Nielsen v. Canada (Employment and Immigration Commission)

Appellant, a federal public servant, filed a complaint with the Canadian Human Rights Commission (“the Commission”) on September 29, 1989 regarding the government’s refusal to provide dental care insurance coverage for her same-sex partner and her partner’s child. She claimed discrimination pursuant to the Canadian Human Rights Act (“the Act”) on the grounds of sex, marital and family status, to which she later added sexual orientation.

The Commission held the appellant’s claim in abeyance pending judicial determination of a case dealing with similar issues, that of Canada (Attorney General) v. Mossop. In Mossop, a homosexual couple contended discrimination based on their “family status” when denied benefits accorded to heterosexual couples and alleged discrimination under section 3 of the Act. While the Mossop case was pending appeal before the Supreme Court in 1992, another relevant case was decided on in the Ontario Court of Appeal (Haig v. Canada) that issued a declaration that “sexual orientation” should be added to the grounds of discrimination of section 3 of the Act.  Following this, it was ruled in Mossop that the Commission was wrong in applying the “family status” protection to the homosexual couple, but that the constitutionality of section 3 of the Act could have been challenged in light of the decision in Haig because it did not contain “sexual orientation” as a grounds for discrimination.

With the Mossop and Haig rulings before it, the Commission dismissed the appellant’s complaint, noting that “it would not proceed with complaints based inter alia on sexual orientation if the alleged discriminating conduct antedated the Haig ruling.”  The appellant’s application for review was dismissed by the Trial Division, which determined that “sexual orientation became part of section 3 of the Act on the date of the judgment that the words into it” and could not be applied retroactively. The Trial Division denied that the appellant’s complaint had been “in the system” from 1989-1992 and could be disposed of on the basis of law as it existed at the end of the process as in criminal proceedings.

The appellant appealed to the Trial Division’s dismissal to the Court of Appeals.

The Court held that the Haig judgment necessarily had retroactive effect (such that sexual orientation should be read as a ground of discrimination under the Act dating from the time of the appellant’s complaint) and thus allowed the appeal.

In confronting a provision of law that appeared to be in conflict with the Canadian Charter of Rights and Freedoms (the “Charter”), the Court noted that the judiciary in the Haig judgment had added what was improperly excluded from the relevant provision (sexual orientation). After detailing the four different kinds of pronouncements which a judiciary can resort to when confronted with a legal provision which conflicts with the Charter  (i.e., immediate invalidation of the provision, severing just the part of the provision found to be unconstitutional, suspending a declaration of invalidity for some time to avoid disruptive effects of immediate nullification, and adding into the provision the language which was improperly excluded), the Court determined that, where the judiciary added in language improperly excluded, the provision should be interpreted as if the legislature had written it properly upon the advent of the Charter. Thus, such a provision should be considered to have retroactive effect.

The Court also pointed out that the Haig judgment was binding on the parties to the proceeding and others within the territorial jurisdiction of the tribunal because it was a judgment on the state of the law, a judgment in rem. It was unclear whether a judgment would be binding on third parties outside the territorial jurisdiction of the tribunal, but this was of no concern in this case at hand because the Commission was a party to the Haig proceedings.

“Les deux autres solutions possibles definies dans Schachter doivent etre examinees ensemble bien qu'a plusieurs egards elles se presentent comme deux reparations tout a fait differentes. . . . La premiere << refait >> correctement ce que le legislateur a déjà fait, quoique d'une faeon erronee; l'autre ajoute a ce que le legislateur a fait et meme, parfois, comme en l'espece, va a l'encontre de la volonte du legislateur. Toutefois, les deux reparations ont le meme but et ont recours a la meme technique juridique. . . . Dans les deux cas, le but est le meme, c'est-a-dire eviter une declaration d'invalidite qui toucherait la disposition ou le programme dans son ensemble, et dans les deux cas, la technique ne varie pas, etant donne que les cours de justice invoquent simplement leur obligation et leur pouvoir d'interpreter les lois. Il y a peut-etre beaucoup de fiction dans cette solution, mais, ici encore, ce sont les interets de la stabilite et de la continuite qui ont prevalu. De toute faeon, il reste que, dans les deux cas, le jugement se fonde de faeon non equivoque sur le fait que la disposition doit etre comprise, interpretee et lue comme si le legislateur l'avait redigee, ou reecrite, au moment de l'adoption de la Charte, s'il avait ete adequatement informe a cette date des limites de ses pouvoirs. Il me semble que cela nous amene inevitablement a conclure que la Cour a l'intention de remonter au moment de l'adoption ou de l'entree en vigueur de la Charte en 1982.” (paragraphe 14, pp. 4-5)

“The two other possible pronouncements defined in Schachter ought to be considered together, although, in many aspects, they present themselves as two quite different remedies. . . .One "re-does" properly what the legislature has already done, albeit improperly; the other adds to what the legislature has done, and even, at times, as in our case, goes against the will of the legislature. However, the two remedies have the same purpose and employ the same judicial technique. . . . In both cases, the purpose is the same, i.e., to avoid the sanction of invalidity applicable to the provision or the program as a whole, and in both cases the technique does not vary, as courts simply invoke their duty and power of statutory interpretation. There may be a great deal of fiction in that approach, but here again the interests of stability and continuity have prevailed. In any event, it remains that, in both cases, the basis of the judgment is unequivocally that the provision must be understood, interpreted and read as the legislature would have written it, or rewritten it upon the advent of the Charter, had the legislature then been properly informed as to the limits of its powers. This, it seems to me, does not allow any other conclusion than that the Court means to go back to the time of enactment or the coming into force of the Charter, in 1982.” (pp. 4-5)

“La question de l'application retroactive d'un jugement de la Cour traitant d'une attaque constitutionnelle peut difficilement etre dissociee de la deuxieme question concernant l'etendue de l'application du jugement. Qui est lie par le jugement?

Pour repondre brievement a cette question, on dira qu'il s'agit d'unjugement sur l'etat du droit; cela releve de la nature d'un jugement in rem, don’t l'application n'est pas limitee aux parties a l'instance, comme de celle d'unjugement inter partes dont le but est de determiner les droits des parties al'instance.” (paragraphe 15-16; p. 5)

“The question of retroactivity of a judgment of the Court dealing with a constitutional challenge can hardly be isolated from the second question respecting the extent of the application of the judgment. Who is bound by the judgment?

The short answer is that this is a judgment on the state of the law; it is in the nature of a judgment in rem, the application of which is not limited to the parties in the proceedings as is a judgment inter partes rendered to determine the rights of the litigants.” (p. 5)