Gallagher v. Hamilton-Wentworth (Regional Municipality)
1996-06-17
Ontario Board of Inquiry
CHRR Doc. 97-050
Mary Gallagher Complainant
and
Ontario Human Rights Commission Commission
v.
Regional Municipality of Hamilton-Wentworth, William McMillin Carson and Robert Prowse Respondents
Date of Complaint: October 11, 1991
Date of Decision: June 17, 1996
Before: Ontario Board of Inquiry, Mary-Woo Sims
Decision No.: 96-018
Appearances by: Anne Posno, Counsel for the Commission Mark Zega, Counsel for the Complainant Liam Rafferty, Counsel for the Respondents Regional Municipality of Hamilton-Wentworth and Robert Prowse Douglas Hodgson, Counsel for the Respondent William McMillin Carson
FAMILY STATUS — common-law relationship — definition of marital status does not include dating — spouse definition includes identity of spouse — employer policy prohibiting nepotism — discriminatory treatment in employment on the basis of common-law relationship and conflict between employer and spouse — INTERPRETATION OF STATUTES — definition of "family status"
Summary: The Board of Inquiry dismisses the complaint of Mary Gallagher who alleged that she was discriminated against and harassed because of her marital status by the Regional Municipality of Hamilton-Wentworth.
Ms. Gallagher complained that she was transferred to a different job, subjected to a poisoned environment, given a poor performance review, and reprimanded because she dated, entered a common-law relationship with, and subsequently married Roy Gallagher, another employee of the Municipality. The complaint was that the incidents arose not as a result of her being in a common-law relationship or married, but because of the animus of William Carson and Robert Prowse towards her husband. Ms. Gallagher alleged that the respondents had ill feelings towards her husband and took those feelings out on her by harassing her and discriminating against her.
The Board of Inquiry finds that the identity of a particular spouse cannot be included within the definition of marital status because it is a purely individual matter rather than a group aspect of experience. Since the Ontario Human Rights Code defines marital status as the status of being married, the Board rules that the identity of one's spouse is not included.
The complaint is dismissed.
Cases Cited
Brossard (Ville) c. Québec (Comm. des droits de la personne), [1989] 2 S.C.R. 279, 1988 CanLII 7 (SCC), 10 C.H.R.R. D/5515: 5, 17, 19
Cashin v. Canadian Broadcasting Corp. (1988), 1988 CanLII 8966 (CAF), 9 C.H.R.R. D/5343 (F.C.A.): 5, 17, 19, 21
Leshner v. Ontario (No. 2) (1992), 1992 CanLII 14288 (ON HRT), 16 C.H.R.R. D/184 (Ont. Bd.Inq.): 9
Legislation Cited
Canada
Canadian Human Rights Act, S.C. 1976–77, c. 33: 19, 22
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 5(1): 1, 19
s. 5(2): 1, 19
s. 9: 1
s. 10: 19
s. 10(1): 9
Quebec
Charter of Rights and Freedoms, R.S.Q. c. C-12: 19, 21
THE COMPLAINT
1Mary Gallagher alleges that she was discriminated against and harassed in employment because of marital status contrary to what are now ss. 5(1), 5(2) and 9 of the Ontario Human Rights Code [R.S.O. 1990, c. H.19].
THE ISSUES IN DISPUTE
2In her complaint signed October 11, 1991, Mrs. Gallagher alleges that as a result of her relationship with John Gallagher, she was the victim of a course of events which constituted harassment and discrimination during her employment with the respondent, the Regional Municipality of Hamilton-Wentworth (the "Region"). These events can be described as: the transfer; the creation of a poisoned work environment; the performance review; the reprimand; and the position of Legislative Co-ordinator.
3The events relied upon by the complainant raise two legal issues which should be dealt with prior to the consideration of the factual questions. These are:
Were the complainant and Mr. Gallagher in a relationship coming within the definition of marital status during any or all of the events alleged to constitute discrimination?
Does the definition of marital status in the Code extend to the identity of one's spouse? In other words, does harassment or discrimination resulting from the identity of one's spouse constitute a breach of the Code?
SUBMISSIONS
4Commission counsel asked that I find that the Region and the personal respondent, Mr. Carson, applied the Region's nepotism policy to Mrs. Gallagher (then Ms. Giacomelli) in transferring her to the Clerks Department in September 1988 because of her relationship with Mr. Gallagher. Furthermore, Commission counsel submitted that Mrs. Gallagher was harassed and subjected to a poisoned work environment because of her relationship with and subsequent marriage to John Gallagher. Counsel submitted that if I were to find that the complainant was subjected to harassment and/or discriminatory treatment, I must then determine if harassment or unequal treatment resulting from the identity of one's spouse constitutes a breach of the Code. Counsel submitted that based on jurisprudence, the identity of one's spouse falls under the protected ground of marital status and is contrary to the Code.
5Commission counsel referred me to the Federal Court of Appeal decision in Cashin v. Canadian Broadcasting Corporation (1988), 1988 CanLII 8966 (CAF), 9 C.H.R.R. D/5343 and the Supreme Court of Canada's decision in Brossard (Town) v. Québec (Commission des droits de la personne) (1989), 1988 CanLII 7 (SCC), 10 C.H.R.R. D/5515. Commission counsel submitted that the courts recognize that discrimination on the basis of marital status extends to situations where adverse treatment results from the identity of one's spouse.
6Both counsel for the respondents deny that Mrs. Gallagher was harassed and/or discriminated against because of her marital status. They argued that the transfer occurred for bona fide reasons and as a result of work-related concerns involving perceptions of conflict of interest. Furthermore, they submitted the evidence demonstrated that Mrs. Gallagher (then Ms. Giacomelli) agreed to be transferred to the Clerks Department and that the transfer resulted in higher pay, more prestige and better career advancement opportunities for her. They argued that these facts, if accepted by me, do not establish discrimination.
7Furthermore, it was the position of both counsel for the respondents that the complainant's relationship with John Gallagher at the time of the transfer does not fall within the definition of "marital status" contained in the Code.
8Counsel for the respondents further argued that the protections accorded under the provisions of the Code on the basis of marital status doe not extend to the identity of one's spouse. In their submission, protection against marital status discrimination accorded under the Code is based on one's group characteristic, that is, the status of being married, single, widowed, divorced or separated and not to whom the person is married or related to.
THE CODE
9Section 10(1) of the Code says:
10(1) "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.
As a result of the Board of Inquiry decision in Leshner v. Ontario (No. 2)(1992), 1992 CanLII 14288 (ON HRT), 16 C.H.R.R. D/184 (Ont. Bd.Inq.), "opposite sex" has been read out of the definition.
ISSUE ONE
10Were the complainant and Mr. Gallagher in a relationship coming within the definition of marital status during any or all of the events alleged to constitute discrimination?
Evidence
11The most important evidence concerning her marital status in 1988 came from Mrs. Gallagher. She testified that she was separated from her husband when her relationship with John Gallagher first developed in the spring of 1988. Her relationship with John Gallagher became public knowledge by the summer of 1988. They did not start to cohabit until the spring of 1989 and were married on March 31, 1990. Mrs. Gallagher testified that she considered John Gallagher to be her spouse as of the spring of 1989.
12The evidence of Mr. Carson, Mr. Sears and of Ms. Dawson was that a romantic relationship existed between Mr. Gallagher and the complainant in the summer of 1988.
Finding
13Commission counsel argued that because the respondents applied the principles of the Region's nepotism policy to the relationship between the complainant and Mr. Gallagher to transfer her out of the Regional Chairman's Office, this is evidence of marital status discrimination.
14I disagree. The complainant's legal marital status at the time of the transfer was "separated". With respect to the relationship which existed between the complainant and Mr. Gallagher at the time of the transfer, the evidence is that they were dating. The definition of marital status in the Code is clear. A dating relationship is not covered by the Code. I therefore find that even if I were to rule that the transfer was discriminatory, it did not occur as a result of a prohibited ground of discrimination.
15With respect to the other events alleged in the complaint, I find that Mrs. Gallagher was in a common-law relationship as of the spring of 1989 and subsequently, in 1990, married to John Gallagher.
ISSUE TWO
16Does the definition of marital status in the Code extend to the identity of one's spouse?
Discussion
17Commission counsel referred me to the Federal Court of Appeal decision in Cashin v. Canadian Broadcasting Corporation ("Cashin"), supra, and the Supreme Court of Canada's decision in Brossard (Town) v. Québec (Commission des droits de la personne) ("Brossard"), supra. Commission counsel submitted that the courts recognize that discrimination on the basis of marital status extends to situations where adverse treatment results from the identity of one's spouse. Further, that a person ought to be protected from discriminatory treatment particularly when the treatment arises not as a result of any conduct or performance of the person but arises from association of the person to his or her spouse.
18Counsels for the respondents submitted that if it was intended that the Code protect against discrimination based on of [sic] the identity of a person's spouse, the Code would say so.
19Sections 5(1) and (2) of the Code prohibit discrimination and harassment in employment based on a number of enumerated grounds including marital status. Section 10 defines "marital status" very clearly
10(1) "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. [Emphasis added.]
The language in the Code is very specific in defining marital status. It is distinguishable from both the Canadian Human Rights Act [S.C. 1976–77, c. 33] under which Cashin, supra, was decided and the Quebec Charter of Rights and Freedoms [R.S.Q. c. C-12] under which Brossard, supra, was decided, neither of which contain a definition of marital status.
20In Brossard, supra, the Supreme Court of Canada found that the Town of Brossard discriminated against Line Laurin because of her civil status when it refused to hire her as a lifeguard because her mother was already employed by the municipality. The Court held that the discrimination occurred not just because Ms. Laurin was her mother's daughter, but also because her mother was already employed by the municipality, the Court found that these two factors operated together to form a single, indivisible cause. The Court also found that the Town's anti-nepotism policy was overly broad and could not be justified as a bona fide qualification for employment.
21The decision, dealing with the provisions of the Quebec Charter of Human Rights and Freedoms, dealt extensively with the definition of "civil status". With respect to the extent to which spousal identity is included in the expression "civil status" the Court said at p. D/5522 [para. 40964]:
Marriage is plainly relevant to civil status. Discrimination can of course be practised on the basis of marital status in absolute terms. What about marital status in relative terms? Is the identity of a person's spouse relevant to discrimination under s. 10?
The Court quoted from MacGuigan J. in Cashin, supra, and said [D/5526, para. 40975]:
It is sufficient, for the purposes of the case at bar, to limit the meaning of civil status to an exclusion practised against an individual "identified by a group characteristic" to use the expression employed by MacGuigan J. The exclusion established by the respondent's hiring policy can be said to create such a group characteristic: all immediate relatives, including spouses, of full-time employees and town councillors are excluded from consideration. To paraphrase MacGuigan J. for the purposes of the case at bar, a general no-relative, no-spouse employment rule, precisely because in its generality it may have the effect of imposing a general or group category, does fall into civil status. It is not necessary in this instance to decide whether the identity of the particular spouse is included in the notion of marital or civil status and I refrain from so doing.
22In the Cashin decision, the Court dealt with an allegation of discrimination on the basis of marital status. The term "marital status" is not defined in the Canadian Human Rights Act. Rosann Cashin, a writer/radio broadcaster with CBC, had her employment terminated because her husband, Richard Cashin, a prominent figure in Newfoundland, had been appointed to the Board of Directors of Petro Canada. The CBC was of the view that Mrs. Cashin would no longer be perceived by the public to be an objective reporter on the news regarding resource issues. The Court of Appeal found that Mrs. Cashin was discriminated against because of her marital status. It was because she had the same name as her husband that the CBC believed there was a problem with objectivity. In addition, she was treated differently than she would have been had she been associated with Richard Cashin in a relationship other than as a spouse, or if they were divorced.
23In the Cashin case at p. D/5346 [paras. 40107–108], MacGuigan J. wrote:
The case was argued that the applicant was discriminated against, if at all, not because she was married per se, but because she was married to a particular public figure. The second issue is therefore whether spousal identity is included in the concept of marital status, which was the alleged ground of discrimination in this case. Both tribunals were agreed that it is so included, but their conclusions on this point were challenged before this Court by the first respondent.
The first respondent's argument was that one must look first to the plain, ordinary and natural meaning of the words used, which in this case, it is argued, is status in the sense of "married or not married" or in relation to marriage as in the categories "single," "married," "widowed," or "divorced".
MacGuigan J. further states at p. D/5348 [para. 40112]:
In my opinion, the first respondent has the stronger case on a literal meaning approach. Marital status normally does mean no more than status in the sense of "married or not married" and is not considered to include the identity and characteristics of the spouse.
He goes on to discuss the purpose of the Act and comes to this conclusion at p. D/5350 [paras. 40116–17]:
In fine, what the Act discourages is discrimination against an individual, not in his/her individuality, but as a group cypher, identified by a group characteristic. Consequently, the identity of a particular spouse cannot be included in the notion of marital status because it is a purely individual rather than a group aspect of life. However, it seems to me that a general no-spouse employment rule, precisely because in its generality it may have the effect of imposing a general or group category, may well fall under marital status. As in Mark, supra, or the American cases it follows, it is not a particular spouse that is brought into question, but any spouse of any existing employee. The approach I adopt might perhaps be thought of as an intermediate position between a broad and a narrow one.
In the case at bar, was there discrimination based on marital status in the sense just defined? This was not the basis of which either tribunal decided the case, nor the basis of which it primarily argued before this Court by the parties. Nevertheless, although the adjudicator adopted the broadest view of marital status, she also found discrimination based on narrower considerations as well.
MacGuigan J. writes at p. D/5352 [para. 40122]:
It became apparent at the hearing before the adjudicator that there is no written policy established by the first respondent relating to the spouses of employees, but it is clear from the testimony of Donna Logan that the policy that was thought to exist adversely differentiated against married women who adopted their husbands' surnames. In my view this is discrimination based on a primary incident of marital status. It is discrimination under the aspect of group rather than of individual. Such adverse differentiation tending to affect employment opportunities thus exactly constitutes a prima facie discriminating practice under both sections 7 and 10 of the Act, and the employer is therefore liable, unless it can establish that it falls within the exception of a bona fide occupational requirement in subsection 14(a) of the Act.
24The Court then went on to deal with whether or not an exception could be applied in this case. In the case before me, the complaint is that Mrs. Gallagher was subjected to a series of events which she alleges is discrimination and harassment because of marital status. These incidents arose not as a result of her status of being in a common-law relationship or married, but as a result of the animus of the respondents towards her husband. In simple terms, the complainant alleges that the respondents had ill feelings towards her husband and took those feelings out on her by discriminating against her and harassing her.
Finding
25I adopt MacGuigan J.'s reasoning that the identity of a particular spouse cannot be included in the notion of marital status because it is a purely individual rather than a group aspect of life. I am assisted in this view by the specific language contained in the Code pertaining to the definition of "marital status", that is, "the status of being married ..." The identity of one's spouse is not included.
26Having said this, it is important to note that [the] Code contains provisions that protect against discrimination because of a relationship or association with a person or persons identified by a prohibited ground of discrimination. It is possible that a finding of discrimination could be made where the unequal treatment is as a result of the identity of one's spouse if the spouse were a member of a historically disadvantaged group intended to be protected by the Code. But this is not the case before me.
27Accordingly, it is unnecessary for me to consider whether the evidence supports a finding of adverse treatment or whether the evidence establishes that any adverse treatment was related to the complainant's relationship with Mr. Gallagher.
COSTS
28The respondents have asked that in the event the complaint is dismissed, I remain seized to consider the issue of costs. I will ask the Registrar to schedule a conference call in order for the parties and I to discuss how best to proceed to hear submissions on the matter of costs.
