bout de papier, Vol. 10, No. 1 (1993) — Winter 1993 // Hiver 1993, p. 38
by Peter Cenne
Several recent court cases have focused on the issue of equality for same-sex spouses. In the absence of movement in government policy, these cases likely will form the basis for subsequent changes to existing benefit plans.
The Supreme Court of Canada is currently reviewing a potential landmark case which may affect the federal government’s existing practice of denying benefits to same-sex spouses. In deciding this case, the court must decide whether an individual and his or her same-sex spouse constitute a “family” under the law. Should a family unit be deemed to exist, the Court must then decide whether discrimination occurred contrary to the “family status” provisions of the Canadian Human Rights Act and the equality requirements under the Canadian Charter of Rights and Freedoms. The Supreme Court is expected to rule on this issue within a few months.
In another recent case, the Ontario Court of Appeal ruled that the Canadian Human Rights Act was unconstitutional as it failed to recognize sexual orientation as a prohibited ground of discrimination. The Court further decided that the Act should be read and applied as if it covered sexual orientation. As a result, all complaints of discrimination based on sexual orientation must be investigated by the Canadian Human Rights Althouch this decision doe not extend spousal benefits to same-sex couples, it does provide a legal basis to contest discriminatory policies or practices. The Minister of Justice has recently announced that the federal government does not intend to appeal this decision.
Although it is hoped that the federal government will voluntarily recognize the need to address the inequalities created by its current policies, it does not appear that this will happen unless such changes are specifically ordered by the courts. Given the nature of rulings which have recently emerged, it would seem that such changes are inevitable. For example, prior to a recent decision by a Board of Inquiry appointed under the Ontario Human Rights Code, Ontario employers were permitted to operate benefit and pension plans which deny benefits to same-sex spouses, while providing benefits to eligible heterosexual common law spouses. This Board of inquiry determined that such practices were contrary to the Canadian Charter of Rights and Freedoms and ordered the Ontario Government to amend its pension and benefits programs to provide equal benefits to the dependents and spouses of gay employees. In addition, this decision prevents Ontario employers from relying on the traditional “spousal” and “marital status” definitions found under the Ontario Human Rights Code to justify discrimination in benefits between same-sex and heterosexual couples. While this decision is an Ontario decision, it may well be followed in other Canadian jurisdictions and may eventually influence benefit and pension plans which are subject to federal legislation.
Although this issue will be further clarified by future court rulings, individuals may, nonetheless, wish to file a complaint through the Canadian Human Rights Commission. Once a complaint is filed, the Canadian Human Rights Commission will pursue the case on behalf of the complainant through all legal channels. In this case, PAFSO will also provide assistance and advice to facilitate any investigation or adjudication conducted by the Commission.
To initiate the complaint process, an individual must communicate directly with a designated Human Rights Officer either by phone, fax or letter, outlining the nature of the complaint and the specific grounds of discrimination. On the basis of the information provided, the Human Rights Officer will then complete the required forms and file the complaint. Should an individual wish to initiate this process, we recommend that communications be directed to the attention of Ms. Marie Wankam, a Human Rights Officer dealing specifically with complaints involving sexual orientation, at the following address:
Canadian Human Rights Commission
National Capital Region Office
Box 2052
Postal Station “D”
Ottawa, Ontario
K1P 5W3
Fax: (613) 996-9932
Phone: (613) 996-0026
Attention: Ms. Marie Wankam, Human
Rights Officer
Should members have further questions concerning this issue, please contact the PAFSO office.
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Originally published in bout de papier, Vol. 10, No. 1 (1993) — Winter 1993 // Hiver 1993, p. 38. Read the rest of this issue →
