Leroux v. Co-operators General Insurance Co. (C.A.), 1991 CanLII 7054 (ON CA)

Leroux v. Co-operators General Insurance Co.;
Superintendent of Insurance, Intervener
Indexed as: Leroux v. Co-operators General Insurance Co.
(C.A.)

 

4 O.R. (3d) 609

[1991] O.J. No. 1554

Action No. 166/90

Insurance -- Automobile insurance -- Uninsured motorist -- Family protection endorsement -- Uninsured motorist cover extending benefits to insured's spouse and any dependent relative of either -- Spouse meaning person legally married -- Son of insured's common law spouse not entitled to benefits -- Interpretation of "spouse" not contravening Charter -- Insurance Act, R.S.O. 1980, c. 218, s. 231 -- Canadian Charter of Rights and Freedoms, s. 15(1).

Charter of Rights -- Equality rights -- Insurance contract subject to Charter where terms of contract mandated by statute -- Charter not contravened where policy benefits available for relatives of legally married spouse but not available for relatives of common law spouse -- Insurance Act, R.S.O. 1980, c. 218, s. 231 -- Canadian Charter of Rights and Freedoms, s. 15(1).

Courts -- Stare decisis -- Court of Appeal -- Trial court bound to follow decision of appellate court even if decision made per incuriam.

On June 12, 1988, while walking, A was struck by a stolen vehicle. At the time of the accident, A was 17 years old, in Grade 12, and living at home with his mother, P, and F, her common law spouse. F owned two motor vehicles that were insured with the defendant under an Ontario standard automobile policy with an S.E.F. 44 Family Protection Endorsement. The terms of this endorsement as mandated by the Insurance Act provided uninsured motorist coverage for A's bodily injuries if A was the dependent relative of the spouse of the insured F. A's entitlement to insurance hinged upon whether P was the "spouse" of F within the meaning of the insurance policy. On a motion in the form of a special case under Rule 22 of the Rules of Civil Procedure, the motions judge noted that while she was bound by the Court of Appeal's decision in Fraser v. Haight -- which held that for the purpose of uninsured motorist coverage, "spouse" means a man or a woman who is legally married to a person of the opposite sex -- there was no indication that the constitutionality under the Canadian Charter of Rights and Freedoms of this interpretation of the word "spouse" had been considered in that case. The trial judge considered the applicability of the Charter and concluded that if "spouse" were interpreted to mean only married spouse, then s. 15(1) of the Charter would be infringed and the infringement would not be justified under s. 1 of the Charter. She concluded that the infringement could be avoided by interpreting spouse to include "persons who live in a relationship of some permanence and commitment akin to a conjugal relationship". Having reached these conclusions, she held that the doctrine of stare decisis could not be relied upon to uphold the interpretation of a statute that the Constitution rendered inoperative. Finally, she held that without deciding the issue of dependency, A was a dependent relative of F within the meaning of the uninsured motorist coverage. The defendant insurer appealed.

Held, the appeal should be allowed.

Since the terms of the standard auto insurance policy were mandated by legislation, this raised the policy above the level of a private contractual arrangement. The motions judge was correct in concluding that the Charter applied. With the Charter applying, the next question was whether the insurance policy included in its terms a distinction based on a ground of discrimination enumerated in s. 15 or based on an analogous ground. If so, the distinction would be proscribed by s. 15(1). A discriminatory distinction was one based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. In this case, the motions judge stated that the discrimination, if it existed, originated in the marital status of P, a matter over which her son, A, had no control or choice. However, the approach of viewing the issue from the perspective of A not having a choice was wrong. The case must turn on whether P has been discriminated against because she was not a spouse within the meaning of the policy. P was an unmarried person and unmarried persons who live together are not members of a disadvantaged group in Canadian society, nor members of a discrete and insular minority, nor have they suffered social, political and legal disadvantage in our society. While unmarried persons who live together do not possess some of the important rights that married persons have, by the same token, they are not subject to many of the legal burdens and obligations of married persons. Their overall position was not a disadvantaged one. An infringement of s. 15 had not been shown.

 

As to the motions judge's comments about the doctrine of stare decisis, the effect of the Charter was not considered in the Fraser v. Haight case because s. 15 of the Charter was not yet in force at the relevant time. Had s. 15 of the Charter been in force, then the Court of Appeal's failure to consider its effect would have rendered the court's decision per incuriam. Nevertheless, a court of first instance would still be bound to follow the Court of Appeal's decision.

 

APPEAL from the judgment of the High Court of Justice (1990), 1990 CanLII 6814 (ON SC), 71 O.R. (2d) 641, 46 C.R.R. 359, 65 D.L.R. (4th) 702, [1990] I.L.R. Paragraph1-2566, determining a question of law stated as a special case under Rule 22 of the Rules of Civil Procedure.

Fraser v. Haight (1987), 1987 CanLII 4282 (ON SC), 58 O.R. (2d) 676, 25 C.C.L.I. 84, 36 D.L.R. (4th) 459, [1987] I.L.R. Paragraph1-2161 (H.C.J.), affd (1989), reflex, 69 O.R. (2d) 64, 58 D.L.R. (4th) 540, [1989] I.L.R. Paragraph1-2486n (C.A.), consd Broome v. Cassell & Co. Ltd., reflex, [1972] A.C. 1027, [1972] 1 All E.R. 801, 116 Sol. Jo. 199, [1972] 2 W.L.R. 645 (H.L.), consd Other cases referred to Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 36 C.R.R. 93, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 10 C.H.R.R. D/5719, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289; Miron v. Trudel (1990), 1990 CanLII 6699 (ON SC), 71 O.R. (2d) 662, 65 D.L.R. (4th) 670, [1990] I.L.R. Paragraph1-2551 sub nom. Miron v. Economical Mutual Insurance (H.C.J.) [affd (1991), 1991 CanLII 7312 (ON CA), 4 O.R. (3d) 623 (C.A.), post]; R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, 39 C.R.R. 306, 48 C.C.C. (3d) 8, 69 C.R. (3d) 97, 96 N.R. 115, 34 O.A.C. 115; Reference re Workers' Compensation Act, 1983 (Newfoundland), ss. 32, 34, 1989 CanLII 86 (SCC), [1989] 1 S.C.R. 922, 40 C.R.R. 135, 56 D.L.R. (4th) 765, reflex, 76 Nfld. & P.E.I.R. 181, 235 A.P.R. 181, 96 N.R. 227 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 15, 15(1), 24(1) Insurance Act, R.S.O. 1980, c. 218, s. 231 [am. 1990, c. 2, s. 56], 231(2)(b) "person insured under the contract" (iii)(B) [am. 1990, c. 2, s. 56(1)] Motor Vehicle Accident Claims Act, R.S.O. 1980, c. 298 Rules and regulations referred to Ontario Standard Automobile Policy, Subsection 3, s. 1(b)(iii)b Rules of Civil Procedure, O. Reg. 560/84, Rule 22, rule 22.04(a) Authorities referred to Appleman, John A., Insurance Law and Practice (St. Paul, Minn.: West Publishing Co., 1989), s. 5080.25 Couch on Insurance, 2nd revised ed. by Ronald A. Anderson (Rochester, New York: Lawyers Co-Operative Publishing Co., 1981), ss. 45.637, 45.982

Brian H. Wheatley, Q.C., and Peter A. Daley, for appellant.

Robert E. Somerleigh, for respondent.

Alex J. Turko, for Superintendent of Insurance.

THE COURT:-- The defendant, the Co-operators General Insurance Company, appeals from a judgment of Arbour J. determining a question of law stated in the form of a special case under Rule 22 in the Rules of Civil Procedure, O. Reg. 560/84. The reasons for her judgment are reported in (1990), 1990 CanLII 6814 (ON SC), 71 O.R. (2d) 641, 65 D.L.R. (4th) 702 (H.C.J.).

The sole issue before this court is whether the learned motions court judge erred in interpreting the word "spouse" in s. 231(2)(b)(iii)(B) [am. 1990, c. 2, s. 56(1)] of the Insurance Act, R.S.O. 1980, c. 218, and in the para. 1(b)(iii)b definition of "person insured under the contract" in Subsection 3 of the Ontario Standard Automobile Policy [for the text of the policy and commentary, see John Newcombe, The Standard Automobile Policy Annotated (Toronto: Butterworths, 1986)] as including persons who are not married to each other but "who live in a relationship of some permanence and commitment, akin to a conjugal relationship" [p. 655 O.R., p. 716 D.L.R.].

This interpretation was an essential step in reaching the final determination in answer to the question in the special case whether Alain Leroux was a "dependent relative" of the insured person, John Fleming.

The relevant parts of the special case are as follows:

1. The Plaintiff, who is now 18 years of age, was injured on June 12, 1988, when he was struck by a one-ton truck which was stolen from a lumber yard in Chelmsford, Ontario. The Plaintiff was a pedestrian at the time of the accident and there was no consent to the use of the motor vehicle which struck him: accordingly, there is no question that the liability insurer of the truck has no exposure whatsoever in this case.

2. At the time of the accident, the Plaintiff was 17 years old, had just finished Grade 12, and was residing at home with his mother, Pauline Leroux, and her common-law spouse, John Fleming. The Plaintiff's mother, Pauline Leroux did not own a motor vehicle, but John Fleming owned two motor vehicles and was insured with the Defendant under an Ontario Standard Automobile Policy, which had attached to it an S.E.F. 44 Family Protection Endorsement.

 

. . . . .

 

THE QUESTIONS for the opinion of the court are:

1. Is Alain Leroux without deciding the issue of dependency, a dependent relative of John Fleming within the meaning of paragraph 1(b)(iii)b of Subsection 3 -- Uninsured Motorist Cover of the Ontario Standard Automobile Policy?

2. If the answer to 1 above is "no" then, assuming but without deciding whether Alain Leroux is an eligible claimant under S.E.F. 44, is he entitled to payment of his full judgment under the S.E.F. 44 or is he entitled to payment thereunder for only that portion of his judgment which exceeds the $200,000.00 maximum amount set forth in the Motor Vehicle Accident Claims Act, R.S.O. 1980, Chapter 298?

THE RELIEF SOUGHT on the determination of the questions stated is:

1. With respect to Question #1, a Declaration that Alain Leroux is a dependent relative of John Fleming within the meaning of paragraph 1(b)(iii)b of Subsection 3 -- Uninsured Motorist Cover, or alternatively, a Declaration that Alain Leroux is not a dependent relative of John Fleming within the meaning of paragraph 1(b)(iii)b of Subsection 3 -- Uninsured Motorist Cover.

2. If the answer to Question #1 is in the negative, with respect to question #2, a Declaration that Alain Leroux is entitled to his full judgment under S.E.F. 42 (sic, 44) to the maximum limits available thereunder or alternatively, a Declaration that he is entitled to payment thereunder for only that portion of his judgment which exceeds the $200,000.00 maximum amount set forth in the Motor Vehicle Accident Claims Act, R.S.O. 1980, Chapter 298.

The operative provisions in the formal judgment of Arbour J. read as follows:

1. THIS COURT DECLARES that the plaintiff, Alain Leroux, without deciding the issue of dependency, is a dependent relative of John Fleming within the meaning of Subsection 3, s. 1(b)(iii)b of the Uninsured motorist coverage of the Ontario Standard Insurance (sic, Automobile) Policy.

2. THIS COURT FURTHER DECLARES that the Defendant is entitled, pursuant to s. 4(b)(iv) of S.E.F. 44, to deduct any amount payable to the plaintiff by the intervener (the Superintendent of Insurance) whether such amount is paid or not.

The Superintendent of Insurance cross-appealed from the determination in para. 2 but, before the hearing of the appeal, abandoned his cross-appeal.

The immediately relevant provisions in the Ontario Standard Automobile Policy, all of which are mandated by the Insurance Act, s. 231 [am. 1990, c. 2, s. 56], are as follows:

SECTION B -- ACCIDENT BENEFITS

The Insurer agrees to pay to or without respect to each insured person as defined in this section who sustains bodily injury or death by an accident arising out of the use or operation of an automobile.

 

. . . . .

 

SUBSECTION 3 -- UNINSURED MOTORIST COVER

All sums that

(a) a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile ...

 

. . . . .

 

1. Definitions:

For the purposes of this subsection,

(a) "insured automobile" means the automobile as defined or described under the contract;

(b) "person insured under the contract" means,

(i) in respect of a claim for damage to the insured automobile, the owner of the automobile,

(ii) in respect of a claim for damage to the contents of the insured automobile, the owner of the contents,

(iii) in respect of a claim for bodily injuries or death,

a. any person while an occupant of the insured automobile,

b. the insured and, if residing in the same dwelling premises as the insured, his or her spouse and any dependent relative of either,

(1) while an occupant of an uninsured automobile, or

(2) while not an occupant of an automobile or of railway rolling stock that runs on rails, who is struck by an uninsured or unidentified automobile ...

(Emphasis added)

In her reasons, Arbour J. observed that if Pauline Leroux and John Fleming were spouses, Alain Leroux would be covered as the dependent relative of the spouse of the insured and that, therefore, the question of whether Pauline Leroux and John Fleming are spouses becomes "central to Alain Leroux's eligibility as a claimant under the uninsured motorist cover" (p. 647 O.R., p. 708 D.L.R.). She referred to the decision of Craig J. in Fraser v. Haight (1987), 1987 CanLII 4282 (ON SC), 58 O.R. (2d) 676, 36 D.L.R. (4th) 459 (H.C.J.), affirmed by this court (1989), reflex, 69 O.R. (2d) 64, 58 D.L.R. (4th) 540, on the meaning of "spouse" in Subsection 3. She said at p. 647 O.R., p. 708 D.L.R., that "Craig J. decided that 'spouse' in Subsection 3 means a man or a woman who is legally married to a person of the opposite sex, and that the extended or artificial meaning given to that word in Part I of Subsection 2 (concerned with death benefits) is not applicable in the portion dealing with the uninsured motorist coverage".

While it appears that only the meaning of "spouse" in the underinsured motorist coverage in S.E.F. 42 was before the Court of Appeal in Fraser v. Haight, Arbour J. said, correctly, in our view, that the endorsement of the Court of Appeal was an approval of the meaning of "spouse" under the uninsured motorist coverage in Subsection 3. She said that she considered herself bound by the decision in Fraser v. Haight and noted that "Chilcott J. considered the very issue before me in a recent decision, Miron v. Trudel, released January 19, 1990 (reported post, p. 662), and adopted the reasons in Fraser v. Haight" [p. 648 O.R., p. 709 D.L.R.].

The plaintiffs' appeal in Miron v. Trudel, reported in (1990), 1990 CanLII 6699 (ON SC), 71 O.R. (2d) 662, 65 D.L.R. (4th) 670 (H.C.J.), was argued before us at the same time as this appeal and our reasons in that appeal are delivered concurrently with these reasons [reported post, 1991 CanLII 7312 (ON CA), 4 O.R. (3d) 623].

Arbour J. then said at pp. 648-49 O.R., pp. 709-10 D.L.R.:

However, there is no indication in Fraser v. Haight that the constitutionality of that interpretation of the word spouse was argued or considered either at trial or on appeal. As I had some concern as to whether that interpretation was consistent with s. 15 of the Canadian Charter of Rights and Freedoms, I invited counsel to make further submissions on that point since Fraser v. Haight is decided only on the question of statutory interpretation absent constitutional requirements.

The constitutional aspect is fundamental to the disposition of this case. If Fraser v. Haight applies, Pauline Leroux is not a spouse of John Fleming under Subsection 3 and Alain Leroux is therefore not a "dependent relative" of John Fleming or of his spouse. In such case, he is not an eligible claimant under that part of the policy. Section 15 of the Canadian Charter of Rights and Freedoms may compel a different conclusion.

I will examine this question without deciding whether Pauline Leroux and John Fleming were, as a matter of fact, living in a common law relationship such that they should be treated no differently than married couples. Whether their relationship had the required characteristics is not for me to decide. The stated case refers to them as common law spouses. If the Charter requires that common law spouses be interpreted as included in the word "spouse" in para. (b)
(iii)b of Subsection 3, Alain Leroux would qualify for coverage as the dependent relative of the spouse of the insured, if he meets all the factual requirements not specifically stated in the stated case.

She then considered the applicability of the Canadian Charter of Rights and Freedoms to the policy in question and case law relating to s. 15. She concluded on this at p. 653 O.R., p. 714 D.L.R.:

I find here that if "spouse" in Subsection 3 were interpreted to mean only married spouse, Alain Leroux would not receive equal protection and equal benefit of the law without discrimination in that he would be deprived of benefits available to others solely because of a personal characteristic akin to those enumerated in s. 15(1) of the Charter. Section 15(1) would therefore be infringed.

She then held that the infringement was not justified under s. 1 of the Charter and then said at pp. 654-55 O.R., pp. 715-16 D.L.R.:

... I find that the discrimination created by reading "spouse" restrictively is not justifiable under s. 1 of the Charter and can be avoided by reading the word spouse in a manner consistent with the Charter, to include persons who live in a conjugal relationship outside marriage. I see no need to adopt the definition of common law spouse contained in other parts of the Insurance Act. In Subsection 2, Part I, B(2) of Sch. C, "spouse" includes an unmarried couple who have cohabited continuously for at least five years or who have a child and have cohabited in the preceding year. The Family Law Act, 1986, S.O. 1986, c. 4, s. 29, defines "spouse" in somewhat broader terms to include either a man or woman who have cohabited continuously for three years or who have cohabited in a relationship of some permanence if they are the natural or adoptive parents of a child. The Workers' Compensation Act, R.S.O. 1980, c. 539, s. 1(1)(xa) defines a "spouse" as either of a man and woman who, at the time of death of the one who was the worker, were cohabiting and (i) were married or, (ii) if they were not married, had cohabited for at least one year, were together parents of a child or had entered into a cohabitation agreement under s. 53 of the Family Law Act, 1986.

In the absence of a statutory definition here, the word spouse must be interpreted to include persons who live in a relationship of some permanence and commitment, akin to a conjugal relationship.

Soon after this, she said at pp. 656-57 O.R., pp. 717-18 D.L.R.:

Having come to the conclusion that the Charter requires that "spouse" be interpreted not to exclude common law spouses, am I bound by stare decisis to come to the opposite conclusion? Strictly speaking, Fraser v. Haight is binding only on the question of statutory interpretation absent constitutional requirements.

 

. . . . .

 

In the absence of that option (conferred originally by s. 34 of the Judicature Act which permitted a judge of first instance in any proceeding, where he or she considered a previous decision to be wrong to refer the case before him or her to the Court of Appeal) under the present rule I am confronted with an unavoidable conflict between the requirements of stare decisis and those of the Charter. I am of the view that the Charter must prevail.

She concluded this part of her reasons as follows at pp. 657-58 O.R., pp. 718-19 D.L.R.:

Whether stare decisis is a rule of law, or merely a convention or custom, it can not be relied upon to uphold the interpretation of a statute that the constitution renders inoperative. Whether Pauline Leroux and John Fleming lived in a common law relationship, as stated in the stated case, is a question of fact which may have to be decided at trial together with the factual question of dependency. Assuming that these two questions of fact are answered in favour of the plaintiff, Alain Leroux would be a dependent relative of John Fleming within the meaning of Subsection 3, 1(b)(iii)(b)
-- uninsured motorist coverage of the Ontario Standard Insurance Automobile Policy.

The accident giving rise to the claim in Fraser v. Haight was on July 18, 1983, before s. 15 came into force on April 17, 1985 and, accordingly, the effect of the provision could not have been considered by the court in that case. If the section had been in force at the relevant time in Fraser v. Haight and its proper application would have resulted in a different decision, then the failure of the court to apply it would have meant that its decision was rendered per incuriam. This, however, with respect, is something that only this court, and not a court of first instance, could take into account to enable it to refuse to follow Fraser v. Haight; see Broome v. Cassell & Co. Ltd., reflex, [1972] A.C. 1027, [1972] 1 All E.R. 801 (H.L.).

The following issues have been argued on this appeal:

(1) Does the Charter apply to the insurance policy in question?

(2) If the Charter does apply to the policy:

(a) does the policy include in its terms a distinction based on a ground of discrimination proscribed by s. 15? and

(b) even if the policy includes in its terms a proscribed ground of discrimination, does it, in view of the right of the plaintiff to seek payment from the Motor Vehicle Accident Claims Fund under the Motor Vehicle Accident Claims Act, R.S.O. 1980, c. 298, result in a prima facie infringement of s. 15?

(3) If there is a prima facie infringement of s. 15, is it justified under s. 1 of the Charter?

(4) If s. 15 of the Charter is infringed, what is the appropriate remedy: an expanded interpretation of "spouse" (the approach of Arbour J.); an order under s. 24(1) of the Charter; or a declaration of invalidity?

Before considering these issues we mention, with respect, that because the parties did not have the constitutional issue in mind when they agreed upon the terms of the special case under Rule 22, it may be that the facts stated in the special case are deficient respecting both the alleged infringement of s. 15(1) and its justification under s. 1. Arbour J., in considering s. 1 of the Charter, observed at p. 653 O.R., p. 714 D.L.R. that "[n]one of the parties argued that I should hear evidence on this issue and no evidence was tendered". Rule 22 does not provide for the calling of evidence. The case is governed by the material facts to which the parties have agreed (rule 22.04(a)). Further, the "relief sought" in this special case is not wide enough to include some of the relief that could be ordered under the Charter.

(1) Does the Charter apply to the insurance policy in question?

Very briefly, it has been argued on behalf of the appellant (by the respondent in the Miron v. Trudel appeal) that the policy is a private contract and is not, therefore, subject to the Charter. We agree with the decision of Arbour J. on this point and with her reasons therefor. At p. 649 O.R., p. 710 D.L.R., she said:

Section 32(1)(b) of the Charter provides that the Charter applies to provincial legislation. The provisions of the Ontario Standard Auto Policy with respect to uninsured motorist coverage are prescribed and required by s. 231 of the Insurance Act. The policy is and must be drafted in the very words of the statute. This raises the Ontario Standard Auto Policy above the level of a private contractual arrangement and compels compliance with the provisions of the Charter.

(2) If the Charter does apply to the policy: (a) does the policy include in its terms a distinction based on a ground of discrimination proscribed by s. 15?

Having regard to the decisions of the Supreme Court of Canada in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1; Reference re Workers' Compensation Act, 1983 (Newfoundland), ss. 32, 34, reflex, [1989] 1 S.C.R. 922, 56 D.L.R. (4th) 765; and R. v. Turpin, 1989 CanLII 98 (SCC), [1989] 1 S.C.R. 1296, 48 C.C.C. (3d) 8, it is accepted by the parties that if the distinction in question is based on a ground of discrimination enumerated in s. 15(1) of the Charter or on a ground analogous to one of them, then the distinction is proscribed by s. 15(1).

Arbour J. said at p. 650 O.R., p. 711 D.L.R.:

In the present case, the discrimination, if it exists, originates in marital status. Marital status is not a ground of discrimination enumerated under s. 15(1). However, it is the personal characteristic of an individual or a group analogous, as citizenship was found to be in Andrews, to the grounds specifically enumerated in s. 15.

At pp. 652-53 O.R., pp. 713-14 D.L.R. (this, in part, repeats a portion of her judgment already quoted), she said:

In any event and although I would not rest my decision exclusively on that basis, in this case the victim of the alleged discrimination is Alain Leroux, not his mother. The "choice" argument (that Pauline Leroux's status was a matter of her free personal choice) cannot be used against Alain Leroux. It is not his marital status that is at stake but that of his mother. If he is discriminated against because of the marital status of his mother, there is nothing that he can do to avoid the cause of the discrimination. The marital status of one's parents is a fixed characteristic of the same type as race or sex. From his point of view, the discrimination is found in the fact that the statute treats him differently than other children in the same dependency relationship with their mother, based solely on the non- marital aspect of the mother's relationship with a man.

I find here that if "spouse" in Subsection 3 were interpreted to mean only married spouse, Alain Leroux would not receive equal protection and equal benefit of the law without discrimination in that he would be deprived of benefits available to others solely because of a personal characteristic akin to those enumerated in 15(1) of the Charter. Section 15(1) would therefore be infringed.

The following passages in Andrews v. Law Society of British Columbia, supra, are relevant to the question:

... I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.
(McIntyre J. at pp. 174-75 S.C.R., p. 18 D.L.R.)

 

. . . . .

 

The rights guaranteed in s. 15(1) apply to all persons whether citizens or not. A rule which bars an entire class of persons from certain forms of employment, solely on the grounds of a lack of citizenship status and without consideration of educational and professional qualifications or the other attributes or merits of individuals in the group, would, in my view, infringe s. 15 equality rights. Non-citizens, lawfully permanent residents of Canada, are
-- in the words of the U.S. Supreme Court in United States v. Carolene Products Co., 304 U.S. 144 (1938), at pp. 152-53, n. 4, subsequently affirmed in Graham v. Richardson, 403 U.S. 365 (1971), at p. 372 -- a good example of a "discrete and insular minority" who come within the protection of s. 15.
(McIntyre J. at p. 183 S.C.R., p. 24 D.L.R.)

 

. . . . .

 

I agree with my colleague that a rule which bars an entire class of persons from certain forms of employment solely on the ground that they are not Canadian citizens violates the equality rights of that class. I agree with him also that it discriminates against them on the ground of their personal characteristics, i.e., their non-citizen status. I believe, therefore, that they are entitled to the protection of s. 15.

Before turning to s. 1, I would like to add a brief comment to what my colleague has said concerning non-citizens permanently resident in Canada forming the kind of "discrete and insular minority" to which the Supreme Court of the United States referred to United States v. Carolene Products Co., 304 U.S. 144 (1938), at pp. 152-53, n. 4.

Relative to citizens, non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. They are among "those groups in society to whose needs and wishes elected officials have no apparent interest in attending": see J.H. Ely, Democracy and Distrust
(1980), at p. 151. Non-citizens, to take only the most obvious example, do not have the right to vote. Their vulnerability to becoming a disadvantaged group in our society is captured by John Stuart Mill's observation in Book III of Considerations on Representative Government that "in the absence of its natural defenders, the interests of the excluded is always in danger of being overlooked . ..." I would conclude therefore that non-citizens fall into an analogous category to those specifically enumerated in s. 15. I emphasize, moreover, that this is a determination which is not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society. While legislatures must inevitably draw distinctions among the governed, such distinctions should not bring about or reinforce the disadvantage of certain groups and individuals by denying them the rights freely accorded to others. (Wilson J. at pp. 151-52 S.C.R., pp. 32-33 D.L.R.)

 

. . . . .

 

It was conceded that the impugned legislation does distinguish the respondents from other persons on the basis of a personal characteristic which shares many similarities with those enumerated in s. 15. The characteristic of citizenship is one typically not within the control of the individual and, in this sense, is immutable. Citizenship is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs.

Moreover, non-citizens are an example without parallel of a group of persons who are relatively powerless politically, and whose interests are likely to be compromised by legislative decisions. (La Forest J. at p. 195 S.C.R., p. 39 D.L.R.)

In R. v. Turpin, supra, the court held that persons outside Alberta and charged with offences mentioned in s. 427 of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 469 of the Criminal Code, R.S.C. 1985, c. C-46) outside Alberta and, accordingly, denied the right to be tried by a judge without a jury (a right existing in Alberta) are denied equality before the law but that the distinction between these accused persons and persons charged in Alberta was not discriminatory. Wilson J. made the following statement for the court at pp. 1332-33 S.C.R., pp. 34-35 C.C.C.:

A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.

McIntyre J. recognized in Andrews that the " 'enumerated and analogous grounds' approach most closely accords with the purposes of s. 15 and the definition of discrimination outlined above" (p. 182) and suggested that the alleged victims of discrimination in Andrews, i.e., non-citizens permanently resident in Canada were "a good example of a 'discrete and insular minority' who came within the protection of s. 15" (p. 183). Similarly, I suggested in my reasons in Andrews that the determination of whether a group falls into an analogous category to those specifically enumerated in s. 15 is "not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society" (p. 152). If the larger context is not examined, the s. 15 analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation. A determination as to whether or not discrimination is taking place, if based exclusively on an analysis of the law under challenge is likely, in my view, to result in the same kind of circularity which categorized the similarly situated similarly treated test clearly rejected by this Court in Andrews.

The appellants claim that because they are accused of one of the indictable offences listed in s. 427 of the Criminal Code but do not have an opportunity, as do persons charged with the same offence in Alberta, to be tried by a judge alone, they are victims of discrimination. I disagree. In my respectful view, it would be stretching the imagination to characterize persons accused of one of the crimes listed in s. 427 of the Criminal Code in all the provinces except Alberta as members of a "discrete and insular minority". I hasten to add that this categorization is not an end in itself but merely one of the analytical tools which are of assistance in determining whether the interest advanced by a particular claimant is the kind of interest s. 15 of the Charter is designed to protect. It is a means of ensuring that equality rights are given the same kind of broad, purposive interpretation accorded to other Charter rights:
see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., supra. Differentiating for mode of trial purposes between those accused of s. 427 offences in Alberta and those accused of the same offences elsewhere in Canada would not, in my view, advance the purposes of s. 15 in remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society. A search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice would be fruitless in this case because what we are comparing is the position of those accused of the offences listed in s. 427 in the rest of Canada to the position of those accused of the offences listed in s. 427 in Alberta. To recognize the claims of the appellants under s. 15 of the Charter would, in my respectful view, "overshoot the actual purpose of the right or freedom in question": see R. v. Big M Drug Mart Ltd., at p. 344.

I would not wish to suggest that a person's province of residence or place of trial could not in some circumstances be a personal characteristic of the individual or group capable of constituting a ground of discrimination. I simply say that it is not so here. Persons resident outside Alberta and charged with s. 427 offences outside Alberta do not constitute a disadvantaged group in Canadian society within the contemplation of s. 15.

Leaving to one side, for the moment, what, in a case such as this, constitutes a "group", we do not think that unmarried persons who live together are members of a "disadvantaged group in Canadian society", or of a "discrete and insular minority", or that they have suffered "social, political and legal disadvantage in our society". We appreciate that unmarried persons who live together do not possess some of the important rights that married persons have but, by the same token, they are not subject to many of the legal burdens and obligations of married persons. We do not think that it can be said that their overall position nets out as one of disadvantage.

Further, to refer to La Forest J. in Andrews, the characteristic of being an unmarried partner is not "one typically not within the control of the individual and, in this sense ... immutable". In view of religion (a characteristic that is not immutable) being one of the grounds of discrimination set forth in s. 15(1), we do not suggest that immutability is an absolute condition of a s. 15(1) entitlement but it is, we think, an important factor to be taken into account because it reflects a significant feature of a large number of the grounds in s. 15(1).

At this point we should deal with Arbour J.'s treatment of the "choice" argument. She observed at p. 652 O.R., p. 713 D.L.R., that "[i]t is no answer to one who is being discriminated against on the basis of his or her religion to say that the discrimination is self-imposed as it could be avoided by conversion". This relates to the point we dealt with in the preceding paragraph. She then dealt with the immutability issue in the context of marital status in a part of her reasons, which we have already quoted, at pp. 652-53 O.R., pp. 713-14 D.L.R.:

In any event and although I would not rest my decision exclusively on that basis, in this case the victim of the alleged discrimination is Alain Leroux, not his mother. The "choice" argument cannot be used against Alain Leroux. It is not his marital status that is at stake but that of his mother. If he is discriminated against because of the marital status of his mother, there is nothing that he can do to avoid the cause of the discrimination. The marital status of one's parents is a fixed characteristic of the same type as race or sex. From his point of view, the discrimination is found in the fact that the statute treats him differently than other children in the same dependency relationship with their mother, based solely on the non-marital aspect of the mother's relationship with a man.

With respect, we do not agree with this approach to the question. In our view, the case must turn on whether Pauline Leroux, Alain Leroux's mother, has been discriminated against contrary to s. 15 because she is not a "spouse" within the meaning of the term in the policy. If she would be disentitled from claiming on the policy, apart from constitutional considerations, we do not see how Alain's position could be stronger than hers, since he is obliged to claim by reason of his relationship to her. He is either a dependent relative of a spouse, or he is not.

We now deal briefly with whether Pauline Leroux is a member of a "group" within the meaning of this term relevant to s. 15(1). We have earlier quoted from the reasons of Arbour J. at p. 655 O.R., p. 716 D.L.R. in which she refers to various statutory definitions of spouse and concludes:

In the absence of a statutory definition here, the word "spouse" must be interpreted to include persons who live in a relationship of some permanence and commitment, akin to a conjugal relationship.

From this it is difficult to determine the particular characteristics or definition of the group of individuals whose position would be compared to that of married spouses for the purpose of applying s. 15. According to the definition decided upon by the learned judge, the three statutory definitions to which she referred would appear to be unconstitutional as being too restrictive.

Further, we can envisage that under the proposed definition there could be a significant number of cases in which it would be difficult and time-consuming to determine whether the person in question is a member of the group. In saying this we are not, of course, saying that with respect to a marriage relationship there is always the requisite degree of permanence and commitment one may expect of a marriage. Obviously there may not be. There can be no doubt, however, about whether a married person falls into the class or group of "spouse".

Under the criteria of the trilogy of Supreme Court of Canada cases to which we have referred, we are concerned solely with the comparative positions of married persons and of unmarried persons who live together. In this connection the following statement of Arbour J. at p. 651 O.R., p. 712 D.L.R. is relevant:

The historical treatment of illegitimate children by the law is equally compelling to support an implicit prohibition against discrimination based on marital or family status in s. 15.

With respect, we do not think that such a general conclusion can be drawn from the historical treatment of illegitimate children. It may be noted, in the present case, that if the plaintiff were an illegitimate child of his mother's partner he would be entitled under the policy as a dependent relative, assuming dependency is not in issue.

Finally, we note that in the United States, where uninsured motorist coverage, it appears, is mandated by statute as in this jurisdiction, "spouse" in uninsured motorist policies is generally interpreted as meaning a married person and, it further appears, no attempt has been made to extend the definition to unmarried partners through the application of the equal protecting clause in the United States constitution. See John A. Appleman, Insurance Law and Practice (1989) s. 5080.25, and Couch on Insurance, 2nd revised ed. (1981), ss. 45.637 and 45.982.

Having regard to the foregoing reasons, we do not think that an infringement of s. 15 has been shown and it is, therefore, not necessary to deal with the other issues raised including the issue of unequal treatment or disadvantage respecting Alain Leroux who cannot recover compensation through the uninsured motorist coverage in John Fleming's policy but who can recover compensation under the Motor Vehicle Accident Claims Act.

In the result, we allow the appeal, set aside para. 1 in the order of Arbour J., and in its place make an order declaring that Alain Leroux is not a dependent relative of John Fleming within the meaning of paragraph 1(b)(iii)b of Subsection 3 -- Uninsured Motorist Cover. The appellant is entitled to its costs of the proceedings below and of this appeal.

Appeal allowed. 

 

Provided by CanLII and retrieved on October 14, 2014.