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In a decade in which gay and lesbian Canadians made significant advances, 1999 may well come to be regarded as a watershed year. The issue that seemed to present an almost insurmountable challenge only a few years ago - the recognition of same-sex relationships in law - was effectively addressed when the Supreme Court of Canada decided, in M v. H, that same-sex couples must be treated in the same way as heterosexual couples. Public opinion research now shows that a majority of Canadians not only favour legislation to eliminate discrimination against lesbians and gay men, but increasingly approve of measures to protect and support their families. Indeed, while this report was being prepared, the Minister of Justice introduced a historic piece of legislation to extend the rights and responsibilities of same-sex couples.

Step by Step

The process of achieving equality for gay men and lesbians in Canada has been incremental, but marked by significant victories in the country's boardrooms, legislatures and courts. In the early Nineties, provincial governments, municipalities and private companies began offering benefits to their employees in same-sex relationships. Then, in 1996, a human rights tribunal ordered the federal government to extend medical and dental benefits to the same-sex partners of its employees. That same year, the government amended the Canadian Human Rights Act to add sexual orientation as a prohibited ground of discrimination.

More recent milestones included the Supreme Court of Canada's 1998 decision in Vriend v. Alberta, which required that province's government to add sexual orientation as a prohibited ground to its anti-discrimination legislation. After the decision was released, an Angus Reid poll found that three-quarters of Canadians supported legislation to ban discrimination based on sexual orientation, and Alberta wisely resisted calls by the decision's critics to invoke the Charter's "notwithstanding" clause to override the court.

Also in 1998, the Ontario Court of Appeal decided, in Rosenberg v. Canada (Attorney General), that the definition of "spouse" in the Income Tax Act was unconstitutional because it excluded same-sex survivor benefits from employers' pension plans. Again, critics of the decision attacked the courts for what they called "judicial activism," and called on the federal government to appeal the decision or to use the Charter's notwithstanding clause to circumvent it. The federal government chose not to appeal, thus removing a major barrier to employers who wished to provide same-sex survivor benefits to their employees.

At the Crossroads

A turning point for gay rights came in 1999, when the Supreme Court of Canada ruled in M v. H that Ontario's Family Law Act applied to same-sex couples who separated in the same way that it applied to heterosexual common-law couples. The case concerned the break-up of a long-term lesbian relationship, and the efforts of one of the former partners to obtain financial support from the other through the Family Law Act. The Court concluded that lesbians and gay men were as capable as heterosexuals of forming long-term, loving relationships in which one partner could become financially dependent on the other. As the majority stated:

The societal significance of the benefit conferred by the statute cannot be overemphasized. The exclusion of same-sex partners from the benefits of section 29 of the FLA promotes the view that M, and individuals in same-sex relationships generally, are less worthy of recognition and protection ... such exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence. (Paragraph 74)

Although the decision addressed a specific piece of legislation in one particular province, M v. H arguably represents the most significant development in gay and lesbian rights in many years. It has clarified the high court's thinking on matters related to same-sex couples, and has given impetus to governments across Canada to review their laws to ensure that homosexual and heterosexual couples are treated equitably.

Indeed, in the wake of M v. H, the government of Ontario introduced an omnibus bill to amend a number of provincial laws. Regrettably, it chose to bring its laws into line with the decision by creating a separate category for same-sex couples, prompting what is likely to be yet another round of litigation. Indeed, at the time the omnibus bill was introduced, the provincial government seemingly went out of its way to distance itself from the whole affair, with the Attorney General of Ontario observing that the bill was intended to satisfy the requirements of the high court while "preserving the traditional values of the family by protecting the definition of spouse." This grudging acceptance of the Supreme Court of Canada's ruling was in marked contrast to the approach taken by Quebec and British Columbia, when these provinces passed legislation to redefine the meaning of "spouse" in several provincial laws.

The Winds of Change

As this report was being prepared, the federal Minister of Justice introduced a bill to create the Modernization of Benefits and Obligations Act, which would amend 68 federal statutes to extend benefits and obligations to same-sex couples. The law extends many of the rights and responsibilities of married couples to both same-sex and opposite-sex common-law partners in a range of areas, including taxation, pension benefits, access to employment insurance, conflict of interest requirements, and conjugal visits in prison. In introducing the legislation, the Minister described the bill as reflecting the values of Canadians enshrined in the Charter: "These changes are about fairness. They will ensure that all common-law relationships receive equal treatment under the law."

In the view of the Commission, the proposed legislation, by extending the status of "common-law partners" throughout federal law to both opposite-sex and same-sex couples, adopts a sensible approach to addressing an issue on which governments in the past have been unwilling to act.

Complaints

In 1999, the Commission completed work on 96 complaints of discrimination based on sexual orientation. The Commission dismissed fourteen cases for lack of evidence, and took no further proceedings in fourteen others.

Twenty-three cases were referred to conciliation. These included a group of eighteen complaints against the Department of Finance and the Canada Customs and Revenue Agency, which alleged discrimination in the Income Tax Act. These complaints raised a number of questions related to spousal benefits and deductions that may be resolved through the government's recently introduced omnibus legislation.

The cases sent to conciliation also included a complaint against the Department of Citizenship and Immigration in which the complainant alleged that he was denied the right to sponsor his same-sex partner's application for landed immigrant status as a Family Class member. In recent years, Immigration officials have shown some flexibility in dealing with this type of application, but the treatment has not been consistent, and the Immigration regulations have not been amended to recognize same-sex couples under the Family Class provisions. Although the question of immigration rights for same-sex partners is not addressed in the federal government's omnibus bill, the Minister of Citizenship and Immigration has indicated that she intends to introduce legislative amendments to deal with the issue later this year.

In 1999, the Commission also helped to resolve 23 complaints either at mediation, at conciliation, or in the course of investigation. Many of these involved the denial of benefits to employees in same-sex relationships, including a group of six complaints against Canadian Airlines, in which the company ultimately agreed to extend employment benefits to same-sex couples.

Sexual Orientation Complaint Outcomes for 1999
(number and percentage)

Settled¹: 23 (24 %)
Referred to alternate redress mechanisms: 4 (4 %)
Referred to conciliation: 23 (24 %)
Referred to a tribunal: 0 (0 %)
Not dealt with²: 5 (5 %)
Dismissed: 14 (15 %)
No further proceedings³: 14 (15 %)
Discontinued⁴: 13 (13 %)
Total: 96 (100 %)

¹ Cases that were settled before or during investigation, through mediation or at conciliation.

² Cases that the Commission decided not to pursue because they were filed more than one year after the alleged act of discrimination, or were, technically, without purpose.

³ Cases in which the complainants withdrew or abandoned their complaints, the matters were outside the Commission's jurisdiction, or the complaints did not warrant referral to a tribunal.

⁴ Cases that were closed prior to investigation because the complainants did not wish to pursue them or because a link could not be established between the alleged act and a prohibited ground of discrimination.

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