugee Board) (refugee status granted)

• Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Court ruling that membership in a "particular social group" as a basis for a Convention refugee claim extends to groups defined by an innate, unchangeable characteristic, including sexual orientation)

• Artur Lasha, May 1994 (CRDD) (refugee status granted)

• Pizarro v. Minister of Employment and Immigration (1994), 75 F.T.R. 120 (F.C.T.D.) (court allowing judicial review application and setting aside CRDD decision finding claimant’s homosexuality did not make him a member of a particular social group for purposes of Convention refugee claim, on basis that matter effectively put beyond doubt by Supreme Court of Canada Ward decision, matter returned to CRDD)

• Dykon v. Minister of Employment and Immigration (1994), 87 F.T.R. 98 (T.D.) (Court allowing judicial review application and setting aside decision of CRDD finding claimant had not been persecuted on basis of homosexuality, matter returned to CRDD with direction that Board find claimant to be Convention refugee)

• Jose Luis Ortigoza, January 1995 (CRDD) (refugee status granted)

• Tchernilevski v. Minister of Citizenship and Immigration, IMM-5088-94, June 9, 1995, [1995] F.C.J. No. 894 (Q.L.) (F.C.T.D.) (court dismissing judicial review application and upholding CRDD decision denying refugee status on basis unlikely claimant would be persecuted because of his homosexuality if returned to Moldova)

• Zhu v. Canada (Minister of Citizenship and Immigration) IMM3395, October 20, 1995, [1995] F.C.J. No. 1396 (Q.L.) (F.C.T.D.) (court dismissing application for judicial review of negative humanitarian and compassionate decision in respect of which government arguing sufficient account taken of applicant’s sexual orientation)

• Polyakov v. Minister of Citizenship and Immigration, IMM-1140-95, February 9, 1996, [1996] F.C.J. No. 300 (Q.L.) (F.C.T.D.) (court dismissing judicial review application and upholding CRDD decision denying refugee status to claimant alleging fear of persecution on ground of sexual orientation on basis of lack of credibility)

• L.J. v. Minister of Citizenship and Immigration, IMM-2833-95, July 29, 1996, [1996] F.C.J. No. 1042 (Q.L.) (F.C.T.D.) (court dismissing judicial review application and upholding CRDD decision denying refugee status on ground of (1) lack of objective basis to fear persecution in Trinidad owing to lesbianism (2) negative credibility findings)

• In early 1995, officials at the Immigration and Refugee Board advised of additional refugee claims related to sexual orientation concerning which they are unable, however, to provide details owing to the confidential nature of such claims. From discussion with counsel active in immigration and refugee law, it would appear that a significant number of claimants raise sexual orientation as a basis for fear of persecution. As of early 1995, the majority originated in Central and South American countries, with similar claims originating in Algeria, Turkey, Poland, Pakistan, Bangladesh, Romania and Russia. Information available at that time suggested most such claims are heard in Montreal, with the next greatest number originating in St. John’s, Newfoundland. It was suggested that from two-thirds to three-quarters of these claims are successful.

SAME-SEX BENEFITS

• Chris Vogel v. Government of Manitoba (1983), 4 C.H.R.R. D/1654 (Man. Bd. of Adjudication) (denial of employment-related dental plan coverage to same-sex partner found not to violate Manitoba Human Rights Code [see also Vogel v. Manitoba (1995) below])

• C.U.P.E. v. Canada Post, File No. 864C11, March 27, 1986 (Arbitration Bd.) (Board finding that under collective agreement, lesbian partner neither immediate "family," nor "common law spouse")

• Re Carleton University and C.U.P.E., Loc. 2424 (1988), 35 L.A.C. (3d) 96 (Arbitration Bd.), application for judicial review dismissed June 4, 1990 (Ont. Div. Ct.) (grievance alleging improper denial of employment-related benefits denied)

• Andrews v. Ontario (Minister of Health) (1988), 49 D.L.R. (4th) 584 (H.C.) (denial of dependant coverage under provincial health insurance legislation not in violation of section 15 of the Charter)

• Mossop v. Canada (Secretary of State), [1993] 1 S.C.R. 554 (4-3), affirming [1991] 1 F.C. 18 (F.C.A.), reversing (1989), 10 C.H.R.R. D/6064 (C.H.R.T.) (denial of bereavement leave not discrimination based on family status under [pre-Haig] Canadian Human Rights Act)

• Re Canada (Treasury Board and Indian and Northern Affairs) and Watson (1990), 11 L.A.C. (4th) 129 (Public Service Staff Relations Board) (Board dismissing grievance alleging denial of bereavement leave on basis of sexual orientation in violation of collective agreement)

• Veysey v. Canada (Commissioner of the Correctional Service), [1990] 1 F.C. 321 (T.D.), affirmed without discussion of Charter issue (1990), 47 C.R.R. 394n (F.C.A.) (denial of conjugal visits to gay prison inmate in violation of section 15 of the Charter)

• Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 (B.C.S.C.) (exclusion of homosexual couples from definition of "spouse" in provincial health insurance regulations in violation of section 15 of the Charter)

• Re Parkwood Hospital and McCormick Home and London and District Service Workers’ Union (1992), 24 L.A.C. (4th) 149 (Arbitration Bd.) (Board dismissing grievance alleging denial of family benefits on basis of sexual orientation in violation of collective agreement)

• Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont. Bd. of Inquiry) (denial of employment-related pension and other benefits permitted by Ontario Human Rights Code, but provisions of Code thus in violation of section 15 of the Charter)

• Nielsen v. Canada (Human Rights Commission), [1992] 2 F.C. 561 (T.D.) (court dismissing application to quash Tribunal decision to delay hearing of complaint pending Mossop decision of Supreme Court of Canada: court finding denial of employment-related dental plan coverage to same-sex partner not violating Canadian Human Rights Act on basis of sex or marital status, while sexual orientation not prohibited ground under Act [see also Nielsen v. Canada Employment and Immigration Commission, 95 CLLC, below])

• Hewens and Treasury Board (Public Works), File No. 166-2-22732, November 25, 1992 (Public Service Staff Relations Board) (denial of employment-related marriage leave for purpose of marriage ceremony with same-sex partner not in violation of collective agreement)

• Lorenzen v. Treasury Board (Environment Canada) (1993), 38 L.A.C. (4th) 29, sub nom Re Canada (Treasury Board—Environment Canada) and Lorenzen, (Public Service Staff Relations Board) (denial of employment-related family and bereavement leave violating collective agreement and [post-Haig] Canadian Human Rights Act)

• Canada Post Corporation and Public Service Alliance of Canada, Guévremont grievance, No. 20101-CR-93-004, March 8, 1994 (Arbitrator) (arbitrator finding previous negative arbitration decision denying grievance "clearly wrong" [see (1993), 34 L.A.C. (4th) 104], denial of employment-related claim for medical expenses incurred by same-sex partner in violation of collective agreement, incorporating the terms of the [post-Haig] Canadian Human Rights Act)

• Ontario Blue Cross v. Ontario (Human Rights Comm.) (1994), 21 C.H.R.R. D/342 (Ont. Ct. (Gen. Div.), Div. Ct.) reversing (1993), 18 C.H.R.R. D/377 (Ont. Bd. of Inquiry) (court finding denial of employment-related family benefits to same-sex partner not violating Ontario Human Rights Code on basis of sexual orientation)

• Re University of Lethbridge and University of Lethbridge Faculty Assn. (1994), 48 L.A.C. (4th) 242 (Arbitrator) (denial of employment-related medical and dental benefits to same-sex partner in violation of provision in staff agreement prohibiting discrimination "in regard to terms or conditions of employment" on basis of sexual orientation, undefined terms "family coverage" and "dependents" in schedule to agreement to be interpreted to include same-sex benefits)

• Canadian Telephone Employees’ Association ("CTEA") v. Bell Canada (1994), 43 L.A.C. (4th) 172 sub nom Re Bell Canada and CTEA (Arbitrator) (denial of employment-related spousal benefits constituting unlawful discrimination [post-Haig] in breach of the collective agreement)

• Canadian Broadcasting Corporation v. Canadian Media Guild (Local 213 of the Newspaper Guild) (1995), 45 L.A.C. (4th) 353 sub nom Re Canadian Broadcasting Corp. (Arbitrator) (denial of spousal benefits to same-sex partner of gay employee in violation of collective agreement’s prohibition of sexual orientation discrimination: employer directed to rid benefit plans of discrimination on that basis)

• Egan v. Canada, [1995] 2 S.C.R. 513, affirming result in [1993] 3 F.C. 401, 15 C.R.R. (2d) 310 (F.C.A.), [1992] 1 F.C. 687 (T.D.) (court’s first same-sex benefits ruling: unanimous finding that sexual orientation an analogous ground under section 15 of the Charter; majority finding that opposite sex definition of "spouse" in Old Age Security Act discriminatory; different majority finding that discrimination, if any, justified under section 1)

• Vogel v. Manitoba (1995), 23 C.H.R.R. D/173 (Man. C.A.), reversing (1992), 90 D.L.R. (4th) 84 (Man. Q.B.) and setting aside decision of Man. Board of Adjudication (1992), 16 C.H.R.R. D/233 ([post-Egan] court finding denial of various employment spousal benefits discriminatory under provincial Code; matter returned to adjudicator for determination as to whether distinctions in benefit plans on basis of sexual orientation justified as "bona fide and reasonable" under Code [in June 1996, adjudicator issuing interlocutory ruling authorising government lawyers to adduce additional evidence in this regard when hearing upon merits takes place])

• Nielsen v. Canada Employment and Immigration Commission, 95 CLLC 145,213 (F.C.T.D.) (court dismissing application for judicial review of Canadian Human Rights Commission decision not to pursue complaint arising from denial of same-sex benefits filed prior to the 1992 "reading in" of sexual orientation into the Canadian Human Rights Act by the Ontario Court of Appeal )

• Rosenberg v. Canada (Attorney General) (1995), 127 D.L.R. (4th) 738, 25 O.R. (3d) 612 (Ont. Ct. (Gen. Div.)), decision under appeal, Appeal No. C 22807 (court dismissing section 15 Charter challenge to opposite sex definition of "spouse" in the Income Tax Act having effect of preventing registration of pension plans providing for same-sex partners: court finding case indistinguishable from Egan both as to discrimination under section 15, and as to justification under section 1)

• Re Metro Toronto Reference Library and C.U.P.E., Local 1582 (1995), 51 L.A.C. (4th) 69 (Arbitration Panel [2-1]) (denial of employment-related bereavement leave owing to opposite sex definition of "spouse" in collective agreement, incorporating definition in Family Law Reform Act and successor Family Law Act, in violation of Charter, Ontario Human Rights Code and collective agreement’s prohibition against discrimination "for any reason or factor not pertinent to employment")

• Yarrow and Treasury Board (Agriculture and Agri-Food Canada), February 5, 1996 (Public Service Staff Relations Board) (denial of employment-related bereavement leave on basis of opposite sex definition of "common law" spouse in Master Agreement violation of [post-Haig] Canadian Human Rights Act and contrary to anti-discrimination provision of Master Agreement [Treasury Board announcing in November 1995 that it would recognise same-sex relationships for purposes of some benefits, including bereavement leave])

• Moore & Akerstrom v. Canada (Treasury Board), T.D. 8/96, [1996] C.H.R.D. No. 8 (Q.L), June 13, 1996 (C.H.R.T.), application for judicial review of portions of Tribunal order File No. T-1677-96 (opposite sex definitions of "spouse" that deny employment benefits to same-sex partners discriminatory under [post-Haig] Canadian Human Rights Act; government ordered to cease applying discriminatory provisions in collective agreements or other joint policies or plans, including health and dental care plans [In July 1996, Treasury Board announced intention to comply with "cease and desist" order for purposes of medical and dental benefits. In September 1996, interim application to stay contested requirements of Tribunal order refused by Federal Court]

• Laessoe v. Air Canada, T.D. No. 10/96, September 13, 1996 (C.H.R.T.), application for judicial review File No. T-2215-96 (company policy not to extend same-sex survivor pension benefits not discriminatory under pre-Bill C-33 Canadian Human Rights Act, Haig decision not definitively adding sexual orientation to Act, company’s pension program should not be held to a higher standard than that applied to federal government programs by the Supreme Court of Canada in Egan decision)

• Dwyer v. Toronto (Metropolitan), File No. BI-0056-93, Decision No. 96-0033, September 27, 1996 (Ont. Bd. of Inquiry) (because opposite sex definitions of "spouse" and "marital status" in Ontario Human Rights Code in violation of section 15 of Charter and not saved by section 1, similar definition of "spouse" in Municipal Act, Municipality of Metropolitan Toronto Act and Pension Benefits Act infringing (constitutionally corrected) Code; Province of Ontario directed to apply "read down" Municipal Act definition of "spouse" to include same sex partners of municipal employees with employment benefits—including pension benefits, contingent upon a modified definition of spouse in federal Income Tax Act—and to notify all municipalities of this interpretation)

• According to information obtained from personnel at the Department of Human Resources Development Canada, five section 15 Charter challenges to the opposite sex definition of "spouse" in the Canada Pension Plan are currently working their way through the administrative review hierarchy applicable under that Act. The names of the complainants may not, apparently, be made public at these early stages in the proceedings. Twelve additional challenges are not yet scheduled.

• Holmwood claim, decision of Worker’s Compensation Board of British Columbia, November 1992 (lesbian partner recognised for survivor benefits [according to the Freedom of Information Office of the B.C. Workers’ Compensation Board, access to the reasons for decision in this case is precluded under provincial legislation governing freedom of information and privacy matters])

• Svend Robinson complaint to Canadian Human Rights Commission of June 1994, based on denial of employment-related benefits by House of Commons [personnel at the Canadian Human Rights Commission have indicated that this complaint does not appear to have been referred to tribunal, and that further information concerning the status of the complaint is precluded by privacy considerations]

• In addition to the tribunal adjudication in the Moore and Akerstrom and Laessoe cases, a number of complaints that had also originally been referred to tribunal by the Canadian Human Rights Commission have since been settled. These include:

• the complaint of the Gay and Lesbian Organization of Bell Employees (GLOBE) related to Bell’s refusal to amend its benefit plan to cover same-sex partners [according to personnel at the Commission, the settlement precludes release of information concerning its terms]

• the complaint of August Abrahms against the Bank of Montreal for extending benefits to heterosexual couples only [according to a Commission Press Release of July 1995, the complaint was "effectively [settled]" by the Bank of Montreal’s policy decision to extend same-sex benefits including health care, dental care, accident and survivor income insurance, as well as pension benefits equivalent to those available to opposite sex partners]

• Jin Hong’s complaint against the Canadian Broadcasting Corporation related to the latter’s denial of benefits to her same-sex partner [according to personnel at the Commission, the settlement precludes release of information concerning its terms]

OTHER

• R. v. Taylor (1982), 135 D.L.R. (3d) 291 (Ont. C.A.) (court allowing gay man’s appeal from conviction for indecent assault on 13 year old male and ordering new trial, on bases that in first trial, evidence of accused’s homosexuality not admissible to prove guilt and seriously prejudicial, that trial judge erred in considering accused’s admission of homosexuality of probative value on question of guilt)

• R. v. Wilson (1990), 59 C.C.C. (3d) 432 (B.C. C.A.) (court allowing male accused’s appeal from conviction of touching male child for sexual purpose and ordering new trial on basis that first trial conducted unfairly owing to Crown counsel’s inappropriate cross-examinion of accused and witnesses to leave impression that accused gay)

• Valiquette c. Gazette (The), [1991] R.J.Q. 1075 (C.S.Q), decision under appeal, Appeal No. 500-09-000529-917, decision reserved (court awarding $37,500 in moral and exemplary damages for violation of deceased plaintiff’s right to privacy under provincial Charte des droits et libertés de la personne owing to publication of news article about teacher with AIDS in which plaintiff easily recognizable as subject of story, nature of illness revealed and speculation as to sexual orientation aroused)

• Nuosci v. Canada (Human Rights Commission), T-2396-91, December 17, 1991 (F.C.T.D.), affirmed A-19-92, March 7, 1994 (F.C.A.) (court dismissing judicial review application seeking to quash Canadian Human Rights Commission decision to dismiss gay man’s complaint related to dismissal from R.C.M.P. on basis of HIV positive status)

• Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259 (Can. Hum. Rts. Trib.), judicial review application to quash Tribunal decision dismissed (1994), 21 C.H.R.R. D/224 (F.C.T.D.) (complaint of discrimination on ground of disability upheld in relation to 1989 discharge of HIV positive gay member of armed forces)

• Kippen v. Big Brothers Assn. of Winnipeg Inc. (1993), 20 C.H.R.R. D/483 (Manitoba Bd. of Inquiry) (in preliminary ruling, board finding itself with jurisdiction over gay man’s complaint arising from volunteer organization’s denial of full participation in its programs [according to Department of Justice in Manitoba, no further decision in this case, parties seeking resolution by other means])

• Geller v. Reimer (1994), 21 C.H.R.R. D/156 (Sask. Bd. of Inquiry) (denial of permit for Gay Pride parade limiting complainants’ freedom of expression and right to peaceful assembly under Saskatchewan Human Rights Code on basis of sexual orientation)

• Oliver v. Hamilton (City) (No. 2) (1995), 24 C.H.R.R. D/298 (Ont. Bd. of Inquiry) (refusal of mayor to proclaim Gay Pride Week discriminatory on basis of sexual orientation)

• R. v. Paterson, Doc. Vancouver CC931929, 20 March 1995, [1995] B.C.J. No. 1032 (Q.L.) (B.C. S.C.) (in first degree murder trial, court ordering publication ban of identity of three gay witnesses on basis that public revelation of names likely to cause serious personal harm in society treating homosexuality as matter of choice rather than fact)

• R. c. P. (D.), File No. C.A. Québec 200-10-000105-937 (C.A.Q.) (court dismissing appeal from conviction for sexual assault in which appellant arguing trial judge should have allowed defence to question victim about his sexual orientation, on basis that matter irrelevant in light of accused’s denial of any sexual misbehaviour)

• Newfoundland (Human Rights Commission) v. Newfoundland (Minister of Employment and Labour Relations) (1995), 24 C.H.R.R. D/144 (Nfld. S.C. T.D.), decision under appeal, Appeal No. 1996, no. 63 (absence of sexual orientation from prohibited grounds of discrimination in Newfoundland Human Rights Code violation of section 15 of the Charter and not saved by section 1)

• In October 1996, it was reported that the Saskatchewan Human Rights Commission dismissed (1) Christopher Lefler’s complaint against the University of Saskatchewan alleging discrimination based on sexual orientation arising from the removal of his art from a student exhibition; (2) similar complaints lodged against the Saskatchewan Arts Board. Lefler has announced his intention to appeal. The Commission did find grounds for the complaint that the university interfered with Lefler’s freedom of expression [according to personnel at the Saskatchewan Commission, as no adjudication has occurred in relation to Lefler’s complaints, no decision is available]

• Jeffs, 1993 decision of the Board of Referees under Unemployment Insurance Act, decision under appeal (lesbian relationship constituting just cause for leaving employment to relocate: contrary decision reached in 1991 decision based on similar fact situation: Case number VI 059, May 10, 1991)

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