Judgments

T-1677-96

Attorney General of Canada (Applicant)

v.

Stanley Moore, Dale Akerstrom, Canadian Human Rights Commission, Public Service Alliance of Canada, Professional Association of Foreign Service Officers, Professional Institute of the Public Service of Canada (Respondents)

T-954-97

Attorney General of Canada (Applicant)

v.

Stanley Moore, Dale Akerstrom, Canadian Human Rights Commission, Public Service Alliance of Canada, Professional Association of Foreign Service Officers (Respondents)

Indexed as: Canada (Attorney General)v. Moore (T.D.)

Trial Division, MacKay J."Ottawa, January 26 and August 14, 1998.

Human Rights — Public servants filing complaints under CHRA, ss. 7, 9, 10 alleging discrimination regarding ineligibility for spousal benefits based on sexual orientation — Complaints allowed by CHRT — Treasury Board creating new category, —same-sex partner— eligible for same benefits as common-law spouses — —Separate but equal— scheme proposed by employer discriminatory practice prohibited by Act, s. 7 on basis of sexual orientation — —Spouse— to be defined without reference to —opposite sex—, gender — Employer failing to cease applying discriminatory definition of —spouse—.

Administrative law — Judicial review — Certiorari — Applications to set aside CHRT order requiring preparation of inventory of legislation etc. containing definition of common law spouse discriminating against same-sex couples, further order Treasury Board failed to comply with first order in granting employment benefits to employees with same-sex partners — Tribunal directing employer to grant benefits at issue by changing definition of —spouse— in relevant employment documents — TB creating separate class of persons, —same-sex partners— entitled to employment benefits — Order to prepare inventory not contrary to requirements of natural justice, procedural fairness — Tribunal not pre-judging discriminatory impact of material to be included in inventory, including provisions of Income Tax Act — Broad, liberal interpretation of Tribunal's remedial powers under CHRA allowing it to retain jurisdiction — Applicant given fair notice of case to be met.

These were applications to set aside two orders made by the Canadian Human Rights Tribunal. The first order, dated June 13, 1996, required the preparation of an inventory of all legislation, regulations, directives, etc. which contain definitions of common-law spouse discriminating against same-sex couples, or which operate to continue discriminatory practice based upon sexual orientation in the provision of employment-related benefits. The second order, dated April 10, 1997, held that the Treasury Board (the employer) failed to comply with the earlier order in granting employment benefits to employees with same-sex partners, and directed it to grant the benefits at issue by changing the definition of "spouse" in the relevant employment documents. The employees, respondents in both applications, have filed a number of complaints under sections 7, 9 and 10 of the Canadian Human Rights Act, alleging discrimination based on sexual orientation. They complained, among other things, that the Treasury Board had discriminated against them by entering into an agreement which denied employment benefits to employees with same-sex spouses, particularly coverage under the Public Service Health Care Plan. The Tribunal found the complaints of discrimination to be substantiated on the ground of sexual orientation. In response to those complaints, the Treasury Board proposed the creation of a new category, "same sex-partner", which would receive the same benefits as were available for common-law spouses. The Tribunal held that its June 13 order required, not the creation of a separate class, but the interpretation of "spouse" or "common-law spouse" as if the words "of the opposite sex" or any reference to gender were not included in the definition. It also ordered the Treasury Board and two Public Service unions to cease and desist in applying any definition of spouse which operated so as to continue the discriminatory practice. In the first application for judicial review, the main issue was whether the order to prepare an inventory and submit a proposal to change "legislation, regulations, directives etc." wrongfully deprived the applicant of the right to know the case against it, contrary to the requirements of natural justice and procedural fairness, and amounted to an excess of jurisdiction. In the second application, the issues were: (1) whether the Tribunal erred in law and exceeded its jurisdiction in revisiting the cease and desist order; (2) whether it erred in law and in fact in concluding that the approach taken by the employers in granting benefits did not meet the requirements of the Canadian Human Rights Act ; (3) whether it exceeded its jurisdiction by dealing with legislative provisions outside the scope of the complaints before it.

Held, both applications should be dismissed.

The Court had first to determine the level of deference to be accorded to decisions of the Human Rights Tribunal. The 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. The Tribunal's findings on matters of law are to be assessed on the basis of correctness, and not on a standard of reasonableness. Therefore, the Court had to characterize the Tribunal's findings as either questions of fact or of law in order to apply the appropriate standard of review.

In the first application, it was submitted that the Tribunal exceeded its jurisdiction and acted in violation of the requirements of natural justice by ordering a remedy in respect of "all legislation, regulations, directives, etc." that were not identified as being at issue in the proceedings before the Court and with regard to which no evidence was led. It was premature to raise the issues of natural justice and procedural fairness at this stage as it could not be assumed that the Tribunal would use the inventory to the detriment of the Crown or that the Crown would not be given the opportunity to discuss the impact of the legislation upon itself or upon the respondents. The Tribunal could not be said to have pre-judged the discriminatory impact of the material to be included in the inventory, including provisions of the Income Tax Act . When proposals were advanced to the Tribunal of matters to be included in the inventory, the applicant would have had notice of specific provisions suggested, and an opportunity to defend these before the Tribunal. The doctrine of legitimate expectations had no application herein. The applicant has not suffered detriment by reason of any representation as to the scope of the proceedings. In issuing the inventory order, the Tribunal could not be said to have found improper the "legislation, regulations, directives, etc." to be contained in that inventory. There was no detriment suffered as a result of whatever expectations the applicant may have had, prior to commencement of the Tribunal's hearings, concerning what benefits would be before the Tribunal.

The second application raised three issues. First, the applicant submitted that in its decision of April 10, 1997, the Tribunal exceeded its jurisdiction by reconsidering and changing the cease and desist order or assessing whether there had been compliance with it. A broad and liberal interpretation of the Tribunal's remedial powers under the Canadian Human Rights Act allowed it to retain jurisdiction. The Tribunal has broad discretion to return to a matter and it had discretion herein. Whether that discretion is appropriately exercised by the Tribunal will depend on the circumstances of each case. The Tribunal did not view its order as final and conclusive, in a manner that would preclude it from returning to any matter included in the order. Rather, it reserved jurisdiction in the matter, as it was entitled to do. Subsection 53(2) of the Act empowered the Tribunal to reopen the proceedings. The Tribunal did not err in finding, in its second decision, that it could revisit its earlier cease and desist order. Second, the applicant argued that the scheme proposed by the employer did not violate the requirements of the Act and the Charter, relying in large part on the Supreme Court of Canada's decision in Egan v. Canada. The real question put before the Court was whether the Tribunal was correct in finding that the Act and the Charter require that "spouse" be defined in the relevant documents as if reference to "opposite sex" were eliminated, or be interpreted without reference to gender. The employer's proposal in this case did not meet the requirements of the Canadian Human Rights Act , which includes sexual orientation as a prohibited ground of discrimination. The majority of the Supreme Court in Egan set a standard for definition of "spouse" necessary to meet the non-discrimination requirement of section 15 of the Charter, namely, that it not include reference to the "opposite sex". A similar prohibition on discrimination exists in the Act, but is not subject to a section 1 limitation. Therefore, the standard set by the Supreme Court on the discrimination issue should govern, and the definition of spouse in the provisions in question should be without reference to gender. The scheme proposed by the employer established a regime of "separate but equal", one that distinguishes between relationships on the basis of the sexual orientation of the participants, and for that reason, is discriminatory. Legislative distinctions between persons on the basis of sexual orientation, even though they may not give rise to substantive inequality, may reaffirm pre-existing discriminatory notions and, on this basis, be themselves discriminatory. On the facts of the case at bar, the employer's separate definition of same-sex partners, made without explanation, reinforced a distinction drawn between same-sex and heterosexual couples, one made typically on discriminatory grounds. The applicant, by introducing a new same-sex spouse category, failed to follow the June 13 order of the Tribunal. There was no basis to intervene with the Tribunal's decision of April 10, 1997 in so far as it found that the employer had not complied with its earlier cease and desist order. Finally, the applicant objected to the June 13 inventory order on grounds of natural justice, to the extent that the order purported to encompass legislation, policy and directives other than those specified by the complaints. It was said that the Tribunal made an error of fact in its April 1997 decision in concluding that there was a commitment on the part of Revenue Canada that all employment-related benefits would be treated the same under the Income Tax Act . There was no grounds to interfere with the Tribunal's April 1997 decision and no basis to conclude that the applicant did not have fair notice of the case to be met. The Tribunal's statements regarding the disposition of the income tax matter in its decision of April 1997 were not a "decision" or "order" having legal consequences and thus susceptible to judicial review. That decision did not have the effect of rendering the Tribunal's understanding of the income tax matter binding on the parties. The error of fact alleged by the applicant, namely the misstated commitment, and the Tribunal's version of events were not so egregious as to justify the Court's intervention.

statutes and regulations judicially considered

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], ss. 1, 15.

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 5, 7, 9, 10, 15(g), 53(2).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Human Rights Code, S.M. 1987-88, c. 45.

Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1.

Individual's Rights Protection Act, R.S.A. 1980, c. I-2.

Old Age Security Act, R.S.C., 1985, c. O-9.

Public Service Superannuation Act, R.S.C., 1985, c. P-36.

cases judicially considered

applied:

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 13 Admin. L.R. (2d) 1; 46 C.C.E.L. 1; 17 C.H.R.R. D/349; 93 CLLC 17,006; 149 N.R.1; Canada (Attorney General) v. Moore, [1996] F.C.J. No. 1139 (T.D.) (QL); Canada (Minister of Employment and Immigration) v. Lidder, [1992] 2 F.C. 621; (1992), 6 Admin. L.R. (2d) 62; 16 Imm. L.R. (2d) 241; 136 N.R. 254 (C.A.); Brink's Canada Ltd. v. Canada (Human Rights Commission), [1996] 2 F.C. 113; (1996), 39 Admin. L.R. (2d) 203; 96 CLLC 230-010; 105 F.T.R. 215 (T.D.); Canada (Attorney General) v. Grover (1994), 28 Admin. L.R. (2d) 231; 24 C.H.R.R. D/390; 80 F.T.R. 256 (F.C.T.D.); Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 124 D.L.R. (4th) 609; C.E.B. & P.G.R. 8216; 95 CLLC 210-025; 29 C.R.R. (2d) 79; 182 N.R. 161; 12 R.F.L. (4th) 201; Egan v. Canada, [1993] 3 F.C. 401; (1993), 103 D.L.R. (4th) 336; 15 C.R.R. (2d) 310; 153 N.R. 161 (C.A.); Vogel v. Manitoba (1995), 126 D.L.R. (4th) 72; [1995] 6 W.W.R. 513; 102 Man. R. (2d) 89; 12 C.C.E.L. (2d) 302; 23 C.H.R.R. D/173; 95 CLLC 230-034 (Man. C.A.); Hum v. Royal Canadian Mounted Police (1986), 8 C.H.R.R. D/3748; Rosenberg v. Canada (Attorney General) (1998), 38 O.R. (3d) 577; 156 D.L.R. (4th) 664 (C.A.); Vriend v. Alberta, [1998] 1 S.C.R. 493; (1998), 156 D.L.R. (4th) 385.

distinguished:

Canada (Attorney General) v. McKenna, [1995] 1 F.C. 694; (1994), 22 C.H.R.R. D/512; 88 F.T.R. 202 (T.D.).

considered:

Nadeau v. Canada (Royal Canadian Mounted Police) (1996), 109 F.T.R. 128 (F.C.T.D.).

referred to:

Haig v. Canada (1992), 9 O.R. (3d) 495; 94 D.L.R. (4th) 1; 40 C.R.R. (2d) 287; 57 O.A.C. 272 (C.A.); Miron v. Trudel, [1995] 2 S.C.R. 418; (1995), 124 D.L.R. (4th) 693; 29 C.R.R. (2d) 189; [1995] I.L.R. 1-3185; 10 M.V.R. (3d) 151; 181 N.R. 253; 81 O.A.C. 253; 13 R.F.L. (4th) 1; VIA Rail Canada Inc. v. Canada (Human Rights Commission), [1998] 1 F.C. 376 (T.D.); Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277.

APPLICATIONS for judicial review of two orders made by the Canadian Human Rights Tribunal ([1996] C.H.R.D. No. 8 (QL); [1997] C.H.R.D. No. 4 (QL)) concerning complaints filed under the Canadian Human Rights Act. Applications dismissed.

appearances:

Brian J. Saunders and Micheline Langlois for applicant.

Stanley Moore on his own behalf.

Patricia Lawrence for respondent Canadian Human Rights Commission.

Andrew J. Raven for respondent Public Service Alliance of Canada.

Pamela J. MacEachern for respondents Professional Association of Foreign Service Officers and Professional Institute of the Public Service of Canada.

solicitors of record:

Deputy Attorney General of Canada for applicant.

Canadian Human Rights Commission, Legal Services, Ottawa, for respondent Canadian Human Rights Commission.

Raven Allen Cameron & Ballantyne, Ottawa, for respondent Public Service Alliance of Canada.

Nelligan Power, Ottawa, for respondents Professional Association of Foreign Service Officers and Professional Institute of the Public Service of Canada.

The following are the reasons for orders rendered in English by

MacKay J.: These are two applications for judicial review, made under section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7, [as enacted by S.C. 1990, c. 8, s. 5], and brought by the Attorney General of Canada. The two applications were ordered to be heard together. Orders now issue dismissing both applications for the reasons that follow.

In Court file number T-1677-96, filed July 15, 1996, the Attorney General seeks an order setting aside an order made by the Canadian Human Rights Tribunal, dated June 13, 1996 [[1996] C.H.R.D. No. 8 (QL)], to the extent that that order awards compensation to the individual respondent Moore for the period prior to August 6, 1992, and in so far as it requires the preparation of "an inventory of all legislation, regulations, directives, etc. which either contain definitions of common-law spouse which discriminate against same-sex couples, or which in some other way, operate, when applied, to continue discriminatory practice based upon sexual orientation in the provision of employment-related benefits." The order sought would also set aside the requirement found in the Tribunal's directive that a proposal for eliminating any such provisions be submitted to the Tribunal. By letter dated January 22, 1998, the applicant withdrew its argument about, and the related request for setting aside, the Tribunal's award of compensation to Mr. Moore for entitlements and expenses for the period prior to August 6, 1992.

In Court file T-954-97, filed May 9, 1997, the applicant seeks an order setting aside a further order of the Tribunal, dated April 10, 1997 [[1997] C.H.R.D. No. 4 (QL)], to the extent that that order changes the June 13, 1996 order and holds that the approach taken by the Treasury Board, on behalf of the Department of Foreign Affairs and International Trade and the Canada Employment and Immigration Commission (collectively, the "employer") in granting employment benefits to employees with same-sex partners fails to comply with the June 13, 1996 order. The applicant also challenges the April 10, 1997 decision to the extent that it directs the employer to grant the benefits at issue by changing the definition of spouse in the relevant employment documents and purports to deal with legislative provisions outside of the scope of complaints filed under the Canadian Human Right Act [R.S.C., 1985, c. H-6] which gave rise to the Tribunal's jurisdiction.

The respondents in these files are the complainants in the cases before the Tribunal, Messrs. Moore and Akerstrom, the Canadian Human Rights Commission, and the organizations that were respondents in the Tribunal proceedings, namely, the Public Service Alliance of Canada and the Professional Association of Foreign Service Officers. The Professional Institute of the Public Service of Canada, an interested party in proceedings before the Tribunal, is a respondent in Court file T-1677-96.

Background

The respondent Moore, an employee of the Department of Foreign Affairs and International Trade (DFAIT), filed complaints under the Canadian Human Rights Act, R.S.C., 1985, H-6, as amended (the Act), on February 15, 1994 against DFAIT (2 complaints), the Treasury Board (1 complaint) and the Professional Association of Foreign Service Officers (PAFSO) (1 complaint), his bargaining agent, alleging discrimination based on sexual orientation.

Mr. Moore complained that DFAIT had discriminated against him on September 22, 1992, January 12, 1993 and November 9, 1993, all dates on which he was notified that he was not eligible for spousal benefits under the collective agreement between the Treasury Board and PAFSO and under the Foreign Service Directives. DFAIT was alleged, as a consequence, to have violated sections 7¹ and 10² of the Act. In his complaint against the Treasury Board, Moore alleged that the Board had, contrary to section 10 of the Act, pursued a policy or practice, and had entered into an agreement, that tended to deprive a class of individuals, specifically gay employees, of employment opportunities, namely, spousal benefits under the collective agreement between the Board and the PAFSO and under the Foreign Service Directives. Finally, in his complaint against the PAFSO, Mr. Moore alleged that PAFSO had entered into an agreement that tended to deprive gay members of employment opportunities and spousal benefits, contrary to section 10 of the Act.

The respondent Akerstrom, an employee of the Canada Employment and Immigration Commission, filed complaints under the Canadian Human Rights Act on February 3, 1993 against the Treasury Board (2 complaints), the Canada Employment and Immigration Commission (1 complaint), and the Public Service Alliance of Canada (PSAC) (2 complaints), alleging discrimination based on sexual orientation.

Mr. Akerstrom complained that the Treasury Board had discriminated against him by entering into an agreement which denied employment benefits to employees with same-sex spouses, particularly coverage under the Public Service Health Care Plan, contrary to section 10 of the Act. In his second complaint against the Treasury Board, Mr. Akerstrom urged that the latter had discriminated against him by denying him employment benefits under the Public Service Health Care Plan, contrary to sections 7 and 10 of the Act. In his complaint against the Canada Employment and Immigration Commission, Mr. Akerstrom alleged that the Commission had discriminated against him by denying him employment benefits, in particular by denying spousal coverage under the Public Service Health Care Plan, contrary to sections 7 and 10 of the Act. In one of his complaints against PSAC, Mr. Akerstrom alleged that the PSAC had discriminated against him by entering into an agreement denying him spousal benefits under the Public Service Health Care Plan. In his other complaint against PSAC, he alleged that he had been discriminated against when PSAC entered into an agreement that denied him employment benefits in the form of spousal coverage under the Public Service Health Care Plan. Mr. Akerstrom argued that PSAC had acted contrary to sections 9³ and 10 of the Act.

The Canadian Human Rights Commission (CHRC) informed the Treasury Board, by letter dated November 25, 1994 that it would refer the complaints of Messrs. Akerstrom and Moore to a Tribunal for inquiry, and that it would request that these complaints be consolidated. By letters dated January 24, 1995 and February 24, 1995, counsel for Treasury Board sought clarification as to the employment benefits at issue in the proceedings. Counsel expressed particular concern that superannuation and pension plan benefits not be at issue. By letters dated February 13, 1995 and March 8, 1995, counsel for Commission indicated that she would advise of the Commission's position on superannuation and pension plan benefits at an upcoming pre-hearing meeting.

At that meeting, held on March 9, 1995, it was agreed that counsel would reconvene on April 3, 1995, by which time counsel for the Commission would clearly delineate the benefits included in the complaint. By letters dated March 21 and 31, 1995, the Commission indicated that pension benefits were at issue in the Akerstrom complaints. At the April 3 meeting, following discussion among counsel for the parties, the Tribunal reported that the inquiry would deal with employment benefits only, and that pension benefits would be dealt with by the parties themselves. The parties also agreed to file a joint book of documents dealing with the various benefits. The key passages of the Tribunal's pre-hearing report read as follows:

After lengthy discussions between the parties in respect of the manner in which the pension benefits part of the complaint would be dealt with in the Federal Court, all parties agreed they would proceed with the employment benefits only and deal with the pension benefits issue amongst themselves.

. . .

Parties will be filing a joint book of documents covering the various benefits in issue and the collective agreement.

Yet, by letter dated May 8, 1995, the Commission indicated that it would be seeking, in the Akerstrom complaint:

. . . a change to the provision of pension benefits under the Superannuation Act. A policy change would include non-application of the discriminatory definition of spouse under the Act; provision of pension benefits notwithstanding the discriminatory definition of spouse under the Income Tax Act.

. . .

. . . please advise me of your client's [i.e. Treasury Board's] intentions to bring an application of some form before the Federal Court with respect to the pension benefits component of the complaint.

In addition, the Commission sought:

. . . a change to Treasury Board policy for provision of Health and Dental benefits. While the specific wording can be discussed in detail at a later point the Commission seeks either an agreement or an order of the Tribunal that the employer change or apply an interpretation of the term spouse to include common law spouses of the same sex.

By letter dated August 3, 1995, counsel for Treasury Board recorded its understanding of the benefits at issue, excluding pension benefits from the list there set out. In its response, dated September 12, 1995, the Commission noted that the Treasury Board list included most, but not all, of the benefits at issue, noting "that the list does not include the pension benefit claimed in the Akerstrom complaint pursuant to the Superannuation Act [Public Service Superannuation Act , R.S.C., 1985, c. P-36]." Counsel for the Commission also wrote as follows:

I would also like to confirm that you will be advising me shortly of your intention with respect to the pension benefits, i.e. seeking an order from this tribunal and then proceeding to federal court, or alternatively proceeding immediately to federal court.

The letter also reiterated that the Commission would be seeking "an Order requiring the employer to interpret the term `spouse' in a non-discriminatory manner, i.e. including same-gender spouses in the application of the definition."

In proceedings before the Tribunal, the parties introduced, on consent, a joint book of documents describing the benefits in issue, which benefits did not include pension or other benefits established by statute. Apparently, by admission of counsel for the Commission before the Tribunal, superannuation pension benefits were not at issue. However, the parties discussed at some length the income tax implications of same-sex benefits, with counsel for Treasury Board expressing concern that he had not known the Income Tax Act [R.S.C., 1985 (5th Supp.), c. 1] was at issue before the Tribunal.

In its decision, dated June 13, 1996, the Tribunal, proceeding with reference to sections 7, 9 and 10 of the Act, found the complaints of discrimination to be substantiated on the ground of sexual orientation. Among other things, Mr. Akerstrom was awarded all additional costs incurred by him and his partner in obtaining alternative services to those barred by discrimination. Mr. Moore was awarded, inter alia, compensation for all spousal-related entitlements and expenses dating from July 1991 onwards.

The Tribunal rejected the Treasury Board's arguments that the remedy could not extend to a date earlier than August 6, 1992, the date at which the Ontario Court of Appeal, in Haig v. Canada⁴, read in sexual orientation as a prohibited ground of discrimination under the Canadian Human Rights Act. The Tribunal relied on the Supreme Court of Canada's decision in Miron v. Trudel,⁵ for the proposition that, in fashioning a remedy, a court may "read up" an earlier version of a statute to bring it into conformity with terms legislated at a later date. Further, the Tribunal held that the discrimination complained of by Mr. Moore was a continuing discrimination that, while its commencement predated Haig , had persisted to the date of the Tribunal's decision.

The Tribunal also ordered the Treasury Board, PSAC and PAFSO to cease and desist (the "cease and desist order") in applying any definition of spouse or any other aspect of the Foreign Service Directives, Collective Agreements, National Joint Council policies, Public Service Health Care Plan or the Dental Care Plan which operated so as to continue the discriminatory practice. These parties were ordered to interpret any such provision in a manner consistent with the Act and the Charter [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]] so as to include same-sex common-law spouses. The key passage of the order reads as follows [at paragraph 109]:

c) The Tribunal further orders, pursuant to s. 53(2)(a) of the Act that the Respondents cease and desist in the application of any definition of spouse or any other provisions of the Foreign Service Directives, the Collective Agreements, National Joint Council policies, the Public Service Health Care Plan or the Dental Care Plan which operate so as to continue the discriminatory practice and interpret any such definition or provision to be in compliance with the Act (and the Charter) so as to include same-sex common-law spouses.

The Tribunal also ordered that the Treasury Board and PSAC and PAFSO, in consultation with and in cooperation with the Commission, prepare an inventory of all the "legislation, regulations, directives, etc." (included material) containing definitions of common-law spouse that discriminate, or in some other way operate when applied, to perpetuate discriminatory practices, in the provision of employment related benefits, based on sexual orientation (the "inventory order"). The Tribunal directed to be included in this inventory any provisions of the Income Tax Act which treated any employment related benefits paid to same-sex common-law couples differently for taxation purposes than in the case of opposite-sex common-law couples. This inventory was to be presented to the Tribunal within 60 days, later extended to 90 days. Treasury Board, PSAC and PAFSO were further ordered to prepare a proposal for the elimination of discriminatory provisions revealed by the inventory. The key passages of the order read as follows [at paragraph 109]:

d) The Tribunal further orders that, within sixty days of the issuance of this decision, the Respondents in consultation with and in cooperation with the Commission, prepare:

(1). an inventory of all legislation, regulations, directives, etc. which either contain definitions of common-law spouse which discriminate against same-sex common-law couples or in some other way operate, when applied, to continue the discriminatory practice based upon sexual orientation in the provision of employment-related benefits and present such inventory in writing to the Tribunal within the sixty-day period. This inventory shall exclude, at the request of the parties, any legislation providing for pension benefits, but shall include any provisions of the Income Tax Act which would treat any employment related benefits paid to same-sex common-law couples differently for taxation purposes from the way they would be treated if paid to an opposite-sex common-law couple.

(2). a proposal for the elimination of all such discriminatory provisions to be presented to the Tribunal within the sixty-day period.

It is this June 13, 1996 decision which is the subject of judicial review in Court file T-1677-96.

Earlier, in late September 1995, Treasury Board proposed to the bargaining agents concerned a Memorandum of Understanding granting certain employment benefits to employees with same-sex partners. When no agreement was reached on the manner in which the benefits would be granted, the Treasury Board, in November 1995, voluntarily extended these benefits to employees with same-sex partners in the manner proposed. In practice, under the Treasury Board proposal, this involved the creation of a new category, "same-sex partner", which category would receive the same benefits as were available for common-law spouses. The key passage of the Memorandum of Understanding proposed by the Treasury Board, to the others concerned, reads:

The parties agree:

. . .

" that the benefits to which an employee who is a common law spouse is entitled, pursuant to the above-cited provisions, shall be granted to an employee who is living in a same-sex partner relationship;

" that for the purpose of this Memorandum of Understanding, a "same-sex partner" relationship exists when, for a continuous period of at least one year, an employee has lived with a person of the same sex in a homosexual relationship, publicly represented that person to be his/her partner and continues to live with that person as his/her partner; . . .

On the date of the Tribunal's order, DFAIT and the Canada Employment and Immigration Commission undertook to follow these proposals to grant benefits to an employee living in a same-sex partner relationship and those departments established criteria for identifying same-sex partner relationships eligible for benefits.

On October 4, 1996, following an unsuccessful application to the Court by the Attorney General to stay the Tribunal's order regarding the preparation of the inventory of discriminatory measures, as directed by the Tribunal's order of June 13, 1996, the employer and the respondents, other than Messrs. Moore and Akerstrom, filed with the Tribunal the inventory required by the June 13 order.

On October 17, 1996, the Tribunal reopened its inquiry into outstanding issues related to its June 13 order. It held, in the decision dated April 10, 1997 now at issue in Court file number T-954-87, that it was not functus officio and it found also that the employer's response, in terms of ensuring that employment benefits were not denied to same-sex common-law spouses, was "too narrowly focused". In particular, the parties had not interpreted the definition of spouse to comply with the Act and the Charter. The employer's response had the effect of creating a separate class of persons known as "same-sex partners" entitled to employment benefits. The Tribunal held that its June 13 order required, not the creation of a separate class, but the interpretation of "spouse" or "common-law spouse" as found in the Foreign Service Directives, Collective Agreements, National Joint Council policies, Public Service Health Care Plan or the Dental Care Plan as if the words "of the opposite sex" or any reference to gender, were not included in the definition. The key passage of the Tribunal's decision in April 1997 reads [at paragraph 10]:

In paragraph c), the Tribunal ordered that the Employers cease and desist in the application of any definition of spouse which has the effect of denying the provision of employment benefits to same sex common law spouses. But, the Employers are also directed to interpret any definition of spouse or any other provision of the documents referred to in paragraph c) to be in compliance with the Canadian Human Rights Act and Charter so as to include same sex common law couples. The Employers have not done this. Rather, in extending these benefits to same sex couples, the Employers have put forward a definition in addition to the definitions set out in the Foreign Service Directives, the Collective Agreements, national Joint Council policies, the Public Service Health Care Plan and Dental Care Plan. This is not in accordance with paragraph c) of the Tribunal's order. Our order requires that the definition of spouse be interpreted to comply with the Act and Charter. This is obviously and easily accomplished by interpreting the definition of spouse or common law spouse as found in these documents as if the words "of the opposite sex" were not included in the definition; or in the case of the declaration to designate a spouse for purposes of the Foreign Service Directives, by interpreting any definition of spouse or spousal relationship without reference to gender. This is what paragraph c) requires and the Employers are ordered to offer the benefits on this basis not on the basis of a classification outside these documents.

Also in its decision of April 10, 1997 the Tribunal dealt with the inventory prepared in accordance with its June 13 order. It noted that all of the issues identified by the parties in the inventory had been addressed in one fashion or another. In particular, the Tribunal determined that the issue of whether provisions of the Income Tax Act discriminated against same-sex couples had been resolved by Revenue Canada's written confirmation that it would recognize a private health services care plan providing coverage for same-sex couples. The employers had also confirmed that all employees would be treated "the same" by Revenue Canada with respect to their employee benefits. The key passage of the Tribunal's decision in this regard reads [at paragraph 27]:

The income tax issue has been resolved by the following correspondence. By letter dated September 9, 1996 from Bryan Dath of Revenue Canada to John Ambridge, Treasury Board of Canada, and by letter dated October 4, 1996 from Brian H. Saunders, Civil Litigation Section Department of Justice to the Canadian Human Rights Tribunal, it is set out and confirmed that Revenue Canada will recognize a private health services plan which provides coverage for same sex couples. It was also confirmed by counsel for the Employers before the Tribunal, that all employees will be treated the same by Revenue Canada with respect to their employee benefits including employer financial contribution under private health services plan under the policies and directives of the National Joint Council or under the various collective agreements.

Issues

In light of the applicant's correspondence of January 22, 1998, the sole remaining issue in Court file number T-1677-96 is as follows: Did the order to prepare an inventory and submit a proposal to change "legislation, regulations, directives etc." wrongfully deprive the applicant of the right to know the case against it, contrary to the requirements of natural justice and procedural fairness, and amount to an excess of jurisdiction?

The issues in T-954-97 are as follows:

1. Did the Tribunal err in law and exceed its jurisdiction in revisiting the cease and desist order?

2. Did the Tribunal err in law and in fact in concluding that the approach taken by the employers in granting benefits did not meet the requirements of the Canadian Human Rights Act?

3. Did the Tribunal exceed its jurisdiction by dealing with legislative provisions outside the scope of the complaints before it?

Analysis

At the outset, I note that before turning to the issues in this case, the Court must determine the level of deference to be accorded to decisions of the Human Rights Tribunal. The leading case on this issue is the Supreme Court of Canada's decision in Canada (Attorney General) v. Mossop.⁶ There, despite a strong dissent by Madam Justice L'Heureux-Dubé, a majority of the Court found that though the courts 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. The Tribunal's findings on matters of law are to be assessed on the basis of correctness, and not on a standard of reasonableness. As a consequence, the Court has to characterize the Tribunal's findings as either questions of fact or of law in order to apply the appropriate standard of review.⁷

T-1677-96

The applicant submits that the complaints filed by Messrs. Akerstrom and Moore did not identify any statutes or regulations as being at issue. It is urged that the Tribunal exceeded its jurisdiction and acted in violation of the requirements of natural justice by ordering a remedy in respect of "all legislation, regulations, directives, etc." that were not identified as being at issue in the proceedings before the Tribunal and with regard to which no evidence was led. In oral argument before me, for the Attorney General it was submitted that by requiring this inventory, the Tribunal prejudged the material, to be included in the inventory, as discriminatory. It is argued, in the alternative, that pre-inquiry consultations regarding the scope of the benefits at issue gave rise to a legitimate expectation that only the benefits then identified were at issue and were to be addressed by evidence.

The applicant takes particular issue with the portion of the Tribunal's order directed at the Income Tax Act. That statute, it is said, does not provide employment-related benefits. A complaint against the application of the Income Tax Act, it is urged, can only be made under section 5 of the Canadian Human Rights Act, and that can be met with the defence of a bona fide justification under paragraph 15(g) of the Act. The proceedings in the case at bar were conducted with reference to sections 7, 9 and 10. Further, the applicant was not given an opportunity by the Tribunal to call evidence justifying the Income Tax Act definition of "spouse", for no notice was given that this would be at issue. It is urged that the Tribunal did not have authority to order the parties, against whom the complaints were directed, to examine legislation and directives that were not put at issue by the complaints, in order to determine whether there were issues similar to those raised in the complaints, with a view to ordering that these measures be amended.

For its part, the respondent Commission urges that proceedings before a Tribunal are in the nature of an inquiry. Where other specific employment spousal benefits similar to those raised by the complaints come to the attention of the Tribunal, they could be included in the scope of the complaints, given the broad wording of the complaints. The CHRC argues that while it is true that much of the material that might be considered for possible inclusion in the inventory was not specifically discussed in the proceedings, the purpose for and the rationale behind the order is clear from the evidence and argument in the proceedings.

The CHRC submits that the concern expressed by the parties and the Tribunal was the need to implement a remedy that would achieve equality without causing an adverse impact on the recipients of benefits. The Income Tax Act was identified as legislation that might have a negative impact. For example, the extension of employment health benefits to same-sex couples might appear contrary to the exemption provisions for health plans in that Act. As a consequence, the parties and the Tribunal were aware of at least one piece of legislation that might affect the application of any order requiring the employer to extend spousal benefits to same-sex couples. This raised the question of whether there were other statutes that would have similar effect.

The CHRC submits that in this context, the reasonable solution was to grant the parties time to identify any questionable legislation, and the opportunity to fashion a proposal for dealing with any adverse impact. It is urged that the Tribunal was within its jurisdiction in requiring the employer to ensure that a remedy providing for the receipt of benefits did not result in an adverse impact on Messrs. Moore and Akerstrom or their partners.

Finally, it is urged that until a proposal on modification of "legislation, regulations, directives, etc." has been presented, or an order is made requiring some action by the parties to ensure no adverse impact, there is no decision to be reviewed by the Court.

For its part, the PSAC respondent relies on the reasons issued by Mr. Justice Dubé in refusing to issue an interim injunction to preclude enforcement of the order to provide an inventory.⁸ There, His Lordship wrote that the Tribunal has the jurisdiction to consider the impact of any legislation upon the affected respondents, the same way the family courts may look at the Income Tax Act to assess the revenue impact upon the parties involved. His Lordship notes that the Tribunal's order provides that it shall reconvene after receipt of the written material to consider, with the parties, incorporation in its orders of proposals to limit adverse impacts of legislation. As a consequence, it was premature to raise the issues of natural justice and procedural fairness at this stage as it could not be assumed that the Tribunal would use the inventory to the detriment of the Crown or that the Crown would not be given the opportunity to discuss the impact of the legislation upon itself or upon the respondents.

Further, PSAC argues that the Tribunals' order was sufficiently focused that the applicant was well aware of the parameters of the case and what was required for it to respond to the issues raised, and thus there is no basis for the applicant to argue that the order was issued in a manner contrary to the rules of natural justice. The matter of the interpretation of the scope and the application of the order regarding the inventory were continuing issues before the Tribunal, and the applicant would be able to advance submissions on these matters at the appropriate time.

With respect, I find persuasive the arguments of the respondent PSAC that the complaint in T-1677-96 is premature, particularly in light of Mr. Justice Dubé's finding in Canada (Attorney General) v. Moore,⁹ when the applicant sought an interim injunction against the inventory order. There, His Lordship wrote as follows, in refusing to issue the injunction, in part on the basis that there was no serious issue [at paragraphs 4-6]:

It is a fundamental principle of natural justice and procedural fairness that a party subject to an inquiry be given notice of the case against it and be afforded the opportunity to respond. In the case at bar, the applicant will have the opportunity to respond when it delivers the inventory to the Tribunal and discusses the proposal for the elimination of any discriminatory provisions as ordered in paragraph (d).

There is no indication at this stage that the Tribunal intends to declare any of the above legislation inoperative. The tribunal has the jurisdiction to consider the impact of any legislation upon the affected respondents, the same way family courts may look at the Income Tax Act to assess the revenue impact upon the parties involved.

In the second paragraph immediately following paragraph (d) the Tribunal states in its decision that it "shall reconvene after receipt of the written material to consider with the parties incorporation of such material in this order". In my view, the applicant may not raise the issue of natural justice and procedural fairness at this stage as it cannot be assumed that the Tribunal will use the inventory to the detriment of the applicant or that the applicant will not be given the opportunity to discuss the impact of the legislation upon himself or upon the respondents.

While this was a decision on an interlocutory proceeding, I am not persuaded that at this stage there is any ground to depart from that reasoning and conclusion.

I am also not persuaded that the Tribunal, by issuing the order set out in paragraph (d), can be said to have pre-judged the discriminatory impact of the material to be included in the inventory, including provisions of the Income Tax Act. The Tribunal specifically provided that "If the parties are unable to complete this [inventory] within the prescribed time, they shall notify the Tribunal Registry and the Tribunal shall reconvene", thereby reiterating its earlier comment that it would retain jurisdiction over the matter.

I read this passage as suggesting that should the parties be unable to complete the inventory within the prescribed time, the matter would be again taken up by the Tribunal, as, in fact, was the case. In other words, the applicant, objecting to the inclusion of material in the inventory or the Tribunal's jurisdiction to make orders relating to the amendment of provisions that might be listed, would have an opportunity to present its concerns to the Tribunal, and to raise any defences or arguments it saw fit to rely upon.

In my view, the Tribunal cannot be said to have reached a conclusion in its June 13 order on the discriminatory nature of legislation, regulations or directives that might be proposed for inclusion in the inventory required. When proposals were advanced to the Tribunal of matters to be included in the inventory the applicant would have notice of specific provisions suggested, and an opportunity to defend these before the Tribunal. On this basis, this case is distinguishable from Canada (Attorney General) v. McKenna¹⁰ relied upon by the applicants. There, the issues a human rights tribunal ultimately dealt with in arriving at the resolution of a complaint were not adequately identified or defined in proceedings before the Tribunal, prejudicing the Attorney General's ability to respond to those issues and resulting in a failure of natural justice.

As for the doctrine of legitimate expectations, I am not persuaded that it applies in the circumstances here. This doctrine has been defined in Nadeau v. Canada (Royal Canadian Mounted Police)¹¹ as follows:

. . . a legitimate expectation may arise from an express promise made by a person who holds decision-making power or from a practice that is so well established that it can reasonably be expected to continue.

According to the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Lidder,¹² for a legitimate expectation to arise, there must be a representation of fact made which a reasonable person would assume was intended to be acted upon, that person must have acted on it and, as a consequence of such reliance, the person must have suffered a detriment. As Madam Justice Desjardins (Décary J.A. concurring), put it:

. . . in order for the doctrine of estoppel by representation to apply, there must be the following elements:

" a representation of fact made with the intention that it be acted upon or that a reasonable person would assume that it was intended to be acted upon;

" that the representee acted upon the representation;

" that the representee altered his position in reliance upon the representation and thereby suffered a prejudice.

Counsel for the applicant, in oral argument before me, urged that, in the case at bar, the Tribunal had indicated that the benefits in issue would be identified by the parties before the hearing began. The applicant, it is said, proceeded on that basis but the benefits in issue were not all identified in advance. In particular, the applicant says that there was not notice in advance that the Income Tax Act might be in issue. However, with respect, I note that by letter dated May 8, 1995, counsel for the Commission wrote to counsel for the employer that at issue in the hearing would be the "provision of pension benefits notwithstanding the discriminatory definition of spouse under the Income Tax Act ."

In any event, I am not persuaded that the applicant can say that it has suffered detriment by reason of any representation as to the scope of the proceedings. I reiterate that in issuing the inventory order, the Tribunal cannot be said to have found improper the "legislation, regulations, directives, etc." to be contained in that inventory. The issue of legitimacy of provisions included in the inventory was left to be addressed in later proceedings, at which the applicant would have an opportunity to make representations. As a consequence, I find that there was no detriment suffered as a result of whatever expectations the applicant may have had, prior to commencement of the Tribunal's hearings, concerning what benefits would be before the Tribunal.

For these reasons, the application in T-1677-96 is dismissed.

T-954-97

The Tribunal's reservation of jurisdiction

Turning to the issues in T-954-97, the applicant submits that in its decision of April 10, 1997, the Tribunal exceeded its jurisdiction by reconsidering and changing the cease and desist order or assessing whether there had been compliance with it. It is said that this order was clear in what it directed and final in nature; it did not leave anything to the parties to resolve and it was to take effect immediately.

It is submitted that while an administrative tribunal may retain jurisdiction on matters in a remedial order, it cannot retain jurisdiction in respect to an order or part of an order that effectively and finally disposes of an issue. Nor can it make a decision on the merits and then reserve jurisdiction to see if its decision was correct or will work, or extend its jurisdiction to issues which were not part of the original proceedings. It is urged that the Tribunal violated these precepts in its treatment of the cease and desist order in the second proceedings.

For its part, the respondent CHRC argues that the Tribunal correctly interpreted the law when it concluded that it was not functus officio in regard to the cease and desist order. Given the broad and liberal interpretation of the Tribunal's remedial powers under the Act, it is appropriate and incumbent upon the Tribunal to retain jurisdiction and reconvene to hear evidence or submissions to ensure that the remedies are effected in a manner consistent with the purposes of the Act. It is submitted the Tribunal may also ensure that in making its order, it does not continue the discrimination or cause an adverse discriminatory impact upon those the order seeks to protect. It is urged that the Tribunal provided adequate notice of its intention to retain jurisdiction by noting, in its decision, that it would retain jurisdiction while the parties worked out the details.

The respondent PSAC argues that the principle of functus officio is to be applied with flexibility and sensitivity in light of the objectives of the Act and in a manner that does not operate to frustrate the promotion of human rights. It is submitted that the parties tried to reach agreement on the revisions to the PSAC collective agreement necessary to ensure that it conformed with the Act, but these efforts were not successful. As a consequence, the matter was brought back to the Tribunal. PSAC urges that the Tribunal does not need to state specifically that it retains jurisdiction in order to return to an aspect of its decision or its order. The jurisdiction to do so is said to be implied from the nature of the Tribunal and the enabling legislation governing it.

Similarly, the respondent PAFSO argues that the Tribunal did not err in law and was acting within its jurisdiction when it made its further order regarding the cease and desist order. It is urged that a Tribunal has the power to reserve jurisdiction in order to ensure that remedies ordered by it are forthcoming.

I agree with the respondents' contentions that a broad and liberal interpretation of the Tribunal's remedial powers under the Act allows it to retain jurisdiction. I discussed this issue in Brink's Canada Ltd. v. Canada (Canadian Human Rights Commission),¹³ as follows:

The Supreme Court has ruled that human rights legislation is to be given a fair, large and liberal interpretation which will further attainment of the objectives of the legislation: Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84. My colleague, Mr. Justice Cullen, relied on this principle in Canada (Attorney General) v. Grover at al. (1994), 80 F.T.R. 256 (F.C.T.D.) when he found that a Tribunal appointed under the Act was not functus officio with respect to an order rendered and that the Tribunal could reconvene the hearing on the matter and issue a new order despite the fact that the Act did not expressly allow for this. By that decision the Court also determined that some flexibility must be given to the Tribunal to develop its own procedures in attempting to fulfil its mandate.

In Canada (Attorney General) v. Grover,¹⁴ Mr. Justice Cullen referred to the decision of Mr. Justice Sopinka in Chandler v. Alberta Association of Architects,¹⁵ who affirmed policy reasons for applying the principle of functus officio to decisions of administrative tribunals, but agreed that should not apply strictly where that would result in injustice, or where the tribunal's enabling legislation indicates a decision can be reopened to enable it to properly discharge its function. Cullen J. then commented in Grover, in part as follows:¹⁶

While there is no express provision in the Act which allows for reopening of an inquiry, subs. 53(2) of the Act gives wide remedial powers to the Tribunal.

. . .

The Supreme Court of Canada has mandated that Human Rights legislation should be liberally interpreted in a manner which accords full recognition and effect to the rights protected by such legislation . . . .

. . .

The aim of the Act is remedial and it is not intended to punish those responsible for the discriminatory treatment. Rather, the primary focus of the legislation is the eradication of discriminatory practices. In light of this, subs. 53(2) should be interpreted in a manner which best facilitates the compensation of those subject to discrimination. The redress of discrimination, however, is not always fully achievable simply by the payment of monetary awards. This is reflected by the wide variety of remedial options open to a Tribunal in subs. 53(2), of which compensation for monetary losses is only one . . . .

It is clear that the Act compels the award of effective remedies and therefore, in certain circumstances the Tribunal must be given the ability to ensure that their remedial orders are effectively implemented. Therefore, the remedial powers in subs. 53(2) should be interpreted as including the power to reserve jurisdiction on certain matters in order to ensure that the remedies ordered by the Tribunal are forthcoming to complainants. The denial of such a power would be overly formalistic and would defeat the remedial purpose of the legislation. In the context of a rather complex remedial order, it makes sense for the Tribunal to remain seized of jurisdiction with respect to remedial issues in order to facilitate the implementation of the remedy. This is consistent with the overall purpose of the legislation and with the flexible approach advocated by Sopinka J. in Chandler, supra.

The reasoning in these cases supports the conclusion that the Tribunal has broad discretion to return to a matter and I find that it had discretion in the circumstances here. Whether that discretion is appropriately exercised by the Tribunal will depend on the circumstances of each case. That is consistent with the principle set out in Chandler v. Alberta Association of Architects,¹⁷ relied upon by the applicant, which dealt with the decision of a board other than the Canadian Human Rights Tribunal.

In rendering its June 13, 1996, decision, the Tribunal wrote [at paragraphs 107-108]:

At the conclusion of the hearing, Counsel requested that, in the event of a finding that the complaints were substantiated, they be given general direction in an order from the Tribunal and an opportunity to work out the details while the Tribunal retains jurisdiction.

The Tribunal accepts this proposal and makes the following order: . . . .

As I read the Tribunal's order that introduction refers to all of the matters included in it, and all the remedies ordered by the Tribunal, I am not persuaded that the Tribunal viewed its order as final and conclusive, in a manner that would preclude it from returning to any matter included in the order. Rather, the Tribunal reserved jurisdiction in the matter, as it was entitled to do. On the authority of Grover, I conclude that subsection 53(2) empowered the Tribunal to reopen the proceedings. In my opinion, therefore, the Tribunal did not err in finding, in its second decision, that it could revisit its earlier cease and desist order.

The definition of spouse and paragraph c) of the June 13 order

The applicant argues that the Tribunal erred in law and fact in reconsidering the matter of its cease and desist order and in concluding that the employer had not complied with paragraph (c) of the order when it developed a separate provision to deal with same-sex couples. It is submitted that the Tribunal's objection to the separate definition of same-sex partner under that provision developed by the employer places form over substance. It is urged that whether the employer interpreted the provisions in the employment benefit programs using a separate overriding document and definition, or by the inclusion of a statement in each of the employment documents, is not material for in either case the employer would comply with the direction. Further, the employer's approach was justified by the need to provide, in a timely fashion, a comprehensive solution encompassing the large number of employment documents at issue.

The applicant urges that the employer's use of an additional or a supplemental definition of same-sex partners was proper as, in law, it is not discriminatory to rely upon an approach that does not involve the total assimilation of same-sex partners or same-sex couples to heterosexual common-law couples. The applicant cites the Supreme Court of Canada's decision in Egan v. Canada¹⁸ as implicit acknowledgement that spousal benefits can be provided to same-sex couples in a non-discriminatory way without the need of changing the definition of spouse. It is urged that a different provision for same-sex couples does not denigrate such couples, but merely acknowledges a difference noted by the Tribunal itself. It is urged that cases in which courts and tribunals have altered the definition of "common-law spouse" are distinguishable as the benefits in those cases were not offered to same-sex partners at all, and a change of the definition of "common-law spouse" was the only remedy available to provide benefits to same-sex couples.

PSAC submits that the Tribunal was correct in concluding that the definition of same-sex partner adopted by the employer failed to comply with the cease and desist order. It is urged that the important consideration underlying the Tribunal's later finding was not the fact that this definition was contained in a separate document, but that the employer had not ensured that all aspects of the discriminatory practice were eradicated. PSAC argues that the use of a separate definition for the purpose of extending benefits to same-sex common-law spouses could have the effect of continuing discrimination on the basis of sexual orientation.

For its part, PAFSO urges that the Tribunal's order regarding the definition of spouse was consistent with existing jurisprudence and there is no basis for concluding that the Tribunal acted erroneously or outside its jurisdiction when it issued the order that it did. The separate regime introduced by Treasury Board perpetuates a distinction drawn on the lines of sexual orientation and while there may be no discrimination in terms of access to benefits, this manner of providing these benefits does not recognize the innate dignity of human beings, and carries with it a stigmatization that the same-sex relationship is not deserving of the status of "spouse". In oral argument before me, counsel for PAFSO urged that, in any event, by establishing a separate same-sex definition, Treasury Board failed to comply with the wording of the Tribunal's order which required the employer to interpret "spouse" to include same-sex common-law spouses.

In my view, a determination of whether a party complies with an order is a question of fact that falls within the expertise of the Tribunal and is therefore to be accorded a large measure of curial deference. However, where the employer's response is criticized, not for failing to comply with specific directions in the order, but for lack of compliance with the Act and the Charter, inadequacy is found with reference to a standard of law. In such circumstances, the Tribunal renders a finding of law for which the standard of review is correctness. Accordingly, the Court must address the question of whether the Tribunal was correct in finding that the Act and the Charter require that "spouse" be defined in the relevant documents as if reference to "opposite sex" were eliminated, or be interpreted without reference to gender.

The applicant argues that the scheme proposed by the employer does not violate the requirements of the Act and the Charter, relying in large part on the Supreme Court's decision in Egan v. Canada.¹⁹ As I read Egan, a majority of judges found that the Old Age Security Act, R.S.C., 1985, c. O-9, as amended, violated section 15 of the Charter by extending benefits to spouses of the opposite sex only. The remedy proposed, implicitly, by the separate concurring judgments of most of the majority on this issue was to delete the words "of the opposite sex" from the definition of spouse. However, Sopinka J., who agreed that section 15 was violated, held that such discrimination was upheld under section 1 of the Charter. Thus, he joined the minority of judges who did not find a violation of section 15, to constitute the majority of judges who dismissed the appeal.

In my opinion, Egan supports the view that the employer's proposal in this case does not meet the requirements of the Canadian Human Rights Act, which includes sexual orientation as a prohibited ground of discrimination. I find support for this view in the Manitoba Court of Appeal's decision in Vogel v. Manitoba.²⁰ In Vogel, the appellants filed complaints under the Manitoba Human Rights Code, S.M. 1987-88, c. 45, alleging discrimination on the grounds of sex, marital status, family status and sexual orientation because, as a homosexual couple, they were denied benefits available to legal and common-law spouses in heterosexual relationships. Observing that in Egan, a clear majority of the Supreme Court had held that section 15 demands a definition of spouse that includes same-sex couples, Helper J.A., with whom the other judges on the panel concurred on this point, held that:

The eligibility criteria in the challenged schemes are clear and can have but one meaning. A common law spouse is defined as "a person of the opposite sex". To treat persons of the same sex who represent themselves as a common law couple differently from persons of the opposite sex representing themselves as a common law couple is a differentiation based upon sexual orientation . . . .

The exclusion of homosexual couples from the benefits directed to all heterosexual employees involved in permanent, intimate relationships due to a limiting definition of "spouse" and "common law spouse" is discrimination on the basis of sexual orientation.

In a separate, concurring judgment Philp J.A. wrote as follows [at page 77]:

The applicants in Egan were denied relief against discriminatory treatment under the Act. That is because of the limiting provision of s. 1 of the Charter. The Code does not have a general qualifying provision similar to s. 1. Does that mean that the applicants in this case are entitled to relief under a provincial statute (the Code, which is "special legislation", "more than ordinary", but "not quite constitutional") against discriminatory treatment, relief which was denied to the applicants in Egan under the constitution of this nation for like treatment?

The answer to that question, and the anomaly it presents, are beyond the scope of this appeal, and, perhaps, beyond the record of the proceedings before the adjudicator.

However, the decision of the Court makes little sense unless one assumes that it did, in fact, answer this question. The Court clearly followed the Egan majority on the discrimination issue, but disregarded the majority on the section 1 ruling. In my view, this can only mean that the Court found that protections against discrimination on the grounds of sexual orientation, as manifested in a sex-specific definition of spouse, are broader under the Code than under the Charter.

In my opinion, the reasoning of the Manitoba Court of Appeal with regard to the Manitoba law applies equally to the Canadian Human Rights Act. Specifically, the majority of the Supreme Court in Egan set a standard for definition of "spouse" necessary to meet the non-discrimination requirement of section 15 of the Charter; namely, that it not include reference to the "opposite sex". A similar prohibition on discrimination exists in the Act, but is not subject to a section 1 limitation. Therefore, the standard set by the Supreme Court on the discrimination issue should govern, and the definition of spouse in the provisions in question should be without reference to gender.

The applicant submits that Egan does not render obligatory a definition of spouse that eliminates the words "of the opposite sex" because Cory and Iacobucci JJ., dissenting in the result but in the majority on the section 15 Charter issue, would have suspended their remedy of striking out the words "of the opposite sex" so as to allow Parliament time to devise its own constitutional approach. This fact, it is urged, suggests that removing these words from the definition of "spouse" was not the only solution the Court was prepared to consider non-discriminatory. Be that as it may, I do not see how this has any bearing in determining whether the actual scheme proposed by Treasury Board in this case meets the requirements of the Act.

In this regard, while I note that in Vogel there was no issue as to whether the introduction of two definitions, one for same-sex couples and one for common-law spouses, accompanied by the same benefits, amounts to discrimination under the Manitoba Code, I am of the opinion that such an approach is discriminatory within the meaning of the Canadian Human Rights Act.

In my view, the scheme proposed by the employer establishes a regime of "separate but equal", one that distinguishes between relationships on the basis of the sexual orientation of the participants. Thus, this scheme remains discriminatory. Further, though the two classes receive the same benefits, in my view, such a distinction continues to differentiate adversely between persons, within the meaning of the Act. In this regard, section 7 of the Act defines, as a "discriminatory practice", "to differentiate adversely in relation to an employee, on a prohibited ground of discrimination". I cite with approval the views of the Human Rights Tribunal in Hum v. Royal Canadian Mounted Police²¹ on the meaning of "to differentiate adversely":

Like the verb "to discriminate", the connection of the verb "to differentiate" with the adverb "adversely" connotes a process of treating someone differently from the way in which others would be treated in the same circumstances, and with a detrimental result to the individual so treated. As with the term "to discriminate" there is no requirement that the actor intends to harm the victim of the action. The adverse impact of the differentiation will in some cases be a tangible detriment to the victim, for example the lack of shelter or goods. However, it may also be an adverse psychological impact. The hurt caused may be to the spirit or to dignity rather than to the actual physical welfare of the individual. Although he was dealing with the term "discrimination" Professor Ian Hunter captures the essence of the term "to differentiate adversely" when he writes:

Discrimination means treating people differently because of their race, colour, sex, etc., as a result of which the complainant suffers adverse consequences or a serious affront to dignity: the motive for the discriminatory treatment, whether occasioned by economic or social considerations, and whether those considerations are soundly or fallaciously based, is irrelevant, except possibly in mitigation of the penalty. (I. Hunter, "Human Rights Legislation in Canada"Its Origin, Development and Interpretation" (1976), 15 Univ. West. Ont. Law Rev. 21, at pp. 33-4).

In oral submissions at the hearing of these applications, Mr. Moore, one of the respondents in this matter, had this to say:

Although, on the merits of the case, this is about benefits for the person behind that, the person being talked about today, it goes well beyond benefits to me. The manner in which I am treated, the manner in which I am made to feel is really what's at issue here and I do not feel equal.

. . .

It is not about special rights, it's not about special treatment, it's not about special mention in any document or any collective agreement any more than any other person would be mentioned in those documents by virtue of their age, of their religion, of their sex or of their colour. Rather, what the gay agenda is about is about belonging, about being included, about having a place around the table not because I am gay, but because, in the true meaning of family, it doesn't matter.

In its April 1997 decision in the case at bar, the Tribunal described the objection of the complainants to Treasury Board's separate definition of same-sex common-law relationships as follows [at paragraph 6]:

Rather than treating same sex partners as a common law spousal relationship (as is the case with opposite sex partners), the definition of "same sex partner" creates a separate class of persons who are entitled to employment benefits, but on the basis of their sexual orientation rather than their spousal relationship. The Employers offered no explanation as to the need for a separate classification . . . .

In coming to my conclusion that the scheme proposed by the employer would be a discriminatory practice prohibited by section 7 of the Act, I find persuasive the reasoning of Mr. Justice Linden, in dissent, of the Federal Court of Appeal in Egan v. Canada,²² when he wrote:

. . . the refusal of spouse's allowance reflects negatively on the worth of lesbian and gay relationships, contributing to the stereotype that those relationships are without merit. As a result, the fact that similar benefits may be available to gay and lesbian partners under a different scheme"a provincial rather than a federal scheme in this case"cannot remedy the discriminatory impact of denying benefits to gay and lesbian partners on the same footing as heterosexual partners . . . . Restricting a group's eligibility for equal benefits (merely on the basis of a personal characteristic related to a ground of discrimination) so that those benefits are available only under a separate or different scheme places a limitation of separateness or difference on the promise of equality. Such a compromise is reminiscent of the now-discredited "separate but equal doctrine", developed by the United States Supreme Court in Plessy v. Ferguson , 163 U.S. 537 (1896), which supported discrimination against African-Americans and other people of colour. That doctrine was widely condemned and was officially rejected in the landmark case of Brown v. Board of Education of TopeKa, 347 U.S. 483 (1954). In this country, the separate but equal doctrine was rejected by the Supreme Court in Andrews, supra, at page 166, as a loathsome artifact of the similarly situated approach. One cannot avoid the conclusion that offering benefits to gay and lesbian partners under a different scheme from heterosexual partners is a version of the separate but equal doctrine. That appalling doctrine must not be resuscitated in Canada forty decades after its much-heralded death in the United States.

I note that Linden J.A.'s view on the existence in Egan of discrimination under section 15 of the Charter, while the minority position at the Court of Appeal, prevailed with the majority of the Supreme Court, though his comments on the issue of "separate but equal" were not referred to in that Court's decision.

While decision was reserved in this matter, the Ontario Court of Appeal issued its reasons in Rosenberg v. Canada (Attorney General),²³ and the Supreme Court of Canada released its reasons in Vriend v. Alberta.²⁴ Thereafter, written submissions were received from counsel for the applicant and for the respondent organizations. While, as the applicant submitted, both these cases, like Egan, concerned the applicability of section 15 and section 1 of the Charter to the particular discriminatory arrangements based on sexual orientation there complained of, and are therefore of limited relevance to the case at bar, I am persuaded that the reasoning in Vriend and Rosenberg bolsters my conclusions in the case at bar, by analogy.

In Vriend, the majority of the Supreme Court found that the exclusion of discrimination on the basis of sexual orientation from the Alberta Individual's Rights Protection Act, R.S.A. 1980, c. I-2 (IRPA) violated section 15 of the Charter. In coming to this conclusion, Mr. Justice Cory, writing for the majority, held [at pages 542-544 and 550]:

. . . there is, on the surface, a measure of formal equality [in the IRPA]: gay or lesbian individuals have the same access as heterosexual individuals to the protection of the IRPA in the sense that they could complain to the Commission about an incident of discrimination on the basis of any of the grounds currently included. However, the exclusion of the ground of sexual orientation, considered in the context of the social reality of discrimination against gays and lesbians, clearly has a disproportionate impact on them as opposed to heterosexuals. Therefore the IRPA in its underinclusive state denies substantive equality to the former group.

. . .

. . . the respondents' contention that the distinction is not created by law, but rather exists independently of the IRPA in society, cannot be accepted. It is, of course, true that discrimination against gays and lesbians exists in society. The reality of this cruel and unfortunate discrimination was recognized in Egan. Indeed it provides the context in which the legislative distinction challenged in this case must be analysed. The reality of society's discrimination against lesbians and gay men demonstrates that there is a distinction drawn in the IRPA which denies these groups equal protection of the law by excluding lesbians and gay men from its protection, the very protection they so urgently need because of the existence of discrimination against them in society. It is not necessary to find that the legislation creates the discrimination existing in society in order to determine that it creates a potentially discriminatory distinction.

. . .

. . . let us assume, contrary to all reasonable inferences, that exclusion from the IRPA's protection does not actually contribute to a greater incidence of discrimination on the excluded ground. Nonetheless that exclusion, deliberately chosen in the face of clear findings that discrimination on the ground of sexual orientation does exist in society, sends a strong and sinister message. The very fact that sexual orientation is excluded from the IRPA, which is the Government's primary statement of policy against discrimination, certainly suggests that discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination.

In Rosenberg, at issue was whether the inclusion of "of the opposite sex" in the definition of "spouse" under the Income Tax Act violated section 15 of the Charter. In arriving at the view that it did, and that it was not saved by section 1, Abella J.A., writing for the Court, concluded that, on the facts before the Court, "The sexual orientation of surviving partners can in no way be seen as any more relevant to whether they should be entitled to income protection their partners have paid for, than would be their race, colour, or ethnicity."²⁵

In my view, Mr. Justice Linden's views in Egan and the majority decision in Vriend demonstrates a view on the part of the courts that legislative distinctions between persons on the basis of sexual orientation, even though in practical terms they may not give rise to substantive inequality, e.g. discriminatory access to benefits, may reaffirm pre-existing discriminatory notions and, on this basis, be themselves discriminatory. In my view, on the facts of the case at bar, the employer's separate definition of same-sex partners, made without explanation, reinforces a distinction drawn between same-sex and heterosexual couples, one made typically on discriminatory grounds. Such a distinction, relying on classifications reflecting pre-exiting biases without a plausible non-discriminatory rationale, in my view, constitutes adverse differentiation within the meaning of section 7 of the Canadian Human Rights Act. By analogy to the comment quoted above from Madam Justice Abella in Rosenberg, it is no more appropriate for the employer in this case to have established a separate definition for persons in same-sex relationships than it would have been for the employer to create separate definitions for relationships of persons based on their race, colour or ethnicity, or any other prohibited ground enumerated in the Act.

I note that the applicant, in submissions to the Court, urged that the employer's decision to employ a separate definition for same-sex partners was motivated, at least in part, by the desire to move expeditiously in correcting discrimination against same-sex couples. With respect, no evidence was presented suggesting that the method selected by the employer was more expeditious than simply eliminating the discriminatory interpretation of the existing definitions of spouse, as the Tribunal's order directed. Indeed, according to the Tribunal's April 10, 1997 decision, no justification was demonstrated, or even argued, before the Tribunal. I am not persuaded that the need for administrative efficacy, even if it could be demonstrated, would render the scheme selected by the employer something other than "separate but equal" and thus, any less discriminatory.

For these reasons, it is my view that the Tribunal was correct in concluding that the approach by the Treasury Board, as the employer, to compliance with the cease and desist order was inconsistent with the Act. I am of the view that the applicant, by introducing a new same-sex spouse category, failed to follow the June 13 order of the Tribunal. It did not cease and desist "in the application of any definition of spouse or any other provisions . . . which operate so as to continue the discriminatory practice and interpret any such definition or provision to be in compliance with the Act (and the Charter) so as to include same-sex common-law spouses". The employer was ordered to cease applying a discriminatory definition of "spouse". This it did not do. On this basis, it is my view that there is no basis to intervene with the Tribunal's decision of April 10, 1997 in so far as it found that the employer had not complied with its earlier cease and desist order.

In its written argument, the applicant urges that the Tribunal's remedy does not, in fact, accomplish its aim of extending benefits to the class discriminated against. First, the definition of "spouse" and "common-law spouse" differ depending on the employment document at issue and simply removing the words "of opposite sex" will still leave certain definitions with language that, it is urged, absent further changes, will mean that same-sex couples will have to misrepresent their relationship. Second, the Tribunal did not have before it evidence that a change to the definition of spouse was generally appropriate for members of the gay and lesbian community.

Neither submission was seriously argued before me and, in the absence of more specific argument on these points, I do not find the applicant's arguments persuasive. I merely note here that the order's scope is considerably broader than the applicant suggests, as it includes removing reference to gender as well as opposite sex from the relevant documents. The Tribunal's April 1997 order refers to the requirement set out by the earlier cease and desist order, that is, to require the word "spouse" to be interpreted to comply with the Act and the Charter and again ordered that to be done on the basis directed earlier, not on the basis of "a classification outside these documents" in question. The Tribunal clearly believed its remedy to be appropriate for Messrs. Moore and Akerstrom and to be effective. In my opinion, this assessment was a factual determination which is owed curial deference unless the findings were patently unreasonable. No such assertion is here made.

The inventory order

As in file T-1677-96, so also in file T-954-97, the applicant objects to the June 13 inventory order on grounds of natural justice, to the extent that the order purports to encompass legislation, policy, and directives other than those specified by the complaints or identified by the complainants and the Commission prior to the Tribunal's hearing in response to demands for particulars. Further, the applicant urges that the Tribunal made an error of fact in its April 1997 decision in concluding that there was a commitment on the part of Revenue Canada that all employment-related benefits would be treated the same under the Income Tax Act. Beyond the treatment of private health service plans under the Income Tax Act, it is urged that no provisions of that Act were at issue and the Tribunal's orders are said to err to the extent they purport to cover other income tax provisions.

On this issue, the CHRC repeats its argument from T-1677-96; specifically, that in order to effectively address the cause of the discrimination, the Tribunal appropriately drafted a remedy that would ensure that not only was the cause of discrimination (namely, the discriminatory interpretation of the definition of spouse) eliminated, but also that the spousal employment benefits would be provided without discrimination on the basis of sexual orientation.

The CHRC urges that the applicant had an unhindered opportunity to make full answer and defence on the issue of discriminatory definition and the remedy sought. In addition, as there is still no order by the Tribunal requiring legislative change, there is no excess of jurisdiction or breach of natural justice. Finally, it is submitted that the Tribunal did not err in fact in its comments concerning the inventory order and the Income Tax Act, as alleged by the applicant. It is argued that the Tribunal went no further in its comments than did counsel for the applicant when appearing before the Tribunal.

PSAC submits that there is no basis for the conclusion that the Tribunal breached the principles of natural justice in reaching its decision. All the issues addressed by the Tribunal were referred to repeatedly in hearings before the Tribunal. As a consequence, the applicant had ample notice of the case to be met. Moreover, it is urged the order did not have the effect of striking any legislative provision, and was focused upon legislation, regulations and directives that provided for medical, dental and related employment benefits.

Similarly, on the natural justice issue, PAFSO argues that all the issues addressed by the Tribunal were referred to repeatedly before the Tribunal and thus the applicant was provided with notice of the issues and ample opportunity to make submissions.

With respect for counsel for the applicant, I am not persuaded that there exist grounds to interfere with the Tribunal's April 1997 decision. Given the June 1996 inventory order, there is no question that the applicant had notice of the issues that would be before the Tribunal when the inventory was returned, with proposals by the parties, to the Tribunal. As indicated by the correspondence between counsel for the Commission and the applicant earlier referred to, the applicant had notice that the Income Tax Act was an issue as early as May 8, 1995, well before the original Tribunal hearing. In my view, there is no basis to conclude that the applicant did not have fair notice of the case to be met.

I do not find it necessary to determine whether, had the Tribunal ruled, in its April decision, on the propriety of any of the material in the inventory, it would have exceeded its jurisdiction. With respect to counsel for the applicant, I cannot view the Tribunal's statements regarding the disposition of the income tax matter in its decision of April 1997 as a "decision" or "order" having legal consequences and thus susceptible to judicial review. In my opinion, the Tribunal, in its reasons, merely explains its rationale for not further treating the income tax matter. It issues no order relating to the Income Tax Act or any of the other included materials that may be collected by virtue of its inventory order of June 13. I do not see any language in the decision of April 1997 that would have the effect of rendering the Tribunal's understanding of the income tax matter binding on the parties. If the Tribunal had intended such effect, it could have included language so ordering. For these reason, in my view, the Court has no jurisdiction to intervene with the Tribunal's April 1997 decision.

In any event, if I am wrong on this point, in my view, the error of fact alleged by the applicant, namely, the misstated commitment, is not so egregious as to justify intervention of the Court. It is trite law that on judicial review, a finding of fact can only be disturbed where it is made in a perverse or capricious fashion or without regard to the evidence before the decision-maker. In oral argument, counsel for the applicant and for the respondents reviewed in some detail the transcript of the hearing before the Tribunal, pointing to statements and assertions made by the counsel for Treasury Board said to support or not to support the Tribunal's version of the commitment made before it. With respect, these statements, and the undertakings made by counsel for the Treasury Board, are somewhat ambiguous but I am not led to the view that Tribunal's version of events is so improper as to require intervention. In this regard, I cannot find that its account of the commitment is made perversely or capriciously or without regard to the evidence before it. Moreover, as earlier noted, its reference in its reasons to its understanding of the commitments is not a matter included within the term of its order or directives.

For these reasons, the application for judicial review in T-954-97 is dismissed.

Conclusion

I summarize my conclusions. I find that there was no violation of the requirements of natural justice by virtue of the issuance, on June 13, 1996, of the inventory order. There is no basis for concluding that, at that time, the Tribunal intended to rule that any of the provisions that might be included in that inventory are inappropriate. Nor is there any basis to conclude that the applicant has suffered any prejudice by virtue of any legitimate expectation, that was not realized, that it may have had regarding the matters that would be before the Tribunal.

I conclude that the Tribunal did not err in its April 1997 decision by revisiting the cease and desist provisions of its June 1996 decision. The Tribunal has broad powers to revisit decisions, and in this instance I find it had reserved jurisdiction in the matter. In returning to the matter, the Tribunal was responding to advice of the parties that they did not agree on means of implementing the original order. Moreover, in my view, the Tribunal did not err in concluding that the separate regime for same-sex common-law spouses proposed by the employer did not meet the requirements of the Canadian Human Rights Act and this separate regime failed to comply with the specific wording of the June 13 order.

Finally, in my opinion, there is no basis to conclude that the April 1997 decision contains an order open to judicial review regarding the Tribunal's comments concerning the Income Tax Act. In any event, I am not persuaded that the Tribunal, in recording its understanding of the commitment of Revenue Canada by referring to correspondence and to the comments of counsel for the employer, made an error of fact, that would justify intervention by the Court.

For these reasons, orders issue dismissing the applications for judicial review in files T-1677-96 and T-954-97. I direct that a copy of these reasons be filed in each of those Court files.

¹ S. 7 provides:

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

² S. 10 provides:

10. It is a discriminatory practice for an employer, employee organization or organization of employers

(a) to establish or pursue a policy or practice, or

(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.

³ S. 9 provides:

9. (1) It is a discriminatory practice for an employee organization on a prohibited ground of discrimination

(a) to exclude an individual from full membership in the organization;

(b) to expel or suspend a member of the organization; or

(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.

⁴ (1992), 9 O.R. (3d) 495 (C.A.).

⁵ [1995] 2 S.C.R. 418.

⁶ [1993] 1 S.C.R. 554.

⁷ See VIA Rail Canada Inc. v. Canada (Human Rights Commission), [1998] 1 F.C. 376 (T.D.).

⁸ [1996] F.C.J. No. 1139 (T.D.) (QL).

⁹ Ibid.

¹⁰ [1995] 1 F.C. 694 (T.D.).

¹¹ (1996), 109 F.T.R. 128 (F.C.T.D.), at p. 140.

¹² [1992] 2 F.C. 621 (C.A.), at p. 631.

¹³ [1996] 2 F.C. 113 (T.D.), at p. 130.

¹⁴ (1994), 28 Admin. L.R. (2d) 231 (F.C.T.D.).

¹⁵ [1989] 2 S.C.R. 848.

¹⁶ Supra, note 14, at pp. 247-249.

¹⁷ Supra, note 15.

¹⁸ [1995] 2 S.C.R. 513.

¹⁹ Ibid.

²⁰ (1995), 126 D.L.R. (4th) 72 (Man. C.A.), at pp. 87-88.

²¹ (1986), 8 C.H.R.R. D/3748, at p. D/3756.

²² [1993] 3 F.C. 401 (C.A.), at pp. 441-442.

²³ (1998), 38 O.R. (3d) 577 (C.A.).

²⁴ [1998] 1 S.C.R. 493.

²⁵ Supra, note 23, at p. 586.