Brossard (Town) v. Quebec (Commission des droits de la personne)

Brossard (Town) v. Quebec (Commission des droits de la personne)
Collection
Supreme Court Judgments
Date
1988-11-10
Report
[1988] 2 SCR 279
Case number
18270
Judges
Beetz, Jean; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 18270
Decision Content
brossard v. québec (comm. des droits de la personne), [1988] 2 S.C.R. 279
Commission des droits de la personne du Québec Appellant
v.
Town of Brossard Respondent
and
Line Laurin Mis en cause
indexed as: brossard (town) v. quebec (commission des droits de la personne)
File No.: 18270.
1986: April 30; 1988: November 10.
Present: Beetz, McIntyre, Chouinard*, Lamer, Wilson, Le Dain* and La Forest JJ.
on appeal from the court of appeal for quebec
Civil rights ‑‑ Employment ‑‑ Discrimination ‑‑ Civil status ‑‑ Members of the immediate families of full‑time employees and town councillors prohibited from taking employment with the town ‑‑ Whether hiring practice based on civil status and discriminatory under s. 10 of the Quebec Charter of Human Rights and Freedoms ‑‑ If so, whether town's hiring practice justified by s. 20 of the Charter ‑‑ Construction of s. 20 ‑‑ Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12, ss. 10, 16, 20.
The town of Brossard adopted a hiring policy disqualifying members of the immediate families of full‑time employees and town councillors from taking up employment with the town. The mis en cause complained to the Commission des droits de la personne when her application for summer employment with the town as a lifeguard was not considered, pursuant to the anti‑nepotism policy, because her mother worked as a full‑time typist at the municipal police station. The Commission stated that she had been wronged and recommended that she be immediately granted the position for which she had applied. The town then sought a declaration from the Superior Court that the hiring policy did not constitute wrongful discrimination under s. 10 of the Quebec Charter of Human Rights and Freedoms. The Court dismissed the motion but the Court of Appeal reversed the judgment. This appeal is to determine whether the town's hiring policy constitutes discrimination in employment based on "civil status" contrary to ss. 10 and 16 of the Quebec Charter; and, if so, whether the exclusion of members of the immediate families of full‑time employees and town councillors is deemed non‑discriminatory pursuant to one of the exceptions provided for in s. 20 of the Charter.
Held: The appeal should be allowed.
Per Beetz, McIntyre, Lamer and La Forest JJ.:
(1) Section 10 of the Charter
The town's hiring policy represented an exclusion based on the civil status of persons applying for employment with the town. The exclusion was based on filiation, fraternity and sorority, and marital status viewed in relative terms‑‑the hiring policy excluded candidates married to persons already connected to the town‑‑, which are all included in the "civil status" of candidates protected by s. 10 of the Charter. This is true both generally as well as in the particular case of the mis en cause. Furthermore, the candidates' civil status was the operative cause of their exclusion. While in some circumstances the mother‑daughter relationship might be viewed separately from the position occupied by the mother, for the purposes of determining the cause of the mis en cause's exclusion these two factors operated together to form a single, indivisible cause. The civil status of the mis en cause, an appreciation of which required an examination of the mother's situation, caused her exclusion.
Such an exclusion constitutes discrimination under s. 10 only if, pursuant to the second paragraph of that provision, the exclusion has the effect of nullifying or impairing the candidates' right to full and equal recognition and exercise of their human rights and freedoms. The mis en cause and other candidates excluded by the hiring policy plainly did not enjoy the full and equal recognition and exercise of their right to non‑discrimination in employment established by s. 16. The town's hiring policy was therefore discriminatory under s. 10 of the Charter.
(2) Section 20 of the Charter
(a) Construction
Section 20 of the Charter provides for two separate statutory exceptions to the anti‑discrimination norm in s. 10 and it is wrong to suggest that there is a connection between them, even for the purposes of interpreting their respective terms. The two exceptions, founded on differing legislative objectives, are deserving of different methods of statutory interpretation. The first branch, which provides that an "exclusion...based on the aptitudes or qualifications required in good faith for an employment...is deemed non‑discriminatory", should be interpreted restrictively since it takes away rights which otherwise benefit from a liberal interpretation. The second branch provides that an "exclusion...justified by the charitable, philanthropic, religious, political or educational nature of a non‑profit institution or of an institution devoted exclusively to the well‑being of an ethnic group, is deemed non‑discriminatory". This exception, while imposing a limitation on the rights of some individuals, also confers rights upon certain groups. It is designed to promote the fundamental right of individuals to freely associate in groups for the purpose of expressing particular views or engaging in particular pursuits. The Court, therefore, rather than adopting a liberal or a restrictive interpretation of the second branch, should give the expressions "non‑profit institution" and "political nature" their ordinary meaning, using the traditional rules of statutory interpretation.
(b) The First Branch
In order to be relevant for the purposes of the first branch of s. 20, the "aptitudes or qualifications required in good faith for an employment" must necessarily relate to one of the enumerated grounds in s. 10 since the exception can only be invoked following the determination that a given behaviour amounts to discrimination contrary to s. 10. In this case, the absence of conflict of interest on the part of the person considered for employment was the "aptitude or qualification" which related to civil status, the enumerated ground in s. 10 relevant to the discriminatory hiring policy. A requirement that candidates be free from conflicts of interest encourages impartiality in the hiring of new public servants and promotes impartiality in the performance of public servants' duties after they have been hired.
For its hiring policy to be deemed non‑discriminatory under the first branch of s. 20, the town had to demonstrate that: (1) the absence of conflict of interest requirement was imposed honestly, in good faith (a subjective test); and (2) the requirement is related in an objective sense to the performance of employment with the town in that it was reasonably necessary to assure the efficient and economic performance of the work (an objective test). A requirement is "reasonably necessary" to assure the performance of a job under the objective test when it satisfies the following two criteria: the aptitude or qualification must be rationally connected to the employment concerned and the rule must be properly designed to ensure that the aptitude or qualification is met without placing an undue burden on those to whom the rule applies.
The subjective element of the test was met here because the requirement was imposed honestly. The purpose of the hiring policy was to combat nepotism and to promote sound municipal management; it was not to frustrate the objectives of the Charter.
The objective part of the test was not met. Nevertheless, the aptitude or qualification required of all candidates‑‑an absence of real and potential conflicts of interest and the appearances thereof‑‑was rationally connected to employment with the town, including employment as a lifeguard for which the mis en cause applied. All public servants, from the most powerful mandarin to the most junior clerk, share in a duty to the collectivity whereby the particular interests of the public servant must yield to the general interest of the citizens which make up that collectivity. It is appropriate and indeed necessary to adopt rules of conduct for public servants to inhibit conflicts of interest, of which nepotism is one serious form. Moreover, it should be possible for a government employer to establish rules of conduct designed to combat not only real or potential conflicts of interest but also the appearance of such conflicts.
In this case, however, the rule was disproportionately stringent in view of the aptitude or qualification which it sought to verify. The hiring policy that the town chose to adopt was a blanket rule allowing for no exceptions and therefore did not sufficiently take into account the degree of likelihood that an abuse of power would take place. For an exclusion of this nature to be justified as an occupational requirement under the first branch of s. 20, the requirement must be tailored to the employment in question so that it can be said to preclude real conflicts of interest, potential conflicts of interest which are reasonably likely to arise, and the appearance of conflicts of interest founded on a reasonable apprehension of bias. The population of the municipality, the number of public servants it employs, the peculiarities of its administrative structure, the nature of the positions occupied in respect of their potential for abuse of power and, to some extent, the nature of the family relationship in question, are all relevant to determining whether the rule is properly designed in respect of the objective test. In this case, the town's hiring policy was not sufficiently tailored to the nature of the positions occupied in respect of the potential for abuse of power. The mother was not in a position to influence the hiring of her daughter and there was no reasonable apprehension that she could have done so. There was also no evidence enabling the Court to evaluate the blanket rule in connection with the size of the municipality and its public service. The first branch of s. 20 did not, therefore, justify the town's discriminatory hiring practice.
(c) The Second Branch
The town's discriminatory practice is not saved by the second branch of s. 20. A municipality is not a "non‑profit institution" of a "political nature" as contemplated by this section. Although the use of the expression "non‑profit institution" does not preclude the application of the second branch to municipalities, the words "charitable, philanthropic, religious, political or educational nature" which precede "non‑profit institution" in s. 20 colour the meaning of the latter expression, and support the view that a municipality is not included therein.
The word "political" can also be interpreted, in other contexts, so as to include municipalities and other government employers. In section 20, however, the word "political" is explained by the other examples of non‑profit institutions given by the legislator and the concept of "vocation" appears to be implicit in each of them. An institution of a political nature would be one with a particular ideological or policy‑oriented vocation and would not include a municipality.
Further, the second branch of s. 20 is designed to promote the fundamental freedom of individuals to associate in groups for the purpose of expressing particular views or engaging in particular pursuits, and to prevent those individuals from being inhibited in so doing by the anti‑discriminatory norm in s. 10. Therefore, to be protected by the second branch of s. 20, an institution must have, as a primary purpose, the promotion of the interests and welfare of an identifiable group of persons characterized by a common ground under s. 10. The institution itself may fall into one or another of the s. 20 types, but there must always be a connection between the brand of s. 10 discrimination practised by the group and the nature of the institution as well as a congruence between a primary group purpose and the brand of s. 10 discrimination. The underlying policy of the second branch of s. 20 makes it clear that a municipality, like otthe exception. A municipality is not an institution which promotes the interests and welfare of an identifiable group of persons characterized by a factor enumerated in s. 10. The town does not discriminate in order to promote the free association of members of any such identifiable group.
Given the conclusion that the town is not a non‑profit institution of a political nature which cannot avail itself of the second branch of s. 20, the Court need not inquire as to whether the discriminatory hiring policy is "justified" in the circumstances. However, as a general rule, the distinction, exclusion or preference practised by the non‑profit institution to which the second branch applies must be justified in an objective sense by the particular nature of the institution in question.
Per Wilson and La Forest JJ.: The town's reason for adopting its anti‑nepotism policy was to enhance both the reality and the public image of itself as an employer who applies completely impartial hiring practices. The town believed that, as a public body accountable to the residents of the town for the proper administration of the town's affairs, it had to be above reproach as far as its hiring practices were concerned. It should hire and be seen to hire purely on the basis of merit and not on the basis of preferential treatment accorded to the relatives of council members or persons already in its employ. This objective of the town was broader than its concern over potential conflicts of interest and the Court must decide whether that broader concern could provide a justification for its anti‑nepotism policy under the first branch of s. 20. The nature of the job applied for and the nature of the job held by any relative, while crucial on the conflict of interest basis of qualification, would not be determinative on this question.
The nature of the employer is relevant in determining the "qualifications" which may legitimately be attached to an employment under the first branch of s. 20 reedoms. A municipality's anti‑nepotism policy could thus be justified on the ground that it is a "qualification required in good faith" for employment by it because of its status as a public body. The policy, however, was not "reasonably necessary" to ensure the integrity of the town's administration or the appearance of such integrity. While the hiring of relatives may well pose a threat or be perceived as posing a threat to the integrity of the town's administration, the adoption of a total ban was too stringent a measure to avoid such a threat having regard to the importance of the right violated by an anti‑nepotism policy, i.e., the right not to be discriminated against. Since less drastic means were available to the town to achieve its object, its policy was not justified by the first branch of s. 20.
Cases Cited
By Beetz J.
Applied: Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Caldwell v. Stuart, [1984] 2 S.C.R. 603; approved: Biscuits Associés du Canada Ltée v. Commission des droits de la personne, [1981] C.A. 521; Cashin v. Canadian Broadcasting Corp. (1988), 86 N.R. 24 (F.C.A.), rev'g (1987), 8 C.H.R.R. D/3699; Mark v. Porcupine General Hospital (1984), 6 C.H.R.R. D/2538; Commission des droits de la personne du Québec v. Québec (Ville de), [1986] R.J.Q. 243; disapproved: Mormina v. Saint‑Léonard (Ville de), J.E. 87‑950; distinguished: Johnson v. Commission des affaires sociales, [1984] C.A. 61; referred to: Commission des droits de la personne v. École de conduite St‑Amour Inc., [1983] C.P. 16; Blanchette v. Cie d'assurance du Canada sur la vie, [1984] C.S. 1240; Aronoff v. Hawryluk (1981), 2 C.H.R.R. D/534; Syndicat national des employés de garage de Québec Inc. (C.S.D.) v. Roy, [1987] D.L.Q. 409; Placements G.P.C. Inc. v. Union des employés de commerce, local 504, [1987] D.L.Q. 93n; Marché Sabrevois Inc. v. Union des employés de commerce, local 500, [1987] D.L.Q. 71n; Commission des droits de la personne du Québec v. Courtier provincial en alimentation (1971) Inc. (1982), 3 C.H.R.R. D/1134; Bosi v. Township of Michipicoten (1983), 4 C.H.R.R. D/1252; Décision C.D.P.‑‑18, [1987] D.L.Q. 155; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183; Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Association A.D.G.Q. v. Commission des écoles catholiques de Montréal, [1980] C.S. 93; Décision C.D.P.‑‑31, [1986] D.L.Q. 462; Ladouceur v. Dollard‑des‑Ormeaux (Ville de), [1987] D.
Referred to: Caldwell v. Stuart, [1984] 2 S.C.R. 603.
Statutes and Regulations Cited
Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12, ss. 10 [am. 1978, c. 7, s. 112], 16, 20, 82.
Cities and Towns Act, R.S.Q., c. C‑19.
Civil Code of Lower Canada, arts. 39 et seq., 54, 356.
Civil Code of Quebec, art. 572.
Code of Civil Procedure, arts. 453 et seq.
Human Rights Code, 1981, S.O. 1981, c. 53, ss. 17, 23.
Public Service Act, R.S.Q., c. F‑3.1.1, s. 7.
Authors Cited
Bisson, Alain‑François. "La Charte québécoise des droits et libertés de la personne et le dogme de l'interprétation spécifique des textes constitutionnels" (1986), 17 R.D.U.S. 19.
Garant, Patrice. La fonction publique canadienne et québécoise. Québec: Presses de l'Université Laval, 1973.
Jèze, Gaston. Les principes généraux du droit administratif, vol. II, 3e éd. Paris: Michel Giard, 1930.
Robert, Paul. Dictionnaire alphabétique et analogique de la langue française, vol. III. Paris: Le Robert, 1981, "institution".
APPEAL from a judgment of the Quebec Court of Appeal, [1983] C.A. 363, 3 D.L.R. (4th) 228, reversing a judgment of the Superior Court, [1980] R.P. 203, which dismissed respondent's motion for declaratory judgment. Appeal allowed.
Hélène LeBel, Q.C., and Guy Desautels, for the appellant.
Clermont Vermette, Q.C., for the respondent.
The judgment of Beetz, McIntyre, Lamer and La Forest JJ. was delivered by
1. Beetz J.‑‑The town of Brossard, in a good faith effort to combat nepotism within the local public service, has adopted a hiring policy which disqualifies members of the immediate families of full‑time employees and town councillors from taking up employment with the town. Can the town exclude this class of applicant without practising discrimination in employment, thereby violating one of the rights and freedoms protected by the Quebec Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12?
I Facts and Proceedings
2. The facts are not in dispute.
3. The standard form application for employment with the town of Brossard, in keeping with the respondent's anti‑nepotism hiring policy, bears the following heading:
[TRANSLATION] If you have an immediate relative (father, mother, spouse, child, brother, sister) among the full‑time employees or members of the town council, you may not apply for employment with the town of Brossard.
4. The mis en cause, Line Laurin, fell prey to the rule. She applied for summer employment with the respondent as a lifeguard and, pursuant to the anti‑nepotism policy, her application was not considered because her mother worked as a full‑time typist at the municipal police station.
5. Line Laurin complained to the appellant Commission des droits de la personne of the respondent's refusal to consider her application. On May 23, 1978, the appellant's Investigations Branch addressed a letter to Mr. Armand Lussier, the town's director of personnel, informing the town of the results of its investigation. The letter stated that [TRANSLATION] "Miss Laurin has been the victim of a wrong in that she is prohibited from working for the town of Brossard because her mother is a permanent employee of that municipality." The letter contained a demand, presumably a "recommendation" pursuant to s. 82 of the Charter, directing that Line Laurin be immediately granted the position for which she had applied and further requesting the respondent to remove all references and questions relating to its hiring policy from its standard form application.
6. On November 13, 1979, the town filed a motion for declaratory judgment pursuant to arts. 453 et seq. of the Code of Civil Procedure, naming the Commission and Line Laurin as respondents. In the conclusions to its motion, the town asked the Superior Court to declare, inter alia, the following: that the hiring policy did not constitute wrongful discrimination under s. 10 of the Charter; that the town was justified in not considering the candidacy of Line Laurin; and that the town was justified in maintaining the references to its hiring policy in the standard form application.
7. On December 20, 1979, Deslongchamps J. of the Superior Court dismissed the town's motion for declaratory judgment: [1980] R.P. 203. The Court of Appeal, in a judgment dated October 18, 1983, allowed the town's appeal, Jacques J.A. dissenting: [1983] C.A. 363. The Commission appeals from that judgment by leave of this Court, Line Laurin named as mis en cause.
8. Resolution of this appeal requires the Court to address three separate but related questions. First, it must be determined whether the respondent's hiring policy constitutes discrimination in employment based on "civil status" contrary to ss. 10 and 16 of the Charter. I consider this issue in Part II of these reasons and conclude that the hiring policy is indeed discriminatory on this ground. Next the Court must establish whether the exclusion of members of the immediate families of full‑time employees and town councillors is deemed non‑discriminatory pursuant to one of the statutory exceptions to the anti‑discrimination norm. Each of the two distinct exceptions which make up s. 20 of the Charter must be analyzed separately. The first branch of s. 20, which I treat in Part III of these reasons, requires the Court to determine whether the exclusion is based on an aptitude or qualification required in good faith for the employment. I conclude that it is not. In Part IV of these reasons, I examine the second branch of s. 20 to determine whether the respondent can invoke the exception which provides that an exclusion can be justified by the political nature of a non‑profit institution. Here again, I conclude that the discriminatory hiring policy is not saved by the statutory exception.
II The Right to Non‑Discrimination in Employment
9. At the time of the respondent's motion for declaratory judgment, s. 10 of the Charter provided as follows:
10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, sexual orientation, civil status, religion, political convictions, language, ethnic or national origin, social conditions or the fact that he is a handicapped person or that he uses any means to palliate his handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.
10. The appellant contends that the respondent's hiring policy constitutes an exclusion of certain candidates for employment based on their civil status. According to this argument, the exclusion has the effect of nullifying or impairing these candidates' right to full and equal recognition and exercise of the right to be free from discrimination in employment. Section 16, unchanged since the adoption of the Charter, directs as follows:
16. No one may practise discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying‑off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment.
11. The respondent's answer is two‑fold. First, the respondent contends that the meaning of the expression "civil status" in s. 10 of the Charter is not wide enough to encompass the relationship between Line Laurin and her mother. The respondent argues that "civil status" in s. 10 refers to the status of the complainant without reference to other persons. In the alternative, the respondent argues that even if "civil status" does include filiation, fraternity and sorority, and marital status in a relative sense, the exclusion practised by the town is not based on civil status alone but rather in combination with another factor, namely the position occupied by Line Laurin's mother with the town.
12. Various meanings of the term "civil status" were examined in the courts below. Deslongchamps J. of the Superior Court studied definitions given in the case law and learned commentary before concluding that this term [TRANSLATION] "includes `family situation resulting from filiation and marriage'" (p. 208). Accordingly, he decided that the hiring policy was in violation of s. 10.
13. In the Court of Appeal, Paré J.A., with whom Bernier J.A. concurred, decided that he did not have to express an opinion as to the meaning of "civil status" because, irrespective of the precise definition given, the hiring policy was deemed non‑discriminatory by s. 20 of the Charter. Jacques J.A., dissenting, did examine the meaning of "civil status" in detail, concluding that it refers to [TRANSLATION] "a series of facts which determines an individual's capacity to render himself liable for obligations and which must be recorded in a register" (p. 366). He was of the view that the meaning of the expression used in s. 10 is the same as "civil status" as that term is employed in Title 2 of Book I of the Civil Code of Lower Canada entitled "Of Acts of Civil Status", relating to birth, marriage and death.
14. While at first glance the case law which seeks to define "civil status" under s. 10 appears to suffer from considerable incoherence, it is possible to infer a reasonably widespread use of the Civil Code's notion of "civil status" by courts called upon to interpret the same term as it appears in s. 10. In Commission des droits de la personne v. École de conduite St‑Amour Inc., [1983] C.P. 16, for example, it was decided that an employer who chose to lay‑off an unmarried worker instead of a married man was practising an exclusion or preference based on civil status in violation of s. 10 because the act of marriage is one of the formal acts required by the Civil Code. Rightly or wrongly, cohabitation has been held not to be a part of "civil status" under s. 10 because no act of civil status under the Civil Code makes reference to cohabitation outside of marriage: Blanchette v. Cie d'assurance du Canada sur la vie, [1984] C.S. 1240. I only cite these cases to demonstrate that Quebec courts have looked to the formal acts of civil status in the Civil Code for an explanation of "civil status" under s. 10 of the Charter.
15. Yet the facts actually recorded in the formal "acts of civil status" of an individual are often insufficient in themselves to explain fully that person's civil status. Courts appear to have recognized this problem. In Aronoff v. Hawryluk (1981), 2 C.H.R.R. D/534, Judge Louis Vaillancourt of the Quebec Provincial Court held that being divorced is a form of "civil status" under s. 10 although this fact is not recorded in any act of civil status. The same may be said of legal separation. Being unmarried is unquestionably included in civil status, yet this results not from a fact recorded in an act of civil status but rather an absence of a marriage certificate. Similarly, being a widow or a widower is a form of civil status even though this status is established by the death certificate of another person. The information recorded in the acts of civil status of an individual do not conclusively account for the whole of that person's "civil status" for the purposes of s. 10 of the Charter. "Civil status" under s. 10 includes a range of facts (and not necessarily recorded facts) relating to the three classical elements of civil status‑‑birth, marriage and death‑‑to which arts. 39 et seq. C.C.L.C. refer. These facts are sometimes recorded in a person's own acts of civil status, sometimes recorded in the acts of another person, and sometimes not recorded in any act at all. Other facts, such as interdiction or emancipation, which do not relate to birth, marriage or death but instead to legal capacity may also be included in civil status under s. 10, although this need not be decided in this case.
16. For the purposes of evaluating the respondent's hiring policy, it must be determined whether filiation as well as fraternity and sorority form part of civil status under s. 10. We also must inquire as to whether marital status is included within the ambit of that term. Our focus is not marital status in absolute terms, such as a prohibition against hiring married men, but marital status in relative terms, since the hiring policy excludes candidates married to persons already connected to the town. While this latter issue does not directly affect Line Laurin, it is relevant to the question as to whether or not the hiring policy, which also excludes candidates whose spouses already work full‑time for the town or who are on the council, is discriminatory.
17. Filiation is, to my mind, one of the cardinal elements of the notion of civil status in the Civil Code and falls within the scope of "civil status" under s. 10 of the Charter. In most cases, filiation can be established by the acts of civil status. Indeed by the joint operation of arts. 54 and 39 C.C.L.C., the identity of a child's father and mother is recorded in the act of birth. Article 572 of the Civil Code of Quebec, moreover, directs in part that "[p]aternal and maternal filiation are proved by the act of birth, regardless of the circumstances of the child's birth." In other instances, of course, acts of civil status will not fully account for filiation, but filiation nevertheless remains a fact relating to birth, in some cases to marriage, and sometimes even to death, in keeping with the general parameters of civil status under s. 10 which I have described above. Filiation is plainly part of "civil status" under s. 10 of the Charter.
18. Quebec courts have showed little hesitation in including family relationships in "civil status" under s. 10. Biscuits Associés du Canada Ltée v. Commission des droits de la personne, [1981] C.A. 521, is an example. The Commission took action against an employer when an employee was fired because, contrary to company policy, she was related to other employees. While the Court of Appeal held that there was no evidence of discrimination on the facts of the case, Lajoie J.A. made the following observation at p. 524:
[TRANSLATION] Suffice it to say that after reading this academic commentary and case law I am persuaded that, for the purposes of the case at bar, the relationship of sorority existing at the relevant time between Mrs. Fernande Martel and her sisters Noëlla and Yvette did in fact result from their civil status. Sorority or fraternity‑‑the fact that two or more children have the same father and the same mother‑‑produces under the law (principally under the Civil Code) ties which confer rights and create duties. As examples I need only mention the rules relating to succession, representation and support.
19. A recent decision of the Superior Court confirms this interpretation of the term "civil status". In Syndicat national des employés de garage de Québec Inc. (C.S.D.) v. Roy, [1987] D.L.Q. 409, Moisan J. held that a hiring preference granted to family members of company directors constituted wrongful discrimination founded on civil status (at p. 412):
[TRANSLATION] It is quite clear, and the arbitrators were well aware of this, that paragraphs b and c under the heading "Employees not covered" constitute a preference in favour of members of the family of the three directors of the business; a preference which may affect the transfer, removal or dismissal of the other employees. This preference is based on their civil status as sons or daughters of one or other of the three directors and owners of the business.
There can be no doubt that the status of son or daughter is a part of civil status within the meaning of section 10 of the statute.
20. Two recent decisions of the Labour Court confirm this view that the bonds created by family relationships are included in "civil status" under s. 10. In Placements G.P.C. Inc. v. Union des employés de commerce, local 504, [1987] D.L.Q. 93n, Burns J. decided that the exclusion of spouses and relatives of the company's principal shareholders from a bargaining unit constituted discrimination based on civil status contrary to s. 10. In Marché Sabrevois Inc. v. Union des employés de commerce, local 500, [1987] D.L.Q. 71n, a similar conclusion was reached in respect of an exclusion of the spouse, children and sister‑in‑law of the company owner from a list of workers prepared for certification purposes.
21. I am in agreement with the prevailing view in the jurisprudence, explained by Lajoie J.A. in Biscuits Associés, supra, which includes family relationships in "civil status". Like filiation, fraternity and sorority fall within the parameters which I have ascribed to civil status under s. 10. In this respect as well, the respondent's hiring policy represents an exclusion of certain candidates based on their "civil status".
22. More complicated is the question as to the extent to which spousal identity is included in the expression "civil status". Marriage is plainly relevant to civil status. Discrimination can of course be practised on the basis of marital status in absolute terms. What about marital status in relative terms? Is the identity of a person's spouse relevant to discrimination under s. 10?
23. The respondent argues that a narrow interpretation should be given to "civil status" in this respect. But as I have observed, to understand the civil status of one person one must often refer to the civil status of another. Being a widow or a widower is just one such example. Filiation, fraternity and sorority, of course, are others. It is difficult to imagine a hiring policy which excludes "all sons and daughters" without specifying whose sons and daughters. It is of course possible to discriminate on the basis of marital status in absolute terms (e.g., "no married men as test pilots"), but it is improbable that an individual could be the object of discrimination in employment based on a blood relationship without making reference at the same time to the person to whom he or she is related.
24. In Commission des droits de la personne du Québec v. Courtier provincial en alimentation (1971) Inc. (1982), 3 C.H.R.R. D/1134, the Quebec Superior Court decided that spousal identity is relevant to discrimination founded on civil status. An employee was fired by the defendant company because her husband worked for a competitor. Lemieux J. held that this exclusion amounted to discrimination based on civil status contrary to s. 10. After citing doctrinal definitions of the term, Lemieux J. decided in obiter at p. D/1135:
[TRANSLATION] But were the rights of the mis en cause impaired for reasons relating to her civil status? The Court must conclude that they were. The alleged situation of conflict in which the mis en cause found herself arose out of her marital relationship with René Robert.
25. An isolated Quebec decision can be cited in support of the respondent's position. In Mormina v. Saint‑Léonard (Ville de), Mtl. Sup. Ct., No. 500‑05‑007908‑856, June 11, 1987 (summarized in J.E. 87‑950), the secretary of the mayor was fired after an election in which the secretary's husband was a supporter of one of the mayor's opponents. Bélanger J. of the Superior Court took "civil status" to include only marital status in absolute terms (at p. 16):
[TRANSLATION] In the opinion of this Court the facts mentioned have no bearing upon discrimination as contemplated by the Charter. As to the question of civil status, what is relevant under s. 10 of the Charter is not with whom the plaintiff is married but whether she is married, single, divorced or otherwise.
26. The issue of the extent to which spousal identity is relevant to discrimination in employment has arisen elsewhere in Canada when courts have been called upon to define the expression "marital status" as it appears in federal human rights legislation and provincial legislation outside of Quebec. MacGuigan J. put the question in the following manner recently in Cashin v. Canadian Broadcasting Corp. (1988), 86 N.R. 24 (F.C.A.), at p. 28:
The case was argued on the basis that the applicant was discriminated against, if at all, not because she was married per se, but because she was married to a particular public figure. The ... issue is therefore whether spousal identity is included in the concept of marital status, which was the alleged ground of discrimination in this case.
27. The decision in Cashin came on the heels of a series of conflicting decisions by various tribunals charged with the administration of human rights statutes. In Bosi v. Township of Michipicoten (1983), 4 C.H.R.R. D/1252, for example, a Board of Inquiry under the former Ontario Human Rights Code decided that the township's refusal to hire a woman as an accounts clerk because her husband was already employed with the township as a police officer was not discrimination on the basis of marital status. Chairperson Martin Friedland observed at p. D/1254:
Should ["marital status"] be confined to the marital status of the spouse refused the position, or should it be extended to include a case such as this where the refusal was to hire a person who was married to a particular person? The former is a more natural meaning of the words "marital status" and I note that the 1981 Act [not in force at that time] so defines the words, that is, "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".
28. Conversely, an Ontario Board of Inquiry decided that marital status can be construed in relative terms in Mark v. Porcupine General Hospital (1984), 6 C.H.R.R. D/2538 in which Bosi was expressly repudiated. Rosemary Mark was hired as a housekeeper in the hospital's maintenance department in which her husband already worked. She was later dismissed, solely because she was married to Mr. Mark in violation of a policy of not hiring a husband and wife in the same department. Chairperson P. A. Cumming explained "marital status" as follows at p. D/2541:
It seems to me the fact the discrimination arises because of the "marital status" of a complainant with respect to a particular person, rather than simply because of the marital status of the complainant, should not matter . . . . [I]f an employer discriminates against a person on the basis of her being married to a particular person, even though he does not discriminate against married persons generally, the particular aggrieved person would, in my opinion, be unlawfully discriminated against. The "marital status" (that is, the status of "being married") of the complainant is an essential element, or proximate operative cause, of the refusal of employment. If the complainant in Bossi [sic] had not been married to, but simply known the police officer as a casual acquaintance in that case, she would not have been rejected because of her "marital status". If the Board's reasoning in Bossi [sic] was that, in essence, the complainant was rejected because of a p