Ipsofactoj.com: International Cases [2003] Part 6 Case 15 [SCC]


SUPREME COURT OF CANADA

Coram

Mr. B

- vs -

Ontario Human Rights

Commission

McLACHLIN CJ

ARBOUR J

BASTARACHE J

BINNIE J

GONTHIER J

IACOBUCCI J

L'HEUREUS-DUBÉ J

LEBEL J

MAJOR J

31 OCTOBER 2002


Judgment

McLachlin CJ & Gonthier J

  1. We do not disagree in the result, given the findings of the Board below ((1996), 30 C.H.R.R. D/246). This said, we would reserve for another day the more general question of the precise meaning of discrimination on the basis of "family status".

    Iacobucci & Bastarache JJ

    I. INTRODUCTION

  2. This appeal deals with the scope of two grounds of discrimination, namely "marital status" and "family status", in the context of the Ontario Human Rights Code, R.S.O. 1990, c.H. 19 (the "Code"). The essence of the dispute centres on whether those grounds are broad enough to encompass a situation where an adverse distinction is drawn based on the particular identity of a complainant's spouse or family member, or whether the grounds are restricted to distinctions based on the mere fact that the complainant has a certain type of marital or family status.

  3. The respondent in this appeal was dismissed from his employment because of the particular identity of his wife and daughter. He argued that this adverse action amounted to discrimination on the basis of marital and family status, contending that the broader interpretation of these terms ought to be preferred.

  4. We accept the respondent's argument on the basis that adopting a broad meaning of "marital status" and "family status" is supported by the words of the statute, the applicable principles of interpretation, and the weight of existing discrimination jurisprudence. Most importantly, we find that the broad goal of anti-discrimination statutes, namely, preventing the drawing of negative distinctions based on irrelevant personal characteristics, is furthered by embracing the more inclusive interpretation of the grounds in question. As a result, for the reasons that follow, we would dismiss the appeal.

    II. FACTS

  5. The respondent, Mr. A, was fired in September of 1990 from the appellant D Ltd., a firm owned by two brothers, Mr. C, who is the president, and Mr. B who is vice-president and manager. Messrs. B and C were brothers to Mrs. A and uncles to the daughter of Mr. and Mrs. A. At the time of his termination, Mr. A was 56 years old, had worked for 26 years with the appellant company, and was four years away from retiring on full pension. Although Mr. B was Mr. A's supervisor, most of Mr. A's work was done outside the office and he rarely saw Mr. B during the work day.

  6. The background to the termination relates to an accusation by Mr. A's daughter that she was sexually molested as a young child by her uncle Mr. B. She had been in therapy for some time and could recall incidents of sexual abuse, but not the identity of her abuser. Sometime in September of 1990, she identified Mr. B as the abuser. On September 14, 1990, on the advice of her therapist, Mr. and Mrs. A, their daughter and a friend went to Mr. B's house to confront him with the allegation. Mr. A stayed in the car and was not involved in the heated exchange at Mr.'s B front door. Later that evening, Mr. B called the A's home and then appeared at the front door. Mr. A refused to let Mr. B into the house and he left without incident.

  7. On the following Monday, Mr. A reported to work as usual. He had just received his first work order of the day and was having a cup of coffee when Mr. B walked over to him, took the work order out of his hand and told him that he was "not going anywhere". Mr. B asked Mr. A to come to his office and said "you are not working and I want to see you upstairs in my office". Mr. A refused, walked away from Mr. B, and phoned his spouse to pick him up. When Mrs. A arrived, the two went up to Mr. B's office whereupon Mr. B began shouting to Mr. A about his daughter and her accusations, ultimately telling him that he was terminated.

  8. On April 21, 1991, Mr. A complained to the Ontario Human Rights Commission that his termination constituted employment discrimination on the ground of "family status". The complaint was eventually amended to add the ground of "marital status". The Ontario Board of Inquiry found that the dismissal amounted to discrimination on the basis of marital and family status. The Board found Mr. B and Mr. C, as well as the company D Ltd., liable.

  9. On appeal, the Ontario Divisional Court found that the Board of Inquiry erred in its finding that the father had been discriminated against on the basis of marital and family status. The Court of Appeal allowed the appeal, set aside the decision of the Divisional Court and remitted the matter to the Board of Inquiry to determine the outstanding issue of remedy.

    III. RELEVANT STATUTORY PROVISIONS

  10. Human Rights Code, R.S.O. 1990, c. H-19

    5.

    (1)

    Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

    10.

    (1)

    In Part I and in this Part,
    ....

    "family status" means the status of being in a parent and child relationship;

    ....
    "marital status" means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage;

    IV. JUDICIAL HISTORY

    A. Board of Inquiry (Human Rights Code) (1996), 30 C.H.R.R. D/246 (L. Mikus)

  11. The Board concluded that the sole reason for Mr. A's termination was the fact that his daughter had made allegations of sexual abuse against her uncle Mr. B. While acknowledging Mr. B's concerns about the future loyalty of Mr. A as being understandable in the circumstances, the Board found that the evidence disclosed no valid basis for these concerns at the time of termination because Mr. A had not said anything to Mr. B about the allegations nor had he indicated whether he accepted his daughter's version of the events.

  12. On the contrary, the Board found, at para. 17, that Mr. A had "compartmentalized" his personal and employment situations. Although recognizing that over time these two situations may have proven incompatible, the decision to terminate Mr. A was based on an inability or refusal to distinguish between Mr. A and his daughter's allegations, as well as an automatic assumption that Mr. A's spouse was speaking for him because she was his spouse. The appellants did not wait long enough to see whether this was a genuine concern. The Board held that Mr. A was entitled to be treated not merely as the spouse of his employer's sister or as the father of his daughter but rather to be assessed on his own merit. As a result, Mr. B's conclusion of presumptive incompatibility was unfounded and premature at the time the decision was made to terminate Mr. A.

  13. With respect to whether or not a dismissal in these circumstances amounted to discrimination based on family or marital status, the Board held that this Court's decision in Brossard (Town) v Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, stood for the proposition that the relative as opposed to absolute family status of an individual (in that case immediate family members of full-time employees and town councillors) could ground a discrimination claim based on "civil status". This caused the Board to conclude that a family association with a particular individual could form the basis for discrimination on the basis of marital and family status, and therefore that Mr. A was discriminated against on these grounds.

  14. In addition to finding Mr. B liable for the dismissal, the Board concluded that the company D Ltd., as well as Mr. C, who was owner and president of the company, were also liable.

  15. In accordance with the joint request of the parties, the adjudicator did not impose a remedy and instead allowed the parties to agree on the appropriate remedy themselves, giving them 90 days to reach an agreement.

    B. Ontario Divisional Court (1999), 40 C.C.E.L. (2nd) 177

    (1) Dunnet J. (Lane J. concurring)

  16. Dunnet J. found that the Board of Inquiry erred in finding that the respondent had been discriminated against on the basis of marital and family status when he was dismissed from his employment.

  17. She found that no overriding error existed that would justify overturning the Board's findings of fact, acknowledging that there was evidence from which the Board could properly conclude that Mr. A was dismissed because of the actions of his wife and daughter. She agreed that the dismissal was not for cause since it was unrelated to Mr. A's ability or willingness to perform his work and that there was no reasonable explanation provided by the employers to dispel the impression that Mr. A was dismissed solely because of the allegations made by his daughter.

  18. Nevertheless, Dunnet J. held that a finding of discrimination was a matter of law, subject to a standard of correctness. On this issue, she did not agree with the Board that the dismissal amounted to discrimination.

  19. Dunnet J. based her analysis on the assumption that prohibited discrimination is almost exclusively attributed to association with a group. She considered the jurisprudence under s. 15 of the Canadian Charter of Rights and Freedoms and observed that the groups enumerated or found to be analogous under s. 15 were those that had been historically disadvantaged and subject to personal and systemic discrimination. Therefore, only discrimination based on group membership was prohibited and what that discrimination consisted of was the attribution of stereotypical characteristics to members of enumerated or analogous groups.

  20. She found that Mr. A was beyond the protected scope of anti-discrimination measures for two reasons. First, because Mr. A's unfair treatment was based on personal animosity, not the stereotypical assumption that all family members think and act alike, and second, because families have not traditionally been a disadvantaged group.

  21. In the opinion of Dunnet J., in order to find discrimination based on marital or family status, the only relevant consideration was the fact of being married, single or a parent, rather than the particular identity of one's spouse, child or parent. Dunnet J. relied on Brossard, supra, and Cashin v Canadian Broadcasting Corp., [1988] 3 F.C. 494 (C.A.), to support her position. She found that the Board had wrongly relied on Brossard and distinguished that case on the basis that anti-nepotism hiring policies, by definition, create a group category. She said, at p. 194, "[t]here is a difference between not hiring anyone related to an individual within the company, and dismissing a relative whose daughter has made a serious allegation against a vice-president of the company".

  22. Since Mr. A could not be said to be a member of any disadvantaged group, the employers' appeal from the decision of the Board of Inquiry was allowed.

    (2) Spence J. (concurring)

  23. Spence J. was of the view that Brossard did not so narrowly define family or marital status so as to exclude the identity of a family member. The plain meaning of "marital status" or "family status" was not to be determined without reference to its context, which is a statute prohibiting discrimination. Discrimination based on marriage to an employee does not cease to be discrimination based on marital status merely because it was directed only towards certain specific marital circumstances. In his view, marital status discrimination included discrimination based on status in relation to a class of spouse.

  24. However, Spence J. held that the Code, while it was remedial, should be interpreted in a way directed to remedying social problems which typically affect groups of people. It should be possible to identify the group characteristic possessed by the complainant which has led to the discriminatory treatment or else the anti-group element of discrimination is missing. In his view, the finding of a group characteristic ensures that conduct which is merely "a matter of personal antagonism" (p. 182) is not confused with discriminatory conduct.

  25. Spence J. considered the possibility of characterizing the group to which Mr. A belonged as a marital group in which the other spouse is a person unacceptable to the complainant's employer, i.e., is a "disqualifying spouse" (p. 183). However, he rejected this possibility for the following reasons, at p.185:

    If A were discriminated against on the basis of, for example, his membership in a particular race, it could be said that A is a member of the group consisting of all the members of that race. Similarly, in the case of a prohibition against the hiring of the spouse of employee [sic], a complainant spouse could be said to be a member of the group of all spouses of existing employees. However, if A in the present case was treated adversely because he is the father and the husband respectively of the two accusers of B, it cannot be said that A is a member of a group consisting of all persons who are the father and the husband of the two accusers of B. A is the only person who has this characteristic. A is the only person who could have this characteristic.

    The argument in favour of A seeks to avoid this problem by characterizing the reason for A's adverse treatment more generally: i.e. that he is married to a disqualifying person. Many people might be members of the group who are married to persons who, in their respective situations, are disqualifying persons. However, because the question whether the person is disqualified depends on such circumstances, this grouping seems to be excessively general and therefore inappropriate. It is not sufficient to say that A was the father and husband of disqualifying persons. That just begs the question "why are they disqualifying persons"? When that question is answered, we are back to A, the father and the husband of the two accusers of B. The group disappears.

  26. Spence J. concluded that there was no discrimination since the adverse conduct directed at Mr. A flowed not from his membership in a group, but from the personal animosity he attracted because he was the husband and father of his employer's accusers. As a result, he concurred with Dunnet J. that the appeal should be allowed.

    C. Ontario Court of Appeal (2000), 50 O.R. (3d) 737

  27. Abella J.A. for the Court, saw the issue as being whether the grounds of marital and family status included the identity of a particular spouse or family member. She concluded that the concept of marital and family status necessarily included not only the general status of having (or not having) a spouse or family, but also the identity of a particular marital partner or family member, since limiting the interpretive scope of marital and family status would deprive these categories of their full remedial capacity.

  28. In coming to this conclusion, Abella J.A. held that Brossard, supra, stood squarely for the proposition that, in determining whether discrimination based on marital or family status has taken place, the inquiry encompasses the particular identity of a spouse or family member. She observed further that several tribunal cases had applied Brossard in that manner, and noted that Cashin, supra, which appeared to stand for a contrary position, was decided before Brossard.

  29. Based on the above, Abella J.A. held that the conduct of the employer in firing Mr. A constituted discrimination. She found that the Divisional Court had erred when it focussed almost exclusively on whether the father/employee was a member of a disadvantaged group. In her view, discrimination was not only about groups, it was also about individuals who are arbitrarily disadvantaged for reasons having largely to do with attributed stereotypes, regardless of their actual merit. The issue in the present case, she commented, "is not whether the employee/father belongs to a disadvantaged group, but whether he was arbitrarily disadvantaged based on a ground or grounds enumerated in s. 5(1) of the Code" (para. 49).

  30. Abella J.A. also disagreed with the Divisional Court's acceptance of the employer's submission that the dismissal was the result of personal animosity, not discrimination. After discussing Janzen v Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, she concluded, at para. 52:

    It was not merely the employer's personal animosity that resulted in the dismissal, it was animosity based on the identity and conduct of the employee's spouse and daughter. Marital and family status, therefore, are clearly engaged .... and engaged in a way that resulted in discrimination to the father.

  31. In the view of Abella J.A., at para. 54, discrimination on the basis of marital status "may be defined as practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic relating to their marriage (or non-marriage) or family". She went on to note that Janzen was decided after Brossard and, therefore, even if one were inclined to the view that Brossard should be narrowly construed, these narrower parameters have been overcome by the wider breadth of the Janzen analysis.

  32. Abella J.A. concluded that Mr. A's dismissal, which clearly disadvantaged him, was based on his presumed inability, as husband and father, to be a good employee given the accusations made by his wife and daughter, rather than on his actual merit or conduct. The dismissal related to prohibited grounds under s. 5(1) of the Code: marital and family status and therefore constituted discrimination.

  33. As a result, Abella J.A. allowed the appeal and remitted the matter to the Board of Inquiry to determine the remedy.

    V. ISSUES

  34. The issues:

    1. What is the meaning of "marital status" and "family status", as those phrases are used in the Ontario Human Rights Code? In particular, can the phrases be read so broadly as to include the specific identity of one's spouse or child?

    2. Did the Court of Appeal err in concluding that "discrimination" within the meaning of the Ontario Human Rights Code had been established?

    VI. ANALYSIS

  35. We find it useful to discuss first, the statutory context of the appeal, then the applicable jurisprudence, and finally, the application of the legal principles to the facts of this case.

    A. The Statutory Context of the Appeal

  36. In our view, when the terms "marital status" and "family status" are read in the context of the provisions in which they appear, as well as the broader context of the Code as a whole, it is clear that these terms encompass discrimination claims based on the particular identity of a complainant's child or spouse. Although this view is based primarily on the wording of the provisions in question, it is further supported by the principles of interpretation applicable to human rights statutes.

  37. The appellants argued that the definitions of "family status" and "marital status" imply a legislative intent to restrict these grounds to complaints based on a person's "absolute status", i.e. the mere fact of being married, single, etc. or the fact of being in a certain type of family, and do not extend to complaints based on the particular identity of family members. This argument is based on the use of the word "status" in the definitions of these two terms found in s. 10(1) of the Code. These definitions are as follows:

    "family status" means the status of being in a parent and child relationship;
    ....

    "Marital status" means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage....

    The appellants submit that the word "status" implies membership in a class or group of persons and thus that these definitions do not encompass the particular identity of a spouse or child. In the hearing before this Court, counsel for the appellants referred to s. 11(1) of the Code to illustrate his point. Section 11(1) reads:

    A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where....

    The argument made here is that constructive discrimination applies to groups.

  38. We agree that the term "status" implies membership in a class or group; however, it does not necessarily follow that these definitions operate to exclude discrimination claims based on particular identity. In fact, s. 11(1) itself distinguishes between grounds of discrimination, where the action complained of is explicitly directed at a person who falls within the class of persons enumerated in the grounds, and groups, where the action complained of has the effect of discriminating against the class of persons, or group, enumerated in the Code. This distinction suggests that it would be improper to merge the two in interpreting s. 5(1). To abandon grounds in order to protect groups exclusively would require the creation of artificial sub-groups so as to make the Code effective. In other words, in order to fall within the scope of s. 5(1), the complainant would have to demonstrate not only that he or she falls within the class of persons enumerated in the grounds, but also that he or she belongs to an identifiable sub-group or class included within them. To interpret the definitions so as to include such a condition would be to read in a requirement that is simply not there on its face.

  39. The fact that the word "status" does not restrict the statute in the manner proposed by the appellants is clear from the way the term has been qualified in the case law, and in the submissions of the parties. The very issue in this appeal has been characterized as whether s. 5(1) of the Code includes complaints based on "relative status" as opposed to "absolute status". The essence of the appellants' argument is that the ordinary meaning of the word "status" refers to an absolute condition; the inclusion of relative status within the scope of the definition would require the addition of a qualification. We cannot agree. The word "status" is equally capable of encompassing both the absolute definition and the relative definition. Moreover, the terms "marital status" and "family status" are in themselves relative. That is, they require the existence or absence of a relationship with another person. To restrict its meaning to the absolute would ignore the very condition that brings the status into being in the first place.

  40. Turning to the substantive provision in question, the discrimination claim in this case is based on s. 5(1) of the Code which read as follows:

    5.

    (1)

    Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

    By using the words "every person" the statute is clearly aimed at protecting individuals as opposed to groups against discrimination. Although it is equally clear that, in order to come under the protection of s. 5(1), the discrimination must be based on one of the listed grounds, this does not mean that the discriminatory action must be directed against an identifiable group subsumed within the enumerated ground. Nor does it mean that the action complained of must result from the stereotypical application of an attributed group characteristic. Such requirements are simply not found in the wording of s. 5(1). Thus, on its face, the provision appears to encompass complaints based on the particular identity of a family member based on either the "marital status" or "family status" grounds.

  41. We find further support for this view in the wording of s. 24(1)(d) of the Code which provides as follows:

    24.

    (1)

    The right under section 5 to equal treatment with respect to employment is not infringed where,
    ....

    (d)

    an employer grants or withholds employment or advancement in employment to a person who is the spouse, child or parent of the employer or an employee.

    This section of the Code provides a defence for employers who discriminate on the basis of relative marital or family status in certain circumstances, i.e., where an employer has a nepotism or anti-nepotism policy. The existence of this definition indicates not only that the terms "marital status" and "family status" are capable of encompassing situations based on relative status, but further, by carving out this particular exception, the section suggests a legislative intention to otherwise include both absolute status and relative status complaints within the ambit of s. 5(1).

  42. The appellants argued that provincial statutes dealing with the same subject matter should be read harmoniously, and cited the definition of "marital status" from the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 2(1)(i.01), where the term "marital status" is defined as follows:

    (i.01)

    "marital status" means the state of being engaged to be married, married, single, separated, divorced, widowed or living in a common-law relationship, but discrimination on the basis of a relationship with a particular person is not discrimination on the basis of marital status.

    Although we agree that statutory language from other jurisdictions may aid in the interpretation process, this does not mean that words used by one legislature in defining a term should be imported into the definition of that term in another jurisdiction where the legislature has not included such words. On the contrary, the express exclusion of particular identity in the Saskatchewan Code and the absence of that exclusion in the Ontario Code lends itself more easily to the conclusion that the broader meaning of status was, in fact, intended in Ontario. At the very least, the definition in the Saskatchewan Code indicates that the term "marital status" is capable of including the particular identity of a spouse when not expressly excluded.

  43. It is not only specific provisions of the Code which indicate that the terms "marital status" and "family status" are meant to extend to the particular identity of family members; the preamble to the Code also supports this interpretation:

    WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

    AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

    AND WHEREAS these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario; 

    [Emphasis added]

    The preamble, like s. 5(1), focusses on individuals as opposed to groups, further supporting our preferred interpretation of the terms "marital status" and "family status".

  44. In reference to this very preamble, McIntyre J., in Ontario Human Rights Commission v Simpson Sears Ltd., [1985] 2 S.C.R. 536, said at pp. 546-47:

    There we find enunciated the broad policy of the Code and it is this policy which should have effect. It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment (see Lamer J. in Insurance Corporation of British Columbia v Heerspink, [1982] 2 S.C.R. 145, at pp. 157-58), and give to it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary--and it is for the courts to seek out its purpose and give it effect.

    [Emphasis added]

    More generally, this Court has repeatedly reiterated the view that human rights legislation has a unique quasi-constitutional nature and ought to be interpreted in a liberal and purposive manner in order to advance the broad policy considerations underlying it: see, for example, Gould v Yukon Order of Pioneers, [1996] 1 S.C.R. 571, at para. 119; University of British Columbia v Berg, [1993] 2 S.C.R. 353, at p. 370; Robichaud v Canada (Treasury Board), [1987] 2 S.C.R. 84, at pp. 89-90; Insurance Corporation of British Columbia v Heerspink, [1982] 2 S.C.R. 145, at pp. 157-58.

  45. Based on the preamble to the Code as well as s. 5(1) itself, the provision in question is aimed at preventing discrimination against individuals on the basis of the listed grounds. An interpretation of the terms "marital status" and "family status" which supports this broad goal is one which includes discrimination based on the particular identity of a spouse or family member. Thus, in accordance with the applicable principles of interpretation, this is the interpretation which should be adopted.

    B. Discrimination Jurisprudence

  46. In common with all federal and provincial human rights legislation and with the equality guarantee in the Charter, the primary purpose of the Ontario Code is to eradicate discrimination on the basis of enumerated and (in the case of the Charter) analogous grounds. We have concluded that the words of the Code support the view that the enumerated grounds of marital and family status are broad enough to encompass circumstances where the discrimination results from the particular identity of the complainant's spouse or family member. Although the jurisprudence on the scope of marital status in the context of human rights legislation is uneven at best, the weight of judicial consideration also favours an approach that focuses on the harm suffered by the individual, regardless of whether that individual fits neatly into an identifiable category of persons similarly affected.

  47. Much was made at the hearing about groups and the apparent requirement that the impugned conduct must, at least potentially, affect an identifiable sub-group within the enumerated ground in order to make out a claim of discrimination. As earlier discussed, we find this approach to be in error. While a category of persons is often identifiable given the existence of historically disadvantaged groups in Canadian society, it is not a necessary requirement to a finding of discrimination.

  48. The appellants rely on the decision of MacGuigan J.A. in Cashin, supra, wherein he held that in order to found a claim on the basis of "marital status" there must be an identifiable "group" to which the claimant belongs. In that case, the employer CBC refused to renew the complainant's contract upon her marriage to Mr. Cashin, a prominent public figure in Newfoundland who had recently been appointed to the Board of Directors of Petro-Canada. Finding no discrimination on the basis of the complainant's marriage to Mr. Cashin in particular, MacGuigan J.A. held, at p.506:

    In fine, what the Act discourages is discrimination against an individual, not in his/her individuality, but as group cypher, identified by a group characteristic. Consequently, the identity of a particular spouse cannot be included in the notion of marital status because it is a purely individual rather than a group aspect of life.

    Nevertheless, the Federal Court of Appeal found that the complainant was not renewed because she had adopted her husband's surname and that this amounted to discrimination on the basis of "marital status". In reaching this conclusion, MacGuigan J.A. identified the sub-group against whom the discrimination was directed and to which the complainant belonged, at p.508:

    It became apparent at the hearing before the adjudicator that there is no written policy established by the [CBC] relating to the spouses of employees, but it is clear from the testimony of Donna Logan [Program Director for CBC] that the policy that was thought to exist adversely differentiated against married women who had adopted their husbands' surnames. In my view this is discrimination based on a primary incident of marital status. It is discrimination under the aspect of group rather than of individual. Such adverse differentiation tending to affect employment opportunities thus exactly constitutes a prima facie discrimination practice ....

  49. Following on the heels of Cashin, this Court released Brossard, supra, a case dealing with a similar kind of complaint pursuant to the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12. In that case, the town of Brossard adopted a hiring policy that disqualified members of the immediate families of full-time employees and town councillors from taking up employment with the town. The complainant's application for summer employment with the town as a lifeguard was not considered because her mother worked as a full-time typist at the municipal police station. In response to the daughter's complaint, the Commission des droits de la personne stated that the complainant had been wronged and recommended that she be immediately granted the position for which she applied. The town then sought a declaration that the hiring policy did not constitute wrongful discrimination under s. 10 of the Quebec Charter.

  50. After concluding that "civil status" within the meaning of s. 10 of the Quebec Charter includes both filial and marital status, Beetz J. went on to consider whether "relative status", in the sense of the particular identity of the spouse or family member, also fell within the scope of civil status. He remarked, at p. 294:

    The respondent argues that a narrow interpretation should be given to "civil status" in this respect. But as I have observed, to understand the civil status of one person one must often refer to the civil status of another. .... It is difficult to imagine a hiring policy that excludes "all sons and daughters" without specifying whose sons and daughters. It is of course possible to discriminate on the basis of marital status in absolute terms (e.g., "no married men as test pilots"), but it is improbable that an individual could be the object of discrimination in employment based on a blood relationship without making reference at the same time to the person to whom he or she is related.

  51. Referring to MacGuigan J.A.'s reasoning in Cashin, Beetz J. held, at p. 298, that in the instant case it was unnecessary to decide whether the identity of a particular spouse is included in the notion of civil status, since "a general no-relative, no-spouse employment rule, precisely because in its generality it may have the effect of imposing a general or group category, does fall into civil status." Nevertheless, he went on to state, at p. 299:

    I am inclined, however, to think that in some circumstances the identity of a particular spouse might be included in marital or civil status. Sometimes an employer may exclude an individual because of the identity of his or her spouse without acting on an explicit no-spouse rule, leaving the court with the sometimes difficult and not always useful task of inferring a "group category." A no-spouse rule may be applied unevenly by the employer and thereby lose its generality. In Cashin, for example, Mahoney J. remarked that the CBC tolerated the fact that certain employees did have high profile political spouses. Furthermore, an employer may exclude a candidate for employment because of the employer's particular animosity for the spouse of the candidate. Thus the candidate is excluded because of the particular identity of his or her spouse and for no other reason. This might well be discrimination based on marital or civil status but I repeat that it is not necessary to decide this question to dispose of this appeal.

    [Emphasis added]

  52. Since these two decisions, adjudications on the scope of marital and family status have developed unevenly across Canadian jurisdictions. One line of cases appear to have adopted the "group identity" versus "particular identity" complaints distinction espoused by MacGuigan J.A. in Cashin: Gallagher v Hamilton-Wentworth (Regional Municipality) (1996), 28 C.H.R.R D/81 (Ont. Bd. Inq); Leblanc v Canada (Post Corporation) (1992) 18 C.H.R.R. D/57 (Can. Trib.); Gagnon v Canada (Canadian Armed Forces), [2002] C.H.R.D. No. 4 (QL) (Can. Trib,); MacMillan v 141187 Ventures Ltd. (c.o.b. "Nechako North Coast Construction Services"), [1994] B.C.C.H.R.D. No. 8 (QL) (B.C.C.H.R); Bailey v Fogo Island Co-operative Society Ltd. (2001), 40 C.H.R.R. D/77 (Nfld. Bd. Inq.). A second line of cases generally follow and develop the reasoning of Beetz J. in Brossard, supra: Dewetter v Northland Security Guard Services Ltd. (1996), 29 C.H.R.R. D/8 (B.C.C.H.R.); Gipaya v Anton's Pasta Ltd. (1996) 27 C.H.R.R. D/326 (B.C. C.H.R.); J. v London Life Insurance Co. (1999), 36 CH.R.R. D/36 (B.C. Trib.); Allum v Hollyburn Properties Management Inc. (1991), 15 C.H.R.R. D/71 (B.C., Trib.); Price v British Columbia (Ministry of Social Services and Housing) (1991), 15 C.H.R.R. D/11 (B.C.H.R.C.); Commission des droits de la personne du Québec v Les Immeubles NI/Dia Inc., [1992] R.J.Q. 2977 (T.D.P.). We are of the view that the latter approach is to be preferred.

  53. There is little doubt that discrimination on the basis of absolute status (e.g., married/single) is prohibited by the Code. Indeed, this is discrimination in its classic form. Discrimination on the basis of relative status will also be caught by the Code where there is some rule of general application that results in differential treatment of a particular sub-group. Aptly named by the respondents as "group identity" complaints, the most common example is a general anti-nepotism policy in the employment context. Discrimination in this context occurs where the complainant's situation corresponds to that of a sub-class of persons who share an absolute status (e.g., married employees who adopt their husbands' surnames). To this point, the case law is not in conflict. All would agree that employer policies or actions of general application that provide differential treatment to a sub-category of married persons would fall within the scope of "marital status". The Brossard line of cases parts ways with those that follow Cashin in the second type of relative status discrimination, the so-called "particular identity" complaints. These complaints involve the differential treatment of an individual based on a characteristic of the person's spouse that is objectionable to the employer.

  54. Both the appellants and the Divisional Court below assert that particular identity complaints are beyond the scope of the Code, as they are not based on any group characteristic, but solely on the peculiar circumstances of the parties. In the absence of any identifiable group in which to locate the respondent, the behaviour does not amount to discrimination on the basis of marital status. With respect, we disagree. Similar arguments were made to this Court in Janzen, supra, and were summarily rejected. The employers in that case argued that sexual harassment did not constitute discrimination on the basis of sex since the conduct was based on the sexual attractiveness of the particular complainants and not their gender. Dickson C.J. held, at p. 1290:

    To argue that the sole factor underlying the discriminatory action was the sexual attractiveness of the appellants and to say that their gender was irrelevant strains credulity. Sexual attractiveness cannot be separated from gender. The similar gender of both appellants is not a mere coincidence, it is fundamental to understanding what they experienced.

  55. Enumerated grounds correspond to groups of individuals who share similar personal characteristics (e.g., individuals who are married/single). In this sense, the grounds enumerated in the Code encapsulate many groups of persons who may be exposed to prohibited conduct. This sociological fact, however, does not translate into a requirement that the complainant identify a particular group that has suffered or may potentially suffer the same discrimination. While the search for a group is a convenient means of understanding and describing the discriminatory action, it does not rise to the level of a legal requirement. In the context of the equality guarantee in the Charter, this Court has stated clearly that group membership is not a necessary precondition to finding discrimination (see Law v Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 69):

    On the other hand, it may be misleading or inappropriate in some cases to speak about "membership" within a group for the purpose of a s. 15(1) claim. The Charter guarantees equality rights to individuals. In this respect, it must be made clear that the s. 15(1) claimant is not required to establish membership in a sociologically recognized group in order to be successful. It will always be helpful to the claimant to be able to identify a pattern of discrimination against a class of persons with traits similar to the claimant, i.e., a group, of which the claimant may consider herself or himself a member. Nonetheless, an infringement of s. 15(1) may be established by other means, and may exist even if there is no one similar to the claimant who is experiencing the same unfair treatment.

    [Emphasis added]

  56. To require that the complainant share with potential others an identifiable sub-category status is to impose on the complainant an additional burden that the Code does not mandate. The "group" to which the claimant belongs is already embodied in the ground enumerated by the Code. In our view, this is precisely the distinction to which Abella J.A. referred, at paras. 46-48, when she reasoned that the Code speaks of grounds, not groups:

    46.

    Discrimination is not only about groups. It is also about individuals who are arbitrarily disadvantaged for reasons having largely to do with attributed stereotypes, regardless of their actual merit. While it is true that disadvantageous stereotypes usually arise when characteristics are attributed to someone based on what people in a particular group are deemed to be capable of, this does not mean that when dealing with a complaint, a complainant must be artificially slotted into a group category before a claim of discrimination can be upheld under the Code.

    47.

    Whether or not a disadvantaged group can be fashioned out of the facts of any particular case is largely irrelevant. The Code stipulates grounds in s. 5(1), not groups. The question is whether an individual has been discriminated against on the basis of a prohibited ground, not whether he or she necessarily fits into a group requiring redress.

    48.

    There is no doubt that the Code contemplates that an individual's membership in a group may result in discrimination based on perceived characteristics attributed to the group. Some of the grounds in s. 5(1), for example, such as race, sex or ethnic origin, anticipate arbitrary barriers attaching to individuals belonging to certain historically disadvantaged groups. But other grounds, such as family or marital status or age, may have less to do with whether a disadvantaged group emerges easily from an individual's complaint than with whether the individual, regardless of group membership, is being stereotyped or arbitrarily disadvantaged.

  57. Accordingly, it is a misconception to require the complainant to demonstrate membership in an identifiable group made up of only those suffering the particular manifestation of the discrimination. It is sufficient that the individual experience differential treatment on the basis of an irrelevant personal characteristic that is enumerated in the grounds provided in the Code. It is not necessary to embark on the artificial exercise of constructing a disadvantaged sub-group to which the complainant belongs in order to bring one's self within the ambit of marital or family status within the meaning of the Code.

    C. Application to the Facts of this Case

  58. Having concluded that marital and family status, within the meaning of the Code, can encompass claims arising from the particular identity of the complainant's spouse or child, the proper inquiry is not whether the respondent belongs to an identifiable group but whether he was arbitrarily disadvantaged on the basis of his marital or family status. In our view, he was.

  59. The Board of Inquiry made the following finding of fact, at para. 15, which none of the courts below nor the parties themselves dispute:

    I am satisfied, based on the evidence before me, that the sole reason for Mr. A's termination was the fact that his daughter had raised allegations of sexual abuse against his employer, Mr. B.

    Further, the Board of Inquiry noted that Mr. B acknowledged that he did not dismiss Mr. A for cause. Accordingly, the factual record is clear that the respondent Mr. A was dismissed from his employment because of the actions of his wife and daughter. Those actions were the operative cause of the firing.

  60. The appellants also assert that the dismissal of Mr. A does not amount to discrimination because the decision was based solely on personal animosity. Even if we were to accept that assertion, the animosity did not result from any action or behaviour of Mr. A, but rather solely because of his marital and familial affiliations. Thus the appellants' automatic attribution of the wife and daughter's behaviour to Mr. A reflects stereotypical assumptions about Mr. A that have nothing to do with his individual merit or capabilities. This is precisely the kind of conduct which the Code aims to prevent.

  61. We note that, in unfortunate situations such as the one at bar, a complainant's personal life and employment may become incompatible to the point that a dismissal would be justifiably based on the complainant's merits or capabilities. However, we agree with the finding of the Board that since the respondent had said nothing about the allegations and had "compartmentalized" his personal and employment situations, the decision to terminate was based on an unfounded and premature presumption of incompatibility.

  62. Based on the factual findings of the Board of Inquiry in this case, we find that Mr. A was discriminated against on the basis of his marital and/or family status and, accordingly, dismiss the appeal with costs.


Cases

Brossard (Town) v Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Cashin v Canadian Broadcasting Corp., [1988] 3 F.C. 494; Janzen v Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Ontario Human Rights Commission v Simpson Sears Ltd., [1985] 2 S.C.R. 536; Gould v Yukon Order of Pioneers, [1996] 1 S.C.R. 571; University of British Columbia v Berg, [1993] 2 S.C.R. 353; Robichaud v Canada (Treasury Board), [1987] 2 S.C.R. 84; Insurance Corporation of British Columbia v Heerspink, [1982] 2 S.C.R. 145; Gallagher v Hamilton-Wentworth (Regional Municipality) (1996), 28 C.H.R.R. D/81; Leblanc v Canada Post Corp. (1992), 18 C.H.R.R. D/57; Gagnon v Canada (Canadian Armed Forces), [2002] C.H.R.D. No. 4 (QL); MacMillan v 141187 Ventures Ltd. (c.o.b. "Nechako North Coast Construction Services"), [1994] B.C.C.H.R.D. No. 8 (QL); Bailey v Fogo Island Co-operative Society Ltd. (2001), 40 C.H.R.R. D/77; Dewetter v Northland Security Guard Services Ltd. (1996), 29 C.H.R.R. D/8; Gipaya v Anton's Pasta Ltd. (1996), 27 C.H.R.R. D/326; J. v London Life Insurance Co. (1999), 36 C.H.R.R. D/36; Allum v Hollyburn Properties Management Inc. (1991), 15 C.H.R.R. D/171; Price v British Columbia (Ministry of Social Services and Housing) (1991), 15 C.H.R.R. D/11;Commission des droits de la personne du Québec v Les Immeubles NI/Dia Inc., [1992] R.J.Q. 2977; Law v Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.

Legislations

Canadian Charter of Rights and Freedoms, s. 15.

Human Rights Code, R.S.O. 1990, c. H.19, ss. 5(1), 10(1), 11(1), 24(1)(d).

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 2(1)(i.01) [am. 2000, c. 26, s. 4].

Representations

Edward A. Canning and Sean T. Jackson, for the appellants (instructed by Ross & McBride, Hamilton).

Naomi Overend and Joanne Rosen, for the respondent the Ontario Human Rights Commission (the Ontario Human Rights Commission, Toronto).

Respondent Mr. A, not represented.


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