FPSLREB Decisions

File: 166-2-26199 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN ROSS ROBERT BOUTILIER Grievor and TREASURY BOARD (Natural Resources)

Employer

Before: Yvon Tarte, Chairperson For the Grievor: Yvette Michaud, Professional Institute of the Public Service of Canada

For the Employer: Harvey Newman, Counsel

Heard at Halifax, Nova Scotia, 29 April 1997.

Decision Page 1 DECISION This case involves the interpretation of certain leave provisions of the Physical Sciences Group (all employees) collective agreement entered into between the Treasury Board and the Professional Institute of the Public Service (code 222/91, exhibit G-1). The grievor has asked for leave under paragraph 20.09(b)(iv) or article 20.13 of the collective agreement which read as follows: 20.09 Leave With Pay for Family-Related Responsibilities (b) The Employer shall grant leave with pay under the following circumstances:

(iv) five (5) days' Marriage leave for the purpose of getting married provided that the employee gives the Employer at least five (5) days’ notice.

20.13 Leave With or Without Pay for Other Reasons At its discretion, the Employer may grant leave with or without pay for the purposes other than those specified in this Agreement.

The collective agreement also contains a “no discrimination” clause which reads: 31.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, official language or membership or activity in the union.

The marriage leave in this case was sought by Mr. Boutilier to allow him to participate in a same sex union celebration. The parties filed an Agreed Statement of Facts which sets out certain relevant information: 1. Mr. Boutilier has been an employee (Physical Scientist - PC) of the Department of Natural Resources Canada (formerly Energy, Mines and Resources) in Halifax, Nova Scotia for over ten (10) years.

2. In May 1994, the Grievor made a verbal request for marriage leave for July 11 to 15. He subsequently made a written request to the Head of Regional Reconnaissance, J. Verhoef, on July 8, 1994. See Annex A attached.

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Decision Page 2 3. J. Verhoef replied to the Grievor on August 4, 1994. See Annex B. attached.

4. Mr. Boutilier and Brian Mombourquette had a ceremony on July 9, 1994. The ceremony was presided by Reverend Darlene Young of the Universal Fellowship of Metropolitan Community Churches (UFMCC) - a Christian Church - the parties received a Certificate of Holy Union. (See attached Certificate C).

5. No license or certificate of marriage was issued or registered according to the Laws of Nova Scotia, nor were bans read.

6. Prior to the ceremony, Ross Boutilier and his partner obtained the following:

• living will - medical power of attorney • general power of attorney due to incapacity • will Annexes D & E 7. Ross Boutilier was denied leave pursuant to both section 20.09(b)(iv) and section 20.13.

8. Ross Boutilier presented a grievance on August 18. See Annex F.

9. On October 12, 1994, the Grievor’s grievance was denied. See Annex G.

The annexes referred to in the Agreed Statement of Facts are not reproduced in their entirety at this point although references to some of these documents may be made at different times in this decision.

Mr. Boutilier further testified that he and his partner had done everything possible to establish publicly their partnership. The grievor indicated that he and his partner had done everything that was possible in law to cement their union and ensure that their commitment resembled that of a married couple.

To that end, they invited friends and family to participate in the celebration of their union. During the ceremony, they exchanged vows undertaking to live openly as a couple. Mr. Boutilier and his friend asked to be referred to as partners.

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Decision Page 3 Prior to the commitment ceremony, the grievor and Mr. Mombourquette participated in religious preparations leading to their union. These preparatory interviews were conducted by Reverend Darlene Young of the Universal Fellowship of Metropolitan Community Churches.

Mr. Boutilier recognized that it was impossible for him to obtain a marriage licence in Nova Scotia. In order to ensure the greatest possible legal protection for their union, the grievor and his friend exchanged powers of attorney and made wills as any couple would. These documents, which were intended to affirm their commitment and declare the seriousness of their engagement, were presented to their guests at the ceremony held on July 9, 1994.

The grievor testified that even though his immediate supervisors had been supportive of his request for marriage or special leave, the leave requested had in fact been denied. Mr. Boutilier therefore had no alternative but to take annual leave to enjoy his post-celebration holiday. In cross-examination Mr. Boutilier expressed the view that his union with Mr. Mombourquette was a form of spiritual marriage in the nature of a life-long commitment.

Reverend Darlene Young stated that the only significant difference between a commitment ceremony in her church and a traditional marriage lies in the fact that the ceremony conducted by her church does not include the signing of a marriage licence issued by the province. Reverend Young also indicated that the Universal Fellowship of Metropolitan Community Churches provides counseling on the break up of same sex unions and may, at the request of the participants, provide certificates of dissolution.

Arguments For the grievor: Ms. Michaud presented the following written argument (reproduced textually): The issue this Tribunal has to decide is whether Mr. Boutilier is entitled to marriage leave pursuant to Section 20.09 of the collective agreement between the Professional Institute of the Public Service and Treasury Board. Mr. Boutilier’s marriage was to a same - sex partner. The employer denied his request for marriage leave saying that what took place between Ross

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Decision Page 4 Boutilier and his partner was not marriage as contemplated in the collective agreement. The employer denied Mr. Boutilier’s request for leave solely because of the interpretation the employer has put on the definition of marriage. The second issue, which flows from the employer’s interpretation of the word marriage, is whether that interpretation is contrary to the Canadian Human Rights Act. Does denying marriage leave to Mr. Boutilier in the present circumstances constitute discrimination based on sexual orientation? The definition of marriage suggested by the employer applies only to a heterosexual employee.

This grievance deals with the interpretation and application of the leave entitlement provision of the collective agreement. Section 20.09 must be read and interpreted with other provisions of the agreement and in light of the law of the land. The human rights issue in this case is that the employee benefit in question i.e. marriage leave would be available to a heterosexual employee. This case makes us look at the prohibition on discrimination based on sexual orientation in light of the judicial pronouncements since the Hewens case.

The applicable section of the contract between the Professional Institute of the Public Service and Treasury Board (PC contract) are :

Section 20.09 which states that the employer shall grant leave with pay under the following circumstances:

(iv) five (5) day’s marriage leave for the purpose of getting married provided that the employee gives the Employer at least five (5) days notice.

(c) The total leave with pay which may be granted under sub - clauses (b)(i), (ii), (iii) and (iv) shall not exceed five (5) days in a fiscal year

Clause 31.01 of the same PC Agreement states: There shall interference, restriction, coercion, harassment, intimidation, or exercised or practised with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, official language or membership or activity in the union.

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be no discrimination, any disciplinary action

Decision Page 5 Article 5 of the same contract, entitled Rights of Employees reads as follows :

Nothing in this Agreement shall be construed as an abridgment or restriction of any employee’s constitutional rights or of any right expressly conferred in an Act of Parliament of Canada.

The corrective action requested, namely the interpretation and the application of Article 20, is clearly within the jurisdiction of this tribunal.

1. Facts - Ross Boutilier did everything he possibly could to commit himself to his partner. He planned his wedding, chose a date, spoke to his Minister, invited his family, invited his fellow workers, invited his friends, planned a reception and planned a honeymoon. Legal documents were prepared and have been introduced : Certificate of Holy Union, living will, medical power of attorney, general power of attorney due to incapacity, mutual wills. All documents were presented to the guests as part of the ceremony during the marriage celebration. We are not asking this Tribunal to declare that Ross Boutilier is married pursuant to the laws of the province nor are we asking this Tribunal to declare that the marriage laws of the province of Nova Scotia are discriminatory. We are asking that the Union of Ross Boutilier and Brian Mombourquette be recognized as a marriage for the purpose of the collective agreement. The ceremony was celebrated by a Minister of the Universal Fellowship of Metropolitan Community Churches (UFMCC) - a legally recognized Christian Church - for which the parties received a Certificate of Holy Union which states that the parties “were joined together in the Rite of Holy Union according to the Scriptural practice of the Church of Jesus, the Christ”.

Both Mr. Boutilier and his spouse are practising members of the UFMCC. The marriage of Mr. Boutilier is a question of facts on which this Tribunal can adjudicate.

The capacity to marry is a matter within the exclusive legislative authority of the Parliament of Canada but the solemnization and registration of marriage fall under provincial statute - the Solemnization of Marriage Act in Nova Scotia..

Nonetheless, marriage existed in Christian Society long before the State started to regulate it. State control of marriage has only existed since Henry VIII spun off from the Roman Catholic Church in search of a divorce in the early 1530’s. Until then marriage was the affair of the Church. Marriage

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Decision Page 6 and baptism were totally the affairs of the Church for most of the history of Western civilization. There are still Canadians who use Baptism certificates as proof of birth. Why can a marriage performed in a legally recognized Canadian Church not be recognized as a marriage for the purpose of a collective agreement? Marriage is a public recognition of a couple’s relationship that involves sex, sometimes child rearing and economic cooperation. What makes marriage different from cohabitation? It is the public recognition, we submit. The question is often raised; what is there to prevent Mr. Boutilier from getting married again next week? The answer is, many things. The wills and the power of attorney put important limits on his ability to do so. Mr. Boutilier has the same societal restrictions about remarriage as heterosexual couples have after a marriage ceremony with family, fellow workers, friends and guests present. How often can one invite friends to his marriage? How often can one ask his employer for marriage leave without it being questionned? A marriage or a commitment ceremony with family and friends present is a major undertaking which one does not repeat every week. Marriage involves a lot more than a ceremony, it involves a spiritual economical and emotional commitment. The employer has one way to limit the usage of marriage leave. According to Article 20 marriage leave can be had only once a year. It is common knowledge that heterosexuals marry more than once, yet nothing in the contract prevents them from getting the leave benefit every year.

Obviously there have not been any abuses in employees using marriage leave or else it would be more restricted. It would be unacceptable to suggest that homosexual employees would abuse it more than heterosexual.

Heterosexuals need a divorce prior to re-marriage. Mr. Boutilier cannot get a divorce because he cannot secure a civil marriage but he must bring to an end his legal commitments prior to remarrying. He needs to have all the legal documents which we have seen, cancelled. He could not re-marry without bringing the present marriage to an end. Getting a divorce ends up being not much more than redtape in certain circumstances. The marriage/relationship could have come to an end years before.

How is the present marriage leave clause being used? Employees have to apply for leave five days ahead of time. Upon their return from leave, there is no obligation to present proof of marriage. This is so, because in most cases the employer knows his employee and is satisfied that the leave is being used properly. In the present case, Mr. Verhoef and his supervisor would have approved the

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Decision Page 7 leave. A number of fellow workers attended the marriage ceremony. All who attended and fellow employees who did not, are aware that Ross Boutilier and Brian Mombourquette are married.

Marriage leave is granted to couples who have been in a common - law relationship for years at the time they choose to get married. That is when they choose to make a public commitment.

2. The PC Collective Agreement contains a no-discrimination clause (Clause 31.01) which does not include sexual orientation. Sexual orientation should be read into this clause and into this contract for many reasons. Firstly, it should be read as being included into Clause 31.01 either because of Article 5 of the contract itself or because, the CHRA with its prohibition against discrimination on the basis of sexual orientation, applies. Sexual orientation is a prohibited ground of discrimination under the CHRA. This has been settled in law since the decision of the Ontario Court of Appeal in Haig and Birch v. Canada 1992, 9 O.R. (3d) 495 (C.A.),. (Haig) and the decision of the Supreme Court of Canada in Egan et al v. Canada (1995), 124 D.L.R. 609 (S.C.C.), (Egan).

The Ontario Court of Appeal found in Haig that sexual orientation was an analogous ground of discrimination under s. 15(1) of the Canadian Charter of Rights and Freedom (the Charter), and elected to read in sexual orientation as a prohibited ground and declared that the CHR Act be interpreted, applied and administered as though it contains sexual orientation in s. 3. Parliament has since amended s. 3 of the CHRA to expressly include sexual orientation as a prohibited ground of discrimination.

That the Canadian Human Rights Act and the Charter must be respected while interpreting collective agreements has been reiterated in numerous decisions. In her decision, Lorenzen v. Treasury Board (Environment Canada) - PSSRB 166 - 2 - 23963 and 166 - 2 - 24000 (Galipeau) June 1993, Ms. Galipeau commented on that aspect:

The Canadian Human Rights Act is a federal Act. It is binding on the federal tribunals. (...) In addition, it is clearly stated at article 66(1) of the Canadian Human Rights Act that this act is binding on “Her Majesty in the right of Canada” which, as I have just stated, is one of the parties to the collective agreement at issue.

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Decision Page 8 3. How can we differentiate the Hewens case (File 166-2- 22732)? Two years ago, David M. Hewens was denied “marriage leave” in a decision of Deputy Chairman P. Chodos. We submit that since the Hewens decision, there has been a number of decisions which would allow you to come to a different decision, In the Hewens case, the Grievor was asking the Tribunal to consider the ceremony in question a marriage. The tribunal applied the traditional meaning of marriage although there is no definition of marriage in the collective agreement. We are asking this Tribunal to interpret the word marriage according to the CHRA. For marriage to be interpreted according to the CHRA, marriage and marriage leave have to be available to all employees. Marriage leave has to apply to the only marriage possible between the Grievor and his partner, namely, a religious and public ceremony where, in the presence of their family and their friends, Ross Boutilier and his partner proclaimed their love and their commitment to each other. Isn’t this what marriage is all about? Isn’t this why the marriage leave exists? It would be difficult to find out exactly why the marriage leave was introduced in the collective agreement in the first place but we can speculate that it was to encourage stable relationships and to allow couples time to start a new relationship on the right foot. The marriage leave is the employer’s way of celebrating the marriage, the public commitment and to permit a honeymoon. This is exactly what Mr. Boutilier has done: held a public ceremony, entered into a stable relationship.

4. The Lorenzen case Files number 166-2-23963 and 166-2- 2400, was a grievance over the denial of family related leave and of bereavement leave as violating the collective agreement. In that case it was argued, as it is in the instant case, that the defining characteristic of the Grievor’s inability to receive the leave is his sexual orientation. The effect of the employer’s interpretation of the article in question is to deny the benefit to all same-sex couples who have at least one thing in common: sexual orientation. The under inclusion may be a way of permitting discrimination.

5. In the Yarrow case, Dr. Stephen Yarrow presented a grievance concerning the employer’s refusal to grant his request for bereavement leave. He was aggrieved by the employer’s definition of spouse, and its application of their definition. He claimed that the definition contravened the CHRA and the Charter of Rights and Freedom.

In that case, Mr. Newman for the Employer, objected to the jurisdiction of this Board to hear this case. In particular, he was objecting to the consideration of the Charter of Rights and Freedom. He was alleging that the adjudicator was

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Decision Page 9 without jurisdiction to hear Yarrow’s grievance by reason of section 91(1) of the PSSRA and due to the fact that the Canadian Human Rights Act provided redress. Mr. Newman had also asked that the Yarrow case be postponed pending the outcome of the Akerstrom and Moore complaints before the Canadian Human Rights Tribunal. Both the Yarrow case and the Akerstrom and Moore case stand to support the interpretation which we are requesting: that this Tribunal has jurisdiction to hear this case and that it must interpret the collective agreement while respecting the CHRA. In the Determination on the Merits, Deputy Chairperson, Muriel Korngold Wexler, stated that denying Mr. yarrow’s request for bereavement leave solely because the definition of common-law spouse was discrimination based on sexual orientation. At page 61, she says: “The distinction between the relationship of the grievor with Mr. Murray and others where the two partners are of the opposite sex, is a personal characteristic, namely, sexual orientation”. At page 63, last paragraph, she concludes: the proper function of this Board, and I, as an adjudicator, is to apply the law of the land to the relevant provisions of the Master Agreement. I have to determine whether the definition of common-law spouse is in accordance with the CHRA and the jurisprudence. A review of the above leads to the conclusion that this definition is contrary to the jurisprudence, the CHRA and Article 44 of the Master Agreement. Such a definition must, therefore be applied as though the discriminatory provision is not there and to do so is not a violation of subsection 96(2) of the PSSRA but the application and the recognition of the law of the land".

6. The word marriage has many meanings, from the union of people to the union of metals. There is no reason why the word marriage in the collective agreement has to mean the obtention of a certificate from the state, a civil marriage. Tribunals are constantly asked to extend the meaning of words which have a different traditional meaning, for example, the word spouse has been extended to mean common-law spouse in many contexts only since the 1970’s. Being a common-law spouse, although it gives a person most of the benefits of a legal spouse, does not make the person married according to the provincial or civil laws. This also applies to the words family and family-related. Those words (and we suggest the word marriage) can have a legal/common meaning and a different meaning for the purpose of a collective agreement. As a result of the Yarrow case, in c.a., the word common-law spouse now includes same-sex spouse. Where the word common-law spouse is used in a collective agreement it is preceeded with the words “For the purpose of this agreement, common-law means “ and is followed by a definition. There is nothing to prevent

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Decision Page 10 the meaning of marriage, for the purpose of this contract to mean, “declaring a spousal union in a public ceremony, whether civil, secular or religious.” Marriage would be a question of facts. The Yarrow case was exactly about the proper interpretation to be given to the words common-law spouse in light of the CHRA. In her reason for judgment in the Lorenzen case, Marguerite-Marie Galipeau questioned the meaning of the word spouse, at page 17, and concluded that in the absence of criteria specifying its meaning, the term spouse could bear more than one meaning.

“Had the parties intended that the term spouse be restricted to persons of the opposite sex who are legally married, they could have said so. Therefore I conclude that the term spouse is broader and that, although it includes spouses of the opposite sex who are legally married, it can also include other situations. For example, it could include persons of the opposite sex who have become spouses through a religious ceremony but who have not gone through the process of marrying according to the law in the province in which they reside.

And how, you ask me, will we know if the ceremony has been such as to be recognized as a marriage for the purpose of the contract? This will have to be ascertained by the facts in each situation. It probably would not be sufficient for a couple to say that they have declared themselves married while spending time alone together. Marriage continues to require a public ceremony with witnesses or a religious ceremony with documents/certificate. It is a public commitment ceremony.