Canada (Attorney General) v. Mossop

Canada (Attorney General) v. Mossop
Collection
Supreme Court Judgments
Date
1993-02-25
Report
[1993] 1 SCR 554
Case number
22145
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 22145
Decision Content
Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554
Canadian Human Rights Commission Appellant
v.
Department of Secretary of State, Treasury
Board of Canada and Canadian Union of
Professional and Technical Employees Respondents
and
Attorney General of Canada Respondent
and
Brian Mossop Mis en cause
and
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 Interveners
and
Focus on the Family, the Salvation Army, REAL
Women, the Evangelical Fellowship of Canada
and the Pentecostal Assemblies of Canada Interveners
Indexed as: Canada (Attorney General) v. Mossop
File No.: 22145.
1992: June 3; 1993: February 25.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Cory, McLachlin and Iacobucci JJ.
on appeal from the federal court of appeal
Civil rights ‑‑ Discriminatory practice ‑‑ Family status ‑‑ Employee denied bereavement leave to attend funeral of father of his male companion ‑‑ Collective agreement providing for leave upon death of a member of an employee's "immediate family" ‑‑ "Immediate family" including common‑law spouse of opposite sex ‑‑ Federal legislation prohibiting discrimination on basis of "family status" ‑‑ Whether denial of bereavement leave based on family status ‑‑ Canadian Human Rights Act, R.S.C., 1985, c. H‑6, ss. 3 , 10 .
Judicial review ‑‑ Standard of review ‑‑ Curial deference toward specialized tribunals ‑‑ Whether Federal Court of Appeal erred in holding that any error of law by human rights tribunal reviewable ‑‑ Whether Tribunal committed such an error of law in interpreting family status as including a same‑sex relationship ‑‑ Federal Court Act, R.S.C., 1985, c. F‑7, s. 28 .
The complainant, a federal government employee, took a day off work to attend the funeral of the father of the man he described as his lover. The two men had known each other for over ten years and resided together in a jointly owned and maintained home. The collective agreement between Treasury Board and the complainant's union governing terms of employment provided for up to four days' leave upon the death of a member of an employee's "immediate family", a term defined as including a common‑law spouse. The definition of "common‑law spouse" was restricted to a person of the opposite sex. The day after the funeral the complainant applied for bereavement leave pursuant to the collective agreement, but his application was refused. The grievance he filed was rejected on the basis that the denial of his application was in accordance with the collective agreement. The complainant then filed complaints with the appellant Canadian Human Rights Commission against his employer, Treasury Board and his union.
The Human Rights Tribunal concluded that a discriminatory practice had been committed contrary to the Canadian Human Rights Act , which prohibited discrimination on the basis of "family status". It ordered that the day of the funeral be designated as a day of bereavement leave and that the collective agreement be amended so that the definition of common‑law spouse include persons of the same sex who would meet the definition in its other respects. The Federal Court of Appeal granted the Attorney General of Canada's application pursuant to s. 28 of the Federal Court Act and set aside the Tribunal's decision. This appeal is to determine whether the Federal Court of Appeal erred in holding that any error of law by a human rights tribunal is reviewable on a s. 28 application, and in holding that the term "family status" in the Canadian Human Rights Act did not include a homosexual relationship. No Charter issues were raised in this appeal.
Held (L'Heureux‑Dubé, Cory and McLachlin JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ.: The general question raised in this appeal is one of statutory interpretation and as such is a question of law over which the Federal Court of Appeal has jurisdiction under s. 28 of the Federal Court Act .
Per Lamer C.J. and La Forest, Sopinka and Iacobucci JJ.: The denial of bereavement leave in this case was not discrimination on the basis of family status within the meaning of s. 3 of the Canadian Human Rights Act .
_____________________
Per Lamer C.J. and Sopinka and Iacobucci JJ.: The Federal Court of Appeal had the necessary jurisdiction to review the Tribunal's decision. Where the Court has limited the power of intervention of the reviewing courts to cases of patent unreasonableness, the tribunals were acting under the special protection of privative clauses. There is no such clause immunizing the decisions of a human rights tribunal. The issue in this case is one of statutory interpretation, and therefore a question of law reviewable under s. 28 of the Federal Court Act . While the courts have shown curial deference toward certain specialized tribunals in interpreting their enabling Act, such deference will not apply to findings of law in which the tribunal has no particular expertise, such as findings of law by human rights tribunals. If need be, La Forest J.'s reasons were adopted in this regard.
The Canadian Human Rights Act did not prohibit discrimination on the basis of sexual orientation at the time the complainant was denied bereavement leave. When Parliament added the phrase "family status" to the Act in 1983 it refused at the same time to add sexual orientation to the list of prohibited grounds of discrimination. In this case, the complainant's sexual orientation is so closely connected with the grounds which led to the refusal of the benefit that this denial could not be condemned as discrimination on the basis of "family status" without indirectly introducing into the Act the prohibition which Parliament specifically decided not to include. Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts and administrative tribunals are not empowered to do anything else but to apply the law.
Per La Forest and Iacobucci JJ.: Lamer C.J.'s general approach was agreed with. With respect to the standard of review, the general question raised is one of statutory interpretation, and as such is a question of law over which the Federal Court of Appeal has jurisdiction. In the absence of provisions indicating a legislative intention to limit judicial review, such as a privative clause, the normal supervisory role of the courts remains. While the courts have also been willing to show deference to administrative tribunals for reasons of relative expertise, the superior expertise of a human rights tribunal relates to fact‑finding and adjudication in a human rights context, and does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal, and must therefore review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability.
With respect to the meaning to be attributed to the words "family status", while the Act should be interpreted generously with a view to effecting its purpose, neither ordinary meaning, context, nor purpose indicates a legislative intention to include same‑sex couples within "family status". This is not an action under the Charter, where the Court may review the actions of Parliament or the government.
Per L'Heureux‑Dubé J. (dissenting): While courts will intervene in the face of a jurisdictional error, or a patently unreasonable error of fact or law, they should exercise caution and deference in reviewing the decisions of specialized administrative tribunals. The best approach to determining the appropriate standard of review in a specific case is one which recognizes the need for flexibility. The pragmatic and functional approach articulated by the Court in Bibeault provides the proper framework. It must be asked whether the legislator intended the question to be within the jurisdiction conferred on the tribunal. If so, the role of the courts is a superintending one, and intervention will be warranted only where the decision is patently unreasonable. This approach requires a focus on jurisdiction which accounts for the general values of deference, and the ease with which questions can be improperly branded as jurisdictional. Though it was first used in the context of a board protected by a privative clause, it is a principled approach of general application which does not focus on formal categories, but rather seeks to determine the rationale behind deference in a specific context. The Court will examine not only the wording of the enactment conferring jurisdiction on the tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal. If, after the various factors are considered, it is concluded that courts should answer the question, then the question is one which does not lie within the board's jurisdiction and the test of correctness should apply. If it is concluded that the question should be answered by the board, then the question is one within the board's jurisdiction and courts should only intervene if the decision is patently unreasonable.
There is nothing in s. 28 of the Federal Court Act that dictates review of every error of law. Review is a discretionary remedy. Given the rationale for deference and the importance of the court's supervisory power, an error should be a serious one to merit a court's intervention.
The Tribunal has the jurisdiction to determine questions of fact, and courts should defer to these findings unless they are patently unreasonable. The Tribunal also has jurisdiction to interpret its Act and, consequently, the meaning of the term "family status" in s. 3 of the Canadian Human Rights Act . Courts should defer to the Tribunal's interpretation since the legislature specifically intended that the Commission and its tribunals should carry out the task of interpreting the grounds of discrimination in the Act. While courts do have a role to play in this task, that role is a limited one, confined to overturning an interpretation which is patently unreasonable.
It is well established that human rights legislation has a unique quasi‑constitutional nature, and that it is to be given a large, purposive and liberal interpretation. The purpose of the Act, set out in s. 2, is to ensure that people have an equal opportunity to make for themselves the life that they are able and wish to have without being hindered by discriminatory practices. The social cost of discrimination is insupportably high, and these insidious practices are damaging not only to the individuals who suffer the discrimination, but also to the very fabric of our society.
Even if one were to take a textual approach to the interpretation of s. 3 of the Act, it would not be necessary to construe "family status" as including only those families which have recognizable status at law. The term "status" may also indicate more factual matters of rank, social position, or relation to others. When the meaning of the French version of the term, "situation de famille", is considered, it is apparent that the scope of "family status" has potential to be very broad.
Parliament's decision to leave "family status" undefined is evidence of clear legislative intent that the term's meaning should be left for the Commission and its tribunals to define. Even if Parliament had in mind a specific idea of the scope of "family status", there is no definition in the Act which embodies this scope. Concepts of equality and liberty which appear in human rights documents are not bounded by the precise understanding of those who drafted them. The enumerated grounds of discrimination must be examined in the context of contemporary values, not in a vacuum. Their meaning is not frozen in time and the scope of each ground may evolve. Textual context should not detract from the purposive approach mandated by human rights documents, and legislative intent is best inferred from the legislation itself. The Tribunal cannot be reproached for having applied recognized principles of interpretation of human rights legislation, in light of the particular purpose of its Act.
The Tribunal's interpretation of "family status" in s. 3 of the Act is not patently unreasonable. The traditional conception of family is not the only conception. The multiplicity of definitions and approaches illustrates clearly that there is no consensus as to the boundaries of family, and that "family status" may have varied meanings depending on the context or purpose for which the definition is desired. This same diversity in definition is found in Canadian legislation affecting the "family"; the law has evolved and continues to evolve to recognize an increasingly broad range of relationships. The family is not merely a creation of law, and while law may affect the ways in which families behave or structure themselves, the changing nature of family relationships also has an impact on the law. It is clear that many Canadians do not live within traditional families. In defining the scope of the protection for "family status", the Tribunal thought it essential not only to look at families in the traditional sense, but also to consider the values that lie at the base of our support for families. It found that these values are not exclusive to the traditional family and can be advanced in other types of families. On the evidence before it and in the context of the Act, the Tribunal concluded that the potential scope of the term "family status" is broad enough that it does not prima facie exclude same‑sex couples. In making this finding, the Tribunal used the proper interpretational approach, considered the purpose of the Act and the values at the base of the protection of families. This is a matter that lay at the heart of the Tribunal's specialized jurisdiction and expertise, and it cannot be said that this conclusion is at all unreasonable, a fortiori patently unreasonable. Using a functional approach, the Tribunal concluded that the specific relationship before it was one which, on the evidence, could come within the scope of "family status". Since this conclusion is far from being patently unreasonable, it must be left undisturbed.
The collective agreement restricted the bereavement leave to "immediate family", the definition of which clearly included some familial relationships while excluding others, in particular employees in permanent and public relationships with persons of the same sex. The Tribunal found that, given the complainant's factual situation and the purpose of the bereavement leave, the complainant had been denied an employment opportunity on the basis of the prohibited ground of "family status". While sexual orientation may appear to be the ground of discrimination, the central focus is "family status". The complainant was denied leave because the relationship he had with his companion was not recognized as a family relationship. The Tribunal, acting within its jurisdiction, identified the complainant's claim as one of discrimination on the basis of "family status". Based on the purpose of the Act, the purpose of the benefit, and all the evidence before it, it was perfectly reasonable for the Tribunal to conclude that the collective agreement violated s. 10(b) of the Act, a conclusion with which the Court has no reason to interfere.
Per Cory J. (dissenting): La Forest J.'s reasons were agreed with in so far as they pertain to the duty of the courts to review and the standard of review that should be applied to the decisions of human rights tribunals. The absence of any privative clause in the Canadian Human Rights Act is one of the factors that may be taken into account in determining the deference that should be accorded the decision of a tribunal acting pursuant to that Act and the extent of the supervisory role the court should exercise in reviewing such a decision. Based on the factors discussed by L'Heureux-Dubé J., however, the Tribunal was correct in determining that the term "family status" was sufficiently broad to include same‑sex couples living together in a long‑term relationship and that the complainant and his companion came within the scope of this term.
Per McLachlin J. (dissenting): La Forest J.'s reasons on the standard of review which courts should apply to human rights tribunals were agreed with. Applying this standard, and on the basis of the factors reviewed by L'Heureux-Dubé J., the Tribunal was correct in concluding that the relationship between the complainant and his companion falls within the term "family status" under the Act.
Cases Cited
By Lamer C.J.
Referred to: Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Schachter v. Canada, [1992] 2 S.C.R. 679; Haig v. Canada (1992), 9 O.R. (3d) 495.
By L'Heureux‑Dubé J. (dissenting)
Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; Syndicat des professeurs du collège de Lévis‑Lauzon v. CEGEP de Lévis‑Lauzon, [1985] 1 S.C.R. 596; TWU v. British Columbia Telephone Co., [1988] 2 S.C.R. 564, rev'g (1985), 65 B.C.L.R. 145 (C.A.); U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245; Bell Canada v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 1 S.C.R. 1722; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Canada Labour Relations Board v. Halifax Longshoremen's Association, [1983] 1 S.C.R. 245; Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; R. v. M. (S.H.), [1989] 2 S.C.R. 446; Canadian Pacific Air Lines, Ltd. v. Williams, [1982] 1 F.C. 214; Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Re Blainey and Ontario Hockey Association (1986), 26 D.L.R. (4th) 728; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Miller v. The Queen, [1977] 2 S.C.R. 680; Tremblay v. Daigle, [1989] 2 S.C.R. 530; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; R. v. Duarte, [1990] 1 S.C.R. 30; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Keegstra, [1990] 3 S.C.R. 697; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Collins, [1987] 1 S.C.R. 265; Salomon v. Salomon & Co., [1897] A.C. 22; Re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Krannenburg, [1980] 1 S.C.R. 1053; Royal Trust Co. v. Minister of National Revenue, [1957] C.T.C. 32; London Graving Dock Co. v. Horton, [1951] A.C. 737; Waldick v. Malcolm, [1991] 2 S.C.R. 456; Moge v. Moge, [1992] 3 S.C.R. 813; Schaap v. Canadian Armed Forces, [1989] 3 F.C. 172; Braschi v. Stahl Associates Co., 74 N.Y.2d 201 (1989); Haig v. Canada (1992), 9 O.R. (3d) 495; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Canadian Human Rights Act, R.S.C., 1985, c. H‑6, ss. 2 , 3(1) , 7 (b), 9(1) (c), 10 (b), 27 , 49 , 55 , 56 .
Canadian Human Rights Act, S.C. 1976‑77, c. 33 [am. 1980‑81‑82‑83, c. 143], ss. 2 , 3(1) , 7 (b), 9(1) (c)(ii), 10 (b), 39.
Constitution Act, 1982, s. 52 .
Contributory Negligence Act, R.S.A. 1980, c. C‑23.
Criminal Code, R.S.C., 1985, c. C‑46, s. 485(1) .
Federal Court Act, R.S.C., 1985, c. F‑7, s. 28 .
Income Tax Act, S.C. 1970‑71‑72, c. 63, s. 18(1)(l)(ii).
Authors Cited
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Concise Oxford Dictionary of Current English, 8th ed. Oxford: Oxford University Press, 1990, "status".
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Evans, J. M. "Jurisdictional Review in the Supreme Court: Realism, Romance and Recidivism" (1991), 48 Admin. L.R. 255.
Franklin, Kris. "`A Family Like Any Other Family:' Alternative Methods of Defining Family in Law" (1990‑1991), 18 N.Y.U. Rev. L. & Soc. Change 1027.
Golombok, Susan, Ann Spencer and Michael Rutter. "Children in Lesbian and Single‑Parent Households: Psychosexual and Psychiatric Appraisal" (1983), 24 J. Child Psychol. Psychiat. 551.
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APPEAL from a judgment of the Federal Court of Appeal, [1991] 1 F.C. 18, 71 D.L.R. (4th) 661, 32 C.C.E.L. 276, 114 N.R. 241, 90 C.L.L.C. ¶ 17,021, 12 C.H.R.R. D/355, setting aside a decision of a Human Rights Tribunal (1989), 10 C.H.R.R. D/6064, upholding a complaint of discrimination. Appeal dismissed, L'Heureux‑Dubé, Cory and McLachlin JJ. dissenting.
René Duval and William Pentney, for the appellant.
Barbara A. McIsaac, Q.C., and Lisa Hitch, for the respondents the Attorney General of Canada, the Department of Secretary of State and Treasury Board of Canada.
Gwen Brodsky, for the interveners 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.
W. I. C. Binnie, Q.C., and Jenney P. Stephenson, for the interveners Focus on the Family, the Salvation Army, REAL Women, the Evangelical Fellowship of Canada and the Pentecostal Assemblies of Canada.
//Lamer C.J.//
The judgment of Lamer C.J. and Sopinka and Iacobucci JJ. was delivered by
Lamer C.J. --
I - Facts
In June 1985, the complainant Brian Mossop was employed in Toronto as a translator for the Department of the Secretary of State. On June 3, 1985, Mossop attended the funeral of the father of the man whom Mossop described as his lover. Mossop testified that the two men have known each other since 1974, and have resided together since 1976 in a jointly owned and maintained home. They share the day-to-day developments in their lives and maintain a sexual relationship. Each has made the other the beneficiary of his will. They are known to their friends and families as lovers.
At the time, Mossop's terms of employment 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 contained 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". This 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 art. 2.01(s), it was provided that:
(s)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 for bereavement leave pursuant to art. 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.
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 appellant, the Canadian Human Rights Commission. There he laid complaints against his employer, the Department of the Secretary of State (to which was later added the Treasury Board), and his union, CUPTE. The complaints invoked ss. 7 (b), 9(1) (c) and 10 (b) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (formerly S.C. 1976-77, c. 33, as amended) ("the CHRA").
The Canadian Human Rights Tribunal concluded that the Treasury Board and CUPTE did commit a discriminatory practice under s. 10(b) of the CHRA: (1989), 10 C.H.R.R. D/6064. The Tribunal 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 Mossop $250 in respect of feelings and self-respect, that Treasury Board and CUPTE cease to apply arts. 19.02 and 2.01(s) of the collective agreement in so far as they do not allow bereavement leave in situations where a person of the same sex as the employee covered by the collective agreement would otherwise meet the definition of "common law spouse", except for the sex of that person, and that the collective agreement be amended so that the definition of common-law spouse include persons of the same sex who would meet the definition in its other respects.
By originating notice, the Attorney General of Canada made an application to the Federal Court of Appeal pursuant to s. 28 of the Federal Court Act, R.S.C., 1985, c. F-7 , to review and set aside the decision of the Canadian Human Rights Tribunal. The Federal Court of Appeal allowed the s. 28 application and the decision of the Tribunal was set aside: [1991] 1 F.C. 18, 71 D.L.R. (4th) 661, 32 C.C.E.L. 276, 114 N.R. 241, 90 C.L.L.C. ¶ 17,021, 12 C.H.R.R. D/355.
II - Relevant Statutory Provisions
Canadian Human Rights Act, R.S.C., 1985, c. H-6
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 granted are prohibited grounds of discrimination.
N.B. "Family status" was added as a prohibited ground of discrimination to the CHRA by S.C. 1980-81-82-83, c. 143, s. 2, and the relevant provisions came into force on July 1, 1983.
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 organization on a prohibited ground of discrimination
...
(c) to limit, segregate, classify or otherwise act in relation to an individual in a way that would deprive the individual of employment opportunities, or 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, referral, 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.
III - Judgments
Canadian Human Rights Tribunal (1989), 10 C.H.R.R. D/6064
The Tribunal identified the fundamental question as being whether the denial of bereavement leave in accordance with the collective agreement was based on family status, the prohibited ground of discrimination cited by Mossop. Relying on decisions from this Court in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, and Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, the Tribunal noted that the interpretation of the term "family status" as used in the CHRA must be governed by the principles of interpretation of human rights codes in general, and the CHRA in particular. The Tribunal further noted that these principles of interpretation are expressed in broad terms.
According to the Tribunal, the Supreme Court of Canada is taking the same purposive approach used in the interpretation of the Canadian Charter of Rights and Freedoms in the interpretation of human rights codes due to their special nature. The Tribunal noted that these cases did not involve the interpretation of a prohibited ground of discrimination. In this respect the Tribunal stated at p. D/6090:
In the view of the Tribunal, the Court has not suggested in its decisions that these principles of interpretation might vary according to the type of interpretive problem raised. In fact, the reliance placed by the Court on advancing and effecting the broad purposes of the Act suggests that the Court has enunciated a truly general principle of interpretation.
The Tribunal declared that the term "family status" as used in the CHRA is not clear and unambiguous. In seeking to solve this problem of interpretation, the question for the Tribunal "is not what is the reasonable meaning, but what is a reasonable meaning, which best accords with the Act" (emphasis in original) (p. D/6094). In concluding that homosexual couples may constitute a family, the Tribunal stated (at p. D/6094):
The Tribunal, giving the term "family status" a reasonable meaning which is neither the narrowest meaning of the term nor a minimizing of rights under the Act, holds that, prima facie, homosexuals in a relationship are not excluded from relying on that prohibited ground of discrimination.
...
"Reasonable" is a term that is notoriously difficult of interpretation, and "reasonability" is impossible of measurement. The dictionary approach itself reflects the nub of the problem, that is, that families can be defined by considering certain formal relationships as well as by considering relationships based on other factors (which dictionaries have difficulty expressing). As a practical matter, the Tribunal agrees with the complainant that terms should not be confined to their historical roots, but must be tested in today's world, against an understanding of how people are living and how language reflects reality. Dr. Eichler's [specialist in sociology and family policy called as an expert witness by the appellant] evidence, as well as that of the complainant, was helpful in making these assessments. Value judgments should play no part in this process, because they may operate to favour a view of the world as it might be preferred over the world as it is. The Tribunal notes the conclusion reached by Hugessen J. in Schaap [[1989] 3 F.C. 172] that the Act does not promote certain types of status over others and that the Act is intended to address group stereotypes. For these reasons, the Tribunal finds that it is reasonable to conclude that homosexual couples may constitute a family.
The Tribunal concluded that the Treasury Board and CUPTE had infringed s. 10 (b) in entering into the collective agreement. It looked at the common law relationships that were included in the meaning of "immediate family" by the definition in the collective agreement, mentioned above. It noted that the definition of common law spousal relationship already incorporates a functional approach to the type of relationships for which bereavement leave is appropriate. It also noted that as the definition included some familial relationships and excluded some others, the collective agreement treated some types of familial relationships differently than others, in particular same-sex couples. It finally concluded (at p. D/6097):
Having determined that persons of the same sex prima facie may have the status of a family under the Act, and having determined that the family of the complainant is treated differently under the Act than other families, including but not limited to families which are very similar in their characteristics to that of the complainant, this Tribunal therefore finds that the collective agreement deprived the complainant of the employment opportunity of bereavement leave on a prohibited ground of discrimination, and that therefore each of the Treasury Board and CUPTE have committed a discriminatory practice under s. 10(b) of the Act.
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 pursuant to s. 7 (b) in denying the bereavement leave. The Tribunal made no separate finding of liability against CUPTE under s. 9(1) (c).
Federal Court of Appeal, [1991] 1 F.C. 18
1. Marceau J.A.
Marceau J.A. noted that the Tribunal rec