E. A Divided Court: The 1995 Trilogy

• Author: Robert J. Sharpe - Kent Roach
• Profession: Court of Appeal for Ontario - Faculty of Law, University of Toronto
• Pages: 340-344

Page 340

Despite the unanimity of the Supreme Court in Andrews with respect to section 15 claims, three equality decisions, issued at the same time in the spring of 1995, revealed a Court divided on the proper approach to section 15. Egan²⁵dealt with a challenge to the spousal allowance under the Old Age Security Act, which provided a benefit for the spouse of a pensioner who was between sixty and sixty-five when the couple’s combined income fell below a certain level. "Spouse" was defined as a person of the opposite sex to whom the pensioner was married or with whom he or she lived in a common-law relationship as husband and wife. Egan was a gay man, whose partner, Norris, applied for the spousal benefit and was turned down because he was not a spouse as defined by the Act. He argued that this amounted to discrimination on the basis of sexual orientation. Miron²⁶involved a challenge to a provision of the Ontario Insurance Act, which gave married spouses involved in accidents against uninsured motorists benefits for loss of income or damages but did not give the same benefit to common law spouses. Miron, injured in a car accident by an uninsured motorist, sought benefits under his common law spouse’s insurance policy, arguing that the law was discriminatory on the basis of marital status and not justified under section 1 of the Charter. Finally, Thibaudeau²⁷involved a challenge to a provision of the Income Tax Act, which provided that child-support payments are taxable to the recipient and deductible to the payor. It was argued that this scheme disproportionately burdened women, who were much more likely to be the custodial parents while the payors were more likely to be male.

The decisions in these cases reveal three distinct approaches to section 15 of the Charter. More particularly, the difference focused on

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when a legislative distinction would be viewed as discriminatory, that is, the second part of the test from Andrews. Four judges (La Forest, Gonthier, and Major JJ, and Lamer CJC) used what can be called an "internal-relevance" approach that builds on earlier cases such as Conway²⁸and Hess.²⁹Four others (MCLACHLIN, Cory, Iacobucci, and Sopinka JJ) continued to use the Andrews approach, while L’Heureux-Dubé J adopted her own distinctive approach.

The judges adopting the internal-relevance approach stated that there is no discrimination within section 15 if the distinction drawn between two groups by legislation is relevant "to the functional values underlying the legislation,"³⁰even though the distinction is made on the basis of an enumerated or analogous ground. Therefore, according to Gonthier J in Miron, one must decide whether a distinction is relevant to "some objective physical or biological reality, or fundamental value."³¹Another requirement was that the "functional values" of the legislation could not be discriminatory.³²In both Miron and Egan, the judges adopting the internal-relevance approach held that the legislative scheme was designed to support the institution of marriage, an institution of fundamental and longstanding importance in Canadian society. In Miron, Gonthier J concluded that the legislature had no obligation to confer all the benefits of marriage on common-law couples. Indeed, to do so "would interfere directly with the individual’s freedom to voluntarily choose whether to enter the institution of marriage by imposing consequences on cohabitation without any regard to the will of the parties."³³Similarly, in Egan, marriage was described by La Forest J as "by nature heterosexual" and, given its societal importance...