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Vriend .doc

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Business Law
B LAW402
Elaine Geddes

Vriend v. Alberta 1998 Supreme Court of Canada The appellant V was employed as a laboratory coordinator by a college in Alberta, and was given a permanent, full-time position in 1988. Throughout his term of employment he received positive evaluations, salary increases and promotions for his work performance. In 1990, in response to an inquiry by the president of the college, V disclosed that he was homosexual. In early 1991, the college's board of governors adopted a position statement on homosexuality, and shortly thereafter, the president of the college requested V's resignation. V declined to resign, and his employment was terminated by the college. The sole reason given was his non- compliance with the college's policy on homosexual practice. V appealed the termination and applied for reinstatement, but was refused. He attempted to file a complaint with the Alberta Human Rights Commission on the grounds that his employer had discriminated against him because of his sexual orientation, but the Commission advised V that he could not make a complaint under the Individual's Rights Protection Act (IRPA), because it did not include sexual orientation as a protected ground. V and the other appellants filed a motion in the Court of Queen's Bench for declaratory relief. The trial judge found that the omission of protection against discrimination on the basis of sexual orientation was an unjustified violation of s. 15 of the Canadian Charter of Rights and Freedoms. She ordered that the words "sexual orientation" be read into ss. 2(1), 3, 4, 7(1), 8(1) and 10 of the IRPA as a prohibited ground of discrimination. The majority of the Court of Appeal allowed the Alberta government's appeal. C ORY J. The Individual's Rights Protection Act, R.S.A. 1980, c. I-2 ("IRPA" or the "Act"), was first enacted in 1973. When the legislation was introduced in 1972, the Minister responsible commented upon and emphasized the nature and importance of the Act, stating: "it is . . . the commitment of this legislature that we regard The Individual's Rights Protection Act in primacy to any other legislative enactment. . . . [W]e have committed ourselves to suggest that Alberta is not the place for partial rights or half freedoms, but that Alberta hopefully will become the place where each and every man and woman will be able to stand on his own two feet and be recognized as an individual and not as a member of a particular class" (Alberta Hansard, November 22, 1972, at p. 80-63). These are courageous words that give hope and comfort to members of every group that has suffered the wounds and indignities of discrimination. Has this laudable commitment been met? The IRPA prohibits discrimination in a number of areas of public life, and establishes the Human Rights Commission to deal with complaints of discrimination. The IRPA as first enacted (S.A. 1972, c. 2) prohibited discrimination in public notices (s. 2), public accommodation, services or facilities (s. 3), tenancy (s. 4), employment practices (s. 6), employment advertising (s. 7) or trade union membership (s. 9) on the basis of race, religious beliefs, colour, sex, marital status (in ss. 6 and 9), age (except in ss. 3 and 4), ancestry or place of origin. The Act has since been expanded to include other grounds, in a series of amendments (S.A. 1980, c. 27; S.A. 1985, c. 33; S.A. 1990, c. 23; S.A. 1996, c. 25). These additions were apparently, at least in part, made in response to the enactment of the Charter and its judicial interpretation. In the most recent amendments the name of the Act was changed to the Human Rights, Citizenship and Multiculturalism Act. In 1990, the Act included the following list of prohibited grounds of discrimination: race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry and place of origin. At the present time it also includes marital status, source of income and family status. Despite repeated calls for its inclusion sexual orientation has never been included in the list of those groups protected from discrimination. In 1992, the Human Rights Commission decided to investigate complaints of discrimination on the basis of sexual orientation. This decision was immediately vetoed by the Government and the Minister directed the Commission not to investigate the complaints. The constitutional questions which have been stated by this Court are: 1 Do (a) decisions not to include sexual orientation or (b) the non-inclusion of sexual orientation, as a prohibited ground of discrimination in the preamble and ss. 2(1), 3, 4, 7(1), 8(1), 10 and 16(1) of the Individual's Rights Protection Act, R.S.A. 1980, c. I-2, as am., now called the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 1980, c. H-11.7, infringe or deny the rights guaranteed by s. 15(1) of the Canadian Charter of Rights and Freedoms? 2 If the answer to Question 1 is "yes", is the infringement or denial demonstrably justified as a reasonable limit pursuant to s. 1 of the Canadian Charter of Rights and Freedoms? The respondents contend that a deliberate choice not to legislate should not be considered government action and thus does not attract Charter scrutiny. This submission should not be accepted. Yet there is nothing either in the text of s. 32 or in the jurisprudence concerned with the application of the Charter which requires such a narrow view of the Charter's application. s. 32 is "worded broadly enough to cover positive obligations on a legislature such that the Charter will be engaged even if the legislature refuses to exercise its authority. The application of the Charter is not restricted to situations where the government actively encroaches on rights. The application of the Charter to the IRPA does not amount to applying it to private activity. If any enumerated or analogous group is denied the equality provided by s. 15 then the equality of every other minority group is threatened The first step is to determine whether, due to a distinction created by the questioned law, a claimant's right to equality before the law, equality under the law, equal protection of the law or equal benefit of the law has been denied. During this first step, the inquiry should focus upon whether the challenged law has drawn a distinction between the claimant and others, based on personal characteristics. Not every distinction created by legislation gives rise to discrimination. Therefore, the second step must be to determine whether the distinction created by the law results in discrimination. In order to make this determination, it is necessary to consider first, whether the equality right was denied on the basis of a personal characteristic which is either enumerated in s. 15(1) or which is analogous to those enumerated, and second, whether that distinction has the effect on the claimant of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to benefits or advantages which are available to others. It has been repeatedly held that identical treatment will not always constitute equal treatment. "Underinclusion may be simply a backhanded way of permitting discrimination". It is clear that the IRPA, by reason of its underinclusiveness, does create a distinction. Gays and lesbians do not even have formal equality with reference to other protected groups, since those other groups are explicitly included and they are not. The exclusion of the ground of sexual orientation, considered in the context of the social reality of discrimination against gays and lesbians, clearly has a disproportionate impact on them as opposed to heterosexuals. Where, though, discrimination is visited virtually exclusively against persons with one type of sexual orientation, an absence of legislative remedies for discrimination based on sexual orientation has a differential impact. The absence of remedies has no real impact on heterosexuals, since they have no complaints to make concerning sexual orientation discrimination. The absence of remedies has a real impact on homosexuals, since they are the persons discriminated against on the basis of sexual orientation. This Court has consistently held that s. 15(1) of the Charter protects against this type of discrimination. . . . Section 15(1), the Court held [in Andrews], was intended to ensure a measure of substantive, not merely formal equality. It is not necessary to find that the legislation creates the discrimination existing in society in order to determine that it creates a potentially discriminatory distinction. The omission of sexual orientation as a protected ground in the IRPA creates a distinction on the basis of sexual orientation. The "silence" of the IRPA with respect to discrimination on the ground of sexual orientation is not "neutral". Gay men and lesbians are treated differently from other disadvantaged groups and from heterosexuals. They, unlike gays and lesbians, receive protection from discrimination on the grounds that are likely to be relevant to them. It is apparent that the omission from the IRPA creates a distinction. That distinction results in a denial of the equal benefit and equal protection of the law. It is the exclusion of sexual orientation from the list of grounds in the IRPA which denies lesbians and gay men the protection and benefit of the Act in two important ways. They are excluded from the government's statement of policy against discrimination, and they are also denied access to the remedial procedures established by the Act. 88 Therefore, the IRPA, by its omission or underinclusiveness, denies gays and lesbians the equal benefit and protection of the law on the basis of a personal characteristic, namely sexual orientation. Sexual orientation is a ground analogous to those listed in s. 15(1). Sexual orientation is "a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs" (para. 5). It is analogous to the other personal characteristics enumerated in s. 15(1); and therefore this step of the test is satisfied. It could therefore be assumed that a denial of the equal protection and benefit of the law on the basis of the analogous ground of sexual orientation is discriminatory. Yet in this case there are other factors present which support this conclusion. The commendable goal of the legislation, then, is to affirm and give effect to the principle that all persons are equal in dignity and rights. It prohibits discrimination in a number of areas and with respect to an increasingly expansive list of grounds. The first and most obvious effect of the exclusion of sexual orientation is that lesbians or gay men who experience discrimination on the basis of their sexual orientation are denied recourse to the mechanisms set up by the IRPA to make a formal complaint of discrimination and seek a legal remedy. The denial of access to remedial procedures for discrimination on the ground of sexual orientation must have dire and demeaning consequences for those affected. Persons who are discriminated against on the ground of sexual orientation, unlike others protected by the Act, a
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