T-2425-88
James Egan and John Norris Nesbit (Plaintiffs)
v .
Her Majesty the Queen in Right of Canada
(Defendant)
INDEXED AS: ELAN V. CANADA (T.D.)
Trial Division, Martin J.—Vancouver, May 28;
Ottawa, December 2, 1991.
Constitutional law — Charter of Rights — Equality rights —
Under Old Age Security Act spousal allowance payable to pen
sioner's "spouse" — "Spouse" defined as person living with
person of opposite sex if they have represented themselves as
husband and wife — Plaintiffs living together in long-term
homosexual relationship — Application for allowance denied
as not "spouse" — Legislation creating distinction as homo
sexual couples denied financial benefits accorded to heterosex
ual couples — Discrimination based neither on sex nor sexual
orientation — Definition of "spouse" affecting both sexes
engaged in homosexual relationships — Distinction between
spouses and non-spouses — Intention to benefit persons in
traditional spousal relationship without which society could
not exist — Homosexual couples treated same as other non-
spousal couples living together.
Practice — Parties — Standing — Homosexual couple chal
lenging Old Age Security Act provisions for payment of
spousal allowance as contrary to Charter, s. 15 — Spousal
allowance denied as not "spouse" — Plaintiff receiving more
in combined federal and provincial benefits due to disability
than would have received under spousal allowance — Crown
arguing lack of standing as no detriment resulting from legisla
tion — As directly affected by interpretation of "spouse",
plaintiffs having standing — Although seeking to establish
rights of homosexual couples generally, alleging infringement
of own Charter rights.
Health and welfare — Payment of spousal allowance under
Old Age Security Act denied to homosexual residing with long-
term partner as not "spouse" — Whether discrimination based
on sex or sexual orientation, contrary to Charter, s. 15 —
Plaintiffs having standing although benefits received higher
under other programs than if treated as spouse i.e. no adverse
effect — Although legislation creating distinction as homosex
ual couples denied financial benefits accorded heterosexual
couples, discrimination based neither on sex nor sexual orien-
tation — Legislation intended to benefit those in conventional
spousal relationship upon which society depends.
This was an application for a declaration that the definition
of "spouse" in Old Age Security Act, section 2 discriminates
against the plaintiffs on the basis of sex or sexual orientation
contrary to Charter, section 15; for an order under Charter, sec
tion 24 amending the Old Age Security Act by removing all
references to gender or by amending the definition of "spouse"
in section 2 to include partners in same sex relationships; and
for an order directing the defendant to pay the spousal benefit
allowance from the date of application therefor. Under the Old
Age Security Act, a "monthly spouse's allowance" is payable to
a pensioner's "spouse", which is defined as a member of the
opposite sex living with the pensioner if they have publicly
represented themselves as husband and wife. The plaintiffs are
homosexuals who have resided together since 1948. They
share joint bank accounts, credit cards and property ownership.
They have appointed each other as their respective executors
and beneficiaries under their wills. They have always travelled
and holidayed together and publicly exchanged rings, but have
never gone through a marriage ceremony and do not introduce
themselves as a married couple. They refer to themselves as
partners. In 1986 plaintiff Egan received old age security and
guaranteed income supplement benefits. Nesbit's application
for spousal allowance was denied on the basis that he was not
Egan's spouse. Nesbit has actually received more in benefits
under other programs, for which he qualified due to medical
problems which prevented him from working, than he would
have received had he been treated as a "spouse". The defendant
argued that the plaintiffs lack standing as persons whose rights
and freedoms may have been infringed contrary to Charter,
section 24 because they have not suffered any adverse effects
as a result of the alleged unconstitutionality of the challenged
law.
Held, the application should be dismissed.
The plaintiffs have standing to bring this action. The fact
that they received payments in excess of those which they
would have received under the federal spouse's allowance was
not relevant to the question of their entitlement. The question
was not whether they were receiving higher payments by
claiming as single persons, but whether they were deprived of
benefits under the federal program. There have been conflict
ing interpretations by the courts of "spouse", so that there is a
serious issue as to the validity of interpreting it to exclude a
single sex couple. The denial of benefits because of the
defendant's interpretation of "spouse" directly affected the
plaintiffs. They are interested in the validity of that interpreta-
tion. Although the plaintiffs seek to establish the rights of
homosexual couples generally to the spouse's allowance, the
claim alleges an infringement of their own rights under Char
ter, section 15 and not the infringement of the Charter-based
rights of homosexual couples generally.
To determine whether a law infringes Charter, section 15
one must ask (1) has a distinction been created by law? and (2)
if so, does it give rise to discrimination? A distinction is cre
ated in that the legislation denies financial benefits to homo
sexual couples which are accorded to heterosexual couples, but
that distinction was based neither upon sex nor sexual orienta
tion. There was no discrimination based on sex because the
effect of the legislation was not aimed at a characteristic
related to gender. The definition of "spouse" affects both men
and women who are engaged in a homosexual relationship.
The distinction was not based upon sexual orientation, but is
between spouses and non-spouses. The spousal allowance was
introduced to alleviate the financial plight of elderly married
couples in the common situation that the male breadwinner
was retired while his younger wife was not yet eligible for the
old age pension and, not having been employed outside the
home, had no pension. Parliament intended to benefit spouses
as the term is traditionally understood i.e. people of the oppo
site sex who live together in a conjugal state as husband and
wife and form the basic unit of society upon which society
depends for its continued existence. The same sex couple is not
treated any differently from any other adult couple who live
together, but do not publicly represent themselves as husband
and wife i.e. relatives or friends. The plaintiffs fall within the
general group of non-spouses and do not benefit because of
their non-spousal status rather than because of their sexual ori
entation.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 15, 24.
Medical Services Act Regulations, B.C. Reg. 144/68, s.
2.01 (as am. by B.C. Reg. 5/77).
Old Age Security Act, R.S.C., 1985, c. 0-9, ss. 2 (as am.
by R.S.C., 1985 (1st Supp.), c. 34, s. 1), 19.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Knodel v. Her Majesty the Queen in Right of the Province
of British Columbia, Court No. A893414, Rowles J.,
judgment dated 30/8/91, B.C.S.C., not yet reported.
APPLIED:
Minister of Justice of Canada et al. v. Borowski, [1981] 2
S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1
W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24
C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; McKinney v.
University of Guelph, [1990] 3 S.C.R. 229; (1990), 76
D.L.R. (4th) 545; 91 CLLC 17,004; R. v. Turpin, [1989] 1
S.C.R. 1296; (1989), 48 C.C.C. (3d) 8; 69 C.R. (3d) 97;
96 N.R. 115; Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2
W.W.R. 289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91
N.R. 255.
DISTINGUISHED:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R.
342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75
Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38
C.R.R. 232; 92 N.R. 110.
CONSIDERED:
Andrews v. Ontario (Minister of Health) (1988), 64 O.R.
(2d) 258; 49 D.L.R. (4th) 584; 9 C.H.R.R. D/5089; 88
CLLC 17,023 (H.C.).
AUTHORS CITED
Canada, House of Commons, Standing Committee on
Health, Welfare and Social Affairs, Transcript of Pro
ceedings and Evidence, Issue no. 25 (June 12, 1975), at
p. 25:7.
Canada, House of Commons Debates, vol. 1, 1st Sess.,
31st Parl., 29 Eliz. II, 1979, at p. 476.
COUNSEL:
David H. Vickers for plaintiffs.
H. J. Wruck for defendant.
SOLICITORS:
Vickers & Palmer, Victoria, for plaintiffs.
Deputy Attorney General of Canada for defen
dant.
The following are the reasons for judgment ren
dered in English by
MARTIN J.: The plaintiffs, James Egan ("Egan")
and John Norris Nesbit ("Nesbit"), claim:
(a) a declaration that the definition of the word
"spouse" in section 2 of the Old Age Security Act,
R.S.C., 1985, c. O-9, (the "Act") discriminates unjus-
tifiably against them on the basis of sex or, in the
alternative, on the basis of sexual orientation contrary
to section 15 of the Canadian Charter of Rights and
Freedoms [being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]] (the "Charter");
(b) an order pursuant to subsection 24(1) of the Char
ter amending the Old Age Security Act by removing
all references, whether direct or indirect, to gender
or, in the alternative, by amending the definition of
the word "spouse" in section 2 of the said Act to
include partners in same sex relationships otherwise
akin to conjugal relationships;
(c), an order pursuant to subsection 24(1) of the Char
ter directing the defendant to pay to the plaintiff Nes-
bit the spousal benefit allowance from the date of his
application.
The words "spouse" and "spouse's allowance" are
defined in section 2 [as am. by R.S.C., 1985 (1st
Supp.), c. 34, s. 1] of the Old Age Security Act as fol
lows:
2....
"spouse", in relation to any person, includes a person of the
opposite sex who is living with that person, having
lived with that person for at least one year, if the
two persons have publicly represented themselves
as husband and wife;
"spouse's allowance" means the spouse's allowance author
ized to be paid under Part III;
Section 19 et seq., which appear under Part III of
the Act, authorize the payment of a "monthly
spouse's allowance". Subsection 19(1) of the Act
provides:
19. (1) Subject to this Act and the regulations, for each
month in any fiscal year, a spouse's allowance may be paid to
the spouse of a pensioner if the spouse
(a) is not separated from the pensioner;
(b) has attained sixty years of age but has not attained sixty-
five years of age; and
(c) has resided in Canada after attaining eighteen years of
age and prior to the day on which the spouse's application is
approved for an aggregate period of at least ten years and,
where that aggregate period is less than twenty years, was
resident in Canada on the day preceding the day on which
the spouse's application is approved.
Provision for the allowance was first enacted by
Parliament in 1975 [S.C. 1974-75-76, c. 58]. At that
time Parliament addressed the problem frequently
faced by aging married couples who found them
selves in the position in which one spouse, generally
the husband, who was usually the breadwinner in the
family unit and who was usually older than his
spouse, retired at age 65. The problem was caused by
the fact that his wife, who frequently had been the
unpaid homemaker, had no income and would not be
eligible for the old age pension for a few years, being
younger than her retired husband. The unfortunate
result was that the income of the two-spouse family
unit dropped drastically until the wife reached 65
years of age and became eligible for the old age pen
sion.
The Minister of National Health and Welfare, the
Honourable Marc Lalonde, in 1975 described the
objective of the legislation as being clear in the fol
lowing terms:
Its objective is clear and singular in purpose. It is to ensure that
when a couple is in a situation where one of the spouses has
been forced to retire, and that couple has to live on the pension
of a single person, that there should be a special provision,
when the breadwinner has been forced to retire at or after 65,
to make sure that particular couple will be able to rely upon an
income which would be equivalent to both members of the
couple being retired or 60 years of age and over. That is the
purpose of this Bill, no more than that, no less than that. (Tran-
script of Proceedings and Evidence of the Standing Committee
on Health, Welfare and Social Affairs, June 12, 1975, at p.
25:7.)
In the course of an amendment to the Old Age
Security Act [Bill C-6 (An Act to amend the Old Age
Security Act, S.C. 1979, c. 4)] on October 22, 1979
the Secretary of State for External Affairs, the
Honourable Flora MacDonald, pointed to the hard
ship incurred by the female spouse in the circum
stances to which Mr. Lalonde had made reference:
Statistics have shown that in 90 per cent of marriages the
younger spouse is female and that females live longer than
males. These women, who in their younger years remained in
the home looking after children, with no access to continuing
income or pension plans, are the same women who in their
later years too often become the victims of a society which has
not yet come to terms with equality in the work place. (House
of Commons Debates, October 22, 1979, at p. 476.)
In 1985 the spouse's allowance was extended to
include widows and widowers aged 60 to 65 who had
not remarried [S.C. 1985, c. 30]. The government at
the time, in 1985, recognized that the measures intro
duced did not solve all of the problems of all citizens
but, to the Minister of National Health and Welfare,
the Honourable Jake Epp, the legislation was
addressing itself to those in greatest need.
It is clear, through its legislative history, that the
spouse's allowance has been directed to alleviating
the financial plight of elderly married couples, prima
rily women who were younger than their spouses and
who generally did not enter the work force. Although
it may be argued that the legislation ought to be inter
preted so as to include homosexual couples such as
the plaintiffs in this case it cannot be fairly argued
that Parliament intended that they should be included
in the program.
With that background I turn now to the case at bar.
In this respect the plaintiffs, Egan and Nesbit, both
gave evidence at the hearing. Their evidence supple
mented a detailed agreed statement of facts, attached
to which were some 30 schedules. Paragraphs 4 to 13
of the agreed statement of facts give the relevant per
sonal information relating to the plaintiffs in the fol
lowing terms:
4. The Plaintiff James Egan born on the 14th day of Septem-
ber, 1921, resides at 2742 Virginia Drive, Courtenay, Brit-
ish Columbia.
5. The Plaintiff John Norris Nesbit born on the 27th day of
June, 1927, resides at 2742 Virginia Drive, Courtenay,
British Columbia.
6. Since August, 1948, the Plaintiff Nesbit and the Plaintiff
Egan have resided together at various places in the Prov
inces of Ontario and British Columbia.
7. On September 14, 1986 the Plaintiff James Egan reached
65 years of age.
8. On October 1, 1986 the Plaintiff Egan became eligible to
receive Old Age Security and Guaranteed Income Supple
ment benefits and did receive such benefits at that time
pursuant to the Old Age Security Act, R.S.C. 1970, c.
O-6.
9. The Plaintiff Egan applied by letter dated February 25,
1987 on behalf of the Plaintiff Nesbit for a spouse's allow
ance pursuant to the Old Age Security Act, R.S.C. 1970,
c. O-6. Act. See "Schedule 25".
10. By letter from David G. Wiebe, Income Security Pro
grams, Department of National Health and Welfare, dated
March 2, 1987, the Plaintiff Egan was advised that the
Plaintiff Nesbit was ineligible for spouse's allowance. See
"Schedule 30".
11. On or about July 24, 1989, the Plaintiff Nesbit applied for
a spouse's allowance as defined in section 2 of the Old
Age Security Act, R.S.C. 1985 c. O-9 pursuant to the pro
visions of Part III of the Act. The Plaintiff James Egan
was described to be the spouse in the application. On Sep-
tember 7, 1989 the Defendant received said application
from the Plaintiff Nesbit.
12. By letter from David G. Wiebe, Income Security Pro
grams, Department of National Health and Welfare, dated
September 8, 1989 the Plaintiff Nesbit was informed that
his application was denied. See "Schedule 31".
13. Mr. Nesbit's application was denied on the basis that Mr.
Nesbit was not the spouse of Mr. Egan, as defined in sec
tion 1 of the Old Age Security Act, R.S.C., 1985, c. O-9,
and was therefore ineligible to obtain a spouse's allow
ance.
The letters from the Department of National Health
and Welfare dated March 2, 1987 and September 8,
1989, to which reference is made in paragraphs 10
and 12 of the agreed statement of facts quoted above,
refused the plaintiffs' application for the spouse's
allowance in the following terms:
March 2, 1987
James Egan
2742 Virginia Drive
Courtenay, B.C.
V9N 6B5
Dear Sir:
This will acknowledge your letter of February 25, 1987 in
which you are enquiring about entitlement to Spouse's Allow
ance for homosexual couples.
Besides recognizing legal marriages, the Old Age Security Act
defines a "spouse" in relation to any person, to include "a per
son of the opposite sex who is living with that person, having
lived with that person for at least one year, if the two persons
have publicly represented themselves as husband and wife."
As you can see, this does not include homosexual couples.
Therefore, Mr. Nesbit is not entitled to Spouses Allowance
benefits based on your relationship.
We are enclosing a copy of the page of the Old Age Security
Act defining "spouse" for your reference.
Yours very truly,
David G. Wiebe
Income Security Programs.
DGW/hc
September 8, 1989
Mr. John J. Nesbit
2742 Virginia Drive
Courtenay, B.C.
V9N 6B5
Dear Sir:
This will acknowledge your application for a Spouses Allow
ance benefit payable under the Old Age Security Act.
We note that you are applying for benefits as the spouse of Mr.
James Egan. The Old Age Security Act defines spouse as fol
lows: "in relation to any person, includes a person of the oppo
site sex who is living with that person, having lived with that
person for at least one year, if the two persons have publicly
represented themselves as husband and wife." As your rela
tionship with Mr. Egan does not meet this definition of
"spouse", we cannot consider your application for Spouse's
Allowance.
We are cancelling your application and returning your birth
certificate herewith.
Yours very truly,
David G. Wiebe
Accordingly the refusal to allow Nesbit's claim for
the spouse's allowance was based upon the conclu
sion reached by the defendant that Nesbit did not
come within the meaning assigned to the word
"spouse" in the Act. I think it is fair to say that had
Nesbit been a woman cohabiting with Egan substan
tially on the same terms as he in fact cohabited with
Egan he would have been eligible for the spouse's
allowance.
The plaintiffs are homosexuals who have been liv
ing together since 1948. They lived in Ontario until
1964 at which time they moved to British Columbia
in which province they have resided in various locali
ties since that date.
The evidence of the relationship between the plain
tiffs is similar to that given by the petitioner Knodel
in the recent (August 30, 1991) unreported decision
of Rowles J. of the Supreme Court of British Colum-
bia in the action entitled Knodel v. Her Majesty the
Queen in Right of the Province of British Columbia
(Court No. A893414) in which the Court in that mat
ter found to be overwhelming that the homosexual
couple had lived "as husband and wife".
Rowles J. summed up the evidence to that effect at
page 28 as follows:
The remainder of the phrase requires the couple to "live
together as husband and wife". This phrase is intended to
exclude other types of relationships such as the type that exists
between, for example, siblings or between other adult persons
who live together but who do not share an emotional and sex
ual commitment.
However, this phrase does not require a couple to be hus
band and wife. It is not intended to import a traditional role for
a husband or a wife. Nor is it intended for each partner in the
relationship to adopt the role of either a "husband" or a "wife".
The use of the word "as" suggests a particular type of relation
ship that involves both emotional and sexual aspects.
In the present case, the evidence is overwhelming that the
Petitioner and Mr. Garneau lived "as husband and wife". There
was an expectation of continuance. They were deeply commit
ted to each other emotionally and sexually, exchanged vows
and rings in a private ceremony, established a home together,
pooled their finances, and shared bank accounts and credit
cards. The Petitioner did not separate from or abandon Mr.
Garneau when the latter became ill, notwithstanding the risk to
him. Like a heterosexual spouse, the Petitioner was named as
sole beneficiary in Mr. Garneau's will; he assisted and sup
ported his life-partner, including nursing and comforting him,
until his death March 17, 1989. The evidence of Dr. Myers
also suggests that the type of emotional bond between homo
sexual couples is no different than one between heterosexual
couples.
The evidence in this matter is also similar to the
evidence of the lesbian couple in Andrews v. Ontario
(Minister of Health) (1988), 64 O.R. (2d) 258, which
McRae J. of the Ontario High Court of Justice found
did not give rise to a spousal relationship because that
relationship required the persons to be of the opposite
sex.
In this case there was a long-term and intimate
relationship between the two plaintiffs. They shared
joint bank accounts, credit cards and property owner
ship. By their wills they appointed each other as their
respective executors and beneficiaries. They have
always travelled and holidayed together and, at one
point, publicly exchanged rings. To their families and
friends they refer to themselves as partners.
They have never gone through a marriage cere
mony, do not introduce themselves as a married
couple, wife, husband or spouse, and do not consider
themselves to be married or a married couple. Both
agreed that the purpose of the within action is an
attempt to establish homosexual rights generally.
The defendant, by way of what may be termed a
preliminary objection, submits that the plaintiffs have
no standing to bring the within proceeding before the
Court. The substance of the defendant's position is
that because the plaintiffs have suffered no adverse
effects as a result of the alleged unconstitutionality of
the challenged law they cannot fit themselves into the
category of persons whose rights and freedoms may
have been infringed or denied contrary to subsection
24(1) of the Charter.
In this respect, and it is not disputed by the plain
tiffs, the defendant has shown that by being treated as
two single individuals the plaintiffs have, over the
period from July 1987 to April 1990, received some
$6,000 more in combined federal and provincial ben
efits than they would have received had they been
treated as "spouses".
The difference in benefits arises as a direct result
of a medical condition of the plaintiff Nesbit which
had, during the relevant period, rendered him incapa
ble of working. Because of his condition Nesbit
received a total of some $17,000 under a provincial
social assistance plan. If, during the period that Nes-
bit received the $17,000 on account of his medical
condition, he had received the spouse's allowance to
which he claims to be entitled, he would have
received only $8,000 under the federal plan and his
payment under the provincial social assistance plan
would have been reduced to about $100. On the other
hand the plaintiff Egan's income, under the guaran
teed income supplement federal plan, would have
been increased by some $3,000 by reason of his
being eligible for the married as opposed to the single
rate.
As already indicated the net result would be that
the plaintiffs, by being treated as spouses as opposed
to single persons, would have received about $6,000
less over the period noted. The detailed calculations
of the actual benefits received and the benefits which
would have been received had the plaintiffs been
treated as "spouses" are set out in Schedules 8 and 10
of Exhibit 1.
In my view there is no merit to this argument.
Either the plaintiffs are entitled to claim the spouse's
allowance or they are not. The fact that the plaintiffs
have claimed under a provincial social assistance
plan and have received payments in excess of those
which they would have received under the federal
spouse's allowance had they been treated as spouses
under that latter program is not relevant to the ques
tion of their entitlement. The question is not whether
the plaintiffs are getting equal or higher benefits by
claiming as single individuals or as spouses but
whether they have been deprived of benefits under
the federal program for spouse's allowances to which
they may have been legally entitled.
The evidence shows that the plaintiffs claimed
under the spouse's allowance program and that they
were denied benefits because, in the view of the
administrators of that program, the plaintiffs, as an
homosexual couple, did not come within the defini
tion of "spouse". The plaintiffs have questioned the
right of the defendant to deny them the benefits of the
spouse's allowance on those grounds.
Given the contradictory interpretation by the courts
to the meaning of the word "spouse" it must be said
that there is a serious issue as to the validity of inter
preting the word so as to exclude from it a single sex
couple. The plaintiffs, having been denied the
spouse's allowance because of the interpretation
which the defendant has given to the meaning of the
word, it must also be said that they have been directly
affected and therefore are interested in the validity of
that interpretation. They therefore have status or
standing in accordance with the test set out by Mart-
land J. in Minister of Justice of Canada et al. v.
Borowski, [1981] 2 S.C.R. 575, at page 598.
It is true that the plaintiffs seek to establish the
rights of homosexual couples generally to the
spouse's allowance and in that respect fall short of
the subsection 24(1) Charter requirement that the
infringement or denial of a Charter-based right be
their own rather than that of other persons as decided
by Sopinka J. in Borowski v. Canada (Attorney Gen
eral), [1989] 1 S.C.R. 342, at page 366, but in fact
the claim alleges an infringement of the plaintiffs'
own rights under section 15 of the Charter and not
the infringement or denial of the Charter-based rights
of homosexual couples generally.
Accordingly, on that basis as well, the plaintiffs
come within the requirements of establishing a
proper basis for standing to bring this action.
Subsection 15(1) of the Charter provides:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without dis
crimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
The Supreme Court of Canada has dealt with the
question of discrimination under subsection 15(1) of
the Charter in a number of cases. Wilson J. set out
both the Court's position and that of McIntyre J. (in
Andrews v. Law Society of British Columbia, [1989]
1 S.C.R. 143) in R. v. Turpin, [1989] 1 S.C.R. 1296,
at pages 1330-1331, as follows:
Having concluded that the appellants have been denied at
least one of the equality rights listed in s. 15 of the Charter, I
must move to the next step and determine whether the denial
can be said to result in discrimination. Differential treatment is
permitted under s. 15 provided it is "without discrimination".
As McIntyre J. stated in Andrews (at p. 182):
A complainant under s. 15(1) must show not only that he or
she is not receiving equal treatment before and under the
law or that the law has a differential impact on him or her in
the protection or benefit accorded by law but, in addition,
must show that the legislative impact of the law is discrimi
natory.
The internal qualification in s. 15 that the differential treatment
be "without discrimination" is determinative of whether or not
there has been a violation of the section. It is only when one of
the four equality rights has been denied with discrimination
that the values protected by s. 15 are threatened and the court's
legitimate role as the protector of such values comes into play.
Can it be said then that the appellants' right to equality
before the law has been denied with discrimination? In
Andrews, McIntyre J., after noting with approval the deeper
understanding of discrimination developed under the Human
Rights Codes, offered the following definition of discrimina
tion (at p. 174):
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, obliga
tions, 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.
In determining whether there is discrimination on grounds
relating to the personal characteristics of the individual or
group, it is important to look not only at the impugned legisla
tion which has created a distinction that violates the right to
equality but also to the larger social, political and legal context.
McIntyre J. emphasized in Andrews (at p. 167):
For, as has been said, a bad law will not be saved merely
because it operates equally upon those to whom it has appli
cation. Nor will a law necessarily be bad because it makes
distinctions.
The questions to be asked, therefore, in determin
ing whether a given law infringes a subsection 15(1)
right are:
(a) does the law distinguish between different individuals or
classes of individuals, i.e. has a distinction been created by the
law?
(b) if a distinction is found to have been created by the law is it
one which gives rise to discrimination?
(Wilson J. in McKinney v. University of Guelph,
[1990] 3 S.C.R. 229, at page 390.)
Not only does section 15 prohibit discrimination
on the basis of the grounds enumerated therein but it
also prohibits discrimination on grounds analogous to
those grounds. In this respect counsel for the defen
dant has conceded that sexual orientation is a ground
analogous to those enumerated in subsection 15(1) so
that if the plaintiffs can show that the interpretation
given to the word "spouse" discriminates against
them, either on the basis of sex or on the basis of
their sexual orientation, they will have succeeded in
establishing an infringement of their subsection 15(1)
rights and thereby will move to the defendant the bur
den of demonstrating the justification for so doing in
accordance with the provisions of section 1 of the
Charter.
As noted subsection 15(1) specifically prohibits
discrimination on the basis of sex. Rowles J. in Kno-
del (supra) was called upon to determine whether the
exclusion of same sex couples from the definition of
"spouse" contained in the Medical Services Act Reg
ulations, British Columbia Regulations 144/68 [s.
2.01 (as am. by B.C. Reg. 5/77)], amounted to dis
crimination under subsection 15(1) of the Charter on
the prohibited ground of "sex".
"Spouse" was defined in those Regulations as fol
lows:
2.01. ...
"spouse" includes a man or a woman who, not being married
to each other, live together as husband and wife;
Rowles J. dealt with this objection at page 23 of
her judgment in the following terms:
Section 15(1) of the Charter lists nine enumerated grounds
of discrimination. These are: race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
The listed ground that seems most applicable is "sex".
Therefore, the question is whether sexual orientation is
included in the term "sex" in s. 15(1) of the Charter?
In Janzen v. Platy Ent. Ltd., [1989] 4 W.W.R. 39, the
Supreme Court of Canada considered meaning of discrimina
tion on the basis of sex. In this case, the court held that sexual
harassment in the workplace fell within the definition of dis
crimination on the basis of sex. Whilst the court was concerned
with treatment in the workplace, Dickson C.J.C. stated on
behalf of the Court at p. 61:
` ... 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 opportuni
ties available to, employees on the basis of a characteristic
related to gender." [emphasis is mine].
In the present case, the effect of the legislation is not aimed
at a characteristic related to gender. The definition of "spouse"
that is challenged effects both men and women who are
engaged in a homosexual relationship. Further, there is no indi
cation that the discriminatory effects fall entirely on men as in
Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219
(S.C.C.). Sexual orientation is not gender specific nor is it a
characteristic that affects one gender primarily. Accordingly,
the Plaintiff is unable to use discrimination on the basis of sex
as a ground to support his claim.
I agree with that conclusion and the reasons given
for it and find for the same reasons that the plaintiffs
in this matter are unable to use discrimination on the
basis of sex as a ground to support their claim. There
remains to be determined whether the plaintiffs are
able to use discrimination on the basis of their sexual
orientation as a ground to support their claim.
Rowles J. also dealt with the issue of discrimina
tion on the grounds of sexual orientation as an admit
ted (by counsel for the Crown in that case) analogous
ground under subsection 15(1) of the Charter. She
noted that two parts of the definition were at issue:
the word "spouse" and the phrase "live together as
husband and wife".
In that case, as in the present matter, she observed
that the definition was an inclusive rather than an
exhaustive one and that the parties were not required
to be man and wife but only, as in the matter at hand
as well, live together "as man and wife". After
reviewing various authorities Rowles J. concluded
that the word "spouse" was defined in the Regula
tions in such a way as to expressly exclude same sex
couples and then directed her enquiry as to whether
that exclusion violated subsection 15(1) of the Char
ter on the grounds of discrimination based on sexual
orientation.
She found the legislation treated homosexual
couples differently than heterosexual couples in
imposing an economic penalty on homosexual
couples relative to heterosexual couples who live
together in a relationship akin to man and wife by
denying a benefit to them that was accorded by legis
lation to the heterosexual couples.
The petitioner, who she found to be a member of a
discreet and insular minority, had had a burden
imposed upon him, by exclusion of benefits, solely
on the basis of his sexual orientation.
When I apply to the facts of the matter before me
the questions which Wilson J. sets out in the McKin-
ney case (supra) I do not come to the same conclu
sion as Rowles J. I agree with her that the first ques
tion must be answered in the affirmative, i.e. the
definition in question and the application of the legis
lation relating to the word "spouse" does create a dis-
tinction. The legislation denies the financial benefits,
the spouse's allowance, to homosexual couples which
benefits are accorded to heterosexual couples where
one spouse has reached the age of 65 and the other is
between the age of 60 and 65 but, in my view, that
distinction is not made upon the basis of the sexual
orientation of the plaintiffs and thus does not discrim
inate against them on that basis.
There can be no doubt that Parliament intended to
provide, and counsel for the plaintiffs does not main
tain otherwise, a benefit to spouses as the term is tra
ditionally understood. Rather counsel submits that, in
granting a benefit to spouses, Parliament created a
distinction between homosexual couples and hetero
sexual couples which distinction is based upon the
sexual orientation of the former group and that
because the distinction so created excludes the homo
sexual couple from benefits accorded to the hetero
sexual couple, the distinction discriminates against
homosexual couples on the basis of their sexual ori
entation.
Counsel for the Crown has submitted in this case,
as counsel for the Crown submitted in the Knodel
case, that the definition of "spouse" is intended to
mean married and common law heterosexual couples
and that the distinction created by the legislation is
not based upon sexual orientation but is a distinction
between spouses and non-spouses. Accordingly it is
submitted that the same sex couple is not treated any
differently from any other adult couple who live
together but do not publicly represent themselves as
husband and wife.
The plaintiffs in this matter do not come within the
definition assigned by Parliament to the group which
it intended to benefit by entitling them to the
spouse's allowance. The group intended to be bene
fited consists of the opposite sex partner of a couple
who live together and publicly represent themselves
as man and wife. The plaintiffs do not fall within the
meaning of the word "spouse" any more than hetero
sexual couples who live together and do not publicly
represent themselves as man and wife such as a
brother and sister, brother and brother, sister and sis
ter, two relatives, two friends, or parent and child.
The single sex couple fall into the same category as
those, i.e. the non-spousal couple category.
Parliament has chosen to address the needs of per
sons of the opposite sex who live together in a conju
gal state, either statutory or common law, as husband
and wife. This unit has traditionally been treated as
the basic unit of society upon which society depends
for its continued existence. I can see nothing discrim
inatory against the plaintiffs in a law which provides
certain benefits to this group and which law does not
provide the same benefits to a homosexual couple in
the position of the plaintiffs. The plaintiffs as an
homosexual couple, just as a bachelor and a spinster
who live together or other types of couples who live
together, do not fall within the traditional meaning of
the conjugal unit or spouses. When compared to the
unit or group which benefits by the challenged law
the plaintiffs fall into the general group of non-
spouses and do not benefit because of their non-
spousal status rather than because of their sexual ori
entation.
Within the non-spousal group into which the plain
tiffs fall they also fall into a sub-group of same sex
partners whose lifestyle mirrors many of the charac
teristics or attributes of the spousal group but that
does not, in my view at least, bring them within the
traditionally understood meaning of a spousal couple
which forms the fundamental building block of any
society.
That is not to say that the single sex relationship is
less worthy of consideration than the spousal rela
tionship or that it is not deserving of special or even
more favourable treatment than spousal or other non-
spousal relationships. It simply means that the rela
tionship is a different one than a spousal relationship
and that the parties to such relationship cannot expect
to share the benefits accorded to those in spousal
relationships, not because of their sexual orientation,
but because their relationship is not a spousal one.
The homosexual couple is but one of a larger class
of same sex non-spousal couples who live together.
In my view Parliament has not included them in the
spouse's allowance program simply because they are
not a spousal couple which Parliament has chosen to
limit to couples of the opposite sex who live together
publicly representing themselves as husband and
wife.
As I have concluded that the challenged law does
not infringe the plaintiffs' subsection 15(1) rights on
the basis of either their sex or their sexual orientation
there is no necessity to proceed further to determine
whether the law can be justified under the provisions
of section 1 of the Charter.
Accordingly judgment will be given dismissing the
plaintiffs' claims with costs.
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.