''Canada (AG) v Mossop'',

993 Year 993 ( CMXCIII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar. Events By place Europe * Spring – The 12-year-old King Otto III gives the Sword of Saints Cosmas and Damian ...

1 SCR 554 was the first decision of the

Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...

to consider equality rights for gays. The case is also significant as one of Justice L'Heureux-Dube's most famous dissents where she proposes an evolving model of the "family".

Background

In 1985, Brian Mossop, a gay man from Toronto, sought bereavement leave from his employer, the Canadian federal government's

Translation Bureau The Translation Bureau is an institution of the federal government of Canada operated by Public Services and Procurement Canada that provides translation services for all agencies, boards, commissions, and departments of the government. As of Decemb ...

, to attend the funeral of his same-sex partner's father. His partner is journalist and activist

Ken Popert Ken Popert has been involved with Pink Triangle Press (PTP) since 1973 when he began contributing to ''The Body Politic''. In 1986 he was appointed interim publisher of PTP, and he served as the Executive Director until April 3, 2017 when he was suc ...

. His employer denied him leave under the collective agreement on the grounds that Popert was not "immediate family". Mossop took his employer before the

Canadian Human Rights Commission The Canadian Human Rights Commission (CHRC) was established in 1977 by the government of Canada. It is empowered under the ''Canadian Human Rights Act'' to investigate and to try to settle complaints of discrimination in employment and in the pro ...

. Sexual orientation was not a prohibited ground of discrimination at that time, so he argued that he had been discriminated against on the basis of his "family status", under section 3 of the

Canadian Human Rights Act The ''Canadian Human Rights Act'' (french: Loi canadienne sur les droits de la personne) is a statute passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be vi ...

. The Canadian Human Rights Tribunal found in his favour, but the government appealed to the

Federal Court of Appeal The Federal Court of Appeal (french: Cour d'appel fédérale) is a Canadian appellate court that hears cases concerning federal matters. History Section 101 of the Constitution Act, 1867 empowers the Parliament of Canada to establish "addit ...

and the favourable finding was overturned. Mossop appealed to the Supreme Court, but it upheld the finding of the Federal Court.

Reasons of the court

The majority held that absent a ''Charter'' challenge of the constitutional validity of the Canadian Human Rights Act, there was no grounds for a claim. The only issues raised in the appeal was a question of law on whether the Federal Court of Appeal had jurisdiction to overturn the Tribunal under s. 28 of the ''Federal Court Act'' and of statutory interpretation of the ''Canadian Human Rights Act''. It was held that the Federal Court of Appeal did have the necessary jurisdiction to review the Tribunal's decision, as there was no

privative clause An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping th ...

governing the Tribunal. Since the question posed to the Tribunal was one of

statutory interpretation Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meani ...

, a question of law, judicial deference was not warranted. On the question of whether there was discrimination on the basis of "family status", the court found that there was no grounds for Mossop's claim because Parliament intentionally excluded sexual orientation from the list of prohibited grounds of discrimination. Since the intent was clear, both the Federal Court and Tribunal were bound to apply the law.

Dissent

In dissent, Madam Justice L'Heureux-Dube found that there was basis to read sexual orientation into the term "family status" within the Canadian Human Rights Act. She argued that the meaning of family should be read purposively and that given the growing number of non-traditional families there is a need to reconsider its meaning in light of these changes. She was joined on this point by McLachlin J. and Cory J., who both agreed that the relationship of Mossop and his partner fell within the scope of the term "family status".

Aftermath

Despite the dismissal of his appeal Mossop declared the decision a success as it opened up a national debate on gay rights.Didi Herman, "Rights of Passage", p.60 A subsequent Supreme Court case to consider discrimination against gay persons, '' Egan v. Canada'', would find that sexual orientation is a prohibited grounds of discrimination under

Section 15 of the Canadian Charter of Rights and Freedoms Section 15 of the ''Canadian Charter of Rights and Freedoms'' contains guaranteed equality rights. As part of the Constitution of Canada, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the excep ...

References

External links