EQUALITY
EQUALITY ........................................................................................................................ 1
Canada................................................................................................................................. 6
Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143: Whether the
Canadian citizenship requirement for admission to the British Columbia bar infringed
or denied the equality rights ......................................................................................... 7
R. v. Turpin [1989] 1 S.C.R. 1296: Whether the Criminal Code, which gives accused
persons in Alberta (but not in any other province) an election to be tried before a judge
alone, violates appellants' equality rights...................................................................... 9
Edmonton Journal v. Alberta (Procureur Général), [1989] 2 S.C.R. 1326 ............... 10
Douglas/Kwantlen Faculty Assn. v. Douglas College [1990] 3 S.C.R. 570............. 11
Weatherall v. Canada (Attorney General) [1993] 2 S.C.R. 872: Constitutionality
of frisk searching and patrolling of cell ranges conducted in male prisons by female
guards. ....................................................................................................................... 13
Insurance Corp. of British Columbia v. Heerspink (1982), 3 C.H.R.R. D/1163
(S.C.C.) [Eng. 6 pp.]: Special Status of Human Rights Legislation Defined -Unacceptable risk to insurance company as reasonable cause for discriminatory
action-- insurance policy terminated without reasonable cause because applicant
charged with trafficking in marijuana ....................................................................... 13
Saskatchewan (Human Rights Comm.) v. Saskatchewan (Dept. of Social
Services) (1988), 9 C.H.R.R. D/5181 (Sask. C.A.) [Eng. 9 pp.]. Saskatchewan Court
of Appeal Rules Social Assistance is a Public Service; social assistance benefits
reduced for single person-- discriminated against because of his marital status because
as a childless unmarried person, applicant was paid less in social assistance than a
childless married person............................................................................................. 15
Saskatchewan (Human Rights Commission) v. Saskatoon (City) [1989] 2 S.C.R.
1297: Mandatory retirement -- Alleged discrimination on the basis of age -- Defence
of bona fide occupational qualification..................................................................... 16
Benner v. Canada (Secretary of State) [1997] 1 S.C.R. 358: -- Citizenship -Children born abroad before February 15, 1977 of Canadian fathers granted
citizenship on application but those of Canadian mothers required to undergo
security check and to take citizenship oath ............................................................... 18
Miron v. Trudel [1995] 2 S.C.R. 418: Automobile insurance -- Standard automobile
policy prescribed by provincial legislation extending accident benefits to "spouse" of
policy holder -- Term "spouse" not including unmarried common law spouse -Appropriate remedy ................................................................................................... 21
Thibaudeau v. Canada [1995] 2 S.C.R. 627: -- Alimony -- Income tax -- Divorced
wife refusing to include in computing income amounts received from ex-husband as
alimony for maintenance of children -- ...................................................................... 27
Large v. Stratford (City) [1995] 3 S.C.R. 733: Discrimination on basis of age -Mandatory retirement -- Police officer -- Defence of bona fide occupational
requirement -- Board of Inquiry finding that mandatory retirement at age 60 for
police officers not a bona fide occupational requirement -- Whether Board properly
applied subjective and objective tests for a bona fide occupational requirement .... 35
Dickason v. University of Alberta [1992] 2 S.C.R. 1103: Mandatory retirement -Provincial legislation prohibiting discrimination on basis of age -- Employer may
show that alleged contravention "reasonable and justifiable in the circumstances" -Whether university's policy of mandatory retirement at age 65 justified ................. 38
R v S (S) [1990] 2 S.C.R. 254: Discrimination on the basis of province of residence
-- Ontario failing to implement alternative measures programmes pursuant to s. 4 of
the Young Offenders Act .......................................................................................... 43
Mckinney v. University of Guelph [1990] 3 S.C.R. 229: Age discrimination -Mandatory retirement at age 65 -- Whether or not mandatory retirement policy "law"
................................................................................................................................... 45
Sex discrimination cases ............................................................................................... 55
Brooks v. Canada Safeway Ltd. (1989), 10 C.H.R.R. D/6183 (S.C.C.) [Eng./Fr. 23
pp.]: Sex Discrimination Includes Pregnancy -- employee disability plan
discriminated against pregnant employees ............................................................... 55
Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action
travail des femmes (1987), 8 C.H.R.R. D/4210 (S.C.C.) [Eng./Fr. 24 pp.] S.C.C.
Upholds Affirmative Action -- Order of a Tribunal requiring Canadian National
Railway to hire one woman in every four new hires into unskilled blue-collar jobs.
................................................................................................................................... 57
Gould v. Yukon Order of Pioneers (1996), 25 C.H.R.R. D/87 (S.C.C.) [Eng./Fr.
55 pp.] S.C.C. Upholds Right of Club to Refuse Membership to Women -refusal of membership in a men's organization is not a discriminatory denial of
services ...................................................................................................................... 58
Canada (Attorney General) v. Mossop (1993), 17 C.H.R.R. D/349 (S.C.C.)
[Eng./Fr. 61 pp.] Family Status Does Not Include Sexual Orientation -"family status" in the Canadian Human Rights Act does not give a gay employee the
right to be covered by a benefit provision in his collective agreement .................... 60
Janzen v. Platy Enterprises Ltd. (1989), 10 C.H.R.R. D/6205 (S.C.C.) [Eng./Fr.
31 pp.] Sexual Harassment is Sex Discrimination -- sexual advances by co-worker -definition of sexual harassment -- survey of the law ................................................ 61
Zurich Insurance Co. v. Ontario (Human Rights Comm.) (1992), 16 C.H.R.R.
D/255 (S.C.C.) [Eng./Fr. 46 pp.]: Discriminatory Auto Insurance Rates Allowed for
Bona Fide Reasons: age, sex and marital status discrimination in automobile
insurance premium rates -- age group 25 and under -- male gender affected -- single
male discriminated against ........................................................................................ 62
R v. Hess R. v. Nguyen [1990] 2 S.C.R. 906: Criminal Code prohibiting sexual
intercourse with a female person under the age of fourteen years ............................ 65
Discrimination by employer ......................................................................................... 68
Canada (Attorney General) v. Grover (No. 1) (1992), 18 C.H.R.R. D/1
(Can.Trib.) [Eng./Fr. 57 pp.] Employer Ordered to Remedy Discriminatory
Treatment-- -- employment terminated -- promotion denied -- because of race,
colour and national origin. ........................................................................................ 68
Chiswell v. Valdi Foods 1987 Inc. (1994), 25 C.H.R.R. D/400 (Ont. Bd.Inq.)
[Eng. 8 pp.]: Joking Constitutes Discrimination-- racial slurs and harassment
................................................................................................................................... 69
2
by supervisor -- poisoned environment -- jokes by supervisor -- discrimination based
on stereotype -- employer's obligation to provide workplace free from harassment 69
Canada ( Attorney General) v. Uzoaba (1995), 26 C.H.R.R. D/428 (F.C.T.D.)
[Eng./Fr. 7 pp.] Negative employment evaluation -- poisoned environment -- racial
slurs and harassment ---Court upholds Tribunal decision that race discrimination
formed basis of employer actions ............................................................................. 70
Disability cases: ............................................................................................................ 71
Canadian Odeon Theatres Ltd. v. Huck (1985), 6 C.H.R.R. D/2682 (Sask. C.A.)
[Eng. 13 pp.] Treatment of wheelchair user in theatre discriminatory ..................... 72
Ouimette v. Lily Cups Ltd. (1990), 12 C.H.R.R. D/19 (Ont. Bd.Inq.) [Eng. 16
pp.]: employment terminated because of allergy -- flu is not a disability -- definition
of "handicap" ............................................................................................................ 73
Canada (Attorney General) v. Robinson (1994), 21 C.H.R.R. D/113 (F.C.A.)
[Eng./Fr. 23 pp.] Soldier first policy for armed forces upheld -- employment
terminated on basis of epilepsy -- individual assessment to determine medical fitness
-- duty to accommodate in case of direct discrimination .......................................... 74
Québec (Comm. des droits de la personne) c. Coutu (No 2) (1995), 26 C.H.R.R.
D/31 (Trib.Qué.) [Fr. 24 pp.]: Exploitation of disabled persons in care facility -nature and purpose of human rights legislation -- care facility policy discriminatory
for economic reasons -- compensation for wilful exploitation and injury to dignity
and self-respect ......................................................................................................... 76
Ripplinger v. Ryan (1996), 24 C.H.R.R. D/435 (Sask. C.A.) [Eng. 6 pp.] Barrierfree access for wheelchair user -- restaurant service denied to wheelchair user -refusal to provide barrier-free access based on economic reasons -- duty to
accommodate short of undue hardship-- compliance with act does not preclude
human rights subscriptions violation ........................................................................ 78
Gibbs v. Battlefords and Dist. Co-operative Ltd. (1996), 27 C.H.R.R. D/87 (S.C.C.)
[Eng./Fr. 22 pp.]: disability benefits denied on the basis of nervous disorder -distinction between mental and physical disability -- mentally disabled employee
entitled to same medical benefits as other disabled employees ................................ 80
Eaton v. Brant County Board of Education [1997] 1 S.C.R. 241: Physical
disability -- Child with physical disabilities identified as being an "exceptional
pupil" -- Child placed in neighbourhood school on trial basis -- Child's best
interests later determined to be placement in special education class -- Whether
placement in special education class and process of doing so absent parental
consent infringing child's equality rights .................................................................. 82
Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624: -Physical disability -- Publicly funded medicare -- Medicare not providing for sign
language interpreters -- Whether, and in what manner, the Charter applies to the 86
decision not to provide sign language interpreters for the deaf as part of the publicly
funded scheme for the provision of medical care ..................................................... 86
Symes v. Canada [1993] 4 S.C.R. 695: -- Income tax -- Child care expenses -Partner in law firm deducting wages paid to nanny in her income tax returns -Whether child care expenses deductible as business expenses -- If not, whether
equality rights violated ............................................................................................. 90
3
Sexual Orientation Cases .......................................................................................... 94
Haig v. Canada (1992), 16 C.H.R.R. D/226 (Ont. C.A.) [Eng. 7 pp.]: Sexual
Orientation Included as Ground of Discrimination Under Canadian Human Rights
Act -- definition of sexual orientation -- protection based on non-enumerated ........ 94
grounds of discrimination -- equal treatment -- equality in the administration,
substance and benefit of the law ............................................................................... 94
Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont. Bd.Inq.) [Eng. 41
pp.] Ontario Government Employee Benefit Plans Discriminate on Basis of Sexual
Orientation -- employee benefits denied -- sexual orientation as ground of
discrimination in human rights legislation ................................................................ 95
Moore v. Canada (Treasury Board) (1996), 25 C.H.R.R. D/351 (Can.Trib.)
[Eng./Fr. 22 pp.] Denial of Benefits to Same-Sex Partner Discriminatory ............. 99
Dwyer v. Toronto (Metro) (No. 3) (1996), 27 C.H.R.R. D/108 (Ont. Bd.Inq.)
[Eng. 32 pp.] Restrictions on Benefits on the Basis of Sexual Orientation
Discriminatory -- discrimination against lesbian and gay employees who have
partners of the same-sex with respect to three categories of employment benefits:
uninsured benefits (such as leave to care for ill dependents); insured benefits (such
as extended health); and survivor pension entitlement ........................................... 101
Vriend v. Alberta (1997), 31 C.H.R.R. D/1 (S.C.C.) [Eng./Fr. 62 pp.] Alberta
Legislative Inaction on Sexual Orientation Discriminatory sexual orientation as
ground of discrimination in human rights legislation -- employment terminated -equality in the administration, substance and benefit of the law -- relationship
between equality under human rights legislation and equality under the Charter .. 105
Egan v. Canada [1995] 2 S.C.R. 513: Old age security legislation providing for
allowance for spouse of pensioner – Definition of "spouse" restricted to person of
opposite sex ............................................................................................................. 109
Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554: Discriminatory
practice -- Family status -- Employee denied bereavement leave to attend funeral of
father of his male companion -- Collective agreement providing for leave upon
death of a member of an employee's "immediate family" -- "Immediate family"
including common-law spouse of opposite sex -- Federal legislation prohibiting
discrimination on basis of "family status" -- Whether denial of bereavement leave
based on family status ............................................................................................. 116
United States ................................................................................................................... 120
DENNIS v. UNITED STATES, 339 U.S. 162 (1950)............................................ 120
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944) ................................. 121
Germany.......................................................................................................................... 121
German Basic Law ...................................................................................................... 121
74 BVerf GE 163 (1987)............................................................................................. 122
GBL Article 3.1. ..................................................................................................... 125
78 BVerfGE 104 (1988).............................................................................................. 125
GBL Article 3.1. ..................................................................................................... 132
GBL Article 3.2. ..................................................................................................... 132
GBL Article 3.3. ..................................................................................................... 132
85 BVerfGE 191 (1992).............................................................................................. 132
4
India ................................................................................................................................ 136
This section requires elaboration: ........................................................................... 136
State of Gujarat v Shri Ambica Mills AIR 1974 SC 1300 at 1314-15. .................. 136
INDIAN CASES ON AFFIRMATIVE ACTION 1990 96 ....................................... 136
1 AJIT SINGH JANUJA V STATE OF PUNJAB AIR 1996 SC 1189 ................. 136
2.UNION OF INDIA V VIRPAL SINGH CHAUHAN 1996 SC448 .................... 137
3. VALASAMMA PAUL V COCHIN UNIVERSITY AIR 1996 SC 1011. ......... 137
4. INDRA SAWHNEY V UNION OF INDIA AIR 1993 SC 447 ......................... 138
INDRA SAWHNEY V. UNION OF INDIA AIR 1993 SC 477. ........................... 138
ECONOMIC CRITERION TEST .............................................................................. 138
The limits of reservation ............................................................................................. 140
EUROPEAN COMMUNITY ......................................................................................... 140
Employment: equal treatment: elaborate on these cases............................................. 141
Sexual orientation: Homosexual rights: elaboration required .................................... 142
STUBBINGS AND OTHERS v. THE UNITED KINGDOM (36-37/1995/542543/628-629) 22 October 1996: rules on limitation preventing alleged victims of
child sexual abuse from commencing civil proceedings ........................................ 142
VAN RAALTE v. THE NETHERLANDS (108/1995/614/702) 21 February
1997: exemption from obligation to pay contributions under social welfare scheme
applying to unmarried childless women aged 45 or over but not to men in the same
position.................................................................................................................... 146
SHEFFIELD AND HORSHAM v. THE UNITED KINGDOM (31-32/1997/815816/1018-1019) 30 July 1998: whether respondent State has a positive obligation to
recognise for legal purposes new sexual identities of applicants, both male to female
post-operative transsexuals ..................................................................................... 148
UNITED KINGDOM ..................................................................................................... 149
Botswana ......................................................................................................................... 149
Final Constitution
Equality
9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the
law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and other measures designed to protect or advance persons,
or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit
unfair discrimination.
5
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair.
Interim Constitution
8 Equality
(1) Every person shall have the right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating
from the generality of this provision, on one or more of the following grounds in particular: race,
gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture or language.
(3)a.This section shall not preclude measures designed to achieve the adequate protection and
advancement of persons or groups or categories of persons disadvantaged by unfair
discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.
b.Every person or community dispossessed of rights in land before the commencement of this
Constitution under any law which would have been inconsistent with subsection (2) had that
subsection been in operation at the time of the dispossession, shall be entitled to claim restitution
of such rights subject to and in accordance with sections 121, 122 and 123.
(4) Prima facie proof of discrimination on any of the grounds specified in subsection (2) shall be
presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until
the contrary is established.
Canada
Constitution Act, 1982. 1
Equality Rights
15. (1) Every individual is equal before the and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the
amelioration of conditions of disadvantaged individuals or groups including those that are
disadvantaged because or race, national or ethnic origin, colour, religion, sex, age, or mental or
physical disability.(5)
The Canadian Supreme Court has abandoned the ‘similarly situated test’ in favour
of an approach that focuses attention on ‘the content of the law, its purpose, and its
impact upon those to whom it applies, and also to those whom it excludes from
application’. This test was set out in the following case:
1
Enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982 c. 11, which came into force on
April 17, 1982.
6
Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143: Whether
the Canadian citizenship requirement for admission to the British Columbia bar
infringed or denied the equality rights
The respondent Andrews, a British subject permanently resident in Canada met all
the requirements for admission to the British Columbia bar except that of Canadian
citizenship. His action for a declaration that that requirement violated s. 15(1) of the
Canadian Charter of Rights and Freedoms was dismissed at trial but allowed on
appeal. Kinersly, an American citizen who was at the time a permanent resident of
Canada articling in the Province of British Columbia, was added as a co-respondent
by order of this Court. The constitutional questions before this Court dealt with: (1)
whether the Canadian citizenship requirement for admission to the British Columbia
bar infringed or denied the equality rights guaranteed by s. 15(1) of the Charter; (2)
if so, whether that infringement was justified by s. 1.
Held:
Section 15(1) of the Charter
Per Dickson C.J. and McIntyre, Lamer, Wilson and L'Heureux-Dubé JJ.: Section
15(1) of the Charter provides for every individual a guarantee of equality before and
under the law, as well as the equal protection and equal benefit of the law without
discrimination. This is not a general guarantee of equality; its focus is on the
application of the law. No problem regarding the scope of the word "law" arose in
this case because legislation was under attack.
The "similarly situated should be similarly treated" approach will not necessarily
result in equality nor will every distinction or differentiation in treatment necessarily
result in inequality. The words "without discrimination" in s. 15 are crucial.
Discrimination is a distinction which, whether intentional or not but based on
grounds relating to personal characteristics of the individual or group, has an effect
which imposes disadvantages not imposed upon others or which withholds or limits
access to advantages available to other members of society. Distinctions based on
personal characteristics attributed to an individual solely on the basis of association
with a group will rarely escape the charge of discrimination, while those based on
an (page 145) individual's merits and capacities will rarely be so classed.
Generally, the principles applied under the Human Rights Acts are equally
applicable to questions of discrimination under s. 15(1). However, the Charter
requires a two-step approach to s. 15(1). The first step is to determine whether or
not an infringement of a guaranteed right has occurred. The second step is to
determine whether, if there has been an infringement, it can be justified under s. 1.
The two steps must be kept analytically distinct because of the different attribution
7
of the burden of proof; the citizen must establish the infringement of his or her
Charter right and the state must justify the infringement.
The grounds of discrimination enumerated in s. 15(1) are not exhaustive.
Grounds analogous to those enumerated are also covered and the section may be
even broader than that although it is not necessary to answer that question in this
case since the ground advanced in this case falls into the analogous category.
The words "without discrimination" require more than a mere finding of
distinction between the treatment of groups or individuals. These words are a form
of qualifier built into s. 15 itself and limit those distinctions which are forbidden by
the section to those which involve prejudice or disadvantage. The effect of the
impugned distinction or classification on the complainant must be considered.
Given that not all distinctions and differentiations created by law are discriminatory,
a complainant under s. 15(1) must show not only that he or she is not receiving
equal treatment before and under the law or that the law has a differential impact
on him or her in the protection or benefit of the law but must show in addition that
the law is discriminatory.
A rule which bars an entire class of persons from certain forms of employment,
solely on the grounds of a lack of citizenship status and without consideration of
educational and professional qualifications or the other attributes or merits of
individuals in the group, infringes s. 15 equality rights. Section 42 of the Barristers
and Solicitors Act is such a rule.
Wilson J at 168: I would also agree with the following criticism of the similarly
situated test made by Kerans J.A. in Mahe v. Alta. (Gov't) (1987), 54 Alta. L.R. (2d)
212, at p. 244:
. . . the test accepts an idea of equality which is almost mechanical, with no
scope for considering the reason for the distinction. In consequence, subtleties are
found to justify a finding of dissimilarity which reduces the test to a categorization
game. Moreover, the test is not helpful. After all, most laws are enacted for the
specific purpose of offering a benefit or imposing a burden on some persons and
not on others. The test catches every conceivable difference in legal treatment.
For the reasons outlined above, the test cannot be accepted as a fixed rule or
formula for the resolution of equality questions arising under the Charter.
Consideration must be given to the content of the law, to its purpose, and its impact
upon those to whom it applies, and also upon those whom it excludes from its
application. The issues which will arise from case to case are such that it would be
wrong to attempt to confine these considerations within such a fixed and limited
formula.
8
It is not every distinction or differentiation in treatment at law which will
transgress the equality guarantees of s. 15 of the Charter. It is, of course, obvious
that legislatures may -- and to govern effectively -- must treat different individuals
and groups in different ways. Indeed, such distinctions are one of the main
preoccupations of legislatures. The classifying of individuals and groups, the
making of different provisions respecting such groups, the application of different
rules, regulations, requirements and qualifications to different persons is necessary
for the governance of modern (page 169) society. As noted above, for the
accommodation of differences, which is the essence of true equality, it will
frequently be necessary to make distinctions.
R. v. Turpin [1989] 1 S.C.R. 1296: Whether the Criminal Code, which gives
accused persons in Alberta (but not in any other province) an election to be tried
before a judge alone, violates appellants' equality rights
Except in Alberta, an accused charged with murder must, under ss. 427, 429 and
430 of the Criminal Code, be tried by a judge and jury. The appellants and a coaccused, who were charged with first degree murder in Ontario, made a pre-trial
motion for a trial by a judge alone. The trial judge granted the motion holding that
the effect of s. 11(f) of the Canadian Charter of Rights and Freedoms was to allow
an accused to elect whether to be tried by a judge and jury or by a judge alone. He
also held that ss. 427, 428 and 429 of the Criminal Code violated s. 15 of the
Charter because s. 430 gave individuals charged with the same offence in Alberta
an election to be tried by a judge alone. At trial, T was acquitted and S and the coaccused were convicted of second degree murder. The Court of Appeal allowed the
Crown's appeal on the ground that the trial judge had conducted the trial without
jurisdiction, set aside the verdicts and ordered a new trial on the original charge for
all three accused. The Court found that there had been no violations of ss. 11(f)
and 15 of the Charter. These appeals are to determine (1) whether ss. 429 and 430
of the Criminal Code, which require a murder trial to be conducted before a judge
and jury, violate appellants' right to waive a trial by jury under s. 11(f) of the Charter;
and (2) whether s. 430 of the Code, which gives accused persons in Alberta (but
not in any other province) an election to be tried before a judge alone, violates
appellants' equality rights under s. 15 of the Charter. Held: The appeals should be
dismissed.
(2) Section 15
The guarantee of equality before the law is designed to advance the value that
all persons be subject to the equal demands and burdens of the law and not suffer
any greater disability in the substance and application of the law than others. Here,
the impugned provisions denied the appellants equality before the law. The
appellants, who wished to be tried by a judge alone, were precluded from receiving
9
such a trial by the combined force of ss. 427 and 429 of the Criminal Code. Section
430 of the Code, on the other hand, permits those charged with the same offence in
Alberta to be tried by a judge alone. The impugned provisions of the Code treated
the appellants and those charged with the offences listed in s. 427 more harshly
than those charged with the same offences in the province of Alberta who, because
of s. 430, have an opportunity to be tried by judge alone if they deem this to be to
their advantage. However, while the distinction created by s. 430 resulted in a
violation of appellants' rights to equality before the law, such distinction was not
discriminatory in its purpose or effect and, therefore, did not violate s. 15 of the
Charter. Persons resident outside Alberta and charged with s. 427 offences outside
Alberta do not constitute a (page 1299) disadvantaged group in Canadian society
within the contemplation of s. 15.
Wilson J at 1331: In determining whether there is discrimination on grounds relating
to the personal characteristics of the individual or group, it is important to look not
only at the impugned legislation which has created a distinction that violates the
right to equality but also to the larger social, political and legal context. McIntyre J.
emphasized in Andrews (at p. 167): For, as has been said, a bad law will not be
saved merely because it operates equally upon those to whom it has application.
Nor will a law necessarily be bad because it makes distinctions.
Accordingly, it is only by examining the larger context that a court can
determine whether differential treatment results in inequality or whether, (page
1332) contrariwise, it would be identical treatment which would in the particular
context result in inequality or foster disadvantage. A finding that there is
discrimination will, I think, in most but perhaps not all cases, necessarily entail a
search for disadvantage that exists apart from and independent of the particular
legal distinction being challenged.
Edmonton Journal v. Alberta (Procureur Général), [1989] 2 S.C.R. 1326
The appellant sought a declaration that s. 30 of the Alberta Judicature Act (the
"Act") contravenes ss. 2(b) and 15 of the Canadian Charter of Rights and
Freedoms which respectively guarantee freedom of expression and legal equality.
Section 30(1) of the Act prohibits the publication of any detail relating to matrimonial
proceedings other than the names, addresses and occupations of the parties and
witnesses; a concise statement of the charges, defences, counter-charges and
legal submissions; and the summing up of the judge, the finding of the jury and the
judgment of the court. Section 30(2) prohibits the publication before trial of anything
contained in the pleadings of civil proceedings, except the names of the parties and
the general nature of the claim and of the defence. Section 30(3) provides for
various types and forms of publication when ordered by the court, including the
publication of matters otherwise prohibited. Both the Court of Queen's Bench and
10
the Court of Appeal dismissed the application on the ground that s. 30 constitutes a
reasonable limit to s. 2(b) under s. 1 of the Charter and that it did not violate s. 15.
Held (La Forest, L'Heureux-Dubé and Sopinka JJ. dissenting in part): The
appeal should be allowed…. Section 30(1) and (2) of the Act infringe s. 2(b) of the
Charter and are not justifiable under s. 1 of the Charter. In light of this conclusion, it
is not necessary to deal with the argument based on s. 15 of the Charter.
Per Dickson C.J. and Lamer and Cory JJ.:….Because s. 30(1) and (2)
contravene s. 2(b), and in light of the conclusion that it cannot be justified pursuant
to s. 1 of the Charter, it is not necessary to deal with the argument based on s. 15
of the Charter.
Per Wilson J.:…The Charter should be applied to individual cases using a
contextual rather than an abstract approach. A contextual approach recognizes
that a particular right or freedom may have a different value depending on the
context and brings into sharp relief the aspect of the right or freedom which is truly
at stake in the case as well as the relevant aspects of any values in competition
with it. This approach is more sensitive to the reality of the dilemma posed by the
particular facts of a case and is more conducive to finding a fair and just
compromise between two competing values under s. 1. The importance of a
Charter's right or freedom, therefore, must be assessed in context rather than in the
abstract and its purpose must also be ascertained in context.
Section 30(2) of the Act infringes s. 2(b) of the Charter and is not justifiable under s.
1. In light of the conclusion with respect to ss. 2(b) and 1 of the Charter, it is not
necessary to deal with the appellant's contention that s. 30(1) and (2) of the Act
violate s. 15 of the Charter.
Per La Forest, L'Heureux-Dubé and Sopinka JJ. (dissenting in part): …Section
30(2) of the Act infringes s. 2(b) of the Charter and is not justifiable under s. 1.
Section 30(2) is simply too broad a
restriction without adequate justification to afford a defence under s. 1.
Section 30 of the Act does not infringe s. 15 of the Charter. Section 15 is limited
to individuals and does (page 1331) not apply to corporations… In any event,
although s. 30 imposes a prohibition not found in other jurisdictions in Canada, and
discriminates against print media and between newspapers in general circulation
and professional journals, these distinctions do not fall within the ambit of s. 15.
Douglas/Kwantlen Faculty Assn. v. Douglas College [1990] 3 S.C.R. 570
Douglas College was one of the colleges in a system of post-secondary education
operated by British Columbia through the College and Institute Act. A college once
11
designated under the Act became a corporation and was for all purposes an agent
of the Crown and could only exercise its powers as such. It was subject to direct
and substantial control by the Minister. Its board was appointed by the Lieutenant
Governor in Council at (page 571) pleasure and its annual budget was submitted to
the Minister for approval. The Minister was empowered to establish policy or issue
directives regarding post-secondary education and training, to provide services
considered necessary, to approve all by-laws of the Board and to provide the
necessary funding.
The collective agreement, which was governed by the Labour Code and came
into effect after the commencement of the Canadian Charter of Rights and
Freedoms, provided for mandatory retirement at age 65 (Article. 4.04). Two faculty
members who were about to be retired filed a grievance challenging Article 4.04 as
violating s. 15(1) of the Charter. The arbitrator appointed pursuant to the collective
agreement held, in a preliminary award, that the college was a Crown agency
subject to the Charter and that any action taken by it, including the collective
agreement, constituted a "law" within the meaning of s. 15(1) of the Charter. This
preliminary award did not deal with whether Article 4.04 of the collective agreement
was justified under s. 1 or whether the association was estopped from claiming the
benefits of the Charter. An appeal to the British Columbia Court of Appeal was
dismissed.
The constitutional questions before this Court queried: (1) whether the Charter
applied to the negotiation and administration of the retirement provision in the
collective agreement; (2) whether that provision or its application was "law" as that
term is used in s. 15(1) of the Charter; (3) whether the arbitration board appointed
to resolve a grievance disputing the constitutionality of that provision was a court of
competent jurisdiction under s. 24(1) of the Charter; (4) whether the arbitration
board had jurisdiction to hear and determine such a grievance. Held: The appeal
should be dismissed.
Per Dickson C.J. and La Forest and Gonthier JJ.: The college was a Crown
agency established by the government to implement government policy. It was
simply in form and in fact part of the apparatus of government. The government
may permit the college board to exercise a measure of discretion but it not only
appoints and removes the board at pleasure but also may at all times by law
direct its operation. The college was performing acts of government in carrying
out its function. The actions of the college in the negotiation and administration of
the collective agreement were those of the government for the purposes of s. 32
of the Charter. It was (page 572) quite unlike the universities which managed
their own affairs.
For reasons discussed in McKinney v. University of Guelph, [1990] 3 S.C.R.
000, the collective agreement is law. It was entered into by a government agency
pursuant to powers granted by statute in furtherance of government policy. The fact
12
that the faculty association agreed to it did not alter the fact that it had been entered
into by government pursuant to statutory power and so constituted government
action. To permit government to pursue policies violating Charter rights by means
of contracts and agreements with other persons or bodies cannot be tolerated.
Weatherall v. Canada (Attorney General) [1993] 2 S.C.R. 872:
Constitutionality of frisk searching and patrolling of cell ranges conducted in male
prisons by female guards.
A prison inmate challenged in the Federal Court, Trial Division the constitutionality
of frisk searching and patrolling of cell ranges conducted in male prisons by female
guards. The frisk search consists of a hand search of a clothed inmate from head to
foot. Touching of the genital area, although not specifically precluded, is avoided.
The surveillance patrols consist of regular scheduled cell patrols ("counts") and
unannounced patrols conducted at random times every hour ("winds"). The inmate
objected to the cross-gender touching that occurs during a frisk search and to the
female guards' possible viewing of inmates while undressed or while using the toilet
during counts and winds. The trial judge concluded that the cross-gender frisk
searches did not violate ss. 7, 8 and 15 of the Canadian Charter of Rights and
Freedoms but that the winds conducted by female guards constituted an invasion
of privacy of male inmates contrary to s. 8. The Federal Court of Appeal set aside
the judgment, holding that neither the cross-gender frisk searches nor the crossgender winds were unconstitutional. Held: The appeal should be dismissed.
It does not follow from the fact that female prison inmates are not subject to
cross-gender frisk searches and surveillance that these practices result in
discriminatory treatment of male inmates. Equality under s. 15(1) of the Charter
does not necessarily connote identical treatment; in fact, different treatment may be
called for in certain cases to promote equality. Equality, in the present context, does
not demand that practices which are forbidden where male officers guard female
inmates must also be banned where female officers guard male inmates. Given the
historical, biological and sociological differences between men and women, it is
clear that the effect of cross-gender searching is different and more threatening for
women than for men. In any event, even if this different treatment amounts to a
breach of s. 15(1), the practices are saved by s. 1 of the Charter. The important
government objectives of inmate rehabilitation and security of the institution are
promoted as a result of the humanizing effect of having women in these positions.
Moreover, Parliament's ideal of achieving employment equity is given a material
application by way of this initiative. The proportionality of the means used to the
importance of these ends would thus justify the breach of s. 15(1), if any.
Insurance Corp. of British Columbia v. Heerspink (1982), 3 C.H.R.R. D/1163
(S.C.C.) [Eng. 6 pp.]: Special Status of Human Rights Legislation Defined -13
Unacceptable risk to insurance company as reasonable cause for discriminatory
action-- insurance policy terminated without reasonable cause because applicant
charged with trafficking in marijuana
Keywords: DISCRIMINATION -- unacceptable risk to insurance company as
reasonable cause for discriminatory action -- HUMAN RIGHTS -- nature and
purpose of human rights legislation -- INSURANCE -- fire insurance policy
terminated -- definition of insurance as service customarily available to the public
-- PUBLIC SERVICES AND FACILITIES -- fire insurance denied
Summary: This is an appeal by the Insurance Corporation of British Columbia
("ICBC") from the decision of the British Columbia Court of Appeal which
restored the decision of the Board of Inquiry in this case. The Board of Inquiry
found that Robert Heerspink's insurance policy had been terminated without
reasonable cause when it was cancelled by ICBC because Heerspink had been
charged with trafficking in marijuana.
In three different decisions, the majority of the Court dismisses the appeal by
ICBC and upholds the B.C. Court of Appeal decision restoring the Board of
Inquiry ruling.
It was argued by ICBC that Statutory Condition 5(1) contained in s. 208 of the
Insurance Act takes precedence over s. 3 of the B.C. Human Rights Code
because the Insurance Act is particular and specific legislation, while the Code is
of a more general nature and does not purport to alter any of the provisions of
the Insurance Act. Statutory Condition 5 of the Insurance Act allows the insurer
to terminate a contract by giving fifteen days' notice to the insured. Section 3 of
the Human Rights Code prohibits the denial of public services unless reasonable
cause exists for such denial.
Ritchie J., with the Chief Justice and Dickson J. concurring, finds that s. 3 of the
Code and Statutory Condition 5 under the Insurance Act can stand together as
there is no direct conflict between them. Since there is no repugnancy, Ritchie J.
rejects ICBC's argument that Statutory Condition 5 takes precedence. In addition,
Ritchie J. finds that "reasonable cause" is not a question of law alone but a
question of fact and consequently the Board of Inquiry's decision must stand
since it was the trier of fact.
For these reasons, Ritchie J. dismisses the appeal.
Lamer J., with Estey J. and McIntyre J. concurring, by separate decision concurs
with the reasons of Ritchie J. However, in his decision, he finds that human rights
laws are, save constitutional laws, more important than all others. Consequently,
while he agrees that in the instant case, the two statutory enactments can stand
together, were there conflict, the Code would govern.
Martland J., in his dissenting decision, concurred in by Beetz J. and Chouinard
J., would allow the appeal on the ground that the termination of Heerspink's
policy did not constitute a denial of a service but an exercise of a contractual
right. Martland J. finds that Heerspink was not denied a service, since he got his
insurance policy, and s. 3 cannot go so far as to require insurers to show
reasonable cause to exercise contractual rights.
14
The appeal is dismissed, with three Judges dissenting.
Saskatchewan (Human Rights Comm.) v. Saskatchewan (Dept. of Social
Services) (1988), 9 C.H.R.R. D/5181 (Sask. C.A.) [Eng. 9 pp.]. Saskatchewan
Court of Appeal Rules Social Assistance is a Public Service; social assistance
benefits reduced for single person-- discriminated against because of his marital
status because as a childless unmarried person, applicant was paid less in social
assistance than a childless married person.
Keywords: PUBLIC SERVICES AND FACILITIES -- BENEFITS -- SOURCE OF
INCOME -- social assistance benefits reduced for single person -definition of public services and facilities -- HUMAN RIGHTS -- nature and purpose
of human rights legislation -- INTERPRETATION OF STATUTES -- definition of
"accommodation, services or facilities . . . customarily admitted or which are offered
to the public"
Summary: The Saskatchewan Court of Appeal overturns the decisions of a
Board of Inquiry and the Saskatchewan Court of Queen's Bench which found that
social assistance is not a public service within the meaning of s. 12 of The
Saskatchewan Human Rights Code. At issue here is a complaint filed by Murray
Chambers alleging that he was discriminated against by the Saskatchewan
Department of Social Services because of his marital status because he, as a
childless unmarried person, was paid $55 a month less in social assistance than a
childless married person.
The Board of Inquiry which initially heard the case and the Saskatchewan Court
of Queen's Bench ruled that social assistance was not a service offered to the
public since it is only available to those who are eligible and not to the public at
large.
The Court of Appeal finds that social assistance is a service offered to the public.
Social assistance is a program of general application. The existence of eligibility
criteria does not mean that it is not a public service or take it out of the ambit of the
Code. The Court of Appeal also finds that Murray Chambers was discriminated
against in the provision of social assistance because of his marital status.
With respect to damages the Court finds that $55 per month in social assistance
was wrongfully withheld from Chambers. In addition, the Court finds that all other
members of the class, that is, childless unmarried persons were also discriminated
against. Since evidence was not heard on the matter of damages, the Court remits
to the Board of Inquiry the issue of whether the Board has jurisdiction to order
compensation for all members of the class and also the determination of the total
compensation owing to Chambers and others.
15
Saskatchewan (Human Rights Commission) v. Saskatoon (City) [1989] 2
S.C.R. 1297: Mandatory retirement -- Alleged discrimination on the basis of age - Defence of bona fide occupational qualification
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka and Cory
JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Civil rights -- Mandatory retirement -- Alleged discrimination on the basis of age -Defence of bona fide occupational qualification -- Chief Fire Inspection Officer retired
pursuant to mandatory retirement clause in labour contract -- Whether or not Chief Fire
Inspection Officer a fire fighter --Whether or not "reasonable" occupational qualification
importing same test as "bona fide" occupational qualification -- Whether or not failure to
consider efficacy of individual testing error of law -- Whether or not Union violated s. 18
of the Code -- Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, ss. 16(1), (4), (7),
18, 32 -- Saskatchewan Regulation 216/79, s. 1(a), (b) -- City By-law 5585, s. 5.1.
Respondent Craig served as Chief Fire Prevention Officer until he was retired when he
reached the mandatory retirement age provided for in the collective agreement between
the City and the Union and incorporated into the City's by-laws. Craig filed a complaint
with the Saskatchewan Human Rights Commission alleging that his mandatory
retirement contravened the Code's prohibition against discrimination on the basis of age
and that it could not be justified as a "reasonable occupational qualification and
requirement" within the meaning of the Code. A Board of Inquiry found the City's
mandatory retirement policy to be a prima facie case of age discrimination contrary to s.
16(1) of the Code. It also held that s. 16(1) did not apply to the Union and dismissed the
allegation that the Union has discriminated against Craig in violation of s. 18 of the Code.
The Saskatchewan Court of Queen's Bench dismissed an appeal from the Board's
decision. The Saskatchewan Court of Appeal set aside that decision and remitted the
matter to the Board.
A number of issues were considered: whether or not Craig was a fire fighter; the meaning
of "reasonable occupational qualification and requirement" in s. 16(7) of the Code;
whether or not it was necessary to consider the efficacy of individualized testing; and
whether or not the Union violated s. 18 of the Code?
Held: The appeals should be allowed.
The Board's conclusion that Craig was responsible for the same duties as a fire fighter
duties even though he was not required, as Chief Fire Prevention Officer, to fight any
fires was a finding of fact and accordingly could not be reconsidered unless the decision
was made absent any evidence at all. There was ample evidence upon which the Board
could base its conclusion, and that conclusion should not be disturbed on appeal.
The general philosophy of human rights legislation is that persons are not to be judged or
dealt with on the basis of external characteristics such as race, age, sex, etc., but on
individual merit. That is the general rule, and violation of it constitutes discrimination.
The defence of bona fide occupational qualification or requirement is an exception to the
general rule. The test as established by this Court in Ontario Human Rights Commission
16
v. Etobicoke, [1982] 1 S.C.R. 202, with respect to the Ontario Code, obliges the
employer to show that the requirement, although it cannot necessarily be justified with
respect to each individual, is reasonably justified in general application.
The language of the Saskatchewan Code was not sufficiently different to alter what are
generally accepted as the characteristics of this defence. For a work rule to be reasonable
(as required under the Saskatchewan Code) it would also have to be bona fide (as
required under the Ontario Code). The word "reasonable" did not necessarily exclude the
application of any subjective element from s. 16(7) of the Saskatchewan Code.
The individualized approach was not justified. The subjective requirement obliges the
employer to establish that the employer had a sincerely held belief that the requirement
was reasonably necessary for the adequate performance of the work and was not adopted
for any ulterior or extraneous reasons. The objective standard requires the employer to
establish that, apart from his belief, the requirement is in fact reasonably necessary. In
both the subjective and objective applications of the test, the reasonableness of the
requirement is vital. The elimination of the subjective element, which is an additional
burden imposed on an employer who seeks to avail himself of the defence, cannot
transform the defence from one that requires a generalized approach to one that requires a
specific examination of individual circumstances.
The Regulations, which sought to define the ingredients of the defence, did not affect the
application of the Etobicoke test to s. 16(7) of the Code. An important element of the
defence was exclusivity in relation to the age group that the employer desires to retain as
his or her employees. The definition provided by the Regulations, however, was itself not
exclusive. The employer could justify the impugned policy either by bringing it within
the enumerated definitions or the Etobicoke definition. The City justified its mandatory
retirement policy on the basis of the definition approved in Etobicoke.
The Regulation required that the employer establish that employer show that it was
necessary to hire persons in one age group exclusively in order that the duties of the job
can be performed safely. The standard with which the employer must establish necessity
was one of reasonableness for otherwise the Regulations would conflict with the Code
and with the general defence.
While it is not an absolute requirement that employees be individually tested, the
employer may not satisfy the burden of proof of establishing the reasonableness of the
requirement if he fails to deal satisfactorily with the question as to why it was not
possible to deal with employees on an individual basis by, inter alia, individual testing. If
there is a practical alternative to the adoption of a discriminatory rule, this may lead to a
determination that the employer did not act reasonably in not adopting it. Absent error of
law, the Board's decision as to whether or not individual testing was feasible should
stand. It correctly applied the law, found as a fact that there was no practical alternative
available to the appellant, and concluded the employer was acting reasonably its
mandatory retirement policy.
It is unnecessary to deal with the application of s. 16(4) to the facts of this case.
There is no unlawful discrimination by a union contrary to s. 18 if there is no unlawful
discrimination by the employer. The employer has not discriminated if a defence has
been made out under s. 16(7). There cannot therefore be discrimination by a union that
17
has merely agreed to a non-discriminatory act by an employer. The Union accordingly
did not discriminate against Craig contrary to s. 18 of the Code.
Benner v. Canada (Secretary of State) [1997] 1 S.C.R. 358: -- Citizenship -Children born abroad before February 15, 1977 of Canadian fathers granted
citizenship on application but those of Canadian mothers required to undergo
security check and to take citizenship oath
1996: October 1; 1997: February 27.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law -- Charter of Rights -- Equality rights -- Citizenship -- Children born
abroad before February 15, 1977 of Canadian fathers granted citizenship on application
but those of Canadian mothers required to undergo security check and to take citizenship
oath -- U.S.-born son of a Canadian mother denied citizenship because of criminal
charges -- Whether applying s. 15(1) of Charter involves illegitimate retroactive or
retrospective application -- If not, whether the treatment accorded to children born
abroad to Canadian mothers before February 15, 1977 by the Citizenship Act offending
s. 15(1) -- If so, whether saved by s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1,
15(1) -- Citizenship Act, R.S.C., 1985, c. C-29, ss. 3(1), 4(3), 5(1)(b), (2)(b), 12(2), (3),
22(1)(b),(d), (2)(b) -- Citizenship Regulations, C.R.C., c. 400, s. 20(1).
The appellant, who was born in 1962 in the United States of a Canadian mother and an
American father, applied for Canadian citizenship and perfected his application on
October 27, 1988. The Citizenship Act provided that persons born abroad before February
15, 1977, would be granted citizenship on application if born of a Canadian father but
would be required to undergo a security check and to swear an oath if born of a Canadian
mother. The appellant therefore underwent a security check, during which the Registrar
of Citizenship discovered that he had been charged with several criminal offences. The
Registrar advised that he was prohibited from acquiring citizenship and his application
was rejected.
The appellant applied for an order in the nature of certiorari quashing the Registrar's
decision and for an order in the nature of mandamus requiring the Registrar to grant him
citizenship without swearing an oath or being subject to a security check. The application
was dismissed by the Federal Court, Trial Division and an appeal from that decision to
the Federal Court of Appeal was also dismissed. The appellant was deported. The appeal
raised three issues: (1) whether applying s. 15(1) -- the equality provision--of the
Canadian Charter of Rights and Freedoms involved an illegitimate retroactive or
retrospective application of the Charter; (2) if not, whether the treatment accorded to
children born abroad to Canadian mothers before February 15, 1977 by the Citizenship
Act offends s. 15(1) of the Charter; and (3) if so, whether the impugned legislation was
saved by s. 1. The constitutional questions as stated were found wanting.
Held: The appeal should be allowed.
18
The Charter does not apply retroactively. The Court has not adopted a rigid test for
determining when a particular application of the Charter would be retrospective. Rather,
each case is to be weighed in its own factual and legal context, with attention to the
nature of the particular Charter right at issue. Not every situation involving events which
took place before the Charter came into force will necessarily involve a retrospective
application of the Charter. Where the fact situation is a status or characteristic, the
enactment is not given retrospective effect when it is applied to persons or things that
acquired that status or characteristic before the enactment, if they have it when the
enactment comes into force; but where the fact situation is an event, then the enactment
would be given retrospective effect if it is applied so as to attach a new duty, penalty or
disability to an event that took place before the enactment. The question is one of
characterization: is the situation really one of going back to redress an old event which
took place before the Charter created the right sought to be vindicated, or is it simply one
of assessing the contemporary application of a law which happened to be passed before
the Charter came into effect?
This case does not involve either a retroactive or a retrospective application of the
Charter. The notion that rights or entitlements crystallize at birth, particularly in the
context of s. 15 of the Charter, suggests that whenever a person born before s. 15 came
into effect (April 17, 1985) suffers the discriminatory effects of a piece of legislation
these effects may be immunized from Charter review. This is not so.
The appellant's situation should instead be seen in terms of status or ongoing condition.
His status from birth -- as a person born abroad prior to February 15, 1977 of a Canadian
mother and a non-Canadian father -- is no less a "status" than being of a particular skin
colour or ethnic or religious background: it is an ongoing state of affairs. People in the
appellant's condition continue to be denied the automatic right to citizenship granted to
children of Canadian fathers. The presence of a date in a piece of legislation, while it may
suggest an "event-related" focus rather than a "status-related" one, cannot alone be
determinative. Consideration must still be given to the nature of the characteristic at
issue. A difference exists between characteristics ascribed at birth (e.g., race) and those
based on some action taken later in life (e.g., being a divorced person). Immutable
characteristics arising at birth are generally more likely to be correctly classified as a
"status" than are characteristics resulting from a choice to take some action.
In applying s. 15 to questions of status, the critical time is not when the individual
acquires the status in question but when that status is held against the person or disentitles
the person to a benefit. Here, that moment was when the Registrar considered and
rejected the appellant's application. Since this occurred well after s. 15 came into effect,
subjecting the appellant's treatment by the respondent to Charter scrutiny involves
neither retroactive nor retrospective application of the Charter. Had the appellant applied
for citizenship before s. 15 came into effect and been refused, he could not now come
before the Court and ask that s. 15 be applied to that refusal. The appellant, however, had
not engaged the legislation governing his entitlement to citizenship until his application
in 1988. Until he actually made an application for citizenship, the law set out only what
his rights to citizenship would be if and when he applied, not what they were.
Several approaches to s. 15 have been advanced in the recent jurisprudence of this Court.
It is not necessary for the purposes of this appeal to say determinatively which of these
19
approaches is the most appropriate since the result is the same no matter which test is
used in the application of s. 15.
The fact that children born abroad of a Canadian mother are required to undergo a
security check and to swear the oath, when those born abroad of a Canadian father are not
required to do so, constitutes a denial of equal benefit of the law guaranteed by s. 15 of
the Charter. Access to the valuable privilege of Canadian citizenship is restricted in
different degrees depending on the gender of an applicant's Canadian parent; sex is one of
the enumerated grounds in s. 15.
The fact that Parliament attempted to remedy the inequity found in the 1947 legislation
by amending it does not insulate the amended legislation from further review under the
Charter. The true source of the differential treatment for children born abroad of
Canadian mothers cannot be said to be the 1947 Act, as opposed to the current Act,
because the earlier Act does not exist anymore. It is only the operation of the current Act
and the treatment it accords the appellant because his Canadian parent was his mother
which is in issue. The current Act, to the extent that it carries on the discrimination of its
predecessor legislation, may itself be reviewed under s. 15.
The appellant is not attempting to raise the infringement of someone else's rights for his
own benefit. He is the primary target of the sex-based discrimination mandated by the
legislation and possesses the necessary standing to raise it. The appellant's mother is
implicated only because the extent of his rights are made dependent on the gender of his
Canadian parent. Where access to a benefit such as citizenship is restricted on the basis of
something so intimately connected to and so completely beyond the control of an
applicant as the gender of his or her Canadian parent, that applicant may invoke the
protection of s. 15. Permitting s. 15 scrutiny of the treatment of the appellant's citizenship
application simply allows the protection against discrimination guaranteed to him by s.
15 to extend to the full range of the discrimination. This is precisely the "purposive"
interpretation of Charter rights mandated by earlier decisions of this Court.
These reasons do not create a general doctrine of "discrimination by association". The
link between child and parent is of a particularly unique and intimate nature. A child has
no choice who his or her parents are. Whether this analysis should extend to situations
where the association is voluntary rather than involuntary or where the characteristic of
the parent upon which the differential treatment is based is not an enumerated or
analogous ground are questions for another day.
That the differential treatment of children born abroad with Canadian mothers as opposed
to those with Canadian fathers may be a product of historical legislative circumstance,
not of discriminatory stereotypical thinking, is not relevant to deciding whether or not the
impugned provisions are discriminatory. The motivation behind Parliament's decision to
maintain a discriminatory denial of equal treatment cannot make the continued denial any
less discriminatory. This legislation continues to suggest that, at least in some cases, men
and women are not equally capable of passing on whatever it takes to be a good Canadian
citizen.
The impugned legislation was not saved under s. 1 of the Charter. Ensuring that potential
citizens are committed to Canada and do not pose a risk to the country are pressing and
substantial objectives which are not reasonably advanced by the two-tiered application
system created by the impugned provisions. The impugned legislation was not rationally
20
connected to its objectives. The question to be asked in this regard is not whether it is
reasonable to demand that prospective citizens swear an oath and undergo a security
check before being granted citizenship but whether it is reasonable to make these
demands only of children born abroad of Canadian mothers, as opposed to those born
abroad of Canadian fathers. Clearly no inherent connection exists between this distinction
and the desired legislative objectives.
Although retroactively imposing automatic Canadian citizenship in 1977 on children
already born abroad of Canadian mothers could have caused difficulties for those
children by interfering with rights or duties of citizenship already held in other countries,
the Act clearly demonstrates that citizenship based on lineage was never imposed
automatically, even on children born abroad of Canadian fathers. Treating children born
abroad of Canadian mothers similarly to those born of Canadian fathers would therefore
not have caused any undesirable retroactive effects. Anyone not wanting Canadian
citizenship through an extension of those rights enjoyed by children of Canadian fathers
to those born abroad of Canadian mothers would have had the option of simply not
registering his or her birth. Only those children born abroad of Canadian mothers willing
to take on Canadian citizenship would have it. It should also be noted that the current Act
does not require these procedures for any children born abroad of a Canadian parent after
February 15, 1977, no matter how old. If such children do not pose a potential threat to
national security such that an oath and security check are required, it is difficult to see
why someone in the appellant's class does.
It was probable that the impugned legislation would likely fail the proportionality test as
well.
The offending legislation was declared to be of no force or effect.
Miron v. Trudel [1995] 2 S.C.R. 418: Automobile insurance -- Standard
automobile policy prescribed by provincial legislation extending accident benefits to
"spouse" of policy holder -- Term "spouse" not including unmarried common law
spouse -- Appropriate remedy
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Equality rights -- Automobile insurance - Standard automobile policy prescribed by provincial legislation extending accident
benefits to "spouse" of policy holder -- Term "spouse" not including unmarried
common law spouse -- Whether limitation of benefits to married persons violates s.
15(1) of Canadian Charter of Rights and Freedoms -- If so, whether violation
justifiable under s. 1 of Charter – Insurance Act, R.S.O. 1980, c. 218, ss. 231, 233,
Schedule C.
21
Constitutional law -- Charter of Rights -- Enforcement -- Appropriate remedy -Standard automobile insurance policy prescribed by provincial legislation extending
accident benefits to "spouse" of policy holder -- Term "spouse" not including
unmarried common law spouse -- Limitation of benefits to married persons violating
s. 15(1) of Canadian Charter of Rights and Freedoms -- Violation not justifiable
under s. 1 of Charter – Whether Court should retroactively "read in" more inclusive
definition of "spouse" under s. 24 of Charter.
The appellants lived together with their children. While they were not married,
their family functioned as an economic unit. In 1987, M was injured while a
passenger in an uninsured motor vehicle driven by an uninsured driver. After the
accident, the appellant M could no longer work and contribute to his family's
support. He made a claim for accident benefits for loss of income and damages
against V's insurance policy, which extended accident benefits to the "spouse" of
the policy holder. The respondent insurer denied his claim on the ground that M
was not legally married to V and hence not her "spouse". The appellants sued the
insurer. The insurer brought a preliminary motion to determine whether the word
"spouse", as used in the applicable portions of the policy, includes unmarried
common law spouses. The motions court judge found that "spouse" meant a
person who is legally married. The appellants appealed the decision to the Court of
Appeal, arguing first that M is a spouse under the terms of the policy, and
alternatively, that the policy terms, which are those of the standard automobile
policy prescribed by the Insurance Act, R.S.O. 1980, c. 218, discriminate against
him in violation of s. 15(1) of the Canadian Charter of Rights and Freedoms. The
Court of Appeal dismissed their appeal.
Held (Lamer C.J. and La Forest, Gonthier and Major JJ. dissenting): The appeal
should be allowed.
Per Sopinka, Cory, McLachlin and Iacobucci JJ.: The analysis under s. 15(1) of
the Charter involves two steps. First, the claimant must show a denial of "equal
protection" or "equal benefit" of the law, as compared with some other person.
Second, he or she must show that the denial constitutes discrimination. To
establish discrimination, the claimant must show that the denial rests on one of the
grounds enumerated in s. 15(1) or an analogous ground and that the unequal
treatment is based on the stereotypical application of presumed group or personal
characteristics, although in rare cases distinctions made on enumerated or
analogous grounds may prove to be, upon examination, non-discriminatory. Once a
violation of s. 15(1) is established, the onus then shifts to the party seeking to
uphold the law, usually the state, to justify the discrimination under s. 1 of the
Charter. This division of the analysis between s. 15(1) and s. 1 accords with the
injunction that courts should interpret the enumerated rights in a broad and
generous fashion, leaving the task of narrowing the prima facie protection thus
granted to conform to conflicting social and legislative interests to s. 1. At the same
time, it does not trivialize s. 15(1) by calling all distinctions discrimination. Proof that
22
the enumerated or analogous ground founding a denial of equality is relevant to a
legislative goal is only one factor in determining whether a distinction is
discriminatory in the social and political context of each case. Relevance as the
ultimate indicator of non-discrimination suffers from the disadvantage that it may
validate distinctions which violate the purpose of s. 15(1) and may lead to inquiries
better pursued under s. 1.
Exclusion of unmarried partners from accident benefits available to married
partners under the policy violates s. 15(1) of the Charter. Denial of equal benefit on
the basis of marital status is established in this case, and marital status is an
analogous ground of discrimination for purposes of s. 15(1). First, discrimination on
that basis touches the essential dignity and worth of the individual in the same way
as other recognized grounds of discrimination violative of fundamental human rights
norms. Second, marital status possesses characteristics often associated with
recognized grounds of discrimination under s. 15(1). Persons involved in an
unmarried relationship constitute an historically disadvantaged group, even though
the disadvantage has greatly diminished in recent years. A third characteristic
sometimes associated with analogous grounds, namely distinctions founded on
personal, immutable characteristics, is also present, albeit in attenuated form. While
in theory, the individual is free to choose whether to marry or not to marry, in
practice the reality may be otherwise. Since the essential elements necessary to
engage the overarching purpose of s. 15(1) -- violation of dignity and freedom, an
historical group disadvantage, and the danger of stereotypical group-based
decision-making -- are present, discrimination is made out.
The state has failed to demonstrate that the exclusion of unmarried members of
family units from motor vehicle accident benefits is demonstrably justified in a free
and democratic society. The goal or functional value of the legislation here at issue,
which is to sustain families when one of their members is injured in an automobile
accident, is of pressing and substantial importance. The legislative goal is not,
however, rationally connected to the discriminatory distinction and the law impairs
the right more than reasonably necessary to achieve that goal. Marital status is not
a reasonably relevant marker of individuals who should receive benefits in the
event of injury to a family member in an automobile accident, having regard to
available alternative criteria and the need to minimize prejudice to anomalous
cases within the group. If the issue had been viewed as a matter of defining who
should receive benefits on a basis that is relevant to the goal or functional values
underlying the legislation, rather than marriage equivalence, alternatives
substantially less invasive of Charter rights might have been found. As an
appropriate remedy, the new definition of "spouse" adopted in 1990, which includes
heterosexual couples who have cohabited for three years or who have lived in a
permanent relationship with a child, should be retroactively "read in" to the
impugned legislation.
23
Per L'Heureux-Dubé J.: The following factors must be established by a rights
claimant before the impugned distinction will be found to be discriminatory: (1) there
must be a legislative distinction; (2) this distinction must result in a denial of one of
the four equality rights on the basis of the rights claimant's membership in an
identifiable group; and (3) this distinction must be "discriminatory" within the
meaning of s. 15. Comparisons between different groups are necessary to discern
the differential effect of the legislation and to assist the court in properly
characterizing and identifying the groups that are relevant to the particular s. 15
inquiry at hand. The only appropriate comparison here is between married persons
and unmarried persons who are in a relationship analogous to marriage, that is, a
relationship of some degree of publicly acknowledged permanence and
interdependence.
Here, assuming that the statutory interpretation of "spouse" as used in the
relevant parts of the policy excludes unmarried couples who are cohabiting, this
distinction is reasonably capable of either promoting or perpetuating a view
amongst persons in relationships analogous to marriage that they are less worthy
of recognition or value as human beings or as members of Canadian society,
equally deserving of concern, respect, and consideration, and is therefore
discriminatory within the meaning of s. 15 of the Charter. Discriminatory impact can
be assessed by looking to the nature of both the interest and the group adversely
affected by the impugned distinction. Persons in opposite-sex relationships
analogous to marriage have suffered, and continue to suffer, some disadvantage,
disapproval and marginalization in society, and are therefore somewhat sensitive to
legislative distinctions having prejudicial effects. Nor is marriage simply a matter of
individual choice. The decision of whether or not to marry can be one of the most
personal decisions an individual will ever make over the course of his or her
lifetime. Although certain rights and obligations follow from this choice, it does not
do it justice to reduce it to a question of contract. Moreover, there are a significant
number of couples in which one person wishes to be in a relationship of publicly
acknowledged permanence and interdependence and the other does not. Both the
courts and the legislatures have, in recent years, acknowledged and responded to
the injustices that often flow from power imbalances of this type and have thereby
given increasing recognition to non-traditional forms of relationships. The affected
interest at issue here is the protection of family units from potentially disastrous
financial consequences due to the injury of one of their members. Protection of
"family" is, in turn, one of the most important interests imaginable in our society.
While all injured persons are entitled to that part of their health care costs covered
by their provincial medicare systems, actual health care costs may often represent
only a small part of the total losses suffered as a result of injury in a motor vehicle
accident when loss of income as well as pain and suffering are taken into account.
Equally significant, although persons ineligible to claim from a private insurance
company under the standard automobile policy may still claim for some
compensation under the Motor Vehicle Accident Claims Act, the cost, time and
difficulty of recovery by this means are significantly greater than if the person were
24
insured by a private company. The financial consequences of these differences can
be profound on a family unit, particularly if the injured party is an income-earner
who has been disabled as a result of the accident. In addition, the impugned
distinction categorically excludes from joint insurance coverage all couples in a
relationship analogous to marriage.
The impugned distinction cannot be saved under s. 1 of the Charter. The
objective of the standard automobile policy, which is to protect stable family units by
insuring against the economic consequences that may follow from the injury of one
of the members of the family, is pressing and substantial. The government has not
demonstrated, however, that the impugned distinction is rationally connected to the
objective of the legislation. At the time of the accident, common law spouses in
Ontario were bound by an obligation of mutual support yet were excluded from a
standard automobile policy whose basic purpose was almost inextricably related
to that mutual obligation and to the relationship of interdependency upon which that
obligation is premised. The impugned distinction also fails the minimal impairment
test, since the unit the legislator has decided to protect (i.e. married persons) is
underinclusive of the purpose of the legislation. Although the unit deserving of
protection can be defined by marriage, it can also be defined in a workable and
acceptably certain way by reference to the length of the relationship or to the
existence of children, as was done here when the definition of "spouse" was
amended in 1990 to include common law spouses. This new definition should be
retroactively "read in" to the legislation.
Per Lamer C.J. and La Forest, Gonthier and Major JJ. (dissenting): The Charter
applies to the policy since the policy's terms are prescribed by the Insurance Act. A
breach of s. 15(1) occurs when one of the four equality rights set out therein has
been infringed in a discriminatory manner. The s. 15(1) analysis involves three
steps. The first looks to whether the law has drawn a distinction between the
claimant and others. The second questions whether the distinction results in
disadvantage, and examines whether the impugned law imposes a burden,
obligation or disadvantage on a group of persons to which the claimant belongs
which is not imposed on others, or does not provide them with a benefit which it
grants others. It is at this second step that the direct or indirect effect of the
legislation is examined. The third step assesses whether the distinction is based on
an irrelevant personal characteristic which is either enumerated in s. 15(1) or one
analogous thereto. This third step thus comprises two aspects: determining the
personal characteristic shared by a group and then assessing its relevancy having
regard to the functional values underlying the legislation. By its very nature the s.
15(1) review rests on a comparative analysis. Context has a vital part to play in
identifying the appropriate groups to be compared, determining whether prejudice
flows from the distinction, and assessing the nature and relevancy of the personal
characteristic upon which the distinction is drawn. More specifically, an
indispensable element of the contextual approach to s. 15(1) involves an inquiry
into whether a distinction rests upon or is the expression of some objective physical
25
or biological reality, or fundamental value. This inquiry crucially informs the
assessment of whether the prejudicial distinction has been drawn on a relevant
basis, and therefore, whether or not that distinction is discriminatory.
Under the approach adopted by this Court in Andrews, the analysis under s. 15
encompasses a determination as to whether the prejudicial distinction is attributable
to or on the basis of an enumerated or analogous ground. Such a ground is
identified as one that is commonly used to make distinctions which have little
or no rational connection with the subject matter, generally reflecting a stereotype.
With respect to those grounds listed or enumerated in s. 15, distinctions drawn
on such a basis are often but not necessarily always discriminatory, since they may
be relevant as merely reflecting a fundamental reality or value. Relevancy is also
at the heart of the identification of an analogous ground. The proper identification of
such a ground requires a sensitive, contextual examination of its nature in order
to determine whether it qualifies as a basis for irrelevant distinctions, and hence is
an analogous ground. Once the analogous ground is identified and defined in terms
of its nature and scope, any further issues as to relevance are to be examined not
under s. 15 but under s. 1 together with any other issues as to justification.
Marriage is both a basic social institution and a fundamental right which states
can legitimately legislate to foster. Married status, at least in our society, can only
be acquired by the expression of the individual's personal, free choice, regardless
of the reason for which that status is assumed. Marriage rests upon a contractual
basis, to which the law attaches certain rights and obligations. The decision to
marry includes the acceptance of various legal consequences incident to the
institution of marriage, including the obligation of mutual support between spouses
and the support and raising of children of the marriage. Where individuals choose
not to marry, it would undermine the choice they have made if the state were to
impose upon them the very same burdens and benefits which it imposes upon
married persons. An additional element distinguishing marriage from other
relationships is the commitment towards permanence accepted by the parties to
the marriage contract. While the decision to marry or not is a joint choice, it is a
choice nonetheless.
The insurance policy's limitation of accident benefits to married couples does not
infringe s. 15 of the Charter. The impugned legislation draws a distinction, in that it
treats married and unmarried couples in a different manner. This distinction is not
prejudicial, however, when considered in the larger context of the rights and
obligations uniquely and appropriately attached to marriage. Further, since the
functional values underlying the legislation are relevant to marital status, marital
status is not a personal characteristic which qualifies as an analogous ground.
Marital status has several unique characteristics which distinguish it from the
grounds enumerated in s. 15(1). In addition to resting upon a consensual,
contractual basis, marriage is a status to which the legislature, as a reflection of its
social policy, attaches a bundle of rights and obligations. These characteristics are
26
not found in any of the enumerated grounds. Moreover, in contemporary society
unmarried couples do not constitute a distinct group suffering from stereotypes or
prejudices, although they have been the subject of such prejudices in the past. In
this respect, the fostering of marriage as a social institution does not stigmatize
unmarried couples nor subject them to stereotypes.
Unmarried couples are not in a situation identical to married spouses with
respect to mutual support obligations. While the insurance policy clearly is
concerned with economic interdependence, such interdependence is only relevant
in so far as it relates to the institution of marriage. The functional value of the
benefits at issue here is not to provide support for all family units living in a state of
financial interdependence but rather to assist those couples who are married or, as
in subsequent legislation, to assist certain prescribed couples who are in a
"marriage-like" relationship. The functional value identified in this legislation, namely
the support of marriage, is not itself discriminatory. Distinctions as to the scope of
the institution and the benefits which attach thereto are properly the objects of
legislative definition.
Just as it is within the scope of legitimate social policy for the legislature to
define the scope of "marriage-like" relationships, there is no obligation on the
legislature to extend all the attributes of marriage to unmarried couples. A
legislature may as a matter of social policy choose whether and under what
circumstances to extend some or all of the attributes of marriage to unmarried
couples without running afoul of s. 15(1) of the Charter. The courts must be wary of
second-guessing legislative social policy choices relating to the status, rights and
obligations of marriage, a basic institution of our society intimately related to its
fundamental values. Barring evidence of a change in these values by a clear
consensus that there should be a constitutional constraint on the powers of the
state to legislate in relation to marriage, the matter must remain within the scope of
legitimate legislative action.
Thibaudeau v. Canada [1995] 2 S.C.R. 627: -- Alimony -- Income tax -- Divorced
wife refusing to include in computing income amounts received from ex-husband as
alimony for maintenance of children --
Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and
Iacobucci JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law -- Charter of Rights -- Equality rights -- Alimony -- Income tax - Divorced wife refusing to include in computing income amounts received from ex27
husband as alimony for maintenance of children -- Whether tax provision requiring
her to include amounts in income infringes s. 15 of Canadian Charter of Rights and
Freedoms -- If so, whether provision can be justified under s. 1 of Charter -- Income
Tax Act, S.C. 1970-71-72, c. 63, s. 56(1)(b).
Under the decree granting her divorce the respondent was awarded custody of
her two minor children and alimony of $1,150 a month from her ex-husband for the
exclusive benefit of the children. In determining the said amount the court took into
account the cost of maintaining the children, the tax impact on the former spouses
and the respondent's duty also to provide for the maintenance of her children. The
court recognized, however, that the amount so determined required a greater
contribution from the respondent than would be required by the ratio between the
respective incomes of the former spouses. Section 56(1)(b) of the Income Tax Act
("ITA") requires a separated or divorced parent to include in computing income any
amounts received as alimony for the maintenance of children, while s. 60(b) ITA
allows a parent who has paid such amounts to deduct them from income. The
respondent challenged the constitutionality of s. 56(1)(b) in the Tax Court of
Canada. She argued that by imposing a tax burden on money which she was to
use exclusively for the benefit of her children, s. 56(1)(b) infringed her right to
equality guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms.
The court found that s. 56(1)(b) was not discriminatory and dismissed the
respondent's appeal from her 1989 tax assessment. A majority of the Federal Court
of Appeal reversed this decision and concluded that s. 56(1)(b) infringed s. 15(1)
and could not be justified under s. 1 of the Charter.
Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be
allowed. Section 56(1)(b) ITA does not infringe the equality rights guaranteed by
s. 15(1) of the Charter.
Per La Forest and Sopinka JJ.: There is agreement with Cory and Iacobucci JJ.
and with Gonthier J. that s. 56(1)(b) ITA does not impose a burden or withhold a
benefit so as to attract the application of s. 15(1) of the Charter.
Per Cory and Iacobucci JJ.: Section 56(1)(b) ITA does not violate s. 15(1) of the
Charter. The purpose of s. 15(1) is to protect human dignity by ensuring that all
individuals are recognized at law as being equally deserving of concern, respect
and consideration. Consequently, it is the effect that an impugned distinction has
upon a claimant which is the prime concern under s. 15(1). Here, the group of
single custodial parents receiving child support payments is not placed under a
burden by the inclusion/deduction regime. Although there may be some cases in
which the gross-up calculations shift a portion of the payer's tax liability upon the
recipient spouse, one cannot necessarily extrapolate from this that a "burden" has
been created, at least not for the purposes of s. 15(1). Sections 56(1)(b) and 60(b)
operate at the level of the couple and are designed to minimize the tax
consequences of support payments, thereby promoting the best interests of the
28
children by ensuring that more money is available to provide for their care. If
anything, the inclusion/deduction regime confers a benefit on the post-divorce
"family unit". The fact that one member of the unit might derive a greater benefit
from the legislation than the other does not, in and of itself, trigger a s. 15(1)
violation, nor does it lead to a finding that the distinction in any way amounts to a
denial of equal benefit or protection of the law. Sections 56(1)(b) and 60(b), which
incorporate federal and provincial statutes under which child support orders are
issued, must be examined in conjunction with those statutes in order to assess the
effect of ss. 56(1)(b) and 60(b) upon the claimant. The amount of income taxable
under ss. 56(1)(b) and 60(b) is determined by the family law system and, unless it
operates in a defective manner, the amount of child support will include grossing-up
calculations to account for the tax liability that the recipient ex-spouse will incur
on the income. If there has been an error, the family law system provides avenues
to revisit the support order to correct the situation. Any disproportionate
displacement of the tax liability between the former spouses lies in the family law
system, not in the ITA. Therefore, in light of the interaction between the ITA and
the family law statutes, s. 56(1)(b) does not impose a burden upon the respondent
within the meaning of s. 15(1).
The disagreement with McLachlin J.'s conclusion that ss. 56(1)(b) and 60(b)
occasion a burden is limited to an application of her approach to the facts of this
case, not with her methodology per se, which is endorsed. By corollary, the
concurrence with Gonthier J. in the disposition of this appeal is one of result, not of
method.
Per Gonthier J.: The special nature of the ITA is a significant factor that must be
taken into account in defining the scope of the right to the "equal benefit of the
law" provided for in s. 15(1) of the Charter. It is of the very essence of the ITA to
make distinctions, so as to generate revenue for the government while equitably
reconciling a range of necessarily divergent interests. In view of this, the right to the
equal benefit of the law does not mean that each taxpayer has an equal right to
receive the same amounts, deductions or benefits, but merely that he or she has a
right to be equally governed by the law. The concept of fiscal equity should not be
confused with the concept of the right to equality. There is discrimination under s.
15(1) when the impugned provision creates a prejudicial distinction affecting the
complainant as a member of a group, based on an irrelevant personal characteristic
shared by the group.
The first stage in the method of analysis under s. 15(1) involves determining
whether the provision in question creates a distinction between the individual, as a
member of a group, and others. The inclusion/deduction system, adopted to deal
with the unfavourable economic consequences resulting from the breakup of the
family unit, creates a distinction since it applies only to separated or divorced
spouses, where one parent is paying alimony to the other under a judgment or
29
agreement. The system exceptionally permits income splitting between the latter in
order to increase their available resources. This group of separated or divorced
couples clearly cannot be subdivided by income level, as income level is not a
characteristic attaching to the individual.
The second stage involves determining whether this distinction creates prejudice
in respect of the group in question. A comparison between the treatment of couples
subject to the general taxation system and that applicable to separated or divorced
couples subject to ss. 56(1)(b) and 60(b) indicates that the inclusion/deduction
system does not produce a prejudicial effect on the latter group. The general rule is
that the income of parents used for the maintenance of their children shall be taxed
in the hands of the parents. The special system applicable to separated or divorced
parents maintains this rule, but taxes the income in the hands of the parent who
ultimately receives it rather than in the hands of the parent who earned it. Imposing
the tax on the person who can dispose of the income is not a prejudicial measure in
itself. Further, this comparison indicates that the parents to whom the special
inclusion/deduction system applies enjoy an overall lessening of their tax burden. In
fact, although the tax savings generated by the inclusion/deduction system depend
on a variable -- the difference between the tax rates of the members of the couple -it was shown that on the whole members of the group derive a benefit from it since
most of the parents receiving alimony for the children are subject to a marginal tax
rate lower than that of the parents paying the maintenance. It can thus be said that
the purposes for which the system was created have been to a large extent
achieved. In view of the substantial savings generated by the inclusion/deduction
system, the group of separated or divorced parents cannot as a whole claim to
suffer prejudice associated with the very existence of the system in question.
Even accepting that a comparison should be made between those who receive
and those who pay the maintenance, it was not shown that in the context at issue
here the distinction created by the ITA in making the maintenance taxable in the
hands of the recipient alone entails a disadvantage. The tax burden of the couple is
reduced and this has the result of increasing the available resources that can be
used for the benefit of the children, in satisfaction of their parents' obligation to
support them.
The question of the distribution of the resources available for the benefit of the
children is important in assessing the prejudice alleged by the respondent. This
question is governed by the rules of family law which are incorporated into ss.
56(1)(b) and 60(b) by reference. As the fiscal impact resulting from the obligation of
inclusion is one of the factors to be taken into account in computing the alimony,
the very way in which that impact is distributed between the parents for the ultimate
benefit of the child must still be subject to the fundamental criterion of the latter's
best interests. That criterion expresses a fundamental value of our society. Since it
is governed by that criterion the distribution of the fiscal impact is therefore not open
to challenge under the Charter. The fact that the tax saving resulting from the
30
inclusion/deduction system does not benefit both parents in equal proportion
therefore does not infringe the equality rights protected by the Charter. Additionally,
there is no evidence to show that the recipient parent or the children would benefit
by taxation in the hands of the payer of the alimony. In short, the fact that the
support may not be increased by an amount equal to the payer's tax relief or the
recipient's tax increase does not as such place the latter at a disadvantage since in
principle the distribution takes place in accordance with family law, which is
incorporated into the tax system by reference and the aims of which are promoted
by contributing to an alleviation of the tax burden. Additionally, such results, if any,
depend primarily on the individual case. They do not establish a disadvantage for
the group.
Finally, a review of the principal provisions of the ITA dealing with tax credits which
the respondent could claim (ss. 118(1)(b) and (d) and 122.2) does not alter the
conclusion that there is no prejudicial effect. That review indicates that these credits
are independent of the inclusion/deduction system and do not depend on receipt of
alimony. In enacting these provisions it would appear that the legislature instead
intended to alleviate the tax burden of a wide range of persons whose only
common denominator is having dependants. This arrangement is not de facto
contrary to the custodial parent in a separation situation generally being the one
able to claim such credits.
As no prejudice exists, there is no need to go on to the third step in the analysis
and consider the relevance of the personal characteristic on the basis of which
the distinction was created. Section 56(1)(b) ITA does not infringe the equality
rights guaranteed by s. 15(1) of the Charter.
Per McLachlin J. (dissenting): An analysis under s. 15(1) of the Charter involves
two stages: (1) the claimant must show that the impugned legislation treats him
or her differently by imposing a burden not imposed on others or denying a benefit
granted to others; and (2) the claimant must show that this unequal treatment is
discriminatory. In the great majority of cases the existence of prejudicial treatment
based on an enumerated or analogous ground leads to a conclusion that s. 15(1)
has been infringed.
Section 56(1)(b) ITA imposes on one member of the separated or divorced
couple a burden which does not affect the other member of that couple. This
section requires the separated or divorced custodial parent to include child support
payments, while the non-custodial parent may deduct these payments from his
taxable income, under s. 60(b) ITA. This inequality between the custodial and noncustodial spouse is exacerbated by the fact that the latter enjoys an automatic
and absolute right of deduction of support payments from personal income, while
the former's ability to offset the increase in her taxes by obtaining an adjustment of
support is unpredictable. Further, one of the premises on which the
inclusion/deduction scheme rests -- namely that custodial parents (the great
majority of whom are women) are generally subject to a lower tax rate than non31
custodial parents) -- is less and less in accord with present reality and undermines
the importance our society places on women attaining financial self-sufficiency.
Furthermore, the inclusion/deduction scheme overlooks the custodial parent's
financial contribution to the support of the children. The custodial parent not only
cannot deduct amounts she spends on maintaining the children, but must also pay
the tax that the non-custodial parent would ordinarily have had to pay on the
income devoted to child support. Apart from s. 56(1)(b) ITA, child support is not
included in the taxable income of other persons in situations similar to that of the
custodial parent. The general principle of individual taxation applies, and the person
having custody is not taxed on amounts which do not personally belong to him or
her. In short, the requirement of s. 56(1)(b) ITA that separated or divorced custodial
parents include child support in their taxable income imposes obligations on
separated or divorced custodial parents that do not apply to others in similar
situations and denies benefits which the law accords to others. The fact that the
inclusion/deduction scheme confers a benefit on the majority of divorced or
separated couples as compared with other couples is no bar to concluding that that
same scheme imposes prejudicial treatment within the couple by imposing on one
of its members a burden not imposed on the other.
Even if the legislation is viewed from the perspective of the couple, however, the
inclusion/deduction scheme works significant inequality. When the custodial
parent's marginal tax rate is greater than that of the non-custodial parent, the
scheme has the effect of increasing the total tax paid by both parents. From the
outset, the inclusion/deduction scheme imposes prejudicial treatment on separated
or divorced couples in about 30 percent of cases. Moreover, where the scheme
constitutes a benefit for the couple, the tax savings it generates often benefit only
the non-custodial parent since the legislation contains nothing to encourage an
equitable division between family members of any benefits that may result from tax
savings granted to the non-custodial parent by means of the deduction.
The family law regime does not in practice succeed in rectifying the inequality
created by the inclusion/deduction scheme. The tax impact of support payments is
not always considered by the courts and, when it is, the adjustment is often
insufficient to cover the additional tax which the custodial parent must pay as a
result of being subject to the scheme. The amount of child support is determined in
light of several factors and thus leaves room for the exercise of a very wide
discretionary judicial power which precludes, in many cases, complete
neutralization of the negative effects that may result from the inclusion requirement
provided for in s. 56(1)(b). The legality of the inclusion/deduction scheme is not
preserved by the fact that the custodial parent can appeal a judgment which does
not adequately take the tax impact into account or obtain an increase in child
support when new circumstances increase the additional tax burden she must bear
as a result of including child support in her taxable income.
32
While the status of separated or divorced custodial parent is not one of the
grounds enumerated in s. 15(1), it constitutes an analogous ground of
discrimination.
This conclusion results from the following considerations: (1) the imposition of
prejudicial treatment solely on the basis of this status may violate the dignity of an
individual and his or her personal worth to a degree affecting the individual's
personal, social or economic development; (2) separated or divorced custodial
parents considered as a group have historically been subject to disadvantageous
treatment; (3) the special difficulties with which separated or divorced custodial
parents must live and their minority position as compared with Canadian families as
a whole justifies viewing them as a discrete and insular minority; (4) classification
as a separated or divorced custodial parent may give rise to adverse distinctions on
the basis of immutable personal characteristics in the broad sense of the term,
rather than on the merit and actual circumstances of a particular individual; and (5)
the status of separated or divorced custodial parents is linked to the enumerated
ground of sex given that the great majority of the members of this group are
women. The distinction in s. 56(1)(b), based on the status of separated or divorced
custodial parent, is discriminatory and infringes s. 15(1) since it runs directly
counter to the values underlying it.
Section 56(1)(b) cannot be justified under s. 1 of the Charter. The objective of
the inclusion/deduction scheme is to increase the resources of the family as a unit
in order to increase child support and ease the discharge of the non-custodial
parent's obligations. This legislative objective is of sufficient importance to justify an
infringement of a constitutional right, but s. 56(1)(b) does not meet the
proportionality test. Even in the absence of mechanisms for dividing the tax saving,
there is a tenuous rational connection between the means chosen by Parliament
and the objective pursued. However, while Parliament does not have to choose the
least intrusive means of all to meet its objective, it did not select one of a range of
choices so as to impair a constitutional right as little as possible. The
inclusion/deduction scheme does not reasonably minimize the impairment of the
equality rights of the respondent and persons in her situation. Alternatives less
intrusive of that right protected by the Charter may be readily envisaged. The tax
credits provided by the ITA do not attenuate any inequality which the inclusion
requirement may work on the custodial parent. Finally, the inclusion/deduction
scheme does not meet the proportionality of effects test. The harmful effects of the
scheme are disproportionate to the benefits it may produce. While the scheme
seems, in the majority of cases, to produce tax savings for the broken family as a
whole, in view of the importance of the interest at stake, an adverse tax impact in
more than 30 percent of cases is unacceptable. The inclusion/deduction scheme
exacerbates the significant financial difficulties encountered by custodial parents
and children upon the breakup of the family.
Section 56(1)(b) thus infringes the equality rights guaranteed by s. 15(1) in an
unjustifiable manner in so far as it applies to amounts paid between separated or
33
divorced parents for child support. In this case, a reading down of s. 56(1)(b) to
exclude child support payments appears appropriate. Since the issue turned
essentially on s. 56(1)(b), there should be no ruling on the constitutionality of s.
60(b) ITA. Except as regards the respondent, the effects of the declaration of
unconstitutionality respecting s. 56(1)(b) should be suspended for a period of one
year from the date of the judgment.
Per L'Heureux-Dubé J. (dissenting): In an analysis under s. 15(1) of the Charter,
it is preferable to focus on the group adversely affected by the distinction as
well as on the nature of the interest affected, rather than on the grounds of the
impugned distinction. A claimant under that section must establish that: (1) there is
a legislative distinction; (2) this distinction results in a denial of one of the four
equality rights on the basis of the claimant's membership in an identifiable group;
and (3) this distinction is "discriminatory" within the meaning of s. 15(1).
Section 56(1)(b) ITA makes distinctions and these distinctions have the effect of
imposing a burden unequally on the basis of one's membership in an identifiable
group -- separated or divorced custodial parents. Although the inclusion/deduction
regime confers a net tax saving upon a majority of divorced or separated couples,
its effect is not experienced equally by both members of the couple. The regime
imposes at the outset a tax burden uniquely on custodial spouses, and confers a
tax benefit uniquely on non-custodial spouses. As a practical matter, the family law
system is incapable of remedying the initial unequal distribution effectuated by the
inclusion/deduction regime. It does not address to any meaningful extent the
inequalities flowing from the burden imposed upon custodial spouses of an
imperfect "gross-up" of the support award to account for tax payable, as well as
from the benefits accruing to non-custodial spouses as a result of the
"upside-down subsidy" that occurs when custodial spouses are in a lower marginal
tax bracket. Even if the family law system were to operate perfectly, it could not
completely offset the redistributive effects of the inclusion/deduction regime. Thus,
whereas the family law system perpetuates an inequality, the regime is undoubtedly
the source of this inequality. A denial of equality does not necessarily require that
all members of a group be adversely affected by the distinction. It suffices that a
particular group is significantly more likely to suffer an adverse effect as a result of
a legislative distinction than any other group. Here, the inclusion/deduction regime
is, on the whole, very likely to disadvantage custodial spouses and, concomitantly,
very likely to advantage non-custodial spouses. A regime that materially increases
the vulnerability of a particular group imposes a burden on that group which violates
one of the four equality rights under s. 15. As such, the inclusion/deduction regime
imposes upon separated or divorced custodial spouses an unequal burden of the
law and denies them the equal benefit of the law.
The distinction made by s. 56(1)(b) is discriminatory within the meaning of s.
15(1) of the Charter. Separated or divorced custodial spouses, the vast majority
34
of whom are women, are, on the whole, an economically and socially vulnerable
group, bound together by traits that are personal, though not necessarily wholly
immutable. Adverse legislative distinctions on the basis of membership in this group
are likely to be reasonably perceived to have a discriminatory impact by members
of this group, and are capable of touching upon essential aspects of personal selfworth and dignity. The interest most directly and adversely affected by s. 56(1)(b) is
the economic situation of separated or divorced custodial parents and their children
-- an important societal interest. The impugned distinction may visit significant
economic hardship upon this group. In view of the nature of the group and the
interest affected, the distinctions drawn in the inclusion/deduction regime, and in
particular in s. 56(1)(b), are reasonably capable of having a material discriminatory
impact on separated or divorced custodial parents. The fact that some isolated
individuals within this group may not be adversely affected does not alter the
general validity of this conclusion. Section 56(1)(b) therefore violates s. 15(1) of the
Charter, since it is capable of either promoting or perpetuating the view that
separated custodial parents are less capable, or less worthy of recognition or value
as human beings or as members of Canadian society, equally deserving of
concern, respect, and consideration.
Section 56(1)(b) cannot be saved under s. 1 of the Charter. The modern
purpose of the inclusion/deduction regime -- to place more money in the hands of
the separated or divorced "couple" for the purposes of raising the level of child
support -- is a pressing and substantial objective, but the regime does not achieve
this objective in a proportionate manner. While the regime is rationally connected to
its objective, it lies outside the reasonable range of minimally intrusive alternatives
available to the government. The government has not demonstrated that the benefit
accruing to the separated or divorced "couple" is fairly and equitably shared
between the two individuals. The initial unequal distribution will only be equally
divided by the good graces of the non-custodial spouse or in the unlikely event that
the family law system fully understands, anticipates, and applies the principles of
tax expenditure analysis. Other alternatives could more effectively achieve the
objective. Further, the deleterious effects of the impugned distinction outweigh its
salutary effects. The fact that the inclusion/deduction regime often imposes a very
real disadvantage upon the very group it is intended to help is not outweighed by
the net tax savings to couples that it frequently occasions. Accordingly, s. 56(1)(b)
should be declared invalid in respect of child support payments. The declaration of
invalidity should be suspended for a 12-month period to enable Parliament to
implement a less discriminatory alternative. No pronouncement is made on the
constitutionality of s. 60(b) ITA.
Large v. Stratford (City) [1995] 3 S.C.R. 733: Discrimination on basis of age -Mandatory retirement -- Police officer -- Defence of bona fide occupational
requirement -- Board of Inquiry finding that mandatory retirement at age 60 for
police officers not a bona fide occupational requirement -- Whether Board
35
properly applied subjective and objective tests for a bona fide occupational
requirement
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Civil rights -- Discrimination on basis of age -- Mandatory retirement -- Police officer -Defence of bona fide occupational requirement -- Board of Inquiry finding that
mandatory retirement at age 60 for police officers not a bona fide occupational
requirement -- Whether Board properly applied subjective and objective tests for a bona
fide occupational requirement -- Ontario Human Rights Code, R.S.O. 1980, c. 340, s.
4(6).
A police officer who was obliged to retire at age 60 filed a complaint with the Ontario
Human Rights Commission alleging that the age 60 mandatory retirement contravened
the 1980 Ontario Human Rights Code on the grounds of age discrimination. The
mandatory retirement policy had been adopted, and later included in the collective
agreement, in response to the demands of the police union. The Board of Inquiry held
that the age 60 mandatory retirement for police officers was not justified as a bona fide
occupational requirement ("BFOR") under the Code. The Board found that neither the
subjective nor the objective test for a BFOR had been satisfied. With respect to the
subjective test, the Board concluded that while the policy was not adopted for any ulterior
purpose, it was not established that, at the time of its adoption, the employer had a
sincerely held belief that the policy was imposed in the interests of the adequate
performance of the work. Applying the objective test, the Board concluded that the policy
was not reasonable, stating that while the scientific evidence relating to the risk of
cardiovascular disease and lack of aerobic capacity supported the reasonableness of the
rule, the risk could be avoided by individual accommodation in the form of adjustments
to the work of those in the risk category. Both the Divisional Court and the Court of
Appeal upheld the Board's decision.
Held: The appeal should be allowed. The mandatory retirement policy is justified as a
BFOR.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The
purpose of the subjective element for a BFOR is to ensure that a discriminatory rule was
adopted for a valid reason, as an occupational requirement, and not for a prohibited,
discriminatory reason. Usually, this goal will be realized and the subjective element
established by evidence that the employer honestly believed that the qualification or
requirement was necessary for the safe and/or effective carrying out of the work. In this
case, in insisting on evidence as to the employer's state of mind, the Board and the courts
below applied the subjective test too rigidly against the employer. In some circumstances,
the subjective element can be satisfied when, in addition to satisfying the objective test,
the employer establishes that the rule or policy was adopted in good faith for a valid
reason and without any ulterior purpose that would be contrary to the goals of the
Ontario Human Rights Code. Thus, in a case in which the work-related requirement is the
result of a union-driven term in a collective agreement, if both parties acted in good faith
and arrived at an agreement that is shown to be reasonably necessary so as to satisfy the
36
objective test, an employer can satisfy the subjective element without proof of a sincerely
held belief in the necessity of the requirement. In such a case, however, the term in the
collective agreement must not have been adopted for an ulterior or discriminatory
purpose by the union. Here, the Board found that the employer acted honestly and
without an ulterior motive in entering into the collective agreement. Since there is no
suggestion that either the employer or the union was motivated by any ulterior motive,
the purpose of the subjective test is satisfied.
With respect to the objective test, it is an error to equate individual accommodation with
the requirement relating to reasonable alternatives. The latter is fundamental to the
concept of a BFOR defence. Justification of a general rule that treats all employees as
having the same characteristics, notwithstanding that some will not, is dependent on
proof that it was not practical to identify and exempt from the general rule those who
lacked the requisite characteristics. Since the Board found that individual testing was not
feasible, the employer had discharged the obligation of showing that individual
assessment was impractical and, therefore, a general rule was necessary. The alternative
of individual accommodation is an impermissible extension of the principles in Bhinder,
Saskatoon and Alberta Dairy Pool and is inconsistent with the concept of a BFOR
defence as explained in those cases. It is an alternative that requires that the
circumstances of each employee to whom the rationale of the rule applies be examined
and that each employee's duties be adjusted so as to render the rule unnecessary. This
alternative does not respond to the question as to why a general rule which includes some
who do not share the common characteristics was necessary. There was a preponderance
of evidence in this case to support a finding that the combination of the risk of
cardiovascular disease and the decline of aerobic capacity discharged the employer's
obligation with respect to the objective element of the BFOR. Subject to the influence of
the concept of individual accommodation, the Board's reasons should be interpreted as
having made this finding.
Both the subjective and the objective elements of a BFOR defence having been
established, the appellants are entitled to a dismissal of the complaint.
Per L'Heureux-Dubé and McLachlin JJ.: The Board did not import elements of the
objective test into the subjective test. The Board was not interested in whether the
appellants' reason for implementing the retirement policy was rational per se. Its concerns
were whether there was any evidence of a "sincerely held belief" that the retirement
policy was necessary in the interest of the adequate performance of police force work.
Such a determination was clearly envisaged as a legitimate component of the subjective
test.
Where a policy has been adopted as part of the collective bargaining process, in response
to demands by the employees, it is the "sincerely held belief" of the employees that the
policy was necessary which is more relevant to the subjective test. The employer often
will not have a "sincerely held belief" that the policy is needed, other than a belief that it
is needed to satisfy the union. However, the absence of improper motives on the part of
employees and management cannot alone be sufficient to meet the subjective test. A
general occupational requirement cannot be considered to be bona fide, within the
meaning of human rights legislation, if it was adopted blindly or without due regard for
the individual rights of the persons affected. Therefore, where a general occupational
37
requirement is adopted at the behest of employees, such requirement satisfies the
subjective test if (1) there is no evidence of ulterior or discriminatory motive on the part
of the employees in demanding the requirement; (2) the employees turned their minds to
the question of whether the requirement was warranted, in light of its potentially
discriminatory nature, and possessed a "sincerely held belief" in its necessity; and (3) the
employer turned its mind to the question of whether the requirement was warranted, in
light of its potentially discriminatory nature, and did not have an ulterior or
discriminatory motive in acquiescing in the employees' demand. Had the Board applied
the correct principles of law in this case, the impugned provision would satisfy the
subjective test.
The objective test is also satisfied. While the possibility of accommodation is not relevant
once a BFOR is established, it is relevant to the determination of whether a rule
constitutes a BFOR. In this case, however, it was not demonstrated that accommodation
would have been possible. Moreover, sufficient evidence was presented to justify the
mandatory retirement provisions as reasonable in light of the duties performed by police
officers.
Dickason v. University of Alberta [1992] 2 S.C.R. 1103: Mandatory retirement
-- Provincial legislation prohibiting discrimination on basis of age -- Employer may
show that alleged contravention "reasonable and justifiable in the circumstances"
-- Whether university's policy of mandatory retirement at age 65 justified
Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci
JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA
Civil rights -- Equality rights -- Mandatory retirement -- Provincial legislation
prohibiting discrimination on basis of age -- Employer may show that alleged
contravention "reasonable and justifiable in the circumstances" -- Whether university's
policy of mandatory retirement at age 65 justified -- Whether criteria for limiting Charter
rights under s. 1 apply -- Individual's Rights Protection Act, R.S.A. 1980, c. I-2, ss. 7,
11.1.
Courts -- Appellate review -- Findings of fact -- Curial deference -- Whether appellate
court should disturb findings of fact made by board of inquiry and Court of Queen's
Bench.
Appellant, a tenured full professor at the University of Alberta, was forced to retire at the
age of 65 pursuant to a mandatory retirement clause in the collective agreement between
the university and its academic staff. She filed a complaint with the Alberta Human
Rights Commission alleging that her forced retirement contravened s. 7 of the
Individual's Rights Protection Act by discriminating against her on the basis of her age.
Section 11.1 of the Act provides that discrimination on a prohibited ground will be
permitted if the employer shows that the breach was "reasonable and justifiable in the
circumstances". The board of inquiry appointed to hear appellant's complaint decided in
her favour and ordered that she be reinstated. The Court of Queen's Bench upheld that
decision, but it was overturned by the Court of Appeal.
38
Held (L'Heureux-Dubé, Sopinka and McLachlin JJ. dissenting): The appeal should be
dismissed. The university has shown that the impugned practice of mandatory retirement
is reasonable and justifiable within the meaning of s. 11.1 of the Individual's Rights
Protection Act.
Per La Forest, Gonthier, Cory and Iacobucci JJ.: In the construction of human rights
legislation, the rights enunciated must be given their full recognition and effect, while
defences to the exercise of those rights should be interpreted narrowly. In applying the
test set out in Oakes for determining whether legislation can be justified under s. 1 of the
Canadian Charter of Rights and Freedoms, the Court has adopted a flexible standard of
proof which responds to the varying contexts in which the state seeks to invoke
justification for the impugned legislation. Since a challenge brought under the Charter to
legislation enacted by the state obviously affects a state interest, due deference must be
given to the actions of the state manifested by the legislation under attack. The policy
rationale for this varying standard cannot be automatically transferred to the
consideration of human rights legislation, where the challenge will be to the actions of a
private party. Charter cases may thus assist in the development of the test for
determining whether a defence under s. 11.1 of the Individual's Rights Protection Act has
been established, but the Oakes model is only appropriate if it is applied without any
trace of deference to a private defendant, and only with a large measure of flexibility and
due regard to the context.
The common law principle of curial deference to findings of fact made by a court of first
instance has been to a large extent adopted in reviewing the decisions of administrative
tribunals, although the standard of review will always be governed by the tribunal's
empowering legislation. Curial deference must be given to a tribunal's findings of fact
where there is a privative clause or where the findings were made within the tribunal's
field of specialized knowledge. In this case, however, the Court should not be constrained
by the conclusions of the board of inquiry. The Act has clearly indicated that a very broad
standard of review would be appropriate. On a plain reading of the Act, it is clear that the
legislature specifically intended that appellate courts should examine the evidence anew
and, if deemed appropriate, make their own findings of fact. The judge of the Court of
Queen's Bench did not hear any viva voce testimony, but rather reassessed the evidence
on the basis of the transcript of the board hearing. The Court of Appeal and this Court
thus stand in the exactly the same position as he did with precisely the same record to
consider, and the policy reasons in favour of deferring to the findings of fact of a trial
court do not apply.
While this Court's decision in McKinney can provide some guidance, it does not
determine the outcome of this case. When weighing the arguments on the issue of
minimal impairment as part of the analysis under s. 1 of the Charter, the majority in
McKinney considered whether the government had a reasonable basis for concluding that
it impaired the relevant right as little as possible. To frame the question in this way
imposes a significantly lower burden of proof on the defendant than s. 11.1, which
requires a defendant to prove that the discriminatory policy, viewed objectively,
constitutes only a minimal impairment of the right. While no deference should be given
to the policy choice of the defendant, other factors may well be relevant. The courts have
respected the unique role of universities in our society as self-governing centres of
39
learning, research and teaching safeguarded by academic freedom, and over the years
have been very cautious in intervening in university affairs. The nurturing of academic
freedom and the ensuring of faculty renewal are most delicate matters that do not lend
themselves to a single clear-cut answer as to the proportionality between the burden of
the discrimination complained of and the objectives sought. The evidence and assessment
of competent and experienced university administrators will be of particular significance.
In this case the collective bargaining agreement authorizing compulsory retirement can
also properly be taken into account. Parties may not generally contract out of a human
rights statute. This rule resulted from the concern that there may be a great discrepancy in
bargaining power between the person contracting out of human rights legislation and the
party receiving the benefit of that term. Labour codes are specifically designed to
overcome or compensate any imbalance in bargaining power, however, and with these
statutory safeguards in place collective agreements take on a new and important
significance. A collective agreement may very well provide evidence of the
reasonableness of a practice which appears on its face to be discriminatory. It should be
shown, however, that the agreement was freely negotiated by parties with relatively equal
bargaining positions and that it did not discriminate unfairly against minorities. Here the
term of the collective agreement relating to compulsory retirement will apply to every
member of the faculty association. Moreover, the union did not negotiate the term in a
vacuum, but rather in the context of a system of tenure which protects all members of
faculty from dismissal without just cause, and provides a pension scheme assuring the
financial security of all retiring members of faculty.
The objectives of mandatory retirement were stated to be the preservation of tenure, the
promotion of academic renewal, the facilitation of planning and resource management
and the protection of "retirement with dignity" for faculty members. Like the objectives
put forward in McKinney, in which they are subsumed, they are of sufficient significance
to justify the limitation of a constitutional right to equality. The impugned retirement
practice is rationally connected to the objectives cited. The retirement of faculty members
at the age of 65 ensures that the university may readily predict the rate at which
employees will leave the institution and that positions are opened for new faculty.
Mandatory retirement also allows the university to renew its faculty by introducing
younger members who may bring new perspectives to their disciplines. It provides a
means of remedying the twofold problem of limited funding and a "bulge" in the age
distribution of professors. As well, the policy supports the existence of a tenure system
which creates barriers to the dismissal of faculty members thereby enhancing academic
independence. In the university setting, mandatory retirement also withstands the
minimal impairment test. No obvious alternative policy exists which would achieve the
same results without restricting the individual rights of faculty members. Finally, the
effects of the prima facie discrimination are proportional to the legitimate objectives
served.
Per L'Heureux-Dubé and McLachlin JJ. (dissenting): Curial deference to the board of
inquiry's findings of fact is consistent with both principle and precedent, and recognizes
the "signal advantage" enjoyed by courts of first instance and administrative tribunals,
which see and hear witnesses. A board's findings on social fact evidence should also be
accorded some deference where these findings fall within the board's specific and
40
primary mandate. A board whose determinations are not protected by a privative clause
may be afforded less deference than a board which has the protection of such a clause,
but this is only a question of degree.
In this case, it is clear that the trial judge appreciated the advantages enjoyed by the
board, and that he relied on the board's findings of fact in making his own. This Court
should accord the board's findings a similar measure of respect.
It has been established that human rights legislation is to receive a broad and purposive
interpretation. Provisions which provide defences for discriminatory conduct must
therefore be read narrowly. The analysis of s. 11.1 of the Act may be approached in a
manner consistent with the model established in R. v. Oakes. The test for justifying
discrimination under s. 11.1 is a strict one. This test requires the employer, in the face of
a discriminatory practice, to prove the absence of a practical alternative to the
discriminatory rule, satisfying a civil burden of proof. The flexible standard, whereby the
defendant need not show that it adopted the least intrusive and offensive means of
implementing policy, does not apply here. The rationale for the flexible standard is
judicial deference to legislative choice, based on the idea that, with respect to resources
and training, law makers are in a better position than courts to make policy choices
between competing interests. This deference to legislative choice is completely
unwarranted where, as here, the defendant is not a legislative body.
The university's policy of mandatory retirement at age 65 is not reasonable and justifiable
under s. 11.1 of the Act. First, since parties generally may not contract out of human
rights legislation, a collective agreement is not evidence of the reasonableness of a
discriminatory practice. The prohibition against waiver of human rights provisions arises
not only from a concern about inequality in bargaining power, but also because the rights
guaranteed by human rights codes are seen as inherent to the dignity of every individual
within our society. While the existence of a collective agreement whereby employees
agree to limit their own rights may exceptionally be a factor in considering the
justifiability of an employer's discriminatory policy, any such agreement must be
scrutinized to ensure that it does not discriminate unfairly against a minority of the union
membership, and that it was freely negotiated. The particular context of the bargain,
including relevant legislation in place at the time of its conclusion, may greatly mitigate
its evidentiary weight, as is the case here. In the circumstances, the collective agreement
between appellant and the university is not evidence of the reasonableness of its
mandatory retirement policy.
In light of this Court's conclusions in McKinney, the university's stated objectives are
pressing and substantial. The university's fears about how tenure might be affected should
mandatory retirement be eliminated are insufficient, however, to prove a rational
connection between its objective of preserving the tenure system and its discriminatory
policy. Peer evaluation is a fair and equitable way of assessing professors in good faith,
on the basis of their teaching, research and publication records, rather than on their age.
Unless abused, it poses no threat to academic freedom, and in fact enhances the value of
tenure by ensuring that incompetent professors, young or old, are dismissed. The
university has also failed to prove a rational link between the goal of faculty renewal and
its policy of mandatory retirement. The argument that mandatory retirement at a fixed age
allows the university to open positions to younger academics, thereby at once allowing a
41
fresh infusion of ideas into the institution and remedying the problem of underfunding,
does not stand up to scrutiny. It is based on the false premise that older workers are
uniformly less productive and original than their younger colleagues. Further, the
elimination of mandatory retirement would have only a limited effect on the number of
jobs for young academics owing, in part, to the small number of academics who actually
wish to keep working beyond the normal retirement age. The institutional planning
argument, according to which mandatory retirement is necessary because it allows the
administration to plan ahead, should also be dismissed. Other variables, such as
resignations, deaths, and early retirement, are predicted with relative certainty by means
of statistical forecasts. The slight inconvenience which inevitably remains cannot alone
be used as a justification for the denial of equality on the basis of age. The retirement
with dignity argument depends entirely on the idea that professors who reach the age of
65 must necessarily fear assessment on the basis of their performance, because that
performance has necessarily declined rapidly with age. Given that the evidence
conclusively refutes the myth of universal decline, and that peer evaluation is an effective
tool for identifying incompetence, this proposition clearly fails at the outset. The policy
of mandatory retirement does not in any event meet the minimal impairment test. Peer
evaluations, based on objective assessment, offer a far more dignified approach to
academic work and are thus infinitely preferable. Encouragement of early retirement is
another non-discriminatory alternative that would achieve the university's goals. Finally,
the devastating effects that forced retirement has on a worker's finances, health, and selfesteem are grossly disproportionate to any advantages the university gains by its
discriminatory practice.
Per Sopinka J. (dissenting): The conclusion and for the most part the reasons of
L'Heureux-Dubé J. were agreed with. In McKinney this Court decided that mandatory
retirement at a specified age was not constitutionally impermissible. Parliament or a
provincial legislature by appropriate legislation could prohibit or permit it. The province
of Alberta, in s. 11.1 of its Individual's Rights Protection Act, has left the decision to
employers and employees provided that where mandatory retirement is resorted to, the
employer must satisfy a board of inquiry that this discriminatory practice is reasonable
and justifiable.
The jurisprudence developed with respect to s. 1 of the Charter is a useful guide in
applying s. 11.1. In determining whether the proportionality factor has been met, the
Court should not defer to the decision of an employer in the same way as in the case of a
governmental actor. The tests developed for the application of s. 1 of the Charter and the
defence to discrimination under human rights legislation are similar. While the former as
expounded in Oakes is more elaborate, they both require that the impugned measure bear
a rational relationship to a legitimate objective. The test is whether the requirement is
"reasonably necessary" to assure the performance of the job. This is a question of fact to
be determined by a board of inquiry subject to appeal proceedings. All the circumstances
must be taken into account, including any agreement or collective agreement between the
employer and employees. This is a factor, but in this case it has little or no weight.
The appeal should be allowed because the board of inquiry found on the evidence that the
connection between the university's objective and its mandatory retirement policy was
weak. Moreover, the board found that there were other more reasonable means for the
42
university to achieve its objectives. No valid reason for disturbing these findings has been
made out.
R v S (S) [1990] 2 S.C.R. 254: Discrimination on the basis of province of
residence -- Ontario failing to implement alternative measures programmes
pursuant to s. 4 of the Young Offenders Act
Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and Cory JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Criminal law -- Young offenders -- Alternative measures -- Ontario choosing not to
implement alternative measures programmes -- Whether s. 4 of Young Offenders Act
imposes mandatory obligation on provinces to authorize such programmes -- Whether s.
4 intra vires Parliament -- Whether Ontario's failure to implement alternative measures
programmes infringes a young offender's right to equality before the law under s. 15 of
Canadian Charter of Rights and Freedoms -- Young Offenders Act, S.C. 1980-81-82-83,
c. 110, ss. 3, 4.
Constitutional law -- Distribution of legislative powers -- Young Offenders Act -Alternative measures -- Provinces permitted under s. 4 of Young Offenders Act to
implement alternative measures programmes for young offenders -- Whether s. 4 intra
vires Parliament -- Whether s. 4 encroaches upon provincial jurisdiction over child
welfare -- Whether s. 4 is unconstitutional delegation of Parliament's authority over
criminal law -- Constitution Act, 1867, ss. 91(27), 92(13) -- Young Offenders Act, S.C.
1980-81-82-83, c. 110, s. 4.
Constitutional law -- Charter of Rights -- Equality before the law -- Discrimination on the
basis of province of residence -- Ontario failing to implement alternative measures
programmes pursuant to s. 4 of the Young Offenders Act -- Whether Ontario's failure to
implement such programmes infringes s. 15(1) of Canadian Charter of Rights and
Freedoms -- Whether s. 4 of the Act infringes s. 15(1) of the Charter -- Impact of s. 15(1)
of Charter on distinctions based upon province of residence in the application of a valid
federal law.
The respondent, a young offender, was charged with possession of stolen goods. Before
he entered a plea, his counsel brought a motion alleging that Ontario's failure to designate
"alternative measures programmes" for the purposes of s. 4 of the Young Offenders Act
resulted in a violation of the respondent's right to equality before the law, as guaranteed
by s. 15(1) of the Canadian Charter of Rights and Freedoms. Section 4 provides that
"alternative measures may be used to deal with a young person alleged to have
committed an offence instead of judicial proceedings under this Act only if" a number of
conditions are met. The judge held that the Attorney General for Ontario was under a
positive duty to authorize alternative measures programmes in the province by virtue of s.
3(1)(d) and (f) of the Act, and that the failure to implement such programmes, which
were available to young offenders in all the other provinces, infringed the respondent's s.
15(1) right. He concluded that the infringement could not be justified under s. 1 of the
Charter and dismissed the charge. Before the Court of Appeal, the appellant submitted
43
that s. 4 of the Act was, in pith and substance, legislation in relation to child welfare, a
matter falling within the sphere of provincial legislative competence under s. 92(13) of
the Constitution Act, 1867. The court rejected this argument, upheld the trial judge's
decision on the s. 15(1) issue and dismissed the appeal.
Held: The appeal should be allowed.
(1) Section 4 of the Young Offenders Act
Section 4(1) of the Act does not oblige the provinces to implement alternative measures
programmes; rather, the legislation leaves the decision to the discretion of each province.
The use of the word "may" in s. 4(1) and the absence of an obligation expressed in
unequivocally mandatory language lead to that conclusion. The word "should" in s.
3(1)(d) of the Act, which states that "taking measures other than judicial proceedings
under this Act should be considered for dealing with young persons who have committed
offences", does not provide evidence of a mandatory duty. In the context of s. 3(1)(d), the
word "should" denotes simply a "desire or request" and not a legal obligation. Section
4(1) thus gives to the provincial Attorneys General a power, but not a duty, to develop
and implement alternative measures programmes.
(2) Section 91(27) of the Constitution Act, 1867
Section 4 of the Act is intra vires Parliament. The Act as a whole is valid criminal law. It
addresses the commission of offences contrary to the Criminal Code and other federal
criminal law statutes. While s. 4(1) differs from most criminal law remedial statutes in
that the focus is on alternatives to more traditional criminal sanctions, the federal
legislative power over criminal law is sufficiently flexible to recognize new
developments in methods of dealing with offenders. Indeed, Parliament's jurisdiction
under s. 91(27) of the Constitution Act, 1867 extends beyond the confines of creating
offences and establishing penalties. The discretion to create an alternative measures
programme pursuant to s. 4 represents a legitimate attempt to deter young offenders from
continued criminal activity. There is a concern with preventing recidivism and with
balancing the interests of the offending `young person' with those of society. Section 4,
therefore, was a valid exercise of Parliament's legislative authority under s. 91(27).
Section 4 of the Act is not an unconstitutional delegation of Parliament's authority over
criminal law and procedure. There is no limitation imposed by the Constitution Act, 1867
on Parliament's ability to leave the implementation of alternative measures programmes
to the discretion of the provincial Attorneys General. The provinces have accepted a
delegation of responsibility from Parliament in respect of prosecutions, including the
prosecution of young offenders (s. 2 of the Criminal Code and s. 2(4) of the Act). The
discretion to establish alternative measures programmes is clearly incidental to that
legitimate delegation.
(3) Section 15 of the Charter
Since s. 4 of the Act does not impose a mandatory duty on the province to establish
alternative measures programmes, the Attorney General for Ontario's decision not to
authorize such programmes cannot contravene the respondent's equality rights under s.
15(1) of the Charter. His decision was made in accordance with the permissive terms of s.
4. That section, and not the discretionary determination made by the Attorney General
pursuant to its provisions, constitutes "the law" for the purposes of a s. 15 challenge.
Further, once it is determined that there is no duty on the Attorney General for Ontario to
44
implement alternative measures programmes, the non-exercise of discretion cannot be
constitutionally attacked simply because it creates differences among provinces. To find
otherwise would potentially open to Charter scrutiny every jurisdictionally permissible
exercise of power by a province, solely on the basis that it creates a distinction in how
individuals are treated in different provinces. The constitutionality of s. 4, in terms of
compliance with the Charter, was not in issue in this appeal.
The outcome of this appeal would be no different had s. 4 been challenged directly. As a
result of the discretion granted by Parliament to the provincial Attorneys General,
alternative measures programmes were available to young offenders in all the provinces
of Canada except Ontario. The absence of this benefit in that province must be
considered a legal disadvantage imposed upon young offenders resident in Ontario.
However, while the respondent has established that he was not receiving equal treatment
before and under the law or that the law has a differential impact on him in the protection
or benefit accorded by law, he did not establish that s. 4 was discriminatory. In a federal
system of government, the values underlying s. 15(1) cannot be given unlimited scope.
The division of powers not only permits differential treatment based upon province of
residence, it mandates and encourages geographical distinction. Unequal treatment which
stems solely from the exercise, by provincial legislators, of their legitimate jurisdictional
powers cannot be the subject of a s. 15(1) challenge on the basis only that it creates
distinctions based upon province of residence. A case-by-case approach is appropriate to
determine whether province-based distinctions which arise from the application of federal
law contravene s. 15(1). Here, the legislation does not amount to a distinction which is
based upon a "personal characteristic" for the purposes of s. 15(1) of the Charter.
Differential application of federal law can be a legitimate means of forwarding the values
of a federal system, especially in the context of the administration of the criminal law,
where differential application is constitutionally fostered by ss. 91(27) and 92(14) of the
Constitution Act, 1867. The area of criminal law and its application is one in which the
balancing of national interests and local concerns has been accomplished by a
constitutional structure that both permits and encourages federal-provincial cooperation.
Further, although s. 4 of the Act is valid federal law, it is not wholly unconnected to child
welfare -- a matter of provincial jurisdiction. Differential application of the law through
federal-provincial cooperation is a legitimate means whereby governments can overcome
the rigidity of the "watertight compartments" of the distribution of powers with respect to
matters that are not easily categorized or dealt with by one level of government alone.
Mckinney v. University of Guelph [1990] 3 S.C.R. 229: Age discrimination -Mandatory retirement at age 65 -- Whether or not mandatory retirement policy
"law"
Present: Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and
Cory JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Applicability of Charter -- Government -Whether or not university "government" so as to attract Charter review of policies -- If
45
so, whether or not mandatory retirement policy "law" -- Canadian Charter of Rights and
Freedoms, ss. 15, 32.
Constitutional law -- Charter of Rights -- Equality rights -- Equality before the law -- Age
discrimination -- Mandatory retirement at age 65 -- Whether or not mandatory retirement
policy "law" -- If so, whether or not s. 15(1) of the Charter infringed -- Canadian Charter
of Rights and Freedoms, ss. 15, 32.
Consitutional law -- Civil rights -- Age discrimination -- Protection against age
discrimination in employment not extending to those over 65 -- Whether provision
infringing s. 15 of the Charter -- If so, whether justified under s. 1 -- Canadian Charter of
Rights and Freedoms, ss. 1, 15 -- Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(a).
The appellants, eight professors and a librarian at the respondent universities, applied for
declarations that the universities' policies of the mandatory retirement at age 65 violate s.
15 of the Canadian Charter of Rights and Freedoms and that s. 9(a) of the Human Rights
Code, 1981, by not treating persons who attain the age of 65 equally with others, also
violates s. 15. They also requested an interlocutory and permanent injunction and sought
reinstatement and damages. The mandatory retirement policies had been established
through various combinations of resolutions of the board, by-laws, pension plan
provisions and collective agreements, depending on the university.
Several of the appellants filed complaints with the Ontario Human Rights Commission
but the Commission refused to deal with the complaints because its jurisdiction was
confined with respect to employment to persons between eighteen and sixty-five. It
advised the appellants that it would review its position when their application concerning
the constitutional validity of s. 9(a) was decided.
The High Court dismissed appellants' application and a majority of the Court of Appeal
upheld that decision. Five constitutional questions were stated for consideration by this
Court: (1) whether s. 9(a) of the Human Rights Code, 1981 violated the rights guaranteed
by s. 15(1) of the Charter; (2) if so, whether it was justified by s. 1 of the Charter; (3)
whether the Charter applies to the mandatory retirement provisions of the respondent
universities; (4) if applicable, whether their respective mandatory retirement provisions
infringe s. 15(1); and finally, (5) if s. 15(1) is infringed, whether the respective mandatory
retirement provisions are demonstrably justified by s. 1.
The Attorneys General of Canada, Nova Scotia and Saskatchewan intervened.
Held (Wilson and L'Heureux-Dubé JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and La Forest and Gonthier JJ.: The wording of s. 32(1) of the Charter
indicates that the Charter is confined to government action. It is essentially an instrument
for checking the powers of government over the individual. The exclusion of private
activity from Charter protection was deliberate. To open up all private and public action
to judicial review could strangle the operation of society and impose an impossible
burden on the courts. Only government need be constitutionally shackled to preserve the
rights of the individual. Private activity, while it might offend individual rights, can either
be regulated by government or made subject to human rights commissions and other
bodies created to protect these rights. This Court, in limiting the Charter's application to
Parliament and the legislatures and the executive and administrative branches of
government in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, relied not only on
the general meaning of government but also on the way in which the words were used in
46
the Constitution Act, 1867.
The fact that an entity is a creature of statute and has been given the legal attributes of a
natural person is not sufficient to make its actions subject to the Charter. The Charter was
not intended to cover activities by non-governmental entities created by government for
legally facilitating private individuals to do things of their own choosing.
While universities are statutory bodies performing a public service and may be subjected
to the judicial review of certain decisions, this does not in itself make them part of
government within the meaning of s. 32. The basis of the exercise of supervisory
jurisdiction by the courts is not that the universities are government, but that they are
public decision makers.
The fact that a university performs a public service does not make it part of government.
A public purpose test is simply inadequate. It is fraught with difficulty and uncertainty
and is not mandated by s. 32. Although the Charter is not limited to entities discharging
inherently governmental functions, more would have to be shown to make them subject
to Charter review than that they engaged in activities or the provision of services that are
subject to the legislative jurisdiction of either the federal or provincial governments.
The universities are legally autonomous. They are not organs of government even though
their scope of action is limited either by regulation or because of their dependence on
government funds. Each has its own governing body, manages its own affairs, allocates
its funds and pursues its own goals within the legislated limitations of its incorporation.
Each is its own master with respect to the employment of professors. The government has
no legal power to control them. Their legal autonomy is fully buttressed by their
traditional position in society. Any attempt by government to influence university
decisions, especially decisions regarding appointment, tenure and dismissal of academic
staff, would be strenuously resisted by the universities on the basis that this could lead to
breaches of academic freedom.
The actions of universities do not fall within the ambit of the Charter because they do not
form part of the government apparatus. The universities were not implementing
government policy in establishing mandatory retirement. If, however, universities formed
part of the "government" apparatus within the meaning of s. 32(1) of the Charter, their
policies on mandatory retirement would violate s. 15 of the Charter.
For section 15 of the Charter to come into operation, the alleged inequality must be one
made by "law". Had the universities formed part of the fabric of government, their
policies on mandatory retirement would have amounted to a law for the purposes of s. 15
of the Charter. Indeed, in most of the universities, these policies were adopted by the
universities in a formal manner. The fact that they were accepted by the employees
should not alter their characterization as law, although this would be a factor to be
considered in deciding whether under the circumstances the infringement constituted a
reasonable limit under s. 1 of the Charter.
Acceptance of a contractual obligation might well, in some circumstances, constitute a
waiver of a Charter right especially in a case like mandatory retirement, which not only
imposes burdens but also confers benefits on employees. On the whole, though, such an
arrangement would usually require justification as a reasonable limit under s. 1 especially
where a collective agreement may not really find favour with individual employees
subject to discrimination.
47
On the assumption that these policies are law, they are discriminatory within the meaning
of s. 15(1) of the Charter, given Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143, since the distinction is based on the enumerated personal characteristic of
age. The Charter protects not only from direct or intentional discrimination but also from
adverse impact discrimination. The similarly situated test has not survived Andrews.
The distinction made in the universities' policies, though based upon an enumerated
ground to the disadvantage of individuals aged 65 and over, constitutes a reasonable limit
under s. 1 of the Charter to the right to equality accorded under s. 15.
The combined objectives of the impugned provisions meet the "objectives test".
Excellence in higher education is an admirable aim and should be fostered. The
preservation of academic freedom too is an objective of pressing and substantial
importance.
Mandatory retirement is rationally connected to the objectives sought. It is intimately tied
to the tenure system which undergirds the specific and necessary ambience of university
life and ensures continuing faculty renewal, a necessary process in enabling universities
to be centres of excellence on the cutting edge of new discoveries and ideas. It ensures a
continuing, and necessary, infusion of new people. In a closed system with limited
resources, this can only be achieved by departures of other people. Mandatory retirement
achieves this in an orderly way that permits long-term planning both by the university
and the individual.
In assessing whether there has been minimal impairment of a consitutional right,
consideration must be given not only to the reconciliation of claims of competing
individuals or groups but also to the proper distribution of scarce resources -- here access
to the valuable research and other facilities of universities. The universities had a
reasonable basis for concluding that mandatory retirement impaired the relevant right as
little as possible given their pressing and substantial objectives. Against the detriment to
those affected must be weighed the benefit of the universities' policies to society.
Academic freedom and excellence is necessary to our continuance as a lively democracy.
Staff renewal is vital to that end. It ensures infusion of new people and new ideas, a better
mix of young and old that is a desirable feature of a teaching staff, and better access to
the universities' outstanding research facilities which are essential to push forward the
frontiers of knowledge. As well, while mandatory retirement has serious detrimental
effects on the group affected, it has many compensatory features for them, notably an
enriched working life comprising a large measure of academic freedom with a minimum
of supervision and demeaning performance tests. These are part of the "bargain" involved
in taking a tenured position, a bargain long sought by faculty associations and other
groups in society.
The effects of the universities' policies of mandatory retirement are not so severe as to
outweigh the government's pressing and substantial objectives. The same factors had to
be balanced in dealing with deleterious effects.
Following a long history, mandatory retirement at age 65 became the norm and is now
part of the very fabric of the organization of the labour market in this country. It has
profound implications for the structuring of pension plans, for fairness and security of
tenure in the workplace, and for work opportunities for others. This was the situation
48
when s. 9(a) of the Human Rights Code, 1981 was enacted and when the Charter was
proclaimed. There are factors that must be considered in a Charter evaluation.
The section 1 analysis of s. 9(a) of the Human Rights Code, 1981 cannot be restricted to
the university context as was done in the court below. The appellants in this case were
denied the protection of the Code, not because they were university professors but
because they were 65 years of age or over. To restrict its application to the university
context would be inconsistent with the first component of the proportionality test
enunciated in R. v. Oakes.
The objective of ss. 9(a) and 4 of the Human Rights Code, 1981 is to extend protection
against discrimination to persons in a specified age range, originally those between 45
and 65. Those over 65 benefited from numerous other social programmes. In enacting the
provision, the Legislature balanced its concern for not according protection beyond 65
against the fear that such a change might result in delayed retirement and delayed benefits
for older workers, as well as for the labour market and pension ramifications. Assuming
the test of proportionality can be met, these warranted overriding the constitutional right
of the equal protection of the law. The Legislature also considered the effect on young
workers, but the evidence on this is conjectural, and should be accorded little weight.
The legislation is rationally connected to its objectives as is evident from the
considerations concerning whether it impairs the right to equality "as little as possible."
But consideration of the propriety of the legislature's cautious conduct involves
recognition of the fact that it was motivated by concern for the orderly transition of
values. The United Nations Resolution aimed at discouraging age discrimination justifies
its recommendation by limiting it to "wherever and whenever the overall situation
allows".
Mandatory retirement impairs the right to equality without discrimination on the basis of
age as little as possible. The historical origins of mandatory retirement at age 65 and its
evolution as one of the important structural elements in the organization of the workplace
was very relevant to making this assessment. The repercussions of abolishing mandatory
retirement would be felt in all dimensions of the personnel function with which it is
closely entwined: hiring, training, dismissals, monitoring and evaluation, and
compensation. The Legislature was faced with competing socio-economic theories and
was entitled to choose between them and to proceed cautiously in effecting change. On
issues of this kind, where there is competing social science evidence, the Court should
consider whether the government had a reasonable basis for concluding that the
legislation impaired the relevant right as little as possible given the government's pressing
and substantial objectives.
The concern about mandatory retirement is not about mere administrative convenience in
dealing with a small percentage of the population. Rather, it is with the impact that
removing a rule, which generally benefits workers, would have on the compelling
objectives the Legislature has sought to achieve. Mandatory retirement is not government
policy in respect of which the Charter may be directly invoked. It is an arrangement
negotiated in the private sector, and it can only be brought into the ambit of the Charter
tangentially because the Legislature has attempted to protect, not attack, a Charter value.
The provision in question had no discriminatory purpose.
49
The legislation simply reflects a permissive policy which allows those in different parts
of the private sector to determine their work conditions for themselves, either personally
or through their representative organizations. Mandatory retirement was not government
policy and it was not a condition imposed on employees. It was favoured both by the
universities and labour organizations.
For the same considerations as were discussed with the issue of minimum impairment,
there was a proportionality between the effects of s. 9(a) of the Code on the guaranteed
right and the objectives of the provision. The Legislature sought to provide protection for
a group which it perceived to be most in need and did not include others for rational and
serious considerations that, it had reasonable grounds to believe, would seriously affect
the rights of others. A Legislature should not be obliged to deal with all aspects of a
problem at once. It should be permitted to take incremental measures to balance possible
inequalities under the law against other inequalities resulting from the adoption of a
course of action and to take account of the difficulties, whether social, economic or
budgetary, that would arise if it attempted to deal globally with them.
The cut-off point was within a reasonable range according to the evidence and was
appropriately defined in terms of age, notwithstanding the fact that age was a prohibited
ground of discrimination. The precise point was not an issue for the Court. The Charter
itself by its authorization of affirmative action under s. 15(2) recognized that legitimate
measures for dealing with inequality might themselves create inequalities. Section 1
therefore should allow for partial solutions to discrimination where there are reasonable
grounds for limiting a measure.
A measure of deference for legislative choice is invited by the fact that the Charter left
the task of regulating and advancing the cause of human rights in the private sector to the
legislative branch. Generally, the courts should not lightly use the Charter to secondguess legislative judgment as to just how quickly it should proceed in moving forward
towards the ideal of equality. The courts should adopt a stance that encourages legislative
advances in the protection of human rights. Some of the steps adopted may well fall short
of perfection but the recognition of human rights emerges slowly out of the human
condition, and short or incremental steps may at times be a harbinger of a developing
right.
Per Sopinka J.: The reasons of La Forest J. for concluding that a university is not a
government entity for the purpose of attracting the provisions of the Canadian Charter of
Rights and Freedoms were agreed with. The core functions of a university are nongovernmental and therefore not directly subject to the Charter. This applies a fortiori to
the university's relations with its staff which in the case of those in these appeals are on a
consensual basis. Some university activities, however, may be governmental in nature.
The determination as to whether the policies and practices of the universities relating to
mandatory retirement are law cannot be made on the assumption that the universities are
governmental bodies. In attempting to classify the conduct of an entity in a given case it
is important to know, first, that it is a governmental body and, second, that it is acting in
that capacity in respect of the conduct sought to be subjected to Charter scrutiny. The role
of the Charter is to protect the individual against the coercive power of the state. This
suggests that there must be an element of coercion involved before the emanations of an
institution can be classified as law. In order to make the determination in this case that
50
the policies and practices relating to mandatory retirement are law, highly relevant factors
would have to be assumed as being present. Such a determination would have a wholly
artificial foundation and would simply distort the law. The conclusion that mandatory
retirement is justified under s. 1 is more in accord with the democratic principles which
the Charter is intended to uphold. The contrary position would impose on the whole
country a regime not forged through the democratic process but by the heavy hand of the
law.
Per Cory J.: The tests put forward by Wilson J. for determining whether entities not selfevidently part of the legislative, executive or administrative branches of government are
nonetheless a part of government to which the Charter applies were agreed with. So too
were her findings that universities form part of "government" for purposes of s. 32 of the
Charter, that their mandatory retirement policies were subject to s. 15 scrutiny, and that
they contravened s. 15 because of discrimination on the basis of age. These policies,
however, survive Charter scrutiny under s. 1. Although s. 9(a) of the Human Rights
Code, 1981 contravenes s. 15(1) of the Charter by discriminating on the basis of age, it is
a reasonable limit prescribed by law under s. 1.
Per Wilson J. (dissenting): Under s. 32 the Charter applies to legislation broadly defined
and to acts of the executive or administrative branch of government. It does not apply to
private litigation divorced from any connection to government. The government/private
action distinction may be difficult to make in some circumstances but the text of the
Charter must be respected. The Charter was not intended as an alternate route to human
rights legislation for the resolution of allegations of private discrimination.
The concept of government purely restrictive of the people's freedom is not valid in
Canada. Government has also played a beneficent role. Freedom is not co-extensive with
the absence of government; rather freedom has often required the intervention and
protection of government against private action.
A concept of minimal state intervention should not be relied on to justify a restrictive
interpretation of "government" or "government action". Government today must assume
many different roles vis-à-vis its citizens and some of these cannot be best effected
directly by the apparatus of government itself. Form therefore should not be placed ahead
of substance: the Charter should not be circumvented by the simple expedient of creating
a separate entity and having it perform the role. The nature of the relationship between
that entity and government must be examined in order to decide whether when it acts it
truly is "government" which is acting.
The following questions should be asked about entities that are not self-evidently part of
the legislative, executive or administrative branches of government in order to determine
if they are subject to the Charter: (1) does the legislative, executive or administrative
branch of government exercise general control over the entity in question; (2) does the
entity perform a traditional government function or a function which in more modern
times is recognized as a responsibility of the state; (3) is the entity one that acts pursuant
to statutory authority specifically granted to it to enable it to further an objective that
government seeks to promote in the broader public interest?
Each test identifies aspects of government in its contemporary context. An affirmative
answer to one or more of these questions would be a strong indicator, but no more, that
the entity forms part of government. The parties can explain why the body in question is
51
not part of government, or in the case of a negative answer, why some other feature of the
entity not touched upon by the questions listed makes it part of government.
Given the various connections between the province and the universities, the state
exercises a substantial measure of control over universities in Canada. This control is
exercised: (1) through heavy provincial funding; (2) through the statutory basis of their
governing structure; (3) through some of their decision-making processes being subject to
judicial review; and, (4) through some of their policies and programs requiring
government approval.
The government had no direct involvement in the policy of mandatory retirement
instituted by the universities. A specific connection between the impugned act and
government, however, is not required. The universities' internal policies and practices
should have to conform to the dictates of the Constitution. The principle of academic
freedom, which is narrow in focus and protects only against the censorship of ideas, is
not incompatible with administrative control being exercised by government in other
areas.
Education at every level has been a traditional function of government in Canada as
evidenced from the legislation dealing with it both before and after Confederation. The
universities perform an important public function which government has decided to have
performed and, indeed, regards it as its responsibility to have performed. The universities
therefore form part of government for the purposes of s. 32 of the Charter and their
policies of mandatory retirement are subject to scrutiny under s. 15 of the Charter.
Section 15 is declaratory of the rights of all to equality under the justice system. If an
individual's guarantee of equality is not respected by those to whom the Charter applies,
the courts must redress that inequality.
The term "law" in s. 15 should be given a liberal interpretation encompassing both
legislative activity and policies and practices even if adopted consensually. The guarantee
of equality applies irrespective of the particular form the discrimination takes.
Discrimination, unwittingly or not, is often perpetuated through informal practices.
Section 15 therefore does not require a search for a discriminatory "law" in the narrow
context but merely a search for discrimination which must be redressed by the law.
It was not strictly necessary for the Court to come to a definitive conclusion on this
aspect of s. 15 in this case. Under the more liberal approach, the policies instituting
mandatory retirement constitute "law" within the meaning of s. 15. But even given the
most restrictive interpretation of "law", the discrimination took place under the
universities' enabling statutes and, accordingly, the denial of equality was effected in one
of the prohibited ways.
All the methods used by the universities to institute mandatory retirement constituted
"binding rules" in the broad sense. It made no difference that some of the rules came
about as a result of collective agreement negotiations. It was, in effect, the "law of the
workplace". Mandatory retirement distinguished between different individuals or
different classes of individuals in purpose or effect and this distinction gave rise to
discrimination.
The purpose of the equality guarantee is to promote human dignity. This guarantee
focuses on stereotype and prejudice as the principal vehicles of discrimination and is
52
meant to protect against them. The similarly situated test has no place in equality
jurisprudence because of the centrality of the concept of "prejudice".
The grounds enumerated in s. 15 represent some blatant examples of discrimination
which society has at last come to recognize as such. Their common characteristic is
political, social and legal disadvantage and vulnerability.
The mere fact that the distinction at issue was drawn on the basis of age did not
automatically lead to some kind of irrebuttable presumption of prejudice. Rather it
compelled a number of questions. Was there prejudice? Did the mandatory retirement
policy reflect the stereotype of old age? Was an element of human dignity at issue? Were
academics being required to retire at age 65 on the unarticulated premise that with age
comes increasing incompetence and decreasing intellectual capacity? The answer was
clearly yes and s. 15 was therefore infringed.
The universities derived their authority over employment relations with their faculty and
staff through their enabling statutes which in and of themselves do not infringe the
Charter. The action taken pursuant to them, however, lead to the violation. It was not
necessary to determine specifically whether the actual policies compelling retirement at
age 65 were "law" within the meaning of s. 1. The measures instituting mandatory
retirement, if not reasonable and demonstrably justified, would fall outside the authority
of the universities and be struck down.
The mandatory retirement policies cannot meet the minimal impairment test. The test is
only met where alternative means of dealing with the stated objective of government are
not clearly better than the one which has been adopted by government. There are better
means in this case.
In a period of economic restraint competition over scarce resources will almost always be
a factor in the government distribution of benefits. Moreover, recognition of the
constitutional rights and freedoms of some will in such circumstances almost inevitably
carry a price which must be borne by others. To treat such price as a justification for
denying the constitutional rights of the appellants would completely vitiate the purpose of
entrenching rights and freedoms. There may be circumstances, however, in which other
factors militate against interference by the courts where the legislature has attempted a
fair distribution of resources. Even if fiscal restraint simpliciter were a sufficient reason
to take a more relaxed approach to the minimal impairment requirement, the facts here do
not support the application of this standard of review.
The Oakes standard presumptively applies and only in exceptional circumstances should
the full rigors of Oakes be ameliorated. The respondent universities did not meet the onus
of showing that the application of a more relaxed test under s. 1 was appropriate. And
even if that test were appropriate, that standard was not met. Clearly better alternatives
exist given the documented success of alternative techniques.
Young academics are not the kind of "vulnerable" group contemplated in those cases
applying a relaxed standard of minimal impairment. Their exclusion flows solely from
the government's policy of fiscal restraint and not from their condition of being young or
from the nature of their relationship with the universities.
It is doubtful whether citizens should be able to contract out of equality rights having
regard to the nature of the grounds on which discrimination is prohibited in s. 15 and the
53
fact that the equality rights lie at the very heart of the Charter. It is not necessary to
decide this in this case.
Section 24(1) of the Charter confers a broad discretion upon the Court to award
appropriate and just relief, including the relief of the type sought by appellants. Ordinary
principles of contract should not necessarily dictate which remedies are appropriate and
just within the meaning of s. 24(1). The courts should strive to preserve agreements while
ridding them of their unconstitutional elements.
Reinstatement was an appropriate and just remedy for righting the wrong caused to the
appellants, especially given the paucity of academic positions available and difficulties in
relocating. An award of compensatory damages was also just and appropriate because the
loss of income and benefits sustained by the appellants arose because of the breach of
their s. 15 rights. Compensation for losses which flow as a direct result of the
infringement of constitutional rights should generally be awarded unless compelling
reasons dictate otherwise. Impecuniosity and good faith are not a proper basis on which
to deny an award of compensatory damages.
An interlocutory and a permanent injunction should not be awarded. Appellants were
"made whole" by virtue of their having been awarded the declaration, the order for
reinstatement and the order for damages.
Section 15 of the Charter is infringed by s. 9(a) of the Human Rights Code, 1981 which
strips all protection against employment discrimination based upon age from those over
the age of 65. Once government decides to provide protection it must do so in a nondiscriminatory manner and this the province failed to do. Indeed, in the field of human
rights legislation, the standard of Charter scrutiny should be more rigorous, not less, than
that applied to other types of legislation. By denying protection to these workers the Code
has the effect of reinforcing the stereotype that older employees are no longer useful
members of the labour force and their services may therefore be freely and arbitrarily
dispensed with.
Section 9(a) must be struck down in its entirety. This section did not confine itself to the
legislature's stated objective enabling mandatory retirement but extended to permit all
forms of age discrimination in the employment context for those over the age of 65. The
rational connection branch of the Oakes test was accordingly not met. The Court, in
choosing the appropriate disposition of the constitutional challenge, must be guided by
the extent to which the provision is inconsistent with the Charter.
Section 9(a) would not, in any event, pass the minimal impairment test which is the
second branch of the Oakes proportionality test. When the majority of individuals
affected by a piece of legislation will suffer disproportionately greater hardship by the
infringement of their rights, the impugned legislation does not impair the rights of those
affected by it as little as reasonably possible. Even if it is acceptable for citizens to
bargain away their fundamental human rights in exchange for economic gain, the
majority of working people in the province do not have access to such arrangements.
Per L'Heureux-Dubé J. (dissenting): Universities may not have all of the necessary
governmental touchstones to be considered public bodies and yet neither are they wholly
private in nature. Their internal decisions are subject to judicial review and their creation,
funding and conduct are governed by statute. Some public functions performed by
universities, therefore, may attract Charter review.
54
The fact that universities are substantially publicly funded cannot be easily discounted.
But the level of government funding does not establish government control over the
employment contracts at issue so as to attract Charter review. Mandatory retirement was
not adopted because of legislative or executive mandate. Furthermore, the universities'
private contracts of employment, not their delegated public functions, were alleged to
conflict with the Charter.
Wilson J.'s broad test for determining the scope of government and government action for
the purposes of s. 32(1) of the Charter was agreed with. The universities, however, do not
qualify even under that test for essentially the reasons outlined by La Forest J. An
historical analysis yields the same result as the functional approach: Canadian
universities have always fiercely defended their independence. The word "government",
as generally understood, never contemplated universities as they were and are
constituted. Therefore, questions four and five did not need to be answered.
Section 9(a) of the Human Rights Code, 1981 constitutes unreasonable and unfair
discrimination on the basis of age against persons over 65 contrary to s. 15(1) of the
Charter. It constitutes an arbitrary and artificial obstacle which prevents persons aged 65
and over from complaining about employment discrimination.
The breach of s. 15(1) cannot be justified under s. 1. There is no convincing evidence that
mandatory retirement is the quid pro quo of the tenure system. The value of tenure is
threatened by incompetence, not by the aging process. The presumption of academic
incapacity at age 65 is not well founded. The discrepancies between physical and
intellectual abilities amongst different age groups may be more than compensated for by
increased experience, wisdom and skills acquired over time. There is therefore no
pressing and substantial objective addressed by the mandatory retirement policy.
Even assuming a legitimate objective exists, the means used are too intrusive. Persons
over 65 are excluded from the protection of the Code solely because of age and,
regardless of circumstances, are denied access to protective and remedial human rights
legislation covering employment. Since retirement was set at 65, advances in medical
science and living conditions have significantly extended life expectancy and improved
the quality of life. An "elite" group of people can afford to retire, but the adverse effects
of mandatory retirement are most painfully felt by the poor. Women are particularly
affected as they are less likely to have adequate pensions. There is no reasonable
justification for a scheme which sets 65 as an age for compulsory retirement.
Section 9(a) of the Code is severable and accordingly should be struck out in its entirety
as unconstitutional.
Sex discrimination cases
Brooks v. Canada Safeway Ltd. (1989), 10 C.H.R.R. D/6183 (S.C.C.) [Eng./Fr.
23 pp.]: Sex Discrimination Includes Pregnancy -- employee disability plan
discriminated against pregnant employees
55
Keywords: SEX DISCRIMINATION -- PREGNANCY -- sick leave benefits
denied -- definition of sex discrimination includes pregnancy -- definition of family
status includes pregnancy -- BENEFITS -- sick leave benefits denied -relationship of unemployment insurance to other benefits -- INSURANCE -purpose of insurance plan
Summary: The Supreme Court, in a unanimous decision, rules that Safeway's
employee disability plan discriminated against pregnant employees and that this
constitutes discrimination because of sex within the meaning of s. 6(1) of the
1974 Manitoba Human Rights Act.
This is an appeal from a decision of the Manitoba Court of Appeal which found
that the Safeway disability plan did not discriminate against pregnant employees
and that discrimination because of pregnancy is not discrimination because of
sex.
The Safeway disability plan, which was challenged in the complaints of Susan
Brooks, Patricia Allen and Patricia Dixon, provided twenty-six weeks of disability
benefits to any worker who had worked for Safeway for three months and who
had to be absent from work for health reasons. However, the plan denied
benefits to pregnant employees during a seventeen-week period commencing
ten weeks before the week of childbirth and extending to six weeks after it.
During this time, pregnant employees who were unable to work, either because
of pregnancy-related complications or non-pregnancy-related illness, were not
eligible for benefits. UIC maternity benefits provided an imperfect substitute for
the disability benefits because they required a longer work period for eligibility,
and provided less money for a shorter time.
The Court finds that pregnancy provides a perfectly legitimate health-related
reason for not working and as such it should be compensated under the Safeway
plan. Not to compensate pregnant employees for legitimate health-related
absences goes against the purpose of human rights legislation which is to
remove unfair disadvantages suffered by groups. Though society in general
benefits from procreation, the Safeway plan places the major costs of procreation
entirely on one group -- pregnant women -- and imposes unfair disadvantages on
them.
Having found that the plan discriminated against pregnant employees, the Court
considers the second issue in this appeal: whether discrimination because of
pregnancy is discrimination because of sex. The Manitoba Court of Appeal relied
on the 1979 Supreme Court of Canada decision in Bliss v. Canada (Attorney
General) to support its finding that discrimination because of pregnancy is not
discrimination because of sex because not all women are or become pregnant.
The Supreme Court repudiates Bliss, stating that Bliss was decided wrongly or in
any case would not be decided now as it was then. The reasoning of Bliss and
the Manitoba Court of Appeal decision in this case are rejected; the fact that only
some women are affected by pregnancy-related discrimination does not mean
that it is not discrimination because of sex. Only women are affected by this form
of discrimination and they are discriminated against because of their gender.
56
The Court concludes that Safeway's disability plan discriminated against
pregnant employees because of their sex.
The Court sets aside the decision of the Manitoba Court of Appeal with costs of
the proceedings before the Manitoba courts and the Supreme Court and remits
the complaints to the Board of Adjudication for determination of the appropriate
remedy.
Canadian National Railway Co. v. Canada (Human Rights Comm.) and
Action travail des femmes (1987), 8 C.H.R.R. D/4210 (S.C.C.) [Eng./Fr. 24 pp.]
S.C.C. Upholds Affirmative Action -- Order of a Tribunal requiring Canadian
National Railway to hire one woman in every four new hires into unskilled bluecollar jobs.
Keywords: SEX DISCRIMINATION -- hiring quota -- non-traditional jobs -AFFIRMATIVE ACTION -- proportionality of program goal -- remedies of program
in excess of tribunal’s jurisdiction -- SYSTEMIC DISCRIMINATION -- pattern of
conduct discriminatory on the basis of gender -- REMEDIES -- employment hiring
quota program
DISCRIMINATION -- adverse effect discrimination -- intention to discriminate -HUMAN RIGHTS -- nature and purpose of human rights legislation
Summary: The Supreme Court of Canada unanimously reverses a decision of
the Federal Court of Appeal and reinstates an order of a Tribunal requiring
Canadian National Railway to hire one woman in every four new hires into
unskilled blue-collar jobs.
A Canadian Human Rights Tribunal ruled that Canadian National Railway had
discriminated against women in the St. Lawrence region who were seeking
employment in non-traditional blue-collar jobs. Women held only 0.7 percent of
blue-collar jobs in the region, and the Tribunal found that CN Rail's recruitment,
hiring and promotion policies prevented and discouraged women from working in
blue-collar jobs. As part of a comprehensive remedial order, the Tribunal ordered
CN Rail to hire one woman in every four new hires into blue-collar positions until
the representation of women reached 13 percent, which is the national
percentage for women working in equivalent jobs.
CN Rail appealed this decision to the Federal Court of Appeal which ruled that
the Tribunal did not have authority to impose a hiring quota on CN Rail because
s. 41(2)(a) allows the Tribunal to prescribe measures which will prevent
discriminatory practices from occurring in future, but not to remedy the
consequences of past discrimination.
The Supreme Court of Canada overturns this decision of the Federal Court,
ruling that the Tribunal was within its jurisdiction under s. 41(2)(a) of the Act in
making the order it did. Under this s., the Tribunal may order the adoption of a
special program designed "to prevent the same or a similar (discriminatory)
practice occurring in the future." The measures ordered by the Tribunal, including
57
the hiring quota, were designed to break a continuing cycle of systemic
discrimination against women. The goal is not to compensate past inactions or
even to provide new opportunities for specific individuals who have been unfairly
refused jobs or promotion in the past. Rather, an employment equity program,
much as the one ordered by the Tribunal in the present case, is an attempt to
ensure that future applicants and workers from the affected group will not face
the same insidious barriers that blocked their forebears. When confronted with
systemic discrimination, the type of order issued by the Tribunal is the only
means by which the purpose of the Canadian Human Rights Act can be met. In
any program of employment equity, there simply cannot be a radical
disassociation of "remedy" and "prevention," since there is no prevention without
some form of remedy.
The Court allows the appeal and restores in its entirety the order of the Tribunal.
A cross-appeal by CN Rail, by which it sought to set aside the entire decision and
order of the Tribunal, is dismissed.
Gould v. Yukon Order of Pioneers (1996), 25 C.H.R.R. D/87 (S.C.C.) [Eng./Fr.
55 pp.] S.C.C. Upholds Right of Club to Refuse Membership to Women -refusal of membership in a men's organization is not a discriminatory denial of
services
Keywords: SEX DISCRIMINATION -- social club membership denied -- PUBLIC
SERVICES AND FACILITIES -- membership in private and social club -membership in organization as a service offered to the public -- definition of
public services and facilities -- EXEMPTIONS -- gender -- HUMAN RIGHTS -nature and purpose of human rights legislation -- jurisdictional comparison -FUNDAMENTAL FREEDOMS -- balance between freedom of association and
other fundamental freedoms
INTERPRETATION OF STATUTES -- definition of "public services", "service",
"service offered to the public" and "discrimination" -- plain meaning rule -- textual
interpretation -- APPEALS AND JUDICIAL REVIEW -- error of law in findings on
the evidence and in interpreting legislation -- DISCRIMINATION -- definition of
discrimination
BOARDS OF INQUIRY / TRIBUNALS -- ADMINISTRATIVE TRIBUNALS -COURTS -- standard of review of decision -- standard of review of court over
administrative tribunals -- privative clause
Summary: The Supreme Court of Canada rules that a refusal of membership in
a men's organization is not a discriminatory denial of services contrary to the
Yukon Human Rights Act.
The complainant Madeleine Gould had been refused membership in the Yukon
Order of Pioneers because of her sex. She filed a complaint under the Act, which
was heard by a Board of Adjudication. The Yukon Status of Women Council
intervened in support of Gould's position. The Board of Adjudication ruled in
58
favour of Gould based upon an Agreed Statement of Facts. The Board heard no
testimony.
It was not disputed before the Board of Adjudication that the Order's action in
rejecting Gould's application amounted to discrimination on the basis of sex
contrary to s. 6(f) of the Act. The Board found that in preserving and collecting
the literature and incidents of Yukon's history, the Order was "offering or
providing services...to the public" and concluded that the discrimination was
prohibited under s. 8(a) of the Act. The Board reasoned that the public service of
collecting and preserving the Yukon's history could not be performed properly
without the active input, through membership in the Order, of female members of
the population. The Board's decision was overturned on appeal to the Yukon
Supreme Court. In turn, the Yukon Court of Appeal also found that the Board had
erred.
On appeal to the Supreme Court of Canada, the issue is whether the
membership in the Yukon Order of Pioneers constituted services offered or
provided to the public within the meaning of s. 8(a). The Yukon Human Rights
Commission argues that the collection and recording of historical materials
constitutes a public service. The Yukon Status of Women Council argues that
membership in the Order itself constitutes a bundle of public services.
A majority of the Supreme Court of Canada dismisses the Commission's appeal
and orders costs in favour of the Yukon Order of Pioneers. For the majority
Iacobucci J. finds that the relevant standard of review in this case, where the
issue is not the facts but rather the inferences to be drawn from the facts, is
correctness. Section 8(c) suggests an intention to deal with membership and
services separately. Section 8(a) does not apply to membership, and s. 8(c)
which does apply to membership is restricted to organizations that deal with
livelihood and economic relationships. Section 8(c) does not extend to the Order
which is close to the social end of a spectrum. Finally, the service offered to the
public in this case is neither membership nor the collection process but rather the
end product -- namely, the data or documents produced, which the Order
provides to the public, without discrimination.
La Forest J. writes a concurring minority opinion finding that s. 8(a) requires only
that the historical service be supplied to the public on a non-discriminatory basis.
He finds further that s. 8(a) must be read in light of rights to freedom of
expression and association. Finally, the Agreed Statement of Facts does not
indicate that the Order is distorting the history of the Yukon. La Forest J. would
apply s. 8(a) in a case where membership is offered to the public, but the Order
exists to serve its own members -- not the public -- by offering members the
opportunity to socialize in an all-male environment to enhance the emotional
development of its members.
McLachlin J. dissents on the basis that the Order provides sufficient benefits of a
public nature and importance that membership itself constitutes a service offered
or provided to the public.
L'Heureux-Dubé J. writes a separate dissent holding that correctness is not the
standard of review where the Board's decision is not based on general questions
59
of law, but rather the application of law to the facts. The Board could reasonably
conclude on the evidence that the history collection, preservation, and publication
activities of the Order represent work done for the benefit of the public, and there
is no reason to sever the preparation of the historical record from the
communication to the public.
Canada (Attorney General) v. Mossop (1993), 17 C.H.R.R. D/349 (S.C.C.)
[Eng./Fr. 61 pp.] Family Status Does Not Include Sexual Orientation --"family
status" in the Canadian Human Rights Act does not give a gay employee the
right to be covered by a benefit provision in his collective agreement
Keywords: FAMILY STATUS -- SEXUAL ORIENTATION -- BENEFITS -employee benefits denied to partner in homosexual partnership -- definition of
immediate family, common-law spouse -- employee benefits denied to partner in
homosexual partnership -- family status definition excludes homosexual
partnership -- EMPLOYMENT -- employers and unions barred from contracting
out of human rights legislation -- TRADE UNIONS -- collective agreement
incorporates discriminatory provision
APPEALS AND JUDICIAL REVIEW -- COURTS -- reasons for decision under
review considered by appellate court -- error of law by tribunal in interpreting
human rights legislation -- findings of fact not reviewable -- JURISDICTION -court of competent jurisdiction to hear appeal -- HUMAN RIGHTS TRIBUNALS -ADMINISTRATIVE TRIBUNALS -- decision subject to review in absence of
privative clause
INTERPRETATION OF STATUTES -- HUMAN RIGHTS -- definition of "family
status" and "situation famille" -- legislative intent, parliamentary debates and text
of statute in other official language as aids to interpretation -- expressio unius,
exclusio alterius -- principles used to interpret Charter applied to human rights
legislation -- plain meaning rule -- textual interpretation -- nature and purpose of
human rights legislation
Summary: In a split 4-3 decision, the majority of the Supreme Court of Canada
finds that the ground "family status" in the Canadian Human Rights Act does not
give Brian Mossop, a gay employee, the right to be covered by a benefit
provision in his collective agreement.
Mr. Mossop is an employee of the federal government who took a day off work to
attend the funeral of his lover's father. His lover is a man. The collective
agreement between Treasury Board and the Canadian Union of Professional and
Technical Employees provided for up to four days' bereavement leave upon the
death of a member of an employee's "immediate family". This term was defined
to cover a broad range of relationships, including a common-law spouse.
However, the definition of common-law spouse was restricted to a person of the
opposite sex.
Mossop applied for and was refused bereavement leave. He filed a complaint
under the Canadian Human Rights Act alleging discrimination based on the
60
ground family status. A Canadian Human Rights Tribunal ruled in his favour, and
ordered that the collective agreement be amended to include same-sex partners.
This decision was overturned by the Federal Court of Appeal, pursuant to a
review under s. 28 of the Federal Court Act. On appeal to the Supreme Court of
Canada the issues were whether the Federal Court of Appeal erred in holding
that any error of law by a human rights tribunal is reviewable on a s. 28
application, and in holding that the term "family status" in the Canadian Human
Rights Act does not include a homosexual relationship.
A majority of the Court finds that the Federal Court of Appeal had the necessary
jurisdiction to review the Tribunal's decision. Even absent a privative clause,
courts have shown curial deference to certain specialized tribunals when
interpreting their own Acts. However, a human rights tribunal does not have the
kind of expertise that should enjoy curial deference on matters other than
findings of fact. The question in this case is one of law.
The Court finds that there was no discrimination on the basis of Mossop's family
status under the Canadian Human Rights Act as it stood in June 1985 when his
lover's father died.
The decision turns solely on the question of Parliamentary intent. The Court
notes that when Parliament added the term "family status" to the Act in 1983 it
"refused" at the same time to add the ground "sexual orientation". The Court
reasons that the complainant's sexual orientation is so closely connected with
grounds that lead to a refusal of the benefit that the denial could not be
condemned as discrimination on the basis of "family status" without indirectly
introducing protection against "sexual orientation" discrimination which
Parliament specifically decided not to include. Absent a Charter challenge to its
constitutionality when Parliamentary intent is clear, courts and administrative
tribunals are not empowered to do anything else but apply the law.
The appeal is dismissed.
Janzen v. Platy Enterprises Ltd. (1989), 10 C.H.R.R. D/6205 (S.C.C.) [Eng./Fr.
31 pp.] Sexual Harassment is Sex Discrimination -- sexual advances by coworker -- definition of sexual harassment -- survey of the law
Keywords: SEXUAL HARASSMENT -- sexual advances by co-worker -definition of sexual harassment -- survey of the law -- EMPLOYMENT -constructive dismissal -- INTERPRETATION OF STATUTES -- definition of
"sexual harassment" -- LIABILITY -- vicarious liability
Summary: In a unanimous decision, the Supreme Court of Canada rules that
sexual harassment is sex discrimination, thereby overturning a decision of the
Manitoba Court of Appeal which found that sexual harassment was not sex
discrimination within the meaning of s. 6(1) of the 1974 Manitoba Human Rights
61
Act. Dianna Janzen and Tracy Govereau were employed as waitresses by
Pharos Restaurant in 1982. The Board of Adjudication appointed to hear and
decide their complaints found that they were sexually harassed by Tommy
Grammas, the cook in the restaurant, and that this constituted sex discrimination.
The Board of Adjudication also found that Platy Enterprises Ltd., the owners of
the restaurant, were liable for the discrimination and awarded compensation to
the two women. On appeal the Manitoba Court of Queen's Bench upheld the
decision of the Board of Adjudication but reduced the amounts of the awards.
The Manitoba Court of Appeal allowed the appeal by Platy Enterprises,
reasoning that because only some women are subjected to sexual harassment
and not all, it is not discrimination because of sex but rather discrimination
because of individual characteristics. This Court found that the cause of the
discrimination was the physical attractiveness of the complainants. The Supreme
Court rules that the fact that only some women, and not all women, are the
victims of sexual harassment does not mean that the conduct is not sex
discrimination. Gender need not be the sole ingredient in the discriminatory
conduct for it to be sex discrimination; it can be one factor only. The Court finds
that the key fact in the case was that it was only female employees who ran the
risk of being sexually harassed. The women were subject to a disadvantage
because of being women; no male employee in these circumstances would have
been subject to the same disadvantage.
Sexual harassment, the Court concludes, is a form of sex discrimination. It is
unwelcome conduct of a sexual nature that detrimentally affects the work
environment or leads to adverse job-related consequences for the victim of
harassment. The Court finds that Platy Enterprises must be held liable for sexual
harassment for the reasons given in Robichaud. Human rights legislation is
remedial and only the employer can provide the remedies required in these
circumstances. The offending employee, the cook, was acting "in respect of his
employment" when he harassed Dianna Janzen and Tracy Govereau.
Finally, the Court rules that the Court of Queen's Bench should not have
reduced the awards to Janzen and Govereau in light of the seriousness of their
complaints.
Zurich Insurance Co. v. Ontario (Human Rights Comm.) (1992), 16 C.H.R.R.
D/255 (S.C.C.) [Eng./Fr. 46 pp.]: Discriminatory Auto Insurance Rates Allowed
for Bona Fide Reasons: age, sex and marital status discrimination in automobile
insurance premium rates -- age group 25 and under -- male gender affected -single male discriminated against
62
PUBLIC SERVICES AND FACILITIES -- INSURANCE -- AGE DISCRIMINATION
-- SEX DISCRIMINATION -- FAMILY STATUS -- age, sex and marital status
discrimination in automobile insurance premium rates -- age group 25 and under
-- male gender affected -- single male discriminated against -- automobile
insurance contract employs discriminatory classification system
BUSINESS NECESSITY -- discriminatory insurance rates because of
economic reasons -- DISCRIMINATION -- unacceptable risk to insurance
company -- EXEMPTIONS -- age, gender, marital status as basis for determining
automobile insurance premiums
INTERPRETATION OF STATUTES -- definition of "reasonable and
bona fide grounds" -- BONA FIDE OCCUPATIONAL QUALIFICATION -definition of bona fide qualification
Summary: The majority of the Supreme Court of Canada finds that Zurich
Insurance did not discriminate against Michael Bates contrary to the Ontario
Human Rights Code by charging him higher premiums for automobile insurance
because of his age, sex, and marital status. In 1983 Michael Bates alleged that
he was discriminated against because Zurich Insurance charged him higher
premiums for his automobile insurance than a young, single, female driver with
the same driving record, or than drivers over age 25. He alleged that the rate
classification system discriminated by grouping drivers by age, sex, and marital
status and determining their premiums based on these factors.
The majority of the Supreme Court of Canada finds that charging higher
automobile insurance premiums to young, unmarried, male drivers is prima facie
discriminatory and contravenes the Ontario Human Rights Code. However, the
issue in this appeal is whether that discrimination is permitted by virtue of s. 21
of the Code. Section 21 states that the prohibitions against discrimination are not
infringed where a contract of automobile insurance differentiates on reasonable
and bona fide grounds because of age, sex, marital status, family status or
handicap.
The Board of Inquiry which originally heard Michael Bates' complaint
concluded that Mr. Bates was discriminated against because the insurer could
not establish that not using the rates based on discriminatory criteria would
undermine the essence of the business.
On appeal, the Ontario Divisional Court overturned this decision. It concluded
that the Board of Inquiry had applied the wrong test and that the words
"reasonable and bona fide" found in s. 21 should be given their plain meaning. It
ruled that at the relevant time no other statistical data was available on which to
base the risk classification of automobile drivers and that consequently there
63
were reasonable and bona fide grounds to rely on the statistics that were
available.
This decision was upheld by the Ontario Court of Appeal.
The majority of the Supreme Court of Canada in a decision written by Mr.
Justice Sopinka finds that the test in s. 21 is whether (a) a discriminatory practice
is based on sound and accepted insurance practices and (b) there is no practical
alternative.
The majority finds that the premiums were based on sound and accepted
insurance practices. Statistical evidence shows that young, male drivers are
involved in proportionately more, and more serious, accidents than other drivers.
However, the fact that there is a statistical correlation between age, sex and
marital status, and insurance losses does not fully satisfy s. 21. Human rights
values cannot be overridden by business expediency alone. To allow
discrimination simply on the basis of statistical averages would only serve to
perpetuate traditional stereotypes with all their invidious prejudices. It is
necessary therefore to consider whether there is a practical alternative in the
circumstances.
The majority finds that there was no practical alternative. Alternative statistical
bases of risk classification were not available at the time. The Superintendent of
Insurance requires reporting based on certain criteria, but at the time of the
complaint statistical data was not available to support classification based on
other relevant, non-discriminatory criteria.
The appeal is dismissed.
In a dissenting judgment, Madam Justice L'Heureux-Dubé disagrees with the
majority regarding the appropriate test to be applied under s. 21. She concludes
that the appropriate test of whether there are reasonable and bona fide grounds
for a distinction in premiums based on age, sex, and marital status should be
similar to the test set out in Brossard. Following Brossard, the distinction must:
a.be imposed honestly, and in the sincerely held belief that it accurately reflects
the cost of the risk insured,
b.be based on a rational, that is a causal, connection between the distinction and
the insured risk, and
c.be a reasonable means of identifying and classifying similar risks.
L'Heureux-Dubé finds that the discriminatory classification scheme was
imposed in good faith. However, she finds that there is no causal connection
64
established between being young, single and male and being a higher risk with
respect to automobile safety. A mere statistical correlation is not satisfactory,
because it accepts the very stereotyping that is deemed unacceptable by
human rights legislation. Age, sex, and marital status have never been controlled
or isolated in the statistics used by insurers to determine whether there is a
causal connection. The insurance industry has attempted to bridge this gap in its
knowledge by reliance on myth and stereotype. This does not satisfy the burden
of proof. In addition, L'Heureux-Dubé finds that there was a reasonable
alternative means available to the insurer. It set rates for drivers over 25 years of
age based on individual accident records and distance driven. There is no
evidence to indicate that the same criteria could not be used for rate
classification for drivers 25 and under. For these reasons, L'Heureux-Dubé finds
that Zurich Insurance has not satisfied the requirements of s. 21 of the Ontario
Human Rights Code. She would allow the appeal.
In her dissenting judgment Madam Justice McLachlin agrees with the majority
regarding the test to be applied, but concurs with L'Heureux-Dubé regarding the
result. She finds that Zurich Insurance has failed to prove that there was no
practical alternative to using discriminatory criteria as the basis for rate
classification. The fact that Zurich Insurance cannot prove that there is no
practical alternative does not mean that there is no practical alternative. It cannot
prove that there is no practical alternative because it does not have the statistical
data necessary to do so. The absence of evidence of alternatives must not be
confused with an absence of alternatives. The insurer bears the burden of
showing that no reasonable alternative exists, and through its own failure to
collect the required data it has failed to meet the burden. That it does not know if
there is a practical alternative is not a defence. Madam Justice McLachlin finds
that Zurich Insurance has not discharged the onus of proof on it. She would allow
the appeal.
R v. Hess R. v. Nguyen [1990] 2 S.C.R. 906: Criminal Code prohibiting sexual
intercourse with a female person under the age of fourteen years
Present: Lamer C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and
McLachlin JJ.
ON APPEAL FROM THE COURTS OF APPEAL FOR ONTARIO AND MANITOBA
Constitutional law -- Charter of Rights -- Fundamental justice -- Life, liberty and security
of person -- Criminal Code prohibiting sexual intercourse with a female person under the
age of fourteen years -- Absolute liability offence -- Whether s. 146(1) of the Code
infringes s. 7 of the Canadian Charter of Rights and Freedoms -- If so, whether
infringement justifiable under s. 1 of the Charter.
Constitutional law -- Charter of Rights -- Equality before the law -- Criminal Code
prohibiting sexual intercourse with a female person under the age of fourteen years -65
Whether s. 146(1) of the Code infringes s. 15 of the Canadian Charter of Rights and
Freedoms -- If so, whether infringement justifiable under s. 1 of the Charter.
Criminal law -- Sexual offences -- Sexual intercourse with female under fourteen -Whether s. 146(1) of the Criminal Code infringes the guarantee of fundamental justice
under s. 7 of the Canadian Charter of Rights and Freedoms or the right to equality before
the law under s. 15 of the Charter.
Both appellants were charged with sexual intercourse with a female person under the age
of 14 years under s. 146(1) of the Criminal Code. In the first case the trial judge quashed
the indictment against Hess on the ground that s. 146(1) infringed s. 15 of the Canadian
Charter of Rights and Freedoms. The Ontario Court of Appeal reversed the decision and
ordered a new trial. In the second case the trial judge convicted Nguyen. The Manitoba
Court of Appeal upheld the conviction. The court found that there was no violation of s.
15 and that although s. 146(1) breached s. 7 of the Charter, that breach was saved by s. 1.
These appeals are to determine whether s. 146(1) of the Code infringes s. 7 or 15 of the
Charter; and, if so, whether the infringement is justified under s. 1 of the Charter.
Held (Gonthier and McLachlin JJ. dissenting): The appeals should be allowed.
Per Lamer C.J. and Wilson, La Forest and L'Heureux-Dubé JJ.: It is a principle of
fundamental justice that a criminal offence punishable by imprisonment must have a
mens rea component. Section 7 of the Charter has elevated the requirement of mens rea
from a presumption of statutory interpretation to a constitutionally mandated element of a
criminal offence. Section 146(1) of the Code, which makes it an indictable offence
punishable by a maximum of life imprisonment for a man to have sexual intercourse with
a female under the age of 14 who is not his wife, expressly removes the defence that the
accused bona fide believed that the female was 14 or older. An offence punishable by
imprisonment that does not allow the accused a due diligence defence infringes the right
to liberty enshrined in s. 7.
Section 146(1) of the Code is not justified under s. 1 of the Charter as a reasonable limit
on an accused's s. 7 rights. While the legislative objective of protecting female children
from the harms that may result from premature sexual intercourse and pregnancy
addresses a pressing and substantial concern, and the creation of an absolute liability
offence is rationally connected to this concern, s. 146(1) does not impair the s. 7 right as
little as possible. Any deterrence value the fear of mistaking the girl's age might have
would be limited to borderline cases. Further, no evidence was presented to support the
deterrence argument and punishing the mentally innocent with a view to advancing the
objective of deterrence is fundamentally unfair. Questions of mental innocence cannot be
left to the sentencing process. Reliance on prosecutorial or judicial discretion to mitigate
the harshness of an unjust law cannot serve to justify a fundamentally unsound provision.
The fact that s. 146(1) has since been replaced by a series of measures that allow the
defence of due diligence shows that Parliament has concluded that its objective can be
effected in a manner that does not restrict an accused's right as much.
While only men may be charged under s. 146(1) of the Code, and only females may be
complainants, the section does not infringe s. 15(1) of the Charter. The offence involves
an act that as a matter of biological fact only men are capable of committing. Since a
female does not commit a physical act that can be readily equated with the one a male
commits under s. 146(1), the question of whether or not a female should be punished for
66
seeking to have sex with a male under 14 years of age is a policy matter best left to the
legislature. Finally, sodomy or buggery are biologically different acts which the
legislature has decided to deal with separately.
Section 28 of the Charter, which states that the rights and freedoms referred to in the
Charter "are guaranteed equally to male and female persons", does not prevent the
legislature from creating an offence that as a matter of biological fact can only be
committed by one sex.
Per Sopinka J.: For the reasons given by the majority, s. 146(1) of the Code infringes s. 7
of the Charter and cannot be saved under s. 1.
As found by the minority, s. 146(1) of the Code infringes s. 15 of the Charter but is saved
by s. 1.
Per Gonthier and McLachlin JJ. (dissenting): It is a principle of fundamental justice under
s. 7 of the Charter that a law restricting an individual's liberty by means such as
imprisonment must have as an essential element that the accused possess a guilty mind,
or mens rea. An essential element of s. 146(1) of the Code is that the victim be under the
age of 14 years. The Crown need not show that the accused knew the victim was less than
14, nor does his honest belief that the victim was over provide a defence. Since an
accused can be convicted under s. 146(1) although he lacks a guilty mind, the section
violates s. 7 of the Charter.
Two requirements must be met to establish infringement of s. 15 of the Charter. First, an
inequality or distinction in the treatment of members of groups must be established.
Second, this distinction must constitute discrimination. Section 146 of the Code meets
that test. It makes distinctions on the basis of sex, one of the categories enumerated in s.
15, and burdens men as it does not burden women. It also offers protection to young
females which it does not offer to young males. Section 146(1) does not constitute an
"affirmative action program" within the meaning of s. 15(2) of the Charter and it is not
immunized from scrutiny under s. 1 of the Charter.
Section 146(1) of the Code is justified under s. 1 of the Charter. First the protection of
female children from the harms that may result from premature sexual intercourse and
pregnancy and the protection of society from the impact of the social problems which
sexual intercourse with children may produce is a legislative objective of sufficient
importance to justify overriding a constitutionally protected right. Second, the means
chosen to effect the objective are reasonable and demonstrably justified in a free and
democratic society. There is a rational connection between the imposition of absolute
liability in s. 146(1) and its objective. The imposition of absolute liability, which
eliminates the defences of reasonable belief as to age and of due diligence, has an
additional deterrent effect on men contemplating intercourse with young girls. The
infringement does not extend beyond what is reasonably necessary to achieve the
objective. Finally, with respect to s. 7, the infringement on the freedom imposed by s.
146(1) of the Code is not unduly draconian, considering the great harms to which the
section is directed. The seriousness of the problems addressed by s. 146(1) and the lack
of an alternative way of dealing with them as effectively as by a provision which leaves
no defence based on ignorance of the victim's age, coupled with the fact that the lack of
mens rea in s. 146(1) is less intrusive of the accused's rights than is the case in other
absolute liability offences, lead to the conclusion that the intrusion on the accused's right
67
not to be convicted in the absence of a guilty mind represented by s. 146(1) is reasonable
and justifiable. With respect to s. 15, the means represented by s. 146(1) are also
proportionate and justified when weighed against the seriousness of the infringement of
the rights of equality of accused persons and victims. The singling out of males as the
only offenders is justified given the fact that only males can cause pregnancies, one of the
chief evils addressed by s. 146(1). The protection of female children to the exclusion of
male children may be justified on the same ground.
Discrimination by employer
Canada (Attorney General) v. Grover (No. 1) (1992), 18 C.H.R.R. D/1
(Can.Trib.) [Eng./Fr. 57 pp.] Employer Ordered to Remedy Discriminatory
Treatment-- -- employment terminated -- promotion denied -- because of race,
colour and national origin.
Keywords: RACE, COLOUR AND PLACE OF ORIGIN -- employment
terminated -- promotion denied -- RETALIATION -- intimidation of witness as
retaliation -- EVIDENCE -- balance of probabilities as standard of proof -intimidation of witness -- BURDEN OF PROOF -- onus shifts to respondent -elements of prima facie case
DAMAGES -- compensation for lost wages and injury to dignity and self-respect - commencement date and duration of interest -- REMEDIES -- apology -employment promotion -- reinstatement of employment -- COSTS -- related to
complainant hiring own council -- awarded on the Federal Court Scale
Summary: The Tribunal finds that the National Research Council of Canada
discriminated against Dr. Chander Grover because of his race, colour and
national origin.
Dr. Grover is a research physicist whose specialty is optics. He was born in India
and educated there and in France. He came to Canada in 1978 and was hired by
the National Research Council in 1981. Dr. Grover has an excellent reputation in
his field. During his first years at the Council Dr. Grover received excellent
recommendations, and regular promotions. In 1984 Dr. Grover worked with Dr.
Wyszecki of the National Research Council to establish a National Optics
Institute in Canada. He devoted part of his time to this project while also
continuing his own research at the Council. When the National Optics Institute
was functioning, Dr. Grover was offered the position of Scientific Director, but he
declined this offer in favour of returning to work full-time at the National Research
Council.
Between 1986 and 1990 Dr. Grover experienced a number of setbacks. He was
denied research funds, summer student assistance, and approval for conference
68
participation. His research group was disbanded, he was assigned to work under
a scientist who was junior to him in experience, he was denied a promotion and
eventually his employment was terminated.
The Tribunal finds that there was a concerted effort by two persons in
management, namely the directors Dr. H. Preston-Thomas and Dr. M. Laubitz, to
thwart Dr. Grover's career progression, and that Dr. Grover was the victim of
differential treatment in a number of situations. It concludes that this treatment
amounted to discrimination because of race and colour. The Tribunal also finds
that National Research Council staff attempted to intimidate witnesses to deter
them from testifying in the human rights hearing, and that these efforts amount to
a breach of the Canadian Human Rights Act's prohibition against retaliation and
intimidation.
The Tribunal orders the National Research Council to apologize to Dr. Grover for
its discriminatory treatment. It also orders the National Research Council to pay
Dr. Grover for wages lost because of the discrimination and the impact of it on
his career and promotion opportunities. It orders the parties to name a single
arbitrator within thirty days to determine the amount of this wage loss. It also
orders the Council to appoint Dr. Grover at the earliest possible opportunity to a
position of section head or group leader. It orders the Council to pay Dr. Grover
$5,000 as compensation for the humiliation he experienced, to pay interest on
the monetary award from 1986 onward, and to pay Dr. Grover's legal costs after
assessment on the Federal Court Scale.
Chiswell v. Valdi Foods 1987 Inc. (1994), 25 C.H.R.R. D/400 (Ont. Bd.Inq.)
[Eng. 8 pp.]: Joking Constitutes Discrimination-- racial slurs and harassment
by supervisor -- poisoned environment -- jokes by supervisor -- discrimination
based on stereotype -- employer's obligation to provide workplace free from
harassment
Keywords: RACE, COLOUR AND PLACE OF ORIGIN -- racial slurs and
harassment by supervisor -- poisoned environment -- jokes by supervisor -discrimination based on stereotype -- employer's obligation to provide workplace
free from harassment -- DISCRIMINATION -- intention to discriminate -insubordination as reasonable cause -- INTERPRETATION OF STATUTES -definition of "harassment" -- REMEDIES -- education program with respect to
requirements of human rights legislation
Summary: The Board of Inquiry finds that John Curry and Valdi Foods
discriminated against Paula Chiswell by creating and permitting a racially
poisoned environment to exist in the workplace while she was employed as a
cashier in the Valdi Foods store in Amherstburg, Ontario.
Paula Chiswell, who is black, was hired in January 1991 to work as a part-time
cashier in the Valdi Foods store, replacing another employee who was on
maternity leave. Ms. Chiswell was fired in March 1991 for insubordination.
69
In the period while she was employed the Board of Inquiry finds that John Curry,
the manager of the store, mimicked the accents of some of the store's
customers, "jokingly" called Ms. Chiswell "a little old black lady on a broom," told
Ms. Chiswell and another cashier who was also black that a customer "did not
know which black cashier to go to," and asked which "nigger" had moved things
on the shelves. Mr. Curry also engaged in and allowed other employees to
engage in race-based jokes, comments, and actions. The Board of Inquiry
concludes that Mr. Curry's behaviour was unconsciously discriminatory and
created a poisoned environment.
In March 1991, Ms. Chiswell, who was still on probation, asked to switch a shift,
and when asked why she said she "had to attend to business." Ms. Chiswell's
employment was terminated the following day for insubordination.
The Board of Inquiry finds that, though unconscious discriminatory behaviour will
constitute a violation of the Ontario Human Rights Code and a nondiscriminatory
environment can be considered a term of employment for everyone in Ontario,
racial harassment does not give the employee the right to be insubordinate to
management.
The Board of Inquiry finds that Ms. Chiswell's termination did not occur because
of race discrimination or because of her reaction to the harassment.
The Board of Inquiry dismisses the complaint alleging discrimination in the
termination of employment, and upholds Ms. Chiswell's complaint that she was
racially harassed while employed by Valdi Foods.
Because Mr. Curry was already demoted by Valdi Foods and moved to another
store, the Board of Inquiry declines to award any further remedy against Mr.
Curry.
However, the Board of Inquiry orders Valdi Foods to pay Ms. Chiswell $3,000 in
damages for her pain and humiliation, and to undertake a training program for its
managers in all its stores on what constitutes race discrimination and racial
harassment. Valdi Foods is ordered to report to the Ontario Human Rights
Commission what steps it has taken to comply with this order, and the Board of
Inquiry retains jurisdiction so that it can make any further order that may be
necessary to ensure that effective training takes place.
Canada ( Attorney General) v. Uzoaba (1995), 26 C.H.R.R. D/428 (F.C.T.D.)
[Eng./Fr. 7 pp.] Negative employment evaluation -- poisoned environment -racial slurs and harassment ---Court upholds Tribunal decision that race
discrimination formed basis of employer actions
Keywords: RACE, COLOUR AND PLACE OF ORIGIN -- negative employment
evaluation -- poisoned environment -- racial slurs and harassment -EMPLOYMENT -- EMPLOYMENT EVALUATION AND TESTING -- evaluation
procedures free from cultural bias -- APPEALS AND JUDICIAL REVIEW -appeal of remedy award -- REMEDIES -- employment promotion and
70
reinstatement -- LIABILITY -- correction facility liability for inmates -- HUMAN
RIGHTS -- human rights legislation conflicts with another enactment
Summary: This is an application for judicial review of a decision of a Canadian
Human Rights Tribunal. The Tribunal found that Dr. Julius Uzoaba was
discriminated against because of his race while he was employed by the
Correctional Service of Canada ("CSC"). CSC was ordered to offer Dr. Uzoaba a
position at the WP-5 level without inmate contact at the first reasonable
opportunity.
The Attorney General of Canada argues that the Tribunal erred in finding that the
CSC contravened the Canadian Human Rights Act, and further erred by ordering
the CSC to reinstate Dr. Uzoaba at the WP-5 level, which would constitute a
promotion from the WP-3 classification officer position which he held at the time
his rights were violated.
The Tribunal found that Dr. Uzoaba was discriminated against because of his
race because the CSC relied in its evaluation of Dr. Uzoaba's performance on
statements and actions of the inmates of Collins Bay Institution which were, in
part, motivated by racial bias.
The Attorney General of Canada argues that the CSC should not be held liable
for the actions of inmates at a prison. However, the Court finds that the Tribunal
did not find CSC liable because of the racist beliefs or actions of prisoners.
Rather the Tribunal found that management in its dealings with Dr. Uzoaba relied
on acts, statements and a petition from the prisoners at Collins Bay which were
racially motivated, and it was this that amounted to discrimination contrary to the
Act. The Court finds that there was evidence before the Tribunal that
discrimination was a basis for the employer's actions at least with respect to the
performance appraisal and the petition. This is sufficient to put the employer in
violation of the Act.
The Attorney General argues that the Tribunal cannot order CSC to reinstate Dr.
Uzoaba at the WP-5 level because this would constitute a promotion, and the
scheme for promotion in the Public Service Employment Act cannot be overruled
by a Human Rights Tribunal. However, the Court finds that if there is a conflict
with the Public Service Employment Act, the Human Rights Act must prevail
because it is paramount. There was evidence on which the Tribunal could base
its decision that Dr. Uzoaba should be reinstated at the WP-5 level, and that puts
the matter beyond the reach of the Court.
The application is dismissed.
Disability cases:
71
Canadian Odeon Theatres Ltd. v. Huck (1985), 6 C.H.R.R. D/2682 (Sask.
C.A.) [Eng. 13 pp.] Treatment of wheelchair user in theatre discriminatory
Keywords: DISABILITY -- PUBLIC SERVICES AND FACILITIES -- theatre
seating discriminatory for wheelchair user -- DISCRIMINATION -- intention to
discriminate -- INTERPRETATION OF STATUTES -- retrospective effect -APPEALS AND JUDICIAL REVIEW -- review of findings of fact
Summary: Giving two sets of reasons for its decision, the Court of Appeal
unanimously allows the appeal of the Saskatchewan Human Rights Commission
and Michael Huck from a decision of the Court of Queen's Bench which ruled that
Huck was not discriminated against by Canadian Odeon Theatres because of
physical disability.
Michael Huck relies on a motorized wheelchair for mobility. On May 16, 1980, he
went to the Coronet Theatre in Regina to view a movie. He was advised by
theatre personnel that he could either transfer to a seat or view the movie from
the area in front of the front row of seats. Mr. Huck is unable to transfer to a
theatre seat because of the nature of his disability. No space for wheelchair
users was available other than the area in front of the front row of seats.
Michael Huck alleged that his treatment constituted discrimination against him
because of his physical disability.
The original Board of Inquiry found in Huck's favour, ruling that discrimination had
occurred. The Board of Inquiry found that the service or facility offered to the
public was a movie and a place, whether seat or wheelchair space, from which to
view the movie. It found that the theatre discriminated against Huck when it
provided only space in front of the front row of seats for wheelchair users. The
service offered to Huck was restricted and inferior to that offered to the nondisabled public.
Canadian Odeon Theatres appealed to the Court of Queen's Bench which
reversed this initial decision. The Court of Queen's Bench found that the theatre
had not discriminated against Huck because it had provided the same service to
Huck that it provided to all other members of the public.
The Court of Queen's Bench found that there was no evidence from which the
Board could infer that the theatre offered a movie and a place to view it. Rather
the offer was of a movie and a seat. This offer was made to Huck; his failure to
make use of this offer was the result of his inability, not the result of
discrimination in the service.
The Court of Appeal rules that the nature of the service provided is a finding of
fact for the Board of Inquiry to make. It finds that there was evidence before the
Board from which it could conclude that the service provided was a movie and a
place to view it. Consequently, the court of Appeal finds that the Board did not err
in law. The determination of primary facts and the inferences drawn from them
are not reviewable by the Court.
72
However, the Court of Appeal finds that the question of whether there was
discrimination does involve a question of law and therefore there is a right of
appeal on this issue.
In defining discrimination, the Court of Appeal finds that it is the consequences of
the action of practices, not the motivation behind them which is important. Acts
which are neutral on their face, which treat individuals in the same way, are
nonetheless prohibited if they have the effect of continuing discriminatory
practices.
The Court of Appeal rejects the argument that because the complainant was
given the same treatment as any other member of the public in this situation, no
discrimination occurred. This interpretation would render the protections against
discrimination on the basis of physical disability meaningless. There would be no
situation in which a disabled person could be discriminated against in the use of
accommodation, services or facilities which are customarily available to the
public.
The Court of Appeal finds that identical treatment does not necessarily mean
equal treatment or lack of discrimination, and rules that Huck was discriminated
against because the treatment he received had the effect of excluding him or
restricting his opportunity to enjoy a public service in a way comparable to others
because of his physical disability.
The respondents argued that to apply the provisions of The Saskatchewan
Human Rights Code to this facility results in retrospective application of the
statute because the theatre was constructed prior to the proclamation of the
Code. Such an application would interfere with existing property rights.
The Court of Appeal also rejects this argument. Existing rights can be affected by
statute without the operation of the statute being retrospective. The rights of the
respondent are changed in the future. After the proclamation of the Code, the
respondent cannot discriminate because of physical disability. The Code applies
to all services and facilities customarily available to the public, not only to those
which were constructed after proclamation of the Code.
The appeal is allowed and the decision of the Board of Inquiry is restored.
Ouimette v. Lily Cups Ltd. (1990), 12 C.H.R.R. D/19 (Ont. Bd.Inq.) [Eng. 16
pp.]: employment terminated because of allergy -- flu is not a disability -definition of "handicap"
Keywords: DISABILITY -- employment terminated because of allergy -- flu is not
a disability -- INTERPRETATION OF STATUTES -- definition of "handicap" -COSTS -- respondents awarded costs where commission acted irresponsibly in
pursuing complaint
Summary: The Board of Inquiry dismisses the complaint of Darlene Ouimette
who alleged that she was discriminated against because of a disability. Ms.
73
Ouimette's employment was terminated because she was absent from work for
three days.
Ms. Ouimette was hired on a probationary basis in February 1986 as a Packer
for the Plastics Department of Lily Cups Ltd. in Scarborough. If she had
successfully completed the 60-day probationary period, Ms. Ouimette would
have become a member of the union protected by the current collective
agreement. However, Ms. Ouimette was absent for three days during her first 29
working days and she was fired on March 25, 1986. The company's policy was to
terminate the employment of any employee who was absent for three days
during the probationary period.
Ms. Ouimette testified that on March 2 she was absent because of an asthmatic
reaction to aspirin. On March 23 and 24 Ms. Ouimette was absent because she
had the flu.
Ms. Ouimette suffers from asthma. She has attacks which can be caused by
exposure to substances to which she is allergic. Ms. Ouimette testified that on
March 2 she was suffering from pain and took a pain reliever offered to her by a
friend. She gave evidence that she is allergic to aspirin which she had not
realized was in the pain reliever. It caused an asthmatic attack which made it
difficult for her to breathe. She asked a friend to inform her employer that she
would be absent.
The Board of Inquiry finds that the Commission has not proved that Ms. Ouimette
had an asthma attack on this occasion, since the only evidence is that of Ms.
Ouimette herself who says she believed she had taken a pill which had an aspirin
component. Further, if Ms. Ouimette did have an asthma attack in reaction to
aspirin the Board rules that protections in the Human Rights Code should not be
afforded to Ms. Ouimette. She had been warned by her doctor that she could be
allergic to aspirin; taking her friend's medicine without inquiry was reckless
negligence on Ms. Ouimette's part.
The Board of Inquiry also finds that the flu is not a disability within the meaning of
the Ontario Human Rights Code. It is a temporary illness which is experienced
from time to time by everyone. To include the flu within the protections afforded
by the Code would have the effect of trivializing them.
The Board finds that the Commission did not have the necessary facts to support
the allegation of discrimination in employment because of disability. It rules that
the complaint was frivolous and orders the Ontario Human Rights Commission to
pay the respondents' legal costs on a solicitor-client basis.
Canada (Attorney General) v. Robinson (1994), 21 C.H.R.R. D/113 (F.C.A.)
[Eng./Fr. 23 pp.] Soldier first policy for armed forces upheld -- employment
terminated on basis of epilepsy -- individual assessment to determine medical
74
fitness -- duty to accommodate in case of direct discrimination
Keywords: DISABILITY -- BONA FIDE OCCUPATIONAL QUALIFICATION -absence of epilepsy for Armed Forces member -- application of Etobicoke test -reasonableness of requirement
EMPLOYMENT EVALUATION AND TESTING -- OCCUPATIONAL HEALTH
AND SAFETY -- individual assessment to determine medical fitness standard -evaluation procedures to determine minimum medical standard -- safety risk to
self and others -- DISCRIMINATION -- direct discrimination -- REASONABLE
ACCOMMODATION -- duty to accommodate in case of direct discrimination
Summary: This is an appeal by the Attorney General of Canada from a decision
of a Canadian Human Rights Tribunal which ruled that James Robinson was
discriminated against by the Canadian Armed Forces when he was diagnosed as
having "complex partial epilepsy." Because of his disability, the Tribunal found
that he was refused continued employment as a Flight Engineer, not given the
opportunity to transfer to another trade, and denied the position of Alcohol
Counselor. The Tribunal also found that being "seizure-free" was not a bona fide
occupational qualification for positions other than Flight Engineer for which Mr.
Robinson was qualified.
Dealing with the preliminary issue, the Court finds that though the Tribunal dealt
with matters not specifically set out in the complaint form, this does not amount to
exceeding its jurisdiction. No evidence of prejudice flowing from consideration of
these additional matters was adduced. The Court is satisfied that the issues were
properly before the Tribunal.
The Court also finds that there was no duty to accommodate in this case,
because there is no duty to accommodate in cases of direct discrimination. The
Tribunal found that a Canadian Armed Forces "seizure-free" policy which
required all members not to be prone to seizures constitutes direct discrimination.
The Court reviews decisions of the Supreme Court of Canada dealing with the
test for a bona fide occupational qualification. It finds that the test set out in the
Ontario (Human Rights Comm.) v. Etobicoke (Borough) decision remains
unchanged by subsequent Supreme Court of Canada decisions.
In this case the onus was on the Canadian Armed Forces to show that a blanket
"seizure-free" policy is reasonably necessary, despite the fact that there are four
different classifications of epilepsy each with a different risk of employee failure.
The possibility of individual testing as a practical alternative to a discriminatory
rule should be taken into account when determining whether the rule is
reasonably necessary in the circumstances. In this case, the Tribunal must
consider whether this is a case where a practical alternative is available
considering that this rule applies to individuals who can be required to perform
combat duty.
On the question of the "soldier first" policy, there is a split in the Court's decision.
The Canadian Armed Forces argues in this case (and in others) that blanket
rules requiring that members be free of specified disabilities are bona fide
occupational requirements because any member of the Armed Forces, no matter
75
what his or her trade or position, is a "soldier first" and can be required to engage
in combat.
The Tribunal declined to apply the "soldier first" policy because it found that in a
number of ways the Canadian Armed Forces contradicted this policy in its
practice; by failing to demonstrate that persons in non-combat positions could be
called on in a time of combat; and by granting medical waivers to members who
would be in combat positions in time of war.
However, the majority of the Court finds that the obligation on members to
engage in combat if required is imposed by the National Defence Act. The statute
is binding and administrative practice cannot work a modification. Consequently,
the majority upholds the right of the Canadian Armed Forces to base its policies
regarding disability on a "soldier first" policy.
Robertson J.A., dissenting, upholds the Tribunal's ruling on this question. He
finds that the National Defence Act is enabling legislation that allows the
Canadian Armed Forces to impose "any lawful duty" on CAF members. It can
adopt any policy to determine which lawful duties should be imposed. Further, he
finds that the Canadian Armed Forces has not applied the "soldier first" policy
consistently or it has applied it in a discriminatory manner. The policy is
inconsistent with the actual practice of the Canadian Armed Forces.
In conclusion, the Court allows the appeal, sets aside the decision of the Tribunal
and remits the matter back to the Tribunal for disposition in accordance with its
reasons.
Québec (Comm. des droits de la personne) c. Coutu (No 2) (1995), 26
C.H.R.R. D/31 (Trib.Qué.) [Fr. 24 pp.]: Exploitation of disabled persons in care
facility -- nature and purpose of human rights legislation -- care facility policy
discriminatory for economic reasons -- compensation for wilful exploitation and
injury to dignity and self-respect
Keywords: DISABILITY -- exploitation of disabled persons in care facility -HUMAN RIGHTS -- nature and purpose of human rights legislation -FUNDAMENTAL FREEDOMS -- invasion of physical security and dignity -BUSINESS NECESSITY -- care facility policy discriminatory for economic
reasons -- DAMAGES -- compensation for wilful exploitation and injury to dignity
and self-respect -- COMPLAINTS -- timeliness in filing complaint
Summary: The Human Rights Commission has brought a claim against Mr.
Coutu and companies under his control seeking $2,060,000 in moral and
exemplary damages resulting from the exploitation and violation of the rights of
residents of the Centre d'ccueil Pavillon Saint-Théophile which occurred between
January 1, 1984, and March 31, 1988.
Over a period of many years, until March 31, 1988, Pavillon Saint-Théophile
administered a private nursing home with a permit issued by the health and
76
Social Services Department of Quebec. The permit in question authorized
Pavillon Saint-Théophile to operate a nursing home with eighty-eight residents.
The residents were all handicapped and social welfare recipients.
In 1985 complaints were made regarding the operations and services being
offered at Pavillon Saint-Théophile. In 1986 the Comité provincial des malades
also lodged a complaint with the Quebec Human Rights Commission regarding
(1) the use of the residents' monthly benefits for personal expenses; (2) the
residents' unpaid work, and (3) the general living conditions and services at the
centre. On March 31, 1988, the Health and Social Services Department placed
the centre under trusteeship and suspended Mr. Coutu's operations. In June
1988, the Quebec Human Rights Commission resumed its investigation, which
had been interrupted by certiorari proceedings before the Superior Court. On
January 24, 1991, following its investigation, the Human Rights Commission
concluded that the residents of Pavillon Saint-Théophile have been the victims of
exploitation and proposed that measures be taken to provide redress.
The Quebec Charter of Human Rights and Freedoms recognizes that every
person has a right to personal security, inviolability and freedom (s. 1); every
person has a right to the safeguard of his dignity, honour and reputation (s. 4);
every person has a right to privacy (s. 5) and a right to the peaceful enjoyment
and free disposition of his property (s. 6) and every person has a right to full and
equal recognition and exercise of his human rights without distinction, exclusion
or preference based on handicap (s. 10). In addition, the Charter forbids all forms
of exploitation aimed at the aged and the handicapped. The Tribunal finds that
the legislation does not only address economic exploitation, but also concerns
physical, psychological, and social or moral exploitation.
In response to one of the arguments raised by the respondents, the Tribunal
finds that neither the status of the centre nor alleged budgetary constraints can in
any manner justify the exploitation of handicapped residents in a centre. The
Tribunal also rejects the respondent’s arguments regarding the Commission's
alleged inability to sue. From the outset, the Commission's investigation was
aimed at all the companies under Mr. Coutu's control as well as Mr. Coutu
himself, and the Commission therefore has the necessary capacity and standing
to bring the present case before the Tribunal.
The evidence regarding the use of the residents' monthly social security benefits
showed, for instance, that the monthly bills for goods and services such as
haircuts, the purchase of clothing, of personal care products and films as well as
bills for social activities and outings bore no relation to the costs actually incurred
by the centre. As for the residents' forced labour, the evidence showed that
Pavillon Saint-Théophile forced the residents to perform certain duties required
for the operation of the institution without pay. The Tribunal finds that there was
nothing to justify such exploitation. Even if one were to accept the argument that
regular work brought certain advantages to the residents, this could not in
anyway justify exploitation on the part of the employer who unscrupulously
benefited from such labour without ever paying any form of remuneration.
77
The evidence also showed that staff members lacked the qualifications required
to work in such a centre. Mr. Coutu showed a preference for individuals and
employees whose only qualifications rested on family ties. The Tribunal also
finds that the residents were subjected, on a daily basis, to behaviour and
situations which violated their rights: staff members showed contempt and a lack
of respect towards the residents; the residents were regularly treated as if they
were children and often placed into humiliating situations which did not respect
their right to privacy. The residents were deprived of their rights by outdated
institutional practices that were put into place and tolerated by the administration.
Moreover, the violation of the residents' rights by Mr. Coutu and the complaints
under his control was both intentional and deliberate. The Tribunal rejects the
argument that the residents or others consented to such treatment. There can be
no consent or agreement with respect to exploitation.
The Tribunal finds, on the issue of prescription, that the claims against
Entreprises Emelda Coutu, 116467 Canada and Fondation Jean Coutu were
subject to the two-year prescription period generally applied in cases involving
delictual liability. On the other had, the claims against Mr. Coutu, Pavillon SaintThéophile and Centre récréatif J.C. were based on a failure to adhere to their
contractual obligations which is governed by a thirty-year prescription period.
The Tribunal dismisses the arguments presented by the complaints regarding the
suspension of prescription, finding that none of the parties involved were in a
position which made it absolutely impossible for them to act at an earlier time.
The last illegal act occurred on March 31, 1988, and the present suit was filed
only at the end of August 1991. Consequently, the Tribunal finds that the claims
against Entreprises Emelda Coutu, 116467 Canada and Fondation Jean Coutu
were prescribed when the application was filed and the claims against these
companies are therefore dismissed.
The Tribunal orders Jean Coutu, Centre d'ccueil Pavillon Saint-Théophile Inc.
and Centre récréatif J.C. pour déficients mentaux to pay the sum of $1,413,300
for moral damages suffered by the residents of Pavillon Saint-Théophile and the
additional sum of $141,330 for punitive damages, with interest from the date of
the present judgment and costs.
Ripplinger v. Ryan (1996), 24 C.H.R.R. D/435 (Sask. C.A.) [Eng. 6 pp.]
Barrier-free access for wheelchair user -- restaurant service denied to wheelchair
user -- refusal to provide barrier-free access based on economic reasons -- duty
to accommodate short of undue hardship-- compliance with act does not
preclude human rights subscriptions violation
Keywords:
DISABILITY -- barrier-free access for wheelchair user -- restaurant service
denied to wheelchair user -- BUSINESS NECESSITY -- refusal to provide
barrier-free access based on economic reasons -- REASONABLE
78
ACCOMMODATION -- duty to accommodate short of undue hardship -- PUBLIC
SERVICES AND FACILITIES -- art gallery and restaurant
APPEALS AND JUDICIAL REVIEW -- error of law in findings on the evidence -DISCRIMINATION -- officially induced error as reasonable cause for
discrimination
Summary: This is an appeal by Judith Anne Ryan from a decision of the Court of
Queen's Bench. The Court of Queen's Bench overturned a decision of a Board of
Inquiry which ruled that Ms. Ryan was discriminated against because of her
disability because the premises of the Collections Fine Art Gallery were not
accessible to persons using wheelchairs.
Ms. Ryan filed a complaint in 1991 when she learned that renovations were
being made to the Collections Fine Art Gallery but there were apparently no
plans to make it accessible. The renovations had the effect of joining together
two structures, to make a gallery and cafe complex which allowed customers to
move from one to the other indoors.
The renovations were completed in compliance with the Uniform Building and
Accessibility Standards Act and with permits issued by the City of Regina, but the
building was not made accessible.
The Board of Inquiry found that the fact that the renovations complied with the
Uniform Building and Accessibility Standards Act did not preclude its finding that
The Saskatchewan Human Rights Subscriptions was violated. The Subscriptions
takes precedence by virtue of s. 44 which gives it paramountcy over other
legislation. The Board of Inquiry also concluded that given the financial status of
Mr. Ripplinger's business operation, making the gallery accessible was not an
undue hardship.
On appeal, the Court of Queen's Bench ruled that the Board of Inquiry erred by
embarking on an inquiry into the whole complex when the complaint form Ms.
Ryan signed referred only to the Gallery on Smith Street. The Court also found
that the Board of Inquiry deal with information regarding the business operation
as a whole rather than financial information regarding the Smith Street operation,
and consequently it could not properly assess whether there was an undue
hardship. The Court of Queen's Bench set aside the decision of the Board of
Inquiry.
The Court of Appeal finds, however, that the Board of Inquiry did not err in
determining that the joined buildings were to be treated as one business
undertaking. Ms. Ryan's complaint was made after she saw renovations being
made to the Gallery that would join the two buildings together. She was
complaining that Mr. Ripplinger failed to make the whole complex accessible.
The respondent was aware of this and was not prejudiced by the Board's
consideration of the whole complex.
The Court of Appeal also rejects the respondent's argument that his compliance
with the Uniform Building and Accessibility Standards Act is a complete answer
to the complaint. The UBAS Act states specifically that compliance with its
requirements does not authorize constructing a building that does not comply
with any other Act or law.
79
Finally, the Court of Appeal finds that the Board of Inquiry correctly ruled that Mr.
Ripplinger did not prove an undue hardship. The order of the Board of Inquiry
simply requires Mr. Ripplinger to cease the contravention and creates the
opportunity for a negotiated settlement in consultation with the Commission.
It is conceivable that if a negotiated settlement is not concluded, the Board of
Inquiry may issue an order; and Mr. Ripplinger may be able to argue that such an
order creates an undue hardship. It will be up to him to prove his case at that
time.
The appeal is allowed and the decision of the Board of Inquiry is restored.
Gibbs v. Battlefords and Dist. Co-operative Ltd. (1996), 27 C.H.R.R. D/87
(S.C.C.) [Eng./Fr. 22 pp.]: disability benefits denied on the basis of nervous
disorder -- distinction between mental and physical disability -- mentally disabled
employee entitled to same medical benefits as other disabled employees
Keywords: DISABILITY -- disability benefits denied on the basis of nervous
disorder -- distinction between mental and physical disability -- mentally disabled
employee entitled to same medical benefits as other disabled employees -BENEFITS -- sick leave benefits denied -- INSURANCE -- disability benefits
refused on the basis of medical history -- purpose of insurance plan -EMPLOYMENT -- definition of term or condition of employment -DISCRIMINATION -- definition of discrimination -- HUMAN RIGHTS -- nature
and purpose of -- INTERPRETATION OF STATUTES -- definition of "disability",
"mental disorder" and "term or condition of employment"
Summary: The Supreme Court of Canada dismisses an appeal by Battlefords
and District Co-operative Limited from a decision of the Saskatchewan Court of
Appeal. The Court of Appeal upheld a Board of Inquiry ruling that the Cooperative discriminated against Betty-Lu Clara Gibbs on the ground of mental
disability because of the terms of an employment-related insurance plan.
Ms. Gibbs is an employee of the Battlefords and District Co-operative Limited.
She became disabled in 1987 as a result of a mental disorder and was unable to
work. Ms. Gibbs used up her sick leave, and then was paid benefits under an
insurance policy that was part of the benefit package provided to employees
pursuant to their collective agreement.
Under the terms of the policy, any employee who became unable to work was
provided with replacement income for as long as the disability prevented the
employee from working or until age 65. However, if the disability in question was
a mental disability, the replacement income would terminate after two years,
even if the person was unable to resume employment, unless the employee
remained in a mental institution. Because of this provision, Ms. Gibbs's insurance
benefits were terminated in March 1990. Had her disability been physical in
nature, the benefits would have continued until age 65 whether or not Ms. Gibbs
was in an institution.
80
The issue in this appeal is: does the Co-operative's disability plan, which places
limitations on benefits for mental disability, but not for other kinds of disability,
discriminate on the basis of disability contrary to s. 16(1) of The Saskatchewan
Human Rights Subscriptions?
The Co-operative argues that there was no discrimination based on mental
disability, since the relevant term or condition of employment was an entitlement
to insurance benefits under the policy, which all employees received equally.
Given the contingent nature of insurance, when the contract was entered into
each insured employee enjoyed exactly the same protection from the harm of
future disability.
Sopinka J., writing for the Court, rejects this argument. He finds that while each
employee enjoyed the same "peace of mind" from the insurance before any risk
materialized, the insurance plan also provided a significant benefit to employees
after the risk of disability materialized and this benefit was not distributed equally.
Those with mental disabilities received less than those with physical disabilities.
It would be inimical to the objects of human rights legislation if a practice could
be immunized from scrutiny under this legislation simply because its
discriminatory effects are contingent on uncertain future events. In Ms. Gibbs's
case, the discrimination was deferred until she became vulnerable and most in
need of human rights protection.
The Co-operative also argues that the insurance plan should not be viewed as
discriminatory since the appropriate comparison is not between the mentally
disabled and the physically disabled but rather between the disabled generally
and the able-bodied. The purpose of the Subscriptions is to prevent
discrimination against the disabled as compared to able-bodied persons, not as
compared to other disabled persons.
The Court also rejects this argument. The "mental disability-physical disability"
comparison is appropriate. First of all, to find that there is discrimination on the
basis of disability it is not necessary to find that all disabled persons are
mistreated equally. It is not fatal to a finding of discrimination that not all persons
in the group bearing the relevant characteristic have been discriminated against.
Discrimination against a sub-set of the group, in this case those with a mental
disability, can be considered discrimination against persons with disabilities.
In addition, if the comparator group is all persons without a disability, a claim of
discrimination on the basis of inadequate disability insurance benefits is not likely
to be successful. Such a result seems contrary to the purpose of human rights
legislation, especially given the particular historical disadvantage facing mentally
disabled persons.
In this case, the insurance plan was designed to insure employees against the
income-related consequences of becoming disabled and unable to work. The
benefits for those with mental disabilities and those with physical disabilities were
designed for the same purpose: to insure against the income-related
consequences of being unable to work because of disability. Consequently, it is
appropriate to compare the benefits available to those with mental disabilities to
the benefits available to those with physical disabilities. The true character or
81
under-lying rationale of the insurance plan was to provide income replacement
for those unable to work because of disability, and consequently limiting benefits
on the basis of mental disability are discriminatory.
The Court also finds that the insurance context which was relevant in Zurich
Insurance Co. v. Ontario (Human Rights Comm.) is not relevant here. In Zurich
the company led evidence to show that there was a justification for the
discrimination in its automobile insurance scheme because it would have been
impractical to base the calculation of the risk of accidents on any other data than
that related to sex and age. In this case, the limit on benefits available to a
mentally disabled employee unless he or she is institutionalized appears to be
grounded on a stereotypical assumption concerning the behaviour of mentally
disabled persons.
The appeal is dismissed.
In a separate judgment, McLachlin J., who agrees with Sopinka J. regarding the
outcome, states her concerns with respect to the formulation of the purpose test.
Under the proposed test, discrimination is determined by examining the true
purpose of the insurance plan. Discrimination will exist if benefits received for the
same purpose differ on the basis of a characteristic not relevant to the purpose of
the insurance scheme. In the instant case, the defined purpose of the scheme is
to insure employees against the income-related consequences of becoming
disabled and unable to work. When the purpose is framed broadly with reference
to the need which the plan seeks to address and without reference to specific
injuries or specific groups of people, the nature of the disability becomes an
irrelevant characteristic. Therefore, to distinguish benefits on the basis of
disability constitutes discrimination.
However, if it is open to the employer and employee to define the purpose of a
benefit narrowly by reference to a target group, like alcoholics, as Sopinka J.
suggests it would be in his judgment, the result may be to condone exclusion of
many valid claims and permit de facto discrimination against others similarly
disabled from other causes. McLachlin J. concludes that in defining the purpose
of schemes, reference should not be made to specific disabilities and specific
target groups, but rather to the broad purposes. Subject to these concerns, she
agrees with the judgment of Sopinka J.
Eaton v. Brant County Board of Education [1997] 1 S.C.R. 241: Physical
disability -- Child with physical disabilities identified as being an "exceptional
pupil" -- Child placed in neighbourhood school on trial basis -- Child's best
interests later determined to be placement in special education class -- Whether
placement in special education class and process of doing so absent parental
consent infringing child's equality rights
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
82
Constitutional law -- Charter of Rights -- Equality rights -- Physical disability -- Child
with physical disabilities identified as being an "exceptional pupil" -- Child placed in
neighbourhood school on trial basis -- Child's best interests later determined to be
placement in special education class -- Whether placement in special education class and
process of doing so absent parental consent infringing child's s. 15 (equality) Charter
rights -- If so, whether infringement justifiable under s. 1 -- Whether Court of Appeal
erred in considering constitutional issues absent notice required by Courts of Justice Act
-- Canadian Charter of Rights and Freedoms, ss. 1, 15 -- Courts of Justice Act, R.S.O.
1990, c. C.43, s. 109(1) -- Education Act, R.S.O. 1990, c. E.2, ss. 1(1), 8(3) -- R.R.O.
1990, Reg. 305, s. 6.
The respondents are the parents of a 12-year-old girl with cerebral palsy who is unable to
communicate through speech, sign language or other alternative communication system,
who has some visual impairment and who is mobility impaired and mainly uses a
wheelchair. Although identified as an "exceptional pupil" by an Identification, Placement
and Review Committee (IPRC), the child, at her parents' request, was placed on a trial
basis in her neighbourhood school. A full-time assistant, whose principal function was to
attend to the child's needs, was assigned to the classroom. After three years, the teachers
and assistants concluded that the placement was not in the child's best interests and
indeed that it might well harm her. When the IPRC determined that the child should be
placed in a special education class, the decision was appealed by the child's parents to a
Special Education Appeal Board which unanimously confirmed the IPRC decision. The
parents appealed again to the Ontario Special Education Tribunal (the "Tribunal"), which
also unanimously confirmed the decision. The parents then applied for judicial review to
the Divisional Court, Ontario Court of Justice (General Division), which dismissed the
application. The Court of Appeal allowed the subsequent appeal and set aside the
Tribunal's order. At issue here are whether the Court of Appeal erred (1) in proceeding,
proprio motu and in the absence of the required notice under s. 109 of the Courts of
Justice Act, to review the constitutional validity of the Education Act, and (2) in finding
that the decision of the Tribunal contravened s. 15 of the Canadian Charter of Rights and
Freedoms.
Held: The appeal should be allowed.
Per: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and
Major JJ.: The purpose of s. 109 of the Courts of Justice Act is obvious. In our
constitutional democracy, it is the elected representatives of the people who enact
legislation. While the courts have been given the power to declare invalid laws that
contravene the Charter and are not saved under s. 1, this is a power not to be exercised
except after the fullest opportunity has been accorded to the government to support its
validity. To strike down by default a law passed by and pursuant to act of Parliament or
the legislature would work a serious injustice not only to the elected representatives who
enacted it but also to the people. Moreover, this Court has the ultimate responsibility of
determining whether an impugned law is constitutionally infirm and it is important that
the Court, in making that decision, have the benefit of a record that is the result of
thorough examination of the constitutional issues in the courts or tribunal from which the
appeals arise.
83
Two conflicting strands of authority dealing with the issue of the legal effect of the
absence of notice exist. One favours the view that in the absence of notice the decision is
ipso facto invalid, while the other holds that a decision in the absence of notice is
voidable upon a showing of prejudice. It is not necessary to express a final opinion as to
which approach should prevail (although the former was preferred) because the decision
of the Court of Appeal is invalid under either strand. No notice or any equivalent was
given in this case and in fact the Attorney General and the courts had no reason to believe
that the Act was under attack. Clearly, s. 109 was not complied with and the Attorney
General was seriously prejudiced by the absence of notice.
While there has not been unanimity in the judgments of the Court with respect to all the
principles relating to the application of s. 15 of the Charter, the s. 15 Charter issue can be
resolved on the basis of principles in respect of which there is no disagreement. Before a
violation of s. 15 can be found, the claimant must establish that the impugned provision
creates a distinction on a prohibited or analogous ground which withholds an advantage
or benefit from, or imposes a disadvantage or burden on, the claimant. The principles that
not every distinction on a prohibited ground will constitute discrimination and that, in
general, distinctions based on presumed rather than actual characteristics are the
hallmarks of discrimination have particular significance when applied to physical and
mental disability.
The principal object of certain of the prohibited grounds is the elimination of
discrimination resulting from the attribution of untrue characteristics based on
stereotypical attitudes relating to immutable conditions such as race or sex. In the case of
disability, this is one of the objectives. The other equally important objective seeks to
take into account the true characteristics of this group which act as headwinds to the
enjoyment of society's benefits and to accommodate them. Exclusion from the
mainstream of society results from the construction of a society based solely on
"mainstream" attributes to which the disabled will never be able to gain access. It is the
failure to make reasonable accommodation, to fine-tune society so that its structures and
assumptions do not prevent the disabled from participation, which results in
discrimination against the disabled. The discrimination inquiry which uses "the
attribution of stereotypical characteristics" reasoning is simply inappropriate here. It is
recognition of the actual characteristics and reasonable accommodation of these
characteristics which is the central purpose of s. 15(1) in relation to disability.
Disability, as a prohibited ground, differs from other enumerated grounds such as race or
sex because there is no individual variation with respect to these grounds. Disability
means vastly different things, however, depending upon the individual and the context.
This produces, among other things, the "difference dilemma" whereby segregation can be
both protective of equality and violative of equality depending upon the person and the
state of disability.
The Tribunal set out to decide which placement was superior, balanced the child's various
educational interests taking into account her special needs, and concluded that the best
possible placement was in the special class. It also alluded to the requirement of ongoing
assessment of the child's best interests so that any changes in her needs could be reflected
in the placement. A decision reached after such an approach could not be considered a
burden or a disadvantage imposed on a child.
84
For a child who is young or unable to communicate his or her needs or wishes, equality
rights are being exercised on that child's behalf, usually by his or her parents. Moreover,
the requirements for respecting these rights in this setting are decided by adults who have
authority over this child. The decision-making body, therefore, must further ensure that
its determination of the appropriate accommodation for an exceptional child be from a
subjective, child-centred perspective -- one which attempts to make equality meaningful
from the child's point of view as opposed to that of the adults in his or her life. As a
means of achieving this aim, it must also determine that the form of accommodation
chosen is in the child's best interests. A decision-making body must determine whether
the integrated setting can be adapted to meet the special needs of an exceptional child.
Where this is not possible, that is where aspects of the integrated setting which cannot
reasonably be changed interfere with meeting the child's special needs, the principle of
accommodation will require a special education placement outside of this setting. For
older children and those who are able to communicate their wishes and needs, their own
views will play an important role in the determination of best interests. For younger
children and for persons who are either incapable of making a choice or have a very
limited means of communicating their wishes, the decision-maker must make this
determination on the basis of the other evidence before it.
The application of a test designed to secure what is in the best interests of the child will
best achieve that objective if the test is unencumbered by a Charter-mandated
presumption favouring integration which could be displaced if the parents consented to a
segregated placement. The operation of a presumption tends to render proceedings more
technical and adversarial. Moreover, there is a risk that in some circumstances, the
decision may be made by default rather than on the merits as to what is in the best
interests of the child. That a presumption as to the best interests of a child is a
constitutional imperative must be questioned given that it could be automatically
displaced by the decision of the child's parents. This Court has held that the parents' view
of their child's best interests is not dispositive of the question.
The child's placement which was confirmed by the Tribunal did not constitute the
imposition of a burden or disadvantage nor did it constitute the withholding of a benefit
or advantage. Neither the Tribunal's order nor its reasoning can be construed as a
violation of s. 15. The approach that the Tribunal took is one that is authorized by the
general language of s. 8(3) of the Act. In the circumstances, it is unnecessary and
undesirable to consider whether the general language of s. 8(3) or the Regulations would
authorize some other approach which might violate s. 15(1).
Per: Lamer C.J. and Gonthier J.: Sopinka J.'s analysis of the arguments made under s.
15(1) of the Charter and his conclusion that the child's equality rights were not violated
were agreed with.
Slaight Communications Inc. v. Davidson was incorrectly applied below in that the Court
of Appeal found the constitutional imperfection of the Education Act to reside in what the
Act does not say -- the statute must authorize what it does not explicitly prohibit,
including unconstitutional conduct. Slaight Communications, however, held exactly the
opposite -- that statutory silences should be read down to not authorize breaches of the
Charter, unless this cannot be done because such an authorization arises by necessary
implication. Whatever section of the Act or of Regulation 305 grants the authority to the
85
Tribunal to place exceptional students, Slaight Communications would require that any
open-ended language in that provision (if there were any) be interpreted so as to not
authorize breaches of the Charter.
Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624: -Physical disability -- Publicly funded medicare -- Medicare not providing for sign
language interpreters -- Whether, and in what manner, the Charter applies to the
decision not to provide sign language interpreters for the deaf as part of the
publicly funded scheme for the provision of medical care
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Equality rights -- Physical disability -- Publicly
funded medicare -- Medicare not providing for sign language interpreters -- Whether,
and in what manner, the Charter applies to the decision not to provide sign language
interpreters for the deaf as part of the publicly funded scheme for the provision of
medical care -- Whether not providing for this service under Acts establishing medicare
and hospitalization infringing s. 15(1) equality rights of disabled -- If so, whether
legislation saved under s. 1 -- Appropriate remedy if Charter violation found -- Canadian
Charter of Rights and Freedoms, ss. 1, 15(1) --Hospital Insurance Act, R.S.B.C. 1979, c.
180 (now R.S.B.C. 1996, c. 204), ss. 3(1), 5(1), 9, 10(1), 29(b) -- Medical and Health
Care Services Act, S.B.C. 1992, c. 76 (now the Medicare Protection Act, R.S.B.C. 1996,
c. 286), ss. 1, 4(1)(c), (j), 6, 8.
Medical care in British Columbia is delivered through two primary mechanisms. Hospital
services are funded under the Hospital Insurance Act by the government which
reimburses them for the medically required services provided to the public. Funding for
medically required services delivered by doctors and other health care practitioners is
provided by the province's Medical Services Plan (established and regulated by the
Medical and Health Care Services Act). Neither program pays for sign language
interpretation for the deaf.
Each of the appellants was born deaf and their preferred means of communication is sign
language. They contend that the absence of interpreters impairs their ability to
communicate with their doctors and other health care providers, and thus increases the
risk of misdiagnosis and ineffective treatment.
The appellants unsuccessfully sought a declaration in the Supreme Court of British
Columbia that the failure to provide sign language interpreters as an insured benefit under
the Medical Services Plan violates the s. 15(1) of the Canadian Charter of Rights and
Freedoms. A majority of the Court of Appeal dismissed an appeal from this judgment.
The constitutional questions before this Court queried: (1) whether the definition of
"benefits" in s. 1 of the Medicare Protection Act infringed s. 15(1) of the Charter by
failing to include medical interpreter services for the deaf, (2) if so, whether the
impugned provision was saved under s. 1 of the Charter, (3) whether ss. 3, 5 and 9 of the
86
Hospital Insurance Act and the Regulations infringed s. 15(1) by failing to require that
hospitals provide medical interpreter services for the deaf, and (4) if the answer to 3 is
yes, whether the impugned provisions were saved under s. 1. Also at issue were whether,
and in what manner, the Charter applies to the decision not to provide sign language
interpreters for the deaf as part of the publicly funded scheme for the provision of
medical care and, if a Charter violation were found, what the appropriate remedy would
be.
Held: The appeal should be allowed. The first and third constitutional questions were
answered in the negative. It was not necessary to answer the second and fourth
constitutional questions.
The Charter applies to provincial legislation in two ways. Firstly, legislation may be
found to be unconstitutional on its face because it violates a Charter right and is not
saved by s. 1. Secondly, the Charter may be infringed, not by the legislation itself, but by
the actions of a delegated decision-maker in applying it. The legislation remains valid but
a remedy for the unconstitutional action may be sought pursuant to s. 24(1) of the
Charter.
In the present case the question whether the alleged breach of s. 15(1) arises from the
impugned legislation itself or from the action of entities exercising decision-making
authority pursuant to that legislation must be explored. The failure of the Medical and
Health Care Services Act to provide expressly for sign language interpretation as a
medically required service does not violate s. 15(1) of the Charter. The legislation simply
does not, either expressly or by necessary implication, prohibit the Medical Services
Commission from determining that sign language interpretation is a "medically required"
service and hence a benefit under the Act. It is the decision of the authority which has
been delegated the power to determine whether a service qualifies as a benefit that is
constitutionally suspect, not the statute itself. The discretion accorded to the Medical
Services Commission does not necessarily or typically threaten the equality rights set out
in s. 15(1) of the Charter. This possibility that the Commission can infringe these rights
in the exercise of its authority is, however, incidental to the purpose of discretion, which
is to ensure that all medically required services are paid for by the government.
The Hospital Insurance Act should be read in conformity with s. 15(1). Hospitals are left
with substantial discretion as to how to provide the services listed in the legislation. No
individual hospital is required to offer all of the services set out in s. 5(1) of the Act.
Further, individual hospitals are given considerable discretion by the Act as to how the
services they decide to provide are delivered and they are not precluded from supplying
sign language interpreters. The fact that this Act does not expressly mandate the
provision of sign language interpretation does not render it constitutionally vulnerable.
The potential violation of s. 15(1) inheres in the discretion wielded by a subordinate
authority, not the legislation itself.
Legislatures may not enact laws that infringe the Charter and they cannot authorize or
empower another person or entity to do so. Even though a legislature may give authority
to a body that is not subject to the Charter, the Charter applies to all the activities of
government whether or not they may be otherwise characterized as "private" and it may
apply to non-governmental entities in respect of certain inherently governmental actions.
Governments, just as they are not permitted to escape Charter scrutiny by entering into
87
commercial contracts or other "private" arrangements, should not be allowed to evade
their constitutional responsibilities by delegating the implementation of their policies and
programs to private entities.
Two important points must be made with respect to this principle. First, the mere fact that
an entity performs what may loosely be termed a "public function", or the fact that a
particular activity may be described as "public" in nature, will not be sufficient to bring it
within the purview of "government" for the purposes of s. 32 of the Charter. In order for
the Charter to apply to a private entity, it must be found to be implementing a specific
governmental policy or program.
The second important point concerns the precise manner in which the Charter may be
held to apply to a private entity. First, it may be determined that the entity is itself
"government" for the purposes of s. 32. This involves an inquiry into whether the entity
whose actions have given rise to the alleged Charter breach can, either by its very nature
or in virtue of the degree of governmental control exercised over it, properly be
characterized as "government" within the meaning of s. 32(1). In such cases, all of the
activities of the entity will be subject to the Charter, regardless of whether the activity in
which it is engaged could, if performed by a non-governmental actor, correctly be
described as "private". Second, an entity may be found to attract Charter scrutiny with
respect to a particular activity that can be ascribed to government. This demands an
investigation not into the nature of the entity whose activity is impugned but rather into
the nature of the activity itself. In such cases, the quality of the act at issue, rather than
the quality of the actor, must be scrutinized.
Hospitals, in providing medically necessary services, carry out a specific governmental
objective. The Hospital Insurance Act is not simply a mechanism to prevent hospitals
from charging for their services. Rather, it provides for the delivery of a comprehensive
social program. Hospitals are merely the vehicles the legislature has chosen to deliver this
program.
A direct and precisely defined connection exists between a specific government policy
and the hospital's impugned conduct. The alleged discrimination --the failure to provide
sign language interpretation -- is intimately connected to the medical service delivery
system instituted by the legislation. The provision of these services is not simply a matter
of internal hospital management; it is an expression of government policy. The
Legislature, upon defining its objective as guaranteeing access to a range of medical
services, cannot evade its obligations under s. 15(1) of the Charter to provide those
services without discrimination by appointing hospitals to carry out that objective. In so
far as they do so, hospitals must conform with the Charter.
As well, the Medical Services Commission, in determining whether a service is a benefit
under the Medical and Health Care Services Act, implements a government policy,
namely, to ensure that all residents receive medically required services without charge.
There is no doubt that in exercising this discretion the Commission acts in governmental
capacity and is subject to the Charter.
As deaf persons, the appellants belong to an enumerated group under s. 15(1) -- the
physically disabled. There is also no question that the distinction drawn between the
appellants and others is based on a personal characteristic that is irrelevant to the
functional values underlying the health care system -- the promotion of health, the
88
prevention and treatment of illness and disease, and the realization of those values
through a publicly funded health care system.
The only question in this case is whether the appellants have been afforded "equal benefit
of the law without discrimination" within the meaning of s. 15(1) of the Charter. On its
face, the medicare system applies equally to the deaf and hearing populations. The
appellants' claim, nevertheless, is one of "adverse effects" discrimination, protection
against which is provided by s. 15(1) of the Charter.
A discriminatory purpose or intention is not a necessary condition of a s. 15(1) violation.
A legal distinction need not be motivated by a desire to disadvantage an individual or
group in order to violate s. 15(1). It is sufficient if the effect of the legislation is to deny
someone the equal protection or benefit of the law.
Adverse effects discrimination is especially relevant in the case of disability. In the
present case the adverse effects suffered by deaf persons stem not from the imposition of
a burden not faced by the mainstream population, but rather from a failure to ensure that
deaf persons benefit equally from a service offered to everyone. Once it is accepted that
effective communication is an indispensable component of the delivery of a medical
service, it is much more difficult to assert that the failure to ensure that deaf persons
communicate effectively with their health care providers is not discriminatory. To argue
that governments should be entitled to provide benefits to the general population without
ensuring that disadvantaged members of society have the resources to take full advantage
of those benefits bespeaks a thin and impoverished vision of s. 15(1). It is belied, more
importantly, by the thrust of this Court's equality jurisprudence.
Section 15(1) makes no distinction between laws that impose unequal burdens and those
that deny equal benefits. The government will be required (at least at the s. 15(1) stage of
analysis) to take special measures to ensure that disadvantaged groups are able to benefit
equally from government services. If there are policy reasons in favour of limiting the
government's responsibility to ameliorate disadvantage in the provision of benefits and
services, those policies are more appropriately considered in determining whether any
violation of s. 15(1) is saved by s. 1 of the Charter.
The principle that discrimination can accrue from a failure to take positive steps to ensure
that disadvantaged groups benefit equally from services offered to the general public is
widely accepted in the human rights field. It is also a cornerstone of human rights
jurisprudence that the duty to take positive action to ensure that members of
disadvantaged groups benefit equally from services offered to the general public is
subject to the principle of reasonable accommodation. In s. 15(1) cases this principle is
best addressed as a component of the s. 1 analysis. Reasonable accommodation, in this
context, is generally equivalent to the concept of "reasonable limits". It should not be
employed to restrict the ambit of s. 15(1).
The failure of the Medical Services Commission and hospitals to provide sign language
interpretation where it is necessary for effective communication constitutes a prima facie
violation of the s. 15(1) rights of deaf persons. This failure denies them the equal benefit
of the law and discriminates against them in comparison with hearing persons. Although
the standard set is broad, this is not to say that sign language interpretation will have to be
provided in every medical situation. The "effective communication" standard is a flexible
one, and will take into consideration such factors as the complexity and importance of the
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information to be communicated, the context in which the communications will take
place and the number of people involved. For deaf persons with limited literacy skills,
sign language interpretation can be surmised to be required in most cases.
The application of the Oakes test requires close attention to the context in which the
impugned legislation operates. In the present case, the failure to provide sign language
interpreters would fail the minimal impairment branch of the Oakes test under a
deferential approach. It was, therefore, unnecessary to decide whether in this "social
benefits" context, where the choice is between the needs of the general population and
those of a disadvantaged group, a deferential approach should be adopted. At the same
time, the leeway to be granted to the state is not infinite. Governments must demonstrate
that their actions infringe the rights in question no more than is reasonably necessary to
achieve their goals. In the present case, the government has manifestly failed to
demonstrate that it had a reasonable basis for concluding that a total denial of medical
interpretation services for the deaf constituted a minimum impairment of their rights.
Moreover, it is purely speculative to argue that the government, if required to provide
interpreters for deaf persons, will also have to do so for other non-official language
speakers, thereby increasing the expense of the program dramatically. The possibility that
a s. 15(1) claim might be made by members of the latter group cannot justify the
infringement of the constitutional rights of the deaf. The appellants ask only for equal
access to services that are available to all. The respondents have presented no evidence
that this type of accommodation, if extended to other government services, will unduly
strain the fiscal resources of the state. The government has not made a "reasonable
accommodation" of the appellants' disability nor has it accommodated the appellants'
need to the point of undue hardship.
The appropriate and just remedy was to grant a declaration that this failure is
unconstitutional and to direct the government of British Columbia to administer the
Medical and Health Care Services Act and the Hospital Insurance Act in a manner
consistent with the requirements of s. 15(1). A declaration, as opposed to some kind of
injunctive relief, was the appropriate remedy because there are myriad options available
to the government that may rectify the unconstitutionality of the current system. It was
appropriate to suspend the effectiveness of the declaration for six months to enable the
government to explore its options and formulate an appropriate response.
Symes v. Canada [1993] 4 S.C.R. 695: -- Income tax -- Child care expenses -Partner in law firm deducting wages paid to nanny in her income tax returns -Whether child care expenses deductible as business expenses -- If not, whether
equality rights violated
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Income tax -- Deductions -- Child care expenses -- Partner in law firm deducting wages
paid to nanny in her income tax returns -- Whether child care expenses deductible as
business expenses -- Income Tax Act, R.S.C. 1952, c. 148, ss. 9(1), 18(1)(a), (h), 63.
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Constitutional law -- Charter of Rights -- Equality rights -- Income tax -- Child care
expenses -- Partner in law firm deducting wages paid to nanny in her income tax returns
-- Whether child care expenses deductible as business expenses -- If not, whether equality
rights violated -- Canadian Charter of Rights and Freedoms, s. 15(1).
The appellant practised law full-time as a partner in a law firm during taxation years 1982
through 1985. During that period she employed a nanny to care for her children (she was
the mother of one child in 1982, 1983 and 1984, and of two children in 1985). The
appellant deducted the wages she paid to the nanny as business expenses in her personal
income tax returns for those years. Revenue Canada initially allowed the deductions for
1982 and 1983, but later disallowed the deductions for all four years in notices of
reassessment. The appellant objected, but the disallowance was confirmed on the ground
that the expenses were not outlays or expenses incurred for the purpose of gaining or
producing income from business, as required under s. 18(1)(a) of the Income Tax Act, but
were personal or living expenses, deduction of which was prohibited by s. 18(1)(h). In
place of the disallowed deductions, Revenue Canada allowed the appellant revised child
care deductions of $1,000 for 1982, $2,000 for each of 1983 and 1984, and $4,000 for
1985, pursuant to s. 63 of the Act. The Federal Court, Trial Division, held that the
appellant could deduct the payments to the nanny as business expenses. The Federal
Court of Appeal reversed the judgment and restored the notices of reassessment.
Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be dismissed.
The appellant's child care expenses are not deductible as business expenses.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The
well accepted principles of business practice encompassed by s. 9(1) of the Income Tax
Act, under which a taxpayer's income from business is the taxpayer's profit therefrom for
the year, would generally operate to prohibit the deduction of expenses which lack an
income-earning purpose, or which are personal expenses, just as much as ss. 18(1)(a) and
(h) operate expressly to prohibit such deductions. Traditional tax analysis characterized
child care expenses as personal expenses, such that s. 18(1)(h) would now operate to
specifically prohibit them. The relationship between child care expenses and business
income must be examined more critically, however, to determine whether that
relationship can be sufficient to justify the expenses' deductibility. The current wording
of s. 18(1)(a) indicates that Parliament amended its predecessor section so as to broaden
the scope for business expense deductibility. The language of the section itself provides
the most appropriate test: were the expenses incurred for the purpose of gaining or
producing income from a business? Courts will look for objective manifestations of
purpose, and purpose is ultimately a question of fact to be decided with due regard for all
the circumstances. It may be relevant to consider whether a particular deduction is
ordinarily allowed as a business expense by accountants, whether the expense is one
normally incurred by others involved in the taxpayer's business, and whether it would
have been incurred if the taxpayer was not engaged in the pursuit of business income.
In this case arguments can be made for and against the classification of the appellant's
child care expenses as business expenses. While it is clear that the appellant would not
have incurred child care expenses except for her business, it is equally clear that the need
which is met by child care expenses exists regardless of the appellant's business activity.
As well, while there is no evidence to suggest that child care expenses are considered
91
business expenses by accountants, many parents, particularly women, confront child care
expenses in order to work. Finally, the appellant's decision to have children should not be
viewed solely as a consumption, or personal, choice. When one considers deductibility
solely with reference to ss. 9, 18(1)(a) and 18(1)(h), child care expenses may remain
difficult to classify.
However, ss. 9, 18(1)(a) and 18(1)(h) cannot be interpreted to account for a child care
business expense deduction in light of the language used in s. 63. It is clear that the
definition of "child care expenses" in s. 63 specifically comprehends the purpose for
which the appellant maintains she incurred her nanny expenses. According to part of that
definition, a child care expense is one incurred in order to provide child care services "to
enable the taxpayer . . . to carry on a business either alone or as a partner". Furthermore,
s. 63(1)(e) operates to cap the deduction with reference to "earned income", which is
defined to include "incomes from all businesses carried on either alone or as a partner
actively engaged in the business". To the extent that s. 63 intends to limit child care
expense deductions to lower earning supporters, it would substantially undermine that
intent if the appellant were allowed to take a complete deduction of the child care
expenses, free from the consideration of whether or not she is the lower earning
supporter. Section 4(2), which provides that no deductions permitted by ss. 60 to 63 are
applicable to a particular source, may be further evidence that s. 63 is intended to be a
complete legislative response to the child care expense issue. The proposals which led
directly to the introduction of s. 63 support the view that s. 63 is such a response. Since s.
63 eliminates any question of ambiguity, it also eliminates the need for recourse to the
values of the Canadian Charter of Rights and Freedoms as an interpretive aid.
There has been no violation of s. 15(1) of the Charter in this case. Since s. 63 constitutes
a complete code with respect to child care expenses, it is the proper focus of the Charter
argument. The appellant has not demonstrated a violation of s. 15(1) of the Charter with
respect to s. 63 as she has not proved that s. 63 draws a distinction based upon the
personal characteristic of sex. While it is clear that women disproportionately bear the
burden of child care in society, it has not been shown that women disproportionately
incur child care expenses. Although the appellant has overwhelmingly demonstrated how
the issue of child care negatively affects women in employment terms, proof that women
incur social costs is not sufficient proof that they incur child care expenses.
Per L'Heureux-Dubé J. (dissenting): The determination of profit under s. 9(1) of the
Income Tax Act is dependent upon the question of whether an expenditure is a proper
business expense to be included in the calculation of such net gain. In order to arrive at a
calculation of net profit, the all-encompassing question one must ask is whether a
deduction is prohibited because it is not incurred for the purpose of earning income as
required by s. 18(1)(a), or because the expense is personal pursuant to s. 18(1)(h). There
have been dramatic and fundamental changes in both the labour market and the family
structure over the past 40 years. A majority of women, even those with very young
children, are now in the labour force. The interpretation of a law may change over time in
order to coincide with an altered and ever-changing societal context. Furthermore, the
respect of Charter values must be at the forefront of statutory interpretation. Statutes are
deemed to be remedial and are thus to be given a fair, large and liberal interpretation. In
the past, the scope of deductible business disbursements has been expanded constantly,
92
and has been held to include a wide array of expenditures. Any legitimate expense
incurred in relation to a business may be deducted as a business expense. The traditional
interpretation of "business expense" was shaped to reflect the experience of businessmen
and the ways in which they engaged in business. The present world of business is
increasingly populated by both men and women, however, and the meaning of "business
expense" must account for the experiences of all participants in the field. Child care is
vital to women's ability to earn an income. It made good business sense for the appellant
to hire child care. This expense was incurred "for the purpose of gaining or producing
income" and is therefore not precluded by the wording of s. 18(1)(a) from deduction
under s. 9(1).
Child care expenses should not be disallowed as a business expense under s. 18(1)(h) as
being personal in nature. While for most men the responsibility of children does not
impact on the number of hours they work or affect their ability to work, a woman's ability
even to participate in the work force may be completely contingent on her ability to
acquire child care. Many business deductions have been permitted in the past even
though these expenditures have a personal element. The real costs incurred by
businesswomen with children are no less real, no less worthy of consideration and no less
incurred in order to gain or produce income from business. Finally, while there is a
personal component to child raising, this "choice" is one from which all of society
benefits, even though much of the burden remains on the shoulders of women.
Section 63 of the Act does not preclude the deduction of child care expenses as a business
expense. Section 63 provides general relief to parents, but nothing in its wording implies
that deductions available under s. 9(1) are abolished or restricted in this respect. In
providing that none of the deductions permitted by ss. 60 to 63 are applicable to a
particular source of income, s. 4(2) clearly provides for some deductions which may
legitimately fall under two sections of the Act. At the very least, s. 63 is ambiguous in its
effect on s. 9(1), and under the general rules of statutory interpretation, ambiguities are to
be resolved in favour of the taxpayer. In the absence of precise and clear wording in the
Act with regard to the effect of s. 63 on s. 9(1), general child care expenses which might
be deductible under s. 63 may coexist with child care expenses deductible as a business
expense. To conclude that s. 63 intends to limit the opportunity for a businesswoman to
deduct child care expenses is antithetical to the whole purpose of the legislation, which
was aimed at helping working women and their families bear the high cost of child care.
The concern that employed persons and business people will not be treated in the same
manner is a fact which stems from the rationale of the Act itself: business deductions
generally are restricted to those in business and are not available to an employed person.
The fact that the government has provided that a deduction for child care expenses be
available to all parents, including employed persons, who ordinarily enjoy very few
deductions, indicates governmental recognition that child care is a legitimate expense of
working parents, in particular mothers. Further, since the Act either permits the deduction
of child care expenses as a business expense or is ambiguous, that ambiguity must be
examined through the prism of the values enshrined in the Charter, in particular ss. 15
and 28, which encompass and embrace the importance and significance of equality
between the sexes. To disallow child care as a business expense clearly has a differential
impact on women. Consideration of the Charter values when interpreting the Act thus
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strengthens the conclusion that the appellant should be able to deduct her child care
expenses as a business expense.
An interpretation which prevents the appellant from deducting her child care expenses as
a business expense results in an infringement of her right to equality pursuant to s. 15 of
the Charter. The appellant has proved that she incurred an actual and calculable cost for
child care and that this cost is disproportionately borne by women.
Per McLachlin J. (dissenting): L'Heureux-Dubé J.'s interpretation of ss. 9, 18 and 63 of
the Income Tax Act and s. 15 of the Charter and her conclusion that the appellant's child
care expenses are deductible as business expenses were agreed with.
Sexual Orientation Cases
Haig v. Canada (1992), 16 C.H.R.R. D/226 (Ont. C.A.) [Eng. 7 pp.]: Sexual
Orientation Included as Ground of Discrimination Under Canadian Human Rights
Act -- definition of sexual orientation -- protection based on non-enumerated
grounds of discrimination -- equal treatment -- equality in the administration,
substance and benefit of the law
Keywords: SEXUAL ORIENTATION -- definition of sexual orientation -DISCRIMINATION -- protection based on non-enumerated grounds of discrimination
-- EQUALITY -- equal treatment -- equality in the administration, substance and benefit
of the law
CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- application of s. 15(1)
(equality) -- s. 24 (enforcement of guaranteed rights and freedoms) -CONSTITUTIONAL LAW -- constitutional remedies of reading in, severance, striking
down, and striking down and temporarily suspending declaration of invalidity -- primacy
of the Constitution -- INTERPRETATION OF STATUTES -- REMEDIES -constitutional remedies applied to human rights legislation -- HUMAN RIGHTS -- nature
and purpose of human rights legislation -- human rights legislation subject to
other enactments
Summary: This is an appeal by the Government of Canada against a decision of the
Ontario Court (General Division) which found that the Canadian Human Rights Act does
not comply with s. 15 of the Canadian Charter of Rights and Freedoms because it fails to
provide access to the ameliorative procedures of the Act to those who are discriminated
against because of their sexual orientation. There is also a cross-appeal by the claimants
Haig and Birch on the question of remedy.
On the substantive issue, the Court of Appeal upholds the decision of the lower court.
Though s. 15 of the Charter does not expressly prohibit discrimination based on sexual
orientation, the provision is open-ended and sexual orientation is a ground analogous to
those listed, the Court of Appeal finds. It also finds that homosexual men and women are
94
the object of invidious discrimination and they are an historically disadvantaged group in
Canadian society. The Canadian Human Rights Act's failure to provide an avenue for
redress for prejudicial treatment of homosexual members of society, and the possible
inference from the omission that such treatment is acceptable, create the effect of
discrimination. The Court rules therefore that the Canadian Human Rights Act violates s.
15 of the Charter by failing to provide needed protections. The Government of Canada
expressly disavows any reliance on s. 1 to justify the failure to protect gay men and
lesbians from discrimination.
As a remedy, McDonald J. of the Ontario Court (General Division) declared that s. 3 of
Act, which lists the protected grounds of discrimination, to be of no force and effect. He
ordered that his decision be stayed for six months or until appeal and that in the
intervening period, the Act be fully operative.
The Court of Appeal considers the issue of appropriate remedy in light of the recent
Supreme Court of Canada decision in Schachter. In that case the Supreme Court stated
that there are five possible remedies available pursuant to s. 52 of the Constitution. They
are:
1.striking down
2.severance
3.striking down or severance and temporarily suspending the declaration of invalidity
(which was the remedy selected by McDonald J. in this case)
4.reading down, and
5.reading in.
The Court of Appeal rejects severance, because s. 3 is integral to the operation of the
Act and therefore severance would have the effect of striking down the entire Act. It also
rejects reading down since the problem to be remedied here is the absence of a ground,
and striking down s. 3 since this would provide no access to the Act for the complainants.
It would provide a pyrrhic victory only. The choices available then are striking down s. 3
but suspending the declaration of invalidity to allow Parliament to repair the defect, or
reading sexual orientation in as a further prohibited ground of discrimination.
The Court of Appeal concludes that reading sexual orientation into the Act is the most
appropriate remedy since it is the least intrusive method and the one most reflective of
the purpose of the Act. The Court of Appeal varies the order of McDonald J. by
substituting for it an order declaring that the Canadian Human Rights Act be interpreted,
applied and administered as though it contained "sexual orientation" as a prohibited
ground of discrimination in s. 3 of that Act.
Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont. Bd.Inq.) [Eng. 41
pp.] Ontario Government Employee Benefit Plans Discriminate on Basis of
95
Sexual Orientation -- employee benefits denied -- sexual orientation as ground of
discrimination in human rights legislation
Keywords: SEXUAL ORIENTATION -- employee benefits denied -- sexual
orientation as ground of discrimination in human rights legislation – FAMILY
STATUS -- definition of marital status and spouse not included in human rights
legislation -- employee benefits denied -- INTERPRETATION OF STATUTES -definition of "marital status", "family status," "family" and "spouse"
CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- s. 15(1) applied
to persons in homosexual partnership -- application of s. 1 (reasonable limits) -- HUMAN
RIGHTS -- human rights legislation subject to other enactments -- nature and purpose of
human rights legislation -- EQUALITY -- equal treatment and equality in the
administration, substance and benefit of the law -- CONSTITUTIONAL LAW –
constitutional remedy of reading down
BENEFITS -- employee benefit plan denied -- pension plan condition discriminatory -REMEDIES -- order to establish employee benefits plan outside registered plan -COMPLAINTS -- scope of complaint
Summary: The Board of Inquiry finds that Michael Leshner was discriminated
against by his employer, the Province of Ontario, because of his sexual orientation when
he was denied coverage under employment benefit plans for his same-sex partner.
Mr. Leshner is employed as a Crown Counsel with the Ministry of the Attorney
General. In 1988 he complained that his employment benefits, including supplementary
health and hospital benefits, a dental care plan, and a pension plan were discriminatory
because they did not entitle his same-sex partner to coverage, though opposite-sex
partners are.
In December 1990 the Government of Ontario announced that it would extend full
coverage for all insured and non-insured benefits to couples of the same sex. However,
Mr. Leshner was informed that restrictions in the federal Income Tax Act prevented the
Government of Ontario from providing survivor benefits under the pension plan to samesex partners of plan members. The definition of "spouse" in the Income Tax Act is
restricted to opposite-sex partners. If the Government of Ontario were to provide benefits
to same-sex partners in contravention of this definition the employee pension plan could
be deregistered and this would have serious financial implications for the pension plan
and all of its members.
Despite the Government's decision to extend coverage for health and dental benefits to
same-sex partners, the Board of Inquiry addresses the merits of the complaint, giving
particular attention to the outstanding issue of survivor benefits under the pension plan.
96
The Board of Inquiry finds that the denial of full pension plan benefits constitutes a
prima facie violation of the prohibition against discrimination based on sexual
orientation found in s. 5 of the Ontario Human Rights Code. The Board then considers
whether s. 25(2) provides a defence. Section 25(2) allows discrimination in the terms of
benefit plans on the basis of marital status. The majority of the Board of Inquiry finds
that Mr. Leshner is a single person with respect to his marital status and that
discrimination on the basis of being single is allowed in employee benefit schemes by
virtue of s. 25(2). The majority concludes, then, that the Government of Ontario has not
breached the Code.
However, the majority of the Board, composed of Peter Cumming and Gunther Plaut,
then proceeds to consider whether the definition of marital status in the Code complies
with the requirements of s. 15 of the Charter. The Code recognizes "living with a person .
. . in a conjugal relationship outside of marriage" as a marital status, but only if the
persons are of the opposite sex. The majority finds that s. 25(2), which permits
discrimination in benefits based on sexual orientation because of the definition of marital
status, does not comply with s. 15 of the Charter which includes protection from
discrimination on the basis of sexual orientation.
The question becomes whether s. 25(2) and the narrow definition of marital status as
they effect survivor benefits in pension plans are saved by s. 1 as a reasonable limit on
the right to equality based on sexual orientation. The majority finds that the objective of
providing survivor benefits is to support the elderly female dependents of pension plan
members. The structure of pension plan benefits has been based on the assumption that
there is a traditional heterosexual relationship with the man working outside the home for
wages and the woman working inside the home with no wages. In addition, opposite-sex
partners have legal obligations to each other at the time of relationship breakdown
which same-sex partners do not. Employment benefit plans are viewed as a means to
complement legal support obligations. Also, the respondent government argues that for
practical reasons it is necessary to restrict survivor benefits to opposite-sex partners
because of the terms of the Income Tax Act.
The majority finds that the objective of promoting women's equality through survivor
benefits was valid historically. But, given changes in workforce participation, the
society's changing ideas about eligibility for benefits, the overly narrow group of women
served by it (that is, heterosexual women in conjugal relationships with male plan
members at the time of the death: not elderly lesbians), this objective is not persuasive.
The majority also finds that the argument with respect to the Income Tax Act is an
argument respecting administrative convenience since the Government of Ontario can
provide the same survivor benefits to gay and lesbian partners through a separate but
equivalent plan outside the registered pension plan.
The majority finds that the denial of benefits to same-sex partners does not meet the
test of proportionality, that is the means are not proportional to the goal. It is not
97
necessary to deny benefits to same-sex partners in order to meet the objective of
ameliorating the economic vulnerability of elderly women. The rights of same-sex
partners are more than minimally impaired.
As a result the majority concludes that the restriction on benefits represented by the
interaction of the definition of marital status and s. 25(2) of the Code violates s. 15 and is
not saved by s. 1. The majority concludes that the definition of marital status should be
"read down" to remove the discrimination based on marital status by reading out the
phrase "of the opposite sex." Discrimination would then be prohibited against persons
living in a conjugal relationship outside marriage.
Since an Ontario Board of Inquiry has no jurisdiction with respect to the federal
Income Tax Act, it can make no orders respecting changes to that Act. However, the
Board of Inquiry urges the Government of Ontario to make every effort to persuade the
Government of Canada to change the Income Tax Act, and, if political persuasion is
unsuccessful, it encourages the Government of Ontario to take legal action on the
grounds that the restriction in the Act violates s. 15 of the Charter. Until the Income Tax
Act is changed and same-sex partners can be provided with survivor benefits in the same
manner as opposite-sex partners, the Board of
Inquiry orders the Government of Ontario to establish a separate plan which will
provide equal survivor benefits to the partners of gay and lesbian employees. It also
orders the Government of Ontario to pay Michael Leshner $3,000 in compensation for
the damage to his feelings and self-respect which the discrimination caused.
In a minority concurring decision, Brettell Dawson finds that s. 25(2) of the Code
provides no defence to Michael Leshner's claim of discrimination based on sexual
orientation. Ms. Dawson finds that the effect of the respondent's argument regarding s.
25(2) is to assign Mr. Leshner the marital status of a single person. This assignment
constitutes discrimination on the basis of sexual orientation because it fails to recognize
Mr. Leshner's homosexual relationship while recognizing the relationships of
heterosexual employees. The ground of marital status should not be used as a means to
perpetuate discrimination on the basis of sexual orientation. Such a reading conflicts with
the remedial purpose of human rights legislation. Ms. Dawson finds that s. 25(2) permits
differentiation between those who are in a relationship and those who are not with respect
to such matters as the quantum of premiums and benefits, but it does not permit denying
the existence of gay and lesbian relationships and excluding those in them from benefits.
Grounds should not be read as conflicting or as "trumping" each other where this is not
necessary. Ms. Dawson finds, therefore, that Mr. Leshner was discriminated against
within the terms of the Ontario Human Rights Code and that no resort to the Charter is
necessary to resolve this case. She concurs, however, with the majority's interpretation of
the Charter and with the remedies proposed.
98
Moore v. Canada (Treasury Board) (1996), 25 C.H.R.R. D/351 (Can.Trib.)
[Eng./Fr. 22 pp.] Denial of Benefits to Same-Sex Partner Discriminatory
Keywords: SEXUAL ORIENTATION -- employee benefits denied -- survey of the
law -- FAMILY STATUS -- spouse definition not included in human rights
legislation -- EMPLOYMENT -- TRADE UNIONS -- union supports discriminatory
policy -- HUMAN RIGHTS -- analogous ground of discrimination in the Charter -CONSTITUTIONAL LAW -- constitutional remedy of reading in -- CANADIAN
CHARTER OF RIGHTS AND FREEDOMS -- application of s. 1 (reasonable limits) -INTERPRETATION OF STATUTES -- retrospective effect -- REMEDIES – inventory
discriminatory legislation provisions
Summary: Stanley Moore and Dale Akerstrom are both gay employees of the federal
government. Mr. Moore is a Foreign Service Officer who was employed by the
Department of External Affairs at the time of the complaint. In April 1990 he began
living with Mr. Pierre Soucy in a spousal relationship. In February 1991 Mr. Moore was
posted to Jakarta, Indonesia, as Counsellor for Development and Counsellor for
Economics. He applied for spousal benefits under the Foreign Service Directives in 1991.
These directives relate to a number of costs involved when relocation is required of an
employee. He was not able to obtain the usual relocation assistance provided for spouses
because Mr. Soucy was not considered a spouse because he is of the same sex as Mr.
Moore. The benefits to which he and Mr. Soucy did not have full access include
accommodation costs, post differential allowance, dental and health care benefits, and
others.
Dale Akerstrom has been employed by CEIC since April 1990. In November 1990, he
began living with Alexander Dias in a spousal relationship. In 1992 Mr. Akerstrom
attempted to change his benefit status from single to family. He wished to make Mr. Dias
his beneficiary for the purposes of the supplementary death benefit, and his spouse for
purposes of the Public Service Health Care Plan. He was not allowed to claim Mr. Dias
as his spouse because spouse is defined for the purposes of these benefits plans as a
person of the opposite sex.
This decision was rendered prior to the amendment of the Canadian Human Rights Act
in May 1996 to include sexual orientation as a prohibited ground. The Tribunal notes that
the Ontario Court of Appeal in Haig ruled that sexual orientation was an analogous
ground of discrimination under s. 15 of the Charter, and that the Court of Appeal elected
to read sexual orientation into the protections in the Canadian Human Rights Act. The
Minister of Justice of the day, publicly announced that the decision would not be
appealed and would stand as the law of Canada. Since that decision the Supreme Court of
Canada in Egan v. Canada unanimously endorsed the finding that sexual orientation is an
analogous prohibited ground of discrimination under s. 15 of the Charter, and five judges
of the Supreme Court in the same case concluded that a definition of spouse which is
limited to persons of the opposite sex offends s. 15 of the Charter because it discriminates
on the basis of sexual orientation.
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The Tribunal finds that 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.
The Tribunal rejects the argument offered by Treasury Board that it should follow the
lead of the majority of the Supreme Court in Egan who found that the infringement of
Mr. Egan's equal right to spousal benefits under Old Age Security Act was saved under s.
1 because it was a reasonable limit, given the government's need to make choices
regarding the distribution of social benefits. The Tribunal finds that in the present case
the Tribunal is dealing with an employer who happens to be the government. The
government as employer can no more rely on s. 1 of the Charter to justify discrimination
than can a private employer. The matter at issue here is earned employment benefits, and
this is not a Charter case.
The Tribunal finds that Treasury Board and other named respondents discriminated
against Mr. Moore and Mr. Akerstrom contrary to the Canadian Human Rights Act.
The Tribunal orders Treasury Board and the Department of Foreign Affairs and
International Trade to pay Mr. Moore 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,
as well as $5,000 for hurt feelings, compensation for any receipted costs incurred in
pursuing these complaints and interest on these amounts. It also orders Treasury Board
and Canada Employment and Immigration to pay all additional costs incurred by Mr.
Akerstrom and Mr. Dias in obtaining alternative services as a result of the discriminatory
practice, as well $500 for hurt feelings, compensation for any receipted costs incurred in
pursuing these complaints, and interest on these amounts.
Additionally, the Tribunal orders the respondents to immediately cease and desist in
the application of the 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
discrimination complained of here. Finally, the Tribunal orders that within sixty days, the
respondents prepare an inventory of all legislation, regulations, and directives 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. This inventory shall exclude 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. The inventory shall be accompanied by a proposal for
the elimination of all such discriminatory provisions.
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The Tribunal retains jurisdiction to receive the inventory and the proposal, and to deal
with any disputes regarding the amounts of compensation to be paid to the complainants.
Dwyer v. Toronto (Metro) (No. 3) (1996), 27 C.H.R.R. D/108 (Ont. Bd.Inq.)
[Eng. 32 pp.] Restrictions on Benefits on the Basis of Sexual Orientation
Discriminatory -- discrimination against lesbian and gay employees who have
partners of the same-sex with respect to three categories of employment
benefits: uninsured benefits (such as leave to care for ill dependents); insured
benefits (such as extended health); and survivor pension entitlement
Keywords: SEXUAL ORIENTATION -- BENEFITS -- pension benefits denied -employee benefit plan denied -- sexual orientation as ground of discrimination in human
rights legislation -- human rights -- human rights legislation conflicts with another
enactment -- nature and purpose of human rights legislation -- INTERPRETATION OF
STATUTES -- definition of "spouse" and "marital status" --- BOARDS OF INQUIRY /
TRIBUNALS -- authority to rule on Charter issue -- CANADIAN CHARTER OF
RIGHTS AND FREEDOMS -- s. 15 (equality) -- s. 1 (reasonable limits) and application
of Oakes test – CONSTITUTIONAL LAW -- constitutional remedy of reading down -REMEDIES -- benefits plan outside registered plan
Summary: William Dwyer and Mary-Woo Sims allege that the Municipality of Metro
Toronto discriminates against lesbian and gay employees who have partners of the samesex with respect to three categories of employment benefits: uninsured benefits (such as
leave to care for ill dependents); insured benefits (such as extended health); and survivor
pension entitlement. They assert that this discrimination with respect to benefits
contravenes the Ontario Human Rights Code and the Canadian Charter of Rights and
Freedoms.
Though Metro Toronto argues that in practice uninsured benefits, such as bereavement
leave and leave to care for ill dependents, are granted on a discretionary basis to lesbian
and gay employees to mourn for or take care of persons with whom they are intimate, the
collective agreement with CUPE, Local 79 and Metro personnel policies do not
acknowledge the family relationships of employees in same-sex relationships and no
formal written direction has been given to managers that same-sex relationships are
covered.
CUMBA is the insurer and administrator of the various medical benefit plans at Metro.
The major insured benefits include comprehensive medical benefits (e.g. drugs, glasses,
orthopedic shoes, chiropractor, basic and orthodontic dental plan). Group life and long
term disability are also provided, though those plans are administered by different
insurance carriers. These benefits are commonly considered a part of the total wage
package of employees.
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Since 1992, Metro has provided insured benefits in respect of same-sex relationships.
However, it does so on an "interim" basis because the definition of "spouse" in the
Municipal Act does not authorize the provision of extended health benefits to same-sex
partners. In 1992 the Metro Council requested the provincial government to amend the
definition of "spouse" in the Act to provide the appropriate authority, but this amendment
has not been made. Also Metro employees receive pension benefits through the Ontario
Municipal Employees Retirement System (OMERS). OMERS is one of the largest
retirement plans in the country. It includes over 1,100 municipalities providing pension
benefits to approximately 200,000 employees and 60,000 pensioners. The same-sex
partners of Metro employees are not entitled to survivor pensions under the terms of the
OMERS plan. Eligible spouses are the opposite-sex partners of employees, either married
or common law.
Pensions are commonly recognized as a form of employee compensation, in effect, as
deferred wages. There are various types of pension plans, but the federal Income Tax Act
("ITA") sets out the framework for registration of pension plans. Significant tax
advantages flow from registration under the ITA. Employee contributions (within the
limits prescribed) are tax deductible; the investment earnings of the pension fund are tax
sheltered until pay-out; the employer contributions are not a taxable benefit to employees
at the time the contributions are made. However, the ITA has an opposite-sex definition
of "spouse" in respect of pension plans (though both married and common law spouses
are included) and does not permit the payment of survivor benefits to a same-sex
partner. A pension plan which provides such benefits is subject to deregistration under
the ITA and the loss of significant tax advantages. The Ontario Pensions Benefit Act
("PBA"), which requires that pension plans in Ontario conform with it and be registered
with the Pension Commission, also defines "spouse" to include only opposite-sex
partners. Since 1988, the PBA has required that pension plans provide benefits for
surviving spouses in the form of a lump sum death benefit or a survivor pension.
As a result of these various legislative provisions regarding pensions, currently a samesex spouse has no status comparable to an opposite-sex spouse and is not entitled to a
survivor pension. A same-sex partner may be eligible for a lump sum death benefit if he
or she is named as beneficiary in the pension plan. But as the beneficiary not the
"spouse", the same-sex partner will have to pay tax immediately on the lump sum death
benefit because the tax shelters of the ITA are provided only to recognized "spouses". A
recognized spouse is entitled to "roll over" the funds so that the monies are tax sheltered
until they are paid out.
Since the consequences of deregistration of a plan if same-sex survivor pensions are
provided are drastic, alternative "off-side" arrangements have been designed by some
employers to provide survivor benefits to same-sex partners. A Registered Compensation
Arrangement ("RCA") is an "off-side" plan funded outside the regular pension plan. It
operates like a registered pension plan but without the significant tax advantages to the
employee and the employer. Also, the applicable tax rates produce a net effect of halving
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the investment return. Consequently, there is a significantly higher level of contributions
required to produce a comparable level of benefits.
The Board of Inquiry finds that it has the authority to consider the constitutionality of
its enabling statute, the Ontario Human Rights Code. It is also appropriate for it to
consider the constitutionality of the other pieces of legislation which are directly linked to
this complaint, including the PBA, the Municipal Act and the Municipality of
Metropolitan Toronto Act. An administrative tribunal may address a Charter issue if it
has jurisdiction over the whole matter before it, namely, the parties, the subject-matter
and remedies sought, although the tribunal may only treat an impugned provision as
invalid for the purposes of the matter before it and cannot issue a formal declaration of
invalidity.
The issue here is whether the practice of denying equality in benefits to the same-sex
partners of Metro employees contravenes s. 15 of the Charter which, the Supreme Court
of Canada has ruled, prohibits discrimination based on sexual orientation. The Ontario
Human Rights Code prohibits discrimination on the basis of sexual orientation but it still
contains an opposite-sex definition of "spouse" and "marital status". Section 10 of the
Code defines marital status as "the status of being married, single, widowed, divorced or
separated and includes the status of living with a person of the opposite-sex in a conjugal
relationship outside marriage". The other legislation that is implicated here contains
similar definitions. Before the Board of Inquiry are these questions: (1) do opposite-sex
definitions of spouse and marital status violate s. 15 of the Charter when they are
applied to justify the refusal of employment-related benefits to the same-sex
partners of Metro; (2) can this discrimination be justified as a reasonable limit pursuant
to s. 1 of the Charter. Since the respondents concede that the benefit schemes
discriminate on the basis of sexual orientation, the Board of Inquiry proceeds directly to
consider the question of whether the discrimination is justified as a reasonable limit
pursuant to s. 1.
The respondents argue that the restriction of insured benefits and pension benefits to
opposite-sex partners reflects: an incremental approach to expanding protection against
discrimination; concern with the additional costs and administrative burden; support for
couples with capacity to procreate and which generally raise children in society;
legislative consistency with other provincial statutes and with the ITA. The Board of
Inquiry finds that the evidence is questionable as to the objectives of the legislation
beyond a desire to provide benefits to female spouses in traditional family units where the
husband worked outside the home and the wife raised the children and was economically
dependent. The Board of Inquiry accepts this as a valid legislative objective.
However, the Board of Inquiry finds that the means chosen to achieve the legislative
objective is to allow discrimination with impunity against the same-sex spouses of
employees. There is no rational connection between a desire to extend employment
benefits to wives or women in general and an opposite-sex definition of "spouse". The
statutory language is neutral; the benefits apply equally to the husbands of female
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employees. The provision is not related to financial need or economic dependency; the
benefits are extended where both husband and wife are employees and/or are financially
secure. At the same time same-sex partners are totally denied benefits even if their
relationships reflect economic dependency and financial need -- the very concerns of the
legislation. Finally, there is not a proportionality between the effects of the measures (the
denial of benefits to same-sex spouses) and the objective of ameliorating female
poverty.
The Board of Inquiry considers the decision of the Supreme Court of Canada in Egan
v. Canada, which found that, although it was discrimination to deny spousal benefits
under the Canada Pension Plan to same-sex partners, this discrimination was a reasonable
limit that was justifiable pursuant to s. 1. However, it distinguishes the decision from the
matter before it because the Supreme Court of Canada was dealing with social benefits
not employment benefits. The Board of Inquiry finds that a stricter application of s. 1
criteria is necessary where an individual"s earnings are involved and the discrimination
results in the unequal treatment of employees solely because of the sex of their spouses.
The Board of Inquiry concludes that the equality guarantees in s. 15 of the Charter are
contravened by the opposite-sex definitions of spouse and marital status in the Code and
related legislation regarding the employment benefits in question in these complaints.
The opposite-sex definitions in the legislation constitute discrimination based on sexual
orientation. The offending provisions are not saved by s. 1 as limitations demonstrably
justified in a free and democratic society.
Considering remedies, the Board of Inquiry concludes that with respect to pension
benefits the stumbling block to equality for same-sex spouses is the opposite-sex
definition in the ITA. That is beyond the jurisdiction of the Board of Inquiry to address
since the ITA is federal legislation. The Board of Inquiry is not convinced that requiring
the establishment of an "off-side" arrangement for pension benefits is appropriate in all
the circumstances. However, once the ITA permits the benefits to be extended without
deregistration of the pension plans, the benefits should be provided to same-sex partners.
The Board of Inquiry orders that:
1.The definitions of "spouse" and "marital status" in s. 10 of the Code are to be read
down so as to eliminate the discriminatory effect of the words "of the opposite-sex".
2.The opposite-sex definitions of "spouse" in the Municipal Act and the Municipality
of Metropolitan Toronto Act are to be read down in connection with the authority of
municipalities to enter into contracts to provide insured benefits (including health plans)
for their employees, their spouses, and children.
3.The Province is to interpret and apply the Municipal Act definition of spouse as if it
included same-sex spouses with respect to insured benefits and uninsured benefits, and to
apply this to pension benefits as well once the definition of spouse is changed in the ITA.
The Province is ordered to advise all municipalities of this interpretation within a
reasonable time.
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4.Metro is to continue providing insured benefits to same-sex spouses on the same
basis as such benefits are provided to opposite-sex spouses.
5.The opposite-sex definitions in the PBA (and related provisions in the OMERS Act
and the provincial ITA) are to be read down so that same-sex spouses are not excluded
once the federal ITA permits pension benefits to be extended without deregistration of
the pension plans.
6.Metro is to provide uninsured benefits without discrimination on the basis of the
sex of the spouses of its employees, and to take the necessary steps to inform its
managers and employees of their entitlement to such benefits. Metro and CUPE, Local 79
are directed to enter into a Letter of Understanding which clarifies the entitlement of
same-sex spouses to uninsured benefits under the collective agreement.
7.Metro is ordered to pay Mr. Dwyer the sum of $10,000 as general damages and
$1,200 for expenses which he incurred because of the discrimination. Metro is also
ordered to pay Ms. Sims $4,000 as general damages.
Vriend v. Alberta (1997), 31 C.H.R.R. D/1 (S.C.C.) [Eng./Fr. 62 pp.] Alberta
Legislative Inaction on Sexual Orientation Discriminatory sexual orientation as
ground of discrimination in human rights legislation -- employment terminated -equality in the administration, substance and benefit of the law -- relationship
between equality under human rights legislation and equality under the Charter
Keywords:
SEXUAL ORIENTATION -- sexual orientation as ground of discrimination in human
rights legislation -- employment terminated -- DISCRIMINATION -- protection
based on non-enumerated grounds of discrimination -- HUMAN RIGHTS -- sexual
orientation as an analogous ground of discrimination -- nature and purpose of human
rights legislation -- principles used to interpret Charter applied to human rights legislation
-- human rights legislation subject to other enactments -- enforcement of rights
EQUALITY -- equality before the law -- equality in the administration, substance and
benefit of the law -- relationship between equality under human rights legislation and
equality under the Charter -- FUNDAMENTAL FREEDOMS -- Constitutional
guarantees as limits to rights provided in provincial legislation -- PARTIES -- public
interest standing -- standing to challenge specific sections of legislation
INTERPRETATION OF STATUTES -- case law, parliamentary debates and
legislative intent as aids to interpretation -- principles of interpretation applied to human
rights legislation from other statutes -- constitutional remedies applied to human rights
legislation -- context -- APPEALS AND JUDICIAL REVIEW -- error of law in
interpreting legislation
105
CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- application of s. 1
(reasonable limits) and application of Oakes test to s. 1 -- s. 15(1) (equality) -- s. 32
(application of Charter) -- CONSTITUTIONAL LAW -- constitutional remedies of
reading in, striking down and striking down or severance and temporarily suspending
declaration of invalidity -- constitutional validity of human rights legislation -REMEDIES -- constitutional remedies -- COURTS -- authority of court to order
constitutional remedy
Summary: This is an appeal from a 2-1 decision of the Alberta Court of Appeal. In issue
is the lack of protection from discrimination for gays and lesbians provided under
Alberta's Individual's Rights Protection Act ("IRPA"). The Supreme Court of Canada
overturns the Appeal Court decision. In a 7-1 decision, the Supreme Court of Canada
holds that the omission of the ground sexual orientation from the IRPA is a violation of s.
15 of the Charter and cannot be saved by s. 1.
Comprising the majority are: Lamer C.J., Gonthier, Cory, McLachlin, Iacobucci, and
Bastarache JJ. Although in overall agreement with the results reached by the
majority, L'Heureux-Dubé J. writes a separate concurring opinion regarding the s. 15
analysis. While agreeing that the challenged omission is discriminatory, Major J.
dissents with respect to remedy.
The majority decision is authored by Cory and Iacobucci JJ. jointly. Cory J. writes the
majority opinion regarding s. 15 and the issue of standing. Iacobucci J. writes the
majority opinion regarding s. 1, remedy, and disposition.
The majority of the Court find that the history of the IRPA, and of unsuccessful efforts at
reform, indicates that the omission of sexual orientation was deliberate and was not the
result of an oversight by the Alberta Legislature. In 1992 when the Human Rights
Commission decided to accept complaints alleging discrimination based on sexual
orientation this was vetoed by the Government, and the Minister Responsible for Human
Rights directed the Commission not to investigate the complaints. In 1993 the
government-appointed Alberta Human Rights Review Panel recommended inclusion of
the ground. At that time, the Government stated that the issue of human rights
protection for lesbians and gay men would be dealt with through this case.
The facts giving rise to the case concern the 1991 dismissal of Delwin Vriend from his
employment as a laboratory co-ordinator at King's College. Mr. Vriend made a complaint
to the Alberta Human Rights Commission, but his complaint was turned away because
the legislation does not prohibit discrimination based on sexual orientation. Mr. Vriend
then challenged the omission of sexual orientation from all of the rights-conferring
provisions of the IRPA, including those that prohibit discrimination in employment, on
the grounds that the omission violates his s. 15 right to equal protection and equal benefit
of the law. At trial Russell J. ruled in favour of Vriend. However, a majority of the
Alberta Court of Appeal ruled against him, and ordered costs in favour of the Crown.
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In the Supreme Court of Canada, the Attorney General for Alberta disputed Delwin
Vriend's standing to challenge provisions other than the employment sections of the
IRPA. However, the Court holds that Vriend and the co-appellants have the standing to
challenge all the impugned sections, based on the three criteria for standing established
by Canadian Council of Churches v. Canada (Minister of Employment and Immigration).
The Attorney General for Alberta also argued that s. 32, which provides that the Charter
applies to the legislature and government of each province, means that the Charter cannot
be applied in this case, since it is a case that challenges underinclusiveness. The Court
rejects this, along with the opinion of McLung J.A. that "judicial interference" in cases of
"neutral silence" is inappropriate. The language of s. 32 does not limit the application of
the Charter merely to positive actions encroaching on rights, or to the excessive exercise
of authority.
The Court also finds that this appeal does not represent a contest between the power of
the democratically elected legislatures to pass laws, and the power of the Courts to
disallow those laws or to dictate that certain matters be included in those laws. It is the
Constitution which must be interpreted by Courts and which limits the legislatures.
Citizens must have the right to challenge laws which they consider to be beyond the
power of the legislatures.
The question of whether an omission is "neutral" is a s. 15 question and cannot be
assumed. The mere fact that the challenged aspect of the IRPA is its underinclusiveness
does not necessarily render the Charter inapplicable.
The Court also rejects the argument that the appellants seek to have the Charter apply to
private activity. Rather, they seek to apply the Charter to a law that regulates private
activity. The Charter does apply to it.
Under s. 15 of the Charter, the Court applies the two-step approach of Andrews v. Law
Society of British Columbia, finding that:
1.There is a distinction which results in a denial of equal protection or benefit of the
law, and
2.There is discrimination based on an analogous ground.
The IRPA creates a distinction based on sexual orientation. Although the Attorney
General of Alberta argues that there is no legislative distinction because any distinction
based on sexual orientation exists in the society not in the law, this is rejected by the
Court. Gays and lesbians do not enjoy formal equality with other protected groups
under the Act. They also do not enjoy substantive equality when compared with
heterosexuals. The exclusion of the ground sexual orientation has a disproportionate
impact on gays and lesbians as opposed to heterosexuals.
107
It is not necessary to find that legislation creates the discrimination in society in order to
determine that it creates a potentially discriminatory distinction. The "silence" of
the IRPA is not "neutral". Gays and lesbians are treated differently from other
disadvantaged groups and from heterosexuals. Other groups receive protection from
discrimination on the grounds that are likely to be relevant to them.
There are two denials of equal benefit and protection of the law. By omission or
underinclusiveness the Act both excludes gays and lesbians from the government's
statement of policy against discrimination, and denies them access to the remedial
procedures established by the Act.
This is discriminatory in that an equality right is denied on the basis of a personal
characteristic which is analogous to other personal characteristics enumerated in s. 15.
Also, the selective exclusion of one group from the comprehensive protection of human
rights legislation is discriminatory in that it has discriminatory effects. This is
exacerbated because the option of a civil remedy is not available, and because lesbians
and gay men have not been successful in using other grounds to gain protection
from discrimination. Also, the exclusion sends a strong and sinister message that
discrimination against gays and lesbians is permissible and perhaps acceptable.
The Court concludes that the IRPA is discriminatory because it omits sexual orientation.
The Court then applies the test set out in R. v. Oakes to determine whether the omission
of human rights protection is a reasonable limit on the equality rights of lesbians
and gay men, within the meaning of s. 1 of the Charter. The Attorney General of
Alberta's s. 1 defence fails at the first stage of the analysis. There is no pressing and
substantial objective for the omission. It is not necessary to go further in the analysis.
Even assuming that it were, the omission is not rationally connected to the goal of
the IRPA; it is antithetical to it.
A government assertion that human rights protection is being introduced incrementally
does not justify the failure to include lesbians and gay men, the Court rules. Deference to
governments must not be carried too far. Regarding concerns about religious freedom, the
Court finds that the IRPA contains an internal mechanism that permit the rights of
religion-based institutions and the rights of lesbians and gay men to be balanced. The
challenged exclusion does not minimally impair the right to equality for lesbians and gay
men. The exclusion is total. There is no proportionality between the legislative goal and
the infringement.
The Court concludes that the omission of protection for lesbians and gay men is not a
reasonable limit within the meaning of s. 1. The Court further concludes that reading
sexual orientation into the IRPA is the most appropriate remedy.
In a concurring minority opinion, L'Heureux-Dubé J. disagrees with making grounds
central to the s. 15 analysis. The effect of the legislative distinction on the individual or
108
group is of greatest significance. Also, L'Heureux-Dubé J. rejects a narrow approach to
defining analogous grounds.
Major J. dissents on the question of remedy. He finds that reading in is not appropriate. It
would be preferable to grant a suspended declaration that the IRPA is invalid.
Egan v. Canada [1995] 2 S.C.R. 513: Old age security legislation providing for
allowance for spouse of pensioner – Definition of "spouse" restricted to person of
opposite sex
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law -- Charter of Rights -- Equality rights -- Old age security legislation
providing for allowance for spouse of pensioner – Definition of "spouse" restricted to
person of opposite sex -- Whether definition of "spouse" infringes s. 15(1) of Canadian
Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of
Charter -- Old Age Security Act, R.S.C., 1985, c. O-9, ss. 2, 19(1).
The appellants are homosexuals who have lived together since 1948 in a relationship
marked by commitment and interdependence similar to that which one expects to find in
a marriage. When E became 65 in 1986, he began to receive old age security and
guaranteed income supplements under the Old Age Security Act. On reaching age 60, N
applied for a spousal allowance under s. 19(1) of the Act, which is available to spouses
between the ages of 60 and 65 whose combined income falls below a fixed level. His
application was rejected on the basis that the relationship between N and E did not fall
within the definition of "spouse" in s. 2, which includes "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 appellants
brought an action in the Federal Court seeking a declaration that the definition
contravenes s. 15(1) of the Canadian Charter of Rights and Freedoms on the ground that
it discriminates on the basis of sexual orientation and a declaration that the definition
should be extended to include "partners in same-sex relationships otherwise akin to a
conjugal relationship". The Trial Division dismissed the action. The Federal Court of
Appeal, in a majority decision, upheld the judgment.
Held (L'Heureux-Dubé, Cory, McLachlin and Iacobucci JJ. dissenting): The appeal
should be dismissed. The definition of "spouse" in s. 2 of the Old Age Security Act is
constitutional.
Per Lamer C.J. and La Forest, Gonthier and Major JJ.: The analysis under s. 15 of the
Charter involves three steps: the first looks to whether the law has drawn a distinction
109
between the claimant and others; the second questions whether the distinction results in
disadvantage, and examines whether the impugned legislation imposes a burden,
obligation or disadvantage on a group of persons to which the claimant belongs which is
not imposed on others, or does not provide them with a benefit which it grants others; the
third step assesses whether the distinction is based on an irrelevant personal characteristic
which is either enumerated in s. 15(1) or one analogous thereto. The first step is satisfied
in this case, since Parliament has clearly made a distinction between the claimant and
others. The second step is also satisfied: while it may be true that the appellants have
suffered no prejudice because by being treated as individuals they have received
considerably more in combined federal and provincial benefits than they would have
received had they been treated as "spouses", there is nothing to show that this is generally
the case with homosexual couples. Sexual orientation 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. All
that remains to be considered under the third step is whether the distinction made by
Parliament is relevant. In assessing relevancy for this purpose one must look at the nature
of the personal characteristic and its relevancy to the functional values underlying the
law. A form of comparative analysis must be undertaken to determine whether particular
facts give rise to inequality. This comparative analysis must be linked to an examination
of the larger context, and in particular with an understanding that the Charter was not
enacted in a vacuum, but must be placed in its proper linguistic, philosophic and
historical contexts.
The singling out of legally married and common law couples as the recipients of
benefits necessarily excludes all sorts of other couples living together, whatever
reasons these other couples may have for doing so and whatever their sexual orientation.
What Parliament clearly had in mind was to accord support to married couples who were
aged and elderly, for the advancement of public policy central to society. Moreover, in
recognition of changing social realities, s. 2 was amended so that whenever the term
"spouse" was used in the Act it was to be construed to extend beyond legal married
couples to couples in a common law marriage. Marriage has from time immemorial been
firmly grounded in our legal tradition, one that is itself a reflection of long-standing
philosophical and religious traditions. But its ultimate raison d'être transcends all of these
and is firmly anchored in the biological and social realities that heterosexual couples have
the unique ability to procreate, that most children are the product of these relationships,
and that they are generally cared for and nurtured by those who live in that relationship.
In this sense, marriage is by nature heterosexual. It would be possible to legally define
marriage to include homosexual couples, but this would not change the biological
and social realities that underlie the traditional marriage.
Many of the underlying concerns that justify Parliament's support and protection of
legal marriage extend to heterosexual couples who are not legally married. Many of these
couples live together indefinitely, bring forth children and care for them in response to
familial instincts rooted in the human psyche. These couples have need for support just as
legally married couples do in performing this critical task, which is of benefit to all
110
society. Faced with the social reality that increasing numbers choose not to enter a legal
marriage but live together in a common law relationship, Parliament has elected to
support these relationships. Parliament is wholly justified in extending support to
heterosexual couples like this, which is not to say, however, that it is obligated to do so
and may not treat married and unmarried couples differently.
Neither in its purpose nor in its effect does the legislation constitute an infringement
of the fundamental values sought to be protected by the Charter. None of the couples
excluded from benefits under the Act are capable of meeting the fundamental social
objectives thereby sought to be promoted by Parliament. While these couples
undoubtedly provide mutual support for one another, and may occasionally adopt or
bring up children, this is exceptional and in no way affects the general picture.
Homosexual couples differ from other excluded couples in that their relationships include
a sexual aspect, but this sexual aspect has nothing to do with the social objectives for
which Parliament affords a measure of support to married couples and those who live in a
common law relationship. The distinction adopted by Parliament is relevant here to
describe a fundamental social unit to which some measure of support is given.
The impugned legislation, even had it infringed s. 15, would have been upheld for the
reasons given in McKinney v. University of Guelph and for those mentioned in the
discussion of discrimination in this case. Per Sopinka J.: The impugned legislation
infringes s. 15(1) of the Charter, for the reasons given by Cory J. Such infringement,
however, is saved under s. 1. Government must be accorded some flexibility in extending
social benefits and does not have to be pro-active 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 because their limits would depend on
an accurate prediction of the outcome of court proceedings under s. 15(1). This Court has
recognized that it is legitimate for the government to make choices between is
advantaged groups and that it must be provided with some leeway to do so. When the
definition of "spouse" in the Old Age Security Act is measured against overall objectives
of alleviation of poverty of elderly spouses, it should not be judged on the basis that
Parliament has made this choice for all time. The history of the legislation shows an
evolving expansion of the definition of the intended recipients of the benefits. The
Attorney General of Canada has taken the position that the means chosen does not have
to be necessarily the solution for all time. Hence, since the impugned legislation can be
regarded as a substantial step in an incremental approach to include all those who are
shown to be in serious need of financial assistance due to the retirement or death of a
supporting spouse, it is rationally connected to the objective. With respect to minimal
impairment, the legislation represents the kind of socio-economic question in respect of
which the government is required to mediate between competing groups rather than being
the protagonist of an individual. In these circumstances, the Court will be more reluctant
to second-guess the choice which Parliament has made. There is also proportionality
between the effects of the legislation on the protected right and the legislative objective.
111
The proper balance was struck by Parliament in providing financial assistance to those
who were shown to be in the greatest need of assistance.
Per Cory and Iacobucci JJ. (dissenting): In determining whether a s. 15(1) right to
equality has been violated, the first step is to determine whether, owing to a distinction
created by the questioned law, a claimant's right to equality has been denied. During this
first step, the inquiry should focus upon whether the challenged law has drawn a
distinction between the claimant and others, based on personal characteristics. The
second step is to determine whether the distinction created by the law results in
discrimination. In order to make this determination, it is necessary to consider first,
whether the equality right was denied on the basis of a personal characteristic which is
either enumerated in s. 15(1) or which is analogous to those enumerated, and second,
whether that distinction has the effect on the claimant of imposing a burden, obligation or
disadvantage not imposed upon others or of withholding or limiting access to benefits or
advantages which are available to others. Any search for either equality or discrimination
requires comparisons to be made between groups of people. Whether or not
discrimination exists must be assessed in a larger social, political and legal context. The
resolution of the question as to whether there is discrimination under s. 15(1) must be
kept distinct from the determination as to whether or not there is justification for that
discrimination under s. 1 of the Charter. This analytical separation between s. 15(1) and s.
1 is important since the Charter claimant must satisfy the onus of showing only that there
exists in the legislation a distinction which is discriminatory. Only after the court finds a
breach of s. 15(1) does the government bear the onus of justifying that discrimination.
Since the law challenged draws a clear distinction between opposite-sex couples and
same-sex couples, this case presents a situation of direct discrimination. As a result of the
definition of a common law spouse as a "person of the opposite sex", homosexual
common law couples are denied the benefit of the spousal allowance which is available to
heterosexual common law couples. This distinction amounts to a clear denial of equal
benefit of the law. In addition to being denied an economic benefit, homosexual couples
are denied the opportunity to make a choice as to whether they wish to be publicly
recognized as a common law couple because of the definition of "spouse" set out in the
Old Age Security Act. The public recognition and acceptance of homosexuals as a couple
may be of tremendous importance to them and to the society in which they live. To deny
homosexual couples the right to make that choice deprives them of the equal benefit
of the law.
The distinction in the Act is based on a personal characteristic, namely sexual
orientation. Sexual orientation is analogous to the grounds of discrimination
enumerated in s. 15(1). The historic disadvantage suffered by homosexual persons has
been widely recognized and documented. 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. Just as the Charter protects religious
beliefs and religious practice as aspects of religious freedom, so too should it be
recognized that sexual orientation encompasses aspects of "status" and
112
"conduct" and that both should receive protection.
The distinction drawn by s. 2 of the Old Age Security Act on the basis of sexual
orientation constitutes discrimination. The legislation denies homosexual couples equal
benefit of the law 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 appellants' relationship vividly demonstrates the error of that approach. The
discriminatory impact cannot be deemed to be trivial when the legislation reinforces
prejudicial attitudes based on such faulty stereotypes.
The impugned legislation is not saved under s. 1 of the Charter. While the objective of
the spousal allowance, which is geared toward the mitigation of poverty among "elderly
households", is of pressing and substantial importance, the allowance in its present form
is not rationally connected to its legislative goals. A program which included the
appellants would better achieve the intended goal while respecting the Charter rights of
gays and lesbians. Nor is the denial of the appellants' s. 15 rights through the ineligibility
for receipt of the spousal allowance minimally impaired simply because the appellants'
joint income would have roughly been the same because of N's receipt of provincial
support supplementing his income for a completely unrelated reason. The provincial and
federal programs are clearly not co-extensive, and even if they were part of the same
overlapping legislative scheme, this is not sufficient to ground a s. 1 justification. Finally,
the attainment of the legislative goal is outweighed by the abridgment of the right in this
case. The importance of providing relief to some elderly couples does not justify an
infringement of the equality rights of the elderly couples who do not benefit for
constitutionally irrelevant reasons. The definition of "spouse" in s. 2 of the Act should be
read down by deleting the words "of the opposite sex" and reading in the words "or as an
analogous relationship" after the words "if the two persons publicly represented
themselves as husband and wife".
Per L'Heureux-Dubé J. (dissenting): A return to the fundamental purpose of s. 15 of
the Charter is necessary in order to reconcile the divergent approaches taken by this Court
in recent jurisprudence, as well as in the present case and in Miron and Thibaudeau. At
the heart of s. 15 is the protection of, and respect for, basic human dignity.
Discrimination" must therefore be at the forefront of the court's analysis. In order for
discrimination to be addressed and identified in all of its varied contexts and forms, it is
preferable to focus on impact (i.e. discriminatory effect) rather than on constituent
elements (i.e. the grounds of the distinction). Discriminatory effects must, moreover, be
evaluated from the point of view of the victim, rather than from that of the state.
Considerations of relevance are more properly viewed as justifications under s. 1 than as
factors integral to the identification of discrimination in the first place.
The following factors must be established by a rights claimant before the impugned
distinction will be found to be discriminatory within the meaning of s. 15 of the Charter:
113
(1) there must be a legislative distinction; (2) this distinction must result in a denial of
one of the four equality rights on the basis of the rights claimant's membership in an
identifiable group; and (3) this distinction must be "discriminatory" within the meaning
of s. 15. A distinction is discriminatory within the meaning of s. 15 where it is capable of
either promoting or perpetuating the view that the individual adversely affected by this
distinction is less capable, or less worthy of recognition or value as a human being or as a
member of Canadian society, equally deserving of concern, respect, and consideration.
The absence or presence of discriminatory impact should be assessed according to a
subjective-objective standard -- the reasonably held view of one who is possessed of
similar characteristics, under similar circumstances, and who is dispassionate and fully
apprised of the circumstances. This determination is arrived at by considering two
categories of factors: (1) the nature of the group adversely affected by the impugned
distinction, and (2) the nature of the interest adversely affected by the impugned
distinction. With respect to the first category, groups that are more socially vulnerable
will experience the adverse effects of a legislative distinction more vividly than if the
same distinction were directed at a group which is not similarly vulnerable. In evaluating
the nature of the group affected by the impugned distinction, it is relevant to inquire into
many of the criteria traditionally employed in the Andrews analysis, such as whether the
impugned distinction is based upon fundamental attributes that are generally considered
to be essential to our popular conception of `personhood' or `humanness', whether the
adversely affected group is already a victim of historical disadvantage, whether this
distinction is reasonably capable of aggravating or perpetuating that disadvantage,
whether group members are currently vulnerable to stereotyping, social prejudice and/or
marginalization, and whether this distinction exposes them to the reasonable possibility
of future vulnerability of this kind. Membership in a "discrete and insular minority",
lacking in political power and thus vulnerable to having its interests overlooked, is
another consideration that may be taken into account. The absence or presence of some of
these factors will not, however, be determinative of the analysis. However, awareness of,
and sensitivity to, the realities of those experiencing the distinction is an important task
that judges must undertake when evaluating the impact of the distinction on members of
the affected group.
Similarly, the more fundamental the interest affected or the more serious the
consequences of the distinction, the more likely that the impugned distinction will
have a discriminatory impact even with respect to groups that occupy a position of
advantage in our society. While the Charter is not a document of economic rights and
freedoms, the nature, quantum and context of an economic prejudice or denial of such a
benefit are important factors in determining whether the distinction from which the
differing economic consequences flow is one which is discriminatory. The discriminatory
calibre of a particular distinction cannot, however, be fully appreciated without also
evaluating the constitutional and societal significance of the interests adversely affected.
Tangible economic consequences are but one manifestation of the more intangible and
invidious harms flowing from discrimination, which the Charter seeks to root out. In
other cases, the prejudice will be to an important individual interest rather than to one that
is economic in nature. Both categories of factors emphasize that it is no longer the
114
"grounds" of the distinction that are dispositive of the question of whether discrimination
exists, but rather the social context of the distinction that matters. An effects-based
approach to discrimination is the logical next step in the evolution of s. 15 jurisprudence
since Andrews.
Homosexual couples are denied the equal benefit of the law on the basis of the
legislative distinction in s. 2 of the Old Age Security Act, which defines couples
as relationships of "opposite sex". That the appellants are able to claim higher benefits as
separate individuals does not alter the fact that they have been denied the benefits, both
tangible and intangible, of filing for old age benefits as a couple. The impugned
distinction excludes the rights claimants because they are homosexual. Consideration of
both the nature of the group and the interest affected leads us to conclude that the
distinction is discriminatory. Same-sex couples are a highly socially vulnerable group, in
that they have suffered considerable historical disadvantage, stereotyping,
marginalization and stigmatization within Canadian society. The distinction relates to a
fundamental aspect of personhood and affects individuals who, in addition to being
homosexuals, are also elderly and poor. Turning to the interest affected, the impugned
legislation is a cornerstone in Canada's social security net, which is, in turn, a cherished
and fundamental institution in our society.
The violation of s. 15(1) of the Charter cannot be salvaged by s. 1, as it is not relevant
to a proportionate extent to a pressing and substantial objective. While the objective of
the legislation is pressing and substantial, the means chosen to achieve this objective fails
all three branches of the proportionality test. The legislation excludes couples who would
fill all of the other criteria in the Act except the requirement that they are of the opposite
sex. To find that this distinction is rationally connected to the objective of the legislation
requires us to conclude that same-sex couples are so different from married couples that it
would be unreasonable to make the same benefits available to both. At best, the
government has only demonstrated that this is its assumption. The presumption that
same-sex relationships are somehow less interdependent than opposite-sex relationships
is, itself, a fruit of stereotype rather than one of demonstrable, empirical reality. Nor
is s. 15 minimally impaired. A reasonable alternative remedy is available: the
discriminatory effect would be eliminated without prejudice to the rights or interests of
any other group by extending coverage to same-sex couples who otherwise fulfil all of
the other non-discriminatory criteria required in the Act. Deference under this
branch of the s. 1 test is not appropriate when there is a reasonable alternative that is
readily available, that is not the subject of conflicting social science views, and
that could not result in a concomitant prejudice to another group. Finally, the deleterious
effects of the impugned distinction outweigh its salutary effects.
Per McLachlin J. (dissenting): The reasons of Cory and Iacobucci JJ. were
substantially agreed with. On the basis of the principles outlined in Miron v. Trudel,
released concurrently, the impugned legislation infringes s. 15(1) of the Charter and the
infringement is not saved under s. 1.
115
Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554: Discriminatory
practice -- Family status -- Employee denied bereavement leave to attend funeral
of father of his male companion -- Collective agreement providing for leave upon
death of a member of an employee's "immediate family" -- "Immediate family"
including common-law spouse of opposite sex -- Federal legislation prohibiting
discrimination on basis of "family status" -- Whether denial of bereavement leave
based on family status
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and
Iacobucci JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Civil rights -- Discriminatory practice -- Family status -- Employee denied bereavement
leave to attend funeral of father of his male companion -- Collective agreement providing
for leave upon death of a member of an employee's "immediate family" -- "Immediate
family" including common-law spouse of opposite sex -- Federal legislation prohibiting
discrimination on basis of "family status" -- Whether denial of bereavement leave based
on family status -- Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3, 10.
Judicial review -- Standard of review -- Curial deference toward specialized tribunals -Whether Federal Court of Appeal erred in holding that any error of law by human rights
tribunal reviewable -- Whether Tribunal committed such an error of law in interpreting
family status as including a same-sex relationship -- Federal Court Act, R.S.C., 1985, c.
F-7, s. 28.
The complainant, a federal government employee, took a day off work to attend the
funeral of the father of the man he described as his lover. The two men had known each
other for over ten years and resided together in a jointly owned and maintained home.
The collective agreement between Treasury Board and the complainant's union governing
terms of employment provided for up to four days' leave upon the death of a member of
an employee's "immediate family", a term defined as including a common-law spouse.
The definition of "common-law spouse" was restricted to a person of the opposite sex.
The day after the funeral the complainant applied for bereavement leave pursuant to the
collective agreement, but his application was refused. The grievance he filed was rejected
on the basis that the denial of his application was in accordance with the collective
agreement. The complainant then filed complaints with the appellant Canadian Human
Rights Commission against his employer, Treasury Board and his union.
The Human Rights Tribunal concluded that a discriminatory practice had been committed
contrary to the Canadian Human Rights Act, which prohibited discrimination on the basis
of "family status". It ordered that the day of the funeral be designated as a day of
bereavement leave and that the collective agreement be amended so that the definition of
common-law spouse include persons of the same sex who would meet the definition in its
other respects. The Federal Court of Appeal granted the Attorney General of Canada's
application pursuant to s. 28 of the Federal Court Act and set aside the Tribunal's
decision. This appeal is to determine whether the Federal Court of Appeal erred in
holding that any error of law by a human rights tribunal is reviewable on a s. 28
116
application, and in holding that the term "family status" in the Canadian Human Rights
Act did not include a homosexual relationship. No Charter issues were raised in this
appeal.
Held (L'Heureux-Dubé, Cory and McLachlin JJ. dissenting): The appeal should be
dismissed.
Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ.: The general
question raised in this appeal is one of statutory interpretation and as such is a question of
law over which the Federal Court of Appeal has jurisdiction under s. 28 of the Federal
Court Act.
Per Lamer C.J. and La Forest, Sopinka and Iacobucci JJ.: The denial of bereavement
leave in this case was not discrimination on the basis of family status within the meaning
of s. 3 of the Canadian Human Rights Act.
_____________________
Per Lamer C.J. and Sopinka and Iacobucci JJ.: The Federal Court of Appeal had the
necessary jurisdiction to review the Tribunal's decision. Where the Court has limited the
power of intervention of the reviewing courts to cases of patent unreasonableness, the
tribunals were acting under the special protection of privative clauses. There is no such
clause immunizing the decisions of a human rights tribunal. The issue in this case is one
of statutory interpretation, and therefore a question of law reviewable under s. 28 of the
Federal Court Act. While the courts have shown curial deference toward certain
specialized tribunals in interpreting their enabling Act, such deference will not apply to
findings of law in which the tribunal has no particular expertise, such as findings of law
by human rights tribunals. If need be, La Forest J.'s reasons were adopted in this regard.
The Canadian Human Rights Act did not prohibit discrimination on the basis of sexual
orientation at the time the complainant was denied bereavement leave. When Parliament
added the phrase "family status" to the Act in 1983 it refused at the same time to add
sexual orientation to the list of prohibited grounds of discrimination. In this case, the
complainant's sexual orientation is so closely connected with the grounds which led to the
refusal of the benefit that this denial could not be condemned as discrimination on the
basis of "family status" without indirectly introducing into the Act the prohibition which
Parliament specifically decided not to include. Absent a Charter challenge of its
constitutionality, when Parliamentary intent is clear, courts and administrative tribunals
are not empowered to do anything else but to apply the law.
Per La Forest and Iacobucci JJ.: Lamer C.J.'s general approach was agreed with. With
respect to the standard of review, the general question raised is one of statutory
interpretation, and as such is a question of law over which the Federal Court of Appeal
has jurisdiction. In the absence of provisions indicating a legislative intention to limit
judicial review, such as a privative clause, the normal supervisory role of the courts
remains. While the courts have also been willing to show deference to administrative
tribunals for reasons of relative expertise, the superior expertise of a human rights
tribunal relates to fact-finding and adjudication in a human rights context, and does not
extend to general questions of law such as the one at issue in this case. These are
ultimately matters within the province of the judiciary, and involve concepts of statutory
interpretation and general legal reasoning which the courts must be supposed competent
to perform. The courts cannot abdicate this duty to the tribunal, and must therefore
117
review the tribunal's decisions on questions of this kind on the basis of correctness, not
on a standard of reasonability.
With respect to the meaning to be attributed to the words "family status", while the Act
should be interpreted generously with a view to effecting its purpose, neither ordinary
meaning, context, nor purpose indicates a legislative intention to include same-sex
couples within "family status". This is not an action under the Charter, where the Court
may review the actions of Parliament or the government.
Per L'Heureux-Dubé J. (dissenting): While courts will intervene in the face of a
jurisdictional error, or a patently unreasonable error of fact or law, they should exercise
caution and deference in reviewing the decisions of specialized administrative tribunals.
The best approach to determining the appropriate standard of review in a specific case is
one which recognizes the need for flexibility. The pragmatic and functional approach
articulated by the Court in Bibeault provides the proper framework. It must be asked
whether the legislator intended the question to be within the jurisdiction conferred on the
tribunal. If so, the role of the courts is a superintending one, and intervention will be
warranted only where the decision is patently unreasonable. This approach requires a
focus on jurisdiction which accounts for the general values of deference, and the ease
with which questions can be improperly branded as jurisdictional. Though it was first
used in the context of a board protected by a privative clause, it is a principled approach
of general application which does not focus on formal categories, but rather seeks to
determine the rationale behind deference in a specific context. The Court will examine
not only the wording of the enactment conferring jurisdiction on the tribunal, but the
purpose of the statute creating the tribunal, the reason for its existence, the area of
expertise of its members and the nature of the problem before the tribunal. If, after the
various factors are considered, it is concluded that courts should answer the question,
then the question is one which does not lie within the board's jurisdiction and the test of
correctness should apply. If it is concluded that the question should be answered by the
board, then the question is one within the board's jurisdiction and courts should only
intervene if the decision is patently unreasonable.
There is nothing in s. 28 of the Federal Court Act that dictates review of every error of
law. Review is a discretionary remedy. Given the rationale for deference and the
importance of the court's supervisory power, an error should be a serious one to merit a
court's intervention.
The Tribunal has the jurisdiction to determine questions of fact, and courts should defer
to these findings unless they are patently unreasonable. The Tribunal also has jurisdiction
to interpret its Act and, consequently, the meaning of the term "family status" in s. 3 of
the Canadian Human Rights Act. Courts should defer to the Tribunal's interpretation
since the legislature specifically intended that the Commission and its tribunals should
carry out the task of interpreting the grounds of discrimination in the Act. While courts
do have a role to play in this task, that role is a limited one, confined to overturning an
interpretation which is patently unreasonable.
It is well established that human rights legislation has a unique quasi-constitutional
nature, and that it is to be given a large, purposive and liberal interpretation. The purpose
of the Act, set out in s. 2, is to ensure that people have an equal opportunity to make for
themselves the life that they are able and wish to have without being hindered by
118
discriminatory practices. The social cost of discrimination is insupportably high, and
these insidious practices are damaging not only to the individuals who suffer the
discrimination, but also to the very fabric of our society.
Even if one were to take a textual approach to the interpretation of s. 3 of the Act, it
would not be necessary to construe "family status" as including only those families which
have recognizable status at law. The term "status" may also indicate more factual matters
of rank, social position, or relation to others. When the meaning of the French version of
the term, "situation de famille", is considered, it is apparent that the scope of "family
status" has potential to be very broad.
Parliament's decision to leave "family status" undefined is evidence of clear legislative
intent that the term's meaning should be left for the Commission and its tribunals to
define. Even if Parliament had in mind a specific idea of the scope of "family status",
there is no definition in the Act which embodies this scope. Concepts of equality and
liberty which appear in human rights documents are not bounded by the precise
understanding of those who drafted them. The enumerated grounds of discrimination
must be examined in the context of contemporary values, not in a vacuum. Their meaning
is not frozen in time and the scope of each ground may evolve. Textual context should
not detract from the purposive approach mandated by human rights documents, and
legislative intent is best inferred from the legislation itself. The Tribunal cannot be
reproached for having applied recognized principles of interpretation of human rights
legislation, in light of the particular purpose of its Act.
The Tribunal's interpretation of "family status" in s. 3 of the Act is not patently
unreasonable. The traditional conception of family is not the only conception. The
multiplicity of definitions and approaches illustrates clearly that there is no consensus as
to the boundaries of family, and that "family status" may have varied meanings
depending on the context or purpose for which the definition is desired. This same
diversity in definition is found in Canadian legislation affecting the "family"; the law has
evolved and continues to evolve to recognize an increasingly broad range of
relationships. The family is not merely a creation of law, and while law may affect the
ways in which families behave or structure themselves, the changing nature of family
relationships also has an impact on the law. It is clear that many Canadians do not live
within traditional families. In defining the scope of the protection for "family status", the
Tribunal thought it essential not only to look at families in the traditional sense, but also
to consider the values that lie at the base of our support for families. It found that these
values are not exclusive to the traditional family and can be advanced in other types of
families. On the evidence before it and in the context of the Act, the Tribunal concluded
that the potential scope of the term "family status" is broad enough that it does not prima
facie exclude same-sex couples. In making this finding, the Tribunal used the proper
interpretational approach, considered the purpose of the Act and the values at the base of
the protection of families. This is a matter that lay at the heart of the Tribunal's
specialized jurisdiction and expertise, and it cannot be said that this conclusion is at all
unreasonable, a fortiori patently unreasonable. Using a functional approach, the Tribunal
concluded that the specific relationship before it was one which, on the evidence, could
come within the scope of "family status". Since this conclusion is far from being patently
unreasonable, it must be left undisturbed.
119
The collective agreement restricted the bereavement leave to "immediate family", the
definition of which clearly included some familial relationships while excluding others,
in particular employees in permanent and public relationships with persons of the same
sex. The Tribunal found that, given the complainant's factual situation and the purpose of
the bereavement leave, the complainant had been denied an employment opportunity on
the basis of the prohibited ground of "family status". While sexual orientation may appear
to be the ground of discrimination, the central focus is "family status". The complainant
was denied leave because the relationship he had with his companion was not recognized
as a family relationship. The Tribunal, acting within its jurisdiction, identified the
complainant's claim as one of discrimination on the basis of "family status". Based on the
purpose of the Act, the purpose of the benefit, and all the evidence before it, it was
perfectly reasonable for the Tribunal to conclude that the collective agreement violated s.
10(b) of the Act, a conclusion with which the Court has no reason to interfere.
Per Cory J. (dissenting): La Forest J.'s reasons were agreed with in so far as they pertain
to the duty of the courts to review and the standard of review that should be applied to the
decisions of human rights tribunals. The absence of any privative clause in the Canadian
Human Rights Act is one of the factors that may be taken into account in determining the
deference that should be accorded the decision of a tribunal acting pursuant to that Act
and the extent of the supervisory role the court should exercise in reviewing such a
decision. Based on the factors discussed by L'Heureux-Dubé J., however, the Tribunal
was correct in determining that the term "family status" was sufficiently broad to include
same-sex couples living together in a long-term relationship and that the complainant and
his companion came within the scope of this term.
Per McLachlin J. (dissenting): La Forest J.'s reasons on the standard of review which
courts should apply to human rights tribunals were agreed with. Applying this standard,
and on the basis of the factors reviewed by L'Heureux-Dubé J., the Tribunal was correct
in concluding that the relationship between the complainant and his companion falls
within the term "family status" under the Act.
United States
1787 Constitution
Amendment XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
DENNIS v. UNITED STATES, 339 U.S. 162 (1950)
120
Petitioner, who is General Secretary of the Communist Party of the United States, was convicted in
the District of Columbia of violating R. S. 102, 2 U.S.C. 192, by willfully failing to appear before the
Committee on Un-American Activities of the House of Representatives in compliance with a
subpoena duly served upon him. On voir dire examination, government employees on the jury panel
were interrogated individually by petitioner's counsel as to whether the fact that petitioner was a
Communist, the attitude of the Committee on Un-American Activities toward Communists, or the
recently issued Executive Order 9835 providing standards for the discharge of government
employees upon reasonable grounds for belief that they are disloyal to the Government, would
prevent them from rendering a fair and impartial verdict. Seven government employees who gave
negative answers to these questions and testified that they could render a fair and impartial verdict
were permitted to serve on the jury. There was no proof of actual bias, and petitioner's challenged of
these government employees for cause was denied. Held: In the circumstances of this case,
petitioner was not denied the trial "by an impartial jury" guaranteed by the Sixth Amendment.
MR. JUSTICE FRANKFURTER, dissenting.
Let there be no misunderstanding. To recognize the existence of a group whose views are feared
and despised by the community at large does not even remotely imply any support of that group. To
take appropriate measures in order to avert injustice even towards a member of a despised group is
to enforce justice. It is not to play favorites. The boast of our criminal procedure is that it protects an
accused, so far as legal procedure can, from a bias operating against such a group to which he
belongs. This principle should be enforced whatever the tenets of the group - whether the old
Locofocos or the Know-Nothings, the Ku Klux Klan or the Communists. This is not to coddle
Communists but to respect our professions of equal justice to all. It was a wise man who said that
there is no greater inequality than the equal treatment of unequals. [339 U.S. 162, 184]
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944)
Mr. Justice BLACK delivered the opinion of the Court.
The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for
remaining in San Leandro, California, a 'Military Area', contrary to Civilian Exclusion Order No. 34 of
the Commanding General [323 U.S. 214, 216] of the Western Command, U.S. Army, which directed
that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No
question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals
affirmed,1 and the importance of the constitutional question involved caused us to grant certiorari.
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial
group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to
say that courts must subject them to the most rigid scrutiny. Pressing public necessity may
sometimes pustify the existence of such restrictions; racial antagonism never can.
Germany
Requires further editing.
German Basic Law
GBL Article 3.1.
121
All persons shall be equal before the law.
GBL Article 3.2.
Men and women shall have equal rights.
GBL Article 3.3.
No one may be prejudiced or favored because of his sex, his parentage, his race, his language,
his homeland and origin, his faith, or his religious or political opinions.
74 BVerf GE 163 (1987)
Facts:
The 1957 reform of the German Retirement Law defined a new exception to the
general retirement age of 65 years. In the current version it holds that women
may apply to receive a pension after having turned 60 year-old, provided that
they paid retirement premiums for at least 180 months and for more than ten
years during the last twenty years occupied positions in which they had to pay
retirement premiums (Section 25.3. of the Employee Insurance Law (EIL)). The
1957 reform had the stated purpose to address the fact that the women covered
by the reform often held two occupations--one as a regular employee and the
other one as a housewife--which caused a premature depletion of strength and
thereby an earlier disability to be part of the workforce. Other exceptions to the
general retirement age of 65 years are gender-neutral, for example, people who
suffer longer periods of unemployment may retire earlier as well.
The petitioner in this constitutional complaint is a widower with three children who
was born in 1919 and ran his own household. In 1979 he applied unsuccessfully
to receive a pension from the Federal Insurance Agency for Employees, claiming
that he fell within the scope of Section 25.3. of the EIL. He admitted that Section
25.3. of the EIL as it stands applied only to females but argued that he should
nevertheless enjoy coverage following the purpose of the reform. He argued
before the agency that the basic principle of gender equality requires his
coverage because he was also burdened with two occupations.
The Social Court rejected his complaint filed to contest the denial of the Federal
Insurance Agency to grant his coverage under Section 25.3. of the EIL.
The Federal Social Court affirmed the rejection. It argued that an inclusion of the
petitioner into Section 25.3. of the EIL would exceed the court’s jurisdiction to
interpret statutes. The court held that the basic rights to equality cannot be used
to alter the objectives of Section 25.3. of the EIL. Such categorizations may only
be questioned when they are clearly erroneous, which, the court noted, was not
the case here. Finally, the Federal Social Court stated that a change of social
reality may have occurred since 1957, but that it had not gone far enough to
question the validity of Section 25.3. of the EIL.
The petitioner then filed a constitutional complaint to contest the Federal Social
Court’s decision. He claimed a violation of the principle of gender equality
(Gleichberechtigungsgrundsatz) according to Articles 3.2. and 3.3. of the Basic
Law. The petitioner argued that due to a change of social and societal reality the
preferential treatment of women which was introduced in 1957 counters notions
122
of reason and justice. He claimed that today many men have to cope with two
occupations as well. Moreover women’s life-expectancy exceeded that of men by
six years and men are two-and-a-half times more likely to pass away before
reaching the age which makes them eligible to collect a pension. He concluded
that if some woman without children were entitled to retire at the age of sixty, that
he should be eligible to do the same--given the fact the he is a widower with
three children, some of whom were still in school.
The Federal Minister of Labor and Social Order, acting on behalf of the Federal
government, filed a brief with the Federal Constitutional Court justifying Section
25.3. of the EIL. The government argued that the divergent treatment of men and
women is constitutional because it is due to objective biological and functional
differences. The biological difference lies in the lower physical strength and
endurance of women. The functional difference lies in the double burden of
women who have employment and household duties to perfom. The government
argued that the social change that occurred after 1957 does not significantly
change the burden on women who are also employed. The government finally
noted that the fact that although some women never have to run a household
and raise children while some men have to raise children, does not automatically
render Section 25.3. of the EIL unconstitutional. Such cases constitute rare
exceptions which the legislator may ignore when regulating widespread
phenomena in the society through the use of general categorizations. The
disadvantaged men are always free to individually claim a right to stop working
after having turned 60 year-old.
Issue:
Is the general provision of Section 25.3. of the EIL in violation of Articles 3.2. and
3.3. of the Basic Law because it grants certain women the general right to retire
and receive a pension at the age of 60 years whereas men generally can only
retire and receive a pension at the age of 65 years?
Holding by the First Senate:
No, it is not.
Discussion:
In the first part of the discussion the Federal Constitutional Court finds that the
petitioner has standing despite the fact that he passed the age of 65 at the time
of this decision. Thereafter the court notes that the actual effect of the disputed
general exception of Section 25.3. of the EIL is not very significant. Other
exceptions, such as the possibility to retire earlier after longer periods of
unemployment, have the practical effect that the average age of retirement for
both genders now is 58 years.
Thereafter the Federal Constitutional Court notes that Section 25.3. of the EIL
has frequently been debated by courts and scholars and the issue of its
constitutionality rarely arose. Then, before embarking on the actual discussion,
the court reviews three briefs filed by the German Association of Female Jurists,
the German Association of Unions and the Federal Insurance Agency for
123
Employees which, for various reasons, all find Section 25.3 of the EIL
constitutional.]
The three cited briefs cannot be contested from a constitutional [point of view].
1. The regulation was introduced at a time at which the principle of gender
equality from Article 3.2. of the Basic Law was already binding. In the legislative
process it was justified with social considerations, namely the double burden
which many women [who are covered by the national pension insurance system]
carry. The Federal Social Court followed this reasoning in the holding which is
contested here, [and that court was moreover of] the opinion, that the change in
the social reality [since 1957] is not cause for a departure from this view.
2. As the Federal Constitutional Court has already elaborated upon in its first
decision on widows’ pensions, the option granted to the woman to receive a
pension already at the age of 60 instead of 65 years, is to be understood through
the concept of social compensation.
a) The standard of review is Article 3.2. of the Basic Law. The principle of
gender equality contained therein is equivalent to the ban of discrimination
in Article 3.3. of the Basic Law, which rules that no one may be prejudiced
or favored ‘because of his sex’. It has been applied strictly in the
administration of justice, namely [in cases] where women have been
disadvantaged. The basic right was intended to offset years of
discrimination against women. A differentiation according to gender is
permissible, when, in the light of objective biological or functional
differences, special regulations are desirable or necessary.
b) The principle of gender equality has, in past judicial decisions, favorably
been applied as a legitimate means to end discrimination. Recently it has
been debated, whether [one can derive] from the principle of gender
equality, positive duties on the part of the legislator to promote and
support the realization of the basic right. In this context the principle of
social justice (Sozialstaatsprinzip), appears to demand positive state
action. At issue in this case is whether the legislator had the right to enact
the legislation in question.
c) In the assessing whether such disadvantages occurred, how extensive
they are, and which compensating measurements are to be considered,
[one has to commence the analysis] from the perspective of the legislator.
Apart from the double burden borne by women there are additional
circumstances, which the legislator was entitled to (typisierende
Betrachtungsweise).
124
The Federal Insurance Agency for Employees correctly points out that the
educational deficit of women, which in the past significantly lessened their
professional standing and thereby their compensation and pension, in typical
cases has its origin in the anticipation of the expected position of the women as a
mother. [The fact] that women are oftentimes employed in [low-income positions
with few chances of advancement] probably has similar causes. The typical
interruptions of compensated employment due to time spend with pregnancy,
birth and child-rearing, moreover often have the result that [women cannot take
advantage of another exception to the general retirement age of 65 which allows
for retirement at the age of 63, because they do not fulfill the requirement of
having paid retirement insurance premiums for 35 years]. All of [these factors]
can be traced in their [central meaning] to the function, or at least the potential
function, of the female insured [person] as spouse and mother, thereby to
biological circumstances.
d) The advantages granted to women for these disadvantages [in the form of
Section 25.3. of the EIL], which are not very significant, do not seem worrisome.
Whether it had been more correct to seek compensation by other means is not
for the Federal Constitutional court to decide. In particular, the court cannot
object to measures of the legislator with the justification that other [measures]
would have been more efficient or useful.
III.
The change in the factual circumstances [in the society], which has already taken
place or is in the process of taking place, and the adjustments of the legal order
to the commanded equality of men and women, cause one to expect, that the
circumstances, which influence the constitutional review for the purpose of
compensating for disadvantages, over the course of continuing development, will
lose significance. [At what point in time] this will be the case, and which
conclusions will have to be drawn [from such a development], is first and
foremost to be judged by the legislator.
[signed by all eight judges]
GBL Article 3.1.
All persons shall be equal before the law.
78 BVerfGE 104 (1988)
{Translator’s Note:
A large part of this case consists of divergent interpretations of the applicable law
by the referring High Court of Bremen and the Federal government. The Federal
Constitutional Court outlines both arguments and in most parts agrees with the
interpretation of the Federal government. This discussion is not too relevant,
though, because under any of the proposed interpretations a recipient of social aid
from the state may be required to return part of that aid to the state in order to share
the cost of legal council.
125
Terms used by the court which do not have an adequate translation into English:
1. Existenzminimum. This term usually refers to a numerical value. If income or
wealth of someone falls below this certain value, it is said that the basis on which a
human existence flourishes is in danger. Where one finds such boundaries
depends on the particular circumstances, for instance, the Existenzminimum of
someone living in a European welfare state would be higher than the one of a
person living in an underdeveloped country. I translated the term with ‘income level
which is necessary to exist.’
2. Regelsatz. A monetary value defined by the Federal Social Aid Law (FSAL). The
Regelsatz is the amount of money one is entitled to get from the government to
secure one’s basic needs excluding housing and heat.
3. Regelbedarf. The numerical value which results if one adds housing and heating
costs to the Regelsatz.
4. Tabellengrenzwert. The numerical value defined in Table 1, as described below,
above which one has to share costs of legal council. I translated the term with ‘the
net income below which no installments have to be paid to share the costs of legal
council from Table 1.’}
[Facts:
The German parliament passed into law in 1980 an Act regulating state assistance
to help citizens pay for legal assistance. The Act was explicitly aimed at facilitating
the access to the courts for citizens with lower incomes. It was codified in the
German Civil Lawsuit Regulation (Zivilprozessordnung, hereafter CLR) Sections
114 and 115. Section 114 of the CLR reads that citizens who cannot, can only
partly, or can only in installments finance a non-frivolous lawsuit and have sufficient
chances of winning, are entitled to state aid to finance legal council. For details as
to who is entitled to receive aid, Table 1 is attached to Section 114 of the CLR.
Table 1 spells out in detail installment payments citizens who receive aid to finance
legal counsel have to pay for a period of up to four years. No installments at all
need to be paid in cases where the citizen has a net monthly income of up to DM
850. Section 115 of the CLR lists some specific rules. Noteworthy for this case is
Section 115.1. third sentence of the CLR which allows the courts to reduce the
amount of net income to be used in Table 1 under certain circumstance to allow
some to pay lower installments of no installments at all.
The legislator in 1980 arrived at the amount of DM 850 by the following calculation:
1. Twice the Regelsatz as defined in the Federal Social Aid Law. On January 1,
1979 this amount was set at DM 297.
2. A lump-sum for housing of DM 156.
3. A sum of DM 100 for additional improvement of the situation of the poor.
This case was referred to the Federal Constitutional Court by the State Court of
Bremen. That court had before it a request of a single mother with two children to
receive state assistance to pay for her legal counsel. The mother lived on social
aid. She received DM 1005.74 by the following calculation following the Federal
Social Aid Law:
1. The Regelsatz as defined in the Federal Social Aid Law. On September 16, 1986
this amount was set at DM 392.
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2. Individual additional support of DM 131.24 as provided for in the Federal Social
Aid Law.
3. Support for housing of DM 482.50 as provided for in the Federal Social Aid Law.
Sections 114 and 115 in conjunction with Table 1 of the CLR required the mother to
share the cost for her legal counsel by monthly installments of at least DM 35. The
State Court of Bremen interrupted the request of the mother for aid and referred the
following question to the Federal Constitutional Court: Are Sections 114 and 115 in
conjunction with Table 1 of the CLR in violation of Articles 3.1. and 20.1. of the
Basic Law?
The State Court of Bremen contended that the principle of a social state of Article
20.1. of the Basic Law (Sozialstaatsgebot) commands the state to protect the
elementary needs of its citizens as well as to assure that citizens with low incomes
receive aid to finance legal counsel. The court continued that only elementary
needs are being protected by the Federal Social Aid Law, the law which allocated
to the mother DM 1005.74. Furthermore, the duty to assure that citizens with low
income receive aid to finance legal counsel has to be assured in addition by means
of Sections 114 and 115 in conjunction with Table 1 of the CLR. The court
concluded the current version of the CLR is in violation with Article 20.1. of the
Basic Law because it requires citizens to draw funds from their state aid for their
elementary needs as provided by the Federal Social Aid Law to repay part of their
aid to finance legal council.
The State Court of Bremen also argued that Sections 114 and 115 in conjunction
with Table 1 of the CLR are in violation with Article 3.1. of the Basic Law. The court
contended that Federal Social Aid Law contains many regulations which allow
citizens with low income to claim support for particular situations of life. Examples of
such aid are extra support for pregnant women and for old, blind, or handicapped
people. The fact that the aid to finance council is treated differently than the aid for
other needs is in violation of Article 3.1. of the Basic Law.
The Federal government counterargued that the different treatment of aid granted
under the Federal Social Aid Law and aid granted pursuant Sections 114 and 115
in conjunction with Table 1 of the CLR is not unconstitutional. The Federal
government stated that the difference in the treatment is within the discretion of the
legislator.
Issue:
Is Table 1 of section 114 of the CLR in accord with the Basic Law?
Holding by the First Senate:
Yes, it is.
Discussion:
Table 1 of Section 114 of the CLR is in accordance with the Basic Law.
1. The principle of social justice (Sozialstaatsprinzip) and the equality before the law
guaranteed by Article 3.1. of the Basic Law also apply [to people’s abilities] to claim
and win individual legal positions with the aid of state courts. Since the state
regularly makes access to these courts contingent on cost advances and often on
having legal representation, the realization of equality before the law can be
127
factually at stake in cases [where citizens do not hold economic wealth]. Therefore
the legislator has to ensure that also the party without wealth is put into a position in
which he can pursue his interests in a lawsuit in a manner that is in accord with the
principle of equality. The alignment of the situation of people with wealth and
people without wealth in the legal realm cannot be complete. Rather, the extent [of
the alignment] is within the discretion of the legislator. The constitution solely
demands that even for the poor party the pursuit of a lawsuit is not rendered
impossible. Such a result would have to be feared if, without aid to finance legal
council from the state, [the income of a party would drop below the level which is
necessary to exist].
2. The securing [that no one’s income drops below the level which is necessary to
exist] is duty of the social aid law. The Regelbedarf [as defined] in the social aid
law, which is set with respect to actual consumption and gets periodically adjusted
[to economic changes], can therefore be used as a guideline for [the question
whether people have to pay installments to share the cost of aid to pay for legal
council]. The Regelbedarf is supposed to ensure a standard of living that allows the
individual to live a life worthy of a human being. The costs of pursuing a lawsuit are
not included in this basic need. That this must be correct] can be shown by the fact
that a needy person entitled to social aid is entitled to funds in addition to the
Regelbedarf in particular situations of life. Whereas the [Regelbedarf] serves to
secure the income level which is necessary to exist, the aid for extraordinary
situations of life covers specific situations of need. [The pursuit of one’s legal right in
the courts is such a specific situation of need.] It follows that [a person cannot be
demanded to pay installments] to share the costs, if the entitled party’s income is
[not larger] than the Regelsatz as defined in social aid law. [The Regelsatz] must be
at free disposal without limitation [to finance the needy person’s life].
3. The Regelsatz for the aid to sustain the life of a single was set at DM 297 on
national average in [1980, the time the Act regulating aid to citizens for legal council
was debated]. The legislator used this value to set the amount of [net income below
which no installments have to be paid to share costs of legal council from Table 1].
In September 1985 the Regelsatz had increased to DM 385 and in September
1987 it had increased to DM 403. The monthly aid for shelter and heat are not
covered by the Regelsatz, but rather the amount of the actual cost [for shelter and
heat] are being granted in addition. When the legislator [in 1980 set the net income
below which no installments have to be paid to share the cost of legal council in
Table 1] at DM 850, he presumed a lump sum of DM 156 for housing. In the year of
1983 [the responsible agencies] set the average values for rent at DM 234 and for
heat at DM 59. Taking into consideration the increases in prices since then, one
may set the average need for a single social aid recipient for housing and heat at
about DM 300. Together with the current average Regelsatz of DM 403, an
average Regelbedarf of roughly DM 700 for a single person results.
4. [The net income below which no installments have to be paid to share costs of
legal council from Table 1] is therefore still clearly higher than the amount which is
necessary to secure the income level which is necessary to exist. The same holds
for a party with dependents [and the applicable values from Table 1 and the
128
applicable values for the income level which is necessary to exist].Even if in
individual cases the social aid received by a party is larger than the [net income
below which no installments have to be paid to share costs of legal council from
Table 1], it is not possible to derive therefrom constitutional [objections] against
Table 1. Even in those cases, the use of Table 1 does not necessarily lead to
unconstitutional results, because Section 115.1. third sentence of the CLR leaves it
open to [the lower courts] to make deductions from the amount of income which is
used in Table 1. The possibility of making deductions from the amount of income
which is used in Table 1, pursuant to Section 115.1. third sentence of the CLR, is
being used by [a large majority of courts], especially if the [rent of the party that is
entitled to receive social aid] amounts to more than 18 percent of the disposable
net income.
5. However one cannot fail to recognize that the Regelbedarf [as defined in the
social aid law] by now came very close to [net income below which no installments
have to be paid to share costs of legal council from Table 1]. The legislator will
therefore have to pay attention that with further increases of the Regelsatz in the
social aid law, the [required installments to share the costs of legal council] do not
endanger the income level which is necessary to exist of the party without wealth.
II.
[One can also not conclude from the fact that the net income below which no
installments have to be paid to share costs of legal council have not risen since
1980] whereas the income boundaries [for free disposal] with respect to aid granted
in particular situations of life under the Federal Social Aid Law have been increased
in the meantime, that [Table 1] is unconstitutional. The dissimilar treatment is not
based on arbitrariness.
1. [The Federal Constitutional Court next outlined some regulations of the Federal
Social Aid Law. According to the FSAL there exist twelve situations for which
citizens can claim additional aid, for instance, aid for pregnant women, aid for the
blind, sick or elderly. The court than outlined how special regulations of the FSAL
with respect to these twelve situations result frequently in higher income boundaries
for free disposal in these twelve cases. Then the Federal Constitutional Court
outlined the possible and frequent results of these regulations. It may for example
happen that a single mother receives DM 1000 in social aid including the aid for
special situations. In many situations these DM 1000 will be at her free disposal
because the FSAL earmarked these funds to be at the recipients free disposal. At
the same time another person who receives DM 1000 in social aid and no aid for
special situations or someone who earns that amount on the labor market may not
have the entire amount at her free disposal. In result the first woman would not
have to pay installments to share costs of legal council from Table 1, whereas the
second woman would have to pay. After outlining this the court proceeded to
explain why this practice is not arbitrary.]
2. The legal regulations with respect to aid to finance legal council on the one hand,
and the regulations with respect to aid in particular situations of life on the other
hand, do not differentiate between certain people or groups of people. Rather they
regulate different factual areas (Sachbereiche). The question of compatibility with
129
the principle of equality is therefore not a question of personal, but rather a question
of factual equality before the law. The regulation may not treat essentially similar
[things] arbitrarily dissimilar and [the regulation may not treat] essentially dissimilar
[things] arbitrarily similar. Which elements of a factual situation
(Sachverhaltselemente) are so essential as to justify a differentiated treatment has
to be decided in the first place by the legislator. A far-reaching discretion in
designing [regulations has always been granted to the legislator]. This discretion [of
the legislator] in designing [regulations] extends further in the realm of providing
administration [than it reaches ] in the legal regulations of encroachments by the
state. In particular, the Federal Constitutional Court has to exercise the largest
restraint in imposing upon the legislator, with the justification of the principle of
equality, in the realm of providing administration, additional duties [to deliver
welfare]. A violation of the [duty to refrain from arbitrary actions] can only be found if
[neither] a reasonable justification which flows from the nature of the subject matter
[nor] any other somehow sensible justification can be found.
3.a) A factual reason for the dissimilar setting of the income boundaries [for free
disposal] flows already from the different subject matters to be regulated. The aid
granted for the particular situations of life ([as is true for the basic aid]) has the
purpose to enable the recipient to lead a life worthy of a human being. [In cases
where aid for particular situations of life is granted, the legislator explicitly decided]
to grant people with low incomes protection which goes beyond the basic amount
of aid (Regelsatz). [The underlying rationale of the legislator was that the people
who find themselves in these particular life situations] generally have an increased
need to meet the costs of their lives. [Such an argument] does not hold for the aid
to finance legal council. An increased situation of need, which would necessitate an
accordingly [larger income at free disposal], is regularly not present for persons who
participate in a lawsuit. [If such an increased situation of need should be present in
exceptional cases, it is always possible] make adequate deductions from the
income to be used for Table 1 pursuant to Section 115.1. third sentence of the
CLR.
b) Moreover, the different purposes of the aid, on the one hand social aid, on the
other hand aid to finance legal council, already includes sufficient justification for
the divergent settings of the income boundaries [for free disposal. The various
kinds of aid] granted by the social law have the purpose to ensure an existence
worthy of a human being. Such a securing of [the income level which is necessary
to exist] is a task for the state more pressing than enabling [people] to engage in a
lawsuit. Therefore one cannot find it arbitrary if the legislator [ranks securing of an
income level which is necessary to exist higher than the aid to finance legal council]
and sets different income boundaries [for free disposal] in both cases. And
generally, it is upon the legislator to decide to what extent social aid, keeping in
mind the [limited] availability of funds and other equally highly ranked tasks, can
and should be granted.
c) Finally, the legislator is not obliged, in reference to the duty not to act arbitrarily,
to increase the [net income below which no installments have to be paid to share
costs of legal council from Table 1], because he oriented himself in the setting of
130
[net income level with the aid of the monetary amounts granted by the Federal
Social Aid Law. No kind of] ‘self-binding’ by the legislator results [from the original
criteria to set the net income below which no installments have to be paid to share
the costs of legal council from Table 1]. Even if one assumes, [like the High Court of
Bremen does], that the monetary values in Table 1, if looked at from the
[perspective of other adjustments of social policy grants], have not been adjusted
for a relatively long time, in this lies not a violation of Article 3.1. of the Basic Law. It
may remain unanswered, whether the [failure to adjust] the monetary values in
Table 1 represents an [adversity or unfavorability in the system] (Systemwidrigkeit)
in reference to other social policy grants. Such a [adversity or unfavorability of the
system] alone would not amount to a violation of Article 3.1. of the Basic Law.
[Signed by all eight judges]
131
GBL Article 3.1.
All persons shall be equal before the law.
GBL Article 3.2.
Men and women shall have equal rights.
GBL Article 3.3.
No one may be prejudiced or favored because of his sex, his parentage, his race,
his language, his homeland and origin, his faith, or his religious or political opinions.
85 BVerfGE 191 (1992)
{Translator’s Note:
This case uses categorical German terms for which no exact English equivalent
exist. I defined the categories as follows:
1. Arbeiter. This category consists of people who traditionally occupied themselves
with manual labor. These people used to wear blue collars and receive a paycheck
determined by hourly wages. I translated the term with ‘laborer’ or ‘worker’.
2. Angestellte. This category consists of people who traditionally occupied
themselves with non-manual labor. These people receive a salary. I translated the
term with ‘employees’.
3. Arbeitnehmer. Arbeitnehmer as a group includes Arbeiter and Angestellte. The
term covers everyone who is working and not self-employed. I translated the term
with ‘working person’.
The distinction between Arbeiter and Angestellte used to indicate education and
social status, the latter being the one more highly regarded. Today an engineer in a
factory could fall under Arbeiter and a doorman could fall under Angestellte. The
distinction has little meaning left.}
[This case is a constitutional challenge of Section 19.1. first alternative of the Work
Time Regulation (Arbeitszeitordnung, hereafter WTR) in the version last amended
on March 10, 1975. That section reads that female workers may not be employed
to work between 8 p.m. and 6 a.m. on regular days and after 5 p.m. on days before
Sundays and holidays. The regulation has many general exceptions, for instance, it
does not apply to health care, restaurants and transportation. The regulation is
aimed at employers and provides for fines against employers who hire female
workers for work at night.
The case is a consolidation of one constitutional complaint and two referrals from
lower courts. The Federal Constitutional Court only discusses the complaint and
finds the referrals invalid.
The petitioner in the constitutional complaint is a superior in a factory producing
baked goods. She was fined DM 500 for a violation of Section 19.1. after four
female workers were caught packing cakes at night. The petitioner challenged the
fine in front of a trial court. That court and an appellate court rejected her challenge
of Section 19.1. of the WTR. She then filed a constitutional complaint.
132
The petitioner alleged that Section 19.1. of the WTR violates Article 3.1. of the
Basic Law because it differentiates without a reason between the women covered
by Section 19.1. and those who are not. Moreover the petitioner alleged that
Section 19.1. of the WTR violates Article 3.3. of the Basic Law because it disfavors
women for no reason since work at night is as harmful to men as it is to women.
The Federal Constitutional Court then reviewed briefs and statements from various
high courts. Thereafter it found the constitutional petition valid. The court noted that
although the petitioner herself is not being discriminated against since she is no
female worker, she may nevertheless bring a constitutional challenge because if
Section 19.1 of the WTR violates Article 3 of the Basic Law, her right to free
development from Article 2.1. of the Basic Law would be encroached upon.
Issue:
Is Section 19.1 of the WTR in violation of Article 3 of the Basic Law?
Holding by the First Senate:
Yes, it is.
Discussion:
The constitutional complaint is justified. The challenged decisions [of the courts
which affirmed the DM 500 fine] are based on the prohibition to employ female
workers at night as declared by Section 19.1. of the WTR. That prohibition,
however, is irreconcilable with Article 3.1. and 3.3. of the Basic Law. The imposition
of a fine based upon this unconstitutional legal foundation violates the petitioner in
her basic right to [be unconstrained in one’s choices from Article 2.1. of the Basic
Law] (Handlungsfreiheit).
The prohibition for female workers to work at night (Section 19 of the WTR) violates
Article 3.3. of the Basic Law.
1. According to this constitutional norm, no one may be prejudiced or favored
because of his gender. [This norm] strengthens the general principle of equality
from Article 3.1. of the Basic Law by drawing narrower boundaries limiting the
legislator’s discretion (Gestaltungsfreiheit). The gender [of a person], as well as the
other attributes mentioned in [Article 3.3. of the Basic Law], may not, as a matter of
principle, be used as [a decisive criteria] (Anknuepfungspunkt) for divergent
treatment. This also holds if a regulation is not aimed at a divergent treatment
prohibited by Article 3.3. of the Basic Law but rather pursues other goals.
[If the question to be addressed solely is] whether a regulation does not favor
women because of their gender, Article 3.2. of the Basic Law does not include any
further-reaching or more specific requirements [than Article 3.3. of the Basic Law].
The regulatory content of Article 3.2. of the Basic Law which surpasses the
prohibition to discriminate from Article 3.3. of the Basic Law consists therein that
[Article 3.2.] introduces a command of equality (Gleichberechtigungsgebot) and
reaches into social reality. The sentence ‘Men and women shall have equal rights’
does not only strive to eliminate legal norms which [make] advantages and
disadvantages [dependent] on gender attributes, [it also strives for] pushing through
the equality of the genders in the future. It aims at the alignment of the
circumstances of life. Women must have the same [possibilities in the job market as
133
men]. Overcome [social assignments of certain roles to women] which lead to a
higher burden or other disadvantages for women, may not be strengthened by state
measurements. Factual disadvantages which typically affect women, may be
balanced by favoring regulations due to the command of equality of Article 3.2. of
the Basic Law.
In this case [the issue] is not an alignment of situations, but rather the abolishment
(Beseitigung) of a current divergent legal treatment. Section 19.1. of the WTR treats
female workers unequal ‘because’ of their gender. Although the addressee of the
regulation is the employer, the effect of the prohibition to work at night immediately
strikes female workers. [In contrast to male employees, female workers] are being
deprived of the possibility to work at night. In this lies a divergent legal treatment [of
female workers which is caused by their membership of a gender group].
2. However not every divergent legal treatment which is [entirely dependent] on
gender, violates Article 3.3. of the Basic Law. Differentiating regulations can be
permissible if they [are a necessity] for the solution of problems that can, by their
nature, only occur either with men or with women. Such a case is not [in front of the
court today].
a) The assumption which originally was the basis [for introducing the prohibition for
female workers to work at night] that female workers, due to their [physical]
constitution, suffer more from work at night than male employees, [could not
securely be confirmed by medical research on the effects of work]. Work at night is
principally damaging to every human being. It leads to sleeplessness, distortions of
the appetite, distortions of the digestive system], increased nervousness and
sensitivity as well as to a lowering of [people’s ability to perform]. Specific health
risks that are due to the female [physical] constitution are not identifiable with
sufficient certainty.
b) As far as studies indicate that women are more negatively affected by work at
night, this is generally being traced to their additional burdening with household
work and caring for children. Women who have to fulfill these duties in addition to
nighttime employment do not come to rest during the day and particularly cannot
find continuous sleep during the day. It is obvious that [these women], to a
particular extent, have to suffer from the health damaging consequences of a
distorted day-night-rhythm.
However, the prohibition to work at night [which] applies to all female workers
cannot be based [on these health damaging consequences]; for the additional
burdening with household work and caring for children is not a sufficiently genderspecific attribute. [It is true that] it is in accord with the traditional understanding of
roles of men and women that the women runs the household and cares for the
children, and one can also not deny that this role also falls very often to the women
even [in cases] when she works exactly like her male partner. This double burden,
however, strikes in its full weight only women with children who require care, as far
as they are single or their male partner, despite her work at night, leaves for her the
caring for the children and the household work. In the same manner [the double
burden] strikes men [who raise children alone] and in a milder form [the double
134
burden strikes] men and women who share the work in the house and with the
children.
Such a social finding is insufficient--independent of the number of affected
[persons]-- for the justification of a gender related divergent treatment. The
undeniable right to be protected of female night workers and male night workers,
who simultaneously care for children and run a household [with several members],
can more adequately be [provided for] with regulation which [uses the double
burden as a decisive criteria and not gender].
c) For the current prohibition to work at night [one often encounters the argument]
that women are subject to particular dangers on their way from and to work at night.
This is certainly true in many cases. But this also cannot justify to prohibit all female
workers to work at night. The state may not evade its duty to protect women from
physical attacks on public streets [by causing them not to leave the house at night
with the mean of limiting their occupational freedom]. Moreover, this reason does
not apply so generally to the group of female workers that it could justify to disfavor
all female workers. For instance, a particular endangerment can be absent [if
transportation from and to work is available.]
3. The violation of the prohibition to discriminate with respect to gender (Article 3.3.
of the Basic Law) is not justified by the duty to ensure gender equality
(Gleichberechtigungsgebot) of Article 3.2. of the Basic Law. The prohibition to work
at night from Section 19.1 of the WTR is not supportive of the aims of Article 3.2. of
the Basic Law. It surely protects a large number of women who, [in addition] to
caring for the children and doing household work, [have an outside employment]
from health-endangering work at night. This protection, however, is related to
significant disadvantages: [The regulation] disfavors women in their search for
employment. [Women] cannot accept work which at least at times must be
performed at night. In some sectors [of the economy this exclusion of women] has
led to a clear decrease of education and use of female employees. In addition
female workers are being prevented from disposing freely their time [between work
and non-work. Moreover women are being prevented from earning [extra benefits
awarded for night work. All these limitations] may also have the consequence that
women unceasingly will, to a larger degree than men, be burdened with caring for
children and doing household work [in addition have an outside employment], and
that thereby the overcome assignment of roles to the genders get reinforced. In that
sense the prohibition to work at night renders more difficult the deconstruction of
social disadvantages of women.
II.
Section 19.1. of the WTR also violates Article 3.1. of the Basic Law because the
regulation treats female laborers different from female employees without sufficient
reason.
1. The general principle of equality from Article 3.1. of the Basic Law prohibits the
legislator from treating the legal situation of different groups of persons. in a
differentiating manner, when between [the groups] there are no differences of such
a kind or such a weight which could justify the divergent treatment. [It is
135
irreconcilable with this principle] that female laborers, with respect to work at night,
are being treated differently from female employees.
2. The divergent treatment of these two groups of working persons could only be
justified, if female employees would be less burdened by work at night than female
laborers. For this [lower damaging effect for one group] there is no proof. [In
contrast] the relevant medical studies on the effects of work indicate that the healthdamaging effects of work at night strike both groups in the same manner. Whether
this is causally related to an alignment of the work contents of female laborers and
female employees in the train of technical development, or, whether work contents
from the beginning had no effect on the [amount of negative consequences] of work
at night, need not be decided. In any event, one cannot perceive a different need
for protection between female laborers and female employees which alone could
justify a divergent regulation of work at night in the light of the general principle of
equality from Article 3.1. of the Basic Law.
3. The divergent treatment of female laborers and female employees may also not
be justified [with the argument] that the two groups of female working persons are
called upon to work at night [in different degrees. An empirical study from spring
1989 shows that about] 478,000 female employees worked at night. That
represents 7.8 percent [of all female employees]. Therefore one may not argue that
the group of female employees typically gets spared from working at night. In any
event, the group of female employees is not a group which gets affected to such a
small extent by work at night, that it could have remained [unaddressed] by the
legislator in the context of permissible [categorizing of people (Typisierung)]...
D.
The challenged holdings rest upon the unconstitutional regulation of Section 19.1.
of the WTR. Therefore they have to be reversed.
[signed by all eight judges]
India
This section requires elaboration:
State of Gujarat v Shri Ambica Mills AIR 1974 SC 1300 at 1314-15.
INDIAN CASES ON AFFIRMATIVE ACTION 1990 96
1 AJIT SINGH JANUJA V STATE OF PUNJAB AIR 1996 SC 1189
The case arises on the question of whether a person belonging to scheduled
caste or backward caste (SC or BC) can claim a seniority in promotion in general
category in the
136
higher grade when he reached the higher grade by virtue of reservation in the
lower grade (roster system).
Held: The members of the SC or BC class who have been appointed or
promoted on the basis of reservation and system of roster cannot claim
promotion against general category posts in the higher grade ,on the their
seniority being achieved in the lower grade because of accelerated promotion
.The equality principle requires exclusion of the factor of extra weightage of
earlier promotion to a reserved category candidate because of reservation
alone,when he competes for further promotion to a general category with a
general category candidate ,senior to him in the panel.
Art 16(4) reservation gives accelerated promotion but not accelerated
consequential seniority .
The policy of reservation cannot be implemented in a manner to block the merit
channel and to make it dry and care has to be taken that efficiency of the
administration is not harmed and there is no reverse discrimination.
2.UNION OF INDIA V VIRPAL SINGH CHAUHAN 1996 SC448
This case also arises on the question of claim of seniority in higher grade by the
reserved candidates who obtained promotion by reservation.
Held : Is open to the state to provide that the rule of reservation shall be applied
and the roster followed in the matter of promotions to or within a particular
category ,the candidate promoted by virtue of rule of reservation shall not be
entitled to seniority over his seniors in the feeder category and that as and when
a general candidate in the feeder category is promoted ,such general candidate
will regain his seniority over the reserved candidate not withstanding the fact that
he is promoted subsequent to the reserved candidate .There is no
unconstitutionality involved in such a provision.
3. VALASAMMA PAUL V COCHIN UNIVERSITY AIR 1996 SC 1011.
Whether a candidate born in forward class ,but subsequently transplanted into
backward class by marriage, adoption or any other voluntary act can claim
reservation under Art 15(4)or 16(4) ?
Held: No. SCs and BCs suffered social and economic disabilities historically.
Therefore they are entitled to reservations .A candidate who had advantageous
start in life being born in forward class but is transplanted into backward class by
marriage or adoption does not become eligible to the benefit of reservation
.Acquisition of status of SC by voluntary mobility into these classes would play
fraud on the Constitution and frustrate the constitutional policy.
137
4. INDRA SAWHNEY V UNION OF INDIA AIR 1993 SC 447
Held : In the reservation for the backward classes the creamy layer should be
excluded .the exclusion makes the class a truly backward class. The very
concept of a class denotes a number of persons having certain common traits
which distinguish them from others .In a backward class if the connecting link is
the social backwardness it should be the same .If some of the members are far
too socially advanced then the connecting link between them snaps .they would
be misfits in the class .After excluding them alone would the class be a truly
backward class .The Supreme Court therefore directs the govt. to specify the
criteria for such exclusion income or extent of holding or otherwise.
INDRA SAWHNEY V. UNION OF INDIA AIR 1993 SC 477.
ECONOMIC CRITERION TEST
The Government of India in 1979, appointed a Backward Class Commission to
investigate the conditions of socially and educationally backward classes within
India, which came to be popularly known as ‘Mandal Commission’. The terms of
reference of the Commission were
 To determine the criteria for defining the socially and educationally backward
classes:
 To recommend the steps to be taken for the advancement of socially and
educationally backward classes of citizens.
 To examine the desirability of making provisions for the reservation of
appointments or posts in favor of such backward classes of citizens which
are not adequately represented in public affairs and posts in connection with
the Union or State governments.
The report of the Commission was submitted and it was laid before Parliament in
1982 and 1983.The Government after considering the recommendations of the
Commission issued a notification giving effect to the recommendations. Accordingly
:
27% of the vacancies in civil posts and the services in the Government of
India were reserved for the Socially and educationally backward classes
(SEBCs).
This reservation to be applied to the vacancies to be filled by direct
recruitment
Candidates belonging to SEBC recruited on the basis of merit in an open
competition on the same standards prescribed for general category shall not
be adjusted for this purpose.
The notification was subsequently modified and the following changes were
made:
138
Within the 27% of the vacancies in civil posts and services under the
Government of India reserved for SEBCs, preference shall be given to the
candidates belonging to the poorer sections of SEBCs.
10% of the vacancies shall be reserved for other economically backward
sections of the people who are not covered by any of the existing schemes
of reservation.
Several writ petitions were filed challenging the above two notifications issued by
the Government.
The Court framed several questions that were raised .The Supreme Court on the
issue of ‘Economic Criterion’ proposed to be introduced in recognition of Backward
classes
held :
>Means test = here signifies imposition of an income limit, for the purpose of
excluding persons (from the backward class) whose income is above the said limit.
This submission is very often referred to as the >creamy layer = test. The very
concept of a class denotes a number of persons having common traits which
distinguish them from the others. If some of the members are far too advanced
socially (includes economically and educationally) the connecting thread between
them and the remaining class snaps. They would be misfits in the class. After
excluding them alone would the class be a compact class. Difficulty however, really
lies in drawing the line. The basis of exclusion should not merely be economic,
unless the economic advancement is so high that it necessarily means social
advancement. A member of a backward class, say a carpenter goes to the middle
east and works there as a carpenter. If his annual income is taken it will be much
higher than the Indian standard. Are his children in India to be excluded? Situation
may be different if he rises so high economically that for example he becomes a
factory owner, it means that his social status also rises and he would be in a
position to provide jobs to the others, in such a case his income is just a measure
of his social status. Even otherwise, there are many practical difficulties in imposing
an income ceiling. For example, annual income of Rs.36,000/- may not count for
much in a city like Bombay, Delhi or Calcutta, whereas it may be a handsome
income in rural India. The line to be drawn must be a realistic one. Another question
would be should such a line be uniform for the entire country or a given state or
should it differ from rural to urban or so on.
Further, income from agriculture may be difficult to assess, the line may have to be
drawn in relation to the extent of the holding. The income limit should be such as to
mean and signify social advancement. At the same time it must be recognized that
there are certain positions, the occupants of which can be treated as socially
advanced without further inquiry. For example, if a backward class person becomes
a member of Indian Administrative Service (IAS) or Indian Police Service (IPS)(
these are the prestigious civil services in India) his status in society rises.
139
Keeping in mind all these considerations, we direct the government to specify the
basis of exclusion- whether of income, extent of holding or otherwise of >creamy
layer =. This is to be done in four months. On such determination, persons falling
within the exclusionary rule shall cease to be members of such Backward class.
The limits of reservation
The Supreme Court affirmed the rule of 50% laid down in Balaji v State of Mysore(
AIR 1963 SC 649) and held that the 27% reservations provided in the impugned
notifications is well within the 50% limit, as the 27% put together with the
reservation for the Scheduled castes and the scheduled tribes it totals to 49.5%
and so this is within the permissible limit.
The proposed reservation of 10% of the posts in favor of economically poorer
sections who do not fall under any other category of reservation (as provided in the
notification) was held to unconstitutional. The Court held reservation of 10% of the
vacancies among the open competition candidates on the basis of income/ property
holding means, exclusion of others above that ceiling from the 10% seats. This bar
is not permissible and it would mean debarring the person solely on the basis of his
income/property. Therefore, it is unconstitutional.
EUROPEAN COMMUNITY
[European] Convention for the Protection of Human Rights and Fundamental
Freedoms2
Article 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other
status.
Cases 1 – 10: summaries required
1. Johnson v Chief Adjudication Officer C-31/90: Social Security- Equal
treatment of men and women.
2. Jackson & Anor v Adjudication Officer C-63/91, 64/91: Social Security- Equal
treatment of men and women; employment and vocational training- equal
treatment of men and women.
2
213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols Nos 3, 5, and 8
which entered into force on 21 September 1970, 20 December 1971 and 1 January 1990
respectively:
140
3. Commission of European Communities v French Republic 312/86: Social
Policy-sexes-access to employment and working conditions-equal treatment.
4. Regina v Secretary of State for Employment ex parte Equal Opportunities
Commission 1993 1 CMLR 915: Employment, sex discrimination, part time
work, dismissal.
5. Re Reduntant Women Employees: EC Commission v Belguim 1993 2 CMLR
165: Employment, sex discrimination, pay.
6. Re Unemployed Heads of Households: EC Commission v Belguim 1993 2
CMLR 403: Social security, sex discrimination, indirect discrimination,
unemployment benefits, family responsibilities.
7. Re A Part Time Scenery Painter 1993 2 CMLR 565: Employment, sex
discrimination, indirect discrimination, part time work.
8. Rinner-Kuhn v FWW Spezial-Gebaudereinigung GmbH & Co 1993 2 CMLR
932: Employment, sex discrimination, indirect discrimination, sick pay.
9. Handels-og Kontorfunktionarernes Forbund I Danmark v Dansk
Arbejdsgivefforening C-179/88: Social policy, male and female workers,
dismissal due to illness attributable to pregnancy or confinement.
10. Elizabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong
Volwassenen (VJV-Centrum) Plus C-177/88: Refusal to appoint pregnant
woman
Employment: equal treatment: elaborate on these cases
1. Helga Nimz v Freie und Hansestadt Hamburg C-184/89: Classification in a
higher salary grade. Doubling of the qualifying period for part time employees.
Part time workers consist principally of women. Indirect discrimination not
permissible unless objectively justified.
2. Anna Cotter and Norah McDermott v Minister for Social Welfare and Attorney
General C-377/89: Equal treatment form men and women in matters of social
policy. Increase in social security benefits automatically granted to married
men. Obliged to do the same with married women even if it results in double
payment to the same family; and notwithstanding prohibition on unjust
enrichment laid down by national law.
3. Commission of European Communities v Kingdom of Belguim C-229/89:
Amount of unemployment and disability benefits; justify by reasons unrelated
to sex.
4. Gabriele Habermann-Beltermann v Arbeiterwohlfahrt, Bezirksverband
Ndb./Opf. eV C-421/92: Equal treatment: Contract without a fixed term for
night time work between employer and pregnant worker, both of whom were
unaware of the pregnancy. Void on account of statutory prohibition on night
time work by pregnant women. To avoid obligations under contract because
of temporary invalidity would be contrary to the the objective of protecting
persons under article 2 (3).
5. Office National de l’Emploi v Madeleine Minne C-13/93: National provisions
prohibiting night work for men and women but providing for exceptions for
141
women. Only permissible if justified on grounds of necessary protection of
women - pregnancy and maternity. Commission of the European
Communities v French Republic C-312/86: these measures do not apply to
older female parents.
6. Carole Louise Webb v EMO Air Cargo (UK) Ltd C-32/93: Dismissal of female
employee recruited for an unlimited period to act as an immediate
replacement for another employee during the latter’s maternity leave, but who
cannot so act because of her own pregnancy- Not permissible.
7. Birds Eye Walls Limited v Friedel M Roberts C-132/92: Employment: Sex
discrimination: Bridging pension: equal treatment under art 119 that
presupposes that all persons are in identical situations is not applicable iro
pension paid to those who retire early because of ill-health.
Sexual orientation: Homosexual rights: elaboration required
1. Dudgeon v United Kingdom 4 EHRR 149 1981: private life; gross indecency;
private conduct between consenting males aged 21 liable to prosecution.
Pressing social need. Principle of proportionality. Cannot be said to be
justifiable as being necessary in a democratic society.
2. Cossey v United Kingdom 13 EHRR 622 1990: transsexuals: alteration of
birth certificate- not enough evidence to suggest a fundamental change in
attitude towards this issue. Right to marry- not enough uniformity of practice
to suggest that the traditional concept of marriage be rejected.
3. Modinus v Cyprus 16 EHRR 485 1993: Practice of homosexuality as a
criminal offence. Private life: interference; justification of the interferencenone; Just satisfaction.
STUBBINGS AND OTHERS v. THE UNITED KINGDOM (36-37/1995/542543/628-629) 22 October 1996: rules on limitation preventing alleged victims of
child sexual abuse from commencing civil proceedings
SUMMARY
United Kingdom - rules on limitation preventing alleged victims of child sexual abuse
from commencing civil proceedings (Limitation Act 1980)
I. Article 6 § 1 of the Convention3
3
Article 6.1. In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
142
Applicants claimed psychological after-effects of abuse prevented them from realising
they had cause of action against abusers until after expiry of applicable limitation period.
Very essence of right to court not impaired because English law of limitation allowed
applicants six years from eighteenth birthdays to initiate civil proceedings and criminal
prosecution could be brought at any time.
Limitation rules served legitimate aim - ensuring legal certainty and finality - and were
proportionate.
At present no uniformity in member States as to date from which limitation periods are
reckoned, although possible that States may have to amend rules as awareness of child
sexual abuse develops.
Since very essence of right not impaired and restrictions pursued legitimate aim and were
proportionate, relevant rules within margin of appreciation allowed to States in regulating
access to court.
Conclusion: no violation (seven votes to two).
II. Article 8 of the Convention4
Complaint by only three of four applicants.
States under positive obligation to protect children and others from sexual abuse by
providing effective deterrence.
Abuse complained of subject to severe criminal penalties - no obligation to provide
unlimited civil remedies in addition.
Conclusion: no violation (unanimously).
III. Article 14 of the Convention taken together with Articles 6 § 1 and 8
No disparity of treatment between applicants and victims of other forms of deliberate
wrongdoing with different psychological after-effects.
Applicants not in analogous situation to victims of negligently inflicted harm.
Even if comparison appropriate, difference in treatment could be reasonably and
objectively justified.
Conclusion: no violation (eight votes to one).
. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN
CONJUNCTION WITH ARTICLES 6 § 1 AND/OR 8
68. In addition, all of the applicants alleged that they had been treated in a discriminatory
manner, contrary to Article 14 of the Convention taken in conjunction with Article 6 § 1.
Ms Stubbings, J.L. and J.P. also complained of a violation of Articles 14 and 8 taken
together. Article 14 declares:
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status."
4
Article 8: 1. Everyone has the right to respect for his private and family life, his home and his
correspondence. 2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and freedoms of others.
143
The Government disputed this claim, but the Commission found violations of Article 14
taken together with Article 6 § 1.
69. The applicants pointed to the difference in the rules of limitation applied in cases of
intentionally caused injury, such as their own, and injury caused by an unintentional
breach of duty. In the latter cases, a three-year time bar applied, but this did not start to
run until the date on which the plaintiff first knew the injury in question was both
significant and attributable to the defendant. Furthermore, the judge had discretion to
allow such an action to proceed even if commenced after the expiry of the three-year
period, where it would be equitable to do so (see paragraph 35).
The applicants argued that both the mental state of those who injured them and the
particular nature of the harm inflicted, which prevented them from realising they had a
litigable cause of action until it was too late (see paragraph 47 above), were relevant,
defining characteristics for the purposes of Article 14. Thus, they were not only
discriminated against in comparison with the victims of negligently inflicted harm, but
also in contrast to individuals who suffered other forms of intentionally caused injury
which did not lead to similar psychological ramifications.
Finally, they submitted that the discrimination they suffered could not be justified since
the considerations of legal certainty and prevention of stale claims applied with equal
force to unintentionally and intentionally caused injury.
70. The Government asserted that to accept the applicants' arguments would be to distort
the proper meaning of Article 14, which did not prohibit all differences in treatment in
the exercise of rights and freedoms under the Convention, but only certain distinctions
between groups in relevantly similar positions. The applicants, however, were not in an
analogous situation to the victims of unintentionally inflicted injury.
The Government suggested a number of factors to help decide whether any two groups
were comparable for the purposes of Article 14. First, they argued that the discrimination
had to be based on a personal characteristic particular to each group. However, in contrast
to such attributes as race, sex, colour or language, the varying mental states of those
allegedly responsible for harming different groups of victims was not relevant to the
latters' personal status. Secondly, the discrimination had to have as its consequence the
advantaging of one group in society at the expense of another; this criterion did not apply
in the instant case. Finally, it was necessary to look at the national legislation in its
entirety. By asking that they be compared with the victims of negligently inflicted injury,
rather than the victims of most other torts or breaches of contract, the applicants had
selected a purely notional comparator.
In the alternative, the Government advanced the view that if there had been any
discrimination, it had been reasonably and objectively justified in that it pursued a
legitimate aim and had been proportionate.
71. The Commission agreed with the applicants that they were in an analogous situation
to the victims of unintentionally inflicted harm. It observed that there might be cases in
which it was unclear whether harm was caused deliberately or negligently and that the
two categories could not be said to be exclusive. There was thus no basis for drawing a
distinction based on the intention or culpability of the wrongdoer which would exclude
comparison under Article 14 of the Convention.
144
At the hearing before the Court, the Delegate emphasised that it was appropriate to
compare the positions of the victims of intentionally caused injury on the one hand and
those of negligently inflicted harm on the other, since these two groups had been treated
in exactly the same way as regards the rules of limitation before the House of Lords'
decision in Stubbings v. Webb (see paragraphs 13 and 15 above).
72. The Court reiterates that Article 14 affords protection against discrimination in the
enjoyment of the rights and freedoms safeguarded by the other substantive provisions of
the Convention (see the Van der Mussele v. Belgium judgment of 23 November 1983,
Series A no. 70, p. 22, § 43). However, not every difference in treatment will amount to a
violation of this Article. Instead, it must be established that other persons in an analogous
or relevantly similar situation enjoy preferential treatment, and that there is no reasonable
or objective justification for this distinction (see the Fredin v. Sweden (no. 1) judgment of
18 February 1991, Series A no. 192, p. 19, § 60).
Contracting States enjoy a margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify a different treatment in law (see the
Rasmussen v. Denmark judgment of 28 November 1984, Series A no. 87, p. 15, § 40).
73. It is to be recalled that the applicants complained that they were treated less
favourably than both the victims of negligently inflicted harm and the victims of other
forms of intentional injury which did not lead to psychological damage preventing them
from understanding its causes (see paragraph 69 above).
The Court observes, first, that as between the applicants and victims of other forms of
deliberate wrongdoing with different psychological after-effects, there was no disparity in
treatment, because the same rules of limitation are applied to each group.
Secondly, the victims of intentionally and negligently inflicted harm cannot be said to be
in analogous situations for the purposes of Article 14. In any domestic judicial system
there may be a number of separate categories of claimant, classified by reference to the
type of harm suffered, the legal basis of the claim or other factors, who are subject to
varying rules and procedures. In the instant case, different rules have evolved within the
English law of limitation in respect of the victims of intentionally and negligently
inflicted injury, as the House of Lords observed with reference to the report of the Tucker
Committee (see paragraph 15 above). Different considerations may apply to each of these
groups; for example, it may be more readily apparent to the victims of deliberate
wrongdoing that they have a cause of action. It would be artificial to emphasise the
similarities between these groups of claimants and to ignore the distinctions between
them for the purposes of Article 14 (see, mutatis mutandis, the above-mentioned Van der
Mussele judgment, pp. 22-23, § 46).
74. Furthermore, even if a comparison could properly be drawn between the two groups
of claimants in question, the difference in treatment may be reasonably and objectively
justified, again by reference to their distinctive characteristics. It is quite reasonable, and
falls within the margin of appreciation afforded to the Contracting States in these matters
(see paragraph 72 above), to create separate regimes for the limitation of actions based on
deliberately inflicted harm and negligence, since, for example, the existence of a civil
claim might be less obvious to victims of the latter type of injury.
75. Accordingly, the Court finds no violation of Article 14 of the Convention taken in
conjunction with Articles 6 § 1 or 8.
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VAN RAALTE v. THE NETHERLANDS (108/1995/614/702) 21 February 1997:
exemption from obligation to pay contributions under social welfare scheme
applying to unmarried childless women aged 45 or over but not to men in the
same position
SUMMARY
The Netherlands - exemption from obligation to pay contributions under social welfare
scheme applying to unmarried childless women aged 45 or over but not to men in the
same position (section 25 of the General Child Care Benefits Act)
I. Article 14 of the Convention taken together with Article 1 of Protocol No. 15
Case concerns the right of the State to "secure the payment of taxes or other
contributions" and therefore comes within the ambit of Article 1 of Protocol No. 1 Article 14 of the Convention applicable.
Difference in treatment based on gender - exemption in question ran counter to
underlying character of scheme - while State enjoys certain margin of appreciation in
introducing exemptions to contributory obligations, Article 14 requires in principle that
these apply even-handedly to both men and women -just as women aged 45 or over may
give birth, there may be men of 45 or younger who may be unable to procreate unmarried childless woman aged 45 or over may become eligible for benefits under
scheme - argument that to levy contributions from unmarried childless women aged 45 or
over would impose unfair emotional burden might equally well apply to unmarried
childless men or childless couples - difference in treatment not justified.
C. The Court's assessment
1. Applicable principles
39. For the purposes of Article 14 a difference of treatment is discriminatory if it has no
objective and reasonable justification, that is if it does not pursue a legitimate aim or if
there is not a reasonable relationship of proportionality between the means employed and
the aim sought to be realised. Moreover the Contracting States enjoy a margin of
appreciation in assessing whether and to what extent differences in otherwise similar
situations justify a different treatment (see, among other authorities, the above-mentioned
Karlheinz Schmidt judgment, pp. 32-33, § 24).
However, very weighty reasons would have to be put forward before the Court could
regard a difference in treatment based exclusively on the ground of sex as compatible
with the Convention (see, among other authorities, the above-mentioned Karlheinz
Schmidt judgment, ibid.).
5
ARTICLE 1: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No
one shall be deprived of his possessions except in the public interest and subject to the conditions provided
for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as
it deems necessary to control the use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.
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2. Whether there has been a difference in treatment between persons in similar
situations
40. At the time of the events complained of contributions under the General Child
Benefits Act were levied from unmarried childless men aged 45 or over but not from
unmarried childless women of the same age (see paragraphs 21 and 23 above). This
undoubtedly constitutes a "difference in treatment" between persons in similar situations,
based on gender.
The factual difference between the two categories relied on by the Government, namely
their respective biological possibilities to procreate, does not lead the Court to a different
conclusion. It is precisely this distinction which is at the heart of the question whether the
difference in treatment complained of can be justified.
3. Whether there is objective and reasonable justification
41. The Court notes that the General Child Benefits Act set up a social-security scheme to
which, in principle, the entire adult population was subject, both as contributors and as
potential beneficiaries.
A key feature of this scheme was that the obligation to pay contributions did not depend
on any potential entitlement to benefits that the individual might have (see paragraph 21
above). Accordingly the exemption in the present case ran counter to the underlying
character of the scheme.
42. While Contracting States enjoy a certain margin of appreciation under the Convention
as regards the introduction of exemptions to such contributory obligations, Article 14
requires that any such measure, in principle, applies even-handedly to both men and
women unless compelling reasons have been adduced to justify a difference in treatment.
43. In the present case the Court is not persuaded that such reasons exist.
In this context it must be borne in mind that just as women over 45 may give birth to
children (see paragraph 17 above), there are on the other hand men of 45 or younger who
may be unable to procreate.
The Court further observes that an unmarried childless woman aged 45 or over may well
become eligible for benefits under the act in question; she may, for example, marry a man
who already has children from a previous marriage.
In addition, the argument that to levy contributions under a child benefits scheme from
unmarried childless women would impose an unfair emotional burden on them might
equally well apply to unmarried childless men or to childless couples.
44. Accordingly, irrespective of whether the desire to spare the feelings of childless
women of a certain age can be regarded as a legitimate aim, such an objective cannot
provide a justification for the gender-based difference of treatment in the present case.
4. Conclusion
45. There has been a violation of Article 14 of the Convention taken together with Article
1 of Protocol No. 1.
147
SHEFFIELD AND HORSHAM v. THE UNITED KINGDOM (31-32/1997/815816/1018-1019) 30 July 1998: whether respondent State has a positive obligation
to recognise for legal purposes new sexual identities of applicants, both male to
female post-operative transsexuals
United Kingdom – whether respondent State has a positive obligation to recognise for
legal purposes new sexual identities of applicants, both male to female post-operative
transsexuals
I. ARTICLE 8 OF THE CONVENTION
Reiteration of Court’s case-law on scope of positive obligations under Article 8 to protect
right to respect for private life.
Essence of applicants’ complaints concerns authorities’ continuing insistence on
determination of gender according to biological criteria and refusal to annotate or update
information inscribed on register of birth to take account of post-operative gender status –
in that respect, applicants’ complaints similar to those of applicants in Rees and Cossey
cases.
In Court’s view, no scientific or legal developments in area of transsexualism since
Cossey judgment which would persuade it to depart from its decisions in above cases –
respondent State still entitled to rely on a margin of appreciation to defend its refusal to
recognise in law post-operative transsexual’s sexual identity – for Court, it continues to
be case that transsexualism raises complex, scientific, legal, moral and social issues in
respect of which there is no generally shared approach among Contracting States.
Furthermore, detriment suffered by applicants through being obliged to disclose preoperative gender in certain contexts not of sufficient seriousness as to override
respondent State’s margin of appreciation – situations relied on by applicants to illustrate
detriment infrequent and requirement to disclose pre-operative gender in such situations
justified – authorities have also sought to minimise intrusive inquiries as to applicants’
pre-operative status – no disproportionate interference with applicants’ rights to respect
for their private lives.
Court notes that no steps taken by respondent State to keep need for appropriate legal
measures in this area under review despite Court’s view to that effect in Rees and Cossey
judgments – Court reiterates that view.
Conclusion: no violation (eleven votes to nine).
II. ARTICLE 12 OF THE CONVENTION
Reiteration of principles laid down in Court’s Rees judgment on scope and interpretation
of Article 12.
Having regard to those principles, inability of either applicant to contract lawful marriage
under domestic law of respondent State on account of authorities’ insistence on biological
criteria for determining gender for purposes of marriage cannot give rise to breach of that
Article – furthermore, Court not persuaded that second applicant’s complaint raises issues
under that Article.
Conclusion: no violation (eighteen votes to two).
III. ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8
Reiteration of principles underlying Article 14.
148
Court’s reasoning for rejecting applicants’ complaints under Article 8 (fair balance
struck, proportionality of interference) also constitutes "reasonable and objective
justification" for any alleged difference in treatment to which applicants, as postoperative transsexuals, subjected.
Conclusion: no violation (unanimously).
UNITED KINGDOM
Summaries required
Equality
Summary and photocopies:
1. English Law: Sex Discrimination Act 1975; Race Relations Act 1976.
2. Indirect Discrimination: Hampson v Department of Education and Science
[1990] 2 All ER 25, 34, CA (reversed on different grounds [1991] 1 AC 171,
[1990] 2 All ER 513, HL: justified if objectively balancing the discrim against
reasonable needs of employer.
3. Intention to Discriminate: R v Commission for Racial Equality, ex parte
Westminster City Council [1984] ICR 770 DC, [1985] ICR 827 CA.. Need be
no intention to discriminate.
4. James v Eastleigh Borough Council [1990] 2 AC 751, [190] 2 All ER 607 HL:
the test is whether the condition or disadvantage would have applied but for
sex and race.
5. Contexts of unlawful discrimination. Equal Pay Act 1970. Savjani 1981 QB:
entitlement to tax relief.
6. Race Relations Act 1976: Racial grounds and groups: Mandla 1983 AC:
wearing turbans at school.
7. Commission of Racial Equality.
8. Sex discrimination: Equal Pay Act 1970 and Sex Discrimination Act 1975.
Coyne 1981 IRLR: cannot complain of special protection for women.
Botswana
Summary required
In the matter of Attorney General v Dow 1994 (6) BCLR (1) Botswana; 1992
SALR Lexis 7 the Appeal Court set aside a provision which discriminated against
women in the conferral of citizenship rights. It ruled that although the
Constitution's equality clause made no reference to women it would consider
gender when applying the clause.
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