Cited as:
Boutilier and Treasury Board (Natural Resources)
Between
Ross Robert Boutilier, grievor, and
Treasury Board (Natural Resources), employer
Public Service Staff Relations Act
[1997] C.P.S.S.R.B. No. 54
PSSRB File No. 166-2-26199
Canada Public Service Staff Relations Board
Before: Y. Tarte, Chairperson
Heard: Halifax, Nova Scotia, April 29, 1997
Decision: June 4, 1997
(20 pp.)
Appearances:
Yvette Michaud, Professional Institute of the Public Service
of Canada, for the grievor;
Harvey Newman, Counsel, for the employer.
DECISION
[para1] This case involves the interpretation of certain
leave provisions of the Physical Sciences Group (all
employees) collective agreement entered into between the
Treasury Board and the Professional Institute of the Public
Service (code 222/91, exhibit G-1). The grievor has asked for
leave under paragraph 20.09(b)(iv) or article 20.13 of the
collective agreement which read as follows:
20.09 Leave With Pay for Family-Related
Responsibilities
(b) The Employer shall grant leave with pay under the
following circumstances:
(iv) five (5) days' Marriage leave for the purpose of
getting married provided that the employee gives the
Employer at least five (5) days' notice.
20.13 Leave With or Without Pay for Other Reasons
At its discretion, the Employer may grant leave with
or without pay for the purposes other than those
specified in this Agreement.
[para2] The collective agreement also contains a "no
discrimination" clause which reads:
31.01 There shall be no discrimination, interference,
restriction, coercion, harassment, intimidation, or any
disciplinary action exercised or practiced with respect
to an employee by reason of age, race, creed, colour,
national origin, religious affiliation, sex, official
language or membership or activity in the union.
[para3] The marriage leave in this case was sought by
Mr. Boutilier to allow him to participate in a same sex union
celebration. The parties filed an Agreed Statement of Facts
which sets out certain relevant information:
1. Mr. Boutilier has been an employee (Physical
Scientist - PC) of the Department of Natural
Resources Canada (formerly Energy, Mines and
Resources) in Halifax, Nova Scotia for over ten (10)
years.
2. In May 1994, the Grievor made a verbal request for
marriage leave for July 11 to 15. He subsequently
made a written request to the Head of Regional
Reconnaissance, J. Verhoef, on July 8, 1994. See
Annex A attached.
3. J. Verhoef replied to the Grievor on August 4, 1994.
See Annex B. attached.
4. Mr. Boutilier and Brian Mombourquette had a ceremony
on July 9, 1994. The ceremony was presided by
Reverend Darlene Young of the Universal Fellowship
of Metropolitan Community Churches (UFMCC) - a
Christian Church - the parties received a
Certificate of Holy Union. (See attached Certificate
C).
5. No license or certificate of marriage was issued or
registered according to the Laws of Nova Scotia, nor
were bans read.
6. Prior to the ceremony, Ross Boutilier and his
partner obtained the following:
- living will - medical power of attorney
- general power of attorney due to incapacity
- will Annexes D & E
7. Ross Boutilier was denied leave pursuant to both
section 20.09(b)(iv) and section 20.13.
8. Ross Boutilier presented a grievance on August 18.
See Annex F.
9. On October 12, 1994, the Grievor's grievance was
denied. See Annex G.
[para4] The annexes referred to in the Agreed Statement of
Facts are not reproduced in their entirety at this point
although references to some of these documents may be made at
different times in this decision.
[para5] Mr. Boutilier further testified that he and his
partner had done everything possible to establish publicly
their partnership. The grievor indicated that he and his
partner had done everything that was possible in law to cement
their union and ensure that their commitment resembled that of
a married couple.
[para6] To that end, they invited friends and family to
participate in the celebration of their union. During the
ceremony, they exchanged vows undertaking to live openly as a
couple. Mr. Boutilier and his friend asked to be referred to
as partners.
[para7] Prior to the commitment ceremony, the grievor and
Mr. Mombourquette participated in religious preparations
leading to their union. These preparatory interviews were
conducted by Reverend Darlene Young of the Universal
Fellowship of Metropolitan Community Churches.
[para8] Mr. Boutilier recognized that it was impossible
for him to obtain a marriage licence in Nova Scotia. In order
to ensure the greatest possible legal protection for their
union, the grievor and his friend exchanged powers of attorney
and made wills as any couple would. These documents, which
were intended to affirm their commitment and declare the
seriousness of their engagement, were presented to their
guests at the ceremony held on July 9, 1994.
[para9] The grievor testified that even though his
immediate supervisors had been supportive of his request for
marriage or special leave, the leave requested had in fact
been denied. Mr. Boutilier therefore had no alternative but to
take annual leave to enjoy his post-celebration holiday. In
cross-examination Mr. Boutilier expressed the view that his
union with Mr. Mombourquette was a form of spiritual marriage
in the nature of a life-long commitment.
[para10] Reverend Darlene Young stated that the only
significant difference between a commitment ceremony in her
church and a traditional marriage lies in the fact that the
ceremony conducted by her church does not include the signing
of a marriage licence issued by the province. Reverend Young
also indicated that the Universal Fellowship of Metropolitan
Community Churches provides counseling on the break up of same
sex unions and may, at the request of the participants,
provide certificates of dissolution.
Arguments
For the grievor:
[para11] Ms. Michaud presented the following written
argument (reproduced textually):
The issue this Tribunal has to decide is whether
Mr. Boutilier is entitled to marriage leave pursuant to
Section 20.09 of the collective agreement between the
Professional Institute of the Public Service and Treasury
Board. Mr. Boutilier's marriage was to a same - sex
partner. The employer denied his request for marriage
leave saying that what took place between Ross Boutilier
and his partner was not marriage as contemplated in the
collective agreement. The employer denied Mr. Boutilier's
request for leave solely because of the interpretation
the employer has put on the definition of marriage. The
second issue, which flows from the employer's
interpretation of the word marriage, is whether that
interpretation is contrary to the Canadian Human Rights
Act. Does denying marriage leave to Mr. Boutilier in the
present circumstances constitute discrimination based on
sexual orientation? The definition of marriage suggested
by the employer applies only to a heterosexual employee.
This grievance deals with the interpretation and
application of the leave entitlement provision of the
collective agreement. Section 20.09 must be read and
interpreted with other provisions of the agreement and in
light of the law of the land. The human rights issue in
this case is that the employee benefit in question i.e.
marriage leave would be available to a heterosexual
employee. This case makes us look at the prohibition on
discrimination based on sexual orientation in light of
the judicial pronouncements since the Hewens case.
The applicable section of the contract between the
Professional Institute of the Public Service and Treasury
Board (PC contract) are :
Section 20.09 which states that the employer shall grant
leave with pay under the following circumstances:
(iv) five (5) day's marriage leave for the
purpose of getting married provided that the
employee gives the Employer at least five (5)
days notice.
(c) The total leave with pay which may be granted
under sub - clauses (b)(i), (ii), (iii) and (iv)
shall not exceed five (5) days in a fiscal year
Clause 31.01 of the same PC Agreement states:
There shall be no discrimination, interference,
restriction, coercion, harassment, intimidation, or
any disciplinary action exercised or practised with
respect to an employee by reason of age, race,
creed, colour, national origin, religious
affiliation, sex, official language or membership or
activity in the union.
Article 5 of the same contract, entitled Rights of
Employees reads as follows :
Nothing in this Agreement shall be construed as an
abridgment or restriction of any employee's
constitutional rights or of any right expressly
conferred in an Act of Parliament of Canada.
The corrective action requested, namely the
interpretation and the application of Article 20, is
clearly within the jurisdiction of this tribunal.
1. Facts - Ross Boutilier did everything he possibly
could to commit himself to his partner. He planned his
wedding, chose a date, spoke to his Minister, invited his
family, invited his fellow workers, invited his friends,
planned a reception and planned a honeymoon. Legal
documents were prepared and have been introduced :
Certificate of Holy Union, living will, medical power of
attorney, general power of attorney due to incapacity,
mutual wills. All documents were presented to the guests
as part of the ceremony during the marriage celebration.
We are not asking this Tribunal to declare that Ross
Boutilier is married pursuant to the laws of the province
nor are we asking this Tribunal to declare that the
marriage laws of the province of Nova Scotia are
discriminatory. We are asking that the Union of
Ross Boutilier and Brian Mombourquette be recognized as a
marriage for the purpose of the collective agreement. The
ceremony was celebrated by a Minister of the Universal
Fellowship of Metropolitan Community Churches (UFMCC) - a
legally recognized Christian Church - for which the
parties received a Certificate of Holy Union which states
that the parties "were joined together in the Rite of
Holy Union according to the Scriptural practice of the
Church of Jesus, the Christ".
Both Mr. Boutilier and his spouse are practising members
of the UFMCC. The marriage of Mr. Boutilier is a question
of facts on which this Tribunal can adjudicate.
The capacity to marry is a matter within the exclusive
legislative authority of the Parliament of Canada but the
solemnization and registration of marriage fall under
provincial statute - the Solemnization of Marriage Act in
Nova Scotia.
Nonetheless, marriage existed in Christian Society long
before the State started to regulate it. State control of
marriage has only existed since Henry VIII spun off from
the Roman Catholic Church in search of a divorce in the
early 1530's. Until then marriage was the affair of the
Church. Marriage and baptism were totally the affairs of
the Church for most of the history of Western
civilization. There are still Canadians who use Baptism
certificates as proof of birth. Why can a marriage
performed in a legally recognized Canadian Church not be
recognized as a marriage for the purpose of a collective
agreement? Marriage is a public recognition of a couple's
relationship that involves sex, sometimes child rearing
and economic cooperation. What makes marriage different
from cohabitation? It is the public recognition, we
submit. The question is often raised; what is there to
prevent Mr. Boutilier from getting married again next
week? The answer is, many things. The wills and the power
of attorney put important limits on his ability to do so.
Mr. Boutilier has the same societal restrictions about
remarriage as heterosexual couples have after a marriage
ceremony with family, fellow workers, friends and guests
present. How often can one invite friends to his
marriage? How often can one ask his employer for marriage
leave without it being questionned? A marriage or a
commitment ceremony with family and friends present is a
major undertaking which one does not repeat every week.
Marriage involves a lot more than a ceremony, it involves
a spiritual economical and emotional commitment. The
employer has one way to limit the usage of marriage
leave. According to Article 20 marriage leave can be had
only once a year. It is common knowledge that
heterosexuals marry more than once, yet nothing in the
contract prevents them from getting the leave benefit
every year.
Obviously there have not been any abuses in employees
using marriage leave or else it would be more restricted.
It would be unacceptable to suggest that homosexual
employees would abuse it more than heterosexual.
Heterosexuals need a divorce prior to re-marriage.
Mr. Boutilier cannot get a divorce because he cannot
secure a civil marriage but he must bring to an end his
legal commitments prior to remarrying. He needs to have
all the legal documents which we have seen, cancelled. He
could not re-marry without bringing the present marriage
to an end. Getting a divorce ends up being not much more
than redtape in certain circumstances. The
marriage/relationship could have come to an end years
before.
How is the present marriage leave clause being used?
Employees have to apply for leave five days ahead of
time. Upon their return from leave, there is no
obligation to present proof of marriage. This is so,
because in most cases the employer knows his employee and
is satisfied that the leave is being used properly. In
the present case, Mr. Verhoef and his supervisor would
have approved the leave. A number of fellow workers
attended the marriage ceremony. All who attended and
fellow employees who did not, are aware that Ross
Boutilier and Brian Mombourquette are married.
Marriage leave is granted to couples who have been in a
common - law relationship for years at the time they
choose to get married. That is when they choose to make a
public commitment.
2. The PC Collective Agreement contains a
no-discrimination clause (Clause 31.01) which does not
include sexual orientation. Sexual orientation should be
read into this clause and into this contract for many
reasons. Firstly, it should be read as being included
into Clause 31.01 either because of Article 5 of the
contract itself or because, the CHRA with its prohibition
against discrimination on the basis of sexual
orientation, applies. Sexual orientation is a prohibited
ground of discrimination under the CHRA. This has been
settled in law since the decision of the Ontario Court of
Appeal in Haig and Birch v. Canada 1992, 9 O.R. (3d) 495
(C.A.),. (Haig) and the decision of the Supreme Court of
Canada in Egan et al v. Canada (1995), 124 D.L.R. 609
(S.C.C.), (Egan).
The Ontario Court of Appeal found in Haig that sexual
orientation was an analogous ground of discrimination
under s. 15(1) of the Canadian Charter of Rights and
Freedom (the Charter), and elected to read in sexual
orientation as a prohibited ground and declared that the
CHR Act be interpreted, applied and administered as
though it contains sexual orientation in s. 3. Parliament
has since amended s. 3 of the CHRA to expressly include
sexual orientation as a prohibited ground of
discrimination.
That the Canadian Human Rights Act and the Charter must
be respected while interpreting collective agreements has
been reiterated in numerous decisions. In her decision,
Lorenzen v. Treasury Board (Environment Canada) - PSSRB
166 - 2 - 23963 and 166 - 2 - 24000 (Galipeau) June 1993,
Ms. Galipeau commented on that aspect:
The Canadian Human Rights Act is a federal Act.
It is binding on the federal tribunals. (...) In
addition, it is clearly stated at article 66(1) of
the Canadian Human Rights Act that this act is
binding on "Her Majesty in the right of Canada"
which, as I have just stated, is one of the parties
to the collective agreement at issue.
3. How can we differentiate the Hewens case (File
166-2-22732)? Two years ago, David M. Hewens was denied
"marriage leave" in a decision of Deputy Chairman
P. Chodos. We submit that since the Hewens decision,
there has been a number of decisions which would allow
you to come to a different decision, In the Hewens case,
the Grievor was asking the Tribunal to consider the
ceremony in question a marriage. The tribunal applied the
traditional meaning of marriage although there is no
definition of marriage in the collective agreement. We
are asking this Tribunal to interpret the word marriage
according to the CHRA. For marriage to be interpreted
according to the CHRA, marriage and marriage leave have
to be available to all employees. Marriage leave has to
apply to the only marriage possible between the Grievor
and his partner, namely, a religious and public ceremony
where, in the presence of their family and their friends,
Ross Boutilier and his partner proclaimed their love and
their commitment to each other. Isn't this what marriage
is all about? Isn't this why the marriage leave exists?
It would be difficult to find out exactly why the
marriage leave was introduced in the collective agreement
in the first place but we can speculate that it was to
encourage stable relationships and to allow couples time
to start a new relationship on the right foot. The
marriage leave is the employer's way of celebrating the
marriage, the public commitment and to permit a
honeymoon. This is exactly what Mr. Boutilier has done:
held a public ceremony, entered into a stable
relationship.
4. The Lorenzen case Files number 166-2-23963 and
166-2-2400, was a grievance over the denial of family
related leave and of bereavement leave as violating the
collective agreement. In that case it was argued, as it
is in the instant case, that the defining characteristic
of the Grievor's inability to receive the leave is his
sexual orientation. The effect of the employer's
interpretation of the article in question is to deny the
benefit to all same-sex couples who have at least one
thing in common: sexual orientation. The under inclusion
may be a way of permitting discrimination.
5. In the Yarrow case, Dr. Stephen Yarrow presented a
grievance concerning the employer's refusal to grant his
request for bereavement leave. He was aggrieved by the
employer's definition of spouse, and its application of
their definition. He claimed that the definition
contravened the CHRA and the Charter of Rights and
Freedom.
In that case, Mr. Newman for the Employer, objected to
the jurisdiction of this Board to hear this case. In
particular, he was objecting to the consideration of the
Charter of Rights and Freedom. He was alleging that the
adjudicator was without jurisdiction to hear Yarrow's
grievance by reason of section 91(1) of the PSSRA and due
to the fact that the Canadian Human Rights Act provided
redress. Mr. Newman had also asked that the Yarrow case
be postponed pending the outcome of the Akerstrom and
Moore complaints before the Canadian Human Rights
Tribunal. Both the Yarrow case and the Akerstrom and
Moore case stand to support the interpretation which we
are requesting: that this Tribunal has jurisdiction to
hear this case and that it must interpret the collective
agreement while respecting the CHRA. In the Determination
on the Merits, Deputy Chairperson, Muriel Korngold
Wexler, stated that denying Mr. Yarrow's request for
bereavement leave solely because the definition of
common-law spouse was discrimination based on sexual
orientation. At page 61, she says: "The distinction
between the relationship of the grievor with Mr. Murray
and others where the two partners are of the opposite
sex, is a personal characteristic, namely, sexual
orientation". At page 63, last paragraph, she concludes:
the proper function of this Board, and I, as an
adjudicator, is to apply the law of the land to the
relevant provisions of the Master Agreement. I have to
determine whether the definition of common-law spouse is
in accordance with the CHRA and the jurisprudence. A
review of the above leads to the conclusion that this
definition is contrary to the jurisprudence, the CHRA and
Article 44 of the Master Agreement. Such a definition
must, therefore be applied as though the discriminatory
provision is not there and to do so is not a violation of
subsection 96(2) of the PSSRA but the application and the
recognition of the law of the land".
6. The word marriage has many meanings, from the union
of people to the union of metals. There is no reason why
the word marriage in the collective agreement has to mean
the obtention of a certificate from the state, a civil
marriage. Tribunals are constantly asked to extend the
meaning of words which have a different traditional
meaning, for example, the word spouse has been extended
to mean common-law spouse in many contexts only since the
1970's. Being a common-law spouse, although it gives a
person most of the benefits of a legal spouse, does not
make the person married according to the provincial or
civil laws. This also applies to the words family and
family-related. Those words (and we suggest the word
marriage) can have a legal/common meaning and a different
meaning for the purpose of a collective agreement. As a
result of the Yarrow case, in c.a., the word common-law
spouse now includes same-sex spouse. Where the word
common-law spouse is used in a collective agreement it is
preceeded with the words "For the purpose of this
agreement, common-law means" and is followed by a
definition. There is nothing to prevent the meaning of
marriage, for the purpose of this contract to mean,
"declaring a spousal union in a public ceremony, whether
civil, secular or religious." Marriage would be a
question of facts. The Yarrow case was exactly about the
proper interpretation to be given to the words common-law
spouse in light of the CHRA. In her reason for judgment
in the Lorenzen case, Marguerite-Marie Galipeau
questioned the meaning of the word spouse, at page 17,
and concluded that in the absence of criteria specifying
its meaning, the term spouse could bear more than one
meaning.
"Had the parties intended that the term spouse be
restricted to persons of the opposite sex who are
legally married, they could have said so. Therefore
I conclude that the term spouse is broader and that,
although it includes spouses of the opposite sex who
are legally married, it can also include other
situations. For example, it could include persons of
the opposite sex who have become spouses through a
religious ceremony but who have not gone through the
process of marrying according to the law in the
province in which they reside.
And how, you ask me, will we know if the ceremony has
been such as to be recognized as a marriage for the
purpose of the contract? This will have to be ascertained
by the facts in each situation. It probably would not be
sufficient for a couple to say that they have declared
themselves married while spending time alone together.
Marriage continues to require a public ceremony with
witnesses or a religious ceremony with
documents/certificate. It is a public commitment
ceremony.
How much will this cost the employer? An insignificant
amount. The questions of costs was raised in the Moore
and Akerstrom case. In that case a Mr. Ambridge
testifying for the Treasury Board informed the Tribunal
that, although some inquiries had been made of other
jurisdiction within Canada to obtain information about
cost and take-up rates, no hard data was available.
Mr. Ambridge agreed that the cost increases of extending
benefits to same - sex spouses would be quite modest in
comparison to some of the other increases experienced by
the Plans over the years. ... see pages 10 and 14.
Very few gays and lesbians have asked for marriage leave
in the last five years. We have noted the Hewens case in
1992. PSAC tells me that they have one outstanding case
dealing with same-sex marriage leave.
7. Why are we saying that the denial of marriage leave
constitutes discrimination based on sexual orientation?
Would not a heterosexual couple who does not get married
in a civil ceremony, i.e. not obtain a provincial
license, be denied this leave? We suggest that if a
heterosexual employee did what Mr. Boutilier did (that
is, announced his forthcoming marriage, asked for
marriage leave, invited his fellow-workers, his family,
married in his Church, obtained all the legal protection
which was available to him, etc.), he would have been
granted five days leave pursuant to the collective
agreement. There is nothing in the contract to indicate
that the marriage leave is for people to be married
according to the laws of the province. It is an employee
benefit to recognize a public commitment.
8. My learned friend will refer to the Ontario
Divisional court case of Layland v. Ontario (Minister of
Consumer and Commercial Relations) as standing for the
principle that it is not discrimination to refuse to
grant a marriage licence to a same-sex couple. We submit
this case can be distinguished since this is not the
remedy which we are seeking. This is a decision of the
Trial Division of the Ontario Divisional Court. It is
from a totally different jurisdiction. One of the three
justices on the case decides that the common law did not
prohibit same-sex marriage.
9. We are not asking the Tribunal to amend a collective
agreement only to interpret it in the light the CHRA and
the recent jurisprudence. It is now crystal clear that
the law is, that denial of the extension of employment
benefits to gays and lesbians which would otherwise be
extended to heterosexuals is discrimination on the
prohibited ground of sexual orientation. In the Moore and
Akerstrom case, the Canadian Human Rights Tribunal
referred to employee benefits as - part of the
remuneration package of employees - designed to attract,
compensate and keep employees. These are earned benefits
that should be available to all.
The Moore and Akerstrom case reiterates the purpose of
the CHRA. At page 34, the Tribunal states:
The Canadian Human Rights Act sets out in
section 2 the purpose Parliament had in mind in
passing this quasi-constitutional legislation into
law. It identifies the following central principle:
...that every individual should have an equal
opportunity with other individuals to make for
himself or herself the life that he or she is
able and wishes to have, consistent with his or
her duties and obligations as a member of
society, without being hindered in or prevented
from doing so by discriminatory practices...
At page 35. the Tribunal goes on to say:
If we can draw a distinction between traditional
family structures and traditional family values, it
becomes evident that we are looking at couples who
by virtue of their sexual orientation cannot form a
traditional family structure in terms of gender
composition but nevertheless wish to affirm and
uphold traditional family values by forming a
loving, nurturing union in which they share all
aspects of their lives and assume responsibility for
each others well-being.
If they are to be afforded the equal opportunity as
contemplated in s. 2 of the Act to assume this
responsibility, then changes must be made to remove
the existing obstacles...
In paragraph c) of the Moore and Akerstrom case at page
37, the tribunal ordered that the employers cease and
desist in the application of any definition of spouse
which has the effect of denying the provision of
employment benefits to same sex common law spouses. The
Employers were also directed to interpret any definition
of spouse or any other provisions of the following
documents namely the Foreign Services Directives, The
Collective Agreements, National Joint Council policies,
the Public Service Health Care Plan and Dental Care Plan
to be in compliance with the CHRA and Charter so as to
include same sex common law couples.
The Tribunal ordered that the definition of spouse be
interpreted to comply with the CHRA and the Charter. This
could easily be accomplished by interpreting the
definition of spouse or common law spouse as found in the
documents as if the words "of the opposite sex" were not
included in the definition.
The Moore and Akerstorm decision also ordered that,
within sixty days of the issuance of the decision,
Treasury Board in consultation with and in cooperation
with the Commission, prepare:
(1) an inventory of all legislation, regulations,
directives, etc. which either contain definitions of
common-law spouse which discriminate against
same-sex common-law couples or in some other way
operate, when applied, to continue the
discriminatory practice based upon sexual
orientation in the provision of the
employment-related benefits and present such
inventory in writing to the tribunal within the
sixty-day period...
(2) a proposal for the elimination of all such
discrimination provisions to be presented to the
Tribunal within the sixty-day period.
The proposals which PSAC, PIPSC and PAFSO have prepared
in response to their obligation to negotiate a collective
agreement free of discrimination include leave for
spousal commitment be it secular, civil or religious.
10. It would be noted that the Professional Institute
has made considerable efforts over the years in
negotiations with the employer and through the grievance
process, to seek changes which would have eliminated all
discrimination against gays and lesbians. The language
proposed in the on-going rounds of negotiations include a
marriage leave provision which would grant leave for the
purposes of declaring spousal union in a public ceremony,
whether civil, secular or religious. The rational for
this proposed language is that a neutral approach to the
celebration of spousal union becomes necessary given that
the existing marriage leave provision is discriminatory
(in the sense that gay and lesbian couples cannot secure
civil marriage and are thus precluded from enjoying the
contractual leave entitlement.
This language is part of the package presented by PIPSC
to Treasury Board on April 22, 1997. That package flows
from paragraph 6 of the Memorandum of Agreement dated
March 19/20 wherein the parties "agree to consult on
technical amendments to reflect the Public Service Reform
Act, 1993 and any other mutually agreed technical issue".
Prominent among the additional subject matter on which we
seek to reach agreement are issues related to the
extension of collective agreement benefits to spouses in
same sex relationships. We submit that it is only a
matter of time before the marriage leave clause will be
amended.
11. The employer has had an opportunity to grant leave
to Mr. Boutilier who had asked for it under clause 20.13
on analogous grounds. The Employer could have granted
this discretionary leave. This would have been acceptable
to Mr. Boutilier. In his August 4, 1994 response
Mr. Verhoef wrote "we cannot divert to a general clause
when an employee does not qualify for leave under an
existing clause." We submit that this is exactly the
purpose of clause 20.13 - to grant leave for purposes
other than those specified in the collective agreement.
It provides leeway to the employer to be a considerate
employer. The language of clause 20.13 is very clear. If
the employer maintains that the purpose of clause
20.09(b)(iv) is to provide leave for heterosexual
marriages then the gay marriage of Mr. Boutilier
necessarily falls under the purview of 20.13 leave for
purposes other than those specified in the collective
agreement. These purposes are distinct.
In conclusion, we submit that the definition of marriage
proposed by the employer has the effect of denying the
provision of an employment benefit to homosexual
employees contrary to the CHRA. Our request is similar to
the request in the Yarrow case which was to interpret the
definition of the word spouse so as to apply to same-sex
couples. We are asking that the definition of marriage be
applied to eliminate its discriminatory effect on gays
and lesbians. This is even a simple request: no words
have to be deleted.
We have little doubt that this leave will be available to
employees within one year. As usual we trust that this
Tribunal will serve to lead the way by applying all
sections of the collective agreement in a manner free of
discrimination. Marriage is an important goal for many
gays and lesbians for one thing they seek: public
acceptance of who they are. It is part of their struggle
for equality. Your decision could be one more step in
eliminating discrimination against gays and lesbians.
For the employer:
[para12] Mr. Newman stated at the outset of his argument
that the employer recognized the grievor had given the
employer the requisite five days' notice pursuant to
paragraph 20.09(b)(iv) of the collective agreement. The matter
was therefore to be dealt with on the merits.
[para13] This grievance raises the question whether Mr.
Boutilier is entitled to marriage or special leave to attend a
ceremony and to take a holiday following that ceremony. In his
request for leave (Annex A - Agreed Statement of Facts) the
grievor asked for annual leave in the alternative. Since the
employer granted annual leave, the grievance should be denied
on that basis alone.
[para14] On the question of marriage leave, much has been
made of recent jurisprudence equating same sex relationships
with common-law relationships (see Lorenzen, Board files
166-2-3963 and 166-2-2400 and Yarrow, Board file 166-2-25034).
The issues discussed in these cases should not be confused
with the granting of marriage leave to partners of the same
sex. The Lorenzen and Yarrow jurisprudence merely seeks to
extend to same sex partners benefits which had previously been
granted to common law couples.
[para15] The situation related to marriage is different.
The parties have agreed in their collective agreement (exhibit
G-1) that a specific benefit should be available upon
marriage. In our society, not everybody can get married. The
law imposes limits on who can marry; those limits may relate
to age, marital status, degree of relationship and sex.
[para16] The grievor seeks a redefinition of the term
marriage to provide greater rights for same sex partners who
are not able to engage in a lawful marriage. In effect, the
grievor is asking that same sex unions be recognized as
marriages in this country.
[para17] In order to allow this grievance one would have
to do violence to the ordinary meaning of the word marriage.
The word marriage as it is used in the collective agreement
obviously refers to a legal marriage. When the law recognizes
same sex unions as marriages, then the benefits of the
collective agreement relating to marriages will flow.
[para18] The employer is not trying to diminish the
seriousness or importance of the grievor's commitment
ceremony. The employer is merely questioning the right of an
adjudicator to order it to pay for a vacation taken in
conjunction with a commitment ceremony.
[para19] The Hewens case (Board File 166-2-22732) has
decided this very issue and nothing has changed since then to
warrant a different decision. It is interesting to note that
the "no discrimination" clauses in Hewens and in the PIPSC
Master Agreement specifically refer to sexual orientation
whereas article 31 of Exhibit G-1 does not.
[para20] In Layland v. Ontario (Minister of Consumer and
Commercial Relations), 104 D.L.R. (4th) 214, the Divisional
Court of Ontario found that refusing to issue a marriage
licence to persons of the same sex did not constitute
discrimination contrary to section 15 of the Charter even
though it did conclude that sexual orientation was an
analogous ground of discrimination under the said section 15.
[para21] Basically, the law equates same sex partners with
common law spouses who also don't get marriage leave.
Homosexuals of opposite sexes may marry and obtain marriage
leave. The bottom line is that there has to be a marriage to
get marriage leave.
[para22] In Egan et al v. Canada (1995), 124 D.L.R. 609,
the Supreme Court of Canada determined that refusal to grant
certain financial benefits on the basis of sexual orientation
was not contrary to the Charter. Based on this jurisprudence,
the grievor's claim for marriage leave must be denied.
[para23] The next issue in this case centers on the
availability of paid special leave once marriage leave has
been found not to be appropriate in this case. Clause 20.13 of
the collective agreement is fully discretionary.
[para24] In any event, the grievor sought special leave to
get married. Since Mr. Boutilier is not entitled to marriage
leave, he cannot obtain the same benefit indirectly under a
special leave clause. The Nandy (Board File 166-2-15442),
Black (Board File 166-2-17248 and 17249) and Kwamsoos (Board
File 166-2-13612 and 13613) decisions support these views.
[para25] There is therefore no basis for Mr. Boutilier's
grievance which must necessarily be denied. This matter should
be resolved through the collective bargaining process.
Reasons for Decision
[para26] The grievor in this case was denied marriage and
special leave following a commitment ceremony with his same
sex partner. The discussions surrounding sexual orientation in
recent jurisprudence have been more in the nature of a polemic
than anything else.
[para27] In Egan (supra) the Supreme Court of Canada was
split on the issue. Four of the nine judges found the
definition of "spouse" in the Old Age Security Act which
extended its benefits only to heterosexual couples did not
violate section 15 of the Charter. Another four judges
determined that the Old Age Security Act did, in fact, offend
the Charter and that its provisions in this regard were not
saved by section 1 of the Charter as a reasonable limit
prescribed by law in a just and democratic society.
Mr. Justice Sopinka tilted the scales of justice in that case
in favour of the State. He found that the definition of spouse
in the Old Age Security Act did infringe on section 15 on the
Charter but was saved by section 1 on the stated belief that a
government with limited funds to address social needs must be
given some flexibility in determining the disbursement of
those public funds.
[para28] Of importance in all this is the fact that a
majority of the judges in Egan concluded that sexual
orientation is an analogous ground for the purposes of
section 15 of the Charter. It was following this decision and
as a result of it that the Canadian Human Rights Act was
amended in 1996 to include sexual orientation as a prohibited
ground of discrimination.
[para29] The Supreme Court of Canada has stated on many
occasions the particular importance of human rights
legislation. Its edicts must govern the conduct of our lives
and provide a backdrop against which legislation, regulation
and certain contracts must be interpreted. It is not
sufficient in a case of this kind to decide the issues on the
simple basis that the parties to the collective agreement
obviously never intended that marriage leave apply to
homosexual unions. The decision of any adjudicator under the
Public Service Staff Relations Act must reflect the societal
values contained in the Charter and the Canadian Human Rights
Act. The fact that the parties likely did not discuss this
matter during their negotiations is therefore of little solace
to me.
[para30] I was struck by the level of commitment that
exists between the grievor and his partner. Mr. Boutilier did
everything possible, from the commitment ceremony attended by
family, friends and colleagues, to the preparation of wills
and various powers of attorney to prove that the level of
commitment in his union was as high as that found in most
heterosexual marriages. In a case such as this one, it serves
little purpose to argue that homosexuals can benefit from
marriage leave by marrying a person of the opposite sex, when
the obvious preference for gay persons is to choose partners
of the same sex.
[para31] I believe it is wrong to equate the union between
the grievor and his partner to a common law relationship
between heterosexuals. Such an equation invariably leads to
the argument that since common law couples don't get marriage
leave, neither should same sex partners. A better analogy
would be to equate common law couples with same sex partners
who live together without the benefit of a commitment ceremony
and the other legal steps taken by Mr. Boutilier in this case.
In both these latter situations a choice has been made not to
formalize the relationship that exists between the partners.
[para32] The Layland case (supra) stands for the
proposition that a marriage licence cannot issue to same sex
partners in Ontario. Presumably the same conclusion would be
drawn by the Courts of Nova Scotia. I am not, in this case
being asked to have issued a marriage licence or to strike
down legislation which does not allow for such possibility. I
am simply required to interpret the words of a collective
agreement in a manner that is consistent with the very basic
human rights principles mandated by Parliament.
[para33] It is interesting to note that the majority in
Layland, while finding that the common law limitation of
marriage to persons of opposite sex did not violate section 15
of the Charter, in fact left many questions unanswered when
they concluded by saying: "Whether parties to homosexual
unions should receive the same benefits as parties to a
marriage, without discrimination because of the nature of
their unions, is another question" (op cit, at page 223).
[para34] I recognize that marriage has traditionally been
limited to unions between men and women. This principle has
been consecrated in case law for a long time. The law however
is never static. It moves over time to reflect the values of
the society it regiments. "Law can never issue an injunction
binding on all which really embodies what is best for each; it
cannot prescribe with perfect accuracy what is good and right
for each member of the community at any one time. The
differences of human personality, the variety of men's
activities and the inevitable unsettlement attending all human
experience make it impossible for any act whatsoever to issue
unqualified rules holding good on all questions at all times."
(Plato, Politicus)
[para35] Giving marriage leave benefits to gays and
lesbians pursuant to a collective agreement, does not take
away from the institution of marriage between heterosexuals.
Rather, the granting of such "family related" leave in
situations such as the one I am faced with in this case,
merely recognizes the fact that the homosexual community
possesses the right to establish families in pursuance of
their sexual orientation.
[para36] I have decided that Mr. Boutilier's grievance
should succeed. In doing so, I need not do violence to the
collective agreement, strike down portions of it or read in
missing portions, I need only interpret its words in a manner
that is consistent with the principles set out in the Canadian
Human Rights Act. Rejecting this grievance, on the other hand,
would amount to denying to Mr. Boutilier the equal benefit of
the collective agreement as required by the Canadian Human
Rights Act.
[para37] Although The grievor's request for marriage leave
precedes the 1996 amendments to the Canadian Human Rights Act
referred to earlier, the Federal Court in Nielsen v. Canada
(Human Rights Commission), 95 CLLC 230-021 at 145,214/5, has
previously ruled that, as of 6 August 1992, sexual orientation
had to be read into section 3 of the Canadian Human Rights Act
as a prohibited ground of discrimination. The principles
contained in the Canadian Human Rights Act therefore clearly
apply in this case. The application of those principles in
this matter requires that I do more than simply pay
lip-service to them.
[para38] My decision in this case should not be taken to
mean that the grievor has entered into a lawful marriage under
the laws of Nova Scotia. That I have no authority to do. This
decision merely recognizes that the steps taken by the grievor
in this case were sufficient to bring about the application of
paragraph 20.09(b)(iv) of the collective agreement and that
"marriage" for the purposes of article 20.09 includes the
union which took place in this case. Article 20.09 generally
applies to leave for family related responsibilities. The
definition of family after Lorenzen and Yarrow must
necessarily include certain homosexual relationships.
[para39] I do not accept the employer's contention that
the granting of annual leave to Mr. Boutilier precluded him
from pursuing his grievance. The grievor accepted annual leave
under protest and only because of his correct intention not to
be absent from work without adequate permission and
documentation. The grievor's request for leave makes this very
clear (Agreed Statement of Facts, Annex A). This document also
puts the employer on notice that any refusal to grant marriage
or special leave will likely be contested.
[para40] Because of what precedes, I need not discuss the
question of special leave. I would nevertheless like to state
that considering the language of the special leave provisions
in this case, I would have found that the grievor was not
entitled to special leave. The employer's decision in this
case to refuse special leave was well within the exercise of
discretion allowed to it by the collective agreement.
[para41] For the reasons set out herein, Mr. Boutilier's
grievance is allowed.
Safe Schools
