** Unedited **
Indexed as:
*Vogel*v. Manitoba
Between
Chris*Vogel,*Richard North and the Manitoba Human Rights
Commission, (applicants) appellants, and
The Government of Manitoba, (respondent) respondent
[1995] M.J. No. 235
Suit No. AI 94-30-01791
Manitoba Court of Appeal
Scott C.J.M., Philp and Helper JJ.A.
Heard: January 12, 1995.
Judgment: June 14, 1995.
(29 pp.)
Trial decision reported at: (1992), 79 Man.R. (2d) 208.
Counsel:
G.L. Mitchell and P.C. Lane, for the appellants.
E.W. Olson, Q.C., and V.E. Rachlis, for the respondent.
Reasons for judgment were delivered by Helper J.A.,
concurred in by Scott C.J.M. Separate reasons were delivered
by Philp J.A.
[para1] PHILP J.A.:-- In a recent address at the Empire
Club in Toronto [See Note 1 below] the Right Honourable
Antonio Lamer, P.C., Chief Justice of Canada, observed:
----------------
Note 1: April 13, 1995
----------------
As for the suggestion that judges intrude into the
legislative sphere, the truth is that many of the
toughest issues we have had to deal with have been left
to us by the democratic process. The legislature can
duck them. We can't. Think of abortion, euthanasia,
same sex benefits to name a few. Our job is to decide
the cases properly before us to the best of our
abilities. We can't say we are too busy with other
things or that the issue is too politically sensitive or
set up a Royal Commission. We do our duty and decide.
He went on to explain:
What must not be lost sight of is that the judge's
fundamental duty is to decide the questions before the
court impartially, independently and according to law. A
judge cannot approach a case as a legislature would. The
scope of the judge's decision is defined by the questions
submitted by the parties. The answer which the judge
gives is constrained and dictated by the legal context in
which the dispute arises.
(emphasis added)
[para2] More recently, [See Note 2 below] in an editorial
commenting on a "landmark Ontario court ruling allowing four
women to adopt the children of their same sex partners," The
Winnipeg Free Press observed:
----------------
Note 2: May 14, 1995
----------------
Governments can either bring their laws into line with
the Charter of Rights and Freedoms or be forced to do so
by the courts.
[para3] "Ay, there's the rub." There comes a point where
bringing laws into line challenges the power and ability of
the courts to decide questions put before them according to
law. In the seminal decision on section 15 of the Canadian
Charter of Rights and Freedoms, Andrews v. Law Society of
British Columbia, [1989] 1 S.C.R. 143, McIntyre J. recognized
the sometimes competing and conflicting roles of Parliament
and the courts when he observed (at p. 175):
Both the enumerated grounds themselves and other possible
grounds of discrimination recognized under s. 15(1) must
be interpreted in a broad and generous manner, reflecting
the fact that they are constitutional provisions not
easily repealed or amended but intended to provide a
"continuing framework for the legitimate exercise of
governmental power" and, at the same time, for the
"unremitting protection" of equality rights: see Hunter
v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155.
[para4] In its recent decision in Egan v. Canada (released
May 25, 1995) the Supreme Court of Canada was called upon to
"intrude into the legislative sphere." At issue in that case
were the spousal allowance benefits which are available to a
"spouse" under the Old Age Security Act, R.S.C., 1985. c. O-9
(the Act). Discrimination on the basis of the analogous
ground of sexual orientation was claimed by the applicants, a
same-sex couple. The Court was unable to decide the question
put before it by the parties "according to law," and, in the
result, gave an answer which has fundamentally altered
existing social policy and objectives of our country. The
Court decided, dividing 5:4 (actually, [3:1:1]:4) on the
question, that the denial of benefits to same-sex couples
under the Act was discriminatory and infringed section 15(1)
of the Charter; and in doing so, the Court gave a new meaning
to the word "spouse."
[para5] However, the Court rejected the claim of the
applicants for those benefits. That was the effect of the
judgment of La Forest J., concurred in by Lamer C.J. and
Gonthier and Major JJ., who reasoned that the impugned
legislation did not infringe section 15(1) of the Charter; and
the conclusion of Sopinka J. that the legislation, although
discriminatory, is saved by section 1 of the Charter.
[para6] In the result, although the applicants were denied
spousal benefits under the Act, same-sex couples have been
granted spousal status under the law by the slimmest of
possible majorities, with all the attendant (but as yet
undefined) rights and responsibilities.
[para7] In this appeal, in the context of human rights
complaints of discrimination, the Court is asked to decide
questions the legislature has ducked. The Court is asked to
decide whether or not the denial of spousal benefits under
Chris*Vogel's*employment benefit plans to his same-sex
partner, Richard North, is discriminatory treatment under The
Human Rights Code, S.M. 1987-88, c. H175 (the Code); whether
or not the phrase "marital or family status," one of the
characteristics of discriminatory treatment under section 9(2)
of the Code, should be interpreted to include relationships
beyond heterosexual ones; and whether or not the denial of
coverage resulted from Mr.*Vogel*and Mr. North's "sexual
orientation," another characteristic of discriminatory
treatment under section 9(2) of the Code.
[para8] My colleague, Justice Helper, has reviewed in her
reasons the circumstances of the applicants' complaints, and
the history of the proceedings that have been taken before the
human rights adjudicator and in the courts. I will not repeat
what she has said. I agree with her conclusion 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.
[para9] As a result of the decision in Egan it may no
longer be necessary for human rights tribunals and the courts
to struggle with such words and phrases as "family,"
"common law spouse," "family status," "marital status,"
"marriage," "dependent," and "conjugal rights"; and to give
those words meanings they were never intended to convey. The
Supreme Court's re-definition of the word "spouse" to include
both "opposite-sex couples" and "same-sex couples" opens the
door to the re-assessment of the biological and social
realities that have been, until now, fundamental to the family
or marital status.
[para10] Traditionally, relationships which lack spousal
status (including those of same-sex couples) have been
excluded under employment benefit plans. Benefits have been
extended to those persons, readily identifiable, "who are in
financial need because of a pattern of financial
interdependency, characteristic of heterosexual couples" (the
words of Robertson J.A., describing the social objectives of
the legislative scheme of the Act in the Federal Court of
Appeal decision in Egan v. Canada (1993), 103 D.L.R. (4th) 336
at p. 400). It was women, who remained at home to care for
children, upon whom dependent benefits were conferred. Their
need (and the recognition of marriage as a basic social
institution) supported the fundamental social objective.
Their financial or economic interdependence may have
diminished in recent decades as more and more women have
entered the labour force, and have become entitled to health
and pension benefits, not as dependents, but as employees.
But no one can argue that the need has disappeared.
[para11] That social objective, the Supreme Court seems to
say in Egan, has now given way to one that would include
within Canada's social security net [See Note 3 below]
same-sex couples who, the majority in Egan concludes, "are a
highly socially vulnerable group, in that they have suffered
considerable historical disadvantage, stereotyping,
marginalization and stigmatization within Canadian society."
[See Note 4 below] And in establishing that new objective,
the Court, nearly thirty years after the decriminalisation of
"homosexual" sexual activity between consenting adults, has
wandered back into the bedrooms of the nation in order to set
apart gay and lesbian couples from all the other relationships
which are denied spousal benefits under the Act.
----------------
Note 3: Described as "a cherished and fundamental
institution in our society" by L'Heureux-Dube J. in Egan.
Note 4: Again, the words of L'Heureux-Dube J. in Egan.
----------------
[para12] The applicants in Egan were denied relief against
discriminatory treatment under the Act. That is because of
the limiting provision of section 1 of the Charter. The Code
does not have a general qualifying provision similar to
section 1. Does that mean that the applicants in this case
are entitled to relief under a provincial statute (the Code,
which is "special legislation," "more than ordinary," but "not
quite constitutional" [See Note 5 below]) against
discriminatory treatment, relief which was denied to the
applicants in Egan under the Constitution of this nation for
like treatment?
----------------
Note 5: A transposition of the words used to describe
human rights legislation in Ontario Human Rights Commission v.
Simpson-Sears Ltd. [1985] 2 S.C.R. 536 at page 547.
----------------
[para13] The answer to that question, and the anomaly it
presents, are beyond the scope of this appeal, and, perhaps,
beyond the record of the proceedings before the adjudicator.
[para14] We do know that the Government has not acted, as
it might, to save the benefits provisions from a finding of
discriminatory treatment. The provisions of the Code are
binding on the Government (section 57); and its substantive
rights and obligations "are paramount over the substantive
rights and obligations in every other Act of the Legislature
..." (section 58). However, section 14(7) provides:
Employee Benefits
14(7) Subject to subsection 21(6.4) of The
Pension Benefits Act, the Lieutenant Governor in Council
may make regulations prescribing distinctions,
conditions, requirements or qualifications that, for the
purposes of this section, shall be deemed to be bona fide
and reasonable in respect of any employee benefit plan,
whether provided for by individual contract collective
agreement or otherwise.
Under that section, the "distinctions, conditions,
requirements or qualifications" in the employment benefit
plans could, by regulation, be deemed to be "bona fide and
reasonable." But, the record in this appeal discloses, the
Executive has not invoked that section.
[para15] And the words "bona fide and reasonable" are
found in other sections of the Code. Sections 13(1), 14(1),
14(6) and 15(1), under which the applicants' complaints are
advanced, include an internal qualifying phrase: "unless a
bona fide and reasonable cause exists for the discrimination,"
or similar words. Counsel for the Government referred to
these qualifying words in his opening remarks before the human
rights adjudicator. However, they seem to have been
overlooked as the hearing progressed and became focused upon
the sociological meaning of the word "family," and upon
differential treatment based on the characteristics of
"marital or family status" and "sexual orientation." We do
not know whether that issue was argued before the adjudicator,
or raised in the judicial review of his decision before
Hirschfield J.
[para16] The adjudicator did not decide whether or not
"bona fide and reasonable cause" existed. Having concluded
that Mr.*Vogel's*employment benefit plans "do not discriminate
based on sexual orientation" it was not necessary for him to
make that decision. His only reference to those qualifying
words are found in a postscript obiter comment in his reasons
on systemic discrimination, a matter which was not before him.
[para17] I do not think it is a decision that this Court
should make. The effect of the qualifying words, in the
circumstances of the negotiated and legislated spousal
benefits which are the subject of the applicants' complaints,
was not argued before us; nor could it have been, in my view,
in the absence of a full evidentiary foundation.
[para18] In the result, I would allow the appeal of the
applicants. Pursuant to the jurisdiction of this Court "to
give any judgment which ought to have been pronounced," [See
Note 6 below] I would exercise the power given to the court on
a review of a decision of an adjudicator under section 50(5)
of the Code, and direct the adjudicator to continue the
adjudication in accordance with the decision of this Court.
The procedure to be used at the continued adjudication, and
the evidence, if any, that may received, are matters to be
determined by the adjudicator in the exercise of his powers
and authority under the Code.
----------------
Note 6: Section 26(1), The Court of Appeal Act, R.S.M.
1987, c. C240.
----------------
PHILP J.A.
[para19] HELPER J.A.:-- On May 25, 1995, the Supreme Court
of Canada released its reasons for decision in Egan v. Canada
(unreported). One of the questions before the Court in that
case was whether the definition of "spouse" in s. 2 of the Old
Age Security Act, R.S.C. 1985, c. O-9, violated the
appellants' equality rights protected by s. 15(1) of the
Canadian Charter of Rights and Freedoms (the Charter).
[para20] The appellants were homosexuals who had resided
together in an intimate relationship since 1948. They were
denied benefits under the Old Age Security Act because the
definition of spouse included only "a person of the opposite
sex who is living with that person, having lived with that
person for at least one year, if the two persons have publicly
represented themselves as husband and wife." The majority of
the Court [5:4] answered the s. 15(1) question in the
affirmative.
[para21] In the case at bar, the allegation is
discriminatory treatment of homosexuals contrary to The Human
Rights Code, S.M. 1987-88, c. H175 (the Code). The
Adjudicator, appointed under the provisions of the Code,
dismissed the appellants' complaints. The appeal from that
decision was dismissed as well. The matter then proceeded to
this Court.
[para22] The Egan case deals with discrimination under
s. 15(1) of the Charter while the case at bar alleges
discrimination pursuant to various provisions of the Code.
However, the reasons of the majority on the question of
discrimination are determinative of the issue in this case.
Factual background
[para23] Chris*Vogel*(Vogel)*is a regular full time
employee of the Government of Manitoba (the Government) in the
Department of Natural Resources, and has been employed
continuously by the Government since 1973. As part of his
employment package,*Vogel*is eligible to receive benefits
pursuant to the following plans and legislated schemes for
himself and his "dependents":
(a) the Manitoba Government Employees' Dental Plan;
(b) the Civil Service Superannuation Plan;
(c) the Employees' Ambulance and Hospital Plan;
(d) the Extended Health Care Plan;
(e) The Life Assurance Plan with Canada Life Assurance
Co.
[para24] Richard North (North) has lived with*Vogel*since
1972 in what*Vogel*describes as a loving, caring and committed
spousal relationship. They share their assets and their
debts, they have a joint bank account and they purchase cars
in their joint names. They share a total and complete
economic, emotional and sexual union, and have made known to
the community at large that they are in fact "spouses."
[para25] On February 11, 1974,*Vogel*and North were
"united in marriage" by a minister of the Unitarian Church in
Winnipeg. Following the ceremony they were provided with a
Certificate of Marriage, but the Registrar of Vital Statistics
refused to register the marriage. This refusal was upheld in
North et al. and Matheson, Re (1974), 52 D.L.R. (3d) 280 (Man.
Co. Ct.).
[para26] On September 29, 1982,*Vogel*signed a complaint
of discrimination under The Human Rights Act, S.M. 1974, c. 65
(the Act) alleging that the Government contravened s. 6(1) by
discriminating against him on the basis of his marital status
and sex. Marshall Rothstein (now Rothstein J.), sitting as a
Board of Adjudication, heard the complaint and dismissed it on
August 23, 1983: *Vogel*v. The Government of Manitoba (1983),
4 C.H.R.R. D/320 (Bd. of Adj.)
[para27] On June 17, 1986,*Vogel*filed with the Civil
Service Superannuation Board a declaration of common-law
relationship as required under s. 3(1) of The Civil Service
Superannuation Act in which he declared that as of February
11, 1974, he had entered into a common-law relationship with
North. This declaration was not accepted as one which would
give North spousal recognition with resulting dependent
benefits.
[para28] The Code replaced the Act on December 10, 1987.
Sexual orientation was included in s. 9(2)(h) as a prohibited
ground of discrimination in addition to those grounds which
had been enumerated in the Act. "Family status," which had
been defined in the Act, was retained in the Code as a ground
of discrimination, but without a definition.
[para29] *Vogel*initiated Complaint No. 88-EN-39 against
the Government and the Civil Service Commission on February
23, 1988, alleging a contravention of ss. 14(1) and 15(1) of
the Code. He also filed Complaint No. 88-EN-40 against the
Government, the Civil Service Commission, and the Manitoba
Government Employees' Association (MGEA) alleging that those
bodies had contravened ss. 14(1) and 14(6) of the Code.
North's complaint against the Government alleged a breach of
s. 13(1) of the Code.
[para30] The following are the applicable provisions of
the Code:
"Discrimination" defined.
9(1)In this Code, "discrimination" means
(a) differential treatment of an individual on the basis
of the individual's actual or presumed membership in or
association with some class or group of persons, rather
than on the basis of personal merit; or
(b)differential treatment of an individual or group on
the basis of any characteristic referred to in subsection
(2); or
(c)differential treatment of an individual or group on
the basis of the individual's or group's actual or
presumed association with another individual or group
whose identity or membership is determined by any
characteristic referred to in subsection (2); or ...
Applicable characteristics.
9(2)The applicable characteristics for the purposes of
clauses (1)(b) to (d) are
(a)ancestry, including colour and perceived race;
(b)nationality or national origin;
(c)ethnic background or origin;
(d)religion or creed, or religious belief, religious
association or religious activity;
(e)age;
(f)sex, including pregnancy, the possibility of
pregnancy, or circumstances related to pregnancy;
(g)gender-determined characteristics or circumstances
other than those included in clause (f);
(h)sexual orientation;
(i)marital or family status;
(j)source of income
(k)political belief, political association or political
activity;
(l)physical or mental disability or related
characteristics or circumstances, including reliance on a
dog guide or other animal assistance, a wheelchair, or
any other remedial appliance or device.
Systemic discrimination.
9(3)In this Code, "discrimination" includes any act or
omission that results in discrimination within the
meaning of subsection (1), regardless of the form that
the act or omission takes and regardless of whether the
person responsible for the act or omission intended to
discriminate.
.....
Discrimination in service, accommodation, etc.
13(1) No person shall discriminate with respect to
any service, accommodation, facility, good, right,
licence, benefit, program or privilege available or
accessible to the public or to a section of the public,
unless bona fide and reasonable cause exists for this
discrimination.
.....
Discrimination in employment.
14(1) No person shall discriminate with respect to
any aspect of an employment or occupation, unless the
discrimination is based upon bona fide and reasonable
requirements or qualifications for the employment or
occupation.
.....
Discrimination by organizations, etc.
14(6) No trade union, employer, employers'
organization, occupational association, professional
association or trade association, and no member of any
such union, organization or association, shall
(a) discriminate in respect of the right to membership
or any other aspect of membership in the union,
organization or association; or
(b) negotiate on behalf of any other person in respect
of, or agree on behalf of any other person to, an
agreement that discriminates;
unless bona fide and reasonable cause exists for the
discrimination.
Employee benefits.
14(7) Subject to subsection 21(6.4) of The Pension
Benefits Act, the Lieutenant Governor in Council may make
regulations prescribing distinctions, conditions,
requirements or qualifications that, for the purposes of
this section, shall be deemed to be bona fide and
reasonable in respect of an employee benefit plan,
whether provided for by individual contract, collective
agreement or otherwise.
.....
Discrimination in contracts.
15(1) No person shall discriminate with respect to
(a) entering into any contract that is offered or held
out to the public generally or to a section of the
public; or
(b) any term or condition of such a contract;
unless bona fide and reasonable cause exists for the
discrimination.
Life insurance, etc., contracts.
15(2) The Lieutenant Governor in Council may make
regulations prescribing distinctions, conditions,
requirements or qualifications that, for the purposes of
this section, shall be deemed to be bona fide and
reasonable in respect of life insurance, accident and
sickness insurance or life annuities, whether provided
for by individual contract, collective agreement, or
otherwise.
No regulations have been passed under s. 14(7) or under s.
15(2).
[para31] To complete the facts it is necessary to explain
that the MGEA is by statute the exclusive bargaining agent of
a unit of civil servants, including*Vogel,*in their collective
bargaining with the Government concerning the terms and
conditions of their employment. The Government Employees'
Master Agreement is the collective agreement negotiated by the
MGEA with the Government from time to time that governs
*Vogel's*employment.
THE CHALLENGED PLANS AND LEGISLATION
(a) The Dental Plan
[para32] Article 42 of the Master Agreement between the
Government and the MGEA, dated April 29, 1980, provided for a
dental service plan to be introduced five months after its
signing. That agreement defined a dependent as including a
"spouse" and a "common-law spouse." A common-law spouse was
meant to be "a person who, for at least the immediately
preceding year, has co-habited with the employee and has been
represented by the employee as his spouse."
[para33] The terms of the dental plan were agreed in a
Trust Agreement dated October 27, 1980, whereby benefits would
be extended to an employee's dependents including the
employee's spouse or common-law spouse. A common-law spouse
is defined as "a person of the opposite sex who, for at least
the immediate preceding year ... has co-habited with the
employee and has been represented by the employee as his or
her spouse ...," in distinction from the definition in the
Master Agreement.
[para34] There were further memoranda of agreement between
the Government and the MGEA regarding the dental plan dated
May 21, 1982, April 18, 1985, and February 24, 1988. None of
those memoranda filed in evidence deal with eligibility.
b) The Ambulance and Hospital Semi-private Plan
[para35] The terms of the agreement between the Government
and the insurer, Manitoba Blue Cross, for both the ambulance,
hospital benefits and the extended health benefits for
employees are contained in the Supplemental Health Benefits
Agreement signed June 10, 1987. Section 2.6 of the Agreement
states that a dependent means a subscriber's spouse and
dependent children as defined in s. 4. Section 4 then defines
a dependent as meaning besides the employee's spouse a "person
of the opposite sex with whom the employee is cohabiting in a
husband and wife relationship." The 1988 Master Agreement
between the MGEA and the Government provided that ambulance
and hospital coverage would be implemented on January 1, 1989
in accordance with the existing voluntary plan; that the
eligibility requirements for this plan would be the same as
those under the dental plan; and that the Government would pay
all the premiums.
[para36] The Group Health Care Plan of January, 1989,
published by the Manitoba Civil Service Commission, as
distinct from the agreement between the Government and Blue
Cross of June 10, 1987, describes benefits as being available
to the legal or common-law spouse of an employee and to the
dependent children of full-time employees. This edition of
the plan does not define common-law spouse.
(c) The Extended Health Plan
[para37] The eligibility requirements for this plan are
covered by the previously-mentioned Supplemental Health
Benefits Agreement. The premiums are paid by the employees
rather than by the Government.
(d) The Civil Service Superannuation Plan
[para38] This plan provides pension and survivor's
benefits and is governed by The Civil Service Superannuation
Act, R.S.M. 1988, c. C120. Employee contributions go into the
fund and the Government pays 50% of pensions as they are paid
out. The plan is subject to The Pension Benefits Act, R.S.M.
1987, c. P32. The relevant provisions of The Civil Service
Superannuation Act for the division of pension benefit credits
are:
Definitions.
1(1) In this Act,
.....
"common-law relationship" means the relationship between
a man and a woman who are common-law spouses;
"common-law spouse" means a person publicly represented
by another person as the spouse of that other person
(a) where either of the persons is prevented by law from
marrying the other, for a period of not less than three
years, or
(b) where neither of the persons is prevented by law
from marrying the other, for a period of not less than
one year.
[para39] The definitions of common-law relationship and
common-law spouse in The Pension Benefits Act are the same as
in The Civil Service Superannuation Act. Couples who are
married or are considered common-law spouses under The Pension
Benefits Act or The Civil Service Superannuation Act have some
survivorship benefits which are not extended to same-sex
couples. Those benefits are set out in s. 45(1) of The Civil
Service Superannuation Act and s. 23 of The Pension Benefits
Act.
(e) Dependent Insurance
[para40] In the Group Life Insurance Policy issued by the
Canada Life Assurance Company, for which the Government is the
policy holder, a dependent of an employee is defined as:
(1) an employee's spouse, or common-law spouse ....
For the purposes of this definition:
(a) "Common-law spouse" means a person who, for at
least the immediately preceding year, has co-habited
with the employee and has been represented by the
employee as his spouse ....
[para41] It is to be noted that the definition of
common-law spouse does not require that the person represented
as a spouse need be a member of the opposite sex.
The History of these Proceedings
[para42] *Vogel's*complaint filed under the Act in 1982
alleged that the Government discriminated against him on the
basis of his sex and his marital status because he was refused
coverage under the dental plan for his homosexual partner,
North. Adjudicator Rothstein dismissed the complaint noting
that the essence of the alleged discrimination against*Vogel*
was his sexual orientation, not his sex or his marital
relationship: *Vogel*v. The Government of Manitoba, supra. As
previously noted, sexual orientation was not a prohibited
ground of discrimination in the Act.
Human Rights Adjudication
[para43] Thomas A. Goodman was appointed the adjudicator
in 1991 to hear the present complaints.
[para44] The Government and the Manitoba Civil Service
Commission raised a preliminary issue. They argued that those
parts of the complaints that related to the prohibited grounds
of marital status and sex discrimination were res judicata or
alternatively were governed by the doctrines of estoppel or
abuse of process. The dental plan is the same dental plan
that was considered by Adjudicator Rothstein. The eligibility
criteria for benefits in the challenged schemes are identical
to or similar to those in the dental plan. *Vogel's*
relationship with North is unchanged. The matter had been
determined and the replacement of the Act with the Code did
not warrant the re-hearing of the same issues.
[para45] Adjudicator Goodman accepted that submission. He
decided that a re-hearing of all the issues would constitute
an abuse of process and, therefore, confined his consideration
of the complaints to the allegations of discrimination
relating to family status and sexual orientation. He reasoned
that each prohibited ground of discrimination must be
considered separately and that the addition to the Code of the
prohibited ground of sexual orientation discrimination did not
colour the meaning of the other listed grounds. The removal
of the definition of family status from the Code did not lead
him to conclude that this prohibited ground had a meaning
different from the one that had been in the Act. He used the
rescinded definition to determine*Vogel*had not established
discrimination on the basis of his family status.
[para46] He concluded there had been no discrimination on
the basis of sexual orientation. The distinction between the
appellants and other persons involved in similar relationships
was the appellants' status as unmarried or single persons.
The appellants' sexual orientation was irrelevant to a
determination of eligibility for the benefits because, he
reasoned, a homosexual who chooses to marry an opposite-sex
partner is not denied benefits and a homosexual's child or
children are included in the plans.
Queen's Bench
[para47] The matter then proceeded on appeal to the Court
of Queen's Bench and was heard by Hirschfield J., who
delivered his reasons on February 26, 1992 [(1992), 79 Man. R.
(2d) 208].
[para48] The appellants argued that Adjudicator Goodman's
finding of abuse of process, which resulted in his refusing to
adjudicate on the merits of the complaints relating to the
allegations of marital status and sex discrimination, was an
error in law. In the ten years since Adjudicator Rothstein's
decision, both tribunals and courts have shown an inclination
to confer on the eligibility provisions in employees' benefits
plans and legislated schemes an inclusive interpretation with
the result that same-sex partners have been accorded rights
which were not available in 1982. In addition, the
substantive changes and amendments made to the Act, now the
Code, including the addition of the prohibited grounds of
sexual orientation, the deletion of the definition of family
status, the addition of the provision of paramountcy over
other legislation (s. 58) and a definition of systemic
discrimination (s. 9(3)) required a fresh adjudication of
these two grounds of complaint.
[para49] They argued the adjudicator erred in his
interpretation of family status and sexual orientation
discrimination and in his application of the Code to the
appellants' factual situation.
[para50] Hirschfield J. concluded that Adjudicator Goodman
was justified in his determination that a re-hearing of the
issues of marital status and sex discrimination would
constitute an abuse of process. Despite that conclusion, he
did consider all four allegations of discrimination on their
respective merits.
[para51] He acknowledged there had been "a great change in
social thinking and expression of views since the Rothstein
decision, in addition to the changes in the legislation."
Although he noted the existence of a more tolerant view of
homosexuality than the one which had existed in the 1970s and
1980s, he found no legislative amendments which indicated
Adjudicator Rothstein's determination of the complaints on the
basis of sex and marital status discrimination was erroneous.
He stated (at p. 219):
"Sex" in the Code still refers to gender and not sexual
preference. "Marital status" is still the state of being
married or living in a common-law relationship as defined
in a number of statutes and agreements for purposes of
creating and defining dependency and may include the
status of being single as a consequence of separation or
divorce from or death of one's spouse. In all instances,
however, the spouse is or was a person of the opposite
sex. In other words, marital status still refers to a
heterosexual relationship.
[para52] On the question of family status discrimination,
he concluded that the status of a "spouse" and, therefore,
"family" had not yet been ascribed to a homosexual
partnership.
[para53] Turning to the question of sexual orientation,
Hirschfield J. determined that North was denied benefits
because he was the same sex as*Vogel*and, therefore, did not
qualify as*Vogel's*spouse (at p. 223):
The fact they choose to live together in what they call a
married or spousal relationship does not in my opinion
give to them the status of spouses so as to make North a
dependent within the meaning of the statutes and
agreements in question.
[para54] Hirschfield J.'s decision predates not only the
Supreme Court's decision in Egan v. Canada, supra, but also
its decision in Canada (Attorney General) v. Mossop, [1993]
1 S.C.R. 554.
Court of Appeal
[para55] The hearing in this Court predated the release of
the Supreme Court's decision in Egan v. Canada. As a result
of that decision, I find it unnecessary to review the
arguments presented in this Court. Cory J.'s extensive
analysis of the meaning of discrimination under s. 15(1) of
the Charter is applicable to the interpretation of s. 9 of the
Code. The challenged plans and legislation draw a clear
distinction between opposite-sex couples and same-sex couples
resulting in direct discrimination. The distinction amounts
to a denial of an equal benefit of the law on the basis of
sexual orientation, a personal characteristic.
[para56] The eligibility criteria in the challenged
schemes are clear and can have but one meaning. A common-law
spouse is defined as "a person of the opposite sex." To treat
persons of the same sex who represent themselves as a
common-law couple differently from persons of the opposite sex
representing themselves as a common-law couple is a
differentiation based upon sexual orientation.
[para57] The Government's argument on the standard of
review to be applied by this Court on appeals from the
decisions of human rights tribunals dissolves in light of s.
50 of the Code which allows for a review when there has been
an error in law. Hirschfield J.'s determination that the
basis of the distinctive treatment accorded the appellants was
their non-marital status is clearly erroneous in light of the
reasons in Egan v. Canada. The exclusion of homosexual
couples from the benefits directed to all heterosexual
employees involved in permanent, intimate relationships due to
a limiting definition of "spouse" and "common-law spouse" is
discrimination on the basis of sexual orientation.
[para58] While granting benefits to people having a
particular status in relation to marriage may be found to be
marital status discrimination, the use of a specific personal
characteristic to limit the class of persons who may otherwise
qualify for benefits, their sexual orientation, is creating a
distinction on that other ground. As the law now stands,
same-sex couples cannot marry. Any rationalization of the
appellants' exclusion from benefits on the basis of their
non-marital status in an attempt to avoid addressing the
complaint of discrimination on the basis of sexual orientation
cannot be done.
[para59] While I agree with that part of Hirschfield J.'s
decision in which he finds that this is not a case of
discrimination on the basis of sex, my determination that the
appellants were discriminated against on the basis of their
sexual orientation precludes the need to determine the issues
of family status and marital status discrimination.
[para60] I wish to make two final observations.
[para61] The Adjudicator erred in his conclusion that each
ground of discrimination must be considered separately. The
various enumerated grounds of discrimination may very well
overlap. Each ground is not a neat compartment into which a
particular factual situation will necessarily fit without some
spill-over onto a different enumerated ground: Canada
(Attorney General) v. Mossop, supra.
[para62] He erred as well in concluding that his
consideration of the three complaints on the basis of sex and
marital status discrimination would constitute an abuse of
process. The present complaints challenge plans and
legislation not considered by Adjudicator Rothstein. The
appeal judge was correct in addressing the merit of each of
the four allegations of discrimination.
[para63] My brother Philp has noted that ss. 13(1), 14(1),
14(6) and 15(1) of the Code under which the appellants
advanced their complaints have an internal qualifying phrase
to the effect that discrimination may be allowed where bona
fide and reasonable cause exists for the discrimination. In
his reasons, he has also noted that although counsel for the
Government referred to these qualifying words in the relevant
provisions of the Code, the hearing before the Adjudicator
appeared to focus on one issue only, discrimination. Little
or no evidence was given to explain the differential treatment
of homosexual couples under the schemes. No explanation was
offered for the exclusion from benefits of same-sex couples as
that exclusion related to the purpose or objective or effect
of the schemes. No argument was advanced to show that the
schemes were developed for any reason other than to provide
benefits to employees who are involved in permanent
relationships and their dependent children, in exchange for
reduced salary increases. The failure of the Adjudicator and
the appeal judge to adjudicate upon the effect of the internal
qualifying phrase in each of the relevant sections of the Code
is understandable in light of the missing evidentiary base and
the direction taken by counsel during the course of the
hearing.
[para64] The appellants advised the Adjudicator that what
was being sought under the Code was a remedial order declaring
North entitled to the dependent benefits available to*Vogel*
from his employment. *Vogel*is also seeking from the
Government compensation for his losses sustained in pursuing
his rights. Neither of the appellants is seeking damages of
any kind. Under s. 50(5) of the Code, this Court is empowered
to affirm, vary or set aside the decision and to direct the
Adjudicator to continue the adjudication in accordance with
the decision of the Court.
[para65] I am in agreement with Philp J.A. that this
matter be remitted to the Adjudicator under that provision of
the Code.
[para66] In the result, I would allow the appeal, set
aside the decision of the Adjudicator and direct that he
continue the adjudication in accordance with the decision of
the Court.
HELPER J.A.
SCOTT C.J.M. -- I agree.
QL Update: 950622
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