Marital and Family Status Given Broad Definitions

B. v. Ontario (Human Rights Comm.) (2002), 44 C.H.R.R. D/1, 2002 SCC 66

The Supreme Court of Canada ruled that the terms "marital status" and "family status" are broad enough to apply to a situation where an adverse distinction is drawn based on the particular identity of a complainant's spouse or family member. These grounds are not restricted to distinctions based on the fact that a complainant has a certain type of marital or family status.

The facts of the case before the Court were these: A. worked for twenty-six years with the respondent company owned by his brothers-in-law, B. and C. A.'s 32-year-old daughter was in psychotherapy and identified B. as having sexually abused her as a child. A.'s daughter and his wife personally confronted B. regarding the sexual abuse. B. fired A. from his employment.

The Board of Inquiry found that the sole reason for A.'s termination was the fact that his daughter had made allegations of sexual abuse against B. The Board concluded that at the time of the termination A. had given B. no cause for concern about his loyalty or their continuing compatibility in the work setting. The Board ruled that A. lost his job only because of his relationship with his wife and his daughter. The Board of Inquiry concluded that this constituted discrimination based on marital status and family status.

The Ontario Divisional Court overturned this decision, finding that the grounds marital status and family status could not be extended to apply in this circumstance for two reasons: (1) because Mr. A.'s unfair treatment was based on personal animosity, not the stereotypical assumption that all family members think and act alike; and (2) because families have not traditionally been a disadvantaged group.

The Ontario Court of Appeal disagreed. Abella J.A., writing for the Court, concluded that Mr. A.'s dismissal, which clearly disadvantaged him, was based on his presumed inability, as husband and father, to be a good employee given the accusations made by his wife and daughter, rather than on his actual merit or conduct. The dismissal constituted discrimination based on marital and family status. The Court of Appeal set aside the decision of the Divisional Court and remitted the matter back to the Board of Inquiry to deal with the outstanding issue of remedy.

Before the Supreme Court of Canada, the issue was whether "marital status" and "family status" can be read to include the specific identity of one's spouse or child.

The appellants argued that the word "status" implies membership in a class or group of persons, and thus that "marital status" and "family status" do not encompass the particular identity of a partner or family member.

The Court agreed that "status" implies membership in a class or group, but reasoned that this does not necessarily mean that the grounds "marital status" and "family status" exclude discrimination based on particular identity. The Court found that these terms can encompass both the absolute status of being married or single, and the relative status of being married or related to a particular person.

Further, the Court noted that s. 5 of the Ontario Human Rights Code states that "every person" is entitled to equal treatment with respect to employment. The statute is thus aimed at protecting individuals, as opposed to groups, against discrimination. Although it is clear that in order to come under the protection of s. 5, 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. Group membership is not a necessary precondition to a finding of discrimination.

The Court concluded that it is sufficient that an individual experience differential treatment on the basis of an irrelevant personal characteristic that is enumerated in the grounds provided in the Code. It is not necessary to embark on the artificial exercise of constructing a disadvantaged sub-group to which the complainant belongs in order to bring him within the ambit of marital or family status.

In this case, the Court found that Mr. A. was discriminated against on the basis of his marital and/or family status. The appeal was dismissed.

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