Marital Status (HRTO)

Moody v. Sahadeo, 2020 HRTO 389 (CanLII)

[47] The Supreme Court of Canada in B. v. Ontario (Human Rights Commission), 2002 SCC 66, quoted with approval the following from Abella J.A. in the Ontario Court of Appeal’s decision:

Discrimination is not only about groups. It is also about individuals who are arbitrarily disadvantaged for reasons having largely to do with attributed stereotypes, regardless of their actual merit. While it is true that disadvantageous stereotypes usually arise when characteristics are attributed to someone based on what people in a particular group are deemed to be capable of, this does not mean that when dealing with a complaint, a complainant must be artificially slotted into a group category before a claim of discrimination can be upheld under the Code.

Whether or not a disadvantaged group can be fashioned out of the facts of any particular case is largely irrelevant. The Code stipulates grounds in s. 5(1), not groups. The question is whether an individual has been discriminated against on the basis of a prohibited ground, not whether he or she necessarily fits into a group requiring redress.

There is no doubt that the Code contemplates that an individual’s membership in a group may result in discrimination based on perceived characteristics attributed to the group. Some of the grounds in s. 5(1), for example, such as race, sex or ethnic origin, anticipate arbitrary barriers attaching to individuals belonging to certain historically disadvantaged groups. But other grounds, such as family or marital status or age, may have less to do with whether a disadvantaged group emerges easily from an individual’s complaint than with whether the individual, regardless of group membership, is being stereotyped or arbitrarily disadvantaged.

[48] The Tribunal in Coates v. Communications Energy & Paperworkers Union, Local 324, 2009 HRTO 491 in the context of a summary hearing stated the following:

With regard to the ground of marital status, I find that, again at this early stage of the proceeding and without making any final determination, the applicant has brought forward a sufficient basis to bring herself within the threshold of the “marital status” definition in the Code. As established in the caselaw, the ground of marital status is not limited to the mere status of a being in certain categories of relationship, but extends to a person experiencing adverse treatment because of her relationship with a specific person. In this case, the applicant is alleging that she experienced discrimination and harassment by Kiewning because of her relationship with the Union’s National Representative, Mr. Mihalik.

I agree with the respondents that a mere “dating” relationship is not sufficient to bring the applicant within the threshold of protection for the ground of marital status, and that at the very least the applicant would need to establish that she was in a conjugal relationship with this person outside of marriage. The applicant has indicated that she commenced co-habiting with Mihalik in early November 2006 and that Mihalik had assumed some degree of responsibility for the care of her four children from that time. Without making any final determination as to whether the applicant has established that she was in a conjugal relationship with Mihalik at the relevant time, which I will only do after hearing all of the evidence, I find that at this point there is sufficient evidence for the application to proceed on the ground of discrimination and harassment in employment because of marital status, and also in relation to the alleged failure of the Union and Smith to take appropriate steps to respond to these issues.