VanderLinde v. Corporation of the City of Oshawa, 2014 HRTO 342

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rhonda VanderLinde

Applicant

-and-

Corporation of the City of Oshawa

Respondent

DECISION

Adjudicator: Paul Aterman

Date: March 12, 2014

Citation: 2014 HRTO 342

Indexed as: VanderLinde v. Corporation of the City of Oshawa

APPEARANCES

Rhonda VanderLinde, Applicant

Self-represented

Corporation of the City of Oshawa, Respondent

Amanda Hunter, Counsel

background

1This Decision deals with whether an allegedly discriminatory distinction is permitted by the exemption found in s. 25(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The basic facts are not in dispute between the parties. The applicant works for the respondent. She is married but has been living separate and apart from her husband since 2009. Her children live with her.

3The respondent provides its employees with a benefit plan that covers part of their medical and dental costs. Up until 2012 the respondent contracted with Manulife Financial to manage the plan. It then tendered the contract and ultimately awarded it to Green Shield Canada, beginning in January of 2013. With the transition to this new service provider, all employees were required to provide up to date information about themselves and their dependents.

4The applicant provided information about herself, her children and her husband. Then she received a benefit card which only had her name on it, not those of her claimed dependents. This was due to an error in processing the information about her children. It was rectified and there is no dispute that they are dependents under the plan.

5However, there is a dispute in relation to her husband. Although he was treated as a dependent when Manulife was the service provider, the respondent says that this was due to an oversight on its part. It maintains that under both the Manulife plan and the current Green Shield plan the applicant’s husband cannot be included as a dependent because he does not live with her.

6Under the Green Shield plan, which is the focus of this Application, “spouse” is defined either as someone who is married to a plan member and is not living separate and apart from the member, or as the common law spouse/same sex spouse of a plan member who has been continuously living in a conjugal relationship with the member for at least one year.

7The respondent has refused to include the applicant’s husband as her dependent because although he is married to her, he does not live with her. The applicant has brought this Application because she believes that the refusal to include her husband as a dependent is discrimination on the basis of marital status.

8The respondent says that the definition of spouse that is used in the plan, and its application to the applicant’s situation, is not discriminatory because it is permitted by an exemption in the Code.

9A preliminary hearing was held by teleconference on February 14, 2014 to deal with this issue. Having considered the submissions of the parties, I agree with the respondent. As a result the Application is dismissed. The reasons explaining this conclusion are set out below.

the exemption in s. 25(2)

10The Code prohibits discrimination on the basis of marital status. The relevant section reads:

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.

11The term “marital status” is defined in the Code to include the status of being separated, as the applicant is. The definition in s. 10 reads:

“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;

12The Code then provides an exemption for differential treatment on the basis of marital status in group insurance contracts. However, the exemption is limited in the sense that the differential treatment cannot be inconsistent with what is prescribed by the Employment Standards Act, 2000, S.O. 2000, c.41 (the “ESA”), and the regulations made under the ESA. The relevant parts of the Code read:

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.

13The relevant subsection of the ESA sets out a general prohibition on differential treatment of employees and dependents in a benefit plan based on marital status. However, that general prohibition is prefaced by a reference to possible exceptions set out in the words “Except as prescribed…” The subsection reads in its relevant parts:

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.

14The regulations made under the ESA then set out what those exceptions are. The following provisions of O. Reg. 286/01 set out when the general prohibition on differential treatment in section 44(1) does not apply to benefits plans. For the purposes of this Application, it is important to note here that the regulation does not define “marital status”, yet it does state that “marital status” includes unmarried single parents and common law spouses as defined in a benefit plan. What is also important to note is that it allows the term “dependent spouse” to be defined by the plan itself. The provisions read:

1. For the purposes of Part XIII of the Act [Section 44(1) of the ESA falls under Part XIII of that Act] and this Regulation,

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

“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;

“spouse” means a spouse as defined in the relevant benefit plan; [emphasis added]

15Finally, the regulation also allows for differentiation on the basis of marital status if the effect of that differentiation is to grant benefits to a dependent spouse. However, as I explain below, I am of the view that this subsection of the regulation does not apply on the facts of this case. The relevant part of the regulation reads:

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.

analysis

16The applicant argued that it is unfair for the respondent to withdraw her spouse’s coverage after having provided it in the past. She acknowledged that she and her husband live separate and apart because of a breakdown in the marriage, but says that they have chosen not to divorce. She characterised her husband’s past coverage as an interest that had vested in the benefit plan and therefore should not be taken away. According to the applicant, the net effect of the respondent’s conduct is to discriminate on the basis of marital status.

17The question of whether a benefit has vested because of the respondent’s past conduct in providing it is not something this Tribunal has authority to determine. All I can decide is whether the respondent’s refusal to treat the applicant’s husband as a dependent is discriminatory.

18Discrimination under the Code is established by an applicant proving that they are a member of a Code-protected group, that they are being treated adversely and that the protected ground under the Code is a factor in that adverse treatment (see Peel Law Association v. Pieters, 2013 ONCA 396).

19The Code prohibits discrimination on the basis of marital status. The definition of “marital status” includes the state of being separated. In this case the applicant and her spouse are married, separated and have been living separate and apart for some time.

20Assuming without deciding that the definition of marital status in the Code is sufficiently broad to include the applicant and her spouse’s circumstances the applicant claims that she is being treated differently from other married and common law couples in terms of the scope of coverage of her dependents. While other employees who are married or in common law relationships can claim their spouses as dependents, she cannot. This affects her adversely in that a denial of coverage for her husband has a negative economic impact on her and her dependent children.

21However in my view this differential treatment is permitted by an exemption under s. 25 of the Code for group insurance contracts.

22The exemption, when read in conjunction with the provisions of the ESA and its regulations, allows the respondent to define both “dependant” and “spouse” in the benefit plan. The respondent has adopted a definition of “spouse” which requires married spouses to be living together. As the applicant and her husband are no longer living together, he has ceased to be her spouse within the meaning of the plan.

23It is for this reason that s.9(c) of O. Reg. 286/01does not apply to the facts of this case. The reference to “the employee’s spouse” in s.9(c) has to be read in conjunction with the definition of “spouse” in s.1, and that provision gives the employer latitude to define “spouse” in the benefit plan. Because the respondent has chosen to stipulate that married couples must live together in order to be considered “spouses”, the applicant’s husband is not an “employee’s spouse” within the meaning of s.9(c). The respondent’s definition removes him from the scope of the plan.

24Although both parties cited Dauphinee v. Vaughan (City), 2012 HRTO 1713 (“Dauphinee”), in their submissions, in my view the facts in this case are distinguishable from the situation in Dauphinee. There s. 9 was held to apply, because there did not appear to be any issue as to whether the applicant’s common law spouse was a spouse within the meaning of the benefit plan (and therefore eligible for benefits). Rather the issue was one of a delay in eligibility for benefits as compared to married spouses under the same plan. The Tribunal held that a differentiation between married and common law spouses within the scope of the plan is permitted by s.9. Unlike Dauphinee, in this case the applicant’s husband has been wholly excluded from the definition of spouse, and is therefore excluded from the scope of the plan.

25The definition of “spouse” which the respondent has adopted in its plan complies with the other provisions of the ESA or its regulations and the respondent is therefore entitled to the exemption in section 25(2) of the Code which stipulates that section 5 of the Code is not infringed in these circumstances. As a result the Application is dismissed.

order

26The Application is dismissed.