View cases - Stewart McKelvey

46[214] CBSA argues for a more restrictive interpretation claiming that the law on this point isunsettled.[215] CBSA proposes that protection is not provided with respect to family obligations at all, asonly distinctions based on one’s actual or ‘absolute status of being in a family relationship ismeant with the inclusion of ‘family status’ in the Act. CBSA denies that protection extends to theactivities or responsibilities relating to one’s status as a parent.[216] In B. v. Ontario the Supreme Court of Canada spoke to the term “status” as implyingmembership in a class or group encompassing both the absolute definition and the relativedefinition requiring the existence or absence of a relationship with another person. The decision,as stated, also spoke to an arbitrary disadvantage suffered, but did not set out a comprehensivedefinition of “family status” within the meaning of the Ontario Human Rights Code, which isprovincial legislation akin to the federal Act. At paragraph 57 of the decision, the Court did speakof a person experiencing differential treatment on the basis of “an irrelevant personalcharacteristic” that is enumerated.2010 CHRT 20 (CanLII)[217] CBSA urges this Tribunal not to follow earlier CHRT decisions in Brown, Wolden andHoyt. CBSA suggests that this Tribunal adopt a purposive interpretation that does not “overshootthe actual purpose of the right or freedom” as stated in R. v. Big M Drug Mart,[1985] 1 S.C.R. 295, para. 117.[218] CBSA warns against the perils of an approach that presumes any conflict between workand family obligations amounts to discrimination on the ground of ‘family status’. In this regard,CBSA cites the case of McGill University Health Centre (Montreal General Hospital) v. Syndicatdes employes de Hopital General de Montreal, [2007] S.C.J. No. 4, at para. 49, perAbella J. (McGill), to assert that ‘family status’ should not be interpreted as favouring andpromoting particular familial arrangements as not every situation cannot be afforded theprotection, but only those that are truly discriminatory.