Ontario Government Employee Benefit Plans Discriminate on Basis of Sexual Orientation

Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont. Bd.Inq.)

The Board of Inquiry finds that Michael Leshner was discriminated against by his employer, the Province of Ontario, because of his sexual orientation when he was denied coverage under employment benefit plans for his same-sex partner.

Mr. Leshner is employed as a Crown Counsel with the Ministry of the Attorney General. In 1988 he complained that his employment benefits, including supplementary health and hospital benefits, a dental care plan, and a pension plan were discriminatory because they did not entitle his same-sex partner to coverage, though opposite-sex partners are.

In December 1990 the Government of Ontario announced that it would extend full coverage for all insured and non-insured benefits to couples of the same sex. However, Mr. Leshner was informed that restrictions in the federal Income Tax Act prevented the Government of Ontario from providing survivor benefits under the pension plan to same-sex partners of plan members. The definition of "spouse" in the Income Tax Act is restricted to opposite-sex partners. If the Government of Ontario were to provide benefits to same-sex partners in contravention of this definition the employee pension plan could be deregistered and this would have serious financial implications for the pension plan and all of its members.

Despite the Government's decision to extend coverage for health and dental benefits to same-sex partners, the Board of Inquiry addresses the merits of the complaint, giving particular attention to the outstanding issue of survivor benefits under the pension plan.

The Board of Inquiry finds that the denial of full pension plan benefits constitutes a prima facieviolation of the prohibition against discrimination based on sexual orientation found in s. 5 of the Ontario Human Rights Code.The Board then considers whether s. 25(2) provides a defence. Section 25(2) allows discrimination in the terms of benefit plans on the basis of marital status. The majority of the Board of Inquiry finds that Mr. Leshner is a single person with respect to his marital status and that discrimination on the basis of being single is allowed in employee benefit schemes by virtue of s. 25(2). The majority concludes, then, that the Government of Ontario has not breached the Code.

However, the majority of the Board, composed of Peter Cumming and Gunther Plaut, then proceeds to consider whether the definition of marital status in the Codecomplies with the requirements of s. 15 of the Charter. The Coderecognizes "living with a person . . . in a conjugal relationship outside of marriage" as a marital status, but only if the persons are of the opposite sex. The majority finds that s. 25(2), which permits discrimination in benefits based on sexual orientation because of the definition of marital status, does not comply with s. 15 of the Charterwhich includes protection from discrimination on the basis of sexual orientation.

The question becomes whether s. 25(2) and the narrow definition of marital status as they effect survivor benefits in pension plans are saved by s. 1 as a reasonable limit on the right to equality based on sexual orientation.

The majority finds that the objective of providing survivor benefits is to support the elderly female dependents of pension plan members. The structure of pension plan benefits has been based on the assumption that there is a traditional heterosexual relationship with the man working outside the home for wages and the woman working inside the home with no wages. In addition, opposite-sex partners have legal obligations to each other at the time of relationship breakdown which same-sex partners do not. Employment benefit plans are viewed as a means to complement legal support obligations. Also, the respondent government argues that for practical reasons it is necessary to restrict survivor benefits to opposite-sex partners because of the terms of the Income Tax Act.

The majority finds that the objective of promoting women's equality through survivor benefits was valid historically. But, given changes in workforce participation, the society's changing ideas about eligibility for benefits, the overly narrow group of women served by it (that is, heterosexual women in conjugal relationships with male plan members at the time of the death: not elderly lesbians), this objective is not persuasive.

The majority also finds that the argument with respect to the Income Tax Act is an argument respecting administrative convenience since the Government of Ontario can provide the same survivor benefits to gay and lesbian partners through a separate but equivalent plan outside the registered pension plan.

The majority finds that the denial of benefits to same-sex partners does not meet the test of proportionality, that is the means are not proportional to the goal. It is not necessary to deny benefits to same-sex partners in order to meet the objective of ameliorating the economic vulnerability of elderly women. The rights of same-sex partners are more than minimally impaired.

As a result the majority concludes that the restriction on benefits represented by the interaction of the definition of marital status and s. 25(2) of the Codeviolates s. 15 and is not saved by s. 1.

The majority concludes that the definition of marital status should be "read down" to remove the discrimination based on marital status by reading out the phrase "of the opposite sex." Discrimination would then be prohibited against persons living in a conjugal relationship outside marriage.

Since an Ontario Board of Inquiry has no jurisdiction with respect to the federal Income Tax Act, it can make no orders respecting changes to that Act. However, the Board of Inquiry urges the Government of Ontario to make every effort to persuade the Government of Canada to change the Income Tax Act, and, if political persuasion is unsuccessful, it encourages the Government of Ontario to take legal action on the grounds that the restriction in the Act violates s. 15 of the Charter.

Until the Income Tax Act is changed and same-sex partners can be provided with survivor benefits in the same manner as opposite-sex partners, the Board of Inquiry orders the Government of Ontario to establish a separate plan which will provide equal survivor benefits to the partners of gay and lesbian employees. It also orders the Government of Ontario to pay Michael Leshner $3,000 in compensation for the damage to his feelings and self-respect which the discrimination caused.

In a minority concurring decision, Brettell Dawson finds that s. 25(2) of the Codeprovides no defence to Michael Leshner's claim of discrimination based on sexual orientation. Ms. Dawson finds that the effect of the respondent's argument regarding s. 25(2) is to assign Mr. Leshner the marital status of a single person. This assignment constitutes discrimination on the basis of sexual orientation because it fails to recognize Mr. Leshner's homosexual relationship while recognizing the relationships of heterosexual employees. The ground of marital status should not be used as a means to perpetuate discrimination on the basis of sexual orientation. Such a reading conflicts with the remedial purpose of human rights legislation. Ms. Dawson finds that s. 25(2) permits differentiation between those who are in a relationship and those who are not with respect to such matters as the quantum of premiums and benefits, but it does not permit denying the existence of gay and lesbian relationships and excluding those in them from benefits. Grounds should not be read as conflicting or as "trumping" each other where this is not necessary.

Ms. Dawson finds, therefore, that Mr. Leshner was discriminated against within the terms of the Ontario Human Rights Code and that no resort to the Charter is necessary to resolve this case. She concurs, however, with the majority's interpretation of the Charter and with the remedies proposed.

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