Miron v. Trudel [1995] 2 S.C.R. 418: Automobile insurance -- Standard automobile policy prescribed by provincial legislation extending accident benefits to "spouse" of policy holder -- Term "spouse" not including unmarried common law spouse -- Appropriate remedy

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Equality rights -- Automobile insurance -- Standard automobile policy prescribed by provincial legislation extending accident benefits to "spouse" of policy holder -- Term "spouse" not including unmarried common law spouse -- Whether limitation of benefits to married persons violates s. 15(1) of Canadian Charter of Rights and Freedoms -- If so, whether violation justifiable under s. 1 of Charter – Insurance Act, R.S.O. 1980, c. 218, ss. 231, 233, Schedule C.

Constitutional law -- Charter of Rights -- Enforcement -- Appropriate remedy -- Standard automobile insurance policy prescribed by provincial legislation extending accident benefits to "spouse" of policy holder -- Term "spouse" not including unmarried common law spouse -- Limitation of benefits to married persons violating s. 15(1) of Canadian Charter of Rights and Freedoms -- Violation not justifiable under s. 1 of Charter – Whether Court should retroactively "read in" more inclusive definition of "spouse" under s. 24 of Charter.

The appellants lived together with their children. While they were not married, their family functioned as an economic unit. In 1987, M was injured while a passenger in an uninsured motor vehicle driven by an uninsured driver. After the accident, the appellant M could no longer work and contribute to his family's support. He made a claim for accident benefits for loss of income and damages against V's insurance policy, which extended accident benefits to the "spouse" of  the policy holder. The respondent insurer denied his claim on the ground that M was not legally married to V and hence not her "spouse". The appellants sued the insurer. The insurer brought a preliminary motion to determine whether the word "spouse", as used in the applicable portions of the policy, includes unmarried common law spouses. The motions court judge found that "spouse" meant a person who is legally married. The appellants appealed the decision to the Court of

Appeal, arguing first that M is a spouse under the terms of the policy, and alternatively, that the policy terms, which are those of the standard automobile policy prescribed by the Insurance Act, R.S.O. 1980, c. 218, discriminate against him in violation of s. 15(1) of the Canadian Charter of Rights and Freedoms. The

Court of Appeal dismissed their appeal.

Held (Lamer C.J. and La Forest, Gonthier and Major JJ. dissenting): The appeal should be allowed.

Per Sopinka, Cory, McLachlin and Iacobucci JJ.: The analysis under s. 15(1) of the Charter involves two steps. First, the claimant must show a denial of "equal protection" or "equal benefit" of the law, as compared with some other person. Second, he or she must show that the denial constitutes discrimination. To establish discrimination, the claimant must show that the denial rests on one of the grounds enumerated in s. 15(1) or an analogous ground and that the unequal treatment is based on the stereotypical application of presumed group or personal characteristics, although in rare cases distinctions made on enumerated or analogous grounds may prove to be, upon examination, non-discriminatory. Once a violation of s. 15(1) is established, the onus then shifts to the party seeking to uphold the law, usually the state, to justify the discrimination under s. 1 of the Charter. This division of the analysis between s. 15(1) and s. 1 accords with the injunction that courts should interpret the enumerated rights in a broad and generous fashion, leaving the task of narrowing the prima facie protection thus granted to conform to conflicting social and legislative interests to s. 1. At the same time, it does not trivialize s. 15(1) by calling all distinctions discrimination. Proof that the enumerated or analogous ground founding a denial of equality is relevant to a legislative goal is only one factor in determining whether a distinction is discriminatory in the social and political context of each case. Relevance as the ultimate indicator of non-discrimination suffers from the disadvantage that it may validate distinctions which violate the purpose of s. 15(1) and may lead to inquiries better pursued under s. 1.

Exclusion of unmarried partners from accident benefits available to married partners under the policy violates s. 15(1) of the Charter. Denial of equal benefit on the basis of marital status is established in this case, and marital status is an analogous ground of discrimination for purposes of s. 15(1). First, discrimination on that basis touches the essential dignity and worth of the individual in the same way as other recognized grounds of discrimination violative of fundamental human rights norms. Second, marital status possesses characteristics often associated with recognized grounds of discrimination under s. 15(1). Persons involved in an unmarried relationship constitute an historically disadvantaged group, even though the disadvantage has greatly diminished in recent years. A third characteristic sometimes associated with analogous grounds, namely distinctions founded on personal, immutable characteristics, is also present, albeit in attenuated form. While in theory, the individual is free to choose whether to marry or not to marry, in practice the reality may be otherwise. Since the essential elements necessary to engage the overarching purpose of s. 15(1) -- violation of dignity and freedom, an historical group disadvantage, and the danger of stereotypical group-based decision-making -- are present, discrimination is made out.

The state has failed to demonstrate that the exclusion of unmarried members of family units from motor vehicle accident benefits is demonstrably justified in a free and democratic society. The goal or functional value of the legislation here at issue, which is to sustain families when one of their members is injured in an automobile accident, is of pressing and substantial importance. The legislative goal is not, however, rationally connected to the discriminatory distinction and the law impairs the right more than reasonably necessary to achieve that goal. Marital status is not a reasonably relevant marker of individuals who should receive benefits in the event of injury to a family member in an automobile accident, having regard to available alternative criteria and the need to minimize prejudice to anomalous cases within the group. If the issue had been viewed as a matter of defining who should receive benefits on a basis that is relevant to the goal or functional values underlying the legislation, rather than marriage equivalence, alternatives substantially less invasive of Charter rights might have been found. As an appropriate remedy, the new definition of "spouse" adopted in 1990, which includes heterosexual couples who have cohabited for three years or who have lived in a permanent relationship with a child, should be retroactively "read in" to the impugned legislation.

Per L'Heureux-Dubé J.: The following factors must be established by a rights claimant before the impugned distinction will be found to be discriminatory: (1) there must be a legislative distinction; (2) this distinction must result in a denial of one of the four equality rights on the basis of the rights claimant's membership in an identifiable group; and (3) this distinction must be "discriminatory" within the meaning of s. 15. Comparisons between different groups are necessary to discern  the differential effect of the legislation and to assist the court in properly characterizing and identifying the groups that are relevant to the particular s. 15 inquiry at hand. The only appropriate comparison here is between married persons and unmarried persons who are in a relationship analogous to marriage, that is, a relationship of some degree of publicly acknowledged permanence and interdependence.

Here, assuming that the statutory interpretation of "spouse" as used in the relevant parts of the policy excludes unmarried couples who are cohabiting, this distinction is reasonably capable of either promoting or perpetuating a view amongst persons in relationships analogous to marriage that they are less worthy of recognition or value as human beings or as members of Canadian society, equally deserving of concern, respect, and consideration, and is therefore discriminatory within the meaning of s. 15 of the Charter. Discriminatory impact can be assessed by looking to the nature of both the interest and the group adversely affected by the impugned distinction. Persons in opposite-sex relationships analogous to marriage have suffered, and continue to suffer, some disadvantage, disapproval and marginalization in society, and are therefore somewhat sensitive to legislative distinctions having prejudicial effects. Nor is marriage simply a matter of individual choice. The decision of whether or not to marry can be one of the most personal decisions an individual will ever make over the course of his or her lifetime. Although certain rights and obligations follow from this choice, it does not do it justice to reduce it to a question of contract. Moreover, there are a significant number of couples in which one person wishes to be in a relationship of publicly acknowledged permanence and interdependence and the other does not. Both the courts and the legislatures have, in recent years, acknowledged and responded to the injustices that often flow from power imbalances of this type and have thereby given increasing recognition to non-traditional forms of relationships. The affected interest at issue here is the protection of family units from potentially disastrous financial consequences due to the injury of one of their members. Protection of "family" is, in turn, one of the most important interests imaginable in our society.

While all injured persons are entitled to that part of their health care costs covered by their provincial medicare systems, actual health care costs may often represent only a small part of the total losses suffered as a result of injury in a motor vehicle accident when loss of income as well as pain and suffering are taken into account. Equally significant, although persons ineligible to claim from a private insurance company under the standard automobile policy may still claim for some compensation under the Motor Vehicle Accident Claims Act, the cost, time and difficulty of recovery by this means are significantly greater than if the person were insured by a private company. The financial consequences of these differences can be profound on a family unit, particularly if the injured party is an income-earner who has been disabled as a result of the accident. In addition, the impugned distinction categorically excludes from joint insurance coverage all couples in a relationship analogous to marriage.

The impugned distinction cannot be saved under s. 1 of the Charter. The objective of the standard automobile policy, which is to protect stable family units by   insuring against the economic consequences that may follow from the injury of one of the members of the family, is pressing and substantial. The government has not demonstrated, however, that the impugned distinction is rationally connected to the objective of the legislation. At the time of the accident, common law spouses in Ontario were bound by an obligation of mutual support yet were excluded from a standard automobile policy whose basic purpose was almost inextricably related to that mutual obligation and to the relationship of interdependency upon which that obligation is premised. The impugned distinction also fails the minimal impairment test, since the unit the legislator has decided to protect (i.e. married persons) is underinclusive of the purpose of the legislation. Although the unit deserving of protection can be defined by marriage, it can also be defined in a workable and acceptably certain way by reference to the length of the relationship or to the existence of children, as was done here when the definition of "spouse" was amended in 1990 to include common law spouses. This new definition should be retroactively "read in" to the legislation.

Per Lamer C.J. and La Forest, Gonthier and Major JJ. (dissenting): The Charter applies to the policy since the policy's terms are prescribed by the Insurance Act. A breach of s. 15(1) occurs when one of the four equality rights set out therein has been infringed in a discriminatory manner. The s. 15(1) analysis involves three steps. The first looks to whether the law has drawn a distinction between the claimant and others. The second questions whether the distinction results in disadvantage, and examines whether the impugned law imposes a burden, obligation or disadvantage on a group of persons to which the claimant belongs which is not imposed on others, or does not provide them with a benefit which it grants others. It is at this second step that the direct or indirect effect of the legislation is examined. The third step assesses whether the distinction is based on an irrelevant personal characteristic which is either enumerated in s. 15(1) or one analogous thereto. This third step thus comprises two aspects: determining the personal characteristic shared by a group and then assessing its relevancy having regard to the functional values underlying the legislation. By its very nature the s. 15(1) review rests on a comparative analysis. Context has a vital part to play in identifying the appropriate groups to be compared, determining whether prejudice flows from the distinction, and assessing the nature and relevancy of the personal characteristic upon which the distinction is drawn. More specifically, an indispensable element of the contextual approach to s. 15(1) involves an inquiry into whether a distinction rests upon or is the expression of some objective physical or biological reality, or fundamental value. This inquiry crucially informs the assessment of whether the prejudicial distinction has been drawn on a relevant basis, and therefore, whether or not that distinction is discriminatory.

Under the approach adopted by this Court in Andrews, the analysis under s. 15 encompasses a determination as to whether the prejudicial distinction is attributable to or on the basis of an enumerated or analogous ground. Such a ground is identified as one that is commonly used to make distinctions which have little or no rational connection with the subject matter, generally reflecting a stereotype. With respect to those grounds listed or enumerated in s. 15, distinctions drawn on such a basis are often but not necessarily always discriminatory, since they may be relevant as merely reflecting a fundamental reality or value. Relevancy is also at the heart of the identification of an analogous ground. The proper identification of such a ground requires a sensitive, contextual examination of its nature in order to determine whether it qualifies as a basis for irrelevant distinctions, and hence is an analogous ground. Once the analogous ground is identified and defined in terms of its nature and scope, any further issues as to relevance are to be examined not under s. 15 but under s. 1 together with any other issues as to justification.

Marriage is both a basic social institution and a fundamental right which states can legitimately legislate to foster. Married status, at least in our society, can only be acquired by the expression of the individual's personal, free choice, regardless of the reason for which that status is assumed. Marriage rests upon a contractual basis, to which the law attaches certain rights and obligations. The decision to marry includes the acceptance of various legal consequences incident to the institution of marriage, including the obligation of mutual support between spouses and the support and raising of children of the marriage. Where individuals choose not to marry, it would undermine the choice they have made if the state were to impose upon them the very same burdens and benefits which it imposes upon married persons. An additional element distinguishing marriage from other relationships is the commitment towards permanence accepted by the parties to the marriage contract. While the decision to marry or not is a joint choice, it is a choice nonetheless.

The insurance policy's limitation of accident benefits to married couples does not infringe s. 15 of the Charter. The impugned legislation draws a distinction, in that it treats married and unmarried couples in a different manner. This distinction is not prejudicial, however, when considered in the larger context of the rights and obligations uniquely and appropriately attached to marriage. Further, since the functional values underlying the legislation are relevant to marital status, marital status is not a personal characteristic which qualifies as an analogous ground. Marital status has several unique characteristics which distinguish it from the grounds enumerated in s. 15(1). In addition to resting upon a consensual, contractual basis, marriage is a status to which the legislature, as a reflection of its social policy, attaches a bundle of rights and obligations. These characteristics are not found in any of the enumerated grounds. Moreover, in contemporary society unmarried couples do not constitute a distinct group suffering from stereotypes or prejudices, although they have been the subject of such prejudices in the past. In this respect, the fostering of marriage as a social institution does not stigmatize unmarried couples nor subject them to stereotypes.

Unmarried couples are not in a situation identical to married spouses with respect to mutual support obligations. While the insurance policy clearly is concerned with economic interdependence, such interdependence is only relevant in so far as it relates to the institution of marriage. The functional value of the benefits at issue here is not to provide support for all family units living in a state of financial interdependence but rather to assist those couples who are married or, as in subsequent legislation, to assist certain prescribed couples who are in a "marriage-like" relationship. The functional value identified in this legislation, namely the support of marriage, is not itself discriminatory. Distinctions as to the scope of the institution and the benefits which attach thereto are properly the objects of legislative definition.

Just as it is within the scope of legitimate social policy for the legislature to define the scope of "marriage-like" relationships, there is no obligation on the legislature to extend all the attributes of marriage to unmarried couples. A legislature may as a matter of social policy choose whether and under what circumstances to extend some or all of the attributes of marriage to unmarried couples without running afoul of s. 15(1) of the Charter. The courts must be wary of second-guessing legislative social policy choices relating to the status, rights and obligations of marriage, a basic institution of our society intimately related to its fundamental values. Barring evidence of a change in these values by a clear consensus that there should be a constitutional constraint on the powers of the state to legislate in relation to marriage, the matter must remain within the scope of legitimate legislative action.

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