Nichols v. M.J. et al., (2009) 339 Sask.R. 35 (QB)

• Judge: McMurtry, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 17, 2009
• Jurisdiction: Saskatchewan
• Citations: (2009), 339 Sask.R. 35 (QB);2009 SKQB 299

Nichols v. M.J. (2009), 339 Sask.R. 35 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JL.093

Orville Nichols (appellant) v. M.J. (respondent/complainant) and Saskatchewan Human Rights Commission (respondent)

(2008 Q.B.G. 875; 2009 SKQB 299)

Indexed As: Nichols v. M.J. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

McMurtry, J.

July 17, 2009.

Summary:

The complainant (M.J.) filed a complaint under the Saskatchewan Human Rights Code, alleging that a marriage commissioner discriminated against the complainant by refusing to perform a marriage between M.J. and B.R., because of their sexual orientation. The marriage commissioner claimed that he could not perform the marriage because of his religious beliefs. A human rights tribunal agreed that the marriage commissioner discriminated against M.J. and ordered that he pay compensation of $2,500. The marriage commissioner appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 2

Interpretation of human rights legislation - The Saskatchewan Court of Queen's Bench opined that the Saskatchewan Human Rights Code should not be interpreted to add defences that the Legislature chose not to include such as a defence based upon reasonable and bona fide justification - See paragraphs 30 to 33.

Civil Rights - Topic 397

Freedom of conscience and religion - Infringement of - Marriage restrictions (incl. same-sex marriages) - M.J. complained under the Saskatchewan Human Rights Code that a marriage commissioner (Nichols) discriminated against the complainant by refusing to perform a marriage between M.J. and B.R. because of their sexual orientation - Nichols claimed that he could not perform the marriage because of his religious beliefs - A human rights tribunal found that a marriage commissioner was properly characterized as government within the meaning of s. 32 of the Charter - As a public official, exercising a statutory duty, Nichols was required to provide his services without discrimination on any of the grounds prohibited by s. 15 of the Charter or s. 12 of the Human Rights Code, including sexual orientation - The tribunal found that there was nothing in the Code or in the Marriage Act that provided the commissioner with a defence of bona fide justification based on his religious beliefs - Further, as government, the commissioner was not entitled to accommodation of his religious beliefs by M.J. - The tribunal, therefore, allowed the complaint - The marriage commissioner appealed - The Saskatchewan Court of Queen's Bench dismissed the appeal, holding that the tribunal arrived at the correct decision - See paragraphs 1 to 57.

Civil Rights - Topic 397

Freedom of conscience and religion - Infringement of - Marriage restrictions (incl. same-sex marriages) - The complainant (M.J.) filed a complaint under the Saskatchewan Human Rights Code, alleging that a marriage commissioner (Nichols) discriminated against the complainant by refusing to perform a marriage between M.J. and B.R. because of their sexual orientation - Nichols claimed that he could not perform the marriage because of his religious beliefs - A human rights tribunal allowed the complaint - Nichols appealed, arguing that if a bona fide justification defence could not be read into the Saskatchewan Human Rights Code, his right to freedom of religion under s. 2(a) of the Charter mandated consideration of whether his actions were reasonably justified - The Saskatchewan Court of Queen's Bench dismissed the appeal - The court opined that when a person acted as a marriage commissioner, Nichol's freedom of religion ought to be limited to exclude discrimination on the basis of sexual orientation - The court agreed with the tribunal that Nichols, in his capacity as a marriage commissioner acting as government, was not entitled to discriminate, regardless of his private beliefs - Nichols was wrong to believe he could follow a private policy, not authorized by the Marriage Act, which had the effect of discriminating against M.J. - See paragraphs 58 to 73.

Civil Rights - Topic 953

Discrimination - Sexual orientation - Homosexuals (incl. same-sex couples) - [See both Civil Rights - Topic 397 ].

Civil Rights - Topic 7004

Federal, provincial or territorial legislation - Application of legislation - [See first Civil Rights - Topic 397 ].

Civil Rights - Topic 7171

Federal, provincial or territorial legislation - Application - Exceptions - Reasonable and justifiable contravention - [See first Civil Rights - Topic 397 ].

Civil Rights - Topic 8320.12

Canadian Charter of Rights and Freedoms - General - Application - Persons solemnizing civil marriages - The Saskatchewan Court of Queen's Bench held that a marriage commissioner solemnizing civil marriages pursuant to the provisions of the Marriage Act was implementing a specific government scheme as discussed by the Supreme Court of Canada in Eldridge v. British Columbia (1997) - As such, in "respect of that act", i.e., the solemnization of civil marriage, a commissioner acted as government - See paragraph 52.

Cases Noticed:

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 3].

Owens v. Human Rights Commission (Sask.) et al. (2006), 279 Sask.R. 161; 372 W.A.C. 161; 267 D.L.R.(4th) 733; 2006 SKCA 41, refd to. [para. 5].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 18].

Moore v. British Columbia (Minister of Social Services), [1992] B.C.C.H.R.D. No. 15 (H.R.T.), refd to. [para. 23].

Smith v. Knights of Columbus, 2005 BCHRT 544, refd to. [para. 23].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 30].

Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.), [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 31].

Human Rights Commission (Ont.) v. Brockie - see Human Rights Commission (Ont.) v. Brillinger et al.

Human Rights Commission (Ont.) v. Brillinger et al. (2002), 161 O.A.C. 324; 222 D.L.R.(4th) 174 (Div. Ct.), refd to. [para. 32].

Potash Corp. of Saskatchewan Inc. v. Scott et al., [2008] 2 S.C.R. 604; 377 N.R. 91; 332 N.B.R.(2d) 341; 852 A.P.R. 341, refd to. [para. 33].

Meiorin - see Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union.

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 40].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al. (2009), 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 2009 SCC 31, refd to. [para. 46].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1, refd to. [para. 47].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 48].

Freitag v. Penetanguishene (Town) (1999), 125 O.A.C. 139; 47 O.R.(3d) 301 (C.A.), refd to. [para. 51].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59, refd to. [para. 59].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 62].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 67].

Adler et al. v. Ontario et al., [1996] 3 S.C.R. 609; 204 N.R. 81; 95 O.A.C. 1, refd to. [para. 69].

N.W. et al. v. Canada (Attorney General) et al. (2004), 255 Sask.R. 298; 2004 SKQB 434 (Fam. Div.), refd to. [para. 75].

Halpern et al. v. Canada (Attorney General) et al. (2003), 172 O.A.C. 276; 65 O.R.(3d) 161 (C.A.), refd to. [para. 75].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 61]; sect. 2(a) [para. 58]; sect. 15(1), sect. 32(1) [para. 24].

Marriage Act, S.S. 1995, c. M-4.1, sect. 2, sect. 3 [para. 19]; sect. 28, sect. 29, sect. 30, sect. 31 [para. 20].

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, sect. 12 [para. 58].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992) (Looseleaf Supp.), vol. 1, pp. 34-8.3, 34-9 [para. 42].

Counsel:

Michael T. Megaw and Scott E. Hopley, for the appellant;

Janice E. Gingell, for the Saskatchewan Human Rights Commission.

This appeal was heard by McMurtry, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on July 17, 2009.