Defining the Term

The definition of marital status includes the status of not being married, that is, being single, widowed, divorced, separated or living common law.

It also encompasses the status of being married and also the particular identity of one’s spouse. ¹

Some jurisdictions such as B.C., Nunavut, N.W.T, Yukon, Manitoba, New Brunswick and Canada do not define this term in its legislation.

Other jurisdictions such as Nova Scotia define these words as “the status of being single, engaged to be married, separated, divorced, widowed or two people living in the same household as if they were married”. The statutes of Alberta, Ontario, Newfoundland and P.E.I. are much the same.

Saskatchewan uses the same general term but adds a qualifier that discrimination based on a particular person is not adverse treatment. This presumably means that the employer may, for example, terminate the spouse of a co-worker, not because of the marital relationship, but due to bona fide performance issues.

It has been determined that a common law relationship is included within the definition of “marital status” where the statute does not offer such a definition. ²

The assessment of the existence of such a relationship is not one to be defined by other statutes, such as was argued in the above case, references being made to the Income Tax Act, the Pension Benefits Act of N.B., The Family Services Act of N.B. and the Canada Pension Benefits Act. In this case, the co-habitation commenced in February, after which the termination was effected in August of the same year.

The question becomes one of fact which is based on the context and the evidence. In Tracey, the Queen’s Bench spoke approvingly of the liberal interpretation of this term by the board.

No Family Members Need Apply

Generally speaking, employer anti-nepotism policies will be seen as a prima facie violation of the relevant code provision to which the employer must assert a defence of a BFOQ and satisfy the three fold test of Meiorin.

An example of the successful assertion of such a breach is a case in which a town adopted a ban against all immediate family members of employees and town councilors from being hired. The standard could not be justified and was struck.³ It was agreed by the court that an employer could nonetheless pass rules of conduct which may address real or potential conflicts.

Such an issue arose in a case ⁴in which a physiotherapist had worked for five years with a physiotherapy centre which had assigned him to the Hellenic Home for elderly patients. He married the Director of Care at this location.

Due to its policy which precluded employees from supervising or contracting with family members, it was decided that a different clinician would be hired for this positon. The applicant was denied access not only to this location but all Hellenic sites due to disparaging remarks which followed the initial decision.

The first two steps of the Meiorin test were met, namely that there was a rational connection of the medical requirement to the job performance and was adopted in good faith. On the issue of reasonably necessary, raising the test of undue hardship, it was found that the applicant refused to co-operate with the company in its attempts to seek an accommodated solution. The claim was dismissed.

An employee in Alberta who was not able to work rotating shifts due to his spouse’s medical issues was successful in his assertion of a failure to accommodate. It was agreed that the basic rule for employees to rotate shifts was a rational business need and made in good faith. The company did offer one alternative of a lower paying position which was found to be inadequate. It failed to test the degree of hardship for other alternatives.⁵

This issue is also reviewed in the New Brunswick Queen’s Bench decision of 502798 NB v New Brunswick HRC aka "Tracey" on review of the tribunal’s decision in favour of the terminated employee. The Court found in favour of the employer on the first two components of the test but against it on the undue hardship test. The two employees, living in a common law relationship, did not report to one another. The female employee did enter financial data which determined the male partner’s bonus entitlement. The Court and the tribunal both found that there was not undue hardship to accommodate this circumstance.

Of some note in Tracey is the employer’s assertion that the need for the female partner to enter confidential financial information which may impact the make partner’s bonus entitlement allowed for a rational connection between the rule prohibiting such relationships and job performance. The Queen’s Bench overruled the board on this issue, finding in the employer’s favour. The board was upheld on the remaining tests in which it determined that the rule was made in good faith, yet was not a standard reasonably required to accomplish the intended objective, as there were many reasonable alternatives available.

A similar finding of liability based on a code violation based on questions asked in the interview process which were based on “her family, marital status and how she came to Canada”. ⁶ The tribunal accepted the applicant’s evidence. As there was no affirmative evidence from the employer, liability was found to support a compensatory award of $4,000 and lost wages which were capped at the date of new employment. The sum awarded was $500. It was found that the code violations were “more probable than not” factors in the decision not to hire.

The Supreme Court of Canada decision in "B" above involved a family business. Mr. A was dismissed from his employment from a company owned by two brothers, C & B. The spouse of A, Mrs. A was the sister of C & B.

Mr. A's daughter and Mrs. A had each alleged to B that he had sexually molested the daughter of Mr. and Mrs. A. as a young child. This resulted in the termination of Mr. A's employment after 26 years of employment.

Mr. A's complaint to the tribunal based on family and marital status succeeded. The Divisional Court reversed, finding that the termination was based on personal animosity and not a prohibited ground. The Court of Appeal reversed and ordered the matter be remitted back to the tribunal.

The Supreme Court upheld the Court of Appeal decision.

The issue for the determination of the court was:

What is the meaning of “marital status” and “family status”, as those phrases are used in the Ontario Human Rights Code?  In particular, can the phrases be read so broadly as to include the specific identity of one’s spouse or child?

The submission advanced by the respondents before the tribunal, the appellants in the Supreme Court, was that the terms "family status" and "marital status" were to be interpreted based on a person's factual circumstance, that is, being married or single or as the case may be, as opposed to the specific identity of the family members in question. That was referenced as "absolute status" in this argument.

In response to this plea, the Supreme Court agreed in part, but not completely:

We agree that the term “status” implies membership in a class or group; however, it does not necessarily follow that these definitions operate to exclude discrimination claims based on particular identity. In fact, s. 11(1) itself distinguishes between grounds of discrimination, where the action complained of is explicitly directed at a person who falls within the class of persons enumerated in the grounds, and groups, where the action complained of has the effect of discriminating against the class of persons, or group, enumerated in the Code. This distinction suggests that it would be improper to merge the two in interpreting s. 5(1).  To abandon grounds in order to protect groups exclusively would require the creation of artificial sub-groups so as to make the Code effective. In other words, in order to fall within the scope of s. 5(1), the complainant would have to demonstrate not only that he or she falls within the class of persons enumerated in the grounds, but also that he or she belongs to an identifiable sub-group or class included within them. To interpret the definitions so as to include such a condition would be to read in a requirement that is simply not there on its face.

The Court also spoke to the broader spirit of interpretation of human rights remedial legislation:

More generally, this Court has repeatedly reiterated the view that human rights legislation has a unique quasi-constitutional nature and ought to be interpreted in a liberal and purposive manner in order to advance the broad policy considerations underlying it:...(citations omitted)

45                              Based on the preamble to the Code as well as s. 5(1) itself, the provision in question is aimed at preventing discrimination against individuals on the basis of the listed grounds.  An interpretation of the terms “marital status” and “family status” which supports this broad goal is one which includes discrimination based on the particular identity of a spouse or family member.  Thus, in accordance with the applicable principles of interpretation, this is the interpretation which should be adopted.

The appeal was dismissed and the liability finding was upheld.