Date: Tue, 28 Feb 1995 23:42:43 -0500 From: ae913@freenet.carleton.ca (Timothy Ross Wilson) Indexed as: Canadian Broadcasting Corp. v. Canadian Media Guild (Local 213 of The Newspaper Guild) Between Canadian Broadcasting Corporation, and Canadian Media Guild (Local 213 of The Newspaper Guild) Grievance of Denis-Martin Chabot Grievance Arbitration Donald R. Munroe, Q.C. Heard: December 12, 1994. Judgment: February 1, 1995. (19 pp.) Danny J. Kaufer, for the employer. Aubrey Golden, Q.C., for the union. I was constituted by the parties as an arbitration board under their collective agreement to hear and decide grievance E-64 dated November 22, 1993. The grievance was filed by the union on behalf of Denis-Martin Chabot -- an employee in the bargaining unit. It alleges that "... the corporation is violating the CBC-CWSG collective agreement, including but not limited to Articles 13 and 24. Specifically, (the corporation) is discriminating against me by denying same-sex spousal benefits". The hearing of the grievance was conducted at Edmonton on December 12, 1994. Article 13.4 of the collective agreement states that: The parties will not discriminate on the grounds of race, nationality, colour, sex, age, marital or parental status, sexual orientation, or religious or political affiliation, provided that such political affiliation is not contrary to the by-laws of the corporation. (emphasis added) By various other articles of the collective agreement, employees in the bargaining unit are afforded staff benefits. Not all the staff benefits are fully articulated in the collective agreement. However, the parties are thoroughly familiar with them; and, by virtue of Article 15.3 of the collective agreement, the corporation has undertaken not to change its staff benefit plans as they affect employees in this bargaining unit without the consent of the union. Many of the staff benefits are available (in the sense of allowing coverage or providing a benefit) not only to employees in the bargaining unit, but also to their family members. These include the health care plan, the dental care plan, the life insurance plan, and the pension plan. For purposes of eligibility, the health care plan, dental care plan and life insurance plan all define spouse as the legally married or common law spouse of the opposite sex who has lived with the employee for at least one year. Likewise for purposes of eligibility, the pension plan defines spouse as a person of the opposite sex who, at the time of death or retirement of the employee, had been living with the employee for at least one year, or, in the absence of such a person, the employee's legally married spouse. To obviate the necessity of expert evidence intended to be called by the corporation, the parties agreed upon the following joint statement: No legislation governing marriage or marital status in Canada includes persons of the same sex in the definition of spouse, and such persons are therefore unmarried and single in relation to such law. Further, in none of the provinces governed by the common law may persons of the same sex enter into a common law marriage. The same is true in the province of Quebec. In such relationships (same-sex), such persons are therefore unmarried and single in relation to such law. The grievor is employed by the corporation at Edmonton as a legislative reporter. For approximately the last six years, the grievor has lived in a homosexual relationship with Dwayne Zoeteman. Prior to living together, the grievor and Zoeteman had been seeing each other exclusively for about two years. In June, 1993, the grievor and Zoeteman purchased a house together as joint owners. That is the house in which they presently cohabit. They have named each other the beneficiaries of their respective retirement savings plans; the grievor has named Zoeteman the beneficiary of a life insurance policy. The two of them frequently spend holidays and attend family celebrations together; and they go to social functions together as a couple. The grievor is entirely open about his relationship with Zoeteman -- both to his colleagues at work and elsewhere. The grievor and Zoeteman treat their relationship as permanent, and as conjugally exclusive of others. In short, they see themselves as spouses, and represent themselves as such to the community. On several occasions over the past two years, the grievor has submitted requests to the corporation that Zoeteman be designated his spouse for purposes of the spousal benefits provisions of the pension plan. Those requests have been denied by the corporation on the basis that Zoeteman does not qualify under the plan as a spouse. As noted above, the plan recognizes married and common law spouses of the opposite sex only. On one occasion in 1993, the grievor requested spousal benefits for Zoeteman under the corporation's health care plan and dental care plan. These, too, were denied on the basis that spousal benefits were available only to spouses of the opposite sex, not to couples of the same sex. In the submission of the union, the corporation's refusals aforesaid to grant the requested benefits comprise discrimination against the grievor on the ground of sexual orientation -- i.e., in contravention of Article 13.4 of the collective agreement. The corporation denies the alleged contravention of Article 13.4. Hence, this arbitration proceeding. The recent trend of decisions by arbitrators and administrative tribunals favours the union. See the arbitration awards in Canada Post Corporation March 8, 1994 (Kelleher) and Bell Canada, November 23, 1994 (McDowell). See also the decision of the Public Service Staff Relations Board in Lorenzen v. Treasury Board (September 24, 1993), and the decision of the Ontario Human Rights Commission in Leshner v. Ontario (1992) 16 C.H.R.R. D/184. The dispute in Canada Post Corporation arose under a collective agreement providing for employer-paid extended health benefits for employees and their family members. The grieving employee was in a settled homosexual relationship with another man. In due course, the grievor submitted a claim for reimbursement under the extended health benefit plan for an expense incurred by his same-sex partner. The insurance carrier designated by the employer denied the claim solely because the grievor's partner was of the came sex as the grievor, rather than an opposite-sex common law spouse. The award in Canada Post Corporation was largely occupied with determining whether "sexual orientation" was a prohibited ground of discrimination in the collective bargaining relationship between Canada Post and its employees. Having decided that question in the affirmative, the arbitrator said this (at pages 17-18): ... In the Lorenzen grievance, cited above, the public Service Staff Relations Board held the denial of bereavement leave and family related leave to a same sex spouse constituted discrimination on the basis of sexual orientation. I adopt the reasoning of Board Member Galipeau as being applicable to the case before me: The parties to this collective agreement have agreed that there shall be no discrimination on the basis of sexual orientation. In the instant case, a characteristic of the grievor's sexual orientation is a natural inclination to favouring a spousal relationship with a person of the same sex, just as a heterosexual's natural inclination is to favour a spousal relationship with a person of the opposite sex. The fact that the grievor has chosen as a spouse a person of the same sex cannot be separated from his sexual orientation. Just as a pregnant woman who is discriminated against on the basis of her pregnancy has been found to be discriminated against on the basis of her sex (Brooks v. Canada Safeway (1989) 1 S.C.R 1219) similarly a homosexual who is discriminated against because he has chosen as a spouse a person of the same sex is in my view discriminated against on the basis of his sexual orientation. The choice he has made of a spouse of the same sex cannot be separated from his sexual orientation unless he in to be denied his sexual orientation. I am strengthened in this conclusion by the comments of the Chief Justice of the Supreme Court in the Mossop (supra) (in which Mr. Mossop was also denied bereavement leave under the collective agreement). At page 19 the Chief Justice commented that Mr. Mossop's sexual orientation was closely connected with the grounds which led to the refusal of the leave. He also stated that he believed that Judge Marceau of the Federal Court had "correctly identified the relationship which exists between sexual orientation and the discrimination at issue in this case". Although the question in Mossop centered around the words "family status", this declaration by the Chief Justice is, in my view, an implicit, if not explicit, recognition that Mr. Mossop's sexual orientation was closely connected to the grounds of denial of the bereavement leave. At page 18 of the award, the arbitration in Canada Post Corporation declared that "... the grievor is entitled to (the benefit claimed) notwithstanding that his spouse is of the same sex." In Bell Canada, the collective agreement provided (in Article 2.02) that the parties would not "... unlawfully discriminate against an employee for reasons of that employee's pregnancy, race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, disability, political affiliation with a legitimate political party, conviction for which a pardon has been granted or for exercising any rights under this collective agreement " (emphasis added). The fact pattern in Bell Canada is indistinguishable in principle both from the facts in Canada Post Corporation and the facts before me. Much of the award in Bell Canada concerns the meaning and implications of the phrase "unlawfully discriminate", especially in its relationship to "sexual orientation". But dealing squarely with the latter phrase, the arbitrator made these observations (at pages 27-28): I think it is fair to say that the term "sexual orientation" is commonly understood to mean an individual's orientation or preference in terms of a sexual relationship with others -- whether homosexual or heterosexual. It is a vital aspect of an individual's identity, not unlike race, religion, or ethnicity (which are also mentioned in Article 2.02). The thrust of Article 2.02 is that these aspects of identity should be irrelevant factors with respect to employment, and the way in which the company and the Association deal with employees. The union argues that, in this case, sexual orientation has not been irrelevant. The grievors have been denied benefits that are available to those who live in an otherwise identical heterosexual relationship. The grievors' benefit package is less generous than that of their heterosexual work mates, because their conjugal relationships and conjugal partners have been devalued -- or, more accurately, disregarded altogether. The grievors maintain that their choice of partner is intrinsic to their sexual orientation. They seek equal treatment: the same employment benefits for their conjugal partner as would be extended to an opposite-sex partner. Having referred with approval (at pages 28-29) to the above-cited decision of the Public Service Staff Relations Board in Lorenzen, the arbitrator in Bell Canada continued as follows (at page 30): ... If it is intrinsic to one's sexual orientation to prefer a conjugal or spousal relationship with a same-sex partner, one is discriminated against by a scheme which refuses to accord that relationship the same status and benefits as a relationship with the opposite sex. And it is the "gay employee" who is the object of discrimination, as well as his/her partner. In the result, the arbitrator in Bell Canada found and declared (at page 40) "... that the company's failure to provide same-sex spousal benefits for the grievors and their conjugal partners constitutes a breach of the collective agreement". In order to rectify the breach of the collective agreement, the arbitrator made a general direction that the employer "take the steps necessary to bring its benefit plans into conformity with Articles 2.02 and 2.12". In the case before me, the corporation submits that Canada Post Corporation and Bell Canada were wrongly decided. In argument, counsel for the corporation said that he was raising a threshold issue which appears not to have been raised either in Canada Post Corporation or in Bell Canada. Counsel for the corporation noted and emphasized that under existing Canadian law, "... individuals in a same-sex relationship cannot claim the legal status of a spouse -- a status created by statute or common law". He submitted that the benefit here being claimed is inextricably linked to such status (unlike, for example, a claim to a promotional vacancy). The argument then proceeded as follows: Where the benefit being claimed is tied to a status created by statute or common law, one cannot say that the corporation is discriminating against the grievor if he and his same-sex partner do not have that status. They simply are not spouses. The union says the label is not important, but at the end of the day the benefits in issue are based on a spousal relationship; and again, the grievor and his partner simply are not spouses. To receive the benefits claimed, there must be either the status of being legally married, or otherwise the status of spouse as recognized by the general law. ... If the grievor and Zoeteman are not legally married (which they cannot be), and they are not spouses at common law, then the grievor is single. And he is treated exactly the same way as a single person is treated who is heterosexual. The corporation is not saying you can't have these benefits because you are homosexual, but rather because you don't meet the precondition of a spousal relationship ... That is not discrimination on grounds of sexual orientation. I have considered that argument with great care. In the final analysis, however, I agree with counsel for the union that this case is not about the general law of marriage or marital relationships. It is not the general law which insists upon opposite-sex spousal status as a condition of eligibility for the employee benefits being claimed in this proceeding. Rather, it is the employee benefit plans themselves which prescribe that condition -- thereby excluding homosexual couples from benefits which would be available to them were they heterosexual. That is the essence of the union's grievance; that is to say, the essence of the allegation of discrimination on the ground of sexual orientation. In my view, it is not a good defence to this grievance for the corporation to say (as it does) that the grievor is legally single; that he is being treated the same as other single employees who are heterosexual; accordingly, that there is no discrimination against the grievor on the ground of sexual orientation. In fact, the grievor is not being treated the same as other single employees who are heterosexual. Those employees are not debarred on account of their sexual orientation from the benefits which are here being claimed. Rather, they are debarred from the benefits because they have not as yet entered into a settled heterosexual relationship. The grievor and other homosexual employees of the corporation are debarred from the disputed benefits on account of their sexual orientation. I say that because according to the terms of eligibility of the employee benefit plans, the benefits cannot accrue to an employee whose partner is of the same sex irrespective of how settled the relationship may be. In that sense, I agree with the union's argument that one's choice of life partner is dictated inevitably by one's sexual orientation; indeed, that that is what sexual orientation is all about. I think the union is therefore correct that the corporation's refusal to afford the so-called spousal benefits to the grievor and Zoeteman is inextricably tied to their sexual orientation; accordingly, that the corporation has run afoul of Article 13.4 of the collective agreement which prohibits discrimination on the basis of sexual orientation. Like the arbitrators in Canada Post Corporation and Bell Canada, I find it useful to refer to the judgment of the Chief Justice of Canada in Attorney General of Canada and Mossop (1993) 100 D.L.R. (4th) 658. The issue in that case arose when an employee in a settled homosexual relationship was refused a bereavement leave benefit under a clause in a collective agreement which allowed such leave upon the death of a member of the employee's "immediate family". The collective agreement in that case defined "family" as including common law as well as formally-married spouses, but as excluding a same-sex conjugal partner. The aggrieved employee, Mossop, took the matter to the Canadian Human Rights Commission. Eventually, the matter was heard by the Supreme Court of Canada. At the time of the Mossop decision, the Canadian Human Rights Act (CHRA) did not include "sexual orientation" as a prohibited ground of discrimination (as it effectively does now by virtue of the decision of the Ontario Court of Appeal in Haig and Birch v. Canada (1992) 9 O.R. (3d) 495). In circumstances described by the Chief Justice at pages 671-72 of his judgment, the case turned on whether the petitioning employees had been discriminated against on the ground of "family status" (which was prohibited by the CHRA). As a matter of statutory interpretation, the majority of the Supreme Court of Canada (including the Chief Justice) concluded that "family status" in the CHRA does not include a homosexual relationship between two individuals. But for present purposes, the significance of Mossop lies in the Chief Justice's observations about sexual orientation found at pages 672-73 of the judgment: When Mr. Mossop was denied bereavement leave in June, 1985, the CHRA did not prohibit discrimination on the basis of sexual orientation. In my opinion, this fact is a highly relevant part of the context in which the phrase "family status" in the Act must be interpreted. It is interesting to note in this regard that there was a recommendation by the Canadian Human Rights Commission that sexual orientation be made a prohibited ground of discrimination. Nevertheless, at the time of the 1983 amendments to the CHRA, no action was taken to implement this recommendation. It is thus clear that when Parliament added the phrase "family status" to the English version of the CHRA in 1983, it refused at the same time to prohibit discrimination on the basis of sexual orientation in that Act. In my opinion, this fact is determinative. I find it hard to see how Parliament can be deemed to have intended to cover the situation now before the court in the CHRA when we know that it specifically excluded sexual orientation from the list of prohibited grounds of discrimination contained in the Act. In the case at bar, Mr. Mossop's sexual orientation is so closely connected with the grounds which led to the refusal of the benefit that this denial could not be condemned as discrimination on the basis of "family status" without indirectly introducing into the CHRA the prohibition which Parliament specifically decided not to include in the Act, namely, the prohibition of discrimination on the basis of sexual orientation. While, with respect, I am not in agreement with all of Marceau J.A.'s judgment, I believe that he correctly identified the relationship which exists between sexual orientation and the discrimination at issue in this case: ... should it be admitted that a homosexual couple constitutes a family in the same manner as a husband and wife, it then becomes apparent that the disadvantage that may result to it by a refusal to treat it as a heterosexual couple is inextricably related to the sexual orientation of its members. It is sexual orientation which has led the complainant to enter with Popert into a "familial relationship" ... and sexual orientation, therefore, which has precluded the recognition of his family status with regard to his lover and that man's father. So in final analysis, sexual orientation is really the ground of discrimination involved. While it may be argued that the discrimination here applies to homosexual couples through their familial relationship or in their "family status" and does not apply to the sexual orientation of Mr. Mossop as an individual as such, I am not persuaded by this distinction. I cannot conclude - that by omitting sexual orientation from the list of prohibited grounds of discrimination contained in the CHRA, Parliament intended to exclude from the scope of the Act only discrimination on the basis of sexual orientation of individuals. If such an interpretation were to be given to the CHRA, the result would be somewhat surprising: while homosexuals who are not couples would receive no protection under the Act, those who are would be protected. Whatever may be my personal views in that regard, I find that Parliament's clear intent throughout the CHRA, before and at the time of the amendments in 1983, was to not extend to anyone protection from discrimination based on sexual orientation. To the extent the Chief Justice's foregoing observations provide definitional substance to "sexual orientation", they might narrowly be regarded as obiter dicta (although arguably not). But however that may be, they clearly were an important part of the chief Justice's reasoning. I must and do regard them as providing authoritative guidance. Paraphrasing the Chief Justice, I find that the grievor's sexual orientation is so closely connected with the corporation's refusal to grant the benefits claimed in this proceeding that such refusal clearly must be construed as discrimination on the basis of sexual orientation. The corporation made an alternative argument: to the effect that the employee benefit plans which are here in dispute are not themselves part of the collective agreement; accordingly, that Article 13.4 of the collective agreement (the non-discrimination clause) does not apply to them. I am not able to agree with the corporation's argument to that effect. First of all, by Article 15.3 of the collective agreement (in which the corporation covenants not to change its staff benefit plans as they affect the bargaining unit without the consent of the union), the parties have brought the employee benefit plans within the general ambit of their collective bargaining relationship. But secondly, and in any event, I agree with the arbitral disposition in Bell Canada of precisely the same argument (see pages 23-24 and 36): Article 2.02 does not begin with a qualifying preface such as "when administering the collective agreement".. Nor, in my view, would such implication be consistent with the purpose and thrust of the language, which is to prohibit discrimination whatever form it may take and by whatever means it is effected by either party. For example: could the company exclude black workers from employee lunchroom facilities yet escape scrutiny under Article 2.02 because lunchroom facilities are not specifically addressed in the collective agreement? I do not think so; moreover, the inclusion of the Association in Article 2.2 reinforces this broad thrust. The union's institutional and representational interests are not confined to the particular terms that are negotiated from time to time, but extend to the negotiation process itself and the various ways that an employee might interact with his or her bargaining agent. The union undertakes that that interaction will not be tainted by discrimination on any of the prohibited grounds. It is a general undertaking that is not confined to particular items mentioned in the agreement. ... In my view, Article 2.02 is clear on its face and means what it says: in their dealings with employees, the company and the Association will not... unlawfully discriminate against those employees. The agreement neither defines nor restricts the means by which such ... unlawful discrimination may be accomplished. The proscribed activities can be subject to grievance and remedy however they arise. It does not matter that the discriminatory policy or behaviour involves something that is not a negotiated item in the collective agreement. ... For the reasons already stated, I think that Article 2.02 constitutes an independent obligation on each party to deal with employees in a non-discriminatory fashion, whether or not the subject matter of the discriminatory behaviour is addressed in specific terms in the collective agreement. Thus, segregated lunchroom facilities, white-only parking privileges, or the denial of benefits to Asians, would all fall within the prohibitions of Article 2.02, even if parking privileges, lunchroom facilities, or benefits are not dealt with in the collective agreement. In each case the employer and/or the Association would be discriminating against employees on a prohibited ground, and thus contravening the terms of the agreement. Article 2.02 is not limited to the forms of discrimination which involve particular employee rights addressed in the agreement, and I see no reason for implying such limitation. Simply put, as I read Article 13.4 of this collective agreement, the finding of a violation thereof does not depend upon the proscribed discriminatory conduct being evident on the face of the collective agreement, or in the administration or application of a provision of the agreement. The parties have agreed with each other that in their dealings with employees in the bargaining unit, they will nor engage in discrimination on any of the grounds set out in Article 13.4 -- including, of course, sexual orientation. The fact that the discrimination is found in the corporation's staff benefit plans, even though the plans are not incorporated by reference into the collective agreement, is sufficient to attract the restraining influence of Article 13.4. Lastly, and in the alternative, the corporation submits that in the circumstances at hand, the union is estopped from asserting a violation of Article 13.4. The facts underlying the argument of an estoppel are simply the existence for many years of Article 13.4 (including the prohibited ground of "sexual orientation") without prior grievances being pursued to arbitration. Even assuming (without deciding) that the facts support a finding of an estoppel, the most that the corporation could hope to achieve would be the forestalling of remedial intervention pending the next opportunity to negotiate about the matter. As it happens, the parties are now engaged in collective bargaining toward a new collective agreement. In the light of that fact, and in the light of the relief currently sought by the union, I do not find it necessary to deal directly with the corporation's reliance on the doctrine of estoppel. Briefly, the union presently seeks a declaration that the corporation is in violation of Article 13.4 of the collective agreement as alleged; and a prospective general direction that the employer now take the required steps to rid the disputed employee benefit plans of discrimination on the ground of sexual orientation. I presume that corporation's implementation of that direction will be discussed between the parties during or at least concurrently with the collective bargaining which is now in progress. The grievance is allowed. The declaration and direction sought by the union are hereby made. I will remain seised of the matter to ensure the correct and effective implementation of this award. s/gta End of document. -- Julio Ducat P. 1962-1995