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Federal Human Rights Tribunal dismisses same-sex pension complaint against Air Canada

Air Canada does not have to provide pension benefits to its employees' same-sex partners, a federal Human Rights Tribunal has ruled in Laessoe v. Air Canada, released on September 13, 1996. Until October 1995, Air Canada had denied all benefits to same-sex spouses. Since that time, although it provided certain employment benefits, it continued to deny pension coverage. Niels Laessoe, a customer service agent, claimed that the Air Canada's denial of benefits until 1995 and its refusal to extend pension benefits after 1995 breached the Canadian Human Rights Act. (Laessoe's complaint predated the federal government's amendments to the Act which added sexual orientation as a prohibited ground of discrimination.)

The Tribunal held that Laessoe had not made out a case of discrimination for the period before 1995, as sexual orientation was not a prohibited ground of discrimination under the Act until it became so by implication following the Supreme Court of Canada's decision in Egan v. Canada in 1995. Then, even at that point, the Tribunal stated, in Egan the Court had held that legislative definitions of "spouse" which excluded same-sex partners from pension benefits under federal legislation were not discriminatory. Accordingly, the Tribunal ruled, because it could go no further than the Supreme Court had gone, Air Canada's denial of pension coverage since 1995 could not be considered discriminatory on the ground of sexual orientation.

The Tribunal rejected the complainant's argument that the 1992 decision of the Ontario Court of Appeal in Haig v. Canada had resulted in the inclusion of sexual orientation as a prohibited ground under the Act three years before Egan. Moreover, when Egan changed the law definitively in 1995, the Tribunal observed, Air Canada acted promptly in providing benefits to same-sex spouses, to the extent required by Egan.

Having found that the complainant had failed to make out a case of discrimination, the Tribunal went on to note that, in any event, Air Canada had established a sufficient justification for its refusal to extend pension coverage. The federal government had failed to amend the provisions of the Pension Benefits Standards Act and the Income Tax Act, both of which restricted the definition of "spouse" to persons of the opposite sex for the purpose of pensions. Therefore, the Tribunal held, because of the effect of that legislation, any plan set up by the employer for same-sex spouses would not provide them with pension benefits equal to those of opposite-sex spouses.

The Tribunal held that it could not require Air Canada to provide an equal benefit when it was federal legislation itself which prevented the benefit from being equal. To do so would punish the company without alleviating the discriminatory treatment. The Tribunal urged the government to act swiftly to amend the legislation.

The Canadian Human Rights Commission has announced that it will apply for judicial review of the decision. We will keep readers informed of any developments.

(See also "Ontario Court of Appeal hands big victory to same sex couples in pension benefits case" on our Publications page.)