A-427-88
John F. Schaap, Paul M. Lagacé and Canadian
Human Rights Commission (Applicants)
v.
Canadian Armed Forces (Respondent)
INDEXED AS: SCHAAP V. CANADIAN ARMED FORCES (CA.)
Court of Appeal, Pratte, Marceau and Hugessen
JJ.—Ottawa, November 16 and December 20,
1988.
Human rights — Marital status — Armed Forces providing
"married quarters", but excluding those living in "common
law" — Canadian Human Rights Tribunal finding discrimi
nation, but not based on proscribed ground of marital status
— Tribunal's decision set aside — Meaning of "marital
status" — Examination of purposes of human rights
legislation.
Armed Forces — Policy of excluding those living "common
law" from "married quarters" — Whether adverse differentia
tion based on "marital status" contrary to Canadian Human
Rights Act — Employer's interest in stability of relationship
not requiring marriage when 50% of marriages end in break
down — Policy perpetuating stereotype.
This was an application to set aside the decision of the
Canadian Human Rights Tribunal dismissing complaints that
couples living common law were being discriminated against by
the Armed Forces. "Married quarters" on military bases are
provided for married personnel and their families, but not for
those living "common law". The Tribunal found that the
applicants had been discriminated against, but that the dis
crimination was not based on marital status, as that term was
restricted to relationships involving a legal form of marriage.
Held (Marceau J. dissenting): the application should be
allowed.
Per Hugessen J.: The Tribunal erred in law. It should not
have asked itself whether a common law relationship fell within
the definition of marital status. A relationship and a status
were two very different things, and although one may confer
the other it cannot meaningfully be said to fall within it. The
proper question was whether, by reason of their marital status,
i.e. being unmarried, the applicants suffered a discriminatory
practice. The answer depended upon how the question was
framed.
The purpose of the human rights legislation was not to
favour the institution of marriage, but to ensure that certain
decisions were based on individual worth and not on group
stereotypes. The policy of providing married quarters was not
necessarily discriminatory. Its purpose was to provide accom-
modation to employees who may be far from their place of
origin, in isolated locations or subject to frequent transfers.
Obviously, the employer's interest extends only to relationships
with a high degree of stability. However, the employer's inter
est in stability and permanence of relationship does not extend
to requiring that there be a marriage bond. Marriage is a
status, while the employer's interest is limited to a situation of
fact. The employer wishes to encourage that special relation
ship which benefits its participants and fosters better morale.
However, the recognition of that special relationship is based
on the status of those in it, i.e. whether they are married to
each other. The policy is, therefore, based on and perpetuates a
stereotype, that a relationship between a man and a woman has
lesser social value if it does not have the status of marriage. A
better test would be based on factors which actually indicate
the existence of permanence and stability. Marriage is no
longer a guarantee of permanence and stability. Further, the
policy creates a group characteristic amongst couples living
together: those who are married to each other receive a benefit;
those who are not are excluded.
Finally, it is obvious that it would be discrimination on the
basis of marital status if the situation were reversed, and living
quarters were provided only to couples who were not married.
Per Pratte J.: Marital status in the Canadian Human Rights
Act does not mean the status of a married person, but the status
of a person in relation to marriage, namely, whether that
person is single, married, divorced or widowed.
The applicants were victims of discrimination which was
based on their marital status, in spite of the fact that the reason
for that discrimination was not simply that the applicants were
not married but, rather, that each one was not married to the
woman with whom he was living.
Per Marceau J. (dissenting): The question to be answered is
whether the adverse differentiation to which the complainants
have been subjected was based on their marital status. The
legitimacy of the Forces' practice is irrelevant to the interpreta
tion of a legislative enactment. Any discriminatory practice
based on a proscribed ground should be sanctioned uncondi
tionally. If being unmarried is their marital status, the complai
nants were victims of a discriminatory practice prohibited by
the Act. But if being unmarried is not a marital status, the
practice is not proscribed. The answer depends on the definition
of marital status in the Act. Literally, "marital status" can only
refer to the particular position of a person with respect to his
rights and limitations as a result of his being married. A
specific status cannot result from not being something. The
civil status of the law of Quebec considered in Town of
Brossard should be distinguished. Only legally married people
have a marital status within the Canadian Human Rights Act.
The purpose in adding this ground of discrimination was to
assure that a citizen will not be prejudicially treated solely
because he has a particular spouse. This is in keeping with the
purpose of all human rights legislation, that is to prevent the
victimization of individuals on the grounds of irrelevant charac
teristics over which they have no control, or with respect to
which their freedom of choice is so vital that it should not be
constrained by the fear of eventual discriminatory conse
quences.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Forces Superannuation Act, R.S.C. 1970, c.
C-9, s. 13(4) (as am. by S.C. 1974-75-76, c. 81,s. 39).
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss.
5-10, 14 (as am. by S.C. 1980-81-82-83, c. 143, s. 7),
15 (as am. idem, s. 8).
Charter of Human Rights and Freedoms, R.S.Q. 1977, c.
C-12.
Civil Code of Lower Canada.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
CASES JUDICIALLY CONSIDERED
CONSI DER ED:
Cashin v. Canadian Broadcasting Corporation, [1988] 3
F.C. 494; (1988), 86 N.R. 24 (C.A.); Brossard (Town) v.
Québec (Commission des droits de la personne), [1988] 2
S.C.R. 279; Canadian National Railway Co. v. Canada
(Canadian Human Rights Commission), [1987] 1 S.C.R.
1114.
COUNSEL:
James Hendry for applicants.
Brian Saunders and Arthur McDonald for
respondent.
SOLICITORS:
Canadian Human Rights Commission,
Ottawa, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: I share my brother Hugessen's view
that this application must succeed.
Like him, I think that the expression "marital
status" in the Canadian Human Rights Act [S.C.
1976-77, c. 33] does not mean the status of a
married person but, rather, the status of a person
in relation to marriage, namely, whether that
person is single, married, divorced or widowed.
This being said, in my view only one question
remains: can the discrimination of which the appli
cants were the victims be said to be based on their
marital status in spite of the fact that the reason
for that discrimination was not simply that the
applicants were not married but, rather, that each
one of them was not married to the woman with
whom he was living? In view of the approval given
by the Supreme Court of Canada' to the passage
of the reasons of MacGuigan J. in Cashin v.
Canadian Broadcasting Corporation, 2 where he
considers a similar problem, it is now clear that
this question must be answered in the affirmative.
It follows that the application should be dis
posed of in the manner suggested by Hugessen J.
* * *
The following are the reasons for the judgment
rendered in English by
MARCEAU J. (dissenting): In reasons for judg
ment that I have had the advantage of reading, my
brother Hugessen takes the view that this section
28 application, brought against a decision of a
Canadian Human Rights tribunal, is well founded.
I regret to say, with respect, that I do not share
that view. My understanding of the real question
to be determined does not correspond to that of my
colleague and my conclusion, as a result, differs
completely from his. I think I can explain myself
relatively quickly.
The complaints before the tribunal were
straightforward, and the facts alleged in support
thereof were not disputed. Each complainant,
although living on a permanent basis with a female
companion, had been refused the use of private
quarters within the confines of the army camp
where he was stationed, in strict conformity with a
practice of the Department of National Defence
which reserved such advantage exclusively to
legally married couples. The question, the only
one, that the Tribunal had to answer—and that
' Brossard (Town) v. Quebec (Commission des droits de la
personne), [ 1988] 2 S.C.R. 279, at pp. 295 and following.
2 [1988] 3 F.C. 494, at pp. 504 and following; (1988), 86
N.R. 24 (C.A.) at pp. 30 and following.
we, in turn because of this application, now have to
answer—is whether the adverse differentiation to
which the complainants have been subjected was
based, as alleged, on their "marital status", one of
the grounds of discrimination prohibited by the
Canadian Human Rights Act. 3
This issue to be determined is obviously one of
law, its solution depending strictly on the interpre
tation to be given to a legislative enactment, and
my first observation with respect to it will be that I
do not see how the "legitimacy" or the "reason-
ableness"—or the lack thereof in a modern socie-
ty—of the impugned practice of the Armed Forces
may have any influence whatever on the answer to
be given to it. It is clear that the Canadian Human
Rights Act, in its quest to promote the ideal of
equal opportunity for all, has chosen to condemn
all "discriminatory practices" based on certain
defined grounds, without any regard for the rea
sons that may be advanced to excuse or explain the
existence of such practices. (The Chief Justice has
the strongest words to express this in: Canadian
National Railway Co. v. Canada (Canadian
Human Rights Commission), [1987] 1 S.C.R.
1114, specifically at page 1134.) Unless sections
14 [as am. by S.C. 1980-81-82-83, c. 143, s. 7] or
15 [as am. idem, s. 8] of the Act are invoked to
exclude a particular discriminatory practice from
the operation of the law because of exceptional
circumstances, any discriminatory practice based
on a proscribed ground, in matters related to
employment and residential or commercial accom
modation, has to be sanctioned unconditionally.
It follows, in my respectful opinion, that if being
unmarried—the sole reason, it is constant, for
which the complainants have been denied private
quarters—is to be seen as being their "marital
status" within the meaning given to that expres
sion in the Act, there would be no doubt that the
complainants have been victims of a discriminato
ry practice prohibited by the Act. But if being
unmarried is not to be seen as a "marital status",
there is equally no doubt that the practice, how
ever discriminatory it might be said to be, is not
one falling under the sanction of the Act. So, the
In fact, one of the complainants advanced a second ground
of discrimination; I will come back to it later.
answer to the question of law the Tribunal had,
and now this Court has, to answer depends solely
and wholly on the definition to be given to the
expression "marital status" as used in the Act.
It is apparent that this is the approach the
Tribunal itself has adopted, albeit in a more circui
tous manner due to the fact that it felt compelled
to deal, not with two terms only, but with three,
namely: being married, living in a common law
relationship, and being unmarried. In that context,
its concluding comments are worth reproducing:
Parliament has chosen not to define marital status or family
status in a way to include common law relationships as was
done in Ontario and Saskatchewan. They have not chosen to
include provisions to recognize certain common law situations
as they have done in other of their legislation such as in the
field of pensions.
In looking for the purpose of the legislation and seeking to give
it effect, 1 must not legislate in an area the legislature has
chosen to leave open. I cannot stretch the words beyond their
ordinary and natural meaning.
As I understand it, a "status" in law is essential
ly the standing or position of a person as deter
mined by his membership in some class of persons
enjoying certain specific rights or subject to cer
tain specific limitations; and the definition of the
word "marital", in all dictionaries, is, of course,
"of or pertaining to marriage". Literally, "marital
status" can only refer, in my view, to the particu
lar position of a person with respect to his or her
rights and limitations as a result of his or her being
married. The French equivalent in the Act, "état
matrimonial", is to exactly the same effect. A
specific status, I would have thought, cannot result
from not being something. The "civil status" in the
law of Quebec that Beetz J. was considering in
Brossard (Town) v. Quebec (Commission des
droits de la personne), [1988] 2 S.C.R. 279, is a
completely different legal notion. It is, as I under
stand it, an attribute conferred by the legal system
to any human being in the community, in the same
manner as "personality" is. What is referred to by
it, again as I understand it and generally speaking,
is the situation of an individual, in relation to or in
comparison with the other, members of society, on
the basis of a certain number of facts or events
that characterize his or her life and to which the
law attaches legal effects. A citizen has necessarily
a "civil status" from the moment of his or her
birth until that of his or her death, but that status
will not be the same at all moments of his life.
The Civil Code of Lower Canada, in Quebec,
requires that the three classical basic facts deter
mining the civil status of every citizen, namely,
birth, marriage and death, be formally recorded,
by officials of the State, in special public registries.
These are called the acts of civil status. In the
Town of Brossard case, the question was whether
a hiring policy which, in order to avoid nepotism,
excluded candidates related, as son or daughter or
spouse, to persons already connected to the Town,
was prohibited by the Quebec Charter of Human
Rights and Freedoms [R.S.Q. 1977, c. C-12] as
constituting wrongful discrimination based on the
prohibited ground of "civil status". The argument
of the Town was, in effect, that the "civil status"
referred to in the Quebec Charter of Human
Rights and Freedoms was limited in scope to the
civil status directly resulting from the three facts
required to be recorded by the Civil Code and
taken in themselves, in absolute terms, as a result
of which the notion was not wide enough to
encompass the specific relationship between a
child and his parents, or a husband and his wife.
The argument was easily rejected by Beetz J. for
the Court on the basis that the scope of civil status
in Quebec law extended beyond the legal effects
resulting directly from the three basic facts offi
cially and positively recorded under the name of
each individual, and that the notion no doubt
included filiation, fraternity and sorority as well as
husband and wife relationship. In that context, to
say, as Beetz J. did incidentally in the course of his
reasons, that "being unmarried is unquestionably
included in civil status", is to state the obvious,
and I do not think that the learned Judge meant to
say more. Something he certainly did not say, in
any case, is that being unmarried could give some
one a "marital status".
On the other hand, until the institution of mar
riage is abolished, or at least organized on a
completely different basis from what it is now in
this country, I do not think that anyone is entitled
to confuse in law being married and being unmar
ried, so as to attribute simply the status of a
married couple to an unmarried one. This does not
mean, it goes without saying, that the difference
between the two situations, as to their legal conse
quences, cannot, in many respects, be rendered
insignificant by legislative intervention.
Thus, I agree with the tribunal that only legally
married people have a "marital status" within the
meaning of the Canadian Human Rights Act. The
purpose of Parliament in adding this ground of
discrimination, as I see it, is to assure that a
citizen will not be prejudicially treated on the sole
ground of his or her having accepted to be
acquainted with another in marriage, that is to
say, solely because he or she has, or had, a spouse
or a particular spouse. Indeed, is not this in perfect
keeping with the purpose of all human rights
enactments, which is, of course, to prevent the
victimization of individuals on the grounds of
irrelevant characteristics over which they have no
control (sex, colour, disability), or with respect to
which their freedom of choice is so vital that it
should in no way be constrained by the fear of
eventual discriminatory consequences (religion,
marital status). The Tribunal's conclusion that the
applicants had not been prejudicially treated on
the basis of their marital status in violation of the
Canadian Human Rights Act was, in my view, the
right one.
A last comment before concluding is required. I
have been concerned in these reasons with the
aspect of the case that was common to both com
plainants, the one related to the allegation of
discrimination on the ground of "marital status".
One of the two complainants also alleged discrimi
nation on the basis of "family status", because, in
spite of the fact that his common law wife had a
child, he had been denied application of another
proviso of the Department of National Defence
policy according to which the advantage of private
quarters could be claimed by a father living with
his child. On that secondary and related aspect of
the case, I have nothing to add to what the Tri
bunal said.
I would dismiss the application.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: The Canadian Armed Forces
provide living quarters to service personnel. They
also provide "married quarters" for the accommo
dation of spouses and children of service personnel.
The applicants herein are members of the
Canadian Armed Forces. At the relevant time,
each claimed to be in a "common law" relation
ship with a member of the opposite sex. The
Forces' policy, as manifested in the Queen's Regu
lations and Orders, denies the privilege of "mar-
ried quaters" to persons in such a relationship. 4
The applicants complained to the Canadian
Human Rights Commission that they were the
subject of a discriminatory practice based on
"marital status". 5
The present section 28 application is directed
against the decision of the Canadian Human
Rights Tribunal dated 29 February, 6 1988 dis
missing the complaints.
The Tribunal found as a fact that the applicants
had indeed been discriminated against on the
grounds that they were living common law rather
than in a married state. It said:
Both Mr. Schaap and Legace (sic) have complained that they
have been discriminated against because of marital status in
that private married quarters were denied to them because of
their living under "common law". In Mr. Legace's (sic) com
plaint, he also claims under the ground of family status.
Counsel for the Respondent suggested that if I were to hold
that a common law relationship is included in the term marital
status or family status, I must then define or explain what is
meant by a common law relationship. I feel the issue here is,
however, not to define a common law relationship, but rather to
° Queen's Regulations and Orders article 1.075 provides that
... an officer or man is deemed to be married if he has gone
through a form of marriage ...
In the "Application for Married Quarters" filed in evidence
before the Tribunal, one of the Conditions of Occupancy is
stated to be "no common law marriages". (Case, at p. 9.)
5 The applicant Lagacé also claimed to have been the victim
of a discriminatory practice based on "family status", a ground
which was added to subsection 3(1) [S.C. 1980-81-82-83, c.
143, s. 2] of the Canadian Human Rights Act subsequent to
the filing of the Schaap complaint.
6 Or I 1 March, depending on whether one reads the first or
the last page of the document.
give definition to the terms "marital status" and "family
status" and to then determine whether the kind of relationship
which was the subject of the complaints, falls within the
definition. Some provincial legislatures have chosen to given
(sic) specific definitions to the terms. This has not been done in
the statute with which we are dealing.
I am satisfied, without trying to present an exhaustive defini
tion of a common law relationship, that both complainants were
involved in such a relationship. I am also satisfied that the
Respondent had a policy of denying married quarters to appli
cants involved in common law relationships unless such appli
cant had a child living with him or her, related by blood,
marriage or adoption and who are (sic) claimed as a dependent
for income tax purposes. I am further satisfied that both
complainants were denied private married quarters because
they were not considered "married" and in Mr. Legace's (sic)
case, because he was not considered to be a "family". I am
satisfied that both complainants have been discriminated
against because they were living "common law" rather than
"legally married". [Case, at pages 888 and 889.]
The Tribunal went on, however, to hold that the
discrimination complained of was not on a ground
prohibited by the Act:
The term "marital status" under the Canadian Human Rights
Act, I feel is restricted to relationships involving a legal form of
marriage. The federal legislation unlike the Ontario legislation
for example does not make provision for anything more. I find
as a matter of fact that the relationships enjoyed by Mr.
Schaap and Mr. Legace (sic) are absent (sic) of a legal form of
marriage and cannot be characterized as a status that is
marital. The ordinary and natural meaning of the term marital
status pertains to a legal marriage and cannot be stretched to
include the common law relationship. I therefore find that both
complaints of discrimination based on the prohibited ground of
"marital status" are without foundation. [Case, at page 890.]
In my view, the Tribunal erred in law in so
holding.
In the first place, I believe the Tribunal asked
itself the wrong question when it set out to deter
mine, as it did in the first passage quoted above,
whether a common law relationship falls within
the definition of marital status. Plainly it does not:
a relationship and a status are two quite different
things and although one may confer the other it
cannot meaningfully be said to "fall within" it.
"Marital status" means
no more than status in the sense of "married or not married".?
The question that needs to be asked is whether, by
reason of their marital status, i.e. being unmarried,
the applicants suffered a discriminatory practice.
The answer will depend on how it is framed.
If the question is whether marital status makes
any difference in determining whether people in a
common law relationship shall be furnished mar
ried quarters by the Armed Forces, the answer is
clearly no. The policy applies to people in a
common law relationship, whether such people be
married or no. Since the Armed Forces refuse to
furnish married quarters to any such persons,
there is no adverse discrimination between mem
bers on the ground of marital status.
If, on the other hand, the question asked is
whether marital status is determinative of whether
an employee' will or will not receive the benefit of
married quarters furnished by his employer, the
answer is equally clearly yes. Marital status
includes the condition of being single and persons
in that condition can never qualify to receive mar
ried quarters.
Is it a reply to the second question to suggest, as
the proponents of the first question do, that some
married persons also do not obtain the benefit of
married quarters? The answer would appear to
depend on a careful analysis of the policy being
applied and the purposes sought to be achieved by
the human rights legislation. These are issues of
law suitable for determination by this Court.
Dealing first with the latter question, I do not
think the purpose of the human rights legislation is
to favour the institution of marriage (or, for that
7 Cashin v. Canadian Broadcasting Corporation, [1988] 3
F.C. 494, at p. 504; (1988), 86 N.R. 24 (C.A.), at p. 30; see
also the words of Beetz J. in Brossard (Town) v. Quebec
(Commission des droits de la personne), [1988] 2 S.C.R. 279,
at p. 291:
Being unmarried is unquestionably included in civil status
8 While the applicants are not technically employees of the
Armed Forces, the analysis of the married quarters policy is
made somewhat easier by treating the relationship as being that
of employee/employer. The analogy is exact.
matter, that of celibacy). On the contrary, I think
the legislation, by including marital status as a
prohibited ground of discrimination along with
such factors as race, ethnic origin, colour, disabili
ty, and the like, is clearly saying that these are all
things which are irrelevant to any of the types of
decisions envisaged in sections 5 to 10 inclusive.
Those decisions are to be made on the basis of
individual worth or qualities and not of group
stereotypes.
On the other hand, a policy of providing married
quarters for employees (or, perhaps more accu
rately, quarters where employees and others of
their choosing may live together) is not necessarily
discriminatory in either purpose or effect. Where
employees are required to work in remote loca
tions, or in places far away from their place of
origin, or to change location frequently, an
employer's interest in providing such quarters is
obvious. I would have thought it was equally obvi
ous that the employer's interest would only extend
those relationships which had a high degree of
permanency and stability; he has no interest in
providing facilities for his employees to run what
amounts to a boarding house or a bordello.
Does the employer's interest in stability and
permanence of relationship extend to requiring
that there be a marriage bond? I think not. Mar
riage is after all a matter of status while the
employer's interest is limited to what is simply a
situation of fact. That the one does not necessarily
equate to the other is self-evident in an age where
we were told that approximately fifty per cent of
marriages will end in breakdown.
The policy is to provide accommodation to
employees. In certain circumstances, it is provided
to other persons as well when those persons are in
what the employers perceives to be a special rela
tionship with an employee. The rationale presum
ably is that such a special relationship not only
represents a desirable social value but is of benefit
to its participants. By encouraging that special
relationship, the employer fosters better morale
amongst the employees.
The flaw in the policy from the standpoint of
human rights legislation is that it bases its recogni
tion of the value of the favoured special relation
ship on the status of those in it by asking whether
or not they are married to each other. In taking
this approach, the policy is based on and perpetu
ates a stereotype, namely, that a relationship be
tween a man and a woman has a lesser social value
if it does not have the status of marriage.
While the employer may have a legitimate inter
est in requiring that the relationship demonstrate
some qualities of stability and permanence before
allowing the participants to benefit from the pro
gram, the test for those qualities must be based on
factors which actually indicate their existence. 9 It
is a commonplace that the existence of the mar
riage bond is no guarantee of the permanency and
stability of a relationship, just as its absence is no
sure indicator of a mere passing fancy.
The policy further creates a "group
characteristic": J° amongst couples living together,
those who are married to each other receive a
benefit; those who are not are excluded.
To correctly appreciate the status of one person,
it is frequently necessary to look at the situation of
someone else." Such is the case here. To appreci
ate the marital status of the applicants, one must
look at the situation of the people with whom they
are living in a relationship of husband and wife.
The applicants are not married to those people and
it is that status alone which is the cause of their
exclusion from obtaining the benefit of married
quarters.
The situation may also be tested by hypothesiz
ing the inverse of the disputed policy. Suppose that
the Canadian Armed Forces only provided living
quarters to partners of service personnel who were
9 It is not very difficult to devise such tests. For a legislative
example having specific reference to the Armed Forces, see
subsection 13(4) of the Canadian Forces Superannuation Act,
R.S.C. 1970, c. C-9 (as am. by S.C. 1974-75-76, c. 81,s. 39).
1 ° See Town of Brossard, supra, at pp. 298-299.
... in many instances the civil status of one person cannot
be described without reference to the situation of another (per
Beetz J., in Town of Brossard, supra, at p. 300).
not married. It could not seriously be questioned
that such a policy constituted discrimination
against married personnel on the basis of their
marital status.
I conclude that the Tribunal erred in not decid
ing that the discrimination which it found the
applicants to have suffered was based on the pro
hibited ground of marital status. Since that is
determinative of the complaints of both applicants,
it is not necessary to deal with the future question
as to whether Mr. Lagacé was also discriminated
against on the basis of family status.
I would allow the section 28 application, set
aside the Tribunal's decision and remit the matter
to the Tribunal for decision on the basis that the
discrimination found to have been practiced
against the applicants was on the grounds of their
marital status.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.