Factum of the Intervener Egale Canada Inc

Court of Appeal File No.CA031546

COURT OF APPEAL ON APPEAL FROM THE BRITISH COLUMBIA SUPREME COURT

Between: VANCOUVER RAPE RELIEF SOCIETY Respondent (Petitioner) - and –

KIMBERLEY NIXON Appellant (Respondent) - and –

BRITISH COLUMBIA HUMAN RIGHTS TRIBUNAL Respondent (Respondent) - and –

EGALE CANADA INC. Intervener

______FACTUM OF THE INTERVENER EGALE CANADA INC.

SACK GOLDBLATT MITCHELL MANDELL PINDER 20 Dundas Street West, Suite 1130 500 – 1080 Mainland Street Toronto, Ontario Vancouver, British Columbia M5G 2G8 V6B 2T4

Cynthia Petersen Lindsay A. Waddell (tel) 416-979-6440 (tel) 604-681-4156 (fax) 416-591-7333 (fax) 604-681-0959 (e) [email protected] (e) [email protected]

Solicitors for the Intervener Co-counsel Egale Canada Inc.

OPENING STATEMENT

1. The intervener Egale Canada Inc. (hereafter “Egale”) is a national organization that advances equality and justice for lesbian, gay, bisexual and transgendered people and their families.

2. By order dated October 7, 2004, Mr. Justice Smith granted Egale leave to intervene in the within appeal on the following issues only:

(i) whether the Law test for proof of discrimination under s.15 of the Charter should be applicable in the context of human rights legislation and if so, whether it requires modification in any respect; and

(ii) the proper interpretation and constitutionality of s.41 of the B.C. Human Rights Code.

3. Mr. Justice Smith further ordered that Egale “will confine its factum and submissions strictly to the public interest aspects of these issues. In particular, it will not touch on the merits of the appellant’s case against the respondent.”

PART 1 -- STATEMENT OF FACTS

4. The B.C. Human Rights Tribunal made numerous findings of fact in this case. Egale submits that there is no basis for this Court to interfere with any of the factual findings made by the Tribunal.

5. Egale accepts the summary of facts as set out in the appellant’s factum.

PART 2 -- ERRORS IN JUDGMENT

A. The Lower Court Applied the Wrong Analytical Framework

6. Egale submits that the lower Court committed a serious error by applying the analytical framework developed under s.15 of the Canadian Charter of Rights and Freedoms (hereafter

“the s.15 test”) to Ms. Nixon’s claim under the British Columbia Human Rights Code, and by consequently requiring Ms. Nixon to prove injury to her dignity in order to succeed in her claim.

Vancouver Rape Relief Society v. Nixon, [2003] B.C.J. No. 2899 at paras.72-73, 126 and 164 (B.C. S.C.) (QL)

7. Under all Canadian human rights legislation, including the British Columbia Human Rights Code, a complainant bears the initial burden of proof, but is required to establish only prima facie discrimination on a balance of probabilities. Once prima facie discrimination is shown, the onus shifts to the respondent to rebut the claim of discrimination and prove that no violation of human rights has occurred.

Ontario (HRC) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 at para.28; British Columbia (PSERC) v. BCGSEU (“Meiorin”), [1999] 3 S.C.R. 3 at paras.19 and 54; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (CHR) (“Grismer”), [1999] 3 S.C.R. at para.23

8. It is well established in Canadian jurisprudence that the s.15 test is not applicable in determining whether there is prima facie discrimination under human rights legislation. The Supreme Court of Canada has explicitly articulated two separate tests to be applied in these two different contexts, based on a recognition of crucial distinctions between the protections afforded by human rights statutes and the constitutional equality rights guaranteed by the Charter.

Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Meiorin, supra; Grismer, supra; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal et Boisbriand, [2000] 1 S.C.R. 665

9. The Supreme Court first articulated its approach to s.15(1) of the Charter in 1989 in Andrews v. Law Society of B.C. In so doing, it specifically considered and rejected the possibility of adopting the analytical framework that had been developed to decide discrimination claims under human rights statutes. After identifying significant differences between the Charter and human rights legislation, the Court ruled that “a different approach under s.15(1) is therefore required.”

Andrews, supra at para.39

10. The Supreme Court’s s.15 jurisprudence has evolved since Andrews, as has its jurisprudence with respect to human rights claims. In a trilogy of cases decided in 1999 (i.e., Law v. Canada (Minister of Employment and Immigration) (“Law”) (March 1999), British Columbia (PSERC) v. B.C.G.S.E.U. (“Meoirin”) (September 1999), and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (“Grismer”) (December 1999)), the Court reconsidered its prior equality jurisprudence and re-formulated its analytical approaches to both human rights claims and Charter equality claims. The Court did not adopt a uniform framework for assessing such claims, but rather continued its long-standing practice of maintaining analytically distinct approaches. In the two human rights cases (i.e., Meoirin and Grismer) that were decided just a few months after the s.15 test was articulated in Law, the Court did not embark on an analysis of whether the impugned distinction affected the complainants’ dignity interests.

Law, supra at paras. 37-39; Meoirin, supra; Grismer, supra

11. Since then, other Courts and tribunals have confirmed that the s.15 test does not apply to discrimination claims under human rights legislation (including the Tribunal that decided this case at first instance).

Wignall v. Canada, [2003] F.C.J. No. 1627 at paras. 8-12 (T.D.) (QL); Dame v. South Fraser Health Region, [2002] B.C.H.R.T.D. No. 22 at paras. 67-69 (QL); Cominco Ltd. v. Cominco Ltd., [2001] B.C.H.R.T.D. No. 46 at para. 91 (QL); Nixon v. Vancouver Rape Relief Society, [2002] B.C.H.R.T.D. No. 1 at para. 124 (QL)

12. The lower Court in this case held that it was bound to apply the s.15 test to Ms. Nixon’s claim because of the ruling in B.C.G.S.E.U. v. British Columbia (PSERC) (“Reaney”), in which this Court ruled that the analytical framework articulated in Law governed the determination of whether there was a violation of the B.C. Human Rights Code. It is apparent from the Reaney decision, however, that the parties in Reaney neither raised nor argued the issue of whether the s.15 test is appropriate in a human rights context. The Court in Reaney therefore did not consider the important distinctions between Charter equality rights and legislated human rights protections, nor did it have the benefit of submissions based on the aforementioned jurisprudence. This likely explains the anomaly of the Reaney ruling. The decision (to apply the

s.15 test to a human rights claim) in Reaney is, in our submission, not only anomalous, but also clearly wrong.

B.C.G.S.E.U. v. British Columbia (PSERC) (“Reaney”), [2002] B.C.J. No. 1911 at paras.12-13 (C.A.) (QL)

13. As recognized by the Supreme Court of Canada in Andrews, there are significant differences between the Charter and human rights legislation, which militate in favour of maintaining analytically distinct approaches to discrimination claims under these two instruments. One of the key differences is that, although human rights statutes apply to governments, they are aimed primarily at regulating the actions of private persons, whereas the Charter only regulates government actors. The components of the s.15 test reflect the fact that all Charter claims arise in the context of a challenge to either legislation or a government decision, practice, program or policy. The application of the “contextual factors” which comprise the s.15 test consists, inter alia, of considering the “constitutional and societal significance attributed to the interest or interests adversely affected”, whether the claimant has been denied access to a “fundamental social institution”, and whether their exclusion from an under-inclusive law or program “affects a basic aspect of full membership in Canadian society”. These questions are frequently answered affirmatively in the context of under-inclusive legislative schemes because of the significant impact of state-sanctioned exclusion from a public program. These same questions would, however, hardly ever be answered affirmatively in the context of assessing the effect of private sector policies, practices or programs. Consequently, importing these Charter factors into the human rights context, where complaints are usually against private sector entities, sets a virtually unreachable threshold for establishing prima facie discrimination.

Law, supra at paras.51 and 74; Andrews, supra at para.38; McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at paras.172-174 and 179-181

14. The lower Court decision in this case highlights the inappropriateness of importing an analysis designed to measure the effect of governmental action into the assessment of a private sector human rights claim. The central question to be answered by the s.15 test is whether the claimant’s dignity was infringed. In considering this question, the lower Court contrasted Ms.

Nixon’s exclusion from Rape Relief with legislated exclusion from a statutory benefits scheme, as follows:

...exclusion by a small relatively obscure self-defining private organization cannot have the same impact on human dignity as legislated exclusion from a statutory benefit program…because any stereotyping or prejudice arising from legislated exclusion bears the imprimateur of state approval and therefore some wide public acceptance.

... Exclusion by state action has a potential impact on human dignity which exclusion by a self-defining organization like Rape Relief never could have. Legislated exclusion is there for all to see. Rape Relief’s exclusion of Ms. Nixon was private. That does not mean it was subjectively less hurtful to her, but it was not a public indignity.

... Rape Relief provides access to only a tiny part of the economic, social and cultural life of the province. By reason of Rape Relief’s self-definition, perhaps reflected in its small number of members, exclusion from its programs is quite evidently exclusion from a backwater, not from the mainstream of the economic, social and cultural life of the province.

… Rape Relief’s exclusion of Ms. Nixon from its club-like sisterhood cannot be equated with legislated exclusion from entitlement to public benefits … in terms of its objective impact on human dignity.

Vancouver Rape Relief Society v. Nixon, [2003] B.C.J. No. 2899 at paras.145-147, 154- 155 and 161 (B.C. S.C.) (QL)

15. By denying Ms. Nixon’s claim on the basis that the effect of her exclusion from Rape Relief could “not be equated with legislated exclusion from entitlement to public benefits”, the lower Court effectively eviscerated the protections afforded by the B.C. Human Rights Code. Unlike the Charter, human rights legislation is specifically intended to prevent and remedy discrimination in the private sector, regardless of the size of the responding party, yet the lower Court ultimately concluded that Ms. Nixon had failed to demonstrate prima facie discrimination precisely because Rape Relief is a small private actor. The lower Court’s application of the s.15 test effectively gave not only Rape Relief, but also other small private organizations, immunity from discrimination claims under the B.C. Human Rights Code. Indeed, the Court acknowledged that, “under the Law analytical framework exclusion from a small self-defined

‘identifiable group’ like… Rape Relief… cannot on the basis of objective scrutiny, impact negatively on the dignity of any person excluded”. Following this analysis, Rape Relief could exclude Black women, Aboriginal women, immigrant women, lesbian women, pregnant women, or disabled women from its “club-like sisterhood” and the excluded women would have no recourse under the Human Rights Code. This absurd result is antithetical to the very purposes of the Code.

Vancouver Rape Relief Society v. Nixon, [2003] B.C.J. No. 2899 at para.146 (B.C. S.C.) (QL) [emphasis added]

16. Another significant difference between human rights legislation and the Charter is the analytical relationship between a finding of discrimination and the establishment of a defence by the respondent. As noted by the Supreme Court of Canada in Andrews, human rights statutes contain exemptions or defences which “generally have the effect of completely removing the conduct complained of from the reach of the Act.” In other words, even if a human rights complainant is able to demonstrate a prima facie case of discrimination, the respondent has the opportunity to rebut this finding of prima facie discrimination by establishing a statutory defence (such as a BFOR). Where a defence is established under human rights legislation, no finding of discrimination is made. This means that part of the discrimination analysis takes place under the ambit of the statutory defence. In contrast, s.1 of the Charter does not vitiate a finding of discrimination, but rather “makes allowance for a reasonable limit upon” constitutional equality rights. Unlike a respondent in a human rights case, a government that succeeds in defending a discriminatory law under s.1 has not rebutted the Court’s finding that the impugned law amounts to discrimination.

Andrews, supra at para.39

17. As Justice Bastarache explained in Lavoie v. Canada,

the government's burden under s. 1 is to justify a breach of human dignity, not to explain it or deny its existence. This justification may be established by the practical, moral, economic, or social underpinnings of the legislation in question, or by the need to protect other rights and values embodied in the Charter. It may further be established based on the requirements of proportionality, that is, whether the interest pursued by the legislation outweighs its impact on human

dignity and freedom. However, the exigencies of public policy do not undermine the prima facie legitimacy of an equality claim. A law is not “non-discriminatory” simply because it pursues a pressing objective or impairs equality rights as little as possible. Much less is it “non-discriminatory” because it reflects an international consensus as to the appropriate limits on equality rights.

Lavoie v. Canada, [2002] 1 S.C.R. 769 at para.48

18. A discriminatory law that is upheld under s.1 as a justifiable infringement of equality rights is not unconstitutional, but it is nonetheless discriminatory. Thus, in Charter litigation, discrimination is found at the s.15 stage of the inquiry, before considering the respondent’s purported justification for the discrimination under s.1. In contrast, in human rights litigation, no finding of discrimination can be made until after full consideration of the respondent’s asserted defence(s). This difference in the structure of the two instruments explains why, in Charter cases, a full and substantive discrimination analysis (such as the “dignity” analysis provided by the Law framework) must be undertaken at the s.15 stage of an equality claim. The same does not apply to human rights claims.

Andrews, supra at paras.39-40

19. If the s.15 test is imported into the human rights context, irrelevant factors are then taken into account at the “prima facie discrimination” stage of the analysis, which ought not to be considered until the respondent’s rebuttal stage. For example, as noted above, the lower Court in this case repeatedly emphasized the “small” size of the respondent Rape Relief as a factor in its conclusion that Ms. Nixon had not demonstrated that her dignity was infringed. While the size of a respondent may be a relevant factor in assessing whether a respondent has established a defence to a discrimination claim (eg. in determining whether accommodation of a complainant would impose undue hardship on the respondent), it is not a relevant factor in assessing whether a complainant has established prima facie discrimination. The size of Rape Relief as an organization is an irrelevant consideration in determining whether Ms. Nixon proved prima facie discrimination in this case. To conclude otherwise (as the lower Court did) effectively provides small private entities with immunity from discrimination claims under the Human Rights Code.

20. A related distinction between the Charter and human rights legislation, which also arises out of the different structures of the two instruments, is the placement of the onus of proof during the course of litigation. A claimant in a human rights case is only required to demonstrate prima facie discrimination before the onus shifts to the respondent, who must disprove discrimination, whereas a Charter claimant bears the onus of proving discrimination. By importing the s.15 test into the human rights context, the lower Court placed a higher onus on Ms. Nixon than the jurisprudence calls for.

21. Yet another key difference between the Charter and human rights legislation is that the former is a constitutional document, which is not easily amended or repealed, whereas the latter are statutes that can be readily amended. Accordingly, the constitutional “living tree” approach to interpretation is employed with respect to the Charter. While all the human rights Acts passed in Canada include a fixed list of grounds upon which discrimination is forbidden (the grounds being amended by the legislatures from time to time), the list of enumerated grounds in s.15(1) of the Charter is not exhaustive (i.e., the list expands as analogous grounds are identified). Similarly, the scope of protection afforded by human rights statutes is explicitly limited to discriminatory conduct that arises in certain contexts, namely employment, housing and access to public services, whereas all legislative distinctions are potentially open to challenge under s.15 of the Charter.

22. Since s.15 is potentially open-ended with respect to the scope of discrimination claims, the Supreme Court of Canada has sought to limit the reach of s.15 to those legislative distinctions (or government programs, policies and practices) that have an impact on human dignity. Thus the s.15 test requires a Charter claimant to prove that her dignity has been infringed in order to establish discrimination. In the human rights context, on the other hand, proof of an affront to the claimant’s dignity is not required because the legislature has already pre-determined which types of distinctions are sufficiently critical to human dignity that they ought to be proscribed. By circumscribing the specific areas of private activity that human rights legislation regulates (i.e., employment, housing and access to public services), the legislature has determined that decisions about where people may live, where they may work, and how they may interact in the marketplace are so fundamental that differential treatment in respect of them

is presumed to impact on human dignity. It is worthy of note that, in s.15 jurisprudence, the Supreme Court of Canada has mirrored these value judgments by, for example, emphasizing the importance of employment as “a fundamental aspect of …human dignity.” The difference in the human rights context is that such findings have already been made by the legislature and it is therefore unnecessary (and inappropriate) for tribunals to require human rights complainants to demonstrate an infringement of their dignity as a component of their prima facie case of discrimination.

Lavoie, supra at para.45; Nova Scotia (Workers’ Compensation Board) v. Martin/Laseur, [2003] 2 S.C.R. 504 at para.104

23. Rather than applying the s.15 test in this case, the lower Court ought to have adopted the traditional analytical framework for assessing human rights complaints. According to well established jurisprudence, the elements of a prima facie case of discrimination require the complainant to show (1) that they were treated differently from others in respect of employment or the provision of a service and (2) that the differential treatment was based on one of the prohibited grounds of discrimination in the Code. In the case of employment-related discrimination, the complainant must also demonstrate that their differential treatment was in relation to others who are equally or less qualified than they are.

Grismer, supra at para.23; Nixon v. Vancouver Rape Relief Society, [2002] B.C.H.R.T.D. No. 1 at paras. 89 and 132 (QL)

24. Thus the appropriate questions in this case are (1) whether Ms. Nixon was treated differently from other women who sought to volunteer at Rape Relief and who accepted Rape Relief’s feminist, anti-racist, pro-choice and pro-lesbian views and, if so, (2) whether the differential treatment was because of her sex. The B.C. Human Rights Tribunal has consistently ruled that discrimination against a woman on the basis of her transsexuality is discrimination because of “sex”; that finding was upheld by the B.C. Supreme Court in an interim ruling in this case. Thus the second question may be reframed to ask whether Ms. Nixon was treated differently because she is transsexual. If the answers to these two questions are affirmative, then a finding of prima facie discrimination must be made. There is no further inquiry into whether the differential treatment constituted an affront to Ms. Nixon’s dignity.

Sheridan v. Sanctuary Investments Ltd. (c.o.b. B.J.’s Lounge), [1998] B.C.H.R.T.D. No. 18 at para.94 (QL); Mamela v. Vancouver Lesbian Connection, [1999] B.C.H.R.T.D. No. 51 at para.94 (QL); Nixon v. Vancouver Rape Relief Society, [2000] B.C.J. 1143 at paras.38-42 (B.C. S.C.) (QL).

B. If the s.15 Test is Applied in the Human Rights Context, It Must be Modified

25. Egale hesitates to make submissions -- even in the alternative -- about how the s.15 test could be modified to “fit” into the human rights context because Egale feels strongly, for the reasons articulated above, that the application of the s.15 test in human rights cases is contrary to settled jurisprudence and establishes a regressive precedent for equality rights generally. It blurs the distinction between two very different legal instruments (i.e., the Charter and human rights statutes), places a higher onus on human rights complainants than the jurisprudence calls for, and raises the bar for a finding of prima facie discrimination to a threshold that is extremely difficult for any claimant to meet, thereby weakening the statutory protection afforded to all vulnerable groups.

26. Notwithstanding this hesitation, Egale submits that if the s.15 test is applicable in human rights cases, then it must be modified. In the context of examining Charter equality claims, the Supreme Court of Canada has warned against the pitfalls of a formalistic or mechanical approach to the application of the “contextual factors” outlined in the s.15 test. We submit that the need for flexibility in the analytical framework is even greater in the human rights context. In its decision, the lower Court acknowledged that the application of the s.15 test to Ms. Nixon’s claim “present[ed] difficulties” because it “was articulated in Law as the appropriate analysis for Charter scrutiny of exclusion from financial benefit entitlement legislation, not for scrutiny of exclusion from a service or employment provided by a non-governmental entity such as Rape Relief”. Notwithstanding this acknowledgment, the lower Court made no effort to adapt the dignity inquiry to better fit the human rights context. Instead, the Court rigidly applied the traditional s.15 “contextual factors”, thereby distorting the analysis and imposing an unfair elevated onus on Ms. Nixon.

Law, supra at paras.3 and 88; Lavoie, supra at para.46; M. v. H., [1999] 2 S.C.R. 3 at paras.46-47; Martin/Laseur, supra at para.85; Vancouver Rape Relief Society v. Nixon, [2003] B.C.J. No. 2899 at para.127 (B.C. S.C.) (QL)

27. If this Court finds that it is appropriate to apply the s.15 test in assessing a human rights complaint, then the “contextual factors” outlined in Law should not be employed to assess the impact of the respondent’s conduct on the complainant’s dignity. The factors were developed in the Charter context and provide no useful guidance to Tribunals in the human rights context.

28. Instead, the approach conducting a “dignity” inquiry in human rights cases should begin from first principles. The Supreme Court of Canada has emphasized that the focus of the discrimination inquiry pursuant to s.15 of the Charter “must always remain upon the central question of whether, viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating human dignity.” As Justice Iacobucci stated in Law, “[h]uman dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law.” Writing for the Court, he explained that “human dignity means that an individual or group feels self-respect and self- worth. It is concerned with physical and psychological integrity and empowerment” and with “the realization of personal autonomy and self-determination.”

Law, supra, at paras.53 and 70 (emphasis added); Corbiere v. Canada, [1999] 2 S.C.R. 203 at para.59; M. v. H., supra at para.70; Rodriguez v. B.C., [1993] 3 S.C.R. 519 at para.61

29. A human rights Tribunal engaged in a “dignity” analysis should therefore ask whether, viewed from the perspective of the complainant, the differential treatment imposed by the respondent has the effect of violating human dignity. In answering that central question, the Tribunal may consider such factors as (1) whether the respondent’s impugned conduct had an adverse effect on the complainant’s feelings of self-respect and self-worth, (2) whether it impaired the complainant’s physical and psychological integrity and empowerment, or (3) whether it interfered with the complainant’s realization of personal autonomy and self- determination.

30. Although these questions must be answered from the perspective of the complainant, the complainant’s subjective claim will not be sufficient to establish an infringement of dignity. Rather, the complainant must show that there is a rational basis for her or his subjective feelings.

It is imperative, however, that the objective assessment of the complainant’s subjective feelings be conducted from the perspective of a reasonable person in the claimant’s position. The Supreme Court of Canada has ruled that “[t]he inquiry into human dignity requires the claimant to provide a rational foundation for her experience of discrimination in the sense that a reasonable person similarly situated would share that experience.”

Lavoie, supra at para.47 [emphasis added]; Law, supra at para.53.

31. This analytical test should not be confused with the “similarly situated” approach to equality claims that prevailed under the Bill of Rights but was rejected by the Supreme Court of Canada in Andrews and subsequent Charter cases, in favour of a substantive approach to equality. The question is not simply whether the complainant was treated similarly to others who are similarly situated. Rather, the question is this: if the complainant was treated differently from others based on a prohibited ground of discrimination (whether or not the others are similarly situated to the complainant), would those who are similarly situated to the complainant agree that the differential treatment constitutes an affront to their dignity?

Andrews, supra at paras.28-30

32. Thus the appropriate approach to the “dignity” inquiry in this case would be to question whether Ms. Nixon’s reaction to Rape Relief’s decision to exclude her – namely, feeling hurt, offended, humiliated and insulted -- is objectively reasonable, viewed from the perspective of a transsexual woman. The social reality of transphobia and transsexism in society, which impacts on the lives of all transsexuals and influences their perspective, must inform this analysis.

C. The Proper Interpretation of Section 41 of the Code

33. If this Court finds that Ms. Nixon has established prima facie discrimination, then the question becomes whether Rape Relief has established a statutory defence. One of the defences asserted by Rape Relief is the group exemption clause in s.41 of the Human Rights Code.

34. In our submission, the lower Court erred in its interpretation of s.41 of the Code, which provides:

If a charitable, philanthropic, educational… or social organization… that is not operated for profit has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterized by… a common sex…[or] political belief, that organization… must not be considered to be contravening this Code because it is granting preference to members of the identifiable group or class of persons.

35. Similar clauses exist in all other human rights statutes across Canada. While not identical, these “group exemption” clauses all share a common dual purpose. On the one hand, they impose limitations on the human rights of some individuals (by allowing discrimination against them by certain types of non-profit organizations in the furtherance of specific goals), while at the same time promoting the fundamental freedom of individuals to associate in groups for certain specified purposes. Thus they strike a balance between the freedom to associate and the right to be free from discrimination.

Caldwell v. Stuart, [1984] 2 S.C.R. 603 at paras.36-37; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279 at paras.100 and 124

36. Since group exemption clauses function as both rights-limiting and rights-conferring provisions, they have not been construed by the Supreme Court of Canada as merely limiting sections deserving of narrow construction. However, the rights-limiting aspect of these clauses has not been interpreted too liberally either. As Justice LaForest stated in Gould v. Yukon Order of Pioneers, given the equitable purposes of human rights legislation, group exemption clauses cannot have been “intended to be used as a broad justificatory shield against allegations of discrimination”. Rather, they are intended “to do little more than give expression to our constitutionally guaranteed freedom of association, a freedom that is not to be overlooked in the application of human rights legislation.”

Caldwell, supra at paras.36-37; Brossard, supra at para.100; Gould v Yukon Order of Pioneers [1996] 1 S.C.R. 571 at para.87

37. Thus it is clear that s.41 of the B.C. Human Rights Code does not grant a blanket exemption from the Code’s obligations to organizations that satisfy the criteria in the section (namely, non-profit charitable, philanthropic, educational or social organizations whose primary purpose is to promote the interests and welfare of an identifiable group of persons characterized

by certain enumerated grounds). Rather, in our submission, in order for an organization to be able to rely on the group exemption in s.41, it must demonstrate (1) that there is a connection between its impugned conduct and its primary purpose as an organization and (2) that its primary purpose as an organization is not itself discriminatory or contrary to the principles of substantive equality.

38. In Brossard v. Quebec, the Supreme Court of Canada held that, in order for the group exemption clause to avail an organization, there must be an objective connection between the challenged discrimination and the nature or purpose of the organization. For example, in Clayton v. Wheels for the Handicapped Society, the B.C. Council of Human Rights concluded that a group exemption clause could not be relied upon by an organization that provided transportation services to physically disabled people when it hired a male driver over a female driver because he provided sole income support for his family. The Council agreed that the respondent charitable non-profit organization, whose primary purpose was to advance the welfare of disabled persons, had broader hiring discretion than other ordinary employers in so far as it could give preference to disabled persons in its hiring practices. The Council held, however, that the respondent did not therefore enjoy a licence to discriminate against prospective employees based on grounds unrelated to the organization’s purpose, such as sex or family status.

Brossard, supra at paras.126-130; Clayton v. Wheels for the Handicapped Society, [1989] B.C.C.H.R.D. No. 2 at paras.35-36 (QL)

39. Thus, according to settled jurisprudence, the correct interpretation of s.41 requires a respondent to demonstrate that their impugned conduct is objectively justified by their organization’s primary purpose. In this case, rather than requiring Rape Relief to show that the exclusion of Ms. Nixon “is justified in an objective sense by the particular nature of the institution in question” (as the Supreme Court mandated in Brossard), the lower Court erroneously concluded that Rape Relief need only demonstrate a “bona fide belief” that the exclusion of transsexual women as counsellors benefited its clients and served its objective of providing them with a safe and supportive environment. The Court found that Rape Relief discharged its burden under s.41 merely by asserting a belief that the exclusion of transsexual

women from peer counselling positions benefited clients “by protecting them from the possible trauma of dealing with persons …[they] might perceive as male and therefore threatening or at least ‘not woman enough’ and therefore unwelcome confidantes.”

Brossard, supra at para.138; Vancouver Rape Relief Society v. Nixon, [2003] B.C.J. No.2899 at paras.105, 118 and 129 (BC. S.C.) (QL)

40. In addition to falling far short of what is required by the Supreme Court’s jurisprudence with respect to the application of a group exemption clause, the lower Court’s decision on this point also erroneously gave credence to the (presumed) discriminatory beliefs of some of Rape Relief’s clients, namely the stereotypical beliefs that transsexual women are male, are not “real women” or are “not women enough.” It is a well-established principle of Canadian human rights jurisprudence that discrimination contrary to human rights legislation cannot be justified on the basis of the prejudiced attitudes or views of one’s clients.

Imberto v. Vic & Tony Coiffure et al. (1982), 2 C.H.R.R. D/392 (Ont. Bd. Inq.); Hajla v. Nestoras (Welland Plaza Restaurant) (1987), 8 C.H.R.R. D/3879 (Ont. Bd. Inq.); Varma v. GB Allright Enterprises Inc. (1988), 9 C.H.R.R. D/5290; Perrett v. Versa Services, [1990] B.C.C.H.R.D. No. 2 (QL); Letendre v. Royal Canadian Legion, [1991] B.C.C.H.R.D. No. 12 (QL); C.L. v. Badyal (c.o.b. Amrit Investments), [1998] B.C.H.R.T.D. No. 67 (QL)

41. As noted above, in order to determine whether Rape Relief can rely on s.41 of the Code, this Court must not simply examine the bona fide beliefs of the organization and/or the views of its clients, but rather must query whether the organization has demonstrated an objective connection between its decision to exclude Ms. Nixon from its counselling staff and its primary purpose as an organization. This in turn requires the Court to identify the organization’s primary purpose.

42. The identification of Rape Relief’s purpose is a question of fact to be decided by the Tribunal. The Tribunal cannot merely accept whatever purpose is asserted by a respondent, lest respondents simply characterize the purpose of their organization so narrowly as to subvert the discrimination inquiry under the Code. In this case, the Tribunal heard and considered evidence about Rape Relief’s Certificate of Incorporation, its government funding contracts, it broad anti- oppression policies, and the services it has provided to its clients, including transsexual clients.

Based on this evidence, the Tribunal found that the organization’s primary purpose is to promote the welfare and interests of all women responding to male violence. We submit that there is no basis for this Court to interfere with the Tribunal’s finding in that regard. Thus the question for this Court, on a proper interpretation of s.41, is whether Rape Relief has demonstrated an objective connection between its decision to exclude transsexual women from its counselling staff and its primary purpose of promoting the welfare and interests of all women responding to male violence.

Nixon v. Vancouver Rape Relief Society, [2002] BCHRTD No.1, at paras.217-222

43. If this Court overrules the Tribunal’s factual finding and accepts instead Rape Relief’s assertion that its primary purpose is to promote the welfare and interests of only those women who have had life-long experience of female subordination (i.e., non-transsexual women), then the Court must consider whether that is a discriminatory purpose. As noted in paragraph 37 above, not all purposes are acceptable under s.41 of the Code.

44. In our submission, a respondent ought not to be permitted to rely on a discriminatory purpose in asserting a defence under s.41. As the Supreme Court of Canada held in Brossard, the right protected by s.41 is freedom of association, not freedom to discriminate. Discrimination is permitted only insofar as it is necessary to allow for a group’s freedom of association. This balance is struck in each instance by considering whether the discrimination is justified in light of the organization’s primary purpose. If an organization could operate for a discriminatory purpose, then the balancing contemplated by Brossard would be rendered meaningless and redundant, since any exclusion could always be justified by a discriminatory purpose. For example, if a non-profit white supremacist organization existed for the stated purpose of preserving the heritage and promoting the interests of white people exclusively, then it would follow tautologically that the exclusion of people of colour would be justified by the organization’s purpose – which cannot have been the legislature’s intent in enacting s.41 of the Code.

Brossard, supra at para.124

45. We are not suggesting that, in order to rely on s.41 of the Code, an organization’s purpose must be one that advances substantive equality for disadvantaged groups (i.e., what is commonly known as an “affirmative action” purpose). There is a “special program” clause in the B.C. Human Rights Code and in some other human rights statutes which operate in that fashion, but the group exemption clauses do not. However, we submit that s.41 should not be interpreted to exempt an organization from liability for discrimination based on a purpose that is itself discriminatory and antithetical to the aims of substantive equality that underlie the Code.

For examples of “special program” clauses, see Human Rights Code, R.S.B.C. 1996 c.210, s.42; Human Rights Code, R.S.O. 1990 c.H.19, s.14

46. An interpretation of s.41 which permitted an organization to rely on a purpose that undermines substantive equality would render s.41 contrary to the equality rights guaranteed by s.15 of the Charter. Such an interpretation must therefore be avoided. The Supreme Court of Canada has repeatedly ruled that, where a legislative provision (on a reasonable view of its history and plain reading of its text) is open to two persuasive interpretations, the court “should adopt the interpretation which accords with the Charter and the values to which it gives expression.” As (then) Chief Justice Lamer stated in Canada v. Mossop, when interpreting a statute,

[i]f there is some ambiguity as to its meaning or scope, then the courts should, using the usual rules of interpretation, seek out the purpose of the legislation and if more than one reasonable interpretation consistent with that purpose is available, that which is more in conformity with the Charter should prevail.

Hills v. Canada (Attorney General) (1988), 48 D.L.R. (4th) 193, at pp.226-227; R. v. Zundel, [1992] 2 S.C.R. 731 at para.59; Canada (Attorney General) v. Mossop (1993), 100 D.L.R. (4th) 658 at p.673

47. Egale is not asserting that s.41, properly interpreted, would never permit a woman-only organization to exist for the purpose of promoting the interests of a subgroup of women based on a common experience of what it is to be a woman. Egale recognizes, for example, that a group of pregnant women could come together around a particular shared experience of sex, and would be justified in excluding non-pregnant women from their ranks. Similarly, transsexual women could organize based upon their particular common experience of sex, and would be justified in

excluding non-transsexual women. However, it is not always the case that s.41 permits a subgroup of women to exclude other women who do not share their common experience. While a group of women might be able to organize, for example, based on the common experience of being Muslim in the social climate of fear that prevails post 9/11, surely a group of woman could not similarly organize based on the common experience of not being Muslim in a post-9/11 world; the exclusion of Muslim women, in those circumstances, would alienate an already disadvantaged minority (Muslims) from a multi-faith approach to addressing post 9/11 social issues, thereby devaluing their contributions and potentially reinforcing racist/ethnic/religious stereotypes about Islamic faith and terrorism. In other words, under s.41 of the Code, it matters what kind of experience has been selected as the basis for inclusion in a subgroup and whether the effect of the selection is to perpetuate or reinforce discrimination based on a prohibited ground.

48. To use another example, a group of women could organize based on their experience of being HIV positive and pregnant, in order to support and empower each other in dealing with their HIV status during pregnancy and childbirth; s.41 of the Code would provide them with a defence to a claim of discrimination advanced by an HIV negative pregnant woman who was excluded from their group. In contrast, s.41 would not similarly permit a group of pregnant women to organize to support each other with respect to pregnancy-related issues and exclude HIV positive women. A group of HIV negative women might, however, be permitted to organize around their experience of being HIV negative in different circumstances, such as, for example, if they were all intimate partners of HIV positive persons and were coming together for the purpose of supporting each other in dealing with their partners’ HIV status. In the latter circumstances, the exclusion of HIV positive women would not perpetuate discrimination against them based on their HIV status and would therefore be permissible under s.41 of the Code.

49. In short, although an organization’s purpose need not necessarily promote substantive equality in order to enjoy the exemption under s.41, it must be scrutinized to ensure that it does not undermine substantive equality. In other words, s.41 does not give an organization like Rape Relief carte blanche to discriminate against a subgroup of women just because its primary purpose is to promote the interest and welfare of an “identifiable group of persons” characterized

by a common sex. Rape Relief could not rely on s.41 to justify excluding lesbians, Black women, or Aboriginal women from its volunteer staff or to deny women with visual or hearing impairments access to its services. To so interpret s.41 would undermine substantive equality and permit an unfairness that is antithetical to the very purpose of the Code.

50. Rape Relief is, however, clearly permitted to exclude men from its woman-only space because of the freedom of association guaranteed by s.41 of the Code. In the Court below, Rape Relief asserted that because it is entitled to have a “women only” hiring policy in the provision of its peer counselling services, it should be entitled to determine who is a woman for the purposes of that policy. We submit that this approach would fail to address the very essence of the discrimination claim in this case, namely the question of whether Rape Relief’s exclusion of transsexual women from its definition of “women” is contrary to the Human Rights Code.

51. It is the Tribunal’s role to assess whether Ms. Nixon belongs to the “identifiable group… characterized by a common sex” that Rape Relief is entitled to “prefer” under s.41 of the Code. In addressing this question, the lower Court relied on the criteria articulated in R. v. Powley, including biological factors and community acceptance. Powley is an aboriginal rights case decided under s.35 of the Constitution Act, 1982. It has no application whatsoever in the context of a s.41 analysis under the Human Rights Code. Powley involved a claim to aboriginal hunting rights by two self-identified Métis men. In developing criteria for ascertaining Métis identity under s.35, the Supreme Court held that the criteria must reflect the purpose of that constitutional guarantee, which is to preserve ancestral communal rights. It was therefore appropriate for the Court, in that context, to articulate criteria that included ancestral connection (which has a biological component) and community acceptance. Given the very different purposes of human rights legislation, it was wrong for the lower Court to import those criteria into this case.

R. v. Powley, [2003] 2 S.C.R. 207

52. We submit that a more appropriate approach to defining membership in an “identifiable group” under s.41 is that which has consistently been adopted by courts and tribunals in human rights cases involving religious accommodation, where a complainant’s subjective assertion of religious faith is scrutinized based on the criteria of “sincerity” and “genuineness”. If a complainant demonstrates a longstanding religious belief, conduct consistent with that belief,

and an expression of the belief over time, and there is no evidence to support a finding that the religious conviction is being asserted by the complainant as a pretext in order to procure some favour or gain, then employers and service providers are obligated to accommodate the religious belief (to the point of undue hardship).

Simpson Sears, supra at para.3; Drager v. International Association of Machinists and Aerospace Workers, Automotive Lodge 1857, [1993] B.C.C.H.R.D. No. 42 at paras.106- 113 (QL); Janssen v. Ontario (Milk Marketing Board) (1991), 13 C.H.R.R. D/397 at para.22; Ryder v. Cooper Market Ltd., [1990] B.C.C.H.R.D. No. 28 at paras.17-18 (QL); Syndicat Northcrest v. Amselem, [2004] S.C.J. No. 46 (QL)

53. In this case, a proper interpretation of s.41 would require the Court to determine whether Ms. Nixon’s self-identification as a woman is sincere and genuine. In doing so, the Court may consider whether her female self-identification is longstanding, whether her conduct and her gender expression are consistent with her asserted female identity, and whether there is any evidence to support a finding that she is asserting a female gender-identity merely as a pretext to gain access to Rape Relief’s women-only space. This approach to the interpretation of s.41 is consistent with the objects and purposes of the Code, including the freedom of association guaranteed by s.41. It would ensure the integrity of Rape Relief’s women-only space from intrusion by “men disguised as women” (one of Rape Relief’s expressed concerns). If a male claimant made a disingenuous assertion that he was female in order to gain access to Rape Relief’s women-only space, Rape Relief would be entitled to rely on s.41 of the Code to exclude him from its counselling staff, on the basis that he does not belong to the identifiable group (i..e., women) to which it is entitled to give preference.

Simpson Sears, supra at paras.12 and 18; Meiorin, supra at paras.47-49

54. Based on all of the above, Egale urges this Court to rule that the Powley case and the criteria developed therein have no application in cases where s.41 of the Code is asserted as a defence by a respondent to a human rights claim. Instead, the above-noted tests of “sincerity and genuineness”, which have been applied by human rights Tribunals and courts for many years in religious accommodation cases, should be adopted by the Court.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

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Cynthia Petersen

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Lindsay Waddell