Indexed as:
Moore v. Canada (Treasury Board)
IN THE MATTER OF THE CANADIAN HUMAN RIGHTS ACT, R.S.C.
1985, c. H-6 (as amended);
Between
Stanley Moore and Dale Akerstrom, Complainants, and
Canadian Human Rights Commission, Commission, and
Treasury Board, Department of Foreign Affairs & International
Trade, Canada Employment and Immigration Commission, Public
Service Alliance of Canada and Professional Association of
Foreign Service Officers, Respondents, and
Professional Institute of the Public Service of Canada,
Interested Party
[1996] C.H.R.D. No. 8
No. T.D. 8/96
Canadian Human Rights Tribunal
Ottawa, Ontario
K.C. Norton, Chairperson, J. Ellis and J.G. Sinclair, Members
Heard: October 10 to 13, 23, 24 and 26, 1995
Decision: June 13, 1996
(41 pp.)
Rosemary Morgan, for the Canadian Human Rights Commission.
No Counsel mentioned, for the Complainants.
Brian Saunders and James Hendry, for the Treasury Board, the
Department of Foreign Affairs and International Trade and
Canada Employment and Immigration Commission.
Andrew Raven, for the Public Service Alliance of Canada.
Catherine MacLean, for the Professional Association of
Foreign Service Officers and the Professional Institute of the
Public Service of Canada.
INDEX
A INTRODUCTION 1
B. EVIDENCE 3
I Evidence Presented by the Canadian Human Rights
Commission 3
1. Stanley Moore 3
2. Pierre Soucy 5
3. Dale Akerstrom 6
4. Alexander Dias 8
5. John Fisher of E.G.A.L.E. 9
II The Respondent Employer 11
The Treasury Board, The Department of Foreign
Affairs and International Trade and Canada
Employment and Immigration
1. John Ambridge 12
III The Union Respondent in Dale Akerstrom's Complaint15
The Public Service Alliance of Canada
1. Carole Brunt 15
2. Don Pease 17
IV The Union Respondent in Stanley Moore's Complaint 18
The Professional Association of Foreign Service
Officers
1. Peter Cenne 18
V The Interested Party 20
The Professional Institute of the Public Service of
Canada
1. Steve Hindle 20
C. THE ISSUES 22
D. ANALYSIS 22
E. FINDING 34
F. REMEDY 34
TRIBUNAL DECISION
A. INTRODUCTION
[para1] This Tribunal heard the complaints of Stanley
Moore and of Dale Akerstrom.
[para2] Stanley Moore's complaints are dated February 15,
1994. His complaints are filed as four separate complaint
forms, two of which name both External Affairs and
International Trade Canada as Respondent, one which names the
Professional Association of Foreign Service Officers as
Respondent, and the fourth which names the Treasury Board of
Canada as Respondent. Each complaint pertains to
discrimination on the grounds of sexual orientation and family
status.
[para3] The complaints against External Affairs and
International Trade Canada allege that the Respondent
discriminated against Mr. Moore by treating him in an adverse
differential manner contrary to section 7 of the Canadian
Human Rights Act (the Act), and by pursuing a policy or
practice that tends to deprive a class of individuals of
employment opportunities contrary to section 10 of the Act.
[para4] The complaint against the Treasury Board of Canada
alleges that the Respondent pursues a policy or practice and
has entered into an agreement that tends to deprive a class of
individuals of employment opportunities contrary to section 10
of the Act.
[para5] The complaint against the Professional Association
of Foreign Service Officers (PAFSO) is also pursuant to
section 10 and refers to the Respondent entering into an
agreement that tends to deprive a class of individuals (gay
members) of employment opportunities.
[para6] Dale Akerstrom signed five complaint forms on
February 3, 1993. One complaint names Canada Employment and
Immigration Commission and alleges that the Respondent denied
employment benefits under the Public Service Health Care Plan
on the basis of marital status, family status and sexual
orientation contrary to sections 7 and 10 of the Act. The two
complaints against the Public Service Alliance of Canada refer
to the Respondent making an agreement which denies employment
benefits to same-sex spouses contrary to sections 9 and 10 of
the Act. The two complaints against the Treasury Board refer
to making an agreement which denies employment benefits to
same-sex couples contrary to section 10 of the Act and the
denial of benefits contrary to section 7.
[para7] At the commencement of the hearing, the
Professional Institute of the Public Service of Canada
requested interested party status. The grounds for the
request were that the Institute is the second largest union of
employees in the Public Service and PIPSC has been involved in
making requests on behalf of its members to Treasury Board for
extension of benefits to same-sex spouses. There was consent
to this request from all parties and interested party status
was granted.
B. EVIDENCE
I. Evidence Presented by the Canadian Human Rights
Commission
1. Stanley Moore
[para8] Mr. Stanley Moore is a Foreign Service Officer
currently employed by CIDA. In April 1990, he began living
with Mr. Pierre Soucy in a committed, spousal relationship.
They have organized their economic and social affairs to
reflect their commitment and in all respects are a couple.
Also in 1990, Mr. Moore became aware that he would likely be
posted for a two-year period to Jakarta, Indonesia. At that
time, he was a Foreign Service Officer employed by the
Department of External Affairs.
[para9] In February 1991, the posting cycle became
official and in July 1991, Mr. Moore arrived in Jakarta. His
diplomatic rank was Counsellor for Development and Counsellor
for Economics and he acted as Deputy Director for the
Development Program. He supervised local staff and filled in
as Acting Director. He had ceremonial duties and interacted
with other high level officials.
[para10] Mr. Moore applied for spousal benefits under the
Foreign Service Directives in 1991. The Foreign Service
Directives relate to a number of costs involved when
relocation is required of an employee. Mr. Moore was not able
to obtain the usual relocation assistance provided for
spouses. He testified that the Foreign Service Directives
detail official benefits but that there are also important
informal services usually provided for spouses of employees,
such as help obtaining a Visa.
[para11] Prior to leaving on his posting and again when in
Jakarta, Mr. Moore requested spousal benefits and was refused.
When he arrived in Jakarta he realized that the housing
assigned to employees junior to him was superior to his both
in the state of repair and furnishings. In terms of living
space, the house assigned to Mr. Moore for him and Mr. Soucy
was assigned as though Mr. Moore were single. Because rent is
determined by salary, Mr. Moore was paying more for less.
[para12] Mr. Soucy was employed full time by the
Employment and Immigration Commission and was able to obtain a
leave of absence without pay from his employer for two years.
He was able to keep his dental plan coverage for that period
but not health plan coverage. He was able to obtain part-time
employment in Jakarta. This part-time employment was on a
professional fee basis involving no health or other benefits.
A complete list of the benefits which are requested is
contained in exhibit HR-1 and includes accommodation costs,
post differential allowance, dental, health care, recreational
hardship support program and other benefits.
[para13] Mr. Moore communicated with PAFSO a number of
times and he found Peter Cenne helpful in terms of providing
advice and keeping him informed. It was clear to the Tribunal
that Mr. Moore felt emotionally hurt that his spouse was not
recognized. Mr. Moore was embarrassed and humiliated and
found the whole situation painful.
2. Pierre Soucy
[para14] Mr. Soucy described his relationship with Mr.
Moore by April of 1990 as "very much talking in terms of a
committed relationship and one of planning a future together."
Mr. Soucy confirmed that as of that date he presented himself
and Mr. Moore to everyone who knew them as a couple.
[para15] When Mr. Moore received confirmation that he
would be posted abroad, Mr. Soucy began to make his plans to
accompany his partner on the posting. As Mr. Moore became
aware that there would not be financial assistance for Mr.
Soucy to travel, Mr. Soucy described feeling stress because he
knew that the posting was important to his partner's career
but he also knew that Mr. Moore would be very concerned about
Mr. Soucy's feelings if supportive assistance was not
forthcoming from Mr. Moore's employer. He described the
overall situation as causing him a lot of anguish.
[para16] Mr. Soucy confirmed that in Jakarta, he arrived
to a home in a state of disrepair, yet unlike other spouses,
he was not allowed to request any work orders and this was
frustrating. Although many people were civil and tolerant and
some even more than just civil and tolerant, Mr. Soucy
remembers feeling like a "quasi non-entity" when the Embassy
staff issued its list of local Canadians as well as their
families and he was not on that list.
3. Dale Akerstrom
[para17] Dale Akerstrom has been employed by CEIC (now
renamed as Citizenship and Immigration Canada) since April
1990. In November 1990, Dale Akerstrom commenced living with
Mr. Alexander Dias in a spousal relationship. The two men
jointly purchased a condominium and other possessions,
participated in a ceremony officiated by a minister and
attended by family and friends to celebrate their
relationship, and have openly presented themselves as a couple
ever since. Mr. Akerstrom and Mr. Dias have coverage as a
same sex couple under the British Columbia Medical Health Care
Plan.
[para18] In 1992, Mr. Akerstrom approached the Pay and
Benefits Clerk at work to obtain the necessary forms to change
his benefit status from single to family. He filled out a
beneficiary form for supplementary death benefit naming Mr.
Dias as his spouse and beneficiary and a Public Service Health
Care Plan form indicating his dependant status had changed due
to "spousal relationship (marriage)". He received a telephone
call informing him that his application would not be processed
and he sent a memo requesting the grounds for this refusal.
[para19] Mr. Akerstrom received a response to his memo
which confirmed that the Public Service Health Care Plan did
not include common-law same-sex spouse coverage and inviting
him to make a submission to have the carrier's policy
reviewed. He made that submission setting out details of his
family status, offering documents relating to the ownership of
the condominium and an invitation from his commitment ceremony
and explained that he felt discriminated against. He
testified that he meant the forms and submission to change his
coverage from single to family and to refer to dental care as
well as all other benefits.
[para20] Mr. Akerstrom received a response from the Public
Service Health Care Board of Management informing him that the
Plan contains a definition which ties the definition of
common-law to the opposite sex. It was suggested that he
direct his concern to his bargaining representative. Mr.
Akerstrom never contacted his union at any point because:
"Well, I didn't feel that there would be much point in
doing that because the Public Service Alliance I felt was
kind of -- their hands were tied. They had signed an
agreement which discriminated against me, so in one sense
they had agreed to it, although in another sense I am
sure that their reason for that is that it was either
sign the agreement or lose the other parts of the
agreement. So I did not think they could be of any
help."
(Transcript, Vol. 1, page 204)
[para21] Mr. Akerstrom described feeling a fair amount of
embarrassment and a sense of disappointment in being denied
employment benefits. He has also felt large frustration at
the time and effort he has spent trying to obtain something he
feels should be straightforward.
[para22] Mr. Akerstrom's list of benefits claimed is
summarized in exhibit HR-5. The parties agreed that if the
Tribunal found in favour of Mr. Akerstrom that the parties
would discuss benefits claimed and attempt to come to an
agreement respecting quantum.
4. Alexander Dias
[para23] Mr. Dias testified that he has been in a
relationship with Dale Akerstrom since 1990. He described
that relationship as: "a committed long-term spousal
relationship." Mr. Dias stated that he is covered under the
British Columbia Medical Health Care Plan as Mr. Akerstrom's
spouse and that the premiums paid for this provincial plan are
paid by Mr. Akerstrom's employer. Mr. Dias has no other
dental or health care coverage because he is a full-time
student not currently employed other than on a casual basis.
He described feeling treated differently and treated like a
second class citizen when Mr. Akerstrom's request for spousal
employment benefits was denied.
5. John Fisher
[para24] John Fisher testified on behalf of the Canadian
Human Rights Commission. Mr. Fisher is a lawyer and the
Executive Director of the federal lobby organization:
Equality for Gays and Lesbians Everywhere (E.G.A.L.E.). Mr.
Fisher provided the Tribunal with eighty-four documents which
included correspondence, papers and news clippings
representing some of the history of the extensive lobbying
efforts of E.G.A.L.E. nationally on gay and lesbian issues.
The members of E.G.A.L.E. have presented evidence before
Parliamentary and Senate Committees and have intervened in
cases before Canadian courts including the Supreme Court of
Canada.
[para25] After Equality for All, the report of the
Parliamentary Committee on Equality Rights, included a
recommendation that the Canadian Human Rights Act be amended
to add sexual orientation as a prohibited ground of
discrimination, E.G.A.L.E. was formed in 1986 to lobby to
ensure that this recommendation was followed. Mr. Fisher's
evidence was that the gay and lesbian community had been
lobbying for the past eighteen years for this and E.G.A.L.E.
has now been lobbying for this for the past ten years.
[para26] Mr. Fisher testified that increasingly it has
become clear to him that the issues of individual
discrimination on the basis of sexual orientation is
distinguishable in the minds of some from the recognition of
same-sex relationships. Mr. Fisher explained that although
E.G.A.L.E.'s early focus was on the inclusion of sexual
orientation into the Act:
"...we did not see a distinction between inserting sexual
orientation into the Act and the issue of relationship
recognition."
(Transcript, Vol. 4, page 675)
and in the special election issue 1993 of INFOEGALE in an
article entitled: Relationship Recognition, We're Families too
appears the following passage:
"It must be obvious to any reasonably intelligent person
that being in same-sex relationships is by definition a
fundamental part of being gay."
(Exhibit HR-15, Tab. 31)
[para27] Mr. Fisher testified that there have been at
least ten unsuccessful attempts to introduce legislation to
amend the Act to include sexual orientation.
[para28] E.G.A.L.E. maintains a list of employers,
municipalities, districts, universities, and provinces across
Canada which have extended same-sex benefits and the evidence
available as to cost is that nobody has indicated a
substantial cost difficulty. Mr. Fisher testified that by and
large his research on the issue of cost is that it is likely
between .5 and 1.5% of the cost of the benefits and a number
of major employers have found basically no significant
increase. Mr. Fisher admitted that E.G.A.L.E. has performed
no studies on costs involved in extending same-sex benefits
but has drawn on the reported information that exists.
II. The Respondent Employer
The Treasury Board, The Department of Foreign
Affairs and International Trade and Canada
Employment and Immigration
[para29] Just prior to the scheduled hearing dates for
these complaints, the Treasury Board presented the following
Memorandum of Understanding to the National Joint Council
Executive Committee for the consideration of the fourteen
bargaining agents represented at the National Joint Council:
MEMORANDUM OF UNDERSTANDING
The parties agree:
- to change the approach to the interpretation of the
following provisions of collective agreements:
- Bereavement Leave
- Family-Related Responsibilities Leave
- Relocation Leave
- Foreign Service Directives
- Isolated Post Directives
- Relocation Directive
- that the benefits to which an employee who is a
common-law spouse is entitled, pursuant to the
above-cited provisions, shall be granted to an
employee who is living in a same-sex partner
relationship;
- that for the purpose of this Memorandum of
Understanding, a "same-sex partner" relationship
exists when , for a continuous period of at least
one year, an employee has lived with a person of the
same sex in a homosexual (or lesbian) relationship,
publicly represented that person to be his/her
partner and continues to live with that person as
his/her partner;
- the provisions of this Memorandum of Understanding
shall become effective on the date it is signed.
SIGNED AT OTTAWA, this........day of the month of
..................... of 1995.
(Exhibit R-5, Tab. 1)
[para30] Steve Hindle, witness for PIPSC, testified that
if signed, the Memorandum of Understanding would have the
effect of providing the benefits listed and end the
discrimination but would not change the definition of
common-law in the collective agreements. The Memorandum
refers to matters other than the Health Care Plan and Dental
Plan and was at the time of the hearing not signed by the
parties.
1. John Ambridge
[para31] Mr. Ambridge was the sole witness for the
Respondent employers and his testimony was limited to
questions and answers concerning the Public Service Health
Care Plan and the Dental Care Plan. Mr. Ambridge has been
employed by the Treasury Board for eighteen years and for the
past two years holds the position of Director of the Benefit
Plans Group.
[para32] Mr. Ambridge testified that the Public Service
Health Care Plan is not part of the collective agreements but
is managed by a Board of Management under the National Joint
Council. He said that the Treasury Board ultimately approves
the terms and conditions of the Plan but that changes in
conditions are consulted upon with the Unions in a triennial
review process within a sub-committee of the National Joint
Council.
[para33] Mr. Ambridge testified that the issues of
same-sex partner coverage has arisen and that National Revenue
maintains that including same-sex partners in the definition
of spouse would mean deregistration which means the employer
contribution to the Plan would become a taxable benefit to the
employees. Within the last year however, the Treasury Board
has been informed that there might be a possible accommodation
by providing coverage outside the established Plan.
[para34] Mr. Ambridge estimated that the cost to the Plan
of adding benefits to same-sex spouses could be $1.2 million
using a take-up rate of 1% and $2.4 million using a take-up
rate of 2% and this cost estimate was based on current rates.
[para35] The Dental Care Plan is 100 per cent financed by
the Treasury Board and there is one Plan for the National
Joint Council as well as a separate Plan for employees
represented by PSAC. Mr. Ambridge testified that the PSAC
Plan was awarded in conciliation and the other Plan was
developed in the National Joint Council process. According to
Mr. Ambridge, the definition of spouse was not an issue during
the development of either Plan.
[para36] Mr. Ambridge testified that the issue of
extending Dental Care Plan benefits to same-sex partners has
arisen and that the same factors are involved for the estimate
of cost as arose in the Health Care Plan. The rough figures
for the additional cost to the Plan to extend benefits is
$650,000 per year using a 1% take-up rate and $1.3 million
using a 2% take-up rate.
[para37] Mr. Ambridge agreed during cross-examination that
"take-up rates" is an insurance term meant to describe numbers
of people taking advantage of Plan benefits so that if 1% of
the population changes from category of single to the category
of family, the cost figure would be 1%. He went on to say
that 1% or 2% figures were based on nothing reliable and were
strictly a range used to estimate potential costs. He further
testified that the cost of a 1% take-up rate would amount to
about half of one percentage of the total cost of each Plan.
Strangely, the witness informed the Tribunal that although
some inquiries had been made of other jurisdictions within
Canada to obtain experience information about cost and take-up
rates that no hard data was available.
[para38] Mr. Ambridge agreed that the cost increases of
extending benefits to same-sex spouses would be quite modest
using these estimates in comparison to some of the other
increases experienced by the Plans over the years.
[para39] Mr. Ambridge agreed on cross-examination that a
purpose of a benefit plan is to attract and keep good
employees. A benefit plan is part of the costs of the total
compensation to an employee. Even though cost estimates were
being worked on in 1994 and even though this issue was being
raised by the Unions, Mr. Ambridge understood that the
Government as employer could not easily be separated from the
Government in other contexts such as social programs and that
would present difficulties in making decisions concerning
extending same-sex benefits to Government employees.
III. The Union Respondent in Dale Akerstrom's Complaint
The Public Service Alliance of Canada
1. Carole Brunt
[para40] Carole Brunt testified on behalf of PSAC. She is
a Research Officer employed by PSAC since 1988. Ms. Brunt
testified that her records show that PSAC began to make
bargaining demands for Mr. Akerstrom's group being the PM
group as early as 1980 for a non-discrimination clause in the
collective agreement, which included no discrimination on the
basis of sexual orientation. The First Master Agreement after
binding conciliation in 1986 included a non-discrimination
clause, with no discrimination on the basis of sexual
orientation as proposed by the Union.
[para41] In the 1987-1988 round of bargaining, the
definition of common-law spouse proposed by the Union
specifically included same-sex spouses, and was eventually
dropped. The Union continued to propose the same definition
until collective bargaining ceased in 1991 due to legislation.
Ms. Brunt's testimony was that throughout this period, the
Union took the position that the no discrimination clause
should have had the effect of changing the definition of
spouse to include same-sex spouses.
[para42] The Dental Plan is part of the collective
agreement but under the Plan the appeal process is to a Board
of Management. There was an application in June 1988 by a
PSAC member to the Board for same-sex benefits which was
ultimately unsuccessful. In the 1990's, four other cases came
forward; two of which were denied and two which are on hold.
[para43] The Public Service Health Care Plan similarly
operates by a Board of Management. To-date, there have been
six same-sex benefits cases, one of which involved a PSAC
member and all of which have been denied. The Health Care
Plan is run through the National Joint Council. The National
Joint Council process deals with matters such as hours of
work, travel, isolated posts, etc. outside of collective
bargaining. Ms. Brunt testified that PSAC has repeatedly
taken the position at the National Joint Council that there
should be a revision to the NJC policies to provide
entitlements of benefits to same-sex spouses.
2. Don Pease
[para44] Don Pease testified on behalf of PSAC. He is
employed by PSAC and since 1987 has performed the role of
research officer in the grievance and adjudication section.
The grievance and adjudication section represents grievors
before the Public Service Staff Relations Board amongst other
Boards of Arbitration and generally becomes involved in a
grievance at the stage where a grievance is referred to
adjudication. Since August 1987, thirty grievances dealing
with same-sex spousal rights came to the section for referral.
The total number of thirty grievances involved approximately
22 or 23 grievors.
[para45] Of the total of thirty grievances, fourteen
involving the Treasury Board were resolved by the Treasury
Board granting the relief requested on a without prejudice,
humanitarian basis although the collective agreement does not
provide for leave entitlement on humanitarian grounds.
Thirteen grievances were described as pending, two grievances
were ruled on and lost by the grievor and the third grievance
was successful.
[para46] Mr. Pease testified that the Union took the
position that Article M-16 (the non discrimination clause) in
the agreement rendered the opposite sex requirement in the
definition of common-law spouse inoperative and took that
position as of 1987.
[para47] Mr. Pease also testified that there are six
regional gay and lesbian support groups across the country
active within PSAC meaning recognized by PSAC as an equity
group within the Union organization. These support groups
were established beginning in 1989 to assist gay and lesbian
members. These groups engage in organizing and speaking on
gay and lesbian issues, developing position papers and other
supportive activities including, leave without pay
reimbursement. Additionally, within the Equal Opportunities
Committee of the National Board of Directors of PSAC there are
two seats reserved for gay or lesbian members.
IV. The Union Respondent in Stanley Moore's Complaint
The Professional Association of Foreign Service
Officers
1. Peter Cenne
[para48] Peter Cenne testified on behalf of the
Professional Association of Foreign Service Officers. Mr.
Cenne is the Executive Director of PAFSO since 1990. PAFSO is
a bargaining agent for approximately 1500 Foreign Service
Officers in two departments namely Foreign Affairs and
Citizenship and Immigration. Foreign Service Officers in
either department are employed by the Treasury Board.
[para49] There is a collective agreement between PAFSO and
Treasury Board as well as a number of Foreign Service
Directives. Negotiations pertaining to Foreign Service
Directives were described as conducted under another process
of consultation being through the National Joint Council
process.
[para50] Mr. Cenne testified as to the history of PAFSO
activities directed toward gay and lesbian rights generally.
PAFSO established an advisory committee comprised of gay and
lesbian members to advise PAFSO's executive committee on
issues in late 1991 or early 1992. In July 1991, PAFSO
proposed a change in its collective agreement to change the
definition of common-law spouse to delete the word "of
opposite sex" in order to extend the definition of common-law
spouse to gay and lesbian members. The proposal included an
addition to the non-discrimination clause to add sexual
orientation. The non-discrimination clause was changed to
include sexual orientation but the definition of common-law
spouse was not changed. Mr. Cenne testified that there had
been no other bargaining possible for PAFSO due to the
Compensation Restraint Act.
[para51] PAFSO, along with other staff side members of the
Foreign Service Directives Committee of the National Joint
Council proposed the amendment of the Foreign Service
Directives beginning in 1991 to include same-sex spouses in
the definition of spouse.
V. The Interested Party
The Professional Institute of the Public Service of
Canada
1. Steve Hindle
[para52] Mr. Hindle is employed by the Treasury Board and
has been a federal public servant since 1981. He is the
National Vice-President of PIPSC and has been for the past
five years. He testified that PIPSC would like to see all
discrimination against gays and lesbians eliminated from all
collective agreements, National Joint Council, and all
legislation. As early as 1988, PIPSC had members of a Group
Advisory Council working to promote gay and lesbian rights and
by 1992 had a sub-committee on sexual orientation.
[para53] Mr. Hindle testified that PIPSC's support for
gays and lesbians in the workplace has taken many forms. He
confirmed that PIPSC represents its members in grievances
respecting benefits. PIPSC has made presentations, prepared
drafts for legislative changes, and has sponsored as well as
participated in educational seminars on equal access to
benefits. PIPSC has donated $5,000.00 to E.G.A.L.E. to
support its intervention costs in the case of Egan and Nesbitt
and the CS group within PIPSC provided E.G.A.L.E. with an
additional $3,700.00.
[para54] Eighteen of PIPSC's groups participated in Master
Bargaining with the Treasury Board and in 1987 PIPSC proposed
a definition of common-law spouse which would include same-sex
spouses. This definition was not acceptable to the Treasury
Board and the ultimate agreement signed by the parties did not
reflect the proposal of PIPSC nor did the agreement signed in
the 1990 round.
[para55] The CS group in PIPSC is not part of Master
Bargaining and its current collective agreement was signed in
1988. In 1993, the CS group approached the Treasury Board to
reopen the collective agreement to deal specifically with the
definition of common-law spouse and to remove the words "of
the opposite sex" from that definition. To reopen would
require the consent of the Treasury Board and that consent was
not forthcoming although there was correspondence from the
Treasury Board negotiator that the matter is the subject of
ongoing "review".
[para56] Mr. Hindle was aware of three grievances by PIPSC
members with same-sex spouses: one concerning marriage leave,
one concerning bereavement leave, and one concerning family
related responsibilities leave. In the bereavement leave case
the employer ultimately granted the leave on humanitarian
grounds.
C. THE ISSUES
[para57] There are several issues to be addressed in
working toward a decision in this case.
1. Is sexual orientation a prohibited ground of
discrimination under the Canadian Human Rights Act
(the Act)?
2. Does the denial of spousal benefits to same-sex
partners, who meet all aspects of the definition of
common-law spouses except for being of the opposite
sex, constitute discrimination on the ground of
sexual orientation?
3. Have the Complainants established a prima facie case
of discrimination?
4. If the answer to #3 is yes, has the Respondent
answered the prima facie case?
D. ANALYSIS
[para58] 1. The first issue is now very much settled in
law since the decision of the Ontario Court of Appeal in Haig
and Birch v. Canada 1992, 90.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. (4th) 609 (S.C.C.), (Egan). In fact,
Respondents Counsel agreed at the outset that sexual orientation
is now a prohibited ground of discrimination under the Act.
[para59] 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 Freedoms
(the Charter), and thus, rather than striking down s. 3 of the
Canadian Human Rights Act, as the lower court had done,
elected to "read in" sexual orientation as a prohibited ground
and declared that the Act be interpreted, applied and
administered as though it contains sexual orientation in s. 3.
The Minister of Justice of the day, as the appeal period
expired, publicly announced that the decision would not be
appealed and would stand as the law of Canada.
[para60] In the Egan decision, the Supreme Court of Canada
unanimously found that sexual orientation is an analogous
prohibited ground of discrimination under s. 15(1) of the
Charter. LaForest J., writing what was ultimately part of the
majority decision, and even though the court for other reasons
did not find in Egan's favour on the central claim, says at
page 619:
[5] The appellants' claim before this court is that the
Act (ie. the Old Age Security Act, R.S.C. 1985, C.0-9)
contravenes s. 15 of the Charter in that it discriminates
on the basis of sexual orientation. To establish that
claim, it must first be determined that s. 15's
protection of equality without discrimination extends to
sexual orientation as a ground analogous to those
specifically mentioned in the section. This poses no
great hurdle for the appellants; the respondent Attorney
General of Canada conceded this point.
[para61] He then continues to reinforce this point by
stating:
While I ordinarily have reservations about
concessions of constitutional issues, I have no
difficulty accepting the appellants' contention that
whether or not sexual orientation is based on biological
or physiological factors, which may be a matter of some
controversy, it is a deeply personal characteristic that
is either unchangeable or changeable only at unacceptable
personal costs, and so falls within the ambit of s. 15
protection as being analogous to the enumerated grounds.
[para62] Later in this same decision, Iacobucci J., in
citing cases which buttress his conclusion regarding "reading
in" cites the Haig case at page 690, thus approvingly:
[224]...It is also interesting to note that in ...
(Haig)... courts read "sexual orientation" into human
rights legislation. In fact, in Haig the Ontario Court
of Appeal remarked (at p. 14) that it was
"inconceivable ... that Parliament would have preferred
no Human Rights Act over one that included sexual
orientation as a prohibited ground of discrimination. To
believe otherwise would be a gratuitous insult to
Parliament."
[para63] In the Federal Court of Canada decision in
Nielsen v. Canada, No. T-2994-93, 20 June 1995 (Fed. T.D.),
Joyal J. states at page 2:
... On August 6, 1992, in the matter of Haig and Birch v.
Canada, [1992] 9 O.R. (3d) 495, the Ontario Court of
Appeal substantially confirmed an earlier Trial Division
judgment that sexual orientation could be read into
Section 3 of the CHRA. That decision wrote finis to the
longstanding debate as to whether discrimination on
grounds of sexual orientation was or was not prohibited
under the Act.
(Emphasis added)
[para64] Based upon these decisions, it is clear that
sexual orientation is a prohibited ground of discrimination
both under s. 15 of the Charter and s. 3 of the CHRA.
NOTE: Following the conclusion of this hearing and
while this decision was being written but
before it was issued, Parliament amended s. 3
of the CHRA to expressly include sexual
orientation as a prohibited ground of
discrimination.
[para65] 2. The next question to be addressed in the
matter before us is whether the denial of spousal benefits to
same-sex partners who meet all aspects of the definition of
common-law spouse except for being "of the opposite sex"
constitutes discrimination on the prohibited ground of sexual
orientation.
[para66] In Egan (supra), a majority of the Court found
that the Old Age Security Act does infringe s. 15(1) of the
Charter. Sopinka J., however, found that in the particular
circumstances of that case, the infringement was saved under
s. 1. His decision in this respect was pivotal in determining
the majority outcome which denied the appellants' claim.
[para67] Cory J. in his reasons writes at page 672:
[168] In this case, there can be no doubt that the
distinction is related to the personal characteristic of
sexual orientation. It may be correct to say that being
in a same-sex relationship is not necessarily the
defining characteristic of being homosexual. Yet, only
homosexual individuals will form a part of a same-sex
common-law couple. It is the sexual orientation of the
individuals involved which leads to the formation of the
homosexual couple. The sexual orientation of the
individual members cannot be divorced from the homosexual
couple. To find otherwise would be as wrong as saying
that being pregnant had nothing to do with being female.
He continues at page 675:
[175]... Sexual orientation is more than simply a
"status" that an individual possesses. It is something
that is demonstrated in an individual's conduct by the
choice of a partner... Sexual orientation is demonstrated
in a person's choice of a life partner, whether
heterosexual or homosexual.
(Emphasis added)
And, as he nears the conclusion of his reasons, he says
on page 677:
[180] In the present appeal, looking at the Act from
the perspective of the appellants, it can be seen that
the legislation denies homosexual couples equal benefit
of the law. The Act does this not on the basis of merit
or need, but solely on the basis of sexual orientation.
The definition of "spouse" as someone of the opposite sex
reinforces the stereotype that homosexuals cannot and do
not form lasting, caring, mutually supportive
relationships with economic interdependence in the same
manner as heterosexual couples... The discriminatory
impact can hardly be deemed to be trivial when the
legislation reinforces prejudicial attitudes based on
such faulty stereotypes. The effect of the impugned
provision is clearly contrary to s. 15's aim of
protecting human dignity, and therefore the distinction
amounts to discrimination on the basis of sexual
orientation.
[para68] The finding is concurred in by L'Heureux-Dubé,
McLaughlin, Iacobucci and Sopinka J.J. thus making it a
finding by a majority of the justices of the Supreme Court of
Canada that the definition of spouse offends s. 15 of the
Charter and constitutes discrimination on the basis of sexual
orientation.
[para69] In the case of Vogel v. Manitoba, [1995] 6 W.W.R.
513 (Man, C.A.), the Manitoba Court of Appeal heard an appeal
dealing with issues similar to those in the case before us.
It was a case of the denial of spousal benefits to the
same-sex common-law spouse of a provincial employee. The
complaint had originated under the Human Rights Code of
Manitoba.
[para70] The court made a unanimous decision and Philp
J.A. in giving his reasons stated at page 517:
I agree...that the questions that have been raised
in this appeal have been answered by the Supreme Court's
decision in Egan. Although couched in somewhat different
words than those in the impugned provisions of the Act,
this Court is bound to conclude that the denial of
spousal benefits under Mr. Vogel's employment benefit
plans to his same-sex partner is the result of their
sexual orientation, and is, therefore, discriminatory
treatment under the Code.
[para71] It is now crystal clear that the law is that
denial of the extension of employment benefits to a same-sex
partner which would otherwise be extended to opposite-sex
common-law partners is discrimination on the prohibited ground
of sexual orientation.
[para72] It is equally clear from the reading of these
cases that the inclusion of a definition of "spouse" which
excludes same-sex partners in legislation or collective
agreements or regulations by the government so as to deny such
benefits offends the Charter and the Canadian Human Rights Act
and constitutes discrimination prohibited by both.
[para73] 3. The Tribunal has reviewed the facts of
this case as presented in evidence and finds, without
difficulty, that both the Complainant Mr. Moore and the
Complainant Mr. Akerstrom have established a prima facie case
of discrimination upon the prohibited ground of sexual
orientation. We make this finding with respect to all
complaints under s. 7, s. 9 and s. 10 of the Act.
[para74] 4. In answer to the Complainants' case, the
Counsel for the Respondents raised two particular arguments
the Tribunal will here address.
[para75] The first was that, given the decision of Sopinka
J. in Egan, in which, after finding with four other justices
that the Old Age Security Act infringed the Charter, he then
finds that the infringement is saved under s. 1, that this
Tribunal should take a similar approach in the event of a
finding that the complaints were substantiated. It was argued
that the government should be given time to get its house in
order.
[para76] It is important that we understand the
distinction between the role of government as the developer
and implementor of social policy initiatives and the role of
government as employer.
[para77] It is clear throughout the decision that Sopinka
J. is, in addressing the Old Age Security Act, dealing with
government in its role as initiator of social policy. At page
653 of Egan he states:
[104] I agree with the respondent the Attorney
General of Canada that government must be accorded some
flexibility in extending social benefits and does not
have to be proactive in recognizing new social
relationships. It is not realistic for the court to
assume that there are unlimited funds to address the
needs of all. A judicial approach on this basis would
tend to make a government reluctant to create any new
social benefit schemes...
(Emphasis added)
He later writes:
[105] This court has recognized that it is legitimate
for the government to make choices between disadvantaged
groups and that it must be provided with some leeway to
do so.
[para78] He is speaking of government's role in extending
social benefits and targeting assistance to disadvantaged
groups.
[para79] The facts in the present case before the Tribunal
are clearly distinguishable. Here, we are dealing with an
employer who happens to be the government. The government as
employer can no more rely upon s. 1 of the Charter to justify
discrimination on a ground prohibited under this Act than can
a private employer who is federally regulated.
[para80] Here we are dealing with Employment Benefits -
part of the remuneration package of employees - designed to
attract, compensate and keep employees.
[para81] Here we are not dealing with discretionary social
benefits - these are earned benefits.
[para82] This case is not a Charter case. The defences
available to the Respondent are the defences provided in the
Act. S. 1 of the Charter is not one of those defences.
[para83] The second argument raised by Respondent Counsel
related to remedy.
[para84] Relying upon the decision in Nielsen v. Canada
(Attorney General), No. T-2994-93, 20 June 1995 (Fed. T.D.),
Counsel argued that in the event of a finding that the
complaints of Mr. Moore were substantiated, the Tribunal could
not in determining a remedy, look back beyond August 6, 1992,
and the decision in Haig, since that was when sexual
orientation became a prohibited ground.
[para85] In Nielsen, a federal government employee filed a
complaint on September 29, 1989, on grounds of sex, marital
status and family status and later, sexual orientation. She
had been denied dental coverage for her same-sex partner and
the partner's child. Her complaint along with several others,
was held in abeyance by the Canadian Human Rights Commission
pending the court's determination in the case of Mossop v.
Canada (Secretary of State), [1993] 1 S.C.R. 554.
[para86] Prior to the Supreme Court decision in Mossop,
the decision of the Ontario Court of Appeal in Haig was
rendered and ultimately Mossop did not succeed on the ground
of family status.
[para87] The CHRC took the position that it would not
proceed with those complaints held in abeyance where the
complaint was based on sexual orientation and the
discriminating conduct predated the decision in Haig.
[para88] Consequently, Neilsen's complaint was dismissed
and she sought a judicial review which culminated in a
dismissal on June 20, 1995. The Federal Court ruled on the
basis of the presumption against retroactivity in the
application of the law.
[para89] In Nielsen, the complaint in 1989 clearly
pre-dated Haig. Furthermore, she left the employ of the
Federal Government in 1991, also before the decision in Haig.
[para90] Therefore, at no time, while she was employed by
the Federal Government, did the law provide her with a ground
for a complaint based upon sexual orientation.
[para91] In the case of Mr. Moore, the complaints were
filed in 1994 at which time sexual orientation was a
prohibited ground of discrimination. There is no attempt here
to apply the law retroactively to provide the ground for
complaint. The discrimination was a continuing discrimination
at the time of the complaint.
[para92] In Miron v. Trudel, 1995, File No. 22744, S.C.C.,
the court was dealing with a fact situation in which the
Appellants were common-law spouses. Miron was rendered unable
to work as a result of an automobile accident in 1987 while a
passenger in a vehicle driven by Trudel. Neither Trudel nor
the owner of the vehicle was insured.
[para93] Miron, therefore, made a claim for accident
benefits for loss of income and damages against the insurance
policy of his common-law wife. The policy did extend benefits
to the spouse of the policy holder.
[para94] The insurance company denied the claim on the
ground that he was not legally married and thus not a
"spouse".
[para95] In 1987, the benefits were governed by the 1980
insurance legislation which the court found did not include
common-law couples in the provisions for spouses. In 1990,
the legislation was amended, so as to define spouse as
including a common-law spouse.
[para96] In fashioning a remedy, the court "read up" the
1980 statute in conformity with the terms legislated in 1990,
thus giving Miron a cause of action. In effect the court
applied the 1990 amendment retroactively to provide a cause of
action and a remedy.
[para97] In the case before the Tribunal, as stated above,
Mr. Moore had a ground for his complaint when it was filed and
if the Tribunal were to find the complaint substantiated, it
would by a ludicrous injustice to say that he has been
discriminated against at considerable personal emotional and
financial cost but not provide as complete a remedy as
possible.
[para98] Thus, in the event of a finding that the
complaint has been substantiated, the Tribunal would, using a
similar rationale as in the Trudel case, provide a remedy
covering the whole of the continuing discriminatory practice.
E. FINDING
[para99] The Tribunal finds that each complaint by both
Complainant Stanley Moore and Complainant Dale Akerstrom has
been substantiated against all Respondents. However, in the
case of the Public Service Alliance of Canada and the
Professional Association of Foreign Service Officers, the
finding is mitigated by the evidence that they had made
considerable efforts over the years in negotiations with the
employer and through the grievance process to seek changes
which would have eliminated the discrimination.
[para100] Having found a discriminatory practice on the
ground of sexual orientation, the Tribunal finds it
unnecessary to examine further the matter of discrimination on
the basis of family status or marital status.
F. REMEDY
[para101] 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...
[para102] This is a noble principle which this Tribunal is
bound to bear in mind when weighing the evidence before it
and, where a complaint is substantiated, when fashioning a
remedy to redress the discrimination.
[para103] In the case before us, we are dealing with two
established same-sex partnerships which the courts have now
described as same-sex common-law relationships.
[para104] 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.
[para105] 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.
[para106] The Tribunal particularly wants to emphasize
that there is nothing in the Canadian Human Rights Act or in
this decision which confers any special or exceptional status
upon anyone. We are dealing only with the equality of
opportunity to live one's life free from discrimination on any
of the prohibited grounds enumerated in the Act as expressed
so eloquently by Parliament in section 2 - a protection
extended equally to every individual.
[para107] At the conclusion of the hearing, Counsel
requested that, in the event of a finding that the complaints
were substantiated, they be given general direction in an
order from the Tribunal and an opportunity to work out the
details while the Tribunal retains jurisdiction.
[para108] The Tribunal accepts this proposal and makes the
following order:
a) With respect to Stanley Moore, Treasury Board and
the Department of Foreign Affairs and International
Trade shall:
(1). pay an amount equal to all the spousal related
entitlements and expenses to which he and Mr.
Soucy would have been entitled but for the
discrimination commencing as of the beginning
of his posting to Jakarta in July 1991.
(2). pay the amount of $5,000.- in respect of hurt
feelings and self-respect pursuant to s. 53(3)
(b) of the Act.
(3). pay any receipted costs incurred, as a result
of the discriminatory practice, in pursuing
these complaints.
(4). pay interest on the above amounts.
b) With respect to Dale Akerstrom, Treasury Board and
Canada Employment and Immigration shall:
(1). pay all additional costs incurred by him and
Mr. Dias in obtaining alternative services as a
result of the discriminatory practice.
(2). pay the sum of $500.- for hurt feelings and
self-respect pursuant to s. 53(3) (b) of the
Act.
(3). pay any receipted costs incurred, as a result
of the discriminatory practice, in pursuing
these complaints.
(4). pay interest on the above amounts.
[para109] The Tribunal orders that, within sixty days
following the date this decision is issued, the parties agree
upon the amounts to be calculated in a) (1), (3) and (4) and
in b) (1), (3) and (4) above. If they fail to achieve this
within sixty days, they shall notify the Tribunal Registry and
the Tribunal will reconvene to resolve the matter.
c) The Tribunal further orders, pursuant to s. 53 (2)
(a) of the Act that the Respondents cease and desist
in the application of any definition of spouse or
any other provisions of the Foreign Service
Directives, the Collective Agreements, National
Joint Council policies, the Public Service Health
Care Plan or the Dental Care Plan which operate so
as to continue the discriminatory practice and
interpret any such definition or provision to be in
compliance with the Act (and the Charter) so as to
include same-sex common-law spouses.
This order is to take effect immediately.
d) The Tribunal further orders that, within sixty days
of the issuance of this decision, the Respondents 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 employment-related benefits and
present such inventory in writing to the
Tribunal within the sixty-day period. This
inventory shall exclude, at the request of the
parties, any legislation providing for pension
benefits, but shall include any provisions of
the Income Tax Act which would treat any
employment related benefits paid to same-sex
common-law couples differently for taxation
purposes from the way they would be treated if
paid to an opposite-sex common-law couple.
(2). a proposal for the elimination of all such
discriminatory provisions to be presented to
the Tribunal within the sixty-day period.
[para110] If the parties are unable to complete this
within the prescribed time, they shall notify the Tribunal
Registry and the Tribunal shall reconvene.
[para111] In any event, the Tribunal shall reconvene after
receipt of the written material to consider with the parties
incorporation of such material in this order.
[para112] The time restrictions in this order shall not be
extended by the initiation of an Appeal or a Judicial Review
by any party unless expressly provided for in the Federal
Court Rules or by order of the Federal Court.
[para113] The Tribunal retains jurisdiction as requested.
Keith C. Norton, Q.C., Chairperson
Janet Ellis, Member
J. Grant Sinclair, Q.C., Member
QL Update: 960618
qp/d/ln/scl/mop
Indexed as:
Moore v. Canada (Treasury Board)
IN THE MATTER OF THE CANADIAN HUMAN RIGHTS ACT, R.S.C.
1985, c. H-6 (as amended);
Between
Stanley Moore & Dale Akerstrom, Complainants, and
Canadian Human Rights Commission, Commission, and
Treasury Board, Department of Foreign Affairs & International
Trade, Canada Employment and Immigration Commission, Public
Service Alliance of Canada and Professional Association of
Foreign Service Officers, Respondents, and
Professional Institute of the Public Service of Canada,
Interested Party
[1997] C.H.R.D. No. 4
No. T.D. 4/97
Canadian Human Rights Tribunal
Ottawa, Ontario
J. G. Sinclair, Chairperson, J. Ellis, Member
Heard: October 17 and November 12, 1996
Decision: April 10, 1997
(16 pp.)
Rosemary Morgan, for the Canadian Human Rights Commission.
No Counsel mentioned, for the Complainants.
Brian Saunders and James Hendry, Counsel for the Treasury
Board, the Department of Foreign Affairs and International
Trade and Canada Employment and Immigration Commission.
Andrew Raven, Counsel for the Public Service Alliance of
Canada.
P. MacEachern, Counsel for Professional Association of
Foreign Services Officers and Professional Institute of the
Public Service of Canada
TRIBUNAL DECISION
[para1] At the conclusion of the hearing into the
Complaint in this matter, counsel for the parties requested
that,
"in the event of a finding that the complaints were
substantiated, they be given general direction in an
order from the Tribunal and an opportunity to work out
the details while the Tribunal retains jurisdiction."
[para2] The Tribunal accepted this proposal and retained
jurisdiction as requested.
[para3] The remedy ordered by the Tribunal was set out in
four separate paragraphs, paragraph a), paragraph b),
paragraph c), and paragraph d). Subsequent to the release of
the Tribunal's decision on June 13, 1996, the Tribunal was
advised by the parties that there were a number of disputes
concerning the details of the remedy ordered by the Tribunal.
The Tribunal reconvened on October 17, 1996 and November 12,
1996 to deal with the disagreements between the parties.
These are dealt with under separate headings by reference to
the relevant paragraphs of the Tribunal's order.
Paragraph c)
[para4] The Respondents Treasury Board, Foreign Affairs &
International Trade and Canada Employment and Immigration
Commission ("Employers") responded to the Tribunal's order in
paragraph c) by proposing a Memorandum of Understanding which
is attached as Appendix "A" to this decision. Under this
memorandum the same employment benefits given to a common law
spouse are to be given to an employee who is living in a same
sex partner relationship.
[para5] The memorandum defines "a same sex partner"
relationship as follows:
a "same-sex partner" relationship exists when, for a
continuous period of at least one year, an employee has
lived with a person of the same sex in a homosexual
relationship, publicly represented that person to be
his/her partner and continues to live with that person as
his/her partner.
[para6] The CHRC, the Unions and particularly the
complainant Stanley Moore objected to this definition because,
in their view, it continues the discrimination. Rather than
treating same sex partners as a common law spousal
relationship (as is the case with opposite sex partners), the
definition of "same sex partner" creates a separate class of
persons who are entitled to employment benefits, but on the
basis of their sexual orientation rather than their spousal
relationship. The Employers offered no explanation as to the
need for a separate classification and have proceeded to
implement the provisions of this memorandum.
[para7] The Unions submitted to the Tribunal a Memorandum
of Understanding which contains their preferred definition of
spouse which is to be included in all collective agreements
and in foreign service directives in determining eligibility
for employment benefits. This Memorandum of Understanding is
attached as Appendix "B". The CHRC and the complainants
support this approach. The definition of spouse in this
memorandum makes no reference to gender or sexual orientation.
[para8] The CHRC, the complainants, and the unions have
asked the Tribunal to resolve the differences between the
parties and find that the proper approach for determining
eligibility for benefits is as set out in their memorandum.
The Employers' position in response is that there is nothing
left for the Tribunal to resolve with respect to paragraph c)
of the order. The Employers have made the employment benefits
in question available to all employees including those in a
same sex relationship, and the manner by which this is
achieved is not reviewable by the Tribunal. The Employers
also argued that paragraph c) being a cease and desist order
is a final order and the Tribunal is functus officio.
[para9] The principle of functus officio was considered by
the Supreme Court of Canada in Chandler v. Alberta Association
of Architects, [1989] 2 S.C.R. 848, and, in the context of
the Canadian Human Rights Act, ("Act") in the case of Canada
(Attorney General) v. Grover et al. (1994) 80 F.T.R. 256. It
is clear from these two cases that this Tribunal has the power
to reserve jurisdiction on certain matters in order to ensure
that the remedies ordered by the Tribunal are forthcoming to
the complainants.
[para10] The Employers' argument is too narrowly focused.
In paragraph c), 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. But, the Employers
are also directed to interpret any definition of spouse or
any other provisions of the documents referred to in paragraph
c) to be in compliance with the Canadian Human Rights Act and
Charter so as to include same sex common law couples. The
Employers have not done this. Rather, in extending these
benefits to same sex couples, the Employers have put forward a
definition in addition to the definitions set out in the
Foreign Service Directives, the Collective Agreements,
National Joint Council politics, the Public Service Heath Care
Plan and Dental Care Plan. This is not in accordance with
paragraph c) of the Tribunal's order. Our order requires that
the definition of spouse be interpreted to comply with the Act
and Charter. This is obviously and easily accomplished by
interpreting the definition of spouse or common law spouse as
found in these documents as if the words "of the opposite sex"
were not included in the definition; or in the case of the
declaration to designate a spouse for purposes of the Foreign
Service Directives, by interpreting any definition of spouse
or spousal relationship without reference to gender. This is
what paragraph c) requires and the Employers are ordered to
offer the benefits on this basis not on the basis of a
classification outside these documents.
Paragraph a)
STANLEY MOORE: spousal related entitlements and expenses
[para11] The Tribunal ordered that Stanley Moore be paid:
(1). an amount equal to all the spousal related
entitlements and expenses to which he and Mr. Soucy
would have been entitled but for the discrimination
commencing as of the beginning of his posting to
Jakarta in July 1991.
[para12] At the resumption of the hearing, we were
informed that agreement had been reached respecting
entitlements and expenses except for two matters still in
dispute. The disputed matters pertain to claims by Mr. Moore
under Foreign Service Travel Assistance (FSD 50).
[para13] Mr. Moore was entitled to two return trips to
Ottawa during his posting. Mr. Moore could take those trips
at any time during the posting. Mr. Moore need not have
actually traveled to Ottawa but could travel anywhere and be
refunded the cost up to a maximum cost of a return trip to
Ottawa. Mr. Moore was also entitled to two return trips of
his common-law spouse on the same terms as his own
entitlement.
[para14] The first dispute concerns Mr. Moore's travel.
Mr. Moore has been paid for the maximum entitlement for one
trip. Regarding a second trip, Mr. Moore's evidence was that
he could not pay the costs for his common-law spouse so he did
not plan an expensive trip together. He did not want to lose
the use of the entitlement altogether so he submitted a
request for reimbursement for a trip he took to Vancouver.
This trip did not cost the maximum entitlement and the
difference in cost between the trip to Vancouver and the
maximum entitlement is $2,734.92. Mr. Moore and the
Commission seek reimbursement for Mr. Moore for this amount.
The position of the Employers is that the travel allowance is
not automatically the maximum entitlement, but rather
reimbursement is based on receipts submitted by the employee.
Mr. Moore submitted receipts to his employer for the cost of
this trip and was reimbursed.
[para15] The Tribunal accepts Mr. Moore's evidence that if
he had any time during his posting been permitted to claim
entitlements and expenses as a spouse he would have so claimed
and he would have claimed the maximum amount possible. Mr.
Moore would have taken all the trips he could at the maximum
trip cost that he could have been reimbursed. Therefore, the
Tribunal orders that the Treasury Board pay Mr. Moore the sum
of $2,734.92.
[para16] The second dispute concerns Mr. Soucy's travel.
After the decision of this Tribunal, the Treasury Board paid
for two trips at the maximum entitlement amount of Mr. Soucy.
However the Treasury Board is now claiming back approximately
$5,000.00 being the entitlement for one trip. The reason is
that when Mr. Moore submitted exhibit HR-1 he claimed for one
FSD 50 referable to a trip taken in April/May 1992. The
Treasury Board takes the position that Mr. Moore's claim is
for the trip taken prior to the Haig decision in August 1992,
and therefore, Mr. Moore is not entitled to be reimbursed for
this part of his claim.
[para17] Mr. Moore's position is that he never made a
claim to his employer for reimbursement for the April/May 1992
trip. Mr. Moore submitted HR-1 as an example for how to
calculate an FSD 50.
[para18] The Employers have recognized that Mr. Moore is
entitled to two FSD 50s for Mr. Soucy. There is no reason to
assign an April/May 1992 date because that trip was used by
Mr. Moore as an example. It is irrelevant when the trip took
place because the Treasury Board has agreed to pay for two
trips. Therefore, the Tribunal orders that the maximum
entitlement for two trips for Mr. Soucy, which sum has already
been paid by the Employer, is deemed to be payment for trips
taken at any specific date during the posting cycle that the
complainant decides.
Paragraph a) and Paragraph b) - Interest
[para19] There are numbers of issues relating to interest
on which the parties cannot agree. The issues are:
(i) are the complainants entitled to interest on
foregone entitlements;
(ii) is the interest payable under paragraphs a) and b)
to be simple or compound interest;
(iii) what is the date from which interest is to be
calculated; and
(iv) what is the rate of interest.
[para20] Initially, the Employers refused to pay any
foregone entitlements to Mr. Moore, but have now agreed to do
so. The Tribunal ordered under paragraph c), (4) that
interest is "payable on the above amounts", which includes
foregone entitlements. Therefore interest is payable on this
amount.
[para21] On the question of simple or compound interest ,
counsel advised that there are no Tribunal cases in which
compound interest has been awarded. But there is a discretion
under section 53(2) of the Act to award compound interest.
The Tribunal was referred to a number of cases to support the
argument of compound interest. These included Francis v.
Dingman, 43 O.R. (2d) 641; Cashin v. CBC , 12 C.H.H.R. D/222;
Re CBC and N.R.P.A., 45 L.A.C (4th) 445; and CBC v. C.U.P.E.
[1987] 3 F.C. 515. Counsel for the CHRC relied on these
cases for the proposition that if the complainants had not
been deprived of the money they would have made the most
beneficial use of it or, alternatively, the wrongdoer made the
most beneficial use of it. But whichever it is, to give
adequate compensation, the money should be replaced at
compound interest.
[para22] The Employers' counsel, on the other hand
referred to a number of cases including Mills v. Via Rail,
[1996] C.H.R.R. No. 7; A.G. Canada v. Uzoaba, [1995] 2 F.C.
569; Fry v. D.N.R. (Taxation) T.D. 10/94, (CHRT); and A.G. Can
v. Morgan (1991) C.H.R.R. D/87. The Tribunal has reviewed
these authorities and has concluded that the operative
principle is that set out in the reasons of Mr. Justice
Marceau and Mr. Justice MacGuigan, namely, that simple
interest is the norm except in special circumstances
identified and justified by the Tribunal. We do not consider
that the evidence or circumstances of this case justify
compound interest, and accordingly, the interest shall be
simple interest payable in accordance with the Courts of
Justice Act of Ontario, in the case of Mr. Moore and in
accordance with similar legislation in British Columbia for
Mr. Akerstrom.
[para23] Finally, interest shall be paid on foregone
expenses from the date when the entitlement accrued; on hurt
feelings from the date of the Tribunal's order, and on any
other costs and expenses from the date as and when incurred.
[para24] There will be no award to the complainants for
time spent in preparation for and participation in the
litigation as per Ms. Morgan's January 16, 1997 letter.
Paragraph d) - Inventory
[para25] The Tribunal also ordered under paragraph d) of
its Order that the Employers, in cooperation and consultation
with the CHRC, prepare an inventory of all legislation,
regulations, directives, etc. which contains definitions of
spouses which discriminate against sex common-law couples or
definitions when applied operate to discriminate on the basis
of sexual orientation in the provision of employment related
benefits and also provide a proposal for the elimination of
all discriminatory provisions.
[para26] The CHRC identified certain provisions of the
Income Tax Regulations which it considered had a potential
impact on employees in a same sex partner relationships.
Counsel for PAFSO and PIPSC raised the question of the
regulation dealing with the issuance of diplomatic and special
passports and how that may impact on members of the immediate
family of an employee to whom a passport has been issued and
the discretion of the Secretary of State to decide whether or
not immediate family members will be qualified for diplomatic
or official status.
[para27] The income tax issue has been resolved by the
following correspondence. By letter dated September 9, 1996
from Bryan Dath of Revenue Canada to John Ambridge, Treasury
Board of Canada, and by letter dated October 4, 1996 from
Brian H. Saunders, Civil Litigation Section Department of
Justice to the Canadian Human Rights Tribunal, it is set out
and confirmed that Revenue Canada will recognize a private
health services plan which provides coverage for same sex
couples. It was also confirmed by counsel for the Employers
before the Tribunal, that all employees will be treated the
same by Revenue Canada with respect to their employee benefits
including employer financial contribution under private health
services plan under the policies and directives of the
National Joint Council or under the various collective
agreements.
[para28] Counsel for PAFSO and PIPSC raised concerns about
Regulation P.C. 1956-1373 respecting the issuance of
diplomatic and special passports to immediate family members
of a person holding such passports. The Employers' counsel
advised the Tribunal that as of November 1, 1995 the policy
has been adopted that, in determining which individuals will
be considered as members of the immediate family of persons to
whom diplomatic or special passports have been issued, there
will be no differentiation and the same criteria will apply to
same sex spouses and family relationships as are applied to
opposite sex spouses and family relationships in making this
determination.
[para29] The Employers' Counsel also advised in his
October 4, 1996 letter that the Employers will make available
to those in a same sex relationship the benefits under:
Head of Post Directives
Recreational Hardship Support Program
Incentive Award Plan
Training and Development Policy
Guaranteed House Sale Plan
Conference Policy
in the same manner that these benefits are available to
employees with opposite sex partners.
[para30] Apart from identifying in the inventory various
provisions of the Income Tax Act and Regulations, Regulation
P.C. 1956-1373, (and in general provincial or territorial
marriage legislation restricting opposite sex marriages and
opposite sex adoptions as they impacted on the collective
agreements and NJC directives and polices), there was no other
legislation regulations, or directives, which were identified
by the parties in the inventory.
J. Grant Sinclair, Q.C. - Chairperson
Janet Ellis, Member
APPENDIX "A"
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE TREASURY BOARD
AND THE
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
CANADIAN AIR TRAFFIC CONTROL ASSOCIATION
SOCIAL SCIENCE EMPLOYEES ASSOCIATION
CANADIAN MERCHANT SERVICE GUILD
FEDERAL GOVERNMENT DOCKYARDS TRADES AND LABOUR COUNCIL (EAST)
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2228
COUNCIL OF GRAPHIC ARTS UNIONS OF THE PUBLIC SERVICE OF CANADA
CANADIAN UNION OF PROFESSIONAL AND TECHNICAL EMPLOYEES
AIRCRAFT OPERATIONS GROUP ASSOCIATION
CANADIAN ASSOCIATION OF PROFESSIONAL RADIO OPERATORS
PROFESSIONAL ASSOCIATION OF FOREIGN SERVICE OFFICERS
FEDERAL GOVERNMENT DOCKYARD CHARGEHANDS ASSOCIATION
ASSOCIATION OF PUBLIC SERVICE FINANCIAL ADMINISTRATORS
CANADIAN MILITARY COLLEGES FACULTY ASSOCIATION
FEDERAL GOVERNMENT DOCKYARD TRADES AND LABOUR COUNCIL (WEST)
The parties agree:
- to change the approach to the interpretation of the
following:
- Collective Agreements
- National Joint Council Directives and Policies,
including the Foreign Service Directives.
- Public Service Health Care Plan
- Public Service Dental Care Plan
- that the benefits to which an employee who is a
common-law spouse is entitled, pursuant to the
above-cited provisions, shall be granted to an employee
who is living in a same-sex partner relationship;
- that for the purpose of this Memorandum of Understanding,
a "same-sex partner" relationship exists when, for a
continuous period of at least one year, an employee has
lived with a person of the same sex in a homosexual
relationship, publicly represented that person to be
his/her partner and continues to live with that person as
his/her partner;
- the provisions of this Memorandum of Understanding shall
become effective as of June 13, 1996.
TREASURY BOARD SECRETARIAT BARGAINING AGENTS
Steve Hindle
Dave Lewis
William Krause
Maury Sjoquist
Albert Holman
Gary Myers
David Shields
Line Niquet
APPENDIX "B"
MEMORANDUM OF UNDERSTANDING
BETWEEN
NATIONAL JOINT COUNCIL BARGAINING AGENTS
WHEREAS: The Canadian Human Rights Tribunal in Moore and
Akerstrom, CHRC File No.: T.D. 8/96, has found that
Treasury Board and member Bargaining Agents of the
National Joint Council are signatories to agreements
which discriminate against same-sex common-law
spouses on the ground of sexual orientation:
The parties agree to the following in order to eliminate the
discrimination identified by the Tribunal:
1. for purpose of this Memorandum, 'employees' shall mean
all employees for which the Treasury Board is the
employer and who are represented by a member of the
National Joint Council as Bargaining Agent;
2. that, for greater certainty, the "benefits" referred to
in the Memorandum shall be understood to include leave as
well as allowances, reimbursements, perquisites and other
spousal entitlements provided directly or indirectly by
or on behalf of the employer to or for the benefit of an
employee and, further, shall be understood to include all
spousal benefits provided under collective agreements as
well as spousal benefits provided outside collective
agreements;
3. all benefits to which employees in spousal relationships
are entitled shall be granted without regard to sexual
orientation;
4. that, it is necessary to amend existing language which on
its face may discriminate on the basis of sexual
orientation;
5. that, further, the elimination of such discrimination
requires the recognition and appropriate interpretation
of provisions which, although neutral on their face, may
have the effect of providing lesser benefits to employees
in same-sex spousal relationships than those benefits
received by employees in opposite-sex spousal
relationships;
6. that, in order to achieve the intent of paragraphs 3, 4
and 5;
a) any definition of spouse or spousal relationship in
agreements should be written without reference to gender
(see Appendix I).
b) the parties agree that a spousal declaration which
does not feature gender specific language (see Appendix
II) should be relied upon by the employer to recognize a
spousal relationship for the purpose of spousal benefits;
Signed at Valleyfield, Quebec, this ________ day of the month
of _____________________ , 1996.
APPENDIX I
I - SPOUSE - PROPOSED DEFINITION - COLLECTIVE AGREEMENTS
spouse means the individual who has been identified by the
employee as the employee's spouse in the declaration provided
by the employer and signed by the employee.
II - PROPOSED DEFINITION - FOREIGN SERVICE DIRECTIVE
spouse means the individual who has been identified by the
employee as the employee's spouse in the declaration provided
by the employer and signed by the employee, and attached as
Appendix to this directive; for purposes of the Foreign
Service Directives, the acceptability of the spouse
accompanying the employee must be authorized by the Deputy
Minister of Foreign Affairs, following consultation with the
Head of Mission and the deputy head of the employing
department;
APPENDIX II
PROPOSED DECLARATION
Spousal Declaration
This declaration will serve to designate my spouse as a
dependant for purposes of all benefits, leave, allowances,
reimbursements, perquisites and other spousal provisions and
entitlements provided directly or indirectly by or on behalf
of the employer to or for the benefit of an employee, either
under or outside of collective agreements.
I,.............................................., declare that
(a) I am legally married to ..................................
or
(b) I have co-habited with .................................
for a continuous period of at least one year and continue to
do so. During this time, I have publicly represented .......
............................... as my spouse and our spousal
relationship has been recognized in the community or
communities in which we have lived.
Signed...................... Date..........................
Employee
Signed...................... Date..........................
for the deputy head
QL Update: 970416
qp/d/scl/mop
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