Dauphinee v. Vaughan (City), 2012 HRTO 1713

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Dauphinee

Applicant

-and-

City of Vaughan

Respondent

DECISION

Adjudicator: Alison Renton

Date: September 11, 2012

Citation: 2012 HRTO 1713

Indexed as: Dauphinee v. Vaughan (City)

APPEARANCES

Peter Dauphinee, Applicant

Self-represented

City of Vaughan, Respondent

Nancy Salerno, Counsel

Introduction

1This is an Application filed on March 21, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of marital status.

2The respondent filed a Response. The Tribunal issued a Case Assessment Direction, dated May 3, 2012 (“CAD”), in which it stated, on its own initiative, that a Summary Hearing would be scheduled to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect of success. The Tribunal directed that the applicant proceed first with his submissions.

3The Summary Hearing was held on September 5, 2012, and both parties participated. The Tribunal heard the parties’ submissions.

the applicant’s position

4The applicant is a long-term employee of the respondent and started a common-law relationship with a woman in late 2011. The applicant contacted the respondent seeking to add his common-law partner as a recipient to his group benefits. The respondent told the applicant that his common-law partner would be added after a two- year waiting period. This, the applicant alleges, constitutes discrimination based on marital status under the Code as married employees do not have a similar waiting period.

5During the hearing, the applicant claimed that, despite requesting a copy, he has not seen a copy of the respondent’s contract with the insurance company. He pointed out that the length of a waiting period seems to differ between provincial and federal statutes, and stated that the only distinction, in his opinion, between a common-law relationship and a marriage is the certificate of marriage. He asserted that there should not be a distinction and that he and his common-law partner should be treated the same by the respondent as married couples. He maintained this assertion after the Tribunal specifically read out various sections of the Code including the definition of “marital status” and sections 25(2), (2.2) and (2.3), as well as section 44(1) of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), and subsection 9(c) of O. Reg. 286/01 and asked the applicant to comment on the applicability of those to his situation.

the respondent’s position

6The respondent submits that the specific benefits which are provided to employees are set out in their applicable collective agreement between their union and the respondent. The applicant himself is not differentiated within the group health plan, but rather his common-law partner is. The respondent submits that the combined effect of sections 25(2), (2.2) and (2.3) of the Code as well as section 44(1) of the ESA and subsection 9(c) of O. Reg. 286/01 permit differentiation in the provisions of group benefits to an employee’s common-law partner and thus there is no discrimination on the basis of “marital status” within the meaning of the Code.

Law and Analysis

7Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

9Based on the Application, the relevant provisions of the Code are as follows:

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

10(1) In Part I and in this Part,

“marital status” means the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside of marriage;

25(2) The right under section 5 to equal treatment with respect to employment without discrimination because of 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, 2000 and the regulations thereunder.

(2.2) Subsection (2.1) applies whether or not a plan or fund is the subject of insurance between an insurer and an employer.

(2.3) For greater certainty, subsections (2) and (2.1) apply whether or not “age”, “sex” or “marital status” in the Employment Standards Act, 2000 or the regulations under it have the same meaning as those have in this Act.

10The relevant provisions of the ESA which are referenced in section 25(2) of the Code are as follows:

44(1) Except as prescribed, no employer or person acting directly on behalf of an employer shall provide, offer or arrange for a benefit plan that treats any of the following persons differently because of the age, sex or marital status of employees:

1. Employees;

2. Dependents.

11Section 44(1) of the ESA falls under Part XIII of that Act. The following provisions of O. Reg. 286/01, specifically address when the prohibition in section 44(1) does not apply to benefits plans under the ESA:

1. For the purposes of Part XIII of the Act [the ESA] and this Regulation,

“dependant” means a dependant as defined in the relevant benefit plan, and “dependent child” and “dependent spouse” have corresponding meanings;

“marital status” includes,

(a) the condition of being an unmarried person who is supporting, in whole or in part, a dependent child or children, and

(b) common law status as defined in the relevant benefit plan; (“état matrimonial”)

Health benefit plans, permitted differentiation re sex or marital status

9. The prohibition in subsection 44(1) of the Act does not apply to,

(c) a differentiation in an employee’s benefits or contributions under a health benefit plan because of marital status, if the differentiation is made in order to provide benefits for the employee’s spouse or dependant child.

12In determining whether an Application has no reasonable prospect of success, an Application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an Application has no reasonable prospect of success at a hearing and will be dismissed. See Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068.

13In my view, on these facts, the Application has no reasonable prospect of success. Section 9(c) of O. Reg. 286/01 permits a differentiation based upon marital status in the provision of health benefits when the benefits are for the employee’s spouse, which is the situation in this Application. Therefore, by operation of law, the respondent is able to differentiate in this situation based upon the applicant’s marital status, in accordance with the exemption as set out section 25(2) of the Code. The situation is similar to the one in Malloy v. OPSEU Pension Trust, 2010 HRTO 2304, in which that application was dismissed because of the operation of section 25(2.1) of the Code, albeit on the basis of age and pension.

14There may be unfairness about this arrangement, with a distinction being made between an employee who is married or in a common-law relationship. However, as the Tribunal has stated a number of times, the Tribunal does not have the power to deal with general allegations of unfairness. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.

15In my view, on these facts, the Application has no reasonable prospect of success. Accordingly, the Application is dismissed.

Order

16The Application is dismissed.