Denial of Same-Sex Spousal Benefits Contrary to Canadian Human Rights Act

The Canadian Human Rights Tribunal has recently ruled that the Canadian Human Rights Act prohibits discrimination against same-sex partners in the provision of employment-related spousal benefits. In Moore and Akerstrom v. Canada (Treasury Board), released on June 13, 1996, the Tribunal addressed complaints from two public service employees that they had been denied health, dental and other benefits for their same-sex partners.

The Tribunal held that sexual orientation was a prohibited ground of discrimination under the CHRA (the hearing was held before Parliament amended the Act to expressly include this ground of discrimination). It then went on to rule that a denial of benefits to same-sex partners who meet all aspects of the definition of a common-law spouse except that of being “of the opposite sex” constitutes discrimination based on sexual orientation. A definition of “spouse” that excludes same-sex partners from spousal benefits was also found to be discriminatory.The employer had argued that, if the Tribunal found the complaints were substantiated, it should follow the approach of the Supreme Court of Canada in the 1995 decision of Egan v. Canada, and not force the government to extend the benefits immediately. The Tribunal responded that such an approach might be appropriate where the government was acting as the originator of social policy, as was the case in Egan. However, where it was merely an employer, and the benefits involved were not discretionary social benefits, but earned employment benefits, the arguments for granting the government flexibility did not apply.

The Tribunal ruled in favour of the complainants, compensating them for the denial of benefits and ordering damages for hurt feelings. The employers were directed to cease applying the definition of “spouse” in a discriminatory manner. They were also required to prepare within 60 days an inventory and proposal for the elimination of any language in legislation, regulations, directives, plans, policies and collective agreements that discriminates against same-sex couples in the provision of employment-related benefits. It was agreed that this proposal would not cover legislation providing for pension benefits but would encompass the Income Tax Act.

On July 15, the federal government announced that it would accept the Tribunal decision and extend medical and dental benefits to same-sex partners of federal employees. However, it intends to seek judicial review of a portion of the Tribunal ruling, including the requirement for an inventory and proposal. (For a description of more recent developments, see “Government application for stay rejected in same-sex benefits case” on our What’s New page and “Ontario Court of Appeal hands big victory to same sex couples in pension benefits case” on our Publications page.).