Boutilier and Treasury Board (Natural Resources)

166-2-26199

  • Before: Y. Tarte
  • Appearances: Y. Michaud, for the Grievor; H. Newman, for the Employer
  • Decision Rendered: 1997-06-04

An application for judicial review before the Federal Court was upheld (Court file: T-1450-97). An appeal before the Federal Court of Appeal has been dismissed (Court file: A-724-98). An application for leave to appeal before the Supreme Court of Canada has been dismissed. (S.C.C. 27690)

Subject terms:

Marriage leave - Discretionary leave - No discrimination - Sexual orientation - Same sex relationship - employer denied grievor's request for marriage leave or, in the alternative, discretionary leave in relation to a commitment ceremony between himself and his same-sex partner - grievor was, however, allowed to take annual leave to cover the period in question - the No discrimination provision of the collective agreement did not refer to sexual orientation - evidence established that grievor and his partner participated in a commitment ceremony presided over by a Minister of a Christian Church - also prior to the ceremony grievor and his partner made mutual wills and executed powers of attorney in relation to one another - grievor and his partner invited friends and relatives to participate in the celebration of their union - employer alleged that grievor did not qualify for marriage leave as a same-sex couple cannot enter into a legal marriage - adjudicator was impressed by the level of commitment between the grievor and his partner which was as high as that found in most heterosexual marriages - also he reviewed the jurisprudence which established that discrimination on the grounds of sexual orientation is prohibited by section 15 of the Canadian Charter of Rights and Freedoms as well as the provisions of the Canadian Human Rights Act - the jurisprudence also established the primacy of human rights legislation - although the grievor could not legally marry his same-sex partner, he was nonetheless entitled to marriage leave benefits in recognition of the commitment ceremony.

Grievance allowed.

Cases cited: Egan et al. v. Canada (1995), 124 D.L.R. (4th) 609 (S.C.C.); Layland v. Ontario (Minister of Consumer and Commercial Relations) (1995),104 D.LR. (4th) 214 (Ont. Div Ct); Neilsen v. Canada (Human Rights Commission) 95 CLLC 230-021 (F.C.T.D.); Lorenzen (166-2-23963 and 24000); Yarrow (166-2-25034).