Kaur v. Nehra, 2012 HRTO 1948

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kamaldeep Kaur

Applicant

-and-

Ravi Nehra

Respondent

DECISION

Adjudicator: David A. Wright

Date: October 15, 2012

Citation: 2012 HRTO 1948

Indexed as: Kaur v. Nehra

WRITTEN SUBMISSIONS

Kamaldeep Kaur, Applicant

Self-represented

1This is an Application filed 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 contracts because of race, sex, sexual orientation and family status, and sexual solicitation or advances. Put briefly, the applicant argues that the respondent promised to marry her, assured her this was a contract of marriage, and then broke this promise. She suggests that prohibited grounds were a factor in his breaking of the contract to marry her and that this constitutes discrimination contrary to the Code. She also relies upon the sexual solicitation sections of the Code.

2On August 2, 2012, prior to delivery to the respondent, the Tribunal issued a Notice of Intent to Dismiss to the applicant, stating that it appeared the Application was outside its jurisdiction because the relationship between spouses or former spouses is not covered by the Code, and because the allegations appear not to constitute allegations of discrimination in contracts within the meaning of s. 3 of the Code. The applicant was invited to make submissions in response, which she did.

3The relevant sections of the Code are as follows:

3. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

7(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

4In my view, the Code was not intended to and does not apply to this situation. The relevant principles of interpretation were discussed in Landau v. Ontario (Finance), 2011 HRTO 1521, at para. 12, as follows:

While it may be helpful to refer to particular rules of statutory interpretation, the fundamental principle in interpreting any statute, including the Code, is to take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Rizzo v. Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42. In applying this principle in the context of the Code, rights are to be interpreted broadly and exceptions narrowly.

5Section 3 of the Code does not apply to decisions about beginning or ending a marriage, and marriage and other aspects of a personal relationship are not “benefits or advancement” within the meaning of s. 7(3). The Code does not regulate spousal relationships (Belso v. York Regional Police, 2009 HRTO 757), and this includes the commencement and ending of engagements. Promises to marry are not a “contract” within the meaning of the Code. Historically, an action could be maintained for “breach of promise of marriage”. This was in the form of an action for breach of contract, although it was considered a “personal wrong”: Smallman v. Moore, 1948 CanLII 4 (SCC), [1948] S.C.R. 295. This cause of action has since been abolished by statute in Ontario as of 1978: see Marriage Act, R.S.O. 1990, c. M.3, s. 32, as amended. The law therefore does not recognize a “contract” for marriage and the breach of a promise to marry is not a violation of s. 3 of the Code. Similarly, marriage and the promise of future personal relationships are not “benefits” within the meaning of s. 7(3) of the Code, which is intended to prohibit unwelcome sexual solicitations where the person is in a position to grant or deny benefits unrelated to the personal relationship between the two individuals, for example, in employment.

6The Application therefore falls outside the Tribunal’s jurisdiction and it is dismissed.