Bewley v. Ontario, 1997 CanLII 24810

Bewley v. Ontario

1997-11-04

Ontario Board of Inquiry

Bonnie Bewley Complainant

and

Ontario Human Rights Commission Commission

v.

Her Majesty the Queen in Right of Ontario and Ted Kelly, Deputy Registrar General of the Ministry of Consumer and Commercial Relations Respondents

Date of Complaint: January 14, 1993

Date of Decision: November 4, 1997

Before: Ontario Board of Inquiry, Gerry K. McNeilly

Decision No.: 97-024

Appearances by: Joanne D. Rosen and Raj Dhir (Student-at-Law), Counsel for the Commission Bonnie Bewley, on her own behalf Peter Landman and Sean Hanley (Student-at-Law), Counsel for the Respondents

SEXUAL ORIENTATION — public services or facilities denied — definition of spouse and sexual orientation — sexual orientation as ground of discrimination in human rights legislation — PUBLIC SERVICES AND FACILITIES — change of name declaration — HUMAN RIGHTS — sexual orientation as analogous ground of discrimination — human rights legislation subject to other enactments — FAMILY STATUS — spouse definition does not include persons of the same sex — marital status definition does not include same-sex couples — INTERPRETATION OF STATUTES — definition of “marital status”? and “spouse”? — purposive approach

Summary: An Ontario Board of Inquiry finds that Bonnie Bewley was discriminated against because of her sexual orientation when she was denied the right to change her name under the Ontario Change Of Name Act to Crawford-Bewley, a name that incorporated that of her same-sex partner.

Bonnie Jean Bewley is a lesbian who has been involved in a conjugal relationship with Kimberly Crawford for about seven years. In October 1991 Bewley and Crawford had their partnership blessed in a formal ceremony at their Church. Shortly before the ceremony, and in anticipation of it, Bewley and Crawford applied under the Change Of Name Act to change both their surnames to Crawford-Bewley. They made this application to the Ontario Office of the Registrar General and were later advised that their application could not be processed because under the Change of Name Act only a man and a woman are allowed to change their names in recognition of a conjugal relationship. Bonnie Bewley alleged that the refusal to process her application to change her name constituted discrimination on the basis of sexual orientation, because the refusal was due to the fact that her partner is of the same sex.

Applying the Ontario Human Rights Code, the Board of Inquiry finds that there is internal conflict in the provisions of the Code because there is a general prohibition against discrimination based on sexual orientation while the definitions of spouse and marital status in s. 10(1) of the Code are opposite-sex definitions. However, the Board of Inquiry finds that this contradiction cannot diminish the protection afforded to gay men and lesbians.

The general prohibition against discrimination based on sexual orientation requires that lesbians and gay men be afforded protection both in their individual capacity, that is, with respect to their status as a lesbian or a gay man, as well as in their relationships. The Board of Inquiry also finds that a broad remedial interpretation should be given to the meaning of sexual orientation and to the scope of protection offered in s. 1 of the Code with respect to the provision of services.

The Board of Inquiry concludes that Bonnie Bewley was discriminated against because of her sexual orientation, and orders that the Office of the Registrar General process Ms. Bewley's application for a change of name. It also orders the respondent to pay Bonnie Bewley the sum of $500 as general damages for infringement of her right to be free from discrimination.

CASES CITED

A. v. Colloredo-Mansfeld (No. 3) (1994), 1994 CanLII 18420 (ON HRT), 23 C.H.R.R. D/328 (Ont. Bd.Inq.): 20

Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, 17 C.H.R.R. D/349: 11, 19

Dwyer v. Toronto (Metro) (No. 3) (1996), 1996 CanLII 20051 (ON HRT), 27 C.H.R.R. D/108 (Ont. Bd.Inq.): 5, 18

Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513: 11, 22

Leshner v. Ontario (No. 2) (1992), 1992 CanLII 14288 (ON HRT), 16 C.H.R.R. D/184 (Ont. Bd.Inq.): 18

McCallum v. Toronto Transit Comm. (No. 2) (1997), 1997 CanLII 24837 (ON HRT), 31 C.H.R.R. D/518 (Ont. Bd.Inq.): 5

McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, 13 C.H.R.R. D/171: 20

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: 11

Canadian Human Rights Act, R.S.C. 1985, c. H-6: 19

Ontario

Change of Name Act, R.S.O. 1990, c. C.7

s. 3: 8, 26

s. 3(1): 2, 4, 13

s. 3(6): 4, 13, 22

s. 4: 8

Family Law Act, S.O. 1986, c. 4, s. 1(1): 3

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

s. 1: 1, 13, 15, 23

s. 5: 15

s. 9: 1

s. 25: 20, 24

s. 25(2): 12

s. 41(1): 26

Vital Statistics Act, R.S.O. 1990, c. V.4: 26

1This complaint alleges a denial of the right to equal treatment with respect to services because of sexual orientation contrary to ss. 1 and 9 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”?).

2Bonnie Jean Bewley, the complainant, is a lesbian who has been involved in a conjugal relationship with Kimberly Anne Michelle Crawford for about seven years. On October 19, 1991, the complainant and Crawford had their union blessed in a formal ceremony at their church. Shortly before the blessing of their union, and in anticipation of it, the complainant and Crawford each completed a joint declaration of conjugal relationship under the Change of Name Act, R.S.O. 1990, c. C.7 (the “CNA”?). They elected to change their surnames to “Crawford-Bewley”? and filed this election with the Office of the Registrar General. The complainant was later advised by the Office of the Registrar General that the request could not be processed pursuant to the election provision of the CNA, as that election applied only to “a man and a woman who file a joint declaration of conjugal relationship”?. The complainant thus alleges that her application to change her name pursuant to subsection 3(1) of the CNA was refused as her “spouse”? is of the same sex and that this refusal is a breach of the Code.

3The CNA defines “spouse”? by reference to the Family Law Act, S.O. 1986, c. 4 [now R.S.O. 1990, c. F.3] which reads as follows:

1(1) “spouse”? means either a man and woman who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act.

ISSUE

4Whether the exclusion of same-sex partners from the election afforded to married spouses and opposite-sex conjugal partners in subsections 3(1) and (6) of the CNA, respectively constitutes discrimination on the basis of sexual orientation contrary to the Code.

FACTS

5The facts are fairly straightforward and not disputed. An affidavit from Dr. Mariana Valaverde, an expert witness on the history of invisibility of homosexuality, was jointly submitted by the parties. This affidavit evidence was previously submitted into evidence in two other recent complaints before this Board dealing with sexual orientation: McCallum v. Toronto Transit Commission (No. 2) (Decision No. 97-019, September 16, 1997 (McNeilly) unreported) and Dwyer v. Toronto (Metro) (No. 3)(1996), 1996 CanLII 20051 (ON HRT), 27 C.H.R.R. D/108.

6In addition, an agreed statement of facts was submitted by the parties as follows:

1. In the summer of 1991, the Office of the Registrar General received a joint declaration of conjugal relationship from Kimberley [sic] Ann Michelle Crawford and Bonnie Jean Bewley dated July 3, 1991, and an election from Bonnie Jean Bewley dated July 3, 1991 to change her name to Crawford-Bewley together with her original birth certificate, and an election from Kimberly Ann Michelle Crawford dated July 3, 1990 [sic] to change her surname to Crawford-Bewley.

2. By way of letter dated October 3, 1991, the Office of the Registrar General advised Kimberly Anne Michelle Crawford that they were unable to process the request for a change of name because the Change of Name Act specifies that the election provision applies to a man and a woman who file a joint declaration of conjugal relationship.

3. The letter of October 3, 1991 also advised the applicants Bonnie Jean Bewley and Kimberly Ann Michelle Crawford that they could apply for a change of name under section 4 of the Act at a fee of $137.00. The original birth certificate of Bonnie Jean Bewley was returned and the forms necessary to apply for a change of name under section 4 were included with the letter.

4. On or about August 28, 1992, Bonnie Bewley spoke to Pat Kuirinlahti, Team Manager of Change of Name who had consulted the Ministry's Legal Branch. Ms. Kuirinlahti confirmed the interpretation and application of the Change of Name Act as set out in paragraph 2 above, and stated that as a result, the Office of the Registrar General was unable to process the request for the change of name as requested by Bonnie Bewley.

5. Subsection 3(1) of the Change of Name Act, R.S.O. 1990, c. C.7 states the following:

A spouse may, at any time while married, elect in the prescribed manner,

(a) to change his or her surname to,

(i) the surname that the other spouse had immediately before their marriage,

(ii) a surname consisting of the surnames that both spouses had immediately before their marriage, hyphenated or combined; or

(b) to resume the surname the spouse had immediately before the marriage.

6. Subsection 3(6) of the Change of Name Act, R.S.O. 1990, c. C.7 states the following:

Subsection (1) applies with necessary modifications to a man and a woman who file a joint declaration in the prescribed form acknowledging that they live together in a conjugal relationship outside of marriage.

7. As a result, in accordance with the provisions of subsections 3(1) and 3(6) of the Act, the Office of the Registrar General was unable to process the change of name of Bonnie Bewley as requested.

Viva Voce Evidence

7The complainant testified that she and her partner wanted one family name, are accepted as a couple by their families and friends, and wished to indicate to society that they are a unit and be so recognized. Together they hold joint bank accounts, share financial resources and expenses, obtained medical benefits coverage for each other, and have supported each other financially when unemployed.

8The complainant preferred to have her name changed under s. 3 of the CNA as it recognizes conjugal relationships. She recognizes that s. 4 of the CNA permits anyone to change her name but stated that she expects the Registrar General to respect the Code and to not treat her lesbian relationship differently from heterosexual relationships.

9The respondents declined to call additional evidence and took the position that the issue in this case was purely one of interpretation.

10Throughout this decision, I will refer to “respondents”? as the complaint was filed against both the Ministry and the Deputy Registrar General and no amendment to the style of cause was requested at the hearing.

ARGUMENT

The Commission and the Complainant

11The Commission argues that the Code protects gay and lesbian same-sex relationships by prohibiting discrimination on the basis of sexual orientation. Although the term “sexual orientation”? is not defined in the Code, the Commission urges that the Code be interpreted in accordance with the equality guarantees of the Canadian Charter of Rights and Freedoms and that this Board should be guided by the Supreme Court of Canada's ruling in Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513. Specifically, the Commission argued in its written submissions:

9. The ground of “sexual orientation”? is not defined in the Code. Until recently, some debate had surrounded the precise meaning of this ground. This debate centred on the breadth of protection encompassed within this ground. Specifically, did the ground of “sexual orientation”? protect simply the individual lesbian or gay man against discrimination (protection of homosexual “status”?) or did the ground also protect the individual lesbian or gay man against discrimination on the basis of her or his homosexual relationships (protection of homosexual “conduct”?)?

10. The decision of the Supreme Court of Canada in Egan v. Canada silenced this debate. In Egan, a majority [sic] of the Supreme Court defined the ground of “sexual orientation”? as inclusive of both homosexual status and conduct:

It may be correct to say that being in a same-sex relationship is not necessarily the defining characteristic of being homosexual. Yet, only homosexual individuals will form a part of a same-sex common law couple. It is the sexual orientation of the individuals involved which leads to the formation of the homosexual couple. The sexual orientation of the individuals [sic] members cannot be divorced from the couple. To find otherwise would be as wrong as saying that being pregnant had nothing to do with being female.

(Comment: No cite was provided by the Commission. The above quote appears in the dissenting opinion of Cory and Iacobucci JJ. at p. 598.)

12. The notion that homosexual “status”? and “conduct”? could be separate and severable strands of the ground of “sexual orientation”? was considered and rejected by the Supreme Court on an earlier occasion in the Mossop decision. [Canada (Attorney General) v. Mossop(1993), 1993 CanLII 164 (SCC), 17 C.H.R.R. D/349 (S.C.C.).]

13. If the ground of “sexual orientation”? as interpreted by the Supreme Court for the purposes of subsection 15(1) of the Charter includes both status and conduct, and thereby protects against distinctions drawn on the basis of opposite-sex spousal or conjugal relationships, it is submitted that the ground of “sexual orientation”? as protected and enumerated in the Code must be accorded a similar interpretation. To give “sexual orientation”? any narrower meaning would risk running afoul of the Charter and interpreting the Code in an unconstitutional manner.

12Counsel for the Commission acknowledged a “paradox”? inherent in the Code (and decisions of the Board of Inquiry) created by the opposite-sex definitions of “marital status”? and “spouse”? that contrasts with the protection against discrimination on the ground of “sexual orientation”?. In her submissions, however, she urged that this Board need not address this paradox in the instant case as the “defence”? in subsection 25(2) of the Code is unavailable to the respondents on these facts. Subsection 25(2) of the Code provides as follows:

25(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 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.

The Commission did not deal further with the “paradox”? relating to the opposite-sex definition of “spouse”? contained in the Code itself.

13Finally, the Commission argued that subsections 3(1) and (6) of the CNA that limit the spousal election to married and cohabiting opposite-sex conjugal relationships contravenes s. 1 of the Code in the provision of a service.

The Respondents

14The respondents framed their case quite differently from the Commission. At the outset, in their written opening statements, the respondents narrowed the issues as follows:

7. Commission counsel has confirmed that no Charter or other constitutional issues will be raised by the Commission or the Complainant in this proceeding. The absences of any Charter issue is significant, since this narrows the issue before this Board to a pure question of statutory interpretation.

8. For the purpose of this proceeding, the Respondent concedes that, but for the opposite-sex definitions of “spouse”? and “marital status”? in the Human Rights Code, the use of an opposite-sex definition of “spouse”? in the Change of Name Act would constitute “discrimination because of sexual orientation”? contrary to s. 1 of the Human Rights Code.

9. This concession is made because the Respondent acknowledges that Egan v. Canada case has decided this question as a matter of general interpretation. Of course, a legislature can restrict the meaning of the words it uses in legislation, so a general meaning must yield to an express definition or to a contrary intent disclosed in a specific statute.

10. As a result of this concession by the Respondent, the issue in complaint is narrowed further to the question whether the opposite-sex definitions of “spouse”? and “marital status”? in s. 10(1) of the Code mandate a narrower interpretation of “sexual orientation discrimination”? in s. 1, such that the Code does not prohibit employing the opposite-sex definition of “spouse”? in another act, including the Change of Name Act ...

11. In light of the Egan case, which dealt with a challenge to the opposite-sex definition of “spouse”? under the Charter, the Respondent concedes for the purpose of this hearing that an opposite-sex definition of “spouse”? in an Act will generally infringe a prohibition on discrimination on the basis of sexual orientation, absent any limiting language or statutory defence. Of course, a legislature can restrict the meaning of statutory language “in any manner it sees fit”?, and is not bound by general meanings if it employs a specific definition or otherwise expresses a contrary intent ...

12. Here, the Commission seeks to ignore the effect of the definitions of “spouse”? and “marital status”? in section 10(1) of the Code. Taken to its logical conclusion, the Commission's argument leads to the absurd result that the definitions in the Code infringe the Code itself. Furthermore, the opposite-sex definition of “spouse”? is employed in 90 other provincial statutes, and it is unreasonable to infer that the Legislature would intentionally bring into question the validity under the Code of large numbers of its own statutes.

15The respondents argued for the need for consistency between ss. 1 and 5 of the Code as follows:

32. It has already been held by the Divisional Court and other Boards of Inquiry that the prohibition against discrimination on the basis of sexual orientation in section 5 of the Code, read together with the definitions of “spouse”? and “marital status”? in section 10, as well as s. 25(2), do not prevent the use of an opposite-sex definition of “spouse”? in the employment context (Ontario Human Rights Commission (Leshner) v. Ontario (No. 2) (1992), 1992 CanLII 14288 (ON HRT), 16 C.H.R.R. D/184 (Ont. Bd.Inq.); Sims/Dwyer, supra; Blue Cross v. Clinton, unrept'd, May 3, 1994 (Div.Ct.); and, C.U.P.E. Local 2424 v. Carleton University unrept'd, June 8, 1990 (Div.Ct.) [Cites added.] ...

33. It would be incoherent and inconsistent to read section 1 of the Code differently from section 5 on this basic issue, or to conclude that the Legislature intended fundamentally different interpretations of the way the Code applies in respect of services as compared with employment. Such an interpretation would also lead to inconsistent rulings on the rights and obligations of same-sex partners in different contexts. The term “sexual orientation discrimination”? should not therefore be given a radically different meaning in one section of the Code as compared to another. [Emphasis added.]

16And, finally, the respondents asserted that I should be guided by the opinions expressed in the Legislature when interpreting the Code:

35. The Hon. Mr. Wrye, Minister Responsible for the Human Rights Code, specifically addressed the concern that prohibiting discrimination on the basis of sexual orientation in the Code would bring into doubt the legal validity of the traditional definition of “spouse”? (the very issue raised in the present case). On December 2, 1986, the Minister assured the House [sic] as follows:

The third and most commonly repeated argument against this amendment has been that it augurs the destruction of the traditional family. There is simply no basis in law or fact for this. The Code is very clear on the meaning of family, marriage and spouse in its definition sections. It leaves no room for doubt. There is no ambiguity in the words used in terms of the opposite sex. The amendment can in no way impair the clarity of these definitions, nor will it ... [Respondents' emphasis.]

37. When it defeated Bill 167 [in 1994], the Legislature was not only well aware of the limits on the meaning of “sexual orientation discrimination”? imposed by s. 10(1) of the Code, but made it clear that it was content that those limits remain in place. The Respondent's position is that this Board must now accept the Legislature's wishes and not now do through interpretation of the Code the very thing that the Legislature expressly considered but declined to do. This is not a Charter case in which it would be open to a tribunal to assess the constitutional validity of the Legislature's intent. [Emphasis added.]

DECISION

17The parties are agreed that the constitutionality of the Code is not the issue to be determined in the instant complaint. Unlike the Board in the complaints of Dwyer and Leshner [1992 CanLII 14288 (ON HRT), 16 C.H.R.R. D/184], I am not required to decide on the constitutionality of any statute nor to reconcile the Code with the Charter. I will confine my reasoning to the interpretation of the terminology “sexual orientation”? found in the Code, a remedial statute that is “quasi-constitutional”? in nature.

18I have been urged by the respondents to consider the intent of the Legislature in 1986 and 1994 when amendments to the Code dealing with “sexual orientation”? were considered. I am also guided by the reasoning of this Board in Leshner and in Dwyer, supra, where it was determined that certain employment benefits were provided in a manner that discriminated between employees on the basis of sexual orientation. I note that the decision of Dwyer is currently under appeal. In Dwyer, the Board commented on the purpose of the Code, the extension of protection to “sexual orientation”? and the paradox within the Code at D/129, para. 144:

Before proceeding with an examination of the purpose of s. 25(2) of the Code, it is helpful to reiterate the overall objective of the Code itself, as expressed in the preamble:

WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

AND WHEREAS these principles have been confirmed in Ontario by a number of enactments of the Legislature and it is desirable to revise and extend the protection of human rights in Ontario;

Notwithstanding those sentiments, the majority in Leshner, supra, noted [at D/202, paras. 125–26]:

Prior to 1986, protection against discrimination because of “sexual orientation”? was not extended at all in Ontario. Indeed, twenty-five years ago a homosexual relationship was a criminal offence.

The introduction of “sexual orientation”? as a prohibited ground of discrimination, therefore, comes only recently in the on-going development of the Code and its protection of basic human rights. At the time of the introduction of “sexual orientation”? as a prohibited ground, the legislature saw difficulties in extending this protection to all aspects of employment benefit programs that make distinctions on the basis of “marital status”? (and age, sex and family status). The internal contradictions in the Code arising in respect of ss. 5(1), 10(1) and 25(2), which we have discussed at length, do not appear accidental, but rather seem to be purposeful. [Emphasis added.]

19In deciding the instant case, I reviewed the majority opinion in Mossop that dealt with the exclusion of “sexual orientation”? as a ground of discrimination in the federal human rights legislation. In Mossop, supra, the Supreme Court of Canada was asked to interpret the meaning of “family status”? (absent a constitutional challenge) to the exclusion of “sexual orientation”? in the Canadian Human Rights Act [R.S.C. 1985, c. H-6]. Chief Justice Lamer (with Sopinka and Iacobucci concurring) for the majority (La Forest in separate reasons concurring in the result) wrote [at D/362–D/363, paras. 31, 33 and 35]:

In the case at bar, Mr. Mossop's sexual orientation is so closely connected with the grounds which led to the refusal of the benefit that this denial could not be condemned as discrimination on the basis of “family status”? without indirectly introducing into the CHRA the prohibition which Parliament specifically decided not to include in the Act, namely the prohibition of discrimination on the basis of sexual orientation.

While it may be argued that the discrimination here applies to homosexual couples through their familial relationship or in their “family status”? and does not apply to the sexual orientation of Mr. Mossop as an individual as such, I am not persuaded by this distinction. I cannot conclude that by omitting sexual orientation from the list of prohibited grounds of discrimination contained in the CHRA, Parliament intended to exclude from the scope of that Act only discrimination on the basis of the sexual orientation of individuals ...

Absent a Charter challenge of its constitutionality, when Parliamentary intent is clear, courts and administrative tribunals are not empowered to do anything else but to apply the law. If there is some ambiguity as to its meaning or scope, then the courts should, using the usual rules of interpretation, seek out the purpose of the legislation and if more than one reasonable interpretation consistent with that purpose is available, that which is more in conformity with the Charter should prevail. [Emphasis added.]

20As there was no constitutional challenge to the Code in the instant case, I need not reconcile the “paradox”? concerning the reference to “opposite sex”? found in the definition of “spouse”? in both the Change of Name Act and the Code. To decide this case, it suffices that the discrimination complained of involves the provision of a service, not the receipt of a social benefits [sic] or receipt of a benefit related to employment. Egan, Leshner and Dwyer are thus distinguishable in this regard. Contrary to the respondents' assertion that it would be incoherent to read ss. 1 and 5 of the Code so that different rights might accrue in respect of services compared to employment, I note that the existence of s. 25 of the Code points to this possibility. Section 25 specifically provides a “defence”? to different treatment based on age and sexual orientation (among other bases) in respect of employment, the very sphere of activity that was dealt with in Leshner, supra, Dwyer, supra, and McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229 [13 C.H.R.R. D/171]. I draw further support for this view from the human rights case law on sexual orientation and harassment (A.B. v. Colloredo-Mansfeld (Decision No. 94-035, November 15, 1994 (McInnes), unreported [now reported 1994 CanLII 18420 (ON HRT), 23 C.H.R.R. D/328], Ont. Bd.Inq.). As well, the incremental approach by the Legislature in expanding protection on the basis of sexual orientation supports an interpretation of s. 1 of the Code that permits varying protection depending on the sphere of the activity involved.

21In my view, the Supreme Court in Mossop, and later in Egan, settled the debate concerning whether lesbians and gays are afforded protection in their individual capacity (status) and/or in their relationships (conduct). I conclude that no purpose is served by distinguishing the protection of the “status”? of individual gay men or lesbian women from discrimination but leaving them vulnerable in their “relationships”? with each other. The protection enshrined in s. 1 of the Code must therefore be interpreted to include the conjugal relationships of lesbians and gays.

22The respondents conceded that the Supreme Court in Egan, supra, decided that the “opposite-sex”? definition of “spouse”? constitutes discrimination on the basis of sexual orientation but nonetheless argues that the Code's own use of an “opposite sex”? definition mandates a narrower interpretation of “sexual orientation”? than that of Egan. The interpretation proposed by the respondents would mean that opposite-sex couples are entitled to rights and advantages which are not afforded to same-sex couples. Implicitly, same-sex relationships would be given less recognition and respect than opposite-sex relationships. The reasons usually offered in support of restricting certain benefits to opposite-sex couples revolve around procreation and the nurturing of children. However suspect or appropriate this rationale may be, it is sufficient to note that the service being sought by the complainant in the instant case is not connected to parenthood. Indeed, the spousal election in the CNA is available to non-parents, provided that the individuals are of the opposite sex and “live together in a conjugal relationship outside marriage”?: subsection 3(6).

23I reject the respondents' “narrower interpretation”? approach to the meaning of “sexual orientation”? in favour of a broad remedial interpretation that gives scope to the protection offered in s. 1 of the Code in respect of the provision of services. Remedial anti-discrimination legislation like the Code must be interpreted broadly in the context of changing societal views. Societal views evolve and contemporary values must be recognized if the Code itself is to remain relevant and not become an anachronism. This approach to s. 1 of the Code, to protect same-sex conjugal partners from discrimination in the provision of services, is an interpretation that is consistent with the purpose of the Code and the principles of statutory interpretation enunciated by the Supreme Court in Mossop.

24In relation to non-employment spheres of activities, like the provision of services, the Code provides no “defence”? for different treatment on the basis of the gender of a conjugal partner. Given that the agreed statement of facts supports a prima facie finding of discrimination on the basis of sexual orientation and the “defence”? provisions (s. 25) of the Code is inapplicable, I conclude that the complainant's right has been infringed.

MOTION TO AMEND THE COMPLAINT

25At the outset of the hearing, the Board reserved its ruling on the complainant's request to amend the complaint to claim general damages. The motion to amend the complaint is granted as the respondents have not demonstrated that any prejudice would result from permitting the amendment.

ORDER

26Pursuant to the powers granted to the Board under s. 41(1) of the Code, I order that the respondents, through the Office of the Registrar General under the Vital Statistics Act [R.S.O. 1990, c. V.4] process the complainant's change of name request under s. 3 of the Change of Name Act, and to pay to the complainant the sum of $500 as general damages for infringement of her right to be free from discrimination on the basis of her sexual orientation.