Ontario Human Rights Commission v. A., 2000 CanLII 16951 (ON CA)

Ontario Human Rights Commission v. Mr. A et al. [Indexed as: Ontario (Human Rights Commission) v. Mr. A]

50 O.R. (3d) 737

[2000] O.J. No. 4275

Docket No. C32910

Court of Appeal for Ontario

McMurtry C.J.O., Abella and Feldman JJ.A.

November 14, 2000

Human rights -- Discrimination -- Marital status and family status -- Dismissal of employee after employee's wife and daughter accusing employer of sexually assaulting daughter constituting discrimination on basis of marital status and family status under s. 5(1) of Human Rights Code -- Marital status under Code including identity of spouse as well as fact of being married -- Family status under Code including identity of family members, as well as family constellation -- Section 5(1) prohibiting discrimination on certain grounds, and question not whether individual belonging to disadvantaged group but whether individual arbitrarily disadvantaged on ground or grounds enumerated in s. 5(1) -- Human Rights Code, R.S.O. 1990, c. H.19, s. 5(1).

After 26 years and only four years away from a full pension, an employee with an unblemished work record was dismissed by his employer. He was dismissed because his wife and daughter had confronted and accused the employer of having sexually assaulted the daughter many years earlier. At the Ontario Human Rights Commission, the Board of Inquiry found that the father/ employee's dismissal constituted discrimination on the grounds of family status. The Divisional Court held that the Board of Inquiry erred in its finding of discrimination, and accepted the employer's argument that since the conduct complained of was not directed against the father as a member of an enumerated protected group, it was not discriminatory. The employee appealed.

Held, the appeal should be allowed.

Limiting the interpretive scope of marital and family status under ss. 5 and 10(1) of the Human Rights Code deprives the categories of their full remedial capacity. This is contrary to the requirement that human rights statutes be interpreted liberally to ensure the attainment of their objectives. The concept of marital status includes not only the fact of being married or unmarried, but also the identity of the spouse. Similarly, family status relates not only to one's family constellation, but to the identity of the other members.

The employer's conduct in firing the father/employee constituted discrimination, as found by the Board of Inquiry. Discrimination is not only about groups. It is also about individuals who are arbitrarily disadvantaged for reasons having largely to do with attributed stereotypes, regardless of their actual merit. The Code stipulates grounds in s. 5(1), not groups. The question is whether an individual has been discriminated against on the basis of a prohibited ground, not whether he or she necessarily fits into a group requiring redress. The issue is not whether the father/employee belongs to a disadvantaged group, but whether he was arbitrarily disadvantaged on a ground or grounds enumerated in s. 5(1).

The dismissal, which clearly disadvantaged him, was based on the father's presumed inability, as a husband and father, to be a good employee given the accusations made by his wife and daughter, rather than on his actual merit or conduct. The dismissal related to prohibited grounds under s. 5(1) of the Code -- marital and family status. The appeal should be allowed, the decision of the Divisional Court set aside, and the matter remitted to the Board of Inquiry on the issue of remedy.

APPEAL from a judgment of the Divisional Court which reversed a decision of the Board of Inquiry of the Human Rights Commission concerning the appellant's entitlement to compensation on the basis of discrimination.

Cases referred to Allum v. Hollyburn Properties Management Inc. (1991), 1991 13159 (BC HRT), 15 C.H.R.R. D/171 (B.C. Council of Human Rights); Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 36 C.R.R. 193, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289; Bosi v. Michipicoten (Township) (1983), 1983 4724 (ON HRT), 4 C.H.R.R. D/1252 (Ont. Board of Inquiry); Brennan v. R., 1987 73 (SCC), [1987] 2 S.C.R. 84, 87 C.L.L.C. 17,025, 40 D.L.R. (4th) 577, 75 N.R. 303 (sub nom. Robichaud v. Canada (Treasury Board)); British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 652 (SCC), [1999] 3 S.C.R. 3, 99 C.L.L.C. 230-038, 68 C.R.R. (2d) 1, 176 D.L.R. (4th) 1, 244 N.R. 145, [1999] 10 W.W.R. 1, 46 C.C.E.L. (2d) 206, 66 B.C.L.R. (3d) 253; Brossard (Town) v. Québec (Commission des droits de la personne), 1988 7 (SCC), [1988] 2 S.C.R. 279, 53 D.L.R. (4th) 609, 88 N.R. 321; Canadian National Railway Co. v. Canada (Hu man Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114, 40 D.L.R. (4th) 193, 76 N.R. 161 (sub nom. Action Travail des Femmes v. Can. National Railway Co.); Cashin v. Canadian Broadcasting Corp. (1988), 1988 9358 (FCA), 20 C.C.E.L. 203, 88 C.L.L.C. 17,019, [1988] 3 F.C. 494, 86 N.R. 24 (C.A.); Dewetter v. Northland Security Guard Services Ltd. (1996), 1996 20069 (BC HRT), 29 C.H.R.R. D/8 (B.C. Council of Human Rights); Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513, 95 C.L.L.C. 210-025, 29 C.R.R. (2d) 79, 124 D.L.R. (4th) 609, 96 F.T.R. 80n, 182 N.R. 161, 12 R.F.L. (4th) 201 (sub nom. Egan and Nesbit v. Canada); Gipaya v. Anton's Pasta Ltd. (1996), 1996 20072 (BC HRT), 27 C.H.R.R. D/326 (B.C. Council of Human Rights); Insurance Corp. of British Columbia v. Heerspink, 1982 27 (SCC), [1982] 2 S.C.R. 145, 39 B.C.L.R. 145, 137 D.L.R. (3d) 219, [1982] I.L.R. 1-1555, 43 N.R. 168, [1983] 1 W.W.R. 137; J. v. London Life Insurance Co. (1999), 1999 35199 (BC HRT), 36 C.H.R.R. D/43 (B.C. Human Rights Tribunal); Janzen v. Platy Enterprises Ltd., 1989 97 (SCC), [1989] 1 S.C.R. 1252, 25 C.C.E.L. 1, 89 C.L.L.C. 17,011, 47 C.R.R. 274, 59 D.L.R. (4th) 352, 58 Man. R. (2d) 1, 95 N.R. 81, [1989] 4 W.W.R. 39 (sub nom. Janzen v. Pharos Restaurant); Mark v. Porcupine General Hospital (1984), 1984 5081 (ON HRT), 6 C.H.R.R. D/2538 (Ont. Board of Inquiry); Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, 17 Admin. L.R. 89, 9 C.C.E.L. 185, 86 C.L.L.C. 17,002, 23 D.L.R. (4th) 321, 64 N.R. 161, 12 O.A.C. 241, 52 O.R. (2d) 799n; Ontario Public School Boards' Assn. v. Ontario (Attorney General) (1999), 1999 3745 (ON CA), 175 D.L.R. (4th) 609 (Ont. C.A.); Price v. British Columbia (Ministry of Social Services and Housing) (1991), 1991 13141 (BC HRT), 15 C.H.R.R. D/11 (B.C. Council of Human Rights); Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, 67 Alta. L.R. (3d) 1, 98 C.L.L.C. 230-021, 50 C.R.R. (2d) 1, 156 D.L.R. (4th) 385, 224 N.R. 1, [1999] 5 W.W.R. 451 Statutes referred to Canadian Charter of Rights and Freedoms, s. 15 Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12 Human Rights Code, R.S.O. 1990, c. H.19, ss. 5(1), 10(1) "family status", "marital status", 45(1) Authorities referred to Report of the Commission on Equality in Employment (Canada: Minister of Supply and Services Canada, 1984)

Naomi Overend, for appellant. David Ivey, for respondents.

The judgment of the court was delivered by

1ABELLA J.A.: -- After 26 years, an employee with an unblemished work record who was four years away from a full pension, was fired. He was 56. The reason for his dismissal was that his wife and daughter had confronted and accused his employer of having sexually assaulted his daughter many years earlier. The employer was the wife's brother, the daughter's uncle, and the co-owner of the business. Another of the wife's brothers, who lived in another province, was also an owner of the business.

2The daughter had been in therapy for many years. Early in September 1990, as a result of the therapy, she remembered that it was her uncle who had assaulted her. The therapist recommended that she confront him with the allegation. Accordingly, on the night of Friday, September 14, 1990, her father drove her and her mother to the uncle's home. She and her mother went to the front door of the uncle's home, leaving the father in the car. When the uncle opened the door, the mother and daughter heatedly accused him of the sexual assault.

3After the daughter and her family returned home, the uncle called and then came to their house, but was refused entry.

4The following Monday morning, September 17, 1990, the father showed up for work as usual before 7:30 a.m. to pick up his work assignment. Most of his work was performed outside the office. While he was drinking coffee, his employer came up to him, took the work order out of his hand, told him "he was not going anywhere", and asked to see him in his office. The father refused, and instead phoned his wife, asking her to come and pick him up. When she arrived, they went together to the uncle's office. There, the uncle began shouting at the father about his daughter's accusation and told him he was fired.

5Several days after the dismissal, the co-owner of the business, the wife's other brother, came to the plant. He was told by his brother that the father had quit. In light of this information and the fact that the father had filed no grievance with the union, he treated the issue as having been resolved and never spoke directly to either his sister or her husband.

Prior Proceedings

(a) The Board of Inquiry

Prior Proceedings

6On April 21, 1991, the father/employee complained to the Ontario Human Rights Commission that his termination from employment was discrimination on the grounds of family status. At the Board of Inquiry, he sought an amendment to add the ground of marital status. The amendment was granted by the Inquiry adjudicator, Loretta Mikus. She concluded that there would be no consequent prejudice from the amendment, since "the circumstances giving rise to the complaint on each ground are identical." Ms. Mikus also acceded to the joint request from the parties that all names be kept confidential. This protection is reflected in the initials used in her decision and in the style of cause. She referred to the father as Mr. A, the accused uncle as Mr. B, the other brother as Mr. C, and the company owned by the two brothers as D Limited.

7At the Board of Inquiry, the uncle's evidence was that he had no complaints about the father's work. However, he felt that since the father worked directly under his supervision and since it was a small business employing between 25 and 30 people who worked primarily off the company premises, he would have concerns about the father's loyalty and trustworthiness. The uncle acknowledged, and the Board of Inquiry accepted, that the decision to terminate was based solely on his assessment of his ability to continue to work with the father given the daughter's accusations.

8The position of the employer before the Board of Inquiry was that the father was not terminated because of the sexual abuse allegation, but because the uncle felt that the father would be unable to continue to work for someone who he thought had molested his daughter. The employer claimed that since the decision was a personal assessment unrelated to family or marital status, no discrimination had taken place.

9The Board of Inquiry's decision is reported at (1998), 1996 20099 (ON HRT), 30 C.H.R.R. D/246. The Board of Inquiry rejected these arguments and, based on the evidence, concluded that the "sole reason" for the father's termination was the fact that his daughter had raised allegations of sexual abuse against her uncle. While the uncle's concerns about the future loyalty of the father were understandable in the circumstances, the Board found that the evidence disclosed no basis for these concerns at the time of termination. The father had not said anything to the uncle about the allegations nor indicated whether he accepted his daughter's version of the events.

10The Board of Inquiry concluded, therefore, that the father had not yet considered whether his personal and employment situations were incompatible. While this might well have proven to be the case in time, an assessment by the uncle of presumptive incompatibility was premature at the time the decision to terminate was made. Moreover, since the uncle acknowledged that the father was not dismissed for cause, the only other basis for dismissal was the conduct of his wife and daughter.

11Following her conclusion that the dismissal resulted not from the behaviour of the employee/father himself but of his spouse and daughter, the board summarized why liability should attach to the uncle's responsive conduct as follows (at pp. D/ 248-D/249):

. . . Since Mr. B [the uncle] acknowledged that he did not dismiss the Complainant for cause, the obvious conclusion must be that he was dismissed because of the actions of his spouse and daughter.

The [father/employee] was entitled to be treated not as the spouse of his employer's sister or as the father of his daughter. He deserved to be assessed on his own's [sic] merits. The [employers] could not or would not distinguish between the [employee] and his daughter's allegations. They assumed that the [employee's] spouse was speaking for him because she was his spouse. That may or may not have been true, but the fact is that the [employers] never waited long enough to see whether that was a genuine concern. In my view, the [employee] at the time of his termination, had not given much consideration as to what, if anything, he intended to do about the situation. From his evidence it is clear that he compartmentalized his life into work and home. It was a very emotional time for everyone and, not surprisingly, the [employee's] reaction, while unusual, is understandable. There is no question that the termination was precipitated by the allegations and cannot be separated from the marital or family status of the [employee].

12The uncle's brother, the owner and president of the company, had ultimate corporate authority but took no corrective action. The adjudicator accordingly found him equally liable for the dismissal. Since s. 45(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the "Code") deems an act or omission of an officer, official, employee or agent of a corporation to be an act or omission of the corporation, the company itself also attracted liability.

(b) Divisional Court

(b) Divisional Court

13The Divisional Court's decision is reported at (1999), 1999 15055 (ON SC), 34 C.H.R.R. D/344. Writing for the majority in the Divisional Court, Dunnet J. found that the Board of Inquiry erred in its finding that the father had been discriminated against on the basis of marital and family status when he was dismissed from his employment. In so doing, she accepted the employer's argument that since the conduct was not directed against the father as a member of an enumerated protected group, it was not discriminatory.

14Dunnet J. acknowledged that there was evidence from which the board could properly conclude that the father "was dismissed because of the actions of his wife and daughter." In her view, the board correctly found that the dismissal was not for cause, since it was unrelated to the father's ability or willingness to perform his work, and "no reasonable explanation was provided by [the uncle] that would dispel the impression that [the father] was dismissed solely because of the allegations made by his daughter" (at p. D/346).

15Justice Dunnet disagreed, however, with the Board's conclusion that the dismissal amounted to discrimination.

16Her analysis was based on the assumption that prohibited discrimination is almost exclusively attributed to "association with a group". Relying on Andrews v. Law Society of British Columbia, 1989 2 (SCC), [1989] 1 S.C.R. 143 at pp. 174-75, 34 B.C.L.R. (2d) 273, Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513, 29 C.R.R. (2d) 79, and Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, 67 Alta. L.R. (3d) 1, she observed that the groups enumerated or found to be analogous under s. 15 of the Canadian Charter of Rights and Freedoms are those "which have been historically disadvantaged and subject to personal and systemic discrimination" (at p. D/ 347). Therefore, only discrimination based on group membership is prohibited and what that discrimination consists of, she concluded, is the attribution of stereotypical characteristics to members of enumerated or analogous groups.

17In this case, Dunnet J. found that the father was beyond the protected scope of anti-discrimination measures for two reasons. First, rejecting the argument that the dismissal resulted from the stereotypical assumption that all family members think and act alike, she concluded that the father's unfair treatment was based on personal animosity. Secondly, she was of the view that families have not traditionally been a disadvantaged group. In fact, she observed that those without the benefit of family support are the disadvantaged ones.

18The purpose of the inclusion of family and marital status in the Code was, according to Dunnet J., to promote "equality and the protection of those who have been discriminated against based on their membership in an identifiable group in society . . . not to protect against nor to prevent all acts of unfairness" (at p. D/349). To preserve the purpose of promoting equality and protecting historically disadvantaged groups, what she found to be exclusively relevant is the fact of being married or single or a parent, rather than the identity of someone's spouse or child or parent. The legal grid she therefore applied was the following (at p. D/347):

The most obvious and common sense interpretation of these definitions, especially given that the word "status" is repeated in the definitions themselves, is that it is the fact or condition of being married, or having children, that is relevant, not the particular identity or characteristics of the individual spouse or child. However, the Board found otherwise.

19In reaching the conclusion that the concept of marital status excludes the identity of the particular spouse, she reviewed the analyses in Brossard (Town) v. Québec (Commission des droits de la personne), 1988 7 (SCC), [1988] 2 S.C.R. 279, 53 D.L.R. (4th) 609, Cashin v. Canadian Broadcasting Corp., 1988 9358 (FCA), [1988] 3 F.C. 494, 20 C.C.E.L. 203 (C.A.), Bosi v. Michipicoten (Township) (1983), 1983 4724 (ON HRT), 4 C.H.R.R. D/1252 (Ont. Board of Inquiry) and Mark v. Porcupine General Hospital (1984), 6 C.H.R.R. D/ 2538 (Ont. Board of Inquiry). She relied particularly on the reasons of MacGuigan J. in Cashin, supra, who had concluded at p. 506 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."

20She also relied on the following language by Beetz J. in Brossard, supra, at p. 621 D.L.R. [p. 298 S.C.R.], for confirmation that "prohibited discrimination is based on membership in an identifiable group," not on the identity of a particular spouse:

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.

21Since in her view the father could not be said to be a member of any disadvantaged group, the employer's appeal from the decision of the Board of Inquiry was allowed.

22Spence J., in concurring reasons, approached the analysis in a different way en route to the same result as Dunnet J.

23His major interpretive departure from the reasons of the majority was his view that in Brossard, supra, Beetz J. did not so narrowly define family or marital status as to exclude the identity of a family member. In addressing the argument that the "plain meaning" of marital status precludes reference to the identity of a particular spouse, Spence J. counters (at p. D/350 of concurring reasons):

. . . the "plain meaning" of the term marital status is not something to be determined without reference to its context, which is a statute prohibiting discrimination. With respect, it should be a sufficient answer to the "plain meaning" concern to say that discrimination based on marriage to an employee does not cease to be discrimination based on marital status merely because it is directed only towards certain specific marital circumstances. The discrimination would not occur but for the fact of the person's being married.

24He also relied on the following passage from Brossard, supra, at p. 621 D.L.R. [p. 298-99 S.C.R.], in which Beetz J. left open the possibility that the identity of a particular spouse is part of the concept of marital status:

It is not necessary in this instance to decide whether the identity of a particular spouse is included in the notion of marital or civil status and I refrain from so doing. I am inclined, however, to think that in some circumstances the identity of a particular spouse might be included in marital or civil status. Sometimes an employer may exclude an individual because of the identity of his or her spouse without acting on an explicit no-spouse rule, leaving the court with the sometimes difficult and not always useful task of inferring a "group category" . . . Furthermore, an employer may exclude a candidate for employment because of the employer's particular animosity for the spouse of the candidate. Thus, the candidate is excluded because of the particular identity of his or her spouse and for no other reason. This might well be discrimination based on marital or civil status but I repeat that it is not necessary to decide this question to dispose of this appeal.

(Emphasis added)

25In this case, Spence J. noted, the father was dismissed because he was related to a wife and daughter who accused the employer, the uncle, of abuse, not because of any characteristic possessed by the father himself.

26Spence J. accepted this broader interpretation of marital status not only because of the remedial nature of human rights legislation, but also because of the important nature and purpose of the Code.

27Yet, having offered a more expanded definition of marital and family status than the majority, and having concluded that the father was married to what he referred to as a "disqualifying spouse", Spence J. nevertheless concluded that in this case there was no discrimination since there was no disadvantaged group of which the father was a member. Although the Code was remedial legislation, Spence J. held that it should be interpreted in a way directed to "remedying . . . social problems which typically affect groups of people, rather than individual disputes" (at p. D/352). In his view, "it should be possible to identify a group characteristic possessed by the complainant, which has led to the discriminatory treatment, or else the 'anti-group' element of discrimination is missing" (at p. D/351). The importance for Spence J. of finding a group characteristic was to ensure that conduct which is merely "a matter of personal antagonism" is not confused with discriminatory conduct.

28Spence J. explained his rationale as follows (at p. D/ 352):

If A were discriminated against on the basis of, for example, his membership in a particular race, it could be said that A is a member of the group consisting of all the members of that race. Similarly, in the case of a prohibition against the hiring of the spouse of employee, a complainant spouse could be said to be a member of the group of all spouses of existing employees. However, if A in the present case was treated adversely because he is the father and the husband respectively of the two accusers of B, it cannot be said that A is a member of a group consisting of all persons who are the father and the husband of the two accusers of B. A is the only person who has this characteristic. A is the only person who could have this characteristic.

29Consequently, like the majority, Spence J. ultimately concluded that the adverse conduct directed at the father flowed not from his group membership, but from the personal animosity he attracted because he was the husband and father of his employer's accusers. There was, therefore, no discrimination under the Code.

Analysis

30The applicable provision of the Code is s. 5(1):

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, same-sex partnership status, family status or handicap.

31In s. 10(1), the "Definition" section, "family status" and "marital status" are defined as follows:

"family status" means the status of being in a parent and child relationship;

"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;

32The issue in this appeal is whether marital and family status include the identity of a particular spouse or family member. In my view, Spence J. was correct in the first part of his reasons when he concluded that the concept of marital and family status necessarily includes not only the general status of having (or not having) a spouse or family, but also the identity of a particular marital partner or family member.

33Limiting the interpretive scope of marital and family status deprives the categories of their full remedial capacity. This is contrary to the requirement that human rights statutes, because of their status as "fundamental law", should be interpreted liberally to ensure the attainment of their objectives. (See Brennan v. R. (sub. nom Robichaud v. Canada (Treasury Board)), 1987 73 (SCC), [1987] 2 S.C.R. 84, at pp. 89-90, 40 D.L.R. (4th) 577; Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321; Insurance Corp. of British Columbia v. Heerspink, 1982 27 (SCC), [1982] 2 S.C.R. 145 at pp. 157-58, 39 B.C.L.R. 145; Canadian National Railway Co. v. Canada (Human Rights Commission) (the Action Travail des Femmes case), 1987 109 (SCC), [1987] 1 S.C.R. 1114, 40 D.L.R. (4th) 193; and British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.), 1999 652 (SCC), [1999] 3 S.C.R. 3 at p. 21, 66 B.C.L.R. (3d) 253).

(a) Is the particular identity of a spouse or family member included in the definition of marital and family status?

(a) Is the particular identity of a spouse or family member included in the definition of marital and family status?

34The primary case upon which the employer relies is Brossard, supra. In Brossard, the town had adopted a hiring policy which disqualified from employment the members of any employee's family. The complainant was denied a job because her mother was an employee. The issue was whether the town's hiring policy was discriminatory based on the ground of "civil status" under Quebec's Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12. In the course of deciding that the refusal to hire employees' family members constituted discrimination, Beetz J. observed at p. 618 D.L.R. [p. 294 S.C.R.]:

. . . to understand the civil status of one person one must often refer to the civil status of another. Being a widow or widower is just one such example. Filiation, fraternity and sorority, of course, are others. It is difficult to imagine a hiring policy which excludes "all sons and daughters" without specifying whose sons and daughters. It is of course possible to discriminate on the basis of marital status in absolute terms (e.g., "no married men as test pilots"), but it is improbable that an individual could be the object of discrimination in employment based on a blood relationship without making reference at the same time to the person to whom he or she is related.

35The obiter of Beetz J. at p. 621 D.L.R. [p. 299 S.C.R.] of his reasons, as has been previously noted, leaves the clear impression that the identity of a spouse or family member can be included in the concept of marital and family status. As he said, in a passage particularly apposite to the case before us:

. . . an employer may exclude a candidate for employment because of the employer's particular animosity for the spouse of the candidate. Thus, the candidate is excluded because of the particular identity of his or her spouse and for no other reason. This might well be discrimination based on marital or civil status but I repeat that it is not necessary to decide this question to dispose of this appeal.

36His observation takes on added force, in my view, when understood in the context of the actual result in Brossard. The policy prohibiting the hiring of persons related to existing employees was found to constitute discrimination. The policy discriminated not because it disqualified those in the general group of married (or unmarried) persons or spouses, but because it disqualified persons related to a particular individual, namely, an employee.

37The case can therefore be read to stand squarely, not ambiguously, for the proposition that in determining whether discrimination based on marital or family status has taken place, the inquiry encompasses the particular identity of a spouse or family member. The concept of marital status includes not only the fact of being married or unmarried, but also the identity of the spouse. Similarly, family status relates not only to one's family constellation, but to the identity of the other members.

38I am aware that Cashin, supra, appears to stand for the contrary position, but I note that it was decided before Brossard, and did not, therefore, have the benefit of its wider approach. To the extent that its interpretive reach falls short of Brossard's more expansive grasp, therefore, I cannot agree with its restricted definition of marital status.

39Several tribunal cases have interpreted Brossard as standing for the proposition that marital and family status include the identity of the particular spouse or family member. In my view, they were correct to do so. In Dewetter v. Northland Security Guard Services Ltd. (1996), 1996 20069 (BC HRT), 29 C.H.R.R. D/8 (B.C. Council of Human Rights), the tribunal found that the employer discriminated when it fired an employee because of her husband's criminal record. Relying on Brossard, the tribunal noted that the employee had been disadvantaged not because of her own merits or capacities, but because of those of her spouse, resulting in discrimination based on marital status.

40Similarly, in J. v. London Life Insurance Co. (1999), 1999 35199 (BC HRT), 36 C.H.R.R. D/43 (B.C. Human Rights Tribunal), the denial of life insurance to a man whose wife was HIV-positive was found to be discrimination based on marital status. Not unlike the reasoning offered by the employer in the case before us, London Life claimed that the denial of insurance coverage was based not on the fact that the person was married, but that he was sexually involved with someone who was HIV-positive. London Life argued that the husband was denied coverage, therefore, because of his personal characteristics, not his marital status. This argument was rejected by the tribunal. (See also Gipaya v. Anton's Pasta Ltd. (1996), 1996 20072 (BC HRT), 27 C.H.R.R. D/326 (B.C. Council of Human Rights); Allum v. Hollyburn Properties Management Inc. (1991), 1991 13159 (BC HRT), 15 C.H.R.R. D/171 (B.C. Council of Human Rights); and Price v. British Columbia (Ministry of Social Services and Housing) (1991), 1991 13141 (BC HRT), 15 C.H.R.R. D/11 (B.C. Council of Human Ri ghts).

41Ontario Public School Boards' Assn. v. Ontario (Attorney General) (1999), 1999 3745 (ON CA), 175 D.L.R. (4th) 609 (Ont. C.A.), leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 425, 249 N.R. 400n, also implicitly accepts that the particular identity of a spouse is relevant in marital status. The case involved the constitutionality of a statutory provision barring spouses of school board employees from running for elected office as trustees. The Divisional Court had reconstructed the issue as one affecting a "group" called "spouses of an employee of a district school board", a group not otherwise historically disadvantaged. In that case too, as in the case before us, confusion appeared to centre in the Divisional Court around the proper way to designate the "group" being discriminated against.

42The Ontario Court of Appeal held that what was relevant was that the individuals were being disadvantaged because of their marital status. The stereotypes attached to individuals based on their marital status. The stereotypes in an anti- nepotism policy were found at p. 619 to reflect and perpetuate

an assumption that spouses are incapable of independent decision-making. There is no doubt that the interests of spouses are in many ways interrelated, but a blanket exclusion of all spouses reflects the unrealistic view that spouses always share in common all interests and opinions with their partners. It thereby attributes a stereotypical quality to spouses, namely, that their decision-making abilities are in a state of perpetual conflict with their capacity to decide issues of a public nature.

(b) Did the employer's conduct constitute discrimination?

(b) Did the employer's conduct constitute discrimination?

43Having concluded that the particular identity of a spouse or family member is inherent in the concept of marital and family status, it remains to be decided whether the conduct of the employer in firing the father constituted discrimination, as found by the Board of Inquiry.

44In Andrews v. Law Society of British Columbia, supra, McIntyre J. synthesized the definitions of discrimination found in human rights cases such as Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., supra, at p. 551 with the definition suggested by the 1984 Federal Royal Commission on Equality in Employment (Canada, Report of the Commission on Equality in Employment (Ottawa: Minister of Supply and Services Canada, 1984) at p. 2) and adopted by Dickson C.J.C. in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), supra, at pp. 1138-39 S.C.R. Justice McIntyre's synoptic definition of discrimination is found at pp. 174-75 of Andrews:

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

(Emphasis added)

45In the case before us, there was a determinative preoccupation in both opinions in the Divisional Court with identifying the group to which the father belonged. With respect, the decision was in error when it focused almost exclusively on whether the father/employee was a member of a disadvantaged group.

46Discrimination is not only about groups. It is also about individuals who are arbitrarily disadvantaged for reasons having largely to do with attributed stereotypes, regardless of their actual merit. While it is true that disadvantageous stereotypes usually arise when characteristics are attributed to someone based on what people in a particular group are deemed to be capable of, this does not mean that when dealing with a complaint, a complainant must be artificially slotted into a group category before a claim of discrimination can be upheld under the Code.

47Whether or not a disadvantaged group can be fashioned out of the facts of any particular case is largely irrelevant. The Code stipulates grounds in s. 5(1), not groups. The question is whether an individual has been discriminated against on the basis of a prohibited ground, not whether he or she necessarily fits into a group requiring redress.

48There is no doubt that the Code contemplates that an individual's membership in a group may result in discrimination based on perceived characteristics attributed to the group. Some of the grounds in s. 5(1), for example, such as race, sex or ethnic origin, anticipate arbitrary barriers attaching to individuals belonging to certain historically disadvantaged groups. But other grounds, such as family or marital status or age, may have less to do with whether a disadvantaged group emerges easily from an individual's complaint than with whether the individual, regardless of group membership, is being stereotyped or arbitrarily disadvantaged.

49The issue in the case before us, therefore, is not whether the employee/father belongs to a disadvantaged group, but whether he was arbitrarily disadvantaged based on a ground or grounds enumerated in s. 5(1) of the Code. In my view, he was.

50The Divisional Court's acceptance of the employer's submission that the dismissal was the result of personal animosity, not discrimination, also warrants rebuttal. This deflectionary approach to discrimination was categorically rejected by the Supreme Court of Canada. In Janzen v. Platy Enterprises Ltd., 1989 97 (SCC), [1989] 1 S.C.R. 1252, 58 Man. R. (2d) 1, a waitress was sexually harassed and then mistreated by the employee in charge of evening shift. When the manager of the restaurant refused to redress the harassment, the waitress quit. Another waitress similarly complained of sexual harassment and was fired. The Manitoba Human Rights Commission found that the waitresses had been victims of sex discrimination. The Court of Queen's Bench upheld the finding of discrimination, but this was reversed on appeal by the Manitoba Court of Appeal, which held that the sexual harassment was based on the personal characteristics of the waitresses, not discrimination.

51On appeal to the Supreme Court of Canada, Chief Justice Dickson rejected the "personal characteristics of the individual" argument as follows at pp. 1288-90 S.C.R.:

While the concept of discrimination is rooted in the notion of treating an individual as part of a group rather than on the basis of the individual's personal characteristics, discrimination does not require uniform treatment of all members of a particular group. It is sufficient that ascribing to an individual a group characteristic is one factor in the treatment of that individual. . . .

The argument that discrimination requires identical treatment of all members of the affected group is firmly dismissed by this Court in Brooks v. Canada Safeway Ltd., 1989 96 (SCC), [1989] 1 S.C.R. 1219 (judgment being delivered concurrently herewith). In Brooks I stated that pregnancy related discrimination is sex discrimination. The argument that pregnancy related discrimination could not be sex discrimination because not all women become pregnant was dismissed for the reason that pregnancy cannot be separated from gender. All pregnant persons are women. Although, in Brooks, the impugned benefits plan of the employer, Safeway, did not mention women, it was held to discriminate on the basis of sex because the plan's discriminatory effects fell entirely upon women.

To argue that the sole factor underlying the discriminatory action was the sexual attractiveness of the appellants and to say that their gender was irrelevant strains credulity. Sexual attractiveness cannot be separated from gender.

52Credulity is no less strained when an attempt is made to separate the identity of the father's spouse and daughter from the way he was treated. It was not merely the employer's personal animosity that resulted in the dismissal, it was animosity based on the identity and conduct of the employee's spouse and daughter. Marital and family status, therefore, are clearly engaged in this case and engaged in a way that resulted in discrimination to the father.

53Dickson C.J.C. defined discrimination in Janzen as follows at p. 1279 S.C.R.:

In keeping with this general definition of employment discrimination, discrimination on the basis of sex may be defined as practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender.

54Applying Chief Justice Dickson's definition of discrimination at p. 1279 of Janzen to family or marital status, discrimination on the basis of marital status may be defined as practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic relating to their marriage (or non-marriage) or family.

55Janzen was decided after the analysis in Brossard. To the extent that there is any debate, therefore, about how to approach the prohibited grounds of discrimination under human rights statutes, the analysis in Janzen supersedes Brossard. This means that even if one is inclined to the view that Brossard should be narrowly construed, its narrower parameters have been overcome by the wider breadth of the Janzen analysis.

56The employer's act under review was the dismissal of the father from his employment. If the father had, over time, shown that he could no longer carry out his employment responsibilities, responsive conduct by the employer might not constitute discrimination. But, as the Board found, he was not fired for cause, but because of his wife and daughter's accusation of sexual abuse against the father's employer. Therefore, the father was dismissed because of the actions of a person to whom he was married and of another who was a member of his family. His employer thought that he could no longer count on the father's loyalty.

57The dismissal, which clearly disadvantaged him, was based on the father's presumed inability, as a husband and father, to be a good employee given the accusations made by his wife and daughter, rather than on his actual merit or conduct. The dismissal therefore related to prohibited grounds under s. 5(1) of the Code -- marital and family status.

58As the Board of Inquiry noted, the employer's action was, at the very least, premature. It may well have proven to be the case that the father's conduct created an untenable workplace situation and affected his ability as an employee. On the other hand, the father might have been able to carry on adequately with his workplace responsibilities. What we know for certain is that as a result of the precipitous and arbitrary decision of the employer, the father has lost a job and a pension, not because of his own behaviour, but because of assumptions made by the employer based on who the father was related to. This constitutes, as the Board of Inquiry correctly found, discrimination based on family and marital status.

59I would allow the appeal, set aside the decision of the Divisional Court, and remit the matter to the Board of Inquiry to determine the outstanding issue of remedy. In the circumstances, there will be no order as to costs.