Leshner v. Ontario (No. 1)

1991-08-07

Ontario Board of Inquiry

Michael Leshner Complainant

v.

Her Majesty the Queen in Right of Ontario

and

Management Board of Cabinet

and

Human Resources Secretariat

and

Ministry of the Attorney General Respondents

Date of Complaint: August 25, 1988

Date of Decision: August 7, 1991

Before: Ontario Board of Inquiry, Peter A. Cumming, T. Brettel Dawson, and W. Gunther Plaut

Comm. Decision No.: 443

Appearances by: Katherine M. van Rensburg, Counsel for the Complainant Mark Hart, Anthony D. Griffin, and Joanne D. Rosen, Counsel for the Commission M. Philip Tunley, David Costen, and Robert Charney, Counsel for the Respondent Ministry of the Attorney General and Management Board of Cabinet Gita Anand, Counsel for the Respondent Management Board of Cabinet

PARTIES — BOARDS OF INQUIRY/TRIBUNALS — authority of board/tribunal to order added parties — adding respondents — added parties distinguished from amici curiae — rights of added parties — intervener status for amici curiae

Summary: This is a decision in response to a request from Great West Life Assurance Company to be added as a party in the matter of a complaint by Michael Leshner against the Government of Ontario.

Mr. Leshner alleges that he was discriminated against because of his sexual orientation by being refused coverage under employment benefit plans for his same-sex partner.

Great West Life Assurance Company is the insurer for the health and dental plans. Though the complaint is against Leshner's employer, the Government of Ontario, not against the insurer, and though the Government of Ontario has already agreed to change the offending policy with respect to health and dental benefits, Great West Life wishes to be joined as a party to the complaint because it has an interest in the outcome. Great West Life has 2,000 other policies with restrictions on benefits for same-sex partners.

The Board of Inquiry declines to make Great West Life a party to the complaint on the grounds since the complaint is not against it, it has no greater interest than other insurers who will all be affected by the interpretation of the law in this case. However, the Board agrees to give Great West Life intervener status allowing it to make written argument on the merits of the complaint.

Cases Cited

Sinclair v. Peel Non-Profit Housing Corp. (No. 2) (1989), 1989 CanLII 9069 (ON HRT), 11 C.H.R.R. D/342 (Ont. Bd.Inq.): 50

Thornton v. North American Life Assurance Co. (No. 1) (1991), 1991 CanLII 13125 (ON HRT), 16 C.H.R.R. D/162 (Ont. Bd.Inq.): 63

Legislation Cited

Canada

Income Tax Act: 10, 20

s. 20(1)(q): 10

s. 56(1)(a)(i): 10

s. 104(27)(c): 22

s. 146(1.1): 22

s. 147.1: 10

s. 147.1(1): 22

s. 147.1(2)): 10

s. 147.1(8)(a): 10

s. 147.1(11): 10

s. 147.1(18): 10

s. 147.2: 10

s. 147.2(1): 10

s. 147.2(4): 10

s. 147.3: 10

s. 149(1)(o): 10

Reg. 8501(1): 22

Reg. 8502(c): 22

Reg. 8503(2): 22

Ontario

Employment Standards Act, R.S.O. 1980, c. 137: 24

Reg. 282

s. 1(m): 24

s. 3(b): 24

s. 9(c): 24

Employment Standards Act, S.O. 1989, c. 72, s. 34(2): 23

Human Rights Code, S.O. 1981, c. 53

s. 4: 23, 44, 55

s. 4(1): 14

s. 8: 14, 23

s. 9(1)(g): 23

s. 10: 14, 23

s. 24(2): 16, 23, 27

s. 38(2)(d): 57, 63

s. 38(3): 45, 57, 63

s. 46: 24

Ontario Rules of Civil Procedure

r. 13.01: 51

r. 13.01(2): 58

Pension Benefits Act, S.O. 1987, c. 35: 9

Public Service Pension Act, S.O. 1989, c. 73

s. 3: 9, 24

Public Service Superannuation Act, R.S.O. 1980, c. 419: 9

Authorities Cited

Muldoon, Paul and David Scriven, "Intervention as Added Party: Rule 13 of the Ontario Rules of Civil Procedure" (1985) 6 Adv. Q. 129: 51, 55, 60

Muldoon, Paul and David Scriven, "Intervention as Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1985) 6 Adv. Q. 448: 51

INTRODUCTION

1This interim decision deals with a motion made by the Great West Life Assurance Company to be added as a party to the proceeding or to be given intervenor status. Given the complex and interconnected nature of the issues in this case, it is appropriate at the outset to provide some considerable background before addressing the motion.

FACTUAL BACKGROUND

2The complainant, Mr. Michael Leshner, has been employed since 1975 with the Ministry of the Attorney General, first as a law clerk to the then Chief Justice of the District Court of Ontario, and since 1976, as a Crown counsel. At the time of the hearing he worked as a Crown counsel in the downtown Toronto Crown Attorney's Office. As a government employee, he is entitled to employee benefits, including dental care, extended medical care, and pension benefits; like all other employees, he contributes financially toward these entitlements.

3Mr. Leshner is a gay man. He is in what he describes as a "common-law conjugal relationship" (Evidence, Vol. 4, p. 51) with Mr. Michael Stark. They first met in May 1981 and began to live together in February 1983. They are very public about their relationship with Mr. Leshner stating that "Michael and I clearly lived in a public way as to a same sex conjugal relationship. We had longevity, we had joint tenancy in our homes. We had financial arrangements, mutual wills. We went everywhere socially together" (Evidence, Vol. 4, pp. 111–12). They share their financial resources in an ongoing basis, and have agreed to share their assets should the relationship end (Evidence, Vol. 4, p. 151; Vol. 5, pp. 3–5).

4Mr. Leshner and Mr. Stark are fully integrated into each other's families. They have travelled together with Mr. Leshner's parents on their last two vacations and have visited with Mr. Stark's parents in Nova Scotia. Mr. Stark has accompanied Mr. Leshner to conventions and various social events including the 1984 Christmas party at the home of the then Attorney General, to which "all Crown counsel and their spouses were invited" (Evidence, Vol. 4, p. 55). In Cabbagetown, their local community within Toronto, they sat "as a recognized couple" (Evidence, Vol. 4, p. 55) on a community "Tour of Homes" in 1991 (Evidence, Vol. 4, p. 55) to raise funds for a local senior citizen complex and a youth centre. In their residential community, at the Ministry, and among their family and friends, they are known as "the Michaels" (Evidence, Vol. 4, pp. 55, 112).

5When Mr. Leshner and Mr. Stark moved in together in February 1983, they had a celebratory event to publicly recognize that they were moving in as a couple in "a relationship that to us — for all the traditional characteristics of what happens when any two people meet and fall in love and move in together and want to start a life" (Evidence Vol. 4, p. 56). In May 1991, they celebrated ten years together by hosting a catered dinner party with their close friends as a way, because "we thought it was very important to say that Michael and I are blessed. We have a happy, healthy, loving relationship" (Evidence, Vol. 4, pp. 56–57).

6The respondents accept Mr. Leshner's evidence as to the nature, quality and duration of Mr. Leshner's relationship with Mr. Stark. The respondents also fully accept that gay and lesbian relationships must be recognized and treated in our society as equal in worth and status to heterosexual family relationships. They admit that at all material times, the only fact respecting Mr. Leshner's relationship with Mr. Stark that prevented him from qualifying for the employment benefits covered by the complaint is that fact that Mr. Leshner and Mr. Stark are the same sex.

7At the time of his complaints of August 25, 1988 (Exhibits No. 4 and No. 5), the Ontario Government's group supplementary health and hospital policy (dealing with matters such as eye glasses, prescription drugs, and supplementary coverage in hospitals), dental care plan, and pension plan all allowed for "family coverage" in which benefits were extended to the "dependents" of an employee, defined to mean their "spouse" and any children.

8The Great West Life Assurance Company (Great West) contracts with the Government of Ontario to provide the policies which provide the employee benefits (other than pension benefits). These policies were described in the evidence as being "administration only," with the government being in effect a self-insurer. That is, a pool of money comprised of employer and employee contributions is provided by the government to the insurance company which holds the money in reserve. These reserves are drawn upon when the payments are made. Should the pool of money prove to be insufficient, the government "tops-up" the reserve; if the pool of money is not exhausted a refund is provided. The role of the insurance company is to provide and administer the policies. They do not underwrite the policies (Evidence, Vol. 6, p. 96). A more accurate description of the policies as "insured refund cases" has been suggested to us by Mr. Crompton for Great West in his application for status in this proceeding. Mr. Crompton agrees that the policies in place between the respondent and Great West have a "no risk" provision, but notes that Great West would be liable to fulfil the obligations to employees as provided by the insurance policies should the government be unable to provide indemnification to Great West.

9Pension benefits are provided by the respondent to employees such as Mr. Leshner through the Public Service Pension Plan (the "plan"). At the time this complaint was filed, and until December 31, 1989, the plan was governed by the Public Service Superannuation Act, R.S.O. 1980, c. 419, as amended ("P.S.S.A."). It is now continued pursuant to s. 3 of the Public Service Pension Act, S.O. 1989, c. 73 ("P.S.P.A."). The plan, like all other pension plans in Ontario, is governed generally by the provisions of the Pension Benefits Act, S.O. 1987, c. 35. With the new legislation, the P.S.P.A., certain changes were effected in the plan and benefits are payable according to service in two time periods: that covered by the P.S.S.A. prior to January 1, 1987 and that covered by the P.S.P.A. after December 31, 1986. The plan is a "defined benefit plan." This means that pension benefits payable under it are determined from the terms of the plan, rather than by reference to contributions made on behalf of a member. The plan pays survivor benefits to an eligible survivor "spouse," defined in opposite-sex terms, upon the death of the plan member before or after that member's retirement. Under the P.S.S.A., it was the definitions of "widow" and "widower" that limited eligibility for survivor benefits to opposite-sex partners. The actual amount of the survivor benefit and available payment options vary according to situations set out in the legislation. We will more fully describe the plan in our final decision.

10The plan is registered under the federal Income Tax Act ("I.T.A."). The I.T.A. provides, amongst other things, that pension plans registered under that Act (s. 147.1(2)) enjoy a certain status (ss. 147.1–147.3, Reg. Part LXXXII–LXXXV). In particular, employees and employees' contributions, within limits (ss. 147.1(8)(a), 147.2(4)), are deductible in determining taxable income (I.T.A., ss. 147.2(4), 20(1)(q), 147.2(1)). As well, income earned on the investments made by the registered pension plan are tax free (s. 149(1)(o)). Thus, there is a significant tax deferral advantage which allows for the untaxed aggregation of contributions and income earned thereon as savings for retirement, with payments out of the fund being taxed (s. 56(1)(a)(i)). An employer and employee cannot gain, nor maintain, "registered" pension plan status (s. 147.1(2), (11), (18)) without meeting all the requirements of the Income Tax Act, including those as to permissible survivor spouses. A pension plan which does not conform to the requirements of the I.T.A. is subject to deregistration with extremely negative attendant impacts from a tax standpoint (with all of the monies in the plan being taxable as income in that year). This would, of course, be a disastrous consequence for any plan in providing for income through pensions upon the retirement of employees. To maintain its "registration" under the I.T.A., the provincial government plan provides that a survivor spouse for benefits purposes must be an individual of the opposite sex. It should be noted at the outset that the Commission expressly disclaimed any request for a remedy by way of compelling an amendment to the plan to provide survivor benefits to gay and lesbian partners (Evidence, Vol. 3, pp. 22, 59). The Commission is not seeking any order from this Board which would result in the deregistration of the plan.

11In March 1988, Mr. Leshner submitted the appropriate application form to his employer seeking to amend his health care, dental care and pension plan benefits to "family coverage," in particular to cover Mr. Stark, identified by Mr. Leshner as the person with whom he was in a common law relationship (see Exhibit No. 8). That is, he sought to have Michael Stark treated in the same manner as an opposite-sex spouse would be treated in terms of receiving the benefits extended to the employee's family. Mr. Stark is himself employed but his own employee benefits package is inferior to that which would be provided through Mr. Leshner's employment benefit package (Evidence, Vol. 4, pp. 147–52).

12At the same time as he made this application, Mr. Leshner sent a memo to several senior officials with whom he worked in the Ministry of the Attorney General, setting forth his position (Exhibit No. 8). He also advanced his concerns in meetings with the then Attorney General, the then Deputy Attorney General, and the then Assistant Deputy Ministers, Criminal Law and Constitutional Law (Evidence, Vol. 4, pp. 113–21). However, the plans were administered on the basis that only opposite-sex spouses qualified for "dependant" coverage and that same-sex common law relationships were not recognized for family benefits purposes. Several memoranda passed between Mr. Leshner and senior officials in the Ministry of the Attorney General officials (Exhibits No. 12 to No. 16). A legal opinion was obtained within the Ministry and apparently suggested that Mr. Leshner had no legal basis for his claim for survivor benefits (Evidence, Vol. 4, pp. 74–77, 142). Mr. Leshner found the approach taken by the respondent toward his application to be demeaning and non-responsive. He became frustrated and angry.

13As a result of this impasse, Mr. Leshner filed his complaints on August 25, 1988, with the Ontario Human Rights Commission (the "Commission") against his employing ministry and the bodies responsible for administering employee benefits. Complaint 60-125M (Exhibit No. 4) named the Management Board of Cabinet and the Human Resources Secretariat, Benefits Policy Branch as additional respondents as it is these components of the Government which administer the employee benefits and pension plan. Complaint 60-124M (Exhibit No. 5) names the Ministry of the Attorney General as a respondent because Mr. Leshner works for this branch of Government. The two complaints are essentially one, and accordingly will be referred [to] together by the singular. As the named respondents are in substance one and the same, they too will be referred to together in the singular.

14In his complaint, Mr. Leshner alleged violation of his right to equal treatment in employment without discrimination because of sexual orientation contained in s. 4(1) of the Ontario Human Rights Code, S.O. 1981, c. 53 as amended by S.O. 1984, c. 58, s. 39 and S.O. 1986, c. 64, s. 18 (the "Code"). Mr. Leshner also raised rights pursuant to s. 8 and s. 10 of the Code. Mr. Leshner alleged that his application for benefits coverage was rejected on a homophobic rationale, the direct result of which, he argued, was the creation of a separate and unequal class of government employees whose sexual orientation is homosexual.

15Following the filing of the complaint, further memoranda, including the respondent's response to the complaint, were exchanged between the Commission and the Government (Exhibits No. 17 to No. 19).

16By letter dated June 1, 1990 (Exhibit No. 36), the Commission advised Mr. Leshner that it did not believe he had a legal basis for his claim under the Human Rights Code because of the wording of Code definition of "marital status" and the application of s. 24(2) of the Code. However, Ms. Catherine Frazee, the Chief Commissioner, wrote that same day to the Hon. Murray Elston, the then Minister responsible for the Management Board of Cabinet, the same day, urging the Government to reconsider the definitions of "spouse" and "dependent" used in the package of employment benefits (Exhibit No. 37). In turn, Mr. Leshner applied by a letter dated June 7, 1990, for a reconsideration of the decision of the Commission not to request the appointment of a Board of Inquiry pursuant to the Code (Exhibit No. 38).

17At this point in time, Mr. Leshner sought independent legal advice (Evidence, Vol. 4, pp. 104, 105, 131). He then wrote further to the Chairperson of the Commission by letters dated June 14, 1990 (Exhibit no. 39), June 22, 1990 (Exhibit No. 40), July 17, 1990 (Exhibit No. 41), July 26, 1990 (Exhibit No. 42), and August 15, 1990 (Exhibit No. 43) requesting a reconsideration in respect of the issue of employment benefits. The Chief Commissioner agreed to a board of inquiry by letter dated September 20, 1990 (Exhibit No. 44), with a further letter dated October 15, 1990 (Exhibit No. 45) giving the reasons for the favourable decision.

18Mr. Leshner continued to seek legal advice from his own counsel, on a periodic and limited basis. He gave several reasons for seeking this advice. First, he felt he "needed legal advice to deal with the lawyers for the Human Rights Commission and the Ministry of the Attorney General and the Human Resources Secretariat" (Evidence, Vol. 4, p. 140). Second, he considered the Commission's decision to proceed in September 1990 to have been made on a narrow constitutionality basis. Third, he remained sceptical as to how the Government lawyers would deal with him given that his complaint was against the Government. He considered independent legal advice to be crucial to a full consideration of his complaint (Evidence, Vol. 4, pp. 139–45).

A Board of Inquiry of which we are members, was appointed by the Minister of Citizenship, on November 21, 1990.

19It remains to be noted that a significant change in government policy was made, effective January 1, 1991, with respect to the extension of employee insurance benefits to same-sex partners of Ontario civil servants. The Hon. Francis Lankin, Minister for the Management Board of Cabinet, rose in the Ontario Legislature on December 20, 1990, to inform members that "the Ontario public service will extend family coverage for all insured, and non-insured benefits to couples of the same sex" and she indicated that "the principle that all of Ontario's laws and programs must treat people fairly, regardless of the nature of their personal relationships or their family unit" was the major consideration in these changes (Exhibit No. 6). Ms. Lankin confirmed by letter dated April 22, 1991, to Mr. Leshner, that dependent life insurance, extended medical coverage, dental insurance, and bereavement leave had all been extended to same-sex partners of Ontario civil servants as of January 1, 1991. On January 2, 1991, Mr. Leshner applied for, and subsequently obtained, these benefits (Exhibit No. 46).

20Ms. Lankin, however, indicated to the House that the extension of benefits could not include pension benefits under the Public Service Pension Plan, because of restrictions in the federal Income Tax Act which the federal government refused to amend (Exhibit No. 6, No. 34). However, during this period, officials of the Ontario Government explored with Revenue Canada, the possibility of registering an amended plan in which "spouse" would be defined to include same-sex relationships (Exhibit No. 55). A negative response was received (Exhibit No. 56). A meeting between provincial and federal officials at which this matter was on the agenda, similarly yielded no favourable result (Evidence, Vol. 7, pp. 6, 67–68, 75), although it become [sic] apparent that Revenue Canada regarded this not as a revenue matter but as a constitutional and policy matter (Evidence, Vol. 7, p. 8). A letter from Ms. Lankin to the Minister of National Revenue dated March 11, 1991 (Exhibit No. 57) yielded a reply from the Minister on May 16, 1991, to the effect that policy matters were within the responsibility of the Minister of Finance (Exhibit No. 58). A letter was sent by Mr. Tony Silipo who had become Chair of Management Board of Cabinet, to the Minister of Finance on September 6, 1991 (Exhibit No. 59), but no reply has been received to date. The Ontario Government did not further pursue amendment to the plan, nor did it appeal from the decision of Revenue Canada (Evidence, Vol. 7, p. 7). Staff of the Pension Policy Branch of the Ontario Government did, however, prepare for consideration by the Cabinet a range of options for providing the benefit outside of the plan (Evidence, Vol. 7, pp. 15, 69). No direction on the matter was received back from Cabinet ((Evidence, Vol. 7, pp. 85–86). The Ontario Government has given its commitment to amend the plan if the federal government broadens the definition of spouse in the I.T.A. to include same-sex partners (Exhibit No. 6).

RELEVANT LEGISLATION

21Several pieces of legislation have been referred to in the course of this factual narrative. For convenience, we set out the relevant provisions in this section.

22Under the Public Service Pension Plan, the term "spouse" is defined to mean (P.S.P.A., Schedule 1, s. 1):

either of a man or a woman who, (a) are married to each other, or (b) are not married to each other and are living together in a conjugal relationship (i) continuously for a period of not less than three years or (ii) in a relationship of some permanence, if they are the natural or adoptive parents, as defined in the Family Law Act, 1986, of a child.

The I.T.A. defines "spouse" as (ss. 147.1(1), 146(1.1), see also s. 104(27)(c), Regs. 8501(1), 8502(c), 8503(2)):

a person of the opposite sex (a) who is married to the individual, or (b) who is cohabiting with the individual in a conjugal relationship and (i) has so cohabited for a period of at least one year, or (b) is a parent of a child of whom the individual is a parent.

In the relevant insured benefits policies provided through Great West Life, "spouse" was defined as (Exhibits No. 23 and No. 24):

a person who (i) is legally married to the insured employee, or (ii) although not married to the insured employee, cohabits with such employee in a husband and wife relationship" [sic] with several other conditions.

Effective January 1, 1991, this definition has been amended to include cohabitation in "a continuing conjugal or homosexual relationship" (Exhibits No. 51 and No. 52).

23The relevant provision[s] of the Human Rights Code are the following. Section 4 of the Code provides that:

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

Section 8 of the Code provides that:

No person shall infringe or do, directly or indirectly, anything that infringes a right under [Part I]

Section 10 of the Code provides in part that:

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 of and of whom the person is a member

"Marital status" is defined in s. 9(1)(g) of the Code to mean:

. . . 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

Section 24(2) of the Code provides that:

The right under section 4 to equal treatment with respect to employment without discrimination because of age, sex, marital status or family status is not infringed by an employee superannuation or pension plan or fund or a contract of group insurance between an insurer and an employer that complies with the Employment Standards Act and the regulations thereunder.

Section 34(2) of the Employment Standards Act, S.O. 1989, c. 72 (E.S.A.), in effect, reaffirms s. 24(2) of the Code. Regulation 282 is the pertinent regulation made pursuant to E.S.A., and was amended as of July 1988.

24Regulation 282, s. 3(b) (in respect of pension plans) and s. 9(c) (with respect to insurance policies) are the pertinent provisions of the regulation at issue. They provide that the prohibition on discrimination because of "marital status" does not apply where the plan differentiates between an employee who does not have a "spouse" and one who does have a "spouse," by allowing for survivor benefits only to spouses. Section 1(m) in Reg. 282 defines "spouse" as meaning:

a spouse as defined in the pension, life insurance, disability insurance or benefit or health insurance or benefit plan, fund, or arrangement provided . . . by an employer to an employee"

thus referring to the definition in the relevant plans themselves.

Finally it should be noted that s. 46 of the Code provides that the Code's provisions prevail over the inconsistent provisions of other provincial legislation such as the Employment Standards Act, R.S.O. 1980, c. 137, as amended and the Public Service Pension Act.

ISSUES

25A multitude of complex issues arise in respect of the complaint and it is well to set them out fully to provide the necessary backdrop to consider the scope and ramifications of the motion for status made by Great West.

261. What is the proper scope of the complaint for this Board of Inquiry? Clearly, there is an outstanding issue as to the availability to gay and lesbian employees in a conjugal relationship, or "survivor benefits" under the Public Service Pension Plan. However, the respondent asserts that the decision by the Ontario government to extend other employee family benefits (dental, extended medical coverage), has rendered this aspect of the complaint moot. It is thus necessary to determine whether the issue of employee benefits other than pension benefits, is moot.

272. What is the correct characterisation of any discrimination in this case? The respondent, for the purposes of this complaint has conceded that there was prima facie discrimination against Mr. Leshner on the prohibited ground of sexual orientation (Evidence, Vol. 5, p. 124; Evidence, Vol. 5, p. 45). However, the respondent has vigorously asserted and the Commission and complaint [sic] denied, that the discrimination was also "marital status" discrimination in that the Code ascribed a single status to Mr. Leshner or that the definition of marital status under the Code is limited to relationships between persons of the opposite sex. Thus, the respondent submits that the Code contemplates at least some distinctions in treatment between persons in opposite-sex relationships and persons in same-sex relationships. The matter has practical significance in interpreting the scope and application of s. 24(2) of the Code to this complaint; it also has considerable importance in relation to the principles underlying the basis for any decision we may reach. Thus, it must be determined whether the denial of benefits constitutes a prima facie breach of the Code, and if "yes," what the operative ground(s) of discrimination may be.

283. If there has been a prima facie breach of the Code, who is it that infringed the Code? Is the infringing party the respondent or is the infringing party in reality the federal Government which refuses or neglects to amend s. 146(1.1) of the Income Tax Act to allow registered pension plans to provide for same-sex survivor benefits? That is, "who infringed the right" within the meaning of s. 38(1)(b) of the Code?

294. If the respondent is prima facie in breach of the complainant's right to "equal treatment" under s. 4(1) of the Code, does the respondent have a defence pursuant to s. 24(2) which states that there is not an infringement of a right where, as here, the "pension plan . . . complies with the Employment Standards Act and regulations thereunder"? This exception or defence applies only where the prohibited ground of discrimination is "age, sex, marital status or family status . . ."

305. Related to this issue concerning s. 24(2) of the Code is the issue that if s. 24(2) is considered to create an exception, is the definition of "spouse" in Reg. 282, s. 1(m) under the Employment Standards Act ultra vires the regulation-making power of said Act on the basis of being an impermissible sub-delegation of power to override the requirements of s. 34(2) of said Act?

316. If Reg. 282 is valid, does the pension plan fail to comply with it because the relevant definitions of "spouse" in the plan are not consistent with the purposes underlying Reg. 282 and create an arbitrary and unreasonable distinction?

327. If s. 24(2) applies to this case and is interpreted to be prima facie operative in favour of the respondent, then does the Board have the jurisdiction to consider the constitutionality of this section of the Code pursuant to s. 15 of the Canadian Charter of Rights and Freedoms and to decide that s. 24(2) of the Code is of no force and effect to the extent of any permitted exclusion of benefit coverage for gay and lesbian relationships. The respondent has taken the position after argument, that Board of Inquiry has jurisdiction should such a consideration be necessary (Evidence, Vol. 3, pp. 111, 119). However, we accept that this Board does not have jurisdiction to address the constitutionality of the registration criteria for pension plans contained in the Income Tax Act, which is federal legislation.

338. If the Board of Inquiry has jurisdiction to consider a Charter issue, and if s. 24(2) of the Code is prima facie available to the respondent, is s. 24(2) of the Code inconsistent with the equality rights of Mr. Leshner, which are guaranteed by s. 15 of the Charter? This issue includes consideration of whether "sexual orientation," not being an enumerated ground, is an analogous ground under s. 15 of the Charter guarantee [sic]. The respondent concedes that sexual orientation is an analogous ground (Evidence, Vol. 5, p. 124).

349. If s. 24(2) is found by this Board to be in breach of s. 15 of the Charter, is s. 24(2) a reasonable limit prescribed by law and demonstrably justified in a free and democratic society as established by s. 1 of the Charter and thereby "saved" in its operation by s. 1?

3510. Assuming cumulatively that there is a breach of the relevant Code provisions, and a breach of Mr. Leshner's equality rights under the Charter which is not saved by s. 1 of the Charter, what does the right to "equal treatment" under s. 4(1) of the Code require with respect to the availability of "survivor benefits" to gay and lesbian couples under the terms of the complainant's pension plan? Must "survivor benefits" be on precisely the same basis available to opposite-sex couples? If this is impossible given the apparent failure of the federal Government to amend the I.T.A., then can the requirement of "equal treatment" be satisfied by equivalent treatment designed to give an equality of outcome from Mr. Leshner's point of view, through, for example, a separate, parallel arrangement?

3611. Assuming that it is necessary to fashion a remedy in this case, if a remedy to achieve equivalent or comparable treatment through a separate, parallel arrangement to provide a survivor pension benefit is seen as appropriate, does cost to the employer of setting up and operating such a scheme become a relevant factor?

3712. Again assuming that we reach the point of considering remedies, what are the appropriate remedies if the respondent is found to be in breach of the Code and how should they be fashioned?

3813. A final issue with respect to remedies concerns whether Mr. Leshner should be awarded his legal costs incurred in respect of legal counsel in this proceeding.

MOTION OF GREAT WEST LIFE ASSURANCE COMPANY

39With this factual background and statement of the issues in place, it is now possible to locate the place of Great West Life Assurance's motion to be added as a party, or as an intervenor in these proceedings.

40Counsel for Great West first appeared before the Board of Inquiry on December 6, 1991 (see Exhibit No. 82*). Great West then appeared a second time, on what was scheduled to be the second last day of argument, on January 23, 1992, with a motion that Great West be added as a party or be given intervenor status.

41When the hearing originally commenced on December 19, 1990, counsel for the Commission advised the Board that as the insurance policies of Great West might be the subject of scrutiny during the hearing, Great West had been advised as to the dates for the hearing (Evidence, Vol. 1, pp. 9, 10, 11). Great West's policies (Exhibits No. 22 and No. 23 [prior to amendment]; Exhibits No. 51 and 52 [after amendment]) provide the supplementary health and hospital benefits, and dental care benefits, to the Ontario Government's employees, including Mr. Leshner.

42On December 4, 1990, counsel for the Commission had given notice to Great West of this matter, and the possibility that the Board might make a ruling relating to the definition of "spouse" in its policies that applied to Ontario public service employees like the complainant. In February 1991, counsel for Great West wrote to counsel for the Commission confirming a telephone conversation that the complaint, as it related to the benefits issues arising pursuant to the insurance policies (see Exhibits No. 22 and No. 23, Exhibits No. 51 and 52), appeared to be resolved (Evidence, Vol. 4, p. 3) in light of the revision of the policies to provide same-sex benefits, at the request of the respondent. The respondent has submitted that it believed that by having changed the policies effective January 1, 1991, that the complaint was moot in respect of all benefits other than pension benefits. When the hearing recommenced on October 9, 1990 after an adjournment, the respondent was made aware that the Commission and Mr. Leshner were seeking damages with respect to the insured benefits for the period covered by the complaint prior to the change in coverage of the policies (Evidence, Vol. 4, p. 12).

43However, by letter dated November 25, 1991, Commission counsel stated that the insurance policies of Great West with the Government of Ontario for the period March 1988 to 1990, "are directly in issue" (Evidence, Vol. 4, p. 4; Exhibit No. 77) and that the Board would be asked to determine that the provisions of the policies were in violation of the Code. Hence the appearance by Mr. Lamek for Great West at the next scheduled hearing date of December 6, 1991.

44Counsel for the Commission responded to Great West's concerns by emphasizing that the complaint is framed as a violation of s. 4 of the Code which protects against unlawful discrimination in respect of employment. It was submitted that the complainant was proceeding in his complaint against his employer, and had no relationship with Great West that was covered by the Code; nor was any remedy being sought against Great West. The direct issue was rephrased as not being whether the policies discriminated, but whether the Government as employer failed to provide non-discriminatory employment benefits to Mr. Leshner. The insurance policies are regarded as simply the vehicles for providing the benefits in issue. Moreover, the Commission noted that Great West is not a named respondent.

45The complainant's assertion is that the benefits of the policies were discriminatory and that the employer is solely responsible for such discrimination. Neither the Commission nor the respondent sought to add Great West as a party. At the hearing December 6, 1991, it was left to Great West to determine whether it wanted to seek status before the Board (Evidence, Vol. 4, p. 34). By letter dated January 21, 1992 (Exhibit No. 81), Mr. Cromptom as counsel for Great West advised the Board that he was seeking the opportunity to participate in the proceedings and to request an order to be made a party under s. 38(3) of the Code. This request appeared to be premised on an incorrect assumption that the Board would give an advance decision in respect of the issue of the mootness of the issues relating to the insured benefits. The request for status to participate in the proceedings appeared to be further premised upon the Board deciding that the issue with respect to insured benefits was not moot.

46On January 22, 1992, the Board conveyed to Mr. Crompton through his student-at-law, that we were willing to hear him the following day for the purpose of setting a time for argument of a formal motion for Great West to be added as a party of the proceedings. This date was subsequently set as February 7, 1992, and argument on the motion took place on that day. We reserved our decision on this motion.

47Great West seeks to be added as a party pursuant to s. 38(2)(d) [and] (3) of the Code, which provides:

(2) The parties to a proceeding before a board of inquiry are . . .

(d) any person appearing to the board of inquiry to have infringed the right;

(3) A party may be added by the board of inquiry under clause 2(d) . . . at any stage of the proceeding upon such terms as the board considers proper.

48The request is unusual, perhaps unique, because neither of the existing parties seeks to add Great West as a party. Rather, Great West seeks to be added as a party of its own volition. Great West's concerns arise because the provision of its employee benefits insurance policies in place with the Government of Ontario in place between March 1988 and December 31, 1990, may be in issue in the proceedings before this Board (see Exhibit No. 77, Tab No. 3; counsel for Commission's letter dated November 25, 1991). As Great West has perhaps 2,000 remaining policies extant with the same wording through other employers, Great West asserts an interest in the legal status of these policies and is concerned by the precedential value of any ruling by this Board that puts the legal status of their remaining policies in doubt. The respondent has conceded a prima facie violation of s. 4 in respect of the policies in effect prior to January 1, 1991, and has chosen not to raise any defences to this prima facie infringement (Evidence, Vol. 10, p. 5; counsel for Commission's written argument paras. 55 and 56). Thus, it is entirely possible for the Board to find the respondent to have been in breach of its employment obligations under the Code with respect to these policies. Indeed, the Commission seeks an order to this effect under s. 40(1) of the Code. This potential outcome is clearly of concern to Great West (Evidence, Vol. 10, p. 4; respondent's written argument para. 120(c)(i)).

49Great West submits that [the] respondent has not raised all the defences available to an employer or insurer that would be raised in defence of a complaint similar to the one before the Board (Evidence, Vol. 10, pp. 3, 4, 24). Great West submits that its policies are effectively under attack but that it is not in the position to defend the wording of those policies.

50In adding a party to a proceeding, it is clear that the Board has wide discretion; parties may be added if they appear to have infringed the right in question and they may be added "at any stage of the proceeding on such terms as the board considers proper" (s. 38(2)(d); and 38(3)). A board of inquiry has an additional discretionary jurisdiction to grant intervenor status to parties who might assist the Board. See Sinclair v. Peel Non-Profit Housing Corporation (1989), 1989 CanLII 9069 (ON HRT), 11 C.H.R.R. D/342 (Ont. Bd.Inq.) at para. 10 [D/344].

51Rule 13.01 of the Ontario Rules of Civil Procedure sets forth the rule permitting a court to grant leave to a non-party to intervene in a proceeding. We have found the approach taken in this Rule to be helpful in weighing our response to Great West Life's motion. Rule 13 delineates two avenues for intervention by a stranger in a proceeding: intervention as added party (r. 13.01(1)) and intervention as friend of the court (traditionally called amicus curiae) (r. 13.01(2)). Two very helpful articles, by Paul Muldoon and David Scriven, "Intervention As Added party: Rule 13 of The Ontario Rules of Civil Procedure" (1985) 6 Adv. Q. 129, and "Intervention as Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1985) 6 Adv. Q. 448, undertook an early examination of the scope and application of r. 13 and offer considerable guidance as to the operation of r. 13.

52An intervenor as added party usually gains all the rights and liabilities as possessed by the original parties in the proceeding, for example, to file pleadings, introduce evidence, examine and cross-examine witnesses, argue, and appeal an adverse ruling (Muldoon and Scriven, supra, p. 132). However, an intervenor as friend of the court, being present for the purpose of rendering assistance to the court, is granted a much different status. The court determines the entire extent of the intervenor's rights, which at a minimum include the right to present oral or written argument (Muldoon and Scriven, supra, p. 132).

53Rule 13 of the Ontario Rules of Civil Procedure provides:

13.01(1) Where a person who is not a party to a proceeding claims,

(a) an interest in the subject matter of the proceeding;

(b) that he or she may be adversely affected by a judgment in the proceeding; or

(c) that there exists between him or her and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding,

the person may move for leave to intervene as an added party.

13.02 Any person, may, with leave . . ., and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

Under r. 13.01(1) leave to intervene as an added party may be given in three circumstances. Great West submits it meets each one of the three categories. Each must be addressed.

(a) Where a person who is not a party to a proceeding claims an interest in the subject matter of the proceeding;

54Great West submits that it is sufficient that the proposed intervenor have a "vital" or a "legitimate and substantial" interest in the subject-matter (Muldoon and Scriven, supra, p. 148). This approach eliminates any consideration as to the effect an order may have upon the proposed intervenor. In this case, Great West has some 2,000 policies with wording similar to that in the Government of Ontario's unamended policies. Great West submits that there is thus a sufficient legitimacy of interest to permit an intervention. However, Great West has no continuing interest in the policies which may form the subject matter of the proceeding; they have already been changed to provide coverage for gay and lesbian relationships. Undoubtedly, Great West Life has a general and prospective interest in the principles and approaches underlying the Board's consideration of discrimination in insured benefits against gay and lesbian employees. We [will] return to this point later.

(b) Where a person who is not a party to a proceeding claims that it may be adversely affected by a judgment in the proceeding;

55Under this ground, Great West submits that the tribunal need only examine the resulting impact of its judgment on the proposed intervenor. That is, the "interest test is bypassed" (Muldoon and Scriven, supra, p. 149). Great West claims it would be "adversely affected" by a judgment in favour of the complainant, given the attacks that might then be made by others upon its policies with like wording in defining "dependent," notwithstanding that the policies which may be in issue in this proceeding, are described as "insured refund" (Evidence, Vol. 10, p. 10) situations. In Great West's submission there is an element of potential liability in the event of a failure by the government to indemnify the company and the policies are no different in essence from the bulk of their policies. Thus, Great West argues that it may suffer an adverse affect [sic] from a ruling of this Board. We note that any "adverse affect" [sic] would be suffered by any other insurance company offering similar policies. We also note that in the absence of a defence being raised to the prima facie discrimination, the actual import of any finding made by this Board in relation to the obligations of employers with respect to employment benefits for their gay and lesbian employees, would be limited to finding of prima facie discrimination. On the wording of s. 4 of the Code alone, there could be little objection to such a finding by the Board. Any question mark that might be left over similar policies in different employment situations could be resolved by full argument of defences by an employer who wishes to take that approach. If, as Great West submits, it offers 2000 policies containing similar opposite-sex eligibility limitations, it is possible that such an opportunity may arise in the future.

(c) Where a person who is not a party to a proceeding claims that there exists between it and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

56Great West submits that on this basis also it should be added as a party. However, we find that the pertinent facts are undisputed, and that there is no apparent question of law at issue between Great West and either of the parties in this proceeding.

57In addition to considering Great West's position under these categories, we find that given that the complaint is directed solely at the employment relationship of the complainant and respondent we do not think it can be said that Great West is a "person appearing to have infringed the right" to freedom from discrimination in employment within the meaning of s. 38(2)(d) [and] (3) of the Code.

58Finally, we reiterate that a tribunal must consider whether the proposed intervention would "unduly delay or prejudice the determination of the rights of the parties to the proceeding" (r. 13.01(2)). If Great West were to be an added party, this hearing, virtually at an end, would probably not conclude for quite some time depending upon the evidence that Great West might possibly seek to introduce and the time it would take for Great West to review the record and make its determination in this regard.

59However, in our view, there has been a wide-ranging gathering of the relevant evidence. We have not been told what further evidence is necessary or that there is some evidence not before us that could have a beneficial impact upon the adjudication of issues. Great West in its submissions did not refer to any concrete items of evidence it would seek to introduce as a party (Evidence, Vol. 10, pp. 21, 22), other than to corroborate the submission that Great West has many continuing policies with other employees with the wording seen in its policies with the Ontario Government prior to January 1, 1991 (Evidence, Vol. 10, pp. 22, 33). This submission was not challenged. Insofar as the introduction of evidence is concerned, we believe the interests of Great West have, in effect, been already adequately represented by the respondent. Finally, given the lateness of Great West's application, we think it inappropriate that Great West be added as a party. Accordingly, we dismiss its application to be added as a party.

60Rule 13.02 further provides for leave to intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. Since the amicus is granted status to intervene as friend to assist the tribunal, the tribunal retains "an absolute discretion as to whether or not to grant the application" (Muldoon and Scriven, supra, p. 462). The courts generally assume that assistance is only appropriate in a situation where the proposed intervenor can usefully be an "advisor" to the court or alternatively a "protector of rights," of a person not a party to the litigation (Muldoon and Scriven, supra, p. 464).

61Great West maintains it can be a suitable "advisor" because the respondent is not defending the policies in issue. As well, Great West claims to be a "protector of rights" in respect of all insurance companies, like itself, which have policies with wording like those in the policies at hand.

62Canadian courts are fairly receptive to amicus applications in "public interest" matters. Muldoon and Scriven set forth the criteria for a court's consideration (supra, p. 467):

(1) as a general rule, amicus intervention should be looked upon more favourably in cases involving matters of public interest than cases where only private rights are concerned;

(2) the characterization of "matters of public interest" should be made in a liberal and common sense fashion with the understanding that, while on one hand almost every decision of the court affects the public in one way or another, any issues, even those couched in terms of private litigation, carry with them significant implications for the development and implementation of public policy and the public rights;

(3) as a general rule, interventions should be permitted only where the proposed applicants can demonstrate that they have a significant commitment to the matters that are represented in the issue presented; and

(4) as a general rule, interventions should be favourably considered where the issue to be argued is more likely to be understood in terms of its practical implication or impact or where the intervenor may bring to the exposition of the problem or to its solution a dimension or argument, experience or understanding which the court may find useful.

63As noted, a tribunal such as this Board has considerable discretion in dealing with an application for intervention. In Thornton v. North American Life Assurance Company, (Interim decision dated December 27, 1991, as yet unreported, W. Gunther Plaut, constituted as an Ontario Board of Inquiry [now reported 1991 CanLII 13125 (ON HRT), 16 C.H.R.R. D/162]), reviewed the considerations appropriate to an application to add a party under s. 38(2)(d) [and] (3) of the Code. In that case a complaint had been brought against an insurer for denying a long term disability. The insurer sought to add the complainant's employer (with whom the insurer contracted) as a party (at pp. 8, 9). The Board in that case added the employer as a party, as it was seen as possibly expanding the remedies available to the complaint, should it be determined that there was a breach of the Code (at p. 11). There is no such possibility of providing different or broader remedies in the instant case before us, as the policies have been changed. Indeed, neither the Commission nor the complainant seeks any remedy against Great West Life, particularly as they amended the policies when requested to do so by the respondent.

64Having said this, we agree that, though the respondent's argument was very thorough, cogent, and forceful, it was put forth by the respondent, whose situation in respect of the legal issues departs somewhat from a more comprehensive argument, expanded to include the perspective of Great West with respect to the very complex issues at hand. As well, Great West represents a large constituency in respect of the issues it wishes to address. The issues also may be better understood in terms of practical implications of impact through Great West's contribution to argument.

65As well, there is an obvious "public interest" in respect of human rights issues and Charter issues generally, and particularly in respect of many of the complex issues before this Board. The decision of this Board will carry with it significant implications for the development and implementation of public policy. Even though Great West's arguments would not modify the concessions made by the respondent insofar as the respondent is concerned, the arguments could remain relevant to the broader question of properly characterizing the language of the wording of the former policies in terms of the legal issues. [The] respondent's counsel did not oppose Great West's application and expressed "considerable sympathy with Great West's perceived interest and application" (Evidence, Vol. 10, pp. 39, 40) to be an intervenor. Given these circumstances, we are prepared to give leave to Great West, without being made a party to the proceeding, to intervene for the purpose of rendering assistance to the Board by way of argument.

66For practical purposes, there are concessions made by the respondent which Great West cannot change. However, there are underlying important principles unaffected by the concessions which should be addressed by the Board in making its decision. The intervenor is invited to speak to such matters.

67Given all the circumstances, this Board allows the motion of Great West Life to intervene in this proceeding for the purpose of rendering assistance to the Board by way of argument. Great West's status is to be that of intervenor as a friend of the Board; it is not that of an added party to the proceeding. The record will stand as to the evidence introduced. The concessions made by respondent as to the evidence and legal issues stand. Great West has the latitude to argue as it considers to be appropriate, with respect to the law as it applies to the evidence.

ORDER

681. The Great West Life Assurance Company is herewith given intervenor status in this proceeding for the sole purpose of rendering assistance to the Board of Inquiry by way of argument.

2. The Great West Life Assurance Company may provide a written argument to the Board, with copies to the parties and counsel, by May 1, 1992 [sic].

3. The parties may provide their arguments in response to the written argument of the Great West Life Assurance Company, by May 15, 1992 [sic].

4. The Great West [Life] Assurance Company may provide its reply argument by May 22, 1991.

5. This hearing will be considered to have concluded as of May 22, 1991.

• Ed. note: Exhibits not published here.