Family Status Does Not Include Sexual Orientation

Canada (Attorney General) v. Mossop (1993), 17 C.H.R.R. D/349 (S.C.C.)

In a split 4-3 decision, the majority of the Supreme Court of Canada finds that the ground "family status" in the Canadian Human Rights Act does not give Brian Mossop, a gay employee, the right to be covered by a benefit provision in his collective agreement.

Mr. Mossop is an employee of the federal government who took a day off work to attend the funeral of his lover's father. His lover is a man. The collective agreement between Treasury Board and the Canadian Union of Professional and Technical Employees provided for up to four days' bereavement leave upon the death of a member of an employee's "immediate family". This term was defined to cover a broad range of relationships, including a common-law spouse. However, the definition of common-law spouse was restricted to a person of the opposite sex.

Mossop applied for and was refused bereavement leave. He filed a complaint under the Canadian Human Rights Act alleging discrimination based on the ground family status. A Canadian Human Rights Tribunal ruled in his favour, and ordered that the collective agreement be amended to include same-sex partners. This decision was overturned by the Federal Court of Appeal, pursuant to a review under s. 28 of the Federal Court Act. On appeal to the Supreme Court of Canada the issues were whether the Federal Court of Appeal erred in holding that any error of law by a human rights tribunal is reviewable on a s. 28 application, and in holding that the term "family status" in the Canadian Human Rights Act does not include a homosexual relationship.

A majority of the Court finds that the Federal Court of Appeal had the necessary jurisdiction to review the Tribunal's decision. Even absent a privative clause, courts have shown curial deference to certain specialized tribunals when interpreting their own Acts. However, a human rights tribunal does not have the kind of expertise that should enjoy curial deference on matters other than findings of fact. The question in this case is one of law.

The Court finds that there was no discrimination on the basis of Mossop's family status under the Canadian Human Rights Act as it stood in June 1985 when his lover's father died.

The decision turns solely on the question of Parliamentary intent. The Court notes that when Parliament added the term "family status" to the Act in 1983 it "refused" at the same time to add the ground "sexual orientation". The Court reasons that the complainant's sexual orientation is so closely connected with grounds that lead to a refusal of the benefit that the denial could not be condemned as discrimination on the basis of "family status" without indirectly introducing protection against "sexual orientation" discrimination which Parliament specifically decided not to include. Absent a Charter challenge to its constitutionality when Parliamentary intent is clear, courts and administrative tribunals are not empowered to do anything else but apply the law.

The appeal is dismissed.

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