Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554: Discriminatory practice -- Family status -- Employee denied bereavement leave to attend funeral of father of his male companion -- Collective agreement providing for leave upon death of a member of an employee's "immediate family" -- "Immediate family" including common-law spouse of opposite sex -- Federal legislation prohibiting discrimination on basis of "family status" -- Whether denial of bereavement leave based on family status

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and Iacobucci JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Civil rights -- Discriminatory practice -- Family status -- Employee denied bereavement leave to attend funeral of father of his male companion -- Collective agreement providing for leave upon death of a member of an employee's "immediate family" -- "Immediate family" including common-law spouse of opposite sex -- Federal legislation prohibiting discrimination on basis of "family status" -- Whether denial of bereavement leave based on family status -- Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3, 10.

Judicial review -- Standard of review -- Curial deference toward specialized tribunals -- Whether Federal Court of Appeal erred in holding that any error of law by human rights tribunal reviewable -- Whether Tribunal committed such an error of law in interpreting family status as including a same-sex relationship -- Federal Court Act, R.S.C., 1985, c. F-7, s. 28.

The complainant, a federal government employee, took a day off work to attend the funeral of the father of the man he described as his lover. The two men had known each other for over ten years and resided together in a jointly owned and maintained home. The collective agreement between Treasury Board and the complainant's union governing terms of employment provided for up to four days' leave upon the death of a member of an employee's "immediate family", a term defined as including a common-law spouse. The definition of "common-law spouse" was restricted to a person of the opposite sex. The day after the funeral the complainant applied for bereavement leave pursuant to the collective agreement, but his application was refused. The grievance he filed was rejected on the basis that the denial of his application was in accordance with the collective agreement. The complainant then filed complaints with the appellant Canadian Human Rights Commission against his employer, Treasury Board and his union.

The Human Rights Tribunal concluded that a discriminatory practice had been committed contrary to the Canadian Human Rights Act, which prohibited discrimination on the basis of "family status". It ordered that the day of the funeral be designated as a day of bereavement leave and that the collective agreement be amended so that the definition of common-law spouse include persons of the same sex who would meet the definition in its other respects. The Federal Court of Appeal granted the Attorney General of Canada's application pursuant to s. 28 of the Federal Court Act and set aside the Tribunal's decision. This appeal is to determine whether the Federal Court of Appeal erred in holding that any error of law by a human rights tribunal is reviewable on a s. 28 application, and in holding that the term "family status" in the Canadian Human Rights Act did not include a homosexual relationship. No Charter issues were raised in this appeal.

Held (L'Heureux-Dubé, Cory and McLachlin JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin and Iacobucci JJ.: The general question raised in this appeal is one of statutory interpretation and as such is a question of law over which the Federal Court of Appeal has jurisdiction under s. 28 of the Federal Court Act.

Per Lamer C.J. and La Forest, Sopinka and Iacobucci JJ.: The denial of bereavement leave in this case was not discrimination on the basis of family status within the meaning of s. 3 of the Canadian Human Rights Act.

Per Lamer C.J. and Sopinka and Iacobucci JJ.: The Federal Court of Appeal had the necessary jurisdiction to review the Tribunal's decision. Where the Court has limited the power of intervention of the reviewing courts to cases of patent unreasonableness, the tribunals were acting under the special protection of privative clauses. There is no such clause immunizing the decisions of a human rights tribunal. The issue in this case is one of statutory interpretation, and therefore a question of law reviewable under s. 28 of the Federal Court Act. While the courts have shown curial deference toward certain specialized tribunals in interpreting their enabling Act, such deference will not apply to findings of law in which the tribunal has no particular expertise, such as findings of law by human rights tribunals. If need be, La Forest J.'s reasons were adopted in this regard.

The Canadian Human Rights Act did not prohibit discrimination on the basis of sexual orientation at the time the complainant was denied bereavement leave. When Parliament added the phrase "family status" to the Act in 1983 it refused at the same time to add sexual orientation to the list of prohibited grounds of discrimination. In this case, the complainant's sexual orientation is so closely connected with the grounds which led to the refusal of the benefit that this denial could not be condemned as discrimination on the basis of "family status" without indirectly introducing into the Act the prohibition which Parliament specifically decided not to include. Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts and administrative tribunals are not empowered to do anything else but to apply the law.

Per La Forest and Iacobucci JJ.: Lamer C.J.'s general approach was agreed with. With respect to the standard of review, the general question raised is one of statutory interpretation, and as such is a question of law over which the Federal Court of Appeal has jurisdiction. In the absence of provisions indicating a legislative intention to limit judicial review, such as a privative clause, the normal supervisory role of the courts remains. While the courts have also been willing to show deference to administrative tribunals for reasons of relative expertise, the superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context, and does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform. The courts cannot abdicate this duty to the tribunal, and must therefore review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability.

With respect to the meaning to be attributed to the words "family status", while the Act should be interpreted generously with a view to effecting its purpose, neither ordinary meaning, context, nor purpose indicates a legislative intention to include same-sex couples within "family status". This is not an action under the Charter, where the Court may review the actions of Parliament or the government.

Per L'Heureux-Dubé J. (dissenting): While courts will intervene in the face of a jurisdictional error, or a patently unreasonable error of fact or law, they should exercise caution and deference in reviewing the decisions of specialized administrative tribunals. The best approach to determining the appropriate standard of review in a specific case is one which recognizes the need for flexibility. The pragmatic and functional approach articulated by the Court in Bibeault provides the proper framework. It must be asked whether the legislator intended the question to be within the jurisdiction conferred on the tribunal. If so, the role of the courts is a superintending one, and intervention will be warranted only where the decision is patently unreasonable. This approach requires a focus on jurisdiction which accounts for the general values of deference, and the ease with which questions can be improperly branded as jurisdictional. Though it was first used in the context of a board protected by a privative clause, it is a principled approach of general application which does not focus on formal categories, but rather seeks to determine the rationale behind deference in a specific context. The Court will examine not only the wording of the enactment conferring jurisdiction on the tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal. If, after the various factors are considered, it is concluded that courts should answer the question, then the question is one which does not lie within the board's jurisdiction and the test of correctness should apply. If it is concluded that the question should be answered by the board, then the question is one within the board's jurisdiction and courts should only intervene if the decision is patently unreasonable.

There is nothing in s. 28 of the Federal Court Act that dictates review of every error of law. Review is a discretionary remedy. Given the rationale for deference and the importance of the court's supervisory power, an error should be a serious one to merit a court's intervention.

The Tribunal has the jurisdiction to determine questions of fact, and courts should defer to these findings unless they are patently unreasonable. The Tribunal also has jurisdiction to interpret its Act and, consequently, the meaning of the term "family status" in s. 3 of the Canadian Human Rights Act. Courts should defer to the Tribunal's interpretation since the legislature specifically intended that the Commission and its tribunals should carry out the task of interpreting the grounds of discrimination in the Act. While courts do have a role to play in this task, that role is a limited one, confined to overturning an interpretation which is patently unreasonable.

It is well established that human rights legislation has a unique quasi-constitutional nature, and that it is to be given a large, purposive and liberal interpretation. The purpose of the Act, set out in s. 2, is to ensure that people have an equal opportunity to make for themselves the life that they are able and wish to have without being hindered by discriminatory practices. The social cost of discrimination is insupportably high, and these insidious practices are damaging not only to the individuals who suffer the discrimination, but also to the very fabric of our society.

Even if one were to take a textual approach to the interpretation of s. 3 of the Act, it would not be necessary to construe "family status" as including only those families which have recognizable status at law. The term "status" may also indicate more factual matters of rank, social position, or relation to others. When the meaning of the French version of the term, "situation de famille", is considered, it is apparent that the scope of "family status" has potential to be very broad.

Parliament's decision to leave "family status" undefined is evidence of clear legislative intent that the term's meaning should be left for the Commission and its tribunals to define. Even if Parliament had in mind a specific idea of the scope of "family status", there is no definition in the Act which embodies this scope. Concepts of equality and liberty which appear in human rights documents are not bounded by the precise understanding of those who drafted them. The enumerated grounds of discrimination must be examined in the context of contemporary values, not in a vacuum. Their meaning is not frozen in time and the scope of each ground may evolve. Textual context should not detract from the purposive approach mandated by human rights documents, and legislative intent is best inferred from the legislation itself. The Tribunal cannot be reproached for having applied recognized principles of interpretation of human rights legislation, in light of the particular purpose of its Act.

The Tribunal's interpretation of "family status" in s. 3 of the Act is not patently unreasonable. The traditional conception of family is not the only conception. The multiplicity of definitions and approaches illustrates clearly that there is no consensus as to the boundaries of family, and that "family status" may have varied meanings depending on the context or purpose for which the definition is desired. This same diversity in definition is found in Canadian legislation affecting the "family"; the law has evolved and continues to evolve to recognize an increasingly broad range of relationships. The family is not merely a creation of law, and while law may affect the ways in which families behave or structure themselves, the changing nature of family relationships also has an impact on the law. It is clear that many Canadians do not live within traditional families. In defining the scope of the protection for "family status", the Tribunal thought it essential not only to look at families in the traditional sense, but also to consider the values that lie at the base of our support for families. It found that these values are not exclusive to the traditional family and can be advanced in other types of families. On the evidence before it and in the context of the Act, the Tribunal concluded that the potential scope of the term "family status" is broad enough that it does not prima facie exclude same-sex couples. In making this finding, the Tribunal used the proper interpretational approach, considered the purpose of the Act and the values at the base of the protection of families. This is a matter that lay at the heart of the Tribunal's specialized jurisdiction and expertise, and it cannot be said that this conclusion is at all unreasonable, a fortiori patently unreasonable. Using a functional approach, the Tribunal concluded that the specific relationship before it was one which, on the evidence, could come within the scope of "family status". Since this conclusion is far from being patently unreasonable, it must be left undisturbed.

The collective agreement restricted the bereavement leave to "immediate family", the definition of which clearly included some familial relationships while excluding others, in particular employees in permanent and public relationships with persons of the same sex. The Tribunal found that, given the complainant's factual situation and the purpose of the bereavement leave, the complainant had been denied an employment opportunity on the basis of the prohibited ground of "family status". While sexual orientation may appear to be the ground of discrimination, the central focus is "family status". The complainant was denied leave because the relationship he had with his companion was not recognized as a family relationship. The Tribunal, acting within its jurisdiction, identified the complainant's claim as one of discrimination on the basis of "family status". Based on the purpose of the Act, the purpose of the benefit, and all the evidence before it, it was perfectly reasonable for the Tribunal to conclude that the collective agreement violated s. 10(b) of the Act, a conclusion with which the Court has no reason to interfere.

Per Cory J. (dissenting): La Forest J.'s reasons were agreed with in so far as they pertain to the duty of the courts to review and the standard of review that should be applied to the decisions of human rights tribunals. The absence of any privative clause in the Canadian Human Rights Act is one of the factors that may be taken into account in determining the deference that should be accorded the decision of a tribunal acting pursuant to that Act and the extent of the supervisory role the court should exercise in reviewing such a decision. Based on the factors discussed by L'Heureux-Dubé J., however, the Tribunal was correct in determining that the term "family status" was sufficiently broad to include same-sex couples living together in a long-term relationship and that the complainant and his companion came within the scope of this term.

Per McLachlin J. (dissenting): La Forest J.'s reasons on the standard of review which courts should apply to human rights tribunals were agreed with. Applying this standard, and on the basis of the factors reviewed by L'Heureux-Dubé J., the Tribunal was correct in concluding that the relationship between the complainant and his companion falls within the term "family status" under the Act.

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