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"An artificial exercise": Supreme Court rules that victims of discrimination need not be members of disadvantaged groups

In a ruling issued on October 31, 2002, the Supreme Court of Canada has unanimously upheld the decision of the Ontario Court of Appeal in B. v. Ontario (Human Rights Commission) (see "Ont. C.A.: Employment discrimination not just about disadvantaged groups" on our Publications page). In doing so, the Court has decisively rejected the argument that it is necessary to demonstrate membership in a disadvantaged group in order to succeed in a claim of discrimination under Ontario's Human Rights Code.

The case arose with the termination in 1990 of Mr. A., an employee with 26 years' service. Mr. A.'s employer was owned by Mr. B., who was also the brother of A.'s wife, and the uncle of A.'s daughter.

A.'s daughter accused B. of having sexually assaulted her a number of years earlier. A.'s wife and daughter went to B.'s home and confronted him with the accusation of sexual assault. The next work day, B. told A. he was fired.

A. complained to the Human Rights Commission, and was successful before a Board of Inquiry. The Board's decision was reversed on appeal to the Divisional Court, which agreed that A. had been dismissed without cause, but held that he had not suffered discrimination. The Court held that the purpose of including marital and family status in the Code, was to promote "equality and the protection of those who have been discriminated against based on their membership in an identifiable group in society…" Here, A. had been terminated because of the identity of his spouse and daughter, and the animosity shown to him by B. because of this particular relationship.

The Ontario Court of Appeal restored the Board's decision, holding first that the concept of marital and family status includes not only the fact of being married or having a family, but also the identity of a particular spouse or family member, and that the Divisional Court had erred in its preoccupation with whether A. belonged to a disadvantaged group. In the Court of Appeal's view, the question therefore was not whether A. fit into a disadvantaged group, but whether he had suffered discrimination based on a prohibited ground. The Court held he had.

The Supreme Court unanimously dismissed B.'s appeal. The Court held first that the grounds of discrimination based on marital status and family status set out in the Code did encompass discrimination claims based on the particular identity of a complainant's child or spouse. It rejected B.'s argument that the grounds of "family status" and "marital status" should be interpreted so as to apply only to complaints based on a person's "absolute status", such as the mere fact of being married or single, or the fact of being in a certain type of family.

The Court then pointed to the language of s. 5(1) of the Code, the provision on which A.'s claim of discrimination was based, which reads:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

In the Court's view, there was no reason to read this provision as barring complaints where the discrimination arose due to the identity of a complainant's family member:

"By using the words "every person" the statute is clearly aimed at protecting individuals as opposed to groups against discrimination. Although it is equally clear that, in order to come under the protection of s. 5(1), the discrimination must be based on one of the listed grounds, this does not mean that the discriminatory action must be directed against an identifiable group subsumed within the enumerated ground. Nor does it mean that the action complained of must result from the stereotypical application of an attributed group characteristic. Such requirements are simply not found in the wording of s. 5(1). Thus, on its face, the provision appears to encompass complaints based on the particular identity of a family member based on either the "marital status" or "family status" grounds."

Turning to the jurisprudence dealing with discrimination based on marital or family status, the Court noted that the cases divided into one line favouring a "group" requirement to demonstrate discrimination, and another where complaints based on "particular identity" discrimination were upheld. The Court favoured the second approach, noting that while the "group" aspect of discrimination reflected a "sociological fact", it was not a legal precondition for a successful claim:

"Enumerated grounds correspond to groups of individuals who share similar personal characteristics (e.g., individuals who are married/single). In this sense, the grounds enumerated in the Code encapsulate many groups of persons who may be exposed to prohibited conduct. This sociological fact, however, does not translate into a requirement that the complainant identify a particular group that has suffered or may potentially suffer the same discrimination. While the search for a group is a convenient means of understanding and describing the discriminatory action, it does not rise to the level of a legal requirement."

Accordingly, the Court held that A. did not have to demonstrate membership in an identifiable group sharing his form of discrimination. It was sufficient that he demonstrate that he had suffered discrimination based on irrelevant personal characteristic enumerated as a prohibited ground in the Code. It was not necessary, in the Court's words, "to embark on the artificial exercise of constructing a disadvantaged sub-group to which the complainant belongs in order to bring one's self within the ambit of marital or family status within the meaning of the Code."

In Our View

The Court's decision was based not only on its interpretation of s. 5(1) and on the jurisprudence, but on the principle that human rights legislation should be interpreted broadly, in this case, so that "particular identity" discrimination was included.

It is interesting to note that while the Court of Appeal had explicitly relied on the "nepotism" cases following Brossard (Ville) v. Quebec, a 1988 decision in which the Supreme Court of Canada ruled that a policy prohibiting the hiring of relatives of employees was discriminatory, the Supreme Court viewed the issue of nepotism as falling between discrimination based on "absolute" status (such as being married or single) and discrimination based on the particular identity of one's relative or spouse. Referring to the nepotism cases as involving "group identity" discrimination against a sub-group sharing a particular status (e.g. persons related to employees), the Court explicitly acknowledged that A.'s case was different, in that it concerned differential treatment of a person because that person's spouse was objectionable to the employer.

For further information, please contact André Champagne at (613) 563-7660, Extension 229.