Halpern et al. v. Canada (Attorney General), (2003) 169 O.A.C. 172 (CA)

• Judge: McMurtry, C.J.O.
• Court: Court of Appeal (Ontario)
• Case Date: March 03, 2003
• Jurisdiction: Ontario
• Citations: (2003), 169 O.A.C. 172 (CA)

Halpern v. Can. (A.G.) (2003), 169 O.A.C. 172 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. MR.026

Hedy Halpern et al. (applicant/respondent) v. Attorney General of Canada (appellant)

(M29541; C39172; C39174)

Indexed As: Halpern et al. v. Canada (Attorney General)

Ontario Court of Appeal

McMurtry, C.J.O.

March 5, 2003.

Summary:

Eight same sex couples applied for civil marriage licences from the Clerk of the City of Toronto. The clerk neither granted nor did she expressly refuse to issue the licenses, but instead indicated that the applications would be "held in abeyance" while directions from the court were sought. These couples commenced judicial review proceedings. Subsequently, two same sex couples were married in the Metropolitan Community Church of Toronto, following the publication of banns of marriage. However, the Registrar General of Ontario would not register the marriages. The church commenced a second judicial review application. Essentially, the orders sought in both applications would require the Clerk of the City of Toronto to grant marriage licences to gay, lesbian and bi-sexual couples and the Registrar General of Ontario to register such marriages solemnized in a church under publication of banns of marriage. The couples and the church argued that the common law rule that defined marriage as being the union of "one man and one woman to the exclusion of all others" was contrary to the Charter.

The Ontario Divisional Court, in a decision reported at 163 O.A.C. 276, held: (a) that there was no statutory impediment to the issuance of marriage licences to same-sex couples who otherwise met the requisite criteria, or to the registration of their church marriages pursuant to the publication of banns of marriage; (b) that there was a common law rule, as the common law presently stood, which was an impediment to same-sex marriages; (c) that the existing common law rule offended the equality rights of gays and lesbians on the basis of sex and sexual orientation contrary to s. 15(1) of the Charter; (d) that the infringement of s. 15(1) could not be justified under s. 1 of the Charter; (e) that the existing common law rule did not infringe s. 2(a), s. 2(b) or s. 7 of the Charter; and (f) that the argument to the effect that any change in the word "marriage", as found in the division of powers in s. 91 and s. 92 of the Constitution Act, 1867, required a constitutional amendment, could not succeed. The court considered the appropriate remedy. The Attorney General of Canada appealed. The Canadian Coalition of Liberal Rabbis for Same-Sex Marriage moved to intervene on the appeal as a friend of the court.

The Ontario Court of Appeal, per McMurtry, C.J.O., allowed the motion.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - At issue in an appeal was whether same-sex couples were entitled to marry under Canadian law - The Canadian Coalition of Liberal Rabbis for Same-Sex Marriage (the Coalition) moved to intervene on the appeal as a friend of the court - The Ontario Court of Appeal, per McMurtry, C.J.O., allowed the motion - The issue on appeal was one of significant public interest and importance - There were a number of other intervenors - The Coalition's members had been actively involved in the discussion of the issues at the core of the appeal - In the circumstances, the fact that the actual Coalition was only recently formed and was unincorporated should not be a bar to its motion - The Coalition had a unique perspective which would enable it to make a useful contribution to the argument on appeal - McMurtry, C.J.O., imposed conditions on the Coalition.

Practice - Topic 687

Parties - Adding or substituting parties - Intervenors - Amicus curiae - [See Practice - Topic 685 ].

Cases Noticed:

Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1990), 74 O.R.(2d) 164 (C.A.), refd to. [para. 4].

Layland v. Ontario (Minister of Consumer and Commercial Relations) (1994), 47 A.C.W.S.(3d) 68 (Ont. C.A.), refd to. [para. 7].

Louie v. Lastman (2001), 152 O.A.C. 341; 208 D.L.R.(4th) 380 (C.A.), refd to. [para. 8].

Counsel:

Ed Morgan, for the moving parties, Rabbi Irwin Zeplowitz and Canadian Coalition of Liberal Rabbis for Same-Sex Marriage;

Gail Sinclair, for the appellant, the Attorney General of Canada;

Martha McCarthy, for the applicant couples/respondents;

Victoria Paris, for the respondent/cross-appellant, the Metropolitan Community Church of Toronto;

Bradley Miller, for the intervenor, the Interfaith Coalition on Marriage and Family;

Linda Chen, for the intervenor, Egale Canada Inc.

This motion was heard in chambers on March 3, 2003, by McMurtry, C.J.O., of the Ontario Court of Appeal, who delivered the following decision on March 5, 2003.