** Unedited **
Indexed as:
Kane v. Ontario (Attorney-General)
Between
Kelly Kane, and
The Attorney-General for Ontario, and Her Majesty the Queen,
in Right of Ontario, as represented by the Minister of Finance
and Axa Insurance Co.
[1997] O.J. No. 3979
No. RE 6451/96
Ontario Court of Justice (General Division)
Coo J.
Heard: September 23, 1997.
Judgment: October 1, 1997.
(6 pp.)
Counsel:
Cynthia Petersen and Kate Erickson, for the applicant.
Peter Landmann, for the respondents except Axa.
Holly J. Nickel, for the respondent Axa.
[para1] COO J. (endorsement):-- This is an application for
a declaration that the definition of "spouse" in section
224(1) of the Insurance Act, insofar as it touches the right
of the applicant to claim a death benefit under Part III of
Regulation 672 (the No-Fault Benefits Schedule) is
unconstitutional as being in breach of section 15 of the
Charter of Rights.
[para2] Section 11 of Part III provides, in its material
parts that:
"... If as a result of an accident, an insured person
dies ... the insurer will pay ... $25,000 to ... her
spouse ..."
[para3] Spouse is defined, in part for the purpose of
section 11, in section 224(1) as follows:
"Spouse" means either of a man and a woman [emphasis
added] who,
(a) are married to each other,
(b) have together in good faith entered into a
marriage, or
(c) are not married to each other, and have
cohabited continuously for a period of not less
than three years, or have cohabited in a
relationship of some permanence if they are the
natural or adoptive parents of a child.
[para4] The applicant was in a close and long-lasting
relationship, to which were attached most of the
characteristics listed by Kurisko J. in Molodowich v.
Penttinen, (1980), 17 R.F.L. (2d) 376 at 381-382, with a woman
who was killed in a motor vehicle accident. She made a claim
on the relevant policy and the claim was denied, since there
had been, in her case, a same-sex relationship. The denial by
the insurer was entirely reasonable in the circumstances,
since there was clearly no coverage provided by the
statutorily-mandated form of policy.
[para5] The Attorney-General conceded before me and in his
factum that the provisions of section 15 were infringed. The
insurer did not formally make the same concession, but there
is no doubt on the material that the breach has been clearly
established, examining the circumstances against the
background of the three stage test commented on by Gonthier J.
in Miron v. Trudel [1995] 2 S.C.R. 418 at page 435.
[para6] There is danger in over-simplification, but
reliance is placed by the respondents on section 1 of the
Charter, with heavy emphasis on the decision of the Supreme
Court of Canada in Egan v. Canada, [1995] 2 S.C.R. 513, to
support the argument that the relevant statutory provision is
constitutional. As for M. v. H. (1996), 31 O.R. (3d) 417, it
is urged that I should simply treat it as wrongly decided and
take into account that it has been appealed to the Supreme
Court of Canada. The decision is, of course, binding on me.
Alternatively it is put that Egan simply governs. In
addition, the respondent insurer makes the point that while
insurers generally would have no objection at all to providing
coverage of the sort claimed here, it should only be on the
basis of a received premium, however modest, reflecting that
coverage.
[para7] The applicant relies on the recent decision of the
Ontario Court of Appeal in M. v. H. Egan is sought to be
distinguished on the ground that there is nothing in the
reasons given in that case, by Sopinka J. or by LaForest J.,
with whom other justices agreed, to foreclose a determination
here that the section of the Act is unconstitutional.
[para8] There was, of course, reference to a large number
of authorities on both sides, all except two or three of which
are listed or referred to in the factums.
[para9] This matter is to be determined by an appellate
court, whatever my decision on the merits.
[para10] I have concluded that unless there is something
in Egan that stands in the way, there should be a declaration
that in the precise context in which the application has been
argued, the definition section is unconstitutional and the
language of section 1 of the Charter provides no relief.
[para11] There is clearly a breach here of the applicant's
rights under section 15 of the Charter. I will spend little
time analyzing this obvious and in effect unchallenged
conclusion, manifestly supported by the material made part of
the record in this case. (I am sensitive, in this area, to
the comments made about concessions by Finlayson J.A., in
dissent in M. v. H.)
[para12] There is a legislative distinction by way of
denial of equal benefit.
[para13] This denial is discriminatory. There has been an
historical group disadvantage suffered by the homosexual
community. The distinction created by the legislation does
not depend on any contrast or comparison between married and
unmarried couples. The denial of equal benefit contained in
the legislative provisions is deliberately based only on
sexual orientation and runs against the preservation of human
dignity and self-worth for part of our society. The
legislative scheme manifestly declares that opposite sex
couples are entitled to rights and advantages to which
same-sex couples are not and thus inferentially makes the
point that certain clearly defined relationships should be
entitled to, and certain clearly defined relationships should
not be entitled to, recognition and respect. The declaration
simply carries forward and nurtures now abandoned
stereotypical concepts that have no place in the fabric of our
community. This is the very sort of result with which section
15 was designed to deal and forbid.
[para14] To engage briefly in the required analysis
dealing with section 1 of the Charter, and recognizing that
the burden rests with the respondents, I have concluded that
the exclusion of same-sex couples from the definition referred
to does not constitute a reasonable limit as can be
demonstrably justified in a free and democratic society.
[para15] It is very difficult for me to see how the law
that excludes same-sex couples from the benefit that is the
subject matter of this application can be categorized, to use
the language of R. v. Oakes, [1986] 1 S.C.R. 103 as having an
objective, which measures responsibility for a limit on a
Charter right, that is of sufficient importance to warrant the
overriding of a constitutionally protected right or freedom.
The objective and the exclusion are not related in any
rational way, so that the former can in effect justify the
latter.
[para16] It was concluded in Miron v. Trudel that at least
one of the goals of the legislation in issue is to sustain
families when one member is injured in a motor vehicle
accident. It is argued by the Attorney-General that, to a
very important degree, the objective of the definition section
was to foster and to support the concept of the heterosexual
family where the procreation and nurturing of children is
generally, although of course not always, the cornerstone of
the relationship. I do not see the object of the legislative
provisions in this way. There is nothing in the Act or in the
Regulation that helps to convince me that this was one of the
essential or supplementary purposes of the way in which the
definition in section 224(1) was written. Certainly there can
be same-sex families that involve the raising of and caring
for children, adopted or otherwise, for a variety of reasons.
Equally there can be heterosexual families in which adopted
children take their place. The benefits to be found in
Regulation 672 do not depend on the existence of children;
there are in our society a plethora of two person families.
It is to be noted in this connection that there is, in the
definition section, a specific shortening of the time two
persons are required to have had continuous cohabitation where
there are children. This suggests that the primary focus was
not on children, since the basic provisions deal with the
situation where there are none.
[para17] To the extent that it might be argued that there
is something internal to the definitional words that supports
the Attorney-General's submission, there would be indulgence
in the circular reasoning referred to by Charron J.A. in M. v.
H., at page 447 and following, and by McLachlin J. in Miron v.
Trudel at pages 488 and 489.
[para18] The point is to be made that the definition of
"dependant", for the purpose of the Regulation in issue, is
very broadly cast in section 3(2) of Part I of Regulation 672,
and could include those who are indeed children of a person in
a same-sex spousal relationship.
[para19] Whether or not there are factions in any notional
homosexual community that do or do not support the concept of
a spousal or family atmosphere for couples is irrelevant.
Undoubtedly some in the heterosexual community see things
differently, and that too is irrelevant. Such social issues
have nothing to do with legislative choice and judicial
deference in regard thereto, or with any argument based on an
incremental approach to the legislative process. The fact
that some might not want or support the provision of a benefit
is neither here nor there.
[para20] The legislation as a whole, including the
relevant regulation, was crafted as part of a legislative
package designed to reduce in Ontario the volume of motor
vehicle accident litigation. Part of this goal was to be met
by providing for automatic no-fault benefits, including death
benefits, without demonstration of actual loss or compensable
damage. There was a bold attempt to structure motor vehicle
accident claims and benefits to make the process more fair and
rational, with less litigation based on fault. It was not
part of any broad welfare or general benefits scheme having at
its heart, or as a major aspect of its foundation, the
preservation of the old family concept that supports the
government's argument on this point.
[para21] There is no real issue of proportionality.
Exclusion of same-sex relationships adds nothing meaningful to
the scheme, except discrimination based on sexual orientation.
There is no larger picture or broader consideration involved,
and nothing that would be adversely affected by removing the
violation of the applicant's Charter rights.
[para22] We are not dealing here with any balancing of
competing interests and hard economic or other choices to be
dealt with by the legislature. There is no suggestion that I
have to consider the legislative provisions against the
background of the "proper distribution of scarce resources"
referred to by LaForest J. in McKinney v. University of
Guelph, [1990] 3 S.C.R. 229 at 288.
[para23] I do not accept that Egan governs the
circumstances with which I am faced. The sort of cost
consequences referred to by Sopinka I, and dealt with by
LaForest J. in McKinney, to which there is direct reference in
Egan, are not the sort of commercial insurance coverage costs
that are in issue here. Such evidence as there is on the cost
point runs in the opposite direction. Almost as an aside, it
is clear that the death benefits portion of the policy is one
of the least expensive parts of the coverage, given the third
party liability provisions and the $500,000 limit on the
amount payable for Part II supplementary and rehabilitation
and care benefits.
[para24] There was no crafting to limit impairment. There
was simple exclusion of the relevant group.
[para25] While there was almost oblique reference in
argument to there being 90 places in the legislation of
Ontario to "spouse" or "spouses", there is nothing in the
material, whatever may have been before the judges of the
Supreme Court in Egan, as to the relevance of this to anything
that is put into issue here in terms of analysis of
prospective cost to government or to society.
[para26] There is no sign that what has happened
legislatively in recent years in the motor vehicle insurance
field reflects even the thought of any incremental approach to
the solution of multifaceted social and family problems.
There is no legitimacy to a position that relies on the
balancing of needs of various segments of the population
touched by the legislation and calling for deference and a
conclusion that section 1 applies.
[para27] As for relief, there should be the required
declaration that the section is unconstitutional insofar as it
provides a limiting definition of "spouse" for the purpose of
the death benefits provision of Regulation 672. It should be
altered in accordance with the request of the applicant set
forth in paragraph 140 (c) of the applicant's factum, so that
the section will read, for that purpose, in its changed
material parts:
"spouse" means either of two persons who ... are not
married to each other and have cohabited continuously for
a period of not less than three years ...
[para28] The next question is whether the applicant is
personally entitled to relief by way of a declaration about
and judgment in her favour for the $25,000.00 death benefit,
together with interest in accordance with the Courts of
Justice Act. The applicant's position is that she is entitled
to that which has been denied to her as a result of
legislative unconstitutionality and that she should not be
faced with having gone to all this expense and trouble, only
to have a decision rendered that is academic for her. In this
she is right and an order will go accordingly.
[para29] The Attorney-General does not seek postponement
of any entitlement that may flow from my ruling.
[para30] Axa takes the position that it issued a policy in
accordance with the legislative directions of the government
and that the present applicant could have moved, when she
received the policy in the first place, for the sort of relief
that she now seeks; and that had matters unfolded in that way
there might have been provided to the insurer the opportunity
to collect additional premiums of the sort now lost to it
forever. I do not see this as a realistic historical
alternative.
[para31] Axa does not dispute that the constitutional
issue impacts the contractual obligations of an insurer but
takes the position, in regard to any ruling of mine that might
run against its position, that there is an important principle
to the effect that legislation is not ordinarily
retrospective. That principle can have no practical impact
here, since to apply it globally would be to sanction by rote
past unconstitutional action on the part of the legislature.
[para32] It is not clear just what sort of premium would
have had to be paid had the coverage been written in
accordance with these reasons. What is clear is that such
additional cost would have been minimal to an insured. I see
no practical or policy reason to deprive the applicant of the
fruits of her litigious labour, albeit there is inevitably
discomfort with the impact on insurers, however modest, of the
decision. Whether relief, in the form of premium rating, is
possible is not something that is before me, and was not
discussed in any meaningful way by counsel in response to my
expressions of concern with regard to premium shortfall and
reserves.
[para33] The costs of the successful applicant should be
paid by the Attorney-General on a party and party basis, after
assessment. I invited counsel to specify a range within which
costs might be fixed. That brought broader submissions in
writing, but it is readily apparent that there is no narrow
range upon which counsel are prepared to agree. I am not
prepared to fix the costs in this situation.
[para34] The insurer, very responsibly as I see the
situation, seeks no costs and therefore none will be awarded.
It certainly should, in the circumstances in which it has
found itself, bear no responsibility for the costs of any
other party.
[para35] The costs awarded should not be on a solicitor
and client basis, since there is no justification for
exercising any special discretion that might be mine in this
regard and there is no principled support for such an enlarged
order. I have gone through the written submissions of counsel
on the costs issue and have re-read the cases to which they
have referred. There was nothing in the conduct of the
government that would support a solicitor and client order,
nor was the matter so free of difficulty that one might
suggest that the matter should have been conceded. On the
other side of the litigious scale, this is not a special
situation in which an order for solicitor and client costs is
required to do justice to the applicant. There is no general
principle that citizens who engage in Charter litigation are
to be treated in some special way because the issues involved
may be of broad impact on society. I have approached the
problem in the same general way as did Osler J. in Canadian
Newspapers Co. v. Attorney-General of Canada (1986), 56 O.R.
(2d) 240, recognizing that each case must be carefully
examined on its own merits and on the basis of its particular
facts.
COO J.
cp/s/ln/bbd
pc
End of document.
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