T-3127-91
Carol Nielsen (Applicant)
v.
Canada Human Rights Commission, Canada
Employment and Immigration, Treasury Board of
Canada and Public Service Alliance of Canada
(Respondents)
INDEXED AS: NIELSEN V. CANADA (III/MAN RIGHTS
COMMISSION) (TD.)
Trial Division, Muldoon J.—Vancouver, February 12;
Ottawa, March 18, 1992.
Human Rights — Applicant alleging denial of coverage to
homosexual partner under Public Service Dental Care Plan
discrimination based on sex, sexual orientation, marital or
family status — Not discrimination based on .sex, marital status
— Sexual orientation not prohibited ground of discrimination
— Not common-law spouses as concept bespeaks gender dis
parity — Commission's decision to hold complaint in abeyance
pending S.C.C. decision in unrelated case dealing with family
status not unfair — Alternative to dismiss complaint out-of-
hand where no grounds of discrimination — Within Commis
sion's discretion to decide when to request appointment of tri
bunal.
Constitutional law — Applicant seeking benefits under Pub
lic Service Dental Care Plan for lesbian partner — Master
agreement defining "common-law spouse as person of oppo
site sex — Allegation of discrimination on grounds of sex, sex
ual orientation, marital status, family status — Sexual orienta
tion not ground in Canadian Human Rights Act, s. 3 — Court
asked to extend scope of under-inclusive legislation — Demo
cratic society based on rule by people through elected repre
sentatives — Not legitimate for unelected judiciary to invent
legislation to fulfil policy ends urged by litigants — Canadian
society divided on homosexual rights question — Judicial
activism should not extend to usurping role of legislature by
minting new, controversial rights.
This was an application to quash the Canadian Human
Rights Commission's decision to hold in abeyance the appli
cant's complaint pending the decision of the Supreme Court of
Canada, in an unrelated case, on the issue of family status, and
to compel the Commission to request the appointment of a Tri
bunal pursuant to Canadian Human Rights Act, sections
44(3)(a) and 49(1). Since 1983 the applicant has lived with
another woman, whom she considers to be her spouse, and that
woman's child. A public servant, applicant was required to
join the dental plan and was entitled to enroll a spouse, includ
ing a common-law spouse, and dependent children. Her part
ner's claim for dental services was not accepted, as the defini
tion of "spouse" in the Master Agreement governing the
applicant's employment requires the partners to be of the oppo
site sex. The applicant alleged discrimination based on sex,
family status, marital status and sexual orientation. She alleged
that the Commission was not authorized by its statute to stand
down her complaint.
Held, the application should be dismissed.
Sexual orientation was not a prohibited ground of discrimi
nation under the Canadian Human Rights Act. As the dental
care plan was available equally to men and women, it could
not be said that the claim for dental services had been declined
on the basis of sex. Nor was the applicant's marital status the
reason for the alleged discrimination. Whether the applicant is
single, married, separated or divorced was irrelevant. The
applicant and her partner are not "common-law spouses" for
that concept bespeaks disparity of gender in the relationship.
The applicant misconstrued the Commission's lawful scope
of action. In holding the applicant's complaint in abeyance, the
Commission had not acted unfairly. The choice was between
holding it in abeyance and dismissing it out of hand. The Com
mission could not have been satisfied that inquiry into this
complaint was warranted since there had not been discrimina
tion on any prohibited ground. The complaint could have been
terminated at an even earlier stage under paragraph 41(c) as
"beyond the jurisdiction of the Commission". The Act does not
require the Commission to appoint a tribunal promptly when
satisfied that a complaint is substantiated. Although paragraph
44(3)(b) provides that the Commission "shall dismiss the com
plaint", paragraph 44(3)(a) provides that the Commission
"may request the President of the ... Panel to appoint a ...
Tribunal". The words "may, at any stage" in subsection 49(l)
bestow upon the Commission a discretion to decide when to
request the appointment of a Tribunal.
Despite the absence of sexual orientation from the list of
prohibited grounds, the applicant urged the Court to quash the
decision to stay proceedings and to compel the Commission to
process her case. In other words, the Court was being asked to
extend what the applicant considers to be under-inclusive leg
islation. Apart from the fact that it has already been decided
that the exclusion from spousal benefits of homosexual couples
does not infringe Charter, section 15 on the basis of either sex
or sexual orientation (Egan v. Canada, [ 1992] 1 F.C. 687
(T.D.)), for an unelected judge to add what Parliament has
declined to include in legislation would be tantamount to legis
lating, contrary to democratic principles whereby elected rep
resentatives are charged with legislating. To decide that policy-
based legislation "invented" and enacted by Parliament is
unconstitutional is a legitimate posture for the Court, but for
the Court to invent the legislation which has not been adopted
by Parliament to fulfil policy ends in an attempt to satisfy con-
stitutional values is not. It circumvents the legislative branch,
not only by usurping the policy choice of what to include in
legislation, but also by denying the legislative choice to recon
figure or repeal any new constitutionally inclusive laws so
made by an unelected judicature. That would be the abolition
of majority rule and the legislature. Furthermore, as Canadian
society is deeply riven over the question of homosexual beha
viour, it would be highly inappropriate for the courts to purport
to legislate with respect thereto.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3,
41(c), 44(3) (as am. by R.S.C., 1985 (1st Supp.), c. 31,
s. 64), 49(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Egan v. Canada, [1992] I F.C. 687 (T.D.); O'Grady v.
Whyte, [1983] 1 F.C. 719; (1982), 138 D.L.R. (3d) 167;
42 N.R. 608 (C.A.).
DISTINGUISHED:
R. v. Askov, [1990] 2 S.C.R. 1199; (1990), 75 O.R. (2d)
673; 74 D.L.R. (4th) 355; 59 C.C.C. (3d) 449; 79 C.R.
(3d) 273; 49 C.R.R. 1; 42 O.A.C. 81.
CONSIDERED:
Mossop v. Secretary of State and Treasury Board (1989),
10 C.H.R.R. D/6064; 89 CLLC 17,010 (Trib.); revd sub
nom. Canada (Attorney General) v. Mossop, [1991] 1
F.C. 18; (1990), 71 D.L.R. (4th) 661; 32 C.C.E.L. 276; 12
C.H.R.R. D/355; 90 CLLC 17,021 (C.A.); leave granted
to appeal January 25, 1991, S.C.C. Bulletin, p. 157, No.
22145; Syndicat des employés de production du Québec et
de l'Acadie v. Canada (Canadian Human Rights Commis
sion), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385;
100 N.R. 241; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R.
486; (1985), 24 D.L.R. (4th) 536; [1986] 1 W.W.R. 481;
69 B.C.L.R. 145; 23 C.C.C. (3d) 289; 48 C.R. (3d) 289;
18 C.R.R. 30; 36 M.V.R. 240; 63 N.R. 266; O'Sullivan v.
Canada, [ 1992] 1 F.C. 522; [1991] 2 C.T.C. 117; (1991),
91 DTC 5491; 45 F.T.R. 284 (T.D.).
REFERRED TO:
Knodel v. British Colwnbia (Medical Services Commis
sion), [1991] 6 W.W.R. 728; (1991), 58 B.C.L.R. (2d)
356; 91 CLLC 17,023 (B.C.S.C.).
APPLICATION for certiorari quashing the deci
sion of the Canadian Human Rights Commission to
hold the applicant's complaint in abeyance and for
mandamus compelling the Commission to proceed
with the complaint. Application dismissed.
COUNSEL:
Gwen Brodsky for applicant.
Rosemary Morgan for respondent Canadian
Human Rights Commission.
Deirdre A. Rice for respondents Canada
Employment and Immigration and Treasury
Board of Canada.
No one appearing for respondent Public Service
Alliance of Canada.
SOLICITORS:
B.C. Public Interest Advocacy Centre, Vancou-
ver, for applicant.
Canadian Human Rights Commission, Ottawa,
for respondent Canadian Human Rights Com
mission.
Deputy Attorney General of Canada for respon
dents Canada Employment and Immigration and
Treasury Board of Canada.
Soloway, Wright, Ottawa, for respondent Public
Service Alliance of Canada.
The following are the reasons for order rendered in
English by
MULDOON J.: The applicant's originating notice of
motion, dated December 16, 1991, was filed the next
day, in Vancouver, where the hearing took place on
February 12, 1992. Here is the statement of remedies
sought in the applicant's said notice:
1. An order in the nature of certiorari quashing the decision of
the Canadian Human Rights Commission dated July 9, 1991 to
stand down the Applicant's Complaint under the Canadian
Human Rights Act alleging discrimination in employment on
the grounds of sex, sexual orientation, marital status and fam
ily status.
2. (a) An order in the nature of mandamus compelling the
Respondent to request the President of the Human Rights Tri
bunal Panel to appoint a Human Rights Tribunal pursuant to ss.
44(3)(a), and 49(1) of the Canadian Human Rights Act.
(b) In the alternative, an order in the nature of mandamus
compelling the Respondent to determine whether there is a
reasonable basis in the evidence to request the appointment of
a Human Rights Tribunal, pursuant to ss. 44(3) and 49(l) of
the Canadian Human Rights Act.
Although no grounds for the motion are stated in the
notice, they emerge clearly enough from a reading of
the documents filed and from the opening statement
of the applicant's counsel.
The principal ground is the decision of the Cana-
dian Human Rights Commission (hereinafter also:
CHRC or the Commission) to make the applicant
wait, as she asserts unlawfully and unjustly, in the
processing of her complaint before a Human Rights
Tribunal (hereinafter also: a, or the, Tribunal) pend
ing the decision of the Supreme Court of Canada in
Mossop v. Secretary of State and Treasury Board
(1989), 10 C.H.R.R. D/6064 (Trib.); revd sub nom.
Canada (Attorney General) v. Mossop, [1991] 1 F.C.
18 (C.A.); leave granted January 25, 1991, (S.C.C.
Bulletin, page 157, No. 22145).
The applicant, a woman, has a "domestic relation
ship" with another woman, whose child lives with,
and is dependent on, her mother (that other woman),
and the applicant. The applicant considers that other
woman to be her spouse, an assertion which is largely
the same as, or similar to, the matter in issue in the
Mossop case. The CHRC wants to wait and see the
final outcome of the Mossop case in the Supreme
Court of Canada before acting on the applicant's
complaint of discrimination.
Here is an excerpt from the applicant's counsel's
opening statement, as transcribed:
As a preliminary matter, I wish to make clear that the appli
cant does not ask this Court to decide her case on the merits.
We understand perfectly well that the jurisdiction to do that
lies with a Tribunal. And we also take it as a given that the
decisions of the Canadian Human Rights Commission about
whether to appoint Tribunals or not, are decisions of an admin
istrative nature rather than a judicial nature.
We will be asking this Court not to hear the applicant's case
on the merits but rather to stop the Commission from doing
that which it is not authorized by its enabling statute to do, that
is holding a complaint in abeyance or standing it down pend
ing the outcome of unrelated litigation involving substantially
different issues. It is our position that standing down or hold
ing in abeyance while awaiting the outcome of unrelated litiga-
tion involving substantially different issues is not an option
that the Commission can take. It is not authorized by its statute
to take that action. We will ask this Court to grant an order
compelling the Commission to do that which it is legally
bound to do by its statute.
The applicant has produced a statement of facts
(and law) which is annexed to her affidavit sworn on
December 16, 1991 as exhibit "A", and is also found
at tab X, commencing at page 000199 of the appli
cant's motion record. The respondents' respective
counsel (i.e. the CHRC and the Attorney General for
the "government respondents") seem generally quite
content with the applicant's statement of facts. Here,
therefore, are passages selected to further the narra
tive:
I. At all material times the Applicant was employed by the
Canada Employment and Immigration Commission. At various
times the Applicant held the position of Native Program
Officer, Supervisor of Employment Services and Coordinator
of Job Entry. By reason of her employment, the Applicant was
a member of a bargaining unit represented by the Public Ser
vice Alliance of Canada.
2. At all material times, the terms and conditions of the Appli
cant's employment were those in the Master Agreement nego
tiated between the Treasury Board of Canada and the Public
Service Alliance of Canada, in force for the term July 1, 1988
to June 20, 1991.
3. Pursuant to the Master Agreement, the Applicant was
required to join the Public Service Dental Care Plan. The
Applicant was entitled to enrol herself in the Dental Care Plan
as well as a spouse including a common-law spouse, and
dependent children.
4. [The domestic relationship with the other woman, `(her part
ner)', has endured since 1983.]
5. On July 13, 1988 the Applicant submitted an enrollment
form and requested the inclusion of her partner in the Dental
Care Plan. The Pay and Benefits Section of Employment and
Immigration Canada had already agreed to provide coverage
for the dependent child.
6. On or about July 18, 1988 the Applicant was informed by
the Pay and Benefits Section of Employment and Immigration
Canada that Treasury Board would not provide Dental Care
Plan coverage to her partner. The Applicant was advised that
final disposition of her case would await the outcome of
another employee's claim, namely that of James Watson who
had applied for coverage under the same Dental Care Plan and
been denied coverage for his partner who is a man. By letter
dated May 10, 1989 the Applicant sought confirmation of the
status of her application. She received a reply from her
employer dated May 17, 1989.
7. In October of 1989 the Applicant submitted a claim for den
tal services rendered to her partner. On October 19, 1989 the
Applicant was advised by Great-West Life Assurance, the
insurance company carrying the Dental Plan, that based on the
definition of spouse contained in the Master Agreement, the
claim for dental services rendered to the Applicant's partner
would not be accepted and that no future claims would be con
sidered for her child.
8. Article M-2, paragraph (M) of the Master Agreement
defines common-law spouse relationship as follows:
A "common-law spouse" relationship exists when for a con
tinuous period of at least one year, an employee has lived
with a person of the opposite sex, publicly represented that
person to be his/her spouse, and continues to live with the
person as if it were his/her spouse.
9. On September 29, 1989 the Applicant filed a written Com
plaint to the Canadian Human Rights Commission alleging
discrimination based on the grounds of sex, marital status and
family status.
10. On November 27, 1989 the Applicant filed her Complaint
again, on the standard forms required by the Commission,
naming as respondents: Employment and Immigration Canada
(CHRC File #W06978); Treasury Board of Canada (CHRC
File #W06974); Public Service Alliance of Canada (CHRC
File #W06977).
11. On October 3, 1990 the Applicant's Complaint was
amended to add sexual orientation as a ground of discrimina
tion.
12. By letter dated February 26, 1990, Bob Fagan a Human
Rights Officer of the Commission informed the Applicant's
counsel that the Applicant's Complaint would be held in abey
ance pending the release of the Federal Court of Appeal deci
sion in the case of Mossop v. Secretary of State and Treasury
Board, (1989) 10 C.H.R.R. D/6064 (Fed. Trib.); (1990) 12
C.H.R.R. D/355 (Fed. C.A.); leave to appeal to Supreme Court
of Canada granted January 25, 1991.
13. By letter dated March 7, 1990 counsel for the Applicant
objected to the Applicant's Complaint being held in abeyance.
14. By letter dated March 13, 1990 Paul Leroux the Director of
the Western Region of The Commission indicated that the
Commission staff had two choices, either holding on to the
Applicant's Complaint pending release of the Federal Court of
Appeal decision in the case of Mossop or sending the Appli
cant's Complaint to the Commissioners for consideration.
15. By letter dated March 19, 1990 counsel for the Applicant
objected to the Applicant's Complaint being held in abeyance,
explained that the outcome of Mossop would not necessarily
be determinative of the Applicant's claims because Brian Mos-
sop's claims and the Applicant's claims are completely differ
ent in important respects, and requested that the Applicant's
Complaint be presented to the Commissioners.
16. By letter dated June 4, 1990 counsel for the Applicant pro
vided an outline of legal arguments in support of the grounds
of discrimination relied upon by the Applicant in her Com
plaint, and requested that the Complaint proceed to a hearing
as soon as possible.
17-18. [The Federal Court of Appeal decision, unfavourable to
Mossop, was released on June 29/90, but on Oct.9/90 Leroux
wrote that the applicant's complaint would be in abeyance
pending the decision of the Supreme Court in Mossop.]
19. By letter dated October 22, 1990 counsel for the Applicant
objected to the Applicant's Complaint being held in abeyance,
on the basis that the Federal Court of Appeal decision in Mos-
sop dealt only with family status discrimination whereas the
Applicant's Complaint is based on three additional grounds of
discrimination not raised in Mossop, namely sex, sexual orien
tation and marital status.
20. In an investigation report dated November 28, 1990 Bob
Fagan and Paul Leroux recommended that the Applicant's
Complaint be stood down. The investigation report found that
there was no disagreement between the parties about the facts
which gave rise to the Complaint. By letter dated April 16,
1991 Paul Leroux confirmed that his recommendation to the
Commissioners would be to stand down the Applicant's Com
plaint.
21. On May 29, 1991 counsel for the Applicant made written
submissions to the Commissioners requesting the appointment
of a Tribunal, and objecting to the Applicant's Complaint
being held in abeyance. An outline of legal arguments in sup
port of the grounds of discrimination relied upon in the Appli
cant's Complaint was provided to the Commissioners.
22. By letter dated July 9, 1991 the Applicant was informed
that the Commissioners had decided to stand down the Appli
cant's Complaint pending the decision of the Supreme Court of
Canada in Mossop. There is no indication that the Commis
sioners considered the facts of the Applicant's Complaint and
the ground of discrimination relied upon, in the context of the
applicable law.
The Deputy Attorney General of Canada (hereinaf-
ter also: Dep. A.G.) denies the allegations asserted in
paragraph 22 above. His counsel recites in the Crown
respondents' motion record, at page 3, that:
The Commission has reviewed the investigation report of your
complaint ... as amended, alleging discrimination in employ
ment on the grounds of family status, marital status, sex and
sexual orientation. The Commission also reviewed the Submis
sion dated May 29, 1991, signed by Shona A. Moore [appli-
cant's counsel in the matter of the complaint to the CHRC].
The Commission has decided to stand down the complaint
pending the decision of the Supreme Court of Canada in Brian
Mossop against Secretary of State and Treasury Board. Fol
lowing the release of the decision, the case will be brought for
ward once more for the Commission's consideration.
The investigator will contact you soon to discuss the matter
further.
For those passages counsel cites a letter dated July 9,
1991, from Lucie Veillette, the secretary of the
CHRC, to the applicant, exhibit "T" annexed to Con-
nie Gauvin's affidavit sworn in Vancouver on
December 12, 1991, and tab W, page 000198 of the
applicant's motion record.
Furthermore, in regard to the applicant's paragraph
21, the author somewhat elides the import of some of
the letter's representations. For example (emphasis
not in original text) the letter of May 29, 1991, states
at its page 3 (motion's record page 000190):
The Complainant therefore submits that the Commission ought
to resolve to stand down the complaint in respect of family sta
tus pending the final outcome of Mossop ... [in the Supreme
Court, given this letter's date], but should immediately proceed
to hear the complaint on the grounds of marital status, sex and
sexual orientation.
Counsel for the Dep. A.G., in her statement of law
and argument, Part III of her motion record, (Crown
respondents) takes issue with the applicant's view,
writing at page 12 thereof:
24. Although it is not presently one of the enumerated grounds
in section 3 of the Act, the applicant seeks to have the merits of
her complaint considered by the Commission in relation to the
ground of "sexual orientation". The applicant also seeks to
have the merits of her complaint considered by the Commis
sion in relation to the grounds of "family status". ft is clear
from her complaint that she relies on sections 9 and 10 of the
Act and that the discriminatory practice complained of relates
the situation of two persons living in a homosexual relation
ship.
25. It is submitted that the issues raised by the applicant are
clearly issues that were dealt with by the Federal Court of
Appeal in the Mossop case and that the relevance of the ulti
mate determination in that matter to the present case is obvi
ous. Moreover, the relevance of the Mossop decision to the
applicant's particular circumstances was acknowledged by
counsel for the applicant in her correspondence of May 29,
1991. As noted above, this acknowledgment of relevance was
before the Commission when it determined to stand down the
applicant's complaint pending the decision of the Supreme
Court of Canada in Mossop.
Section 3 of the Canadian Hunan Rights Act,
R.S.C., 1985, c. H-6, as amended (hereinafter also:
the Act), runs thus:
3. (1) For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, family status,
disability and conviction for which a pardon has been granted
are prohibited grounds of discrimination.
(2) Where the ground of discrimination is pregnancy or
child-birth, the discrimination shall be deemed to be on the
ground of sex.
It is quite apparent that sexual orientation as the
applicant would relate it to her assertion of family
status is not a prohibited ground of discrimination
described as such in section 3, or elsewhere in the
Act. Although it is not for this Court to make a sub
stantive adjudication of the applicant's complaint,
this Court is required in these circumstances to scruti
nize and review the CHRC's conduct of this matter,
included in which is to observe why the CHRC acts
as it does.
It is quite apparent, or observable, without for
mally deciding, that the applicant's claim for dental
services rendered to her partner was not declined
because of sex. After all the dental care plan is, it
seems, available to both women and men equally, so
the fact of the applicant's being a woman is not the
basis for the alleged discrimination. Nor, it would
seem, but without deciding, is the applicant's marital
status the cause of the alleged discrimination.
According to the material filed on the applicant's
behalf, it appears that none of the respondents,
including the Great West Life Assurance Company,
has any regard whatever for whether she be single,
married, widowed, separated or divorced. The appli
cant is thwarted in her claim for dental coverage for
her partner because she asserts that their sexual orien
tation, while living together, vests them with the sta
tus of a family although they are, it seems, otherwise
unrelated. The applicant and her partner are not
"common-law spouses", for that concept bespeaks
disparity of gender in the relationship.
Despite the absence of sexual orientation, or
homosexuality in this instance, from the list of char
acteristics which are prohibited grounds of discrimi
nation in the Act, the applicant's counsel urges the
Court nevertheless to quash the CHRC's decision to
stay its proceedings in the applicant's case, and to
compel the Commission to get on with processing the
applicant's case. The applicant, through counsel, mis
construes the CHRC's lawful scope of action. The
CHRC is conducting itself more favourably for her
than the applicant seems to understand.
That Commission's choice, at this time, is not
between holding the applicant's case in abeyance, or
else getting on with it: the choice is rather between
holding it in abeyance, or else dismissing it out of
hand. Sexual orientation is not the basis of any pro
hibited ground of discrimination. That being so, the
Commission could hardly have been satisfied that
inquiry into this complaint is warranted pursuant to
subparagraphs 44(3)(a) (i) and (ii) [as am. by R.S.C.,
1985 (1st Supp.), c. 31, s. 64] since no prohibited
ground of discrimination is alleged. Indeed the matter
might well have been stopped at the earlier stage pre
scribed by paragraph 41(c) of the Act, as being
"beyond the jurisdiction of the Commission".
This situation is described by the majority judg
ment of the Supreme Court of Canada in Syndicat des
employes de production du Québec et de l'Acadie v.
Canada (Canadian Human Rights Commission) [the
S.E.P.Q.A. case], [1989] 2 S.C.R. 879, at pages 898-
899, delivered by Mr. Justice Sopinka, cited by the
applicant.
Section 36(3) [now subsection 44(3) of the Act] provides for
two alternative courses of action upon receipt of the report.
The Commission may either adopt the report "if it is satisfied"
that the complaint has been substantiated, or it may dismiss the
complaint if "it is satisfied that the complaint has not been sub
stantiated". If the report is adopted, I presume that it is
intended that a tribunal will be appointed under s. 39 unless the
complaint is resolved by settlement. I come to this conclusion
because otherwise there is no provision for any relief to the
complainant consequent on adoption of the report. This aspect
of the Commission's procedure has been clarified by amend
ments to the Act (S.C. 1985, c. 26, s. 69). The current version
of s. 36(3) is contained in s. 44(3) of the R.S.C., 1985, c. H-6
(as amended by c. 31 (1st Supp.), s. 64) and now provides that,
upon receipt of the report of the investigator, the Commission
may request the appointment of a tribunal if it is satisfied that,
having regard to all the circumstances, an inquiry into the
complaint is warranted.
The other course of action is to dismiss the complaint.
[Emphasis not in original text.]
Yes, presumably, a tribunal will be appointed if the
outcome of the Mossop case be sufficiently favour
able to the reading into the Act of "sexual orienta-
tion" as the basis of a prohibited ground of discrimi
nation for the CHRC to act on it; and, presumably, a
tribunal will not be appointed if the outcome of the
Mossop case be otherwise. There is nothing rationally
akin to the circumstances of R. v. Askov, [ 1990] 2
S.C.R. 1199, in the case here at bar.
Is the CHRC behaving unfairly toward the appli
cant in keeping her complaint alive when it might
have dismissed it? Hardly, for the Commission is not
obliged by statute to move with promptitude in pur
suing the first course of action mentioned by Sopinka
J. Indeed it is strikingly noticeable that in prescribing
those courses of action, Parliament in paragraph
44(3)(b) [as am. idem] provides that the Commission
"shall dismiss the complaint" in the described cir
cumstances, but in paragraph 44(3)(a) it provides that
the Commission "may request the President of the ..
Panel to appoint a ... Tribunal". This Court inter
prets those disparate provisions to mean that when,
for example, pursuant to paragraph 41(c), the CHRC
finds itself to be without jurisdiction, it shall dismiss
the complaint sur-le-champ, and it cannot by law do
otherwise. However, when the CHRC finds that the
complaint is warranted or justified it may request the
appointment of a tribunal, "in accordance with sec
tion 49 [as am. idem, s. 66]", which authorizes that
CHRC "at any stage after the filing of a complaint [to
make that] request ..." [underlining added]. In the
words of Sopinka J. in the S.E.P.Q.A. case, one can
"presume ... that a tribunal will be appointed", but
not necessarily instanter, for the expression "may, at
any stage" in subsection 49(1) appears to clothe the
CHRC with a discretion to decide when (hut always
within good reason) the appointment, of a tribunal
will in fact be requested. The alternative, as the
learned Judge held for the majority in S.E.P.Q.A., "is
to dismiss the complaint". One cannot discern any
unfairness to the applicant on the CHRC's part at all.
One would think that rather than "bite" the hand
which keeps her complaint alive, the applicant would
(to mix a canine metaphor) let sleeping dogs lie.
The foregoing is not the approach of the applicant,
through her counsel's submissions. In fairness to the
applicant, it is not unreasonable to recite pertinent
passages from her motion record's statement of fact
and law. The Court does not necessarily rebuke, but
merely notes the polemical quality of the submis
sions, which certainly makes the author's point of
view unmistakable. Beginning at page 000203:
30. It is submitted that gender is the meaning of being a
woman or a man in a given society and that sexuality is one of
the significant social dimensions of gender.
31. Heterosexuality is the traditional sexual orientation or iden
tity in the social context of gender inequality. Traditional gen
der role requirements for women accordingly include being
socially submissive to and sexually available to men only.
Homosexuality, lesbian existence in particular, challenges het
erosexuality as a particular institution as well as the gendered
and unequal social roles of which it is a part.
32. Discrimination on the basis of lesbian sexual orientation or
identity is discrimination on the basis of sex. In the simplest
sense, any time a lesbian or gay man is discriminated against
because of homosexuality, she or he is discriminated against
because of gender: but for their sex, or the sex of their sexual
preference or partner, they would not be so treated. In the
deeper sense, a lesbian sexual orientation or identity in particu
lar challenges an institution of gender—heterosexuality—that
in some of its norms and practices serves as a major vehicle
for the inequality of women to men. To deprive lesbians or gay
men or both of rights and opportunities by law because they
violate the norms of sex inequality is to enforce sex inequality
by law, in violation of section 15 of the Charter.
33. Not only is discrimination on the basis of lesbian sexual
orientation or identity sex discrimination, there is some author
ity that it is an analogous and prohibited ground of discrimina
tion pursuant to s. 15 of the Charter.
Knodel v. AGBC (August 30, 1991), unreported, B.C.S.C.,
Vancouver Registry No. A893414
Haig and Birch v. The Queen (1992) 5 O.R. (3d) 245
Veysey v. Correctional Service of Canada (1989) 29 F.T.R.
74 (F.C.T.D.)
Veysey v. Correctional Service of Canada (1990) 109 N.R.
300 (F.C.A.)
34. In this respect, the absence of sexual orientation from the
list of proscribed grounds in s. 3 of the Canadian Human
Rights Act, which legally legitimates discrimination against
lesbians, is inconsistent with s. 15 of the Charter.
Haig and Birch v. The Queen (1992) 5 O.R. (3d) 245
35. Further, it is submitted that the denial of dental benefits to
the Applicant's partner, based as it was on a restrictive defini-
tion of spouse, constitutes discrimination on the basis of mari
tal status.
Schapp. v. Canada (Canadian Armed Forces) (1990) 12
C.H.R.R. D/451 (F.C.A.)
36. With respect to the ground of family status, the Applicant
submits that it is discrimination based on the ground of family
status to make entitlement to benefits such as dental care con
ditional on conformity with a narrow and increasingly anach
ronistic conception of family. This unfairly favours employees
in heterosexual relationships and penalizes employees in les
bian relationships. It also penalizes the children of lesbian par
ents.
37. An administrative tribunal which has been given the power
to interpret law holds a concomitant power to determine
whether that law is constitutionally valid.
Cuddy Chicks v. Ontario (Labour Relations Board) (1991),
81 D.L.R. (4th) 121 (S.C.C.)
38. Underinclusive legislation may be extended, pursuant to s.
24 of the Charter, where it is appropriate and just to do so and
where the positive right to equality ought to be guaranteed by a
positive remedy.
Schachter v. Canada (1990), 66 D.L.R. (4th) 635 (Fed.
C.A.)
The Knodel [Knodel v. British Columbia (Medical
Services Commission), [1991] 6 W.W.R. 728
(B.C.S.C.)] decision, referred to in the above recited
passages was considered and analyzed, and ulti
mately rejected by Mr. Justice Martin, of this Court
in Egan v. Canada, [ 1992] 1 F.C. 687 (T.D.). He con
cluded [at page 705], as does this present Court, and
for the same reasons, that the exclusion from spousal
benefits of the chosen lifestyle of homosexual
couples, "does not infringe the plaintiffs' subsection
15(1) [Charter] rights on the basis of either their sex
or their sexual orientation".
It may be wondered why this Court is considering
what was decided in Knodel and in Egan, when those
considerations in these circumstances are more ger
mane to the CHRC's or to a tribunal's deliberations.
The Court is, in fact, asked to extend the scope of
what the applicant considers to be under-inclusive
legislation, by finding that, despite the absence of
sexual orientation from section 3 of the Act, the
Commission must be compelled to request the
appointment of a tribunal right now, even if it be
beyond its jurisdiction to do so in these circum
stances. The applicant's counsel, at the hearing indi
cated:
... the extent to which tribunals and indeed courts ... can, if
you like, repair under-inclusive legislation so as to bring it into
line with the Charter, to exercise what is in the United States
jurisprudence to grant what is known as a remedy of extension,
remains a somewhat open one.
The decision of the Supreme Court in Schachter ... is a case
concerning the under-inclusiveness of unemployment insur
ance benefits will be important on this question. It has that
very issue, the question of the power to extend. [Transcript,
pages 39 and 40.]
In Schachter it was recognized that under-inclusive legisla
tion may be extended by a Court, pursuant to Section 24,
where it's appropriate and just to do so.
If this case were to go to a tribunal, ... counsel for the
Applicant would have available, and would want to pursue, a
number of different arguments concerning the interaction
between the Charter and Human Rights legislation, and one
might be to the effect that if the tribunal has the power to rec
ognize and declare that its legislation is under-inclusive by not
expressly including the ground sexual orientation but does not
have the power to write in the ground it might nonetheless be
arguable that the tribunal has the power to and, indeed, as a
matter of statutory interpretation, the duty to extend or give the
equal benefit of the grounds that do appear in the Act to per
sons who are gay and lesbian. [Transcript, pages 41 and 42.]
These are questions about how best to ensure that if the
human rights of women and minorities are guarded within the
context of a democratic framework in which a high value is
placed upon decisions made by a majority.
I would submit that the question that was concerned, a Com
mission, however, is there some ambiguity about how this
question will be resolved ultimately by the Supreme Court of
Canada because it's clear that Charter jurisprudence and
Human Rights jurisprudence are in a very active state of evolu
tion and have been for the past ten years and will continue to
be for quite some time. [Emphasis not in text.] [Transcript,
page 43.]
This truly fascinating dialogue (for that is what it
was) with counsel would not be very relevant to the
matters in issue, if it were not for two considerations.
The first is that despite her concise and competent
advocacy, counsel did not persuade this Court that
the CHRC's duty is to send the applicant's doubtful
complaint to a tribunal without delay. The second is,
as mentioned, that counsel really urges the Court to
compel the CHRC to request a tribunal to enquire
into a complaint involving sexual orientation where
that matter is not mentioned in the Act. That course
of judicial conduct would really amount to the
Court's legislating, instead of Parliament. It may be
that the Act is under-inclusive, but it does not appear
that Parliament so considered it to be.
The reality of a democratic society bespeaks rule
by the people, and that, where the population is large
and the territory extensive, means rule by the major
ity of the people's elected representatives. For an
unelected judge to add what Parliament declined to
include in legislation is redolent of anti-majoritarian,
anti-democratic legislating. It is at least notionally
otherwise in declaring already adopted legislation to
be contrary to the constitutional values and impera
tives which were put in place initially by the Parlia
mentary legislators. It is well to remember the words
of Lamer J. (now C.J.C.) writing for the majority
(within a unanimous panel, in the result) of the
Supreme Court of Canada in Re B.C. Motor Vehicle
Act, [1985] 2 S.C.R. 486, at page 497:
It ought not to be forgotten that the historic decision to
entrench the Charter in our Constitution was taken not by the
courts but by the elected representatives of the people of
Canada. It was those representatives who extended the scope
of constitutional adjudication and entrusted the courts with this
new and onerous responsibility. Adjudication under the Char
ter must be approached free of any lingering doubts as to its
legitimacy.
To decide that policy-based legislation "invented"
and enacted by Parliament conflicts with constitu
tional values and imperatives is a legitimate posture
for the Court; but for the Court itself to invent the
legislation which has not been adopted by Parliament
in order to fulfil policy ends urged by litigants, in an
attempt presumably to satisfy constitutional values
and imperatives, is not a legitimate posture for the
Court. It circumvents the legislative branch, not only
by usurping the policy choice of what to include in
legislation, but also by effectively denying the legis
lative choice to re-configure or repeal any new con
stitutionally inclusive laws so made by an unelected
judicature, as if by command of the Constitution.
That would be simply the abolition of majority rule
and the legislature.
Society should be governed by laws, not merely
judges. It is a well-known fact, of which the Court
takes notice, that Canadian society is deeply riven
over the question of homosexual behaviour, the
course and direction of the applicant's sexual orienta
tion. Firmly held attitudes of some consider such sex
ual orientation to be a sinful abomination and an irre
deemable perversity, while to others' attitudes it is
morally neutral and normal. To some, it should not be
accorded recognition or status by law because that
seems to legitimate a foul example for the impres
sionable young: it is still regarded as one of the
obscene seeds of social decadence, even although
decriminalized only about two decades ago. To
others, such sexual orientation liberates expression of
sexual preference, if not immutable proclivity; and
homosexuals' unions have the same social status for
legal protection as do heterosexuals' unions, in effect,
normal basic family units of society. To most, Parlia
ment was right to decriminalize homosexual beha
viour, but to some it would be wrong to give it equal
place with heterosexual behaviour; while to others, it
already has equal status in nature and among humans
and ought so to be recognized in law.
Simply to recite these notorious facts is to demon
strate that this is an issue for which it would be
highly inappropriate for the courts to purport to legis
late. The Court cannot properly act as a peripatetic
pollster. Any posture of law clearly must be main
tained or adopted by the legislature, (not the judica
ture) according to the democratic imperatives of the
Constitution. In regard to the imperatives of
majoritarian democracy, the applicant's plight is con
stitutionally quite akin to that of the plaintiff in
O'Sullivan v. Canada, [1992] 1 F.C. 522 (T.D.), as
illustrated at pages 539-540 and 544-548. No doubt a
modicum of judicial activism has a place in this
country's society under the rule of law. However,
when it comes to fuelling that activism by minting
new, highly controversial rights, even by analogy to
existing rights, the Court obviously ought not to be
seduced into burning the fuel of legislative usurpa
tion. The appropriate legislative authority to resolve
the controversy is the democratically elected compo
nent of the legislature in this country of universal
adult suffrage. Indeed within the adversarial system
of jurisprudence, lines of opinion on the litigants'
parts tend always to harden. The seemingly "last
resort" which is litigation runs entirely counter to
civil discourse with its sources of non-courtroom
rhetoric enabling a free and democratic society to
enjoy the prospect of evolutionary change. So often
in this century, impatience to circumvent the pace of
democratically elected legislatures has led only to
tyranny and violence, not the rule of law.
At this time the fat of courtroom rhetoric is in the
Supreme Court's fire. Being constitutionally
supreme, it may, in its wisdom, choose to legislate on
sexual orientation or not. Until the Supreme Court's
judgment be known, this judge prefers to leave the
legislating to the legislature, Parliament.
Accordingly, the Court in these claims for discre
tionary relief will neither quash the CHRC's deci
sion, nor command it to get on with the applicant's
case, as if "sexual orientation", or "family status"
founded on the particular homosexual orientation of
the applicant and her partner, had been emplaced by
Parliament in the Act. Still applicable are the princi
ples of mandamus enunciated by this Court's Appeal
Division in O'Grady v. Whyte, [1983] 1 F.C. 719.
The application on all of its expressed bases will be
dismissed with party-and-party costs in favour of the
Crown respondents only, if any or both of them seek
costs.
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