A-199-89
Attorney General of Canada (Applicant)
v.
Brian Mossop (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. MOSSOP
(C.A.)
Court of Appeal, Heald, Marceau and Stone
JJ.A.—Toronto, May 9 and 10; Ottawa, June 29,
1990.
Human rights — Human Rights Tribunal erred in holding
'family status" (prohibited ground of discrimination in
Canadian Human Rights Act) including homosexual couple
"Family" not so unclear as to require interpretation — Out
side Tribunal's authority to reject generally understood mean
ing of 'family" — "Family" not fluid term subject only to
requirement of reasonability — Coupled with legal concept of
"status" — Homosexual couple not 'family" recognized by
law — Tribunal misapprehending fundamental question —
Sexual orientation actual basis of discrimination herein —
Not prohibited ground under Canadian Human Rights Act.
Constitutional law — Charter of Rights — Equality rights
— Even if sexual orientation protected from discrimination by
s. 15, Charter not ipso facto legislative amending machine
requiring incorporation of its doctrine into human rights legis
lation — Charter and human rights legislation different in
nature — No balancing mechanism similar to Charter, s. I in
human rights legislation.
Construction of statutes — Canadian Human Rights Act, s.
3(1) prohibiting discrimination on basis of 'family status" —
Whether including homosexual couple — "Purposive" or "liv-
ing tree" approach used to interpret constitutional legislation
not applicable to human rights legislation — "Family status"
not intended to encompass sexual orientation.
Public Service — Labour relations — Collective agreement
— Bereavement leave to attend funeral of homosexual part
ner's father denied — Collective agreement defining "immedi-
ate family" — Employee laying complaints against employer,
union with CHRC — Human Rights Tribunal finding 'family
status", prohibited ground of discrimination, including homo
sexual couple — Decision set aside.
This was an application to set aside the decision of a Human
Rights Tribunal that the term "family status", a prohibited
ground of discrimination under subsection 3(1) of the Canadi-
an Human Rights Act, included the situation of two persons
living in a homosexual relationship.
The respondent's application for bereavement leave, pursuant
to a collective agreement, to attend the funeral of his partner's
father was refused. He was offered one day of paid special
leave, which he declined on the ground that he did not want
leave given at the discretion of the employer which heterosexual
employees would be granted as a matter of right. He com
plained to the Canadian Human Rights Commission against
the employer and the union. It was argued that a homosexual
couple constituted a "family" and that the collective agreement
was discriminatory in its failure to accord it the same treatment
as that accorded to other families. According to one expert
witness the complainant was involved in a "familial relation
ship". In the Tribunal's view, the fundamental question was
whether family status included a homosexual relationship. The
Tribunal held that the employer and the union had infringed
paragraph 10(b) of the Act by entering into an agreement that
deprived the respondent of an employment opportunity on the
prohibited ground of discrimination of "family status".
Held, the application should be granted.
Per Marceau J.A.: The Tribunal erred (1) in interpreting
"family status" as including a homosexual relationship and (2)
in defining the fundamental question as whether "family sta
tus" in subsection 3(1) included a homosexual relationship.
The purposive approach to the interpretation of the Charter
should not be adopted to the construction of human rights
legislation. The Charter requires interpretation in a special way
because the difficulties of amending the Constitution could
cause it to fall behind changing societal values. The adoption of
a "living-tree" approach towards discerning new grounds of
discrimination is outside the Court's jurisdiction and would
usurp the function of Parliament. Secondly, the meaning of
"family" in the Act is not so unclear as to require interpreta
tion. Finally, the Tribunal had no authority to reject the
generally understood meaning of the word "family" and adopt
in its stead, through an ad hoc approach, a meaning ill-adapted
to the context in which the word appeared and not in conformi
ty with what was intended. "Family" is not a fluid term subject
only to a nebulous notion of reasonability. It must also be
remembered that "family" is coupled with "status", a legal
concept referring to the position of a person with respect to his
rights and limitations as a result of membership in a legally
recognized group. Even if a homosexual couple were recognized
sociologically as a sort of family, it is not a family recognized
by law as giving its members special rights and obligations.
The real ground of discrimination was sexual orientation,
which is not a prohibited ground under the Canadian Human
Rights Act. Even if it were a ground protected from discrimina
tion under Charter, section 15, the Charter could not be used as
a kind of ipso facto legislative amending machine requiring its
doctrine to be incorporated into human rights legislation by
stretching the meaning of terms beyond their boundaries.
Human rights legislation is aimed at the population at large,
whereas the Charter is designed to restructure the global
juristic background against which all private ordering takes
place. A complainant alleging that an agency of government
has entered into an agreement infringing his Charter rights
must do so outside the statutory framework of the Canadian
Human Rights Act unless that Act prohibits the alleged
infringement. Also, the Charter contains a general balancing
mechanism in the form of section 1, which is not present in
human rights codes. Human rights legislation may contain
specific exceptions as a result of consideration by the legisla
tures and political compromise. If tribunals read into those
statutes unforeseen meanings on the basis of Charter cases
finding "analogous grounds", the section 1 limitation clause
would not apply.
Per Stone J.A. (Heald J.A. concurring): In adding "family
status" to subsection 3(1) as a prohibited ground of discrimina
tion, Parliament did not intend to include discrimination based
on sexual orientation. It was not within the authority of the
Court to further amend the statute.
Although human rights legislation should be interpreted in a
manner consistent with the Charter, the Charter should not
operate so as to mandate the courts to ascribe to a statutory
term a meaning it was not intended to possess. If a statutory
term appears to conflict with the Charter, its constitutional
validity must be put in issue for the Charter to play a role in
resolving the dispute.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44].
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss.
3(1) (as am. by S.C. 1980-81-82-83, c. 143, s. 2), 7(b)
(as am. idem, s. 3), 9(1)(c)(ii) (as am. idem, s. 4),
10(b) (as am. idem, s. 5).
Canadian Human Rights Act, R.S.C., 1985, c. H-6.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 52(1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(g).
The Saskatchewan Human Rights Code, S.S. 1979, c.
S-24.1.
Sask. Reg. 216/79, s. 1(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145;
(1984), 55 A.R. 291; 11 D.L.R. (4th) 641; [1984] 6
W.W.R. 577; 33 Alta. L.R. (2d) 193; 27 B.L.R. 297; 14
C.C.C. (3d) 97; 2 C.P.R. (3d) 1; 41 C.R. (3d) 97; 9
C.R.R. 355; 84 DTC 6467; 55 N.R. 241.
DISTINGUISHED:
Service Employees' International Union, Local No. 333
v. Nipawin District Staff Nurses Association et al.,
[1975] 1 S.C.R. 382; (1973), 41 D.L.R. (3d) 6; [1974] 1
W.W.R. 653; National Bank of Canada v. Retail Clerks'
International Union et al., [1984] 1 S.C.R. 269; (1984), 9
D.L.R. (4th) 10; 84 C.L.L.C. 14,037; 53 N.R. 203.
CONSIDERED:
Schaap v. Canadian Armed Forces, [1989] 3 F.C. 172;
(1988), 56 D.L.R. (4th) 105; 95 N.R. 132 (C.A.); Veysey
v. Canada (Commissioner of the Correctional Service),
[1990] 1 F.C. 321; (1989), 29 F.T.R. 74 (T.D.); Brown v.
B.C. (Min. of Health) (1990), 42 B.C.L.R. (2d) 294
(S.C.); Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2
W.W.R. 289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91
N.R. 255.
REFERRED TO:
Ontario Human Rights Commission and O'Malley v.
Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; (1985),
52 O.R. (2d) 799; 23 D.L.R. (4th) 321; 17 Admin. L.R.
89; 9 C.C.E.L. 185; 86 C.L.L.C. 17,002; 64 N.R. 161; 12
O.A.C. 241; Bhinder et al. v. Canadian National Rail
way Co. et al., [1985] 2 S.C.R. 561; (1985), 23 D.L.R.
(4th) 481; 17 Admin. L.R. 111; 9 C.C.E.L. 135; 86
C.L.L.C. 17,003; 63 N.R. 185; Action Travail des
Femmes v. Canadian National Railway Co., [1987] 1
S.C.R. 1114; (1987), 40 D.L.R. (4th) 193; 27 Admin.
L.R. 172; 87 C.L.L.C. 17,022; 76 N.R. 161; Robichaud
v. Canada (Treasury Board), [1987] 2 S.C.R. 84; (1987),
40 D.L.R. (4th) 577; 87 C.L.L.C. 17,024; 74 N.R. 303;
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573;
(1986), 33 D.L.R. (4th) 174; [1987] 1 W.W.R. 577; 9
B.C.L.R. (2d) 273; 38 C.C.L.T. 184; 87 C.L.L.C. 14,002;
25 C.R.R. 321; [1987] D.L.Q. 69; Re Blainey and
Ontario Hockey Association et al. (1986), 54 O.R. (2d)
513; 26 D.L.R. (4th) 728; 14 O.A.C. 194 (C.A.); Babi-
neau et al. v. Babineau et al. (1981), 32 O.R. (2d) 545;
122 D.L.R. (3d) 508 (H.C.); affd (1982), 37 O.R. (2d)
527; 133 D.L.R. (3d) 767 (C.A.).
AUTHORS CITED
Canada. House of Commons. Standing Committee on
Justice and Legal Affairs, Minutes of Proceedings and
Evidence, Issue no. 114 (December 20, 1982).
Canada. Flouse of Commons. Report of the Parliamen
tary Committee on Equality Rights: Equality for All,
Ottawa, Queen's Printer, 1985.
COUNSEL:
Barbara A. Mcisaac for applicant.
René Duval for the Canadian Human Rights
Commission.
V. Jennifer MacKinnon and A. B. McAllister
for intervenors Equality for Gays and Lesbi
ans Everywhere, Canadian Rights and Liber
ties Federation, The National Association of
Women and the Law, The Canadian Disabili
ty Rights Council and The National Action
Committee on the Status of Women.
W. Ian Binnie and Jenny P. Stephenson for
intervenors Focus on the Family, The Salva
tion Army, Real Women, The Evangelical
Fellowship of Canada and The Pentecostal
Assemblies of Canada.
APPEARANCE:
Brian Mossop on his own behalf.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Canadian Human Rights Commission, Legal
Services for Canadian Human Rights Com
mission.
Burke-Robertson, Ottawa, for intervenors
Equality for Gays and Lesbians Everywhere,
Canadian Rights and Liberties Federation,
The National Association of Women and the
Law, The Canadian Disability Rights Council
and The National Action Committee on the
Status of Women.
McCarthy Tétrault, Toronto, for intervenors
Focus on the Family, The Salvation Army,
Real Women, The Evangelical Fellowship of
Canada and The Pentecostal Assemblies of
Canada.
RESPONDENT ON HIS OWN BEHALF:
Brian Mossop, Toronto.
The following are the reasons for judgment
rendered in English by
MARCEAU J.A.: One of the grounds of discrimi
nation prohibited by the Canadian Human Rights
Act, S.C. 1976-77, c. 33 as amended, now R.S.C.,
1985, c. H-6, ("the Act"), is "family status". Does
this term include the situation of two persons
living in a homosexual relationship? A human
rights tribunal has rendered a decision based on
the view that it does and the Attorney General of
Canada, in this application brought under section
28 of the Federal Court Act [R.S.C., 1985, c.
F-7], asks the Court to review and set aside that
decision.
As it was to be expected, the case has captured
the interest of many groups and associations which
have sought leave to intervene or at least address
the Court. Representations have been heard, in
support of the Attorney General's position, from:
the Salvation Army, Focus on the Family Associa
tion Canada, Real Women, the Pentecostal
Assemblies of Canada and the Evangelical Fellow
ship of Canada; and in support of the Tribunal's
decision, from: the Canadian Rights and Liberties
Federation, Equality for Gays and Lesbians Every
where, the National Association of Women and
the Law, the Canadian Disability Rights Council
and the National Action Committee on the Status
of Women.
Let us review first the factual context in which
the issue arises and must be considered.
In June 1985, Brian Mossop, the respondent,
was employed in Toronto as a translator for the
Department of the Secretary of State. He had
been living with Ken Popert since 1976. The two
men shared a house which they owned together
and financed from a joint bank account. They
shared domestic tasks, and arranged to take their
holidays at the same time in order to travel to
gether. Their homosexual relationship was some-
thing of a matter of public record, in so far as they
represented themselves as lovers to their friends
and families and they were both active in the gay
rights movement. On June 3, 1985, Mossop did not
go to work in order to accompany Mr. Popert to
the funeral of Popert's father.
At the time, the respondent's terms of employ
ment were governed by a collective agreement
between the Treasury Board and the Canadian
Union of Professional and Technical Employees
("CUPTE"). Article 19.02 of this agreement con
tained a provision relating to bereavement leave
calling for up to four days leave upon the death of
a member of an employee's "immediate family",
which term was defined as:
... father, mother, brother, sister, spouse (including common-
law spouse resident with the employee), child (including child
of common-law spouse), or ward of the employee, father-in-
law, mother-in-law, and in addition a relative who permanently
resides in the employee's household or with whom the employee
permanently resides.
In the definition section of the agreement, at
article 2.01(s), it had already been provided that:
... a "common-law spouse" relationship is said to exist when,
for a continuous period of at least one year, an employee has
lived with a person of the opposite sex, publicly represented
that person to be his/her spouse, and lives and intends to
continue to live with that person as if that person were his/her
spouse.
The day after the funeral, Mossop applied in
writing for bereavement leave pursuant to article
19.02 of the collective agreement. The application
was turned down, and Mossop declined to accept
the day of special leave he was offered in its stead.
His reason was that he did not want a day of leave
given at the discretion of his employer, which
fellow heterosexual employees would be accorded
as a matter of right under the collective agree
ment. When his grievance, filed with the approval
of and pursued by his union, was rejected on the
basis that the denial of his application was in
accordance with the collective agreement, Mossop
went to the Canadian Human Rights Commission
and laid complaints against both his employer, the
Department of the Secretary of State (to which
was later added the Treasury Board), and his
union CUPTE. The complaints invoked paragraph
7(b) [as am. by S.C. 1980-81-82-83, c. 143, s. 3],
subparagraph 9(1)(c)(ii) [as am. idem, s. 4] and
paragraph 10(b) [as am. idem, s. 51 of the Act,
which then read thus:
7. It is a discriminatory practice, directly or indirectly,
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
9.(1) It is a discriminatory practice for an employee organi
zation on a prohibited ground of discrimination
(e) to limit, segregate, classify or otherwise act in relation to
an individual in a way that would
(i) deprive the individual of employment opportunities, or,
(ii) limit employment opportunities or otherwise adversely
affect the status of the individual,
where the individual is a member of the organization or
where any of the obligations of the organization pursuant to
a collective agreement relate to the individual.
10. It is a discriminatory practice for an employer, employee
organization or organization of employers
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
First, the employer was accused of having "dif-
ferentiated adversely in relation to an employee in
the course of employment" contrary to paragraph
7(b), and the union of having acted in a way that
would "limit employment opportunities or other
wise adversely affect the status of (an) individual"
contrary to subparagraph 9(1)(c)(ii). And then,
both the employer and the union were said to have
together contravened paragraph 10(b) by entering
into an agreement affecting a "matter relating to
employment ... that deprives or tends to deprive
an individual ... of any employment opportuni
ties". In each case, family status was mentioned as
the prohibited ground of discrimination.
Before the single member Tribunal established
pursuant to the Act to deal with the complaints,
the fundamental question was seen to be whether
the meaning of "family status" included the rela
tionship between the complainant and Popert. The
complainant's position supported by the Commis
sion was that a homosexual couple such as the one
formed by him and Popert constitutes a family,
and that the collective agreement was discrimina
tory in its failure to accord it the same treatment
as that accorded to other families. The Commis
sion called as an expert witness a specialist in
sociology and family policy, Dr. Margrit Eichler,
who had worked as a consultant to many agencies
involved with public policy affecting families and
was the author of a textbook on the Canadian
family. Her testimony was to the effect that there
was no current general consensus on how to useful
ly define family composition for all purposes. In
her opinion, the complainant and Popert were
involved in a "familial relationship" in so far as it
was a relationship which had lasted for a long time
and contained the expectation of at least indefinite
duration, and which involved joint residence,
aspects of economic union, sexual relations, emo
tional support, and the sharing of domestic tasks.
In answer to a question from the Tribunal, she
expressed the view that there was not really any
single factor which can be singled out as a sine qua
non in the definition of a family—e.g. a married
couple might maintain separate residences; chil
dren of a marriage ended in divorce might main
tain family ties with both parents, although the
former spouses would no longer think of each other
as family members; neither active sexual relations
nor exclusivity of sexual contacts can be seen as
defining parameters.
The Tribunal concluded that the Treasury
Board and CUPTE had infringed paragraph 10(b)
in entering into the collective agreement. In so far
as it had done no more than administer the terms
of the agreement from which its decision had
flowed directly, the Department was not found to
have committed a separate discriminatory practice
against paragraph 7(b) in denying the bereave-
ment leave. As an aside, it was found "irrelevant"
that the Department had offered the complainant
a day of special leave under a different provision of
the agreement. Likewise, no separate finding of
liability against CUPTE was made under subpara-
graph 9(1)(c)(ii). It was ordered that June 3, 1985
be designated as a day of bereavement leave, that
the holiday leave credit which had been used to
account for the absence be restored, that Treasury
Board and CUPTE each pay the complainant
$250 in respect of feelings and self-respect, and
that the collective agreement be applied, and
amended, so that the definition of common-law
spouse (and thus of immediate family) include
persons of the same sex who would meet the
definition in its other respects.
As noted, the Tribunal saw the fundamental
question that was put to it as being whether the
term "family status", as it appears in subsection
3(1) of the Act [as am. by S.C. 1980-81-82-83, c.
143, s. 2], includes a homosexual relationship be
tween two individuals. In view of this approach
and the conclusion reached, the parties were led to
define the main issue on this application as being
whether the Tribunal had erred in coming to an
affirmative answer to the question. I will follow
suit and examine, in a first part, this issue. It so
happens, however, that I do not agree with the
view of the Tribunal that the question defined by it
as fundamental would solve the real issue that had
to be addressed; and I will endeavor to show why
in a second part. But before I come to these two
main parts of my analysis, I would like to deal
quickly with some adjacent issues which, although
secondary, are too serious to be ignored.
Some Secondary Issues
1. The applicant has argued before the Tribunal
and again before us that the respondent could not
speak of discrimination because he had in fact
been offered a day of paid leave which he had
chosen to decline. As explained above, the offer
was made under a provision of the collective agree
ment which gave the employer the discretionary
power to grant an employee leave with pay for
purposes other than those specified, and the
respondent felt that having to depend on the dis
cretion of an employer for a benefit is not the same
as being entitled to it as of right.
It is true that, had the offer been accepted, there
would have been, as a matter of fact, no adverse
treatment, no special burden, obligation or disad
vantage imposed, which is of the essence of dis
crimination. The end result would have been ren
dered possible by resorting to a special provision of
the collective agreement, but it would not have
been different. The adverse result suffered by the
respondent was of his own making, so to speak. I
am therefore prepared to say that, for that reason
alone, the complaint against the employer based
on paragraph 7(b) of the Act could not be substan
tiated. Actual discrimination appears to be
required by its wording, which I repeat for
convenience:
7. It is a discriminatory practice, directly or indirectly,
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
We know, however, that the employer was not
found liable under paragraph 7(b). The reason
given, namely that the employer had simply
applied the provisions of the collective agreement,
is not quite convincing, since an act remains dis
criminatory and, as such, prohibited regardless of
whether it is covered by a collective agreement.
But the fact remains that paragraph 7(b) is now
out of the question. The impugned decision is one
that has substantiated a complaint against Trea
sury Board and CUPTE made under paragraph
10(b) of the Act which is obviously not limited to
the occurrence of actual discrimination, reading
again as follows:
10. It is a discriminatory practice for an employer, employee
organization or organization of employers
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
Treasury Board's liability resulted from the
co-enactment of the agreement itself, and the
award in respect of hurt feelings stemmed from
the structure of the agreement rather than from its
application.
The argument therefore has no bearing before
us.
2. Some intervenors have raised a special issue
drawn from the fact that the funeral attended by
the respondent was that of Popert's father, not of
Popert himself. There is no definition, they say, of
"father-in-law" in the agreement, a term used to
describe one of the relationships to be included
within the scope of "immediate family". The ordi
nary meaning of "father-in-law" (and they stress
the phrase "in-law") covers only the father of a
legal spouse. They support the argument by point
ing to the fact that the provision explicitly enlarges
the definition of "child" to include the child of a
common-law spouse, which enlargement does not
occur in the case of "father-in-law", "immediatè
family" being defined, as it will be recalled, as:
... father, mother, brother, sister, spouse (including common-
law spouse resident with the employee), child (including child
of common-law spouse), or ward of the employee, father-in-
law, mother-in-law, and in addition a relative who permanently
resides in the employee's household or with whom the employee
permanently resides.
I will have occasion later to express reservation
with the readiness with which the Tribunal passed
from the finding that Mossop and Popert con
stituted a family to a finding that they were to be
treated as common-law spouses. And I agree that
it was somewhat precipitous on the part of the
Tribunal to take for granted, without some anal
ysis, that the term father-in-law was to apply to
the father of a common-law spouse. I do not
believe however that, in that respect, it was wrong.
As we have seen, the agreement includes "com-
mon-law spouse" within the meaning to be given to
the term spouse ("spouse (including common-law
spouse)"). If the normal meaning of father-in-law
is founded on the parental relationship to a spouse,
it should, in the context of the provision, also
include parental relationship to a common-law
spouse. There is no reason for treating the relation
ship between spouses identically with that of com-
mon -law spouses, while differentiating between the
relationships of members of both those groups and
their respective parents. I would think further that,
even if the agreement had intended to make such a
distinction, on the basis of this Court's finding in
Schaap v. Canadian Armed Forces, [1989] 3 F.C.
172, it would have constituted discrimination on
the basis of marital status. In any event, I need
only say, to close the argument, that the interpre
tation of the agreement implicitly chosen by the
Tribunal is at least as reasonable as that pro
pounded by the intervenors and should not be
disturbed.
3. There is another point, which none of the
parties have raised, that requires some comments.
The Tribunal has, again with no analysis, taken for
granted that bereavement leave falls within the
scope of rights protected by paragraph 10(b) of
the Act. At page 66 of the reasons, it simply says
"in the view of the Tribunal, bereavement leave is
an `employment opportunity' as that term is used
in paragraph 10(b) of the Act".
It could be appropriate to reproduce again para
graph 10(b), in both its French and English ver
sions, underlining the relevant words:
10. It is a discriminatory practice for an employer, employee
organization or organization of employers
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
Was the intention that every employment ben
efit be seen as an employment opportunity? I
seriously doubt that it was so; certainly the French
version and even the English version, I venture to
add, suggest a narrower meaning, namely that
essentially hiring and promotion were considered.
And such limitation would not be without reason,
if it is borne in mind that section 10, unlike
sections 7 and 9, is not only concerned with actual
discrimination but reaches into possible or eventu
al discrimination, and therefore calls for a broader
and more intrusive analysis of the purpose and
effect of general policies and agreements rather
than only an assessment of a specific situation of
fact.
As I said, the point has not been raised by the
parties and was not taken up by them when it was
raised by the Court at the hearing: to allow it to
influence the debate today would be inappropriate
or at least unsatisfactory. I did not want, however,
that my silence be interpreted as an endorsement
of the quick conclusion of the Tribunal.
The Issue Seen as Fundamental
Has the Tribunal erred in interpreting the term
"family status" in the Act as including a homosex
ual relationship between two individuals?
I said that all parties were in agreement as to
the definition of the issue and the formulation of
the question. Not quite, in fact. Counsel for the
Commission would have brought a qualification to
it: in effect, he would have added to the words
"has erred" the phrase "in a patently unreasonable
way". The standard for reviewing the Tribunal's
interpretation, said counsel, should be that estab
lished by the Supreme Court in Service
Employees' International Union, Local No. 333 v.
Nipawin District Staff Nurses Association et al.,
[ 1975] 1 S.C.R. 382; and National Bank of
Canada v. Retail Clerks' International Union et
al., [ 1984] 1 S.C.R. 269. I disagree. In both those
cases referred to, and in the others where likewise
the Supreme Court has limited the power of inter
vention 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. It may be difficult at times,
in analyzing a decision, to extract the question of
law from the facts of the case so as to verify the
treatment given to it by the tribunal without inter
fering with factual findings not subject to review.
But the facts in this case are clearly established
and there is no danger of mixing them up with the
purely legal question of interpretation involved. If
the Tribunal was not correct in its answer to the
question, however understandable may have been
its error, the Court has the duty to intervene.
As I read the reasons of the Tribunal, its conclu
sion that the term "family status" included homo
sexual couples was drawn from a reasoning evolv
ing around three main propositions, namely: (a)
the Supreme Court has indicated that the same
purposive approach taken to the interpretation of
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]] has to be
taken to the interpretation of human rights codes;
(b) there is a problem of interpretation as to the
definition to be given to the word "family" as it
appears in the Act; and (c) in seeking to solve this
problem of interpretation, one should not try to
find the reasonable definition but simply a reason
able one and, in that respect, the functional defini
tion given by the sociological approach is, in view
of the goal to be achieved, quite acceptable. I have
difficulties with all three propositions.
(a) It is quite true that in those well-known
cases relied on by the Tribunal, O'Malley, Bhin-
der, Action Travail des Femmes, and Robichaud,'
human rights legislation was said to be of a quasi-
constitutional nature. But that was said to situate
it in relation to other enactments and underline its
pre-eminence. It is also quite true that the words
"broad" and "purposive" regularly applied to
qualify the approach to be taken to interpret the
Charter were sometimes used to describe the
approach adopted in cases involving difficulties of
interpretation of human rights legislation. But the
statement, which often takes as point of reference
the enunciation, at the head of human rights legis
lation, of its goals and purpose, has yet to be
applied in order to reshape or relocate that very
' Ontario Human Rights Commission and O'Malley v.
Simpsons-Sears Ltd. et al., [1985] 2 S.C.R. 536; Bhinder et al.
v. Canadian National Railway Co. et al., [1985] 2 S.C.R. 561;
Action Travail des Femmes v. Canadian National Railway
Co., [1987] I S.C.R. 1114; Robichaud v. Canada (Treasury
Board), [1987] 2 S.C.R. 84.
point of reference constituted by the listing of a
definite number of specific grounds of discrimina
tion. In any event, is it not required by the Inter
pretation Act that any piece of legislation be con
strued liberally and in accordance with its
purpose. 2
As I understand the Supreme Court judgments,
the main reason why the Charter had to be inter
preted in a very special way, and particularly
without the same deference to the historical inten
tions of the drafters and legislators, is that the
difficulties of amending the Constitution could
cause its provisions to fall behind changes in socie-
ty's conception of basic societal values and thereby
render them inadequate and unable to fulfill its
very role (see on this point the comments of Dick-
son J. [as he then was] in Hunter et al. v. South-
am Inc., [1984] 2 S.C.R. 145, at page 155). This is
obviously not the problem with human rights acts
which can be reviewed and amended like any other
legislation.
There is no doubt that the courts, in giving
effect to the provisions of human rights legislation,
should act as liberally and as "bravely" as possi
ble, bearing in mind that are often at stake the
interests of "unpopular" groups which must be
defended from majoritarian opinions. But I believe
that if the courts were to adopt, in interpreting
human rights acts, a "living-tree" approach
towards discerning new grounds of discrimination
for proscription, or re-defining past meanings
given to existing grounds, they would step outside
the scope of their constitutional responsibilities
and usurp the function of Parliament.
(b) I do not see how it can be said that the word
"family" has a meaning so uncertain, unclear and
2 1 refer, of course, to section 12 of the Interpretation Act,
R.S.C., 1985, c. I-21:
12. Every enactment is deemed remedial, and shall be
given such fair, large and liberal construction and interpreta
tion as best ensures the attainment of its objects.
equivocal that, in a legal context, it must in every
instance be subjected to interpretation by the
courts. Is it not to be acknowledged that the basic
concept signified by the word has always been a
group of individuals with common genes, common
blood, common ancestors? This basic concept
lends itself to various degrees of extension since
the common ancestor may be chosen more or less
remotely along the line of generations and the
group referred to today is generally seen as includ
ing individuals connected by affinity or adoption,
an inclusion rendered normal by the fact that
marriage was made the only socially accepted way
of extending and continuing the group, and adop
tion a legally established imitation of natural filia-
tion. But that does not affect the core meaning
conveyed by the word. It is true that the term is
also the subject of analogical uses which may still
be debatable and will remain susceptible to
changes (hence the lack of complete uniformity in
the dictionaries). But so long as these analogous
uses are clearly seen as being what they are
semantically, i.e. uses by analogy, the peripheral
area of uncertainty they bring in is quite residual
and should not be misleading.
(c) I cannot accept the idea that "family"
would be a fluid term whose meaning in the Act,
being susceptible of varying from one case to
another, should be established in relation to a goal
to be attained in a particular instance, subject only
to a nebulous notion of reasonability. I would have
thought that, to play the role of guidance that was
assigned to it, the legislation ought to be clarified,
if need be, in a more definite way. On the other
hand, I do not understand exactly what is meant
by taking a functional or sociological approach to
arrive at a definition of the word "family" and
indeed I still do not know what definition that
approach is supposed to have led to. It seems to me
that what was done by the Tribunal was to take
some attributes usually ascribed to families, such
as mutual love between members, mutual assist
ance, joint residence, emotional support, sharing of
domestic tasks, sexual relations, and treat them as
being of the essence of the concept itself being
signified. There is a difference between being, in
certain respects, functionally akin to a family and
being a family.
To these serious difficulties I have with the
propositions adopted by the Tribunal, I will add
my concern with an approach that simply forgets
that the word "family" is not used in isolation in
the Act, but rather coupled with the word "sta-
tus". A status, to me, is primarily a legal concept
which refers to the particular position of a person
with respect to his or her rights and limitations as
a result of his or her being member of some legally
recognized and regulated group. I fail to see how
any approach other than a legal one could lead to
a proper understanding of what is meant by the
phrase "family status". Even if we were to accept
that two homosexual lovers can constitute "socio-
logically speaking" a sort of family, it is certainly
not one which is now recognized by law as giving
its members special rights and obligations.
I do not forget that in Schaap v. Canadian
Armed Forces (supra), this Court, by a majority
decision, has found that the expression "marital
status" as used in the Act included the status of
being unmarried, 3 and therefore did not necessari
ly refer to the legal position of a person as a
member of a group. I suppose, however, that no
one would want to look at the expression "family
status" in the same way and assume that it means
being or not a member of a family or being related
or not to another individual. To carry through such
an assumption would lead to the result that the
employee who is denied leave to attend the funeral
of someone unrelated to him would be discriminat
ed against on the basis of his family status.
3 As it had been expressly declared by two provincial pieces
of legislation for their respective Human Rights Codes: Sas-
katchewan (para. 1(a), Reg. 216/79 under the Code [The
Saskatchewan Human Rights Code], S.S. 1979, c. S-24.1) and
Ontario (para. 9(g) of the Code [Human Rights Code, 1981],
S.O. 1981, c. 53).
Nor am I oblivious of the fact that the French
version of subsection 3(1) does not speak of "sta-
tut familial", but of "situation de famille". It
should be noted, however, that it is precisely with a
view to expressing in English what the French
version was already saying that the Act was
amended in 1983 (S.C. 1980-81-82-83, c. 143, s.
2), 4 so that the English version must be taken to
express the notion underlying the words used in
French.
So, the reasoning of the Tribunal simply does
not appear to me acceptable. The Tribunal had no
authority to reject the generally understood mean
ing given to the word "family" and to adopt in its
stead, through a consciously ad hoc approach, a
meaning ill-adapted to the context in which the
word appears and obviously not in conformity with
what was intended when the word was introduced,
as shown by the legislative history of the
amendment. 5
The Real Issue Underlying the Complaint
I would even go further and say that, in my
view, the Tribunal was not entitled to dispose of
the complaint as it did on the sole basis of its
conclusion that homosexual couples such as the
respondent and Popert were in a "familial relation
ship". Of course, a negative answer to the question
of whether they constituted a family would have
been determinative, but a positive one was not.
The necessary foundations of the complaint were, I
believe, both more specific and more fundamental
than recognized by the Tribunal.
They were more specific in this sense. The col
lective agreement dealt with immediate family,
and spelled out its membership. The only parental
relationship acknowledged to fall within it, other
than a parental relationship directly implicating
the employee (his immediate parents or children),
4 "Marital status" was until then the only ground mentioned
in the English version and it was felt that the expression was
narrower than the corresponding French phrase "situation de
famille".
s Re: Minutes of Proceedings and Evidence of the Standing
Committee on Justice and Legal Affairs, Issue No. 114,
December 20, 1982, as reported in the Tribunal's decision, at
pp. 35 to 39, Case Book, pp. 325-329.
was a parental relationship involving his/her
spouse (i.e. the father-in-law of the employee).
The complainant's case must rest, therefore, on the
basis that not only was his lover a member of his
family, but that they were spouses. It has to be
assumed, of course, that in the mind of the Tri
bunal the homosexual couple constituted a family
because the two men were in a spousal relation
ship. But it seems to me that a more specific
analysis was required than one based on the gener
al attributes of a family group. I already said that,
in my understanding, it is by extension that a
spouse was included in the concept of family and
that was because she or he was at the start of a
new branch to the larger family group, and likely
at the origin of a new family unit. If that under
standing is correct, the analysis of the Tribunal
falls short of being to the point.
But not only were the foundations of the com
plaint more specific than acknowledged, they were
more fundamental. Indeed, should it be admitted
that a homosexual couple constitutes a family in
the same manner as a husband and wife, it then
becomes apparent that the disadvantage that may
result to it by a refusal to treat it as a heterosexual
couple is inextricably related to the sexual orienta
tion of its members. It is sexual orientation which
has led the complainant to enter with Popert into a
"familial relationship" (to use the expression of
the expert sociologist) and sexual orientation,
therefore, which has precluded the recognition of
his family status with regard to his lover and that
man's father. So in final analysis, sexual orienta
tion is really the ground of discrimination involved.
But could it not be said, at this point, that
although sexual orientation is not one of the enu
merated grounds of discrimination in the Act,
according to two cases, Veysey v. Canada (Com-
missioner of the Correctional Service), [1990] 1
F.C. 321 (T.D.) (affirmed on other grounds by the
Court of Appeal on May 31, 1990, Court file
A-557-89), and Brown v. B.C. (Min. of Health)
(1990), 42 B.C.L.R. (2d) 294 (S.C.), it is a ground
protected from discrimination under section 15 of
the Charter, so that the conclusion reached by the
Tribunal would be validated by being the only
application of "family status" consonant with the
Charter.
My reaction is that I do not see the Charter as
capable of being used as a kind of ipso facto
legislative amendment machine requiring its doc
trine to be incorporated in the human rights legis
lation by stretching the meaning of terms beyond
their boundaries.
For one thing, human rights codes impact on
areas of the private sector of economic life which
are not readily seen to fall within the scope of the
Charter. It may well be that the legislatures who
entrenched the Charter were willing to impose a
more demanding standard of conduct on them
selves and on the executive than they would have
decided to impose on the population at large.
Of course, I do not address this remark to
situations where a private party invokes or relies
on a power conferred through legislation, statutory
or subordinate, in order to produce an infringe
ment of the Charter rights of another (see the
remarks of McIntyre J. in RWDSU v. Dolphin
Delivery Ltd., [1986] 2 S.C.R. 573, at pages 602-
603, commenting on the judgment of the Ontario
Court of Appeal in Re Blainey and Ontario
Hockey Association et al. (1986), 54 O.R. (2d)
513. Rather, the reaction addresses the proposition
that the Charter purports to restructure the global
juristic background against which all private
ordering takes place.
It might be argued that the remark, if relevant
to a situation where all the parties are acting in a
private capacity, nevertheless fails to take into
account the fact that here we are dealing with a
collective agreement at least one of the co-authors
of which falls easily within the notion of govern
ment as set out in section 32 of the Charter.
Approaching the question in this manner, it
remains to be said that a complainant alleging that
an agency of government has entered into an
agreement infringing his Charter rights must do so
outside the statutory framework of the Canadian
Human Rights Act, unless that Act prohibits the
alleged infringement.
For another thing, the Charter contains within it
a general balancing mechanism, in the form of
section 1, which is not present in human rights
codes. To advance their position that the human
rights legislation and the Charter must be linked
together, the respondent and the Commission
referred to a passage in the reasons of McIntyre J.
in Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143, at page 176, reading:
While discrimination under s. 15(1) will be of the same nature
and in descriptive terms will fit the concept of discrimination
developed under the Human Rights Acts, a further step will be
required in order to decide whether discriminatory laws can be
justified under s. 1. The onus will be on the state to establish
this. This is a distinct step called for under the Charter which is
not found in most Human Rights Acts, because in those Acts
justification for or defence to discrimination is generally found
in specific exceptions to the substantive rights.
The passage, in my view, helps me make my point.
These specific exceptions (e.g. bona fide occupa
tional requirements) are present in human rights
legislation as a result of consideration by the legis
latures, and quite possibly as a result of political
compromise reached through the democratic pro
cess. If tribunals begin to read into those statutes
unforeseen meanings on the basis that Charter
jurisprudence has found such meanings to consti
tute "analogous grounds" under section 15, there
will be no section 1 analysis, and no occasion for
the development of specific exceptions to substan
tive rights referred to by McIntyre J.
Unlike some other legislatures, 6 Parliament has
not made sexual orientation a ground of discrimi
nation prohibited by the Canadian Human Rights
Act. Its inclusion has been recommended by the
House of Commons Parliamentary Committee on
Equality Rights, and the recommendation may be
acted upon. But until then, the Act is what it is
and I do not find it appropriate for tribunals or
courts to preempt the legislative process.
My overall conclusion will now be clear: I think,
with respect, that, to substantiate the complaint of
the respondent, the Tribunal not only had to give
6 Quebec, Manitoba and the Yukon Territories.
the words "family status" a meaning not borne by
the term, it had to attribute to its conclusion in
that respect a consequence which logically did not
necessarily follow.
I would grant the section 28 application and set
aside the decision of the Human Rights Tribunal
dated April 5, 1989 substantiating the complaint
of the respondent.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.A.: I am in agreement with the result
proposed by my colleague Mr. Justice Marceau,
and also with the reasons he gives except as
indicated in these brief reasons. I shall restrict
myself to three aspects of the matter.
While resort to legislative history for assistance
in ascribing a particular construction to the term
"family status" would not be proper, such resort
may be had in order to show the limited evil or
mischief sought to be remedied by Parliament at
the time that term was introduced.' Parliament's
objective in adding "family status" as a prohibited
ground of discrimination to those already con
tained in subsection 3(1) of the Canadian Human
Rights Act,' is of considerable significance in
deciding upon the correctness of the decision under
attack.' Until that amendment was adopted on
July 1, 1983 the original English version of the Act
included only "marital status" whereas the origi
nal French version included only "situation de
famille". The amendment appears to have been
introduced to resolve a discrepancy between the
two versions.
'See e.g. Babineau et al. v. Babineau et al. (1981), 32 O.R.
(2d) 545 (H.C.); affd on appeal (1982), 37 O.R. (2d) 527
(C.A.).
' This subsection, as amended, reads:
3. (1) For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, family status,
disability and conviction for which a pardon has been grant
ed are prohibited grounds of discrimination.
9 Indeed, the Tribunal considered the legislative history of
the amendment: Tribunal's Decision, Appeal Book, Volume 3,
at pp. 326-329.
In testifying before a Standing Committee of
the House of Commons which was studying the
proposed change, the then Minister of Justice
pointed to the above-noted mischief and added the
following with respect to the "family status" con
cept proposed for adoption:
... this concept prohibits discrimination on the basis of rela
tionships arising from marriage, consanguinity or legal adop
tion. It could include ancestral relationships, whether legiti
mate, illegitimate or by adoption, as well relationships between
spouses, siblings, in-laws, uncles or aunts, nephews or nieces,
cousins, etc.. It will be up to the commission, the tribunals it
appoints, and in the final cases, the courts, to ascertain in a
given case the meaning to be given to these concepts. 10
The Minister also made it clear that the Govern
ment of the day had decided not to include in the
Act "sexual orientation" as a prohibited ground of
discrimination."
In my view, this evidence furnishes a strong
indication that it was the intention of Parliament
to limit the new prohibited ground of discrimina
tion in a way which did not include discrimination
based on sexual orientation. Parliament, of course,
is free to further amend the statute, 12 but in the
meantime it is not within the authority of this
Court to do that which Parliament alone may do.
We are here concerned with the interpretation of
"family status" and not with the wisdom underly
ing Parliament's decision not to include within it
sexual orientation as a prohibited ground of
discrimination.
Secondly, as we are not called upon in this case
to decide whether that term includes or excludes
common-law relationships, I prefer to leave that
question for another time. I merely wish to note
that a common-law relationship, unlike that with
which we are here concerned, is one that exists
between two persons of the opposite sex.
10 Standing Committee on Justice and Legal Affairs,
Minutes of Proceedings and Evidence, Issue no. 114, at p. 17.
(Appeal Book, Volume 3, at p. 326.)
" Ibid., at pp. 19-20 (Appeal Book, Volume 3, at p. 329).
12 As has been recommended in the Report of the Parlia
mentary Committee on Equality Rights: Equality for All of
October 1985. This recommendation is to the effect that "sexu-
al orientation" be included in the Act as a prohibited ground of
discrimination.
Finally, the contention that "when human rights
legislation is in conflict with the Charter, the
provisions of the Charter prevail" 13 would appear
to be supported by the decided cases. 14 Subsection
52(1) of the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]] declares that "any
law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency,
of no force or effect". What needs to be stressed,
at this juncture, is that none of the parties has
sought to demonstrate that any provision of the
Act is in conflict with the Canadian Charter of
Rights and Freedoms.
The point being argued is that the Act and the
Charter are interrelated and that together they
mandate an interpretation of "family status"
which "does not discriminate against male and
female homosexuals based on their sexual
orientation". 15 The requirements of the Charter, it
is contended, "are to be used as a rule of statutory
construction". 16 More specifically, counsel argues
that as sexual orientation has been held to be a
non-enumerated ground of discrimination under
section 15 of the Charter,' 7 the restriction of
"family status" to partners of the opposite sex
would be discriminatory in that same sex individu
als would thus be denied benefits of employment
that are extended to partners of the opposite sex.
Paragraph 24 of the Factum of the Intervenors Equality
for Gays and Lesbians Everywhere, Canadian Rights and,
Liberties Federation, The National Association of Women and
the Law, The Canadian Disability Rights Council and the
National Action Committee on the Status of Women.
14 See e.g. Re Blainey and Ontario Hockey Association et al.
(1986), 54 O.R. (2d) 513 (C.A.), and as considered in RWDSU
v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at pp. 601-603.
Is Op. cit., para. 29.
/bid., para. 31.
Veysey v. Canada (Commissioner of the Correctional Ser
vice), [1990] 1 F.C. 321 (T.D.), affd by the Court of Appeal on
other grounds, May 31, 1990 (Court File A-557-89); Brown v.
B.C. (Min. of Health) (1990), 42 B.C.L.R. (2d) 294 (S.C.).
While accepting that human rights legislation
should be interpreted, as much as possible, in a
manner consistent with the provisions of the
Charter and its interpretation, I cannot accept that
the Charter should operate so as to mandate the
courts to ascribe to a statutory term a meaning
which it was not intended to possess. If the statu
tory term, construed as I think it should be con
strued, is thought to conflict with the provisions of
the Charter then the constitutional validity of that
term must be put in issue for the Charter to play a
role in resolving the dispute. Having already decid
ed that the term "family status", as it is used in
the Act, does not import sexual orientation as a
prohibited ground of discrimination, I am unable
to see how the Charter can alter the construction
of that term. The absence of "sexual orientation"
from the list of grounds of discrimination prohib
ited by subsection 3(1) of the Act as infringing a
right enshrined in the Charter is not raised in this
appeal, and I refrain from expressing an opinion
on the matter.
HEALD J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.