Elizabeth Clinton v. Ontario Blue Cross, 1993 CanLII 16436

Ontario Blue Cross v. Ontario (Human Rights Comm.) (No. 2)

1993-07-14

Ontario Board of Inquiry

Elizabeth Clinton Complainant

v.

Ontario Blue Cross Respondent

Date of Decision: July 14, 1993

Before: Ontario Board of Inquiry, Jeffry A. House

Comm. Decision No.: 510A

Appearances by: Elizabeth Clinton, on her own behalf Catherine Bickley, Counsel for the Ontario Human Rights Commission Janice Baker, Counsel for the Respondents

SEXUAL ORIENTATION — FAMILY STATUS — employee benefits denied to partner in homosexual partnership — homosexual partnership protected by human rights legislation — definition of sexual orientation and marital status — INTERPRETATION OF STATUTES — legislative intent — definition of "discrimination," "marital status" and "sexual orientation" — DISCRIMINATION — definition of discrimination

Summary: The Board of Inquiry rules that Ontario Blue Cross discriminated against Elizabeth Clinton because of her sexual orientation by refusing to provide benefits under Clinton's employee benefit plan to her same-sex partner.

Ms. Clinton is a registered nurse. She lives in a conjugal relationship with Laurie Ann Mercer. In 1990 Ms. Clinton filled out an application for family benefits under her Group Benefit Plan Agreement indicating that she wished Ms. Mercer to be covered as her common-law spouse. This application was denied.

The Ontario Human Rights Code currently prohibits discrimination in employment and employment-related benefits because of marital status and sexual orientation. However, in s. 25(2) it allows discrimination in the terms of benefit plans on the grounds of age, sex, marital status and family status. The Board of Inquiry examines and rejects the approach to interpreting these provisions of the Ontario Human Rights Code adopted in the recent decision Leshner v. Ontario (No. 2).

In the Leshner decision the Board of Inquiry found that the prohibition against discrimination on the grounds of marital status only barred discrimination against opposite-sex couples and therefore allowed discrimination against same-sex couples. Having found that persons in same-sex relationships are outside the ambit of the ground "marital status" because of its limitation to opposite-sex couples, the majority in the Leshner decision went on to find that the definition of marital status in the Code offends s. 15 of the Charter and that the words "of the opposite sex" must be read out of the Code definition if it is to comply.

The Board of Inquiry finds that since the ground "marital status" does not deal with persons in same-sex relationships, it is not a relevant ground in this complaint. No resort to the Charter is necessary as there is no conflict between marital status and sexual orientation. Since s. 25(2) does not include sexual orientation the Code does not allow discrimination based on sexual orientation in the terms of benefit plans.

The Board of Inquiry defines sexual orientation as the capacity, or the perceived capacity, to be sexually attracted to a person of the same sex. Because the sex of one's conjugal partner is a fact strongly related to sexual orientation, consequently discrimination on the basis of the sex of one's conjugal partner is discrimination based on sexual orientation.

The Board of Inquiry concludes that Elizabeth Clinton was discriminated against because of her sexual orientation when she was denied benefits which would have been available to her had her partner been of the opposite sex.

The Board orders the respondent Ontario Blue Cross to pay Ms. Clinton $4,000 as compensation for the loss of dignity involved in the denial of benefits. It also orders Blue Cross to make benefits available to same-sex couples, to delete the words "of the opposite sex" from any benefit plans in effect in Ontario, and to refrain from offering any benefit plan in Ontario which discriminates against conjugal partners of the same sex.

[Ed. Note: See also preliminary decision (1993), 1993 CanLII 16452 (ON HRT), 18 C.H.R.R. D/375.]

Cases Cited

Andrews v. Law Society of British Columbia (1989), 1989 CanLII 2 (SCC), 10 C.H.R.R. D/5719 (S.C.C.): 37

Blatt v. Catholic Children's Aid Society (1980), 1980 CanLII 3907 (ON HRT), 1 C.H.R.R. D/72 (Ont. Bd.Inq.): 21

Booker v. Floriri Village Investments (1989), 1989 CanLII 9077 (ON HRT), 11 C.H.R.R. D/44 (Ont. Bd.Inq.): 23

Bosi v. Michipicoten (Township) (1983), 1983 CanLII 4724 (ON HRT), 4 C.H.R.R. D/1252 (Ont. Bd.Inq.): 23

Brooks v. Canada Safeway, 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219, 10 C.H.R.R. D/6183: 37

Brossard (Ville) c. Québec (Comm. des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279, 10 C.H.R.R. D/5515: 29

Cameron v. Nel-Gor Castle Nursing Home (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 (Ont. Bd.Inq.): 46

Egan v. Canada, 1991 CanLII 8247 (FC), [1992] 1 F.C. 687 (F.C.A.): 10, 33, 42

Haig v. Canada (1992), 1992 CanLII 2787 (ON CA), 16 C.H.R.R. D/226 (Ont. C.A.): 26

Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252, 10 C.H.R.R. D/6205: 38

Knodel v. British Columbia (Medical Services Comm.) (1991), 1991 CanLII 3960 (BC SC), 58 B.C.L.R. (2d) 356 (B.C.S.C.): 33

Layland v. Ontario (Minister of Consumer and Corporate Relations) (March 15, 1993), File No. 234/92 (Ont. Div.Ct.): 10, 32

Leshner v. Ontario (No. 2) (1992), 1992 CanLII 14288 (ON HRT), 16 C.H.R.R. D/184 (Ont. Bd.Inq.): 8, 10, 12, 17

Lor-Wes Contracting Ltd. v. M.N.R., 1985 CanLII 5594 (FCA), [1986] 1 F.C. 346: 19

Mark v. Porcupine General Hospital (1984), 1984 CanLII 5081 (ON HRT), 6 C.H.R.R. D/2538 (Ont. Bd.Inq.): 23

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 36

Thomson v. Canada, 1988 CanLII 9441 (FCA), [1988] 3 F.C. 108: 19

University of Alberta v. Alberta (Human Rights Comm.) (1992), 1992 CanLII 30 (SCC), 141 N.R. 1, 17 C.H.R.R. D/87 (S.C.C.): 29

Legislation Cited

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 15: 9, 10, 15, 17, 33, 44

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43: 46

Human Rights Code, 1981, S.O. 1981, c. 53, s. 9(g): 22

Human Rights Code, R.S.O. 1990, c. H.19: 11, 44

s. 5: 1, 28

s. 5(1): 8, 41

s. 9: 1, 8

s. 25(1): 13, 16, 22, 28, 39, 41

s. 25(2): 13, 16, 22, 28, 30, 41

s. 41(1)(b): 45

Women's Equal Employment Opportunity Act, R.S.O. 1970, c. 501: 20

Authorities Cited

Driedger, Elmer A., Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983): 17

Valverde, "Gay Couples and Spousal Recognition": 34

BACKGROUND

1By letter dated January 15, 1993, I was appointed by the Ontario Minister of Citizenship as a board of inquiry to hear and decide the complaints of Elizabeth Clinton alleging discrimination in employment and services on the basis of sexual orientation contrary to the Human Rights Code [R.S.O. 1990, c. H.19] ss. 5 and 9. The parties respondent originally included York County Hospital, where the complainant was, at all relevant times, employed; Ontario Blue Cross; the Ontario Hospital Association; and Mr. Gord Cunningham. On June 3, 1993, Commission counsel informed me that the complaint against the Ontario Hospital Association and Mr. Cunningham would not be pursued. There being no objection, I ordered that they be removed as parties.

THE EVIDENCE

2The facts which the Human Rights Commission sought to establish were provided to the Board by two witnesses, the complainant, Elizabeth Clinton, and an expert witness, Professor Mariana Valverde of York University. The respondents called no witnesses, and in fact did not cross-examine extensively.

3I was also provided with a number of written documents, including the collective agreement binding the employer and the complainant's bargaining agent, the Ontario Nurses Association, various applications made by Ms. Clinton for benefits under the group insurance benefit plan, as well as a copy of the group benefit plan itself.

In their arguments, neither counsel for the Commission nor counsel for the respondent alluded to any fact being in dispute, and I believe that it is fair to say that there is agreement between the parties as to the essentials of the case, at least.

4Elizabeth Clinton testified that she has been a registered nurse since 1980, and has been employed by the respondent since that time. In May 1988, she began to be sexually intimate with a female friend, Ms. Laurie Anne Mercer. The relationship developed throughout 1988 with the two women living in the same premises in a conjugal relationship since July 1988. In May 1989, they purchased a condominium together.

5Although Ms. Clinton was uncertain as to the legal terminology, I find that they hold this property as joint tenants. They have otherwise intermingled their financial affairs by way of a joint credit card account, wills which name one another as executrix and major beneficiary, and mutual powers of attorney. In 1991, they celebrated a "Holy Union" ceremony in their church, exchanging vows in the presence of their community, friends and their closest living relatives. Ms. Clinton testified that they intend to have a child, and they are hopeful that Ms. Mercer is pregnant at this time. Ms. Clinton testified that they have taken steps to change their wills to take the hoped-for child into account, both financially and in terms of guardianship by the other in case of the death of one of the two of them. She stated that, in her opinion, the only difference between her relationship with Ms. Mercer and a heterosexual marital or common-law relationship is that "one of us is not male."

6In June 1990, due to changes in Ms. Mercer's employment situation, it was decided that Ms. Clinton would apply for family benefits under the groups benefit plan agreement. Exhibits C-6, C-7 and C-8 were filed, and indicate that the required applications were completed by Ms. Clinton on June 18, 1990. The applications vary slightly in wording, but indicate that Ms. Clinton wished to have Ms. Mercer recognized as a common-law spouse. Later that same day, management advised her that Ontario Blue Cross Insurance coverage held by the hospital did not allow for same-sex partners to receive benefits and therefore the application was refused.

7The collective agreement, Exhibit C-5, sets out, in article 17, the hospital's obligation to provide health care benefits and dental benefits under the existing plan or comparable coverage. Exhibit C-9, the group benefit plan agreement, defines "dependent" as follows:

"Dependent" means either the legally married spouse of the employee, or a person of the opposite sex to the employee who is cohabiting with the employee in a common-law relationship and who is publicly represented as the employee's spouse; or the naturally, legally adopted, step child, or foster child of the employee or spouse who is unmarried, unemployed and dependant on the employee or spouse for financial support, and who is less than 21 years of age.

THE POSITION OF THE HUMAN RIGHTS COMMISSION

8It is the position of the Human Rights Commission that the limitation of the benefit to cohabitation between opposite-sex partners constitutes unlawful discrimination in employment or benefits, contrary to the Human Rights Code, ss. 5(1) and 9.

According to counsel for the Human Rights Commission, the law in Ontario on this question is set out in Leshner v. Ontario (No. 2)(1992), 1992 CanLII 14288 (ON HRT), 16 C.H.R.R. D/184.

9In Leshner, supra, a Crown employee had applied for benefits for his long-time conjugal partner, also male. The applicant, Mr. Leshner, sought to have his partner treated in the same way as an opposite-sex partner would be treated with respect to benefits. The Board of Inquiry hearing the matter wrote two concurring judgments: the majority judgment found that a policy to exclude same-sex conjugal partners from benefits was allowable under the Human Rights Code, absent any Charter considerations, but ultimately unlawful when measured against s. 15 of the Charter [Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11]. The concurring minority judgment found that the policy violated the Human Rights Code itself, since it constituted discrimination on the basis of sexual orientation, and that therefore reference to the Charter was unnecessary. Counsel for the Commission, Ms. Bickley, asked me to follow either the minority or the majority judgment, both of which lead to the same result, that unlawful discrimination had occurred when Ms. Clinton was denied opportunity to obtain benefits for her conjugal partner because of her sexual orientation.

THE POSITION OF THE RESPONDENTS

10Ms. Baker for the respondents disagreed. She submitted that, as the majority in Leshner, supra, concluded, the Human Rights Code taken in isolation, does permit employee benefit plans to deny benefits to same-sex couples. She further submitted that the Leshner decision was wrong insofar as it struck down the definition of "marital status" as contrary to the Charter, s. 15. In support of the latter position, she provided me with two cases, Layland v. Ontario Minister of Consumer and Corporate Relations (March 15, 1993), File No. 234/92 (Ont. Div.Ct.) [unreported] and Egan v. Canada (April 29, 1993), File No. A-1335-91 (F.C.A.) [unreported] [now reported 1991 CanLII 8247 (FC), [1992] 1 F.C. 687]. As a consequence, she argued, what remains as the law in Ontario is the Leshner majority decision except for its Charter analysis. The result, she submits, is that the law permits denial of employee benefits to same-sex dependents.

11As noted, both authorities, Layland, supra, and Egan, supra, are relevant to the question of whether the Leshner, panel was right to find that the definition of "marital status" violates s. 15 of the Charter, but not relevant to the interpretation of the Human Rights Code itself, or to the question of whether a denial of benefits to same-sex couples is allowed under the Code. I propose to address this latter question first.

Does the Ontario Human Rights Code permit a denial of benefits to same-sex couples?

THE LESHNER DECISION

12Both counsel agree that the Leshner majority answered this question in the affirmative. While Leshner has obviously great persuasive value, I am not, as a matter of law, bound by it. I therefore propose to analyze the manner in which the Leshner majority arrived at the conclusions it did.

13The Leshner majority first asked itself whether there had been any prima facie infringement of a right under the Code. After finding as a fact that Mr. Leshner had been denied the right to receive employment benefits on behalf of his male conjugal partner, and that this denial constituted prima facie discrimination under the Code, the Board held [at p. D/196, para. 73] that:

At first impression, then, there is a denial of equal treatment in employment benefits because of sexual orientation and a breach of s. 5(1) of the Code, and it would follow that the Code should offer the complainant redress. However, this brings us to a discussion of s. 25(2) of the Code, and its impact.

The relevant sections read as follows:

25(1) The right under section 5 to equal treatment with respect to employment is infringed where employment is denied or made conditional because a term or condition of employment requires enrolment in an employee benefit, pension or superannuation plan or fund or a contract of group insurance between an insurer and an employer, that makes a distinction, preference or exclusion on a prohibited ground of discrimination.

(2) The right under section 5 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 or fund or a contract of group insurance plan between an insurer and an employer that complies with the Employment Standards Act and the regulations thereunder.

14The Board then noted that s. 25(2) exempts employment benefit plans which discriminate with respect to only four specified grounds: "age, sex, marital status, and family status." At this point, the Board notes that "marital status" under the Code is defined in such a way as to exclude same-sex couples from its ambit. The majority then goes on to state [at p. D/198, para. 89] that "As a matter of statutory interpretation, ss. 5(1), 10(1) and 25(2) must be read together. We are faced with the clear language of the definition of ”˜marital status' (and ”˜spouse') in s. 10(1)."

15Having found that the definition of "marital status" operates to make legal those employee benefit plans which deny employee benefits to same-sex couples, the Board goes on to find that this very definition violates s. 15 of the Canadian Charter of Rights and Liberties. The Board in effect strikes out the words "of the opposite sex" from the definition of marital status, and finds, in the final analysis, that there has been a breach of the complainant's rights, once the Human Rights Code has been brought into compliance with the Charter.

16It appears that the majority in Leshner, supra, felt obliged to analyze the definition of "marital status" as part of Mr. Leshner's case, only because of its view that, as a matter of law, "ss. 5(1), 10(1) and 25(2) must be read together." I note that the Board here omits s. 25(1) as one of the sections which must be read together, even though, in my view, the relationship between s. 25(1) and s. 25(2) is of some importance.

17In any event, while it is true that, as a maxim of interpretation, a statute is to be read as a whole, the final purpose of that reading is to discern the intention of the legislature: E.A. Driedger, Construction of Statutes, Butterworths, 2d ed., p. 104. In effect, the Leshner majority found that it was the intention of the legislature that the definition of "marital status" modify and limit the definition of "sexual orientation" as a prohibited ground of discrimination. Having so found, the Leshner majority [then] holds that this intention leads to consequences which violate the Charter of Rights, s. 15.

18It is axiomatic that a board ought not to conclude that a statute violates the Constitution if there is any reasonable interpretation which may be placed on the section in question which is consistent with the Constitution. In my view, the central question is whether the Board is correct in bringing the definition of "marital status" to bear on the question of whether Mr. Leshner had been discriminated against on the ground of sexual orientation.

19In my view, the intention of the legislature as to the interaction of the prohibited grounds "marital status" and "sexual orientation" cannot be said to be clear and unequivocal, as can be seen from the fact that the minority judgment of Prof. Brettel Dawson comes to a different conclusion than does the majority. Bearing in mind its limited weight, I propose to refer to the legislative history of the enactment of the two prohibited grounds, as well as to some of the jurisprudence which has arisen with respect to the "marital status" ground. Given particularly the constitutional context as exemplified by the holding of the Leshner majority, that the definition violates the Charter, such a procedure recommends itself to me in this case (Thomson v. Canada, 1988 CanLII 9441 (FCA), [1988] 3 F.C. 108 at 134; Lor-Wes Contracting Ltd. v. M.N.R., 1985 CanLII 5594 (FCA), [1986] 1 F.C. 346 at 355).

LEGISLATIVE HISTORY

20Marital status was first made a prohibited ground of discrimination under the Women's Equal Employment Opportunity Act, S.O. 1970, c. 501. Shortly thereafter, "marital status" became a prohibited ground in the Human Rights Code, but without having been defined in the legislation.

21In Blatt v. Catholic Children's Aid Society(1980), 1980 CanLII 3907 (ON HRT), 1 C.H.R.R. D/72 Chairman Dunlop expressed some concern [at D/73, para. 569] because:

Marital status is not more fully defined in the Code, nor in any other statute, nor in the common law. A dictionary adds little to one's understanding . . .

As a result, Chairman Dunlop ruled that the dismissal of an employee living in a common-law relationship with a woman was not discrimination on the basis of his marital status, but rather on the basis of his "sexual morality." Implicit in his decision is the idea that the core of "marital status" is the question whether one is married or single, and whether the discrimination alleged arose because of that "status." Chairman Dunlop suggested that while it might not be sound social policy to allow discrimination against persons living as common-law partners, the Code's absence of a definition of "marital status" left him no choice, because "to come to any other conclusion would be to legislate in an area the legislature has left open."

22This concern was addressed by the legislature in the next year. The 1981 Human Rights Code (S.O. 1981, c. 53, s. 9(g)) provided, for the first time, an expanded definition of "marital status" which is identical to the one in the present Code. That definition reads as follows:

"marital status" means 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; ("état matrimonial")

Along with that definition, the legislation included sections which correspond to ss. 25(1) and 25(2) in today's Code, in identical terms.

23In Bosi v. Michipicoten (1983), 1983 CanLII 4724 (ON HRT), 4 C.H.R.R. D/1252, the Board of Inquiry discussed the concept of "marital status," and held that it is limited to cases where the refusal to employ is because the complainant is married, and not because a complainant is married to a particular person.

Mark v. Porcupine General Hospital(1984), 1984 CanLII 5081 (ON HRT), 6 C.H.R.R. D/2538decided that the Bosi case was too narrowly decided, and allowed a case based on "marital status" when the real objection was to the identity of the person to whom the complainant was married.

In Booker v. Floriri Village Investments (1989), 1989 CanLII 9077 (ON HRT), 11 C.H.R.R. D/44, a landlord's attempt to make his building a "family building" was found to be discriminatory on the basis both of family status and marital status, since the effect of the policy was to deny accommodation to single parents.

24Given this history, it appears to me that the core evil to which the legislature addressed itself was the practice of using the fact of single status, or alternatively, the fact of one's being married, as the basis upon which employment, accommodation or service decisions were to be made. Thus, the practice of requiring waitresses or stewardesses to maintain single status was made unlawful, as was the practice of reserving higher management positions to those who were married.

25The enactment of the words "and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage" was, I believe, intended to expand the scope of the prohibited ground, marital status, to include common-law couples. It is also true that by including the words "of the opposite sex" within this expanded definition, the legislature fell short of making "marital status" available to gay couples.

26In 1985, the government of the day introduced Bill 7, An Act to Amend certain Ontario Statutes to Conform to s. 15 of the Canadian Charter of Rights And Freedoms [Equality Rights Statute Law Amendment Act, 1986, S.O. 1986, c. 64]. During consideration of the addition of the term "sexual orientation" as a prohibited ground under the Human Rights Code, the Minister responsible, Mr. Scott, stated the reasoning behind its introduction (Debates, Legislative Assembly of Ontario (November 25, 1986) pp. 3621—22):

I suggest that this bill is required by the Charter of Rights and Freedoms. The Attorney General of Canada has justified his initiative to amend the Canadian Human Rights Code because he says he is obliged to do so by impact of the Charter. How could that be so? The way it could be so is this: The Charter is a document of great breadth. It prohibits discrimination against any lawful group, and included in that are the groups with which we deal today. Our Code is constructed differently. It is not so broad. What this amendment is proposed to do is to bring our code, as the federal code will shortly be brought and as the Quebec code has now been brought, into compliance with the Charter of Rights and Freedoms.

In effect, the decision to include "sexual orientation" in the Ontario Human Rights Code was based on reasoning similar in nature to that of the Ontario Court of Appeal in Haig v. Canada(1992), 1992 CanLII 2787 (ON CA), 16 C.H.R.R. D/226. There, the term "sexual orientation" was read into the Canadian Human Rights Act, R.S.C. 1985, c. H-6 as a result of the operation of s. 15 of the Charter.

27I do not think this legislative history or the associated case law provides support for the conclusion that the definition of marital status was intended to modify and limit the definition of sexual orientation in the Code. Rather, in my view, the introduction of the term "sexual orientation" into the Code was to overcome shortcomings therein by introducing a new and independent prohibited ground of discrimination.

AN ALTERNATIVE INTERPRETATION

28Section 5 of the Code provides that it is an infringement of the Code to discriminate on the bases of any of the proscribed grounds set out therein. Section 25(1) then reaffirms that this is the case, in general, with respect to employee benefit plans. An employee benefit plan which discriminates on any of the proscribed grounds, violates the Code. However, the breadth of this prohibition is the [sic] attenuated by s. 25(2), which sets out instances in which the right to employment without discrimination is not infringed. Those are: the right to equal treatment in employment because of age, the right to equal treatment in employment because of sex, the right to equal treatment in employment because of marital status, and the right to equal treatment in employment because of family status. It is immediately obvious that a defence is not provided for employee benefit plans which discriminate on the basis of handicap, on the basis of creed or on the basis of sexual orientation.

29It seems to me that this absence of the words "sexual orientation" from the section listing what is exempted from the strictures of s. 25(1), is important. Furthermore, the Supreme Court of Canada has held, in Brossard (Ville) c. Québec (Comm. des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279 [10 C.H.R.R. D/5515] that while rights articulated in human rights codes. are to receive a broad interpretation, defence to the exercise of those rights should be read narrowly. This rule has recently been affirmed in Dickason and Alberta (Human Rights Comm.) v. University of Alberta (1992), 1992 CanLII 30 (SCC), 141 N.R. 1 at 14 [17 C.H.R.R. D/87 at D/95—D/96] (S.C.C.).

30The respondent has here argued that s. 25(2) must be read to authorize, or "legalize" a denial of employee benefits to same-sex couples. With respect, I do not agree. In my view, s. 25(2) provides a defence to allegations that an employee benefit plan violates the Code because it discriminates on the basis of "age, sex, marital status or family status" only. Where the allegation alleges discrimination on the basis of sexual orientation, the legislature has provided no exclusion in s. 25(2).

31I believe that this conclusion is mandated, not only by analysis of the legislation, but also by its objects and by the proclaimed intention of the legislature to bring the Code into conformity with the Charter. In my view, Professor Dawson's opinion in Leshner, supra, raises what is a crucial objection to any other conclusion. After noting that the ground of "marital status" has always been interpreted to exclude those in same-sex conjugal relationships, she writes (Leshner No. 2, at p. D/216 [para. 250]):

An obvious question arises if the ground of "marital status" cannot be raised by individuals in gay and lesbian relationships to challenge discrimination: How can the ground be raised against them to entrench discrimination? And, if the ground cannot be raised against them, how can a defence to that ground be raised against them? Surely, if there is no marital status discrimination, there would be no corresponding need to authorize such discrimination through an exempting section such as s. 25(2). If the marital status discrimination is the exclusion from marital status, then the source of the discrimination lies outside the ground and does not arise from the application of it. Further, it should be noted that it is not marital status discrimination that would be entrenched on the respondent's approach, but sexual orientation discrimination.

Thus, in my view, the marital status ground means that, in general, opposite-sex couples may not be preferred over those who, without further discrimination, are characterized as single, widowed, divorced or separated. By the same token, it is not to be a requirement of employment or accommodation that a person maintain his or her single status. Section 25(2), however, exempts employee benefit plans from this general prohibition, presumably because of the differing sorts of obligations which couples have compared to single, divorced widowed or separated persons.

The inclusion of the words "of the opposite sex" in the definition of "marital status" in the Code thus serves to deny to gay couples the right to maintain that they have marital status, and that they have been denied equal treatment on that ground.

32I agree with counsel for the respondents that the case of Layland, supra, stands for the proposition that the common law denies the status of "marriage" to same-sex couples, and may do so without offending the Charter. However, as counsel very fairly pointed out, Mr. Justice Southey's majority opinion states that the capacity to marry and the right to receive equal benefits under the law are two entirely different things.

As he wrote (at pp. 14—15):

In my judgment, the common-law limitation of marriage to persons of the opposite sex does not constitute discrimination against the applicants contrary to s. 15 of the Charter. Whether parties to homosexual unions should receive the same benefits as parties to a marriage, without discrimination because of the nature of their unions, is another question.

"SEXUAL ORIENTATION"

33Having determined that the prohibited ground of discrimination, sexual orientation, is not defined in the Code by reference to the definition of "marital status," it remains to be decided what ambit the term is to be given, and in particular, whether it encompasses the choice of conjugal partner.

Definitions of the term have not been extensively developed in the case law to date. Knodel v. British Columbia (Medical Servicers Comm.) (1991), 1991 CanLII 3960 (BC SC), 58 B.C.L.R. (2d) 356 (B.C.S.C.) makes use of an expert psychiatrist's definition of the word homosexual, and then treats that term as identical with "sexual orientation" under the British Columbia Code. Justice Robertson, in his judgment in Egan, supra, opines that it also includes those of a heterosexual orientation, although he does not address the question of whether heterosexuals could ever be a discrete and insular minority in the context of s. 15 of the Charter.

34In her article "Gay Couples and Spousal Recognition" (Exhibit C-10) Professor Valverde notes that while Freud often wrote that everyone had some degree of bisexuality, more recent expert opinion tends to the view that each person has a specific sexual identity, or orientation which is more or less fixed in childhood. In any event, she distinguishes between sexual acts and sexual identities. The former, she says, are things "anyone might do," while the latter includes a profound and longstanding self-understanding which has a social existence of its own.

35This evidence suggests to me that we should be wary in coming to a complete definition of what reflects a profound aspect of the lives of millions of people; rather, I propose to analyse this case from the point of view of what I believe to be a minimal definition of sexual orientation, namely, the capacity, or perceived capacity, to be sexually attracted to persons of one's own gender.

DISCRIMINATION

36The Supreme Court defined discrimination in an employment context as arising when (Ontario Human Rights Commission and O'Malley v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 551 [7 C.H.R.R. D/3102 at D/3106, para. 24772]:

an employer . . . adopts a rule or standard . . . which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes because of some special characteristic of the employee or group, obligations, penalties or restrictive conditions not imposed on other members of the work force.

37Discrimination was later more generally defined by Mr. Justice MacIntyre in Andrews v. Law Society of British Columbia(1989), 1989 CanLII 2 (SCC), 10 C.H.R.R. D/5719 at D/5746 [para. 41759], as follows:

[D]iscrimination may be described as a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

It is important to note that the basis chosen for distinction need only "relate to" the personal characteristic in question. Therefore, a law which grants the vote to black males, but then exempts those persons, of whatever colour, whose grandfathers had been slaves, is discriminatory even though the grandfathers of some black men were not slaves. There is a discriminatory impact on blacks, despite the fact that not all black men would be denied the vote on the "related" characteristic of slave grandfathers. Similarly, a law which denies certain benefits to all persons who become pregnant discriminates against women even though not all women will choose to become pregnant (Brooks v. Canada Safeway, 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219 [10 C.H.R.R. D/6183]).

38In Janzen v. Platy Enterprises Ltd., 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 [10 C.H.R.R. D/6205], the Supreme Court of Canada held that sexual harassment is a form of sex discrimination, even though gender may not be the only characteristic considered by a harasser. As Dickson C.J. put the point [at D/6230, para. 44457]:

The fallacy . . . is the belief that sex discrimination only exists where gender is the sole ingredient in the discriminatory action and where, therefore, all members of the affected gender are mistreated identically. While the concept of discrimination is rooted in the notion of treating an individual as part of a group rather than on the basis of the individual's personal characteristics, discrimination does not require uniform treatment of all members of a particular group. It is sufficient that ascribing to an individual a group characteristic is one factor in the treatment of that individual. If a finding of discrimination required that every individual in the affected group be treated identically, legislative protection against discrimination would be of little or no value.

Thus, where a distinction impacts on a group because of a characteristic related to that group, but affects only a portion of that group, it may be found to be discriminatory despite the fact that not all members of the group would be affected.

39In applying these principles of law to the case before me, I first ask myself whether the employment benefit plan in question "makes a distinction on a prohibited ground of discrimination" as per s. 25(1) of the Code. The employee benefit plan grants benefits to conjugal partners of the opposite sex, while denying these same benefits to those of the same sex who choose to live together conjugally. Bearing in mind that the core idea of "sexual orientation" as a prohibited ground is the capacity to be attracted sexually by members of the same sex, it seems to me an unavoidable conclusion that the sex of one's conjugal mate is a fact strongly "related to" the prohibited ground itself.

40Nor does the fact that not all gays or lesbians will choose to live conjugally affect this conclusion. As indicated above, the fact that some members of a group are not caught by the distinction does not lead to the conclusion that the distinction is not discriminatory. To hold otherwise would be to allow backdoor discrimination by underinclusion, as discussed in Brooks, supra, at 1234.

41Therefore, I find that the complainant, Elizabeth Clinton, has been discriminated against on the basis of sexual orientation, a prohibited ground under the Human Rights Code. While her right to equal treatment in employment under ss. 5(1) and 25(1) has been violated, there is not defence available under s. 25(2), given that the complaint is with respect to sexual orientation as a prohibited ground.

42It may be thought that in coming to this conclusion, I have ignored the arguments of the respondent which centred on the case of Egan, supra, in the Federal Court of Appeal. In that case, Justice Robertson for the majority analyzed the spousal benefit program offered by the Department of National Health and Welfare, and concluded that it did not discriminate on the basis of sexual orientation. As I read the reasons of Justice Robertson, and of the concurring Justice, Mahoney, much depended upon the purpose of the particular law under scrutiny. The objective, it was found (on p. 33 of His Lordship's judgment), was to benefit a class "of married elderly women, who had jeopardized their own earning potential in order to raise a family . . ." The legislation, it was held, was not intended to address, by itself, the needs of all elderly and near-elderly persons. His Lordship concludes that given that the legislature was targeting "a class of person who can be readily identified, and who are in financial need because of a pattern of financial interdependency, characteristic of ”˜heterosexual couples,' such a legislative scheme cannot be considered discriminatory." At bottom, perhaps, is the idea that homosexual couples do not exhibit the same characteristic pattern of interdependency that heterosexual couples do.

43In the case before me, there is no evidence as to the reasons for the "opposite sex" requirement in the employment benefit plan. It is unlikely that its inclusion was for the purpose of aiding women at home who had forsaken opportunities in the workplace in order to have children, since the employee is referred to throughout the collective bargaining agreement as "she." Thus, the operative assumption must have been that males would have been the usual beneficiaries. And, even if it were here proven that the original purpose of the benefit was to advantage women who wish to have children and forsake employment opportunities to do so, in the case before me the evidence is to the effect that the couple are indeed planning that Ms. Mercer will bear children.

In short, there are [a] number of features of the statutory scheme analyzed by Robertson J. which are not present in the case before me, and which lead me to conclude that the case is not one which I should follow.

THE CHARTER

44I have come to the conclusion that the definition of marital status in the Human Rights Code is irrelevant to the question of whether there has been discrimination against the complainant on the grounds of her sexual orientation. Having done so, it is unnecessary to analyze that definition to determine whether it violates the Charter, s. 15.

REMEDY

45The Commission asked for an award of $5,000 to compensate for the loss of dignity associated with the denial of a protected right under the Code, and for the inconveniences and pain suffered while pursuing the claim. This claim for damages is based on the Code, s. 41(1)(b), which reads:

Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order,

(a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

The respondent submitted that either no monetary amount be awarded, as its policy was developed on the understanding that the Human Rights Code permitted denial of benefits to same-sex partners, and on the basis that the claimant was treated with respect throughout.

46There is a presumption in favour of general damages when a board has found an infringement of one of the rights set out in the Code: Cameron v. Nel-Gor Castle Nursing Home(1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at D/2198. While I do not believe that the respondents inserted the "opposite sex" requirement in their policy maliciously, the fact remains that it has had an effect, including the demeaning of the relationship which Ms. Clinton has with Ms. Mercer. I therefore award the complainant the sum of $4,000 for loss of the guaranteed right to be free from discrimination in employment. This sum includes interest accrued since the date of the infringement, which was December 28, 1990. I order interest on that sum to be paid from the date of this order to be calculated at a rate to be determined pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43. I find that the two respondents are jointly and severally liable for the said sum.

I further order that the respondent hospital provide, or in the event that they do now provide, that they continue to provide, employee benefits to same-sex couples, and that they inform their employees of the availability of such benefits.

I further order the respondent Ontario Blue Cross to amend any employee benefit plan presently in effect in Ontario by deleting the words "of the opposite sex" from the definition "dependent" and I further order that no employee benefit plan be offered in the Province of Ontario which limits common-law conjugal benefits to persons of the opposite sex.