Moore v. Canada (Treasury Board) (1996), 25 C.H.R.R. D/351 (Can.Trib.) [Eng./Fr. 22 pp.] Denial of Benefits to Same-Sex Partner Discriminatory
Keywords: SEXUAL ORIENTATION -- employee benefits denied -- survey of the law -- FAMILY STATUS -- spouse definition not included in human rights legislation -- EMPLOYMENT -- TRADE UNIONS -- union supports discriminatory policy -- HUMAN RIGHTS -- analogous ground of discrimination in the Charter -- CONSTITUTIONAL LAW -- constitutional remedy of reading in -- CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- application of s. 1 (reasonable limits) -- INTERPRETATION OF STATUTES -- retrospective effect -- REMEDIES inventory discriminatory legislation provisions
Summary: Stanley Moore and Dale Akerstrom are both gay employees of the federal government. Mr. Moore is a Foreign Service Officer who was employed by the Department of External Affairs at the time of the complaint. In April 1990 he began living with Mr. Pierre Soucy in a spousal relationship. In February 1991 Mr. Moore was posted to Jakarta, Indonesia, as Counsellor for Development and Counsellor for Economics. He applied for spousal benefits under the Foreign Service Directives in 1991. These directives relate to a number of costs involved when relocation is required of an employee. He was not able to obtain the usual relocation assistance provided for spouses because Mr. Soucy was not considered a spouse because he is of the same sex as Mr. Moore. The benefits to which he and Mr. Soucy did not have full access include accommodation costs, post differential allowance, dental and health care benefits, and others.
Dale Akerstrom has been employed by CEIC since April 1990. In November 1990, he began living with Alexander Dias in a spousal relationship. In 1992 Mr. Akerstrom attempted to change his benefit status from single to family. He wished to make Mr. Dias his beneficiary for the purposes of the supplementary death benefit, and his spouse for purposes of the Public Service Health Care Plan. He was not allowed to claim Mr. Dias as his spouse because spouse is defined for the purposes of these benefits plans as a person of the opposite sex.
This decision was rendered prior to the amendment of the Canadian Human Rights Act in May 1996 to include sexual orientation as a prohibited ground. The Tribunal notes that the Ontario Court of Appeal in Haig ruled that sexual orientation was an analogous ground of discrimination under s. 15 of the Charter, and that the Court of Appeal elected to read sexual orientation into the protections in the Canadian Human Rights Act. The Minister of Justice of the day, publicly announced that the decision would not be appealed and would stand as the law of Canada. Since that decision the Supreme Court of Canada in Egan v. Canada unanimously endorsed the finding that sexual orientation is an analogous prohibited ground of discrimination under s. 15 of the Charter, and five judges of the Supreme Court in the same case concluded that a definition of spouse which is limited to persons of the opposite sex offends s. 15 of the Charter because it discriminates on the basis of sexual orientation.
The Tribunal finds that it is now crystal clear that the law is that denial of the extension of employment benefits to a same-sex partner which would otherwise be extended to opposite-sex common-law partners is discrimination on the prohibited ground of sexual orientation.
The Tribunal rejects the argument offered by Treasury Board that it should follow the lead of the majority of the Supreme Court in Egan who found that the infringement of Mr. Egan's equal right to spousal benefits under Old Age Security Act was saved under s. 1 because it was a reasonable limit, given the government's need to make choices regarding the distribution of social benefits. The Tribunal finds that in the present case the Tribunal is dealing with an employer who happens to be the government. The government as employer can no more rely on s. 1 of the Charter to justify discrimination than can a private employer. The matter at issue here is earned employment benefits, and this is not a Charter case.
The Tribunal finds that Treasury Board and other named respondents discriminated against Mr. Moore and Mr. Akerstrom contrary to the Canadian Human Rights Act.
The Tribunal orders Treasury Board and the Department of Foreign Affairs and International Trade to pay Mr. Moore an amount equal to all the spousal related entitlements and expenses to which he and Mr. Soucy would have been entitled but for the discrimination commencing as of the beginning of his posting to Jakarta in July 1991, as well as $5,000 for hurt feelings, compensation for any receipted costs incurred in pursuing these complaints and interest on these amounts. It also orders Treasury Board and Canada Employment and Immigration to pay all additional costs incurred by Mr. Akerstrom and Mr. Dias in obtaining alternative services as a result of the discriminatory practice, as well $500 for hurt feelings, compensation for any receipted costs incurred in pursuing these complaints, and interest on these amounts.
Additionally, the Tribunal orders the respondents to immediately cease and desist in the application of the definition of spouse or any other provisions of the Foreign Service Directives, the Collective Agreements, National Joint Council policies, the Public Service Health Care Plan or the Dental Care Plan which operate so as to continue the discrimination complained of here. Finally, the Tribunal orders that within sixty days, the respondents prepare an inventory of all legislation, regulations, and directives which discriminate against same-sex common-law couples or in some other way operate, when applied, to continue the discriminatory practice based upon sexual orientation in the provision of employment-related benefits. This inventory shall exclude any legislation providing for pension benefits, but shall include any provisions of the Income Tax Act which would treat any employment-related benefits paid to same-sex common-law couples differently for taxation purposes from the way they would be treated if paid to an opposite-sex common-law couple. The inventory shall be accompanied by a proposal for the elimination of all such discriminatory provisions.
The Tribunal retains jurisdiction to receive the inventory and the proposal, and to deal with any disputes regarding the amounts of compensation to be paid to the complainants.
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