Reasons for Judgment of the Honourable Madam Justice Huddart:

[1]         At issue in this appeal is the employer’s policy of prohibiting the internal co-ordination of employment-related benefits among its married co-teachers.  This prohibition has two aspects.  First, as concerns spouses, its effect is to prevent simultaneous enrolment of a teacher as both a primary member of the benefit plan and a dependant under his or her spouse’s coverage.  Second, as concerns dependent children, only one teacher in the couple may claim the children as dependants.

[2]         In terms of its mechanics, the employer’s policy requires the second teacher (Teacher 2) of the couple to choose (1) being listed as a dependant under the first teacher’s (Teacher 1’s) family coverage, or (2) having primary enrolment under single coverage.  Any dependent children of the couple are listed on the plan of the parent who has opted for family coverage.

[3]         The union claims, and Arbitrator Burke agreed, that such a policy was discriminatory on the basis of marital status, in violation of both s. 13 of the Human Rights Code, R.S.B.C. 1996, c. 210 and s. 15 of the Canadian Charter of Rights and Freedoms.  Although the matter was argued in relation to both, I will confine my analysis to discrimination under the Code, that being sufficient to resolve the appeal.  The fundamental question is whether the employer’s interpretation of its obligations regarding the provision of benefits of spouses who are co-employees under the collective agreement contravenes s.  13 of the Code, and, if so, whether the statutory defence contained in s. 13(3)(b) applies to permit that discrimination.

ARBITRAL DECISION

[4]         Arbitrator Burke concluded the employer’s interpretation of the benefits provisions of the collective agreement was inconsistent with the Code and the Charter.  The policy, she found, drew a discriminatory distinction on the basis of an employee’s marital status because it distinguished between those employees who had a spouse working for the School Board and those who did not.

[5]         She prefaced her analysis with this comment:

I agree with the Employer that there is a consistent line of authority in British Columbia expressed in Weldwood of Canada [(Cariboo Division) –and- I.W.A. Local 1-424 (unreported), February 19, 1985 (Hope)] and Children’s Hospital [-and-Health Sciences Association of British Columbia (unreported), November 2, 1987 (Munroe)] that a claim to entitlement to coordinated benefits must be expressed in clear language.  Each case involved what is characterized either as double coverage or coordinated benefits and dealt with similar arguments raised by the parties here, with the exception of the discrimination and Charter arguments. …

***

Article 37 has existed for some time without any real change and in the context of the jurisprudence as expressed above.  Were it not for the Union’s Charter argument in this case, I would be inclined to follow the jurisprudence as expressed above.

POSITIONS OF APPELLANT & RESPONDENT

Appellant School District

[6]         In abbreviated form, the appellant’s argument is fourfold.  First, it says, the policy does not impose differential treatment.  To the contrary, its object is to provide a defined level of benefits to those governed by the collective agreement.  The appropriate comparator, it submits, is all members of the bargaining unit, not those with a spouse and/or dependent children.  On this analysis, Teacher 2 receives exactly the same benefit entitlement as a single teacher in the School District’s employ or to a married teacher whose partner does not have access to benefits capable of external co-ordination.  The only sub-group of teachers who might receive more are those who have a spouse employed outside the bargaining unit with benefits that can be co-ordinated.  However, as this sub-group lies beyond the control of the School District, it cannot be claimed that this difference in entitlement is imposed by its policy.  This submission finds favour with my colleague, Mr. Justice Braidwood, who would allow the appeal on that ground.

[7]         The second prong of the appellant’s argument is that, even if there were differential treatment, it is not on the basis of “marital status” but rather on the employment status of a person’s spouse or, at the very least, upon a combination of marital status and employment status of the spouse.  It would not be appropriate, the appellant submits, to elaborate the scope of the ground of marital status in this way.

[8]         Third, even if this Court concludes the policy draws a distinction and this distinction falls within the prohibited ground of “marital status,” the distinction is not discriminatory.  The appellant argues that Arbitrator Burke improperly relied upon the decision in Calgary Roman Catholic Separate School District No. 1 –and- A.T.A., Loc. 55 (1997), 68 L.A.C. (4^th) 1 (Ab. L.R.B.).  This case is distinguishable because the policy required Teacher 2 to become the dependant of Teacher 1.  Enrolment in one’s own right was not an option.  As counsel for the School District explains in its factum, “The attribution of the stereotypical attitudes concerning single and dual income families underpinning the finding of discrimination was engaged by the required dependency.”  This forced dependency is absent in the facts of the present appeal, and, consequently, so is the alleged discriminatory effect.  My colleague, Mr. Justice Thackray, favours this submission and would allow the appeal on that ground.

[9]         Finally, the appellant says, in the event this Court finds its policy discriminatory under s. 13 of the Code, then the exemption contained in s. 13(3)(b) applies to save it.  In the appellant’s view, the benefit plan, including the School Board’s policy in administering it, is a bona fide insurance plan, on which basis the School Board is permitted to disallow dual coverage even if this discriminates on the basis of marital status.

Respondent Teachers’ Federation

[10]    The Federation’s submissions are the mirrored opposition of those of the appellant.  First, it submits that the employer’s policy does impose differential treatment.  It says that Arbitrator Burke was right when she concluded:

…the School Board requires spouses to make a choice not required of any other employee. ...This is based on the distinction that the individual is married to a co-employee who has coverage.  This in my view, imposes a disadvantage or ‘does not provide a benefit’ which others are entitled to.

[11]    On a related point, the Federation notes that it is generally the claimant who chooses the comparator group: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.  The appropriate comparator is any other individual teacher employed by the School Board who has a spouse and/or dependent children.  On its view, it is illogical to advocate a comparator group where the issue of internal co-ordination can never arise as would be the case if the comparator were single teachers or married teachers whose spouses work for a different employer.

[12]    With respect to the second stage of the analysis, the Federation submits that the differential treatment is based on marital status, a prohibited ground of discrimination in s. 13 of the Code.  It says that it is the grievors’ specific status as spouse of a defined class of persons (other employees of the School Board) that provides the whole basis of the policy.

[13]    Moreover, it submits, the differential treatment on the basis of marital status is discriminatory because it limits access to benefits and advantages available to other employees.  It characterized what is lost as “full compensation.”  On its view, every other teacher, as part of his or her compensation, earns benefit entitlements for that teacher’s spouse and children.  Precluding the inclusion of each teacher’s spouse and children on his or her benefit plan carries the message that his or her work is worth less because of the benefit compensation already earned by his or her spouse.  This discounted compensation, counsel for the Federation argues, can only be regarded as demeaning.  The respondent summarizes this point at para. 72 of its factum: “In effect, the policy takes entitlement to benefit coverage that one breadwinner earns and divides it up between two breadwinners on the basis that they are spouses, and denies the other breadwinner some of the entitlement (e.g. family coverage).”  The policy is premised on two stereotypical assumptions: (1) that families need only the benefit coverage earned by one breadwinner and (2) individual teachers are not entitled to benefit compensation that she or he has earned independently.

[14]    Finally, the exemption contained in s. 13(3)(b) of the Code cannot operate to save what otherwise would be discriminatory conduct.  First, it is not applicable because the plan of insurance permits the internal co-ordination of benefits.  It is the employer’s policy in administering the plan that discriminates.  In any event, what is protected in s. 13(3)(b) is the actuarial aspects of insurance plans: Keshen v. Carrier Canada Ltd., [1989] B.C.J. No. 2180 (S.C.) [Q.L.].  As the dispute in the present case does not rest on any actuarial assumption, the statutory exemption is not engaged.  To bolster this conclusion, the respondent notes that defences to what otherwise would be discriminatory conduct under human rights statutes are to be construed narrowly: Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at para. 18.

The Collective Agreement

Article 37 – Benefits – Coverage

37.1 General Application

37.11  The Board shall provide each teacher with an application or enrolment form for participation in the medical, dental, extended health and group life insurance benefit plans.

37.12  The Board shall provide each teacher with a description of those benefit plans in which the teacher is enrolled.

37.13  Should the carrier be changed, the Association shall be given immediate, written notification.

37.2 Medical Services Plan

37.21  The Board Shall pay 80% of the premium cost of the B.C. Medical Services Plan premiums.

37.3 Group Life Insurance

37.31  The Board shall pay 100% of the premium cost of the BCSTA/BCTF Group Life Insurance Plan B.  Such insurance shall be in the form of three (3) times annual salary without regard to age (except retirement age) or dependent status.

37.32  This plan shall be a condition of employment.

37.4 Extended Health Benefits

37.41  The Board shall pay 100% of the premium cost of an Extended Health Benefits Plan.  Eyeglass coverage shall be included for all teachers and their dependents.  Such coverage is to be limited to $150 per person for each two (2) year period.  Dependent children’s coverage shall be at $125 per year.

37.42  This plan shall be a condition of employment except where the employee has spousal coverage.

37.5 Salary Continuance

37.51  Teachers shall pay 100% of the premium cost of the B.C.T.F. Salary Indemnification Plan.

37.52  This plan shall be a condition of employment.

37.6 Dental Coverage

37.61  The Board shall pay 100% of the premium cost of a Dental Plan for each teacher employed by the Board which will include:

       37.611 100% of Plan “A” basic service

       37.612 50% of Plan “B” prosthetic appliance, crown and bridge

  37.613 50% of Plan “C” orthodontics, for minor dependents to a $1500 lifetime per minor dependent.

     37.62  This plan shall be a condition of employment.

Reasons for Judgment of the Honourable Mr. Justice Braidwood:

[31]    This is an appeal from an arbitration award pursuant to s. 100 of the Labour Relations Code, R.S.B.C. 1996, c. 244.  The arbitration award concerns the grievance of the Fort Nelson District Teachers Association (the "Union") alleging that the policy of the Board of School Trustees of School District No. 81 (Fort Nelson) (the "School Board") to restrict dual coverage under its benefit plan (the “Plan”) is discriminatory under s. 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter") and the British Columbia Human Rights Code R.S.B.C., 1996, c. 210.  The arbitrator allowed the grievance of the Union, finding that the policy of the School Board was discriminatory.

[32]    On this appeal, the School Board submits that the arbitrator erred in her interpretation and application of s. 15 of the Charter and the Human Rights Code.

Background

[33]    The appellant and the respondent are parties to a collective agreement.  Section 37 of the agreement establishes the benefit coverage provided by the School Board for teachers in the bargaining unit.  Article 37 - Benefits - Coverage states:

37.1 General Application

37.11 the Board shall provide each teacher with an application or enrolment form for participation in the medical, dental, extended health and group life insurance benefit plans.

37.12 The Board shall provide each teacher with a description of those benefit plans in which the teacher is enrolled. . . .

. . . . .

37.4 Extended Health Benefits

37.41 The Board shall pay 100% of the premium costs of an Extended Health Benefits Plan.  Eyeglass coverage shall be included for all teachers and their dependents.  Such coverage is to be limited to $150 per person for each two (2) year period.  Dependent children's coverage shall be at $125 per year.

37.42 This plan shall be a condition of employment except where the employee has spousal coverage.

[34]    At issue here is a concept referred to as dual or coordinated coverage.  This refers to the ability of an individual, through the combination of two benefit plans, to obtain reimbursement for his or her insurance claims up to the combined limit of the two plans.  In some cases, this may lead to full reimbursement.  Coverage is internally coordinated when an individual is both the subscriber and a dependent member in the same employer group plan.  Coverage is externally coordinated when an individual is a subscriber and a dependant in different employer plans.

[35]    A number of illustrations were put to this Court by counsel, some of which I will repeat now.  At the outset, it should be mentioned that it has long been the practice of the School Board not to allow coordinated coverage for two teachers who are married to each other and are both entitled to benefits under the Plan.

[36]    The illustrations I will set forth are illustrations which, in various ways, were referred to by counsel and tend to illustrate various possibilities that exist if the Plan is interpreted in the manner in which the School Board urges and has habitually applied it.  In each case, the teacher to whom I will refer and to whom I will assign a number is assumed to be entitled to benefits under the Plan.

[37]    Teacher No. 1 is single and simply registers and has benefits under the Plan.

[38]    Teacher No. 2 is married to a spouse, who either does not work or who does not work for an employer from which coordinated health benefits are available.

[39]    Teacher No. 3 is married to Teacher No. 4 and has children.

[40]    Teacher No. 4 is married to Teacher No. 3 and, of course, has children.  As one can see, the School Board’s policy requires certain elections to be made by Teachers No. 3 and No. 4.

[41]    In order to keep the illustrations simple, I will assume the issue is recovery of an expenditure of $200 for a pair of eyeglasses.

[42]    In the example of Teacher No. 1, the teacher is able to claim $150.  Teacher No. 2, the married teacher, having spent $200 on the glasses, is able to claim $150.  With reference to Teacher Nos. 3 and 4, a number of options arise, all of which result in the same recovery in relation to the $200 expenditure on eyeglasses.

[43]    Teacher No. 3 could either put herself down, (assuming Teacher No. 3 is female), as the principal subscriber and list her spouse and children as dependants.  If that were the case, Teacher No. 4 could not claim any benefits on his own behalf under the Plan.  In this scenario, Teacher No. 3 could claim $150 for her glasses.  Teacher No. 4, having spent $200 on the eyeglasses would have Teacher No. 3 claim the $150 on the basis that Teacher No. 4 is the dependent spouse of Teacher No. 3.

[44]    Alternatively, Teacher No. 3 could put only herself down as the original claimant and Teacher No. 4 would then put himself down as an original claimant and list the children as his dependants.  One can see the variations back and forth; however, the ultimate result is that the maximum that can be claimed in relation to the pair of eyeglasses that are necessary for either Teacher No. 3 or No. 4 is $150 per pair of glasses per teacher. 

[45]    If the interpretation urged by the Union is correct, then in the example given above, the claims of Teachers No. 1 and No. 2 remain the same.  Each is entitled to claim $150 for their respective eyeglasses.  There would be, however, a substantial difference in the claims allowed for Teachers No. 3 and No. 4.  Under the Union’s interpretation, Teacher No. 3 would put herself down as the principal beneficiary and Teacher No. 4 would be classified as a dependant, as would their children.  Teacher No. 4 would also put himself down as the principal beneficiary and would classify Teacher No. 3 and their children as dependants.

[46]    Under those circumstances, Teacher No. 3 would claim $150 on her own behalf for the $200 spent on the glasses.  Teacher No. 4 would claim, on behalf of Teacher No. 3 as his dependant, the balance of $50, and so it would also be for the children.

[47]    At the heart of this appeal is whether or not the application of the School Board's interpretation of the health plan is discriminatory under the Charter or under the Human Rights Code.

[48]    A proper analysis should begin with the interpretation of the agreement between the parties, setting aside Human Rights Legislation.  The next step is to then determine whether such an interpretation can withstand scrutiny under the Human Rights Legislation.

[49]    What is not before us, or remains unchallenged, is the interpretation given to the agreement between the parties apart from the Human Rights Legislation.  Upon being asked, counsel for the respondent replied that "he would not interfere with the interpretation of the contract made by the arbitrator."  This, of course, is the interpretation apart from the impact of the Human Rights Legislation.

[50]    I will set out the arbitrator's finding in this regard.

IV.  ANALYSIS

     The Union and Employer have very different perspectives on this matter as evident from their divergent arguments set out above.

     I agree with the Employer that there is a consistent line of authority in British Columbia expressed in Weldwood of Canada, supra, and Children's Hospital, supra, that a claim to entitlement to coordinated benefits must be expressed in clear language.  Each case involved what is characterized either as double coverage or coordinated benefits and dealt with similar arguments raised by the parties here, with the exception of the discrimination and Charter arguments.  In Weldwood, supra, the Arbitrator said:

. . . the fact that the benefit is restricted to a percentage of the cost of dental services stands in a different perspective.  At the least, a claim to be entitled to double benefits, which is the claim that lies at the bottom of enrollment as both an employee and a dependent, is inconsistent with the fact that employees generally are limited to a percentage recovery of dental expenses.  The interpretation argued by the union would create a special class of employee who will benefit beyond employees generally with respect to a benefit that appears to have been intended to have global application.  To that extent the fact the parties negotiated partial compensation for dental expenses and have periodically addressed increases in that percentage is inconsistent with an interpretation of the language wherein certain employees would be entitled to total compensation.  (at p. 15)

     He went on to note the parties "cannot be taken to have intended to create a special class of beneficiary under the dental plan who would recover complete compensation for dental expenses while employees generally are limited to the percentages negotiated and fixed in the agreement".  He concluded: . . . the obvious intent of the language is to provide employees and their dependents, with a defined level of compensation for the cost of dental. . . . (at p. 17)

     In Children's Hospital, supra, the Arbitrator found considerable assistance in the Weldwood award, quoting it at length and concluding:  “the hospital's refusal to permit dual coverage does not constitute a violation of the Master Agreement".  A similar line of analysis was followed in Kirkland Board of Education, supra and Reliance Electric Ltd., supra.  Furthermore, the latter case noted when dealing with the point that it was discriminatory to deny the grievor family benefit coverage said:

. . . To the contrary, however, were family coverage to be provided, the grievor and her dependents would receive an advantage denied to other members of the bargaining unit.  Surely, this could not have been the intent of the parties. . . .(at p. 42)

All these cases, the Employer points out follow the principle set out in Noranda Mines, supra, that clear language must exist to support the entitlement to a benefit.

     Article 37 has existed for some time without any real change and in the context of the jurisprudence as expressed above.  Were it not for the Union's Charter argument in this case, I would be inclined to follow the jurisprudence as expressed above.  Many of the Union's arguments on the interpretation of the provision at issue have been dealt with and rejected in these cases.  The one caveat I note is the existence of more recent collective agreements where non-entitlement to dual or coordinated benefits is clearly set out.  The impact of that has not been assessed in the context of the previous jurisprudence.  Suffice it to say, from a preliminary point of view, it appears to confirm the ambiguity in the provision at issue, and has been consistently identified in the jurisprudence cited above.  In the cases cited, as identified by the Arbitrator in Children's Hospital, supra:

. . .  the issue of dual coverage arose on language which failed to clearly signal the mutual intent of the parties…(at p. 25)

The resolution of that ambiguity however may well be affected by appropriate Charter arguments, as have been raised here.

     The jurisprudence articulated above was developed without the issue of discrimination being raised and the benefit of the Charter argument made here.  Although the Employer seeks to narrow the issue in the case to one of negotiated benefits, the argument made by the Union cannot be summarily dismissed.  It is something I must resolve as part of my analysis of this case.  I find this in particular because the Employer has not left this issue to be determined according to the terms of the plan.  It has a very specific practice and policy to not allow teachers to enroll in the plan and access its full benefits, if the Employer also employs that teacher's spouse.  The Employer does this it says on the basis of its understanding and interpretation of the collective agreement.  As a result, the Employer's interpretation of the collective agreement and its resulting policy and practice are at issue here.  [Emphasis added.]

[51]    The learned arbitrator considered the provisions of s. 15 of the Charter and wrote as follows:

The question then becomes whether the impugned Employer policy, in purpose or effect, violates essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice?  In my view, the policy applied in this situation does commit this violation.

[52]    The arbitrator concluded as follows:

     No justification has been established under Section 1 of the Charter.  On a similar basis, I find a breach of Section 13 of the Human Rights Code.  That provision prohibits discrimination against a person regarding employment or any term or condition of employment because of amongst other factors, marital status.  Much of the analysis set out above is applicable to my finding here.  I see no need to repeat it.  Section 13(3)(b) of the Act does not save the situation, because as pointed out by the Union, the operation of the plan itself is not at issue.  Indeed, the plan allows for the coordination of benefits.  It is the practice of the Employer which prohibits it and has become an issue in this case.

     Accordingly, I find the Employer's interpretation of the collective agreement is not consistent with Section 15(1) of the Charter and Section 13 of the Human Rights Code.  To interpret the agreement consistent with the Charter, I find the grievance to be successful.  Individual teachers are entitled to enrollment under the Plan in the appropriate manner, with any resulting benefits that may flow to them.

Analysis

[53]    Because of the conclusions that I have reached, I do not find it necessary to decide the issue of whether the School Board’s policy attracts Charter scrutiny by virtue of the fact that it is an activity that can be ascribed to government, nor do I find it necessary to consider whether or not s. 13(3)(b) of the Human Rights Code provides a defence to the Employer.

[54]    For convenience, I will set out s. 13(1) of the Human Rights Code:

13 (1) A person must not

(a)  refuse to employ or refuse to continue to employ a person, or

Reasons for Judgment of the Honourable Mr. Justice Thackray:

[69]    I have had the privilege of reading the draft reasons of Mr. Justice Braidwood.  While he and I reach the same conclusion, I come to it from a slightly different direction.

[70]    Mr. Justice Braidwood sets out the portions of the collective agreement applying to extended health benefit coverage in ¶33 and ¶34 of his reasons and explains the concept of dual or coordinated coverage which is at the heart of this appeal.  As noted by Braidwood J.A., the appellant employer has not allowed dual coverage for teachers who are married to each other.

[71]    Braidwood J.A. gave examples of claims by parties who were single, married or married to another teacher.  It can be seen from his examples that a single person and a married couple receive the same total reimbursement under the plan.  The respondent union says that it is discriminatory not to allow two individuals married to one another, who are both teachers and members of the Plan, to be allowed to claim for the eyeglasses.  It submits that this is discrimination based upon marital status.

[72]    The arbitrator held that the employer’s policy “violates essential human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice.”  She further held that there was a breach of s.13 of the Human Rights Code.

[73]    On this appeal the union’s position is that “each teacher is individually entitled to the benefit as a right” and that this right was taken away on the basis of marital status.  Mr. Justice Braidwood rejected this submission.  He noted that “the contract simply does not provide for the benefit sought" and concluded that this case, whether analyzed under the Code or the Charter, must fail “as there was no benefit taken away.”

[74]    I am of the opinion that, even accepting for the sake of argument, that no benefit was “taken away”, the union still has an argument that there is inequality because a benefit is denied.  The union says that this denial on the basis of marital status results in either Charter-proscribed discrimination, Code-proscribed discrimination, or both.

[75]    The parties bargained for a collective agreement which won the approval of the bargaining unit and of the union membership.  All teachers, married or single, were equally represented.  The collective agreement makes no provision for coordinated benefits for married teachers.  This necessarily results in an obligation on teachers married to each other to choose to either enroll one spouse in the family status and enroll the second spouse as a dependant of the first, or to enroll each spouse as an individual member.  This, according to the union, “prohibits them from enrolment and participation in the benefit plans in the manner open to all other teachers” and is discrimination based upon marital status.

[76]    The Plan calls for maximized benefits and provides for the coordination of benefits with plans of other employers.  The Plan does not explicitly make such a provision for members of the Plan married to each other, nor does it explicitly prohibit it.

[77]    As pointed out by Mr. Justice Braidwood, the parties to this dispute and the arbitrator all agreed that the employer’s policy was not in conflict with the terms of the collective agreement.  The arbitrator noted that s.37 of the collective agreement, which limits claims for eyeglasses to “$150 per person for each two (2) year period”, is not contrary to the existing jurisprudence.  The arbitrator agreed that this simply “provides employees and their dependants with a defined level of compensation.”

[78]    The arbitrator held that “[w]ere it not for the Union’s Charter argument” she would have been inclined to follow jurisprudence upholding clauses that provide a defined level of compensation.  Section 15(1) of the Charter provides as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[79]    Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 held that the purpose of s.15(1) of the Charter is to prevent the violation of essential human dignity through the imposition of prejudices and stereotyping and to promote equal recognition of human beings.  The arbitrator in the case at bar held that “the policy applied in this situation does commit this violation.”

[80]    While the arbitrator based her reasoning primarily on the Charter, she concluded that the employer’s interpretation of the collective agreement is not consistent with either the Charter or with s.13 of the Human Rights Code.  She said it was on a “similar basis” to her finding a breach of the Charter that she found a breach of the Code.  The relevant section of the Code reads as follows:

13   (1)  A person must not . . .

(b)  discriminate against a person regarding employment or any term or condition of employment

because of . . . marital status, family status, . . .

The arbitrator explained her finding that there was unlawful discrimination as follows:

As in Calgary Roman Catholic Separate School District No. 1, supra, the School Board requires spouses to make a choice not required of any other employee.  The choice is slightly different from that in the above case, in that one can enroll as a single subscriber but not as a subscriber with dependents. This is based on the distinction that the individual is married to a co-employee who has coverage.  This, in my view, imposes a disadvantage or “does not provide a benefit” which others are entitled to.  It disentitles or takes away the rights of an individual to a benefit on the basis of a particular status i.e. marital status.  For the purposes of implementing this policy, the Employer considers the employee not in his or her own right, but as a spouse.  The policy does not affect the married group generally, but specifically affects those married to a particular individual, namely an employee of the Board.  Flowing from that is the attribution of stereotypical characteristics to this group.  Those were set out in Calgary Roman Catholic Separate School District No. 1, supra.

I agree with the comments in Calgary Roman Catholic Separate School District No. 1, supra, that this distinction is based on stereotypical attitudes, offensive to human dignity, rooted in assumptions about the breadwinner and the second spouse’s income.

[81]    It will be seen that the arbitrator in the instant case relied heavily upon the decision in Calgary Separate School.  She noted that the choice in the case at bar is “slightly different” than in the cited case.  The appellant says that the policy that was found to be discriminatory in Calgary Separate School “was remarkably different” from the policy in the case at bar.  The employer points out that the policy in that case prohibited co-employee spouses from each having individual subscriptions to benefits: one spouse was required to be the dependant of the other.

[82]    In the case at bar the policy does not prevent a married teacher from enrolling in the Plan in his or her own right.  The choice to be made by the married couple is simply how they wish to structure the benefit coverage, with the limitation being that there shall not be any internal coordination of benefits allowing a level higher than that provided for in the collective agreement.

[83]    The employer says that this denial of dual coverage equalizes coverage for every member, i.e. every teacher enjoys the same coverage as provided for in the collective agreement.  Marital status is an analogous ground to those articulated in s. 15 of the Charter, however employment status is not a ground articulated in the Charter.  The employer submits that any disparity that arises is a function of employment, not marriage.

[84]    That submission mirrors the reasoning in Toronto Police Services Board and Toronto Police Assn. (Re) (2002), 105 L.A.C. (4^th) 352.  There the arbitration concerned a claim by the Toronto Police Association (the “Association”) that benefit coverage was improperly denied by the employer where both spouses were employees.  The issue was referred to as “internal coordination”, as compared to “external coordination” where one spouse worked for a different employer.

[85]    The Association relied only upon the Human Rights Code to make its case.  However, the arbitrator said “the evolution of the jurisprudence under the Code and the Charter exhibits significant cross-fertilization of concepts and standards.”  The Association submitted that there was discrimination on the basis of marital or family status because the right to claim benefits turned on the identity of one’s spouse.  The arbitrator noted that the Calgary Separate School decision lent support to that view.  He disagreed with the “characterization” in that case but his ultimate distinguishing feature was that there “is no logical connection between the concept of marital status and whether one’s employer offers a benefit plan.”

[86]    The arbitrator agreed that the identity of one’s spouse is a relevant factor in considering the reach of the concept of marital status but said it “is one step further to import into marital status whether or not one’s spouse is employed.”  He rejected the submission, based upon the Calgary Separate School case, that “the nature of one’s employment is also incorporated in the concept of marital status.”  He found this to be an elaboration of the protection afforded from discrimination by the Code that was not appropriate.

[87]    The arbitrator said that there was an absence of benefit plans in many employment situations and added:

I note that, not in taking “notice” of that “fact” in reaching my decision, but merely to underscore the absence of firm evidentiary grounds for casting the umbrella of marital status so broadly.  There is no nexus between marital (or family) status and the presence or absence of a benefit plan offered by one’s employer.

. . .

What is evident is that the parties have fashioned their bargain in the content of certain priorities.  How to allocate moneys amongst competing legitimate interests is the essence of the negotiation process.  The agreed facts noted that, with respect to industry practice, it was not uncommon for employers and insurance schemes to provide for internal coordination of benefits.  In this instance, the collective agreement creates no right to internal coordination.  The denial of such internal coordination is a long-standing practice and feature of the plans.  Nor is the internal coordination of benefits dictated by the Code.

In summary, then, I have concluded that the collective agreement is ambiguous but, when interpreted with the aid of past practice, the parties’ intention is evident that internal coordination of benefits was not negotiated.  I accept that the collective agreement obligations are properly measured against the strictures of the Code prohibiting discrimination on various grounds, including marital status and family status.  The Code may be utilized as an aid in interpretation and, in the alternative, to require conformity of the collective agreement obligations with the human rights guaranteed by that statute.  Having undertaken that analysis, I am satisfied that the collective agreement, and the benefit plans, do not derogate from the rights protected by the Code.  Whether the denial of internal coordination of benefits is viewed from the perspective of direct discrimination proscribed in s.5(1) or as constructive discrimination in s.11, my finding is that same: there is no discrimination contrary to the Code.  The employer has complied with its obligations under the collective agreement.  The employer’s practice of denying internal coordination of benefits does not violate that agreement.

[88]    I am of the opinion that there is considerable merit in this articulation by the arbitrator and consequently weight in the appellant’s reliance upon it in the case at bar.

[89]    The employer further submits, based upon Law, that “it is not sufficient, in order to ground a s.15(1) claim, for a claimant simply to assert, without more, that his or her dignity has been adversely affected by a law.”  Rather, as per Iacobucci J., for the Court, in Law, at ¶61:

The appropriate perspective is subjective-objective.  Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purpose of s.15(1).

[90]    Iacobucci J. analyzed the term “human dignity” at ¶53.  He spoke of it as meaning self-respect and self-worth.  He said that human dignity is harmed when persons or groups are marginalized, ignored or devalued.  He said that human dignity within the meaning of the equality guarantee “concerns the manner in which a person legitimately feels when confronted with a particular law.”

[91]    In Law, Iacobucci J. stated that the question is whether the law treats the individual “unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law.”  He further said that the perspective is that of a reasonable and dispassionate person.  In Lovelace v. Ontario, [2000] 1 S.C.R. 950, Iacobucci J., for the Court, said that the question to be asked is whether “the law has the effect of demeaning a claimant’s human dignity” and that “the evaluation of the context must be examined from the reasonable perspective of the claimant.”

[92]    My search for an answer to this would again cite the Toronto Police case wherein the arbitrator referred to Peel Regional Police Services Board and Peel Regional Police Assn. (Re) (2001), 100 L.A.C. (4^th) 136.  In that case the arbitrator held that there was no negative connotation or stigma in being married to another member of the Peel Police Force and no stereotypical designation arising from the distinction in the treatment of employee spouses and said as follows:

The prohibition of retaining dual status as subscriber and dependent is applicable to each person in the group.  Although an inability to claim twice which essentially is double-dipping to the point of 100 per cent coverage, arises as a result of marriage to another member with whom they have a child in common, the distinction is not being made on a personal attribute.  There are no restrictions on who they marry, and by marrying another member of the force they are not viewed as a victim, or any less of a person.  There are no stereotypical connotations to marrying a member of the force and having children with that person.  They are not being singled out or treated in any arbitrary manner as a result of their personal situation.  Again, a single person and married person are each able under the meaning of the article and rules and regulations to have the same coverage, whether or not they have dependents and therefore if a member couple and their children are covered under one policy they will have the same coverage.

[93]    I find that those words are suitable to the situation in the case at bar.  Furthermore, as per Law, there is nothing more than a simple assertion of an adverse affect on human dignity and this is not sufficient.

[94]    In Corbiere v. Canada (Minister of Northern Affairs), [1999] S.C.R. 203, McLachlin and Bastarache JJ. commented upon the analysis required by Law.  While the first step in the analysis is to determine whether there is a distinction that denies an equal benefit, the second step is to determine whether the distinction is discriminatory.  Within that step it is further required to determine whether the discrimination is upon an enumerated or analogous ground, after which the inquiry proceeds to a determination of whether the distinction amounts to discrimination in the context of the particular case.

[95]    There was not, in my opinion, any marginalizing, ignoring or devaluing of persons or groups.  The married teachers are required to choose which is to be the claimant.  This could not, to any reasonable person or standard, be a devaluation of self-respect or self-worth.  The couple, if being reasonable and dispassionate, could not allege their human dignity was demeaned by this requirement.

[96]    Applying the Law test, I am of the opinion that while they could cite a distinction, they cannot “legitimately” ascribe it to marital discrimination nor legitimately assert that they feel demeaned.  The final step in the analysis, as articulated in Corbiere, is to ask: ... does the distinction undermine the presumption upon which the guarantee of equality is based – that each individual is deemed to be of equal worth regardless of the group to which he or she belongs?  My answer to that is “no”.

[97]    I would allow the appeal.

“The Honourable Mr. Justice Thackray”