The Estate of DesirÉe A. Dichmont Applicant And: Her Majesty the Queen in Right of Newfoundland v. Labrador as represented by the minister of government services and lands, 2021 NLSC 9

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Dichmont Estate v. Newfoundland and Labrador (Government Services and Lands) , 2021 NLSC 9 Date : January 21, 202 1 Docket : 201701G4144 Between: The Estate of DesirÉe A.

Dichmont Applicant And: Her Majesty the Queen in Right of Newfoundland and Labrador as represented by the minister of government services and lands First Respondent And: Newfoundland and Labrador Human Rights Commission Second Respondent And: Justice Centre for Constitutional Freedoms Intervenor Before: Justice Vikas Khaladkar On Appeal From: A Decision of a Board of Inquiry convened pursuant to the Human Rights Act, 2010 , dated the 10th of May, 2017. Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: March 4-5, 2019

Summary:

Ms. Dichmont was a marriage commissioner. As a result of this Court’s decision in Pottle v. Canada (Attorney General) , in which civil marriages between same-sex couples were recognized and affirmed, the Province amended the Solemnization of Marriage Act , to allow for same-sex marriages and required marriage commissioners, appointed under

section 10 of the Solemnization of Marriage Act , to resign their appointments if they were unable to provide solemnization services to same-sex couples. Ms. Dichmont, as a result of her strongly held religious belief that homosexual unions were sinful, sent in a letter resigning her appointment as a marriage commissioner. Some time later she complained to the Newfoundland and Labrador Human Rights Commission that she had been discriminated against on account of her religious belief.

The Newfoundland and Labrador Human Rights Commission initially dismissed the complaint on the basis that there was insufficient evidence to proceed to a Board of Inquiry. On judicial review Faour, J. found the dismissal of the complaint improper and ordered that the matter be referred to a Board of Inquiry. A Board of Inquiry was convened under the Human Rights Act, 2010 . Before the Board of Inquiry released its decision, Ms. Dichmont passed away. The Board of Inquiry held that the Province was justified in terminating the appointment of Ms. Dichmont.

It further ruled that the Province was not required to provide any accommodation to Ms. Dichmont on account of her religious belief. The Estate appealed the decision of the Board of Inquiry. The Justice Centre for Constitutional Freedoms applied for intervenor status. McGrath, J., allowed the application on certain conditions. Subsequent to submissions of counsel at the appeal hearing, the Court asked that counsel file additional briefs once the Supreme Court of Canada’s anticipated rulings concerning Dunsmuir v. New Brunswick were released.

Then the COVID-19 pandemic intervened and the filing of additional briefs was further delayed. Counsel filed briefs that outlined the applicable standards to be applied subsequent to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov . Since, in this case, there is a statutory appeal mechanism to this Court, the applicable standards are appellate standards of review. For questions of law, the appropriate standard of review is correctness. For questions of mixed fact and law or questions of fact, the appropriate standard of review is palpable and overriding error.

The Applicant and both Respondents agree that the scope of state neutrality is a question of law of central importance to the legal system. As such, correctness is the appropriate standard of review for that issue. The decision of the Board of Inquiry that Ms. Dichmont was obliged to solemnize marriages for same-sex marriage was correct. Furthermore, there was no palpable or overriding error in its decision that the Province was not required to accommodate Ms. Dichmont on account of her religious belief. Appearances: Philip Fourie & Deina Warren Appearing on behalf of the Applicant David G. Rodgers & Mark P.

Sheppard Appearing on behalf of the First Respondent

Donna L. Strong Appearing on behalf of the Second Respondent Marty Moore Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Pottle v. Canada (Attorney General), [2004] N.J. No. 470; Dichmont v. Newfoundland and Labrador, 2015NLTD(G) 14; Dichmont Estate v. Newfoundland and Labrador (Government Services and Lands), 2019 NLSC 25; Canada (Minister ofCitizenship and Immigration) v. Vavilov, 2019 SCC 65; Borowski v. Canada (Attorney General), (SCC), [1989] 1S.C.R. 342; Powers v. Mitchell, 2019 NLCA 16; Dunsmuir v.

New Brunswick, 2008 SCC 9; British Columbia (Public Service EmployeeRelations Commission) v. B.C.G.E.U., (SCC), [1999] 3 S.C.R. 3; Reference re Same-Sex Marriage, 2004 SCC 79;Housen v. Nikolaisen, 2002 SCC 33; J. (M.) v. Nichols, 2009 SKQB 299; Reference re Constitutional Act, 1978 (Saskatchewan), 2011SKCA 3; Kisilowsky v. Her Majesty the Queen in Right of the Province of Manitoba, 2018 MBCA 10 STATUTES CONSIDERED: Solemnization of Marriage Act, R.S.N.L. 1990, c. S-19; Human Rights Code, R.S.N.L. 1990, c. H-14, asrep. by Human Rights Act, 2010, S.N.L. 2010, c. H-13.1; Human Rights Act, 2010, S.N.L. 2010, c.

H-13.1; Canadian Charter of Rightsand Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 TEXTS CONSIDERED: Shelagh Day and Gwen Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1996), 75 Can. Bar Rev.433 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] Desirée A. Dichmont was a marriage commissioner appointed by the Province of Newfoundland and Labrador (“Province”) tosolemnize marriages pursuant to the Solemnization of Marriage Act, R.S.N.L. 1990 c. S-19. She was a Second World War Veteran, apilot and had performed missionary work with leper colonies in Africa.

She had been a teacher in Canada and, after her retirement,obtained a modest additional income from her part time work as a marriage commissioner. Her religious belief, deeply held, precludedher from solemnizing the marriages of same-sex couples. [2] On December 21, 2004 this Court, in Pottle v. Canada (Attorney General), [2004] N.J. No. 470, declared that the commonlaw definition of marriage was the voluntary union for life of two persons. The effect of the decision was to grant same-sex couples theability to marry.

Two days later the Province sent a letter to all provincially appointed marriage commissioners, including Ms. Dichmont,advising that they must either provide services to same-sex couples or resign their appointment. [3] Ms. Dichmont submitted her letter of resignation on January 14, 2005, explaining that she was unable to marry same-sexcouples based upon her religious belief. She then filed a complaint with the Newfoundland and Labrador Human Rights Commission(“Commission”) claiming discrimination on the basis of religious creed, contrary to section 9(1) of the Human Rights Code, R.S.N.L.1990, c.

H-14, as rep. by the Human Rights Act, 2010, S.N.L. 2010, c. H-13.1 (“Act”). [4] The Commission dismissed Ms. Dichmont’s claim on the basis of insufficient evidence, but was ordered by Faour, J. of thisCourt to refer the complaint to a Board of Inquiry. Faour, J.’s decision is reported as Dichmont v. Newfoundland and Labrador, 2015NLTD(G) 14, and is dated February 9, 2015. [5] Shortly thereafter Ms. Dichmont passed away. The Estate of Desirée A. Dichmont (“Estate”) carried on with the action.

TheJustice Centre for Constitutional Freedoms applied to intervene and was granted leave by McGrath, J. of this Court in a decision reportedas Dichmont Estate v. Newfoundland and Labrador (Government Services and Lands), 2019 NLSC 25. [6] The parties made submissions on March 4-5, 2019. At the time it was expected that the Supreme Court of Canada would,during the summer, be releasing its decision in a trilogy of cases that was expected to provide additional guidance concerning the

standard of review in judicial review cases. Counsel were asked, when those decisions became available, to file additional briefsregarding the standard of review. [7] The Supreme Court of Canada did not release its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov,2019 SCC 65 and two sister cases until December 19, 2019. Thereafter filing dates were set for the filing of supplementary briefs in thismatter, but the COVID-19 pandemic intervened.

Only after the Court’s resumption of its normal activities was it possible to schedulenew filing dates. [8] The parties have now filed all of the required material. I have determined that the Board of Inquiry did not err in arriving at itsdecision. The following are my reasons for so finding. issues [9] The issues to be determined in this matter are as follows: 1. Since Ms. Dichmont has passed away, does the Estate have standing to carry on with the law suit? 2. Since Ms. Dichmont has passed away, is this matter moot? 3. What is the appropriate standard to be applied to this judicial review? 4.

Did the Board of Inquiry err in holding that marriage commissioners, as representatives of Government, were bound to provide asolemnization service to any who applied regardless of sexual orientation? 5. Did the Board of Inquiry err in holding that the Government had no duty to accommodate Ms. Dichmont? standing [10] It is true that Ms. Dichmont is deceased. But she was alive when she made her complaint. The Estate is simply carrying on witha complaint that was already commenced.

The Estate is not making a representative complaint, it is carrying on with a complaint alreadyinstituted in search of a remedy. [11] Ms. Dichmont claimed that as a result of the Newfoundland and Labrador Government’s (in her view improper) actions, shesuffered pecuniary loss – in particular a loss of income of approximately $1,200 per year over a span of 10 years. While she may havealso suffered psychological anguish as a result of those actions, the ability to recover those damages ceased upon her death.

Recompensefor personal injuries such as psychological harm is an in personam remedy that can only be awarded so long as the person suffering theharm remains alive. [12] Ms. Dichmont’s pecuniary losses would be recoverable if her Estate can establish liability. I find that the Estate has the right tocontinue with the deceased’s complaint, and associated Court proceedings, to its logical conclusion. mootness [13] As a result of the Estate carrying on the Application, if a decision is awarded in the Estate’s favour, it will be able to sustain aclaim for loss of income against the Respondents.

As such, the Application is not moot. [14] To use the words of Sopinka, J. in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 atparagraph 16: 16. … it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have becomeacademic. … [15] It is true that it will be impossible to reinstate Ms. Dichmont as a marriage commissioner and to provide her withaccommodation. To that extent the Application lacks a tangible and concrete dispute. However, Ms.

Dichmont, and the Estate,potentially suffered a loss as a result of the actions of the First Respondent. If I decide that the Board of Inquiry erred in making itsdecision then, presumably, the Estate will be entitled to compensation. On that basis the matter is not moot. [16] The Newfoundland and Labrador Court of Appeal had occasion to deal with the issue of mootness in Powers v. Mitchell, 2019NLCA 16. Applying the dicta in that case to the facts of this case I would make the following observations. [17] Although Ms. Dichmont is deceased, the Estate may have a claim in damages.

Therefore, there continues to be a livecontroversy. In addition, there may be persons who are disqualified, on the basis of their religious belief, from being appointed asmarriage commissioners. The ruling in this case will provide some guidance to both Government and potential marriage commissionersas to what might, or might not, be expected of them in carrying out their duties. [18] The parties, that is the Estate and the Government, remain adversaries because there remains a live issue between them. Inaddition, we have intervention from the Justice Centre for Constitutional Freedoms.

This satisfies, to my mind, the requirement that the

issues are well and fully argued by parties who have a stake in the outcome. All parties are ably represented by counsel and have forcefully put forward their arguments for, and against, this Court’s intervention by way of judicial review. [ 19 ] Judicial economy, in my opinion, will be enhanced by providing a ruling in this case since, hopefully, it will provide a resolution to the parties’ dispute. In addition, it will give guidance to potential future parties as to their rights.

The resolution of this dispute is in the public interest. [ 20 ] Since there is a live dispute between the parties I do not believe that I am intruding into the role of the legislative branch of government. The Legislature has, through

section 9 of the Act prohibited discrimination on the grounds, inter alia , of religious creed, religion and sexual orientation. Where, as in this case, the prohibited grounds of discrimination conflict with one another it is appropriate that the judicial branch of government intervene to give some guidance and, hopefully, resolve the impasse. Furthermore, the Applicant is requesting the Court to determine the correctness of the Board of Inquiry’s decision and, if it was incorrect, to award damages. These kinds of questions are peculiarly within the usual sphere and ambit of the Courts.

The legislative branch has, ultimately, the ability to amend its legislation in such manner as it sees fit, consonant with the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“ Charter ”), if it wishes to implement a policy that is contrary to the judicial determination in cases such as this one. [ 21 ] Even if the case were moot, I would elect to address the issue. McGrath, J., in the Dichmont Estate v. Newfoundland and Labrador (Government Services and Lands) decision, held that there was sufficient public interest in this matter to allow for representations to be made by the Justice Centre for Constitutional Freedoms. The issues raised in this case are important ones insofar as there is a conflict between Ms.

Dichmont’s right to religious freedom, on the one hand, and her duty, as a marriage commissioner, to provide solemnization services, without discrimination, to same-sex couples, on the other. [ 22 ] McGrath, J. at paragraph 51 of her decision said the following: 51. … the analysis carried out by the adjudicator could also apply to numerous other duties government may impose on civil servants.

It is not difficult to imagine other scenarios where a public servant may be asked to carry out a duty as a condition of employment that offends one of that public servant’s Charter rights, be it the right of freedom of expression, association, religion or otherwise, but where the purpose of that condition of employment is to ensure that government does not breach the Charter rights of a member of the public. [ 23 ] For all these reasons, I find that the issue in this case is one of public importance and its resolution is in the public interest. standard of review [ 24 ] A trilogy of decisions was expected from the Supreme Court of Canada dealing with re-examination of the law set out in Dunsmuir v.

New Brunswick , 2008 SCC 9 . I asked counsel to provide me with a brief concerning the standard to be applied on this appeal. I am grateful for their assistance. [ 25 ] The appeal in this case is a statutory appeal from the decision of the Board of Inquiry.

As such, the appellate standard of review is correctness for questions of law, and palpable and overriding error for questions of mixed fact and law. [ 26 ] The parties agreed that the scope of state neutrality is a question of central importance to the legal system and, as such, must be reviewed on a correctness standard. [ 27 ] Counsel for the Respondents pointed out, and I agree, that the issue of whether or not the Government discharged its burden to show a good faith occupational requirement and demonstrate its attempts to accommodate to the point of undue hardship is not a constitutional question, or one of central importance to the legal system, or one of jurisdiction.

It is a question of mixed fact and law to which the appellate standard of review of palpable and overriding error applies. [ 28 ] The Intervenor filed a brief that dealt with the burden of proof in Charter challenges to administrative decisions. It was not what I had asked for and, in fairness to the other parties – who have not had an opportunity to respond, and will not be getting one, I have chosen to disregard the brief. The comments made by the Intervenor in the supplementary brief ought to have been made in the first instance.

MUST MARRIAGE COMMISSIONERS BE NEUTRAL? [ 29 ] Madam Justice Beverley McLachlin, as she then was, has been quoted as follows: Diverse societies face two choices. They can choose the route of no accommodation where those with power set the agenda and the majority rules prevail. The result is the exclusion of some people from useful endeavours on irrelevant, stereotypical grounds and the denial of individual dignity and worth…. The other route is the route of reasonable accommodation. It starts from the premise of each individual’s worth and dignity and entitlement to equal treatment and benefit.

It operates by requiring that the powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends. [1] [ 30 ] In 2004, in response to a decision of this Court in Pottle v. Canada (Attorney General) , the Province of Newfoundland and Labrador amended its marriage laws to sanction same-sex marriage. This was an accommodation for same-sex couples who, theretofore, had been denied the right to legitimize their unions in the eyes of the law.

Although the Charter had been brought into force in 1982, it took 22 years before same-sex couples could legally enter the state of civil matrimony in the Province. In some religions and religious creeds it is still not possible to do so.

[ 31 ] The response of the Government was a recognition of the individual dignity and worth of same-sex couples. The response reasonably accommodated them in a sphere of activity – marital relationships – that had been denied to them because of their sexual preference. [ 32 ]

Section 15 of the Charter states: 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [ 33 ] In an

article published by Shelagh Day and Gwen Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1996), 75 Can. Bar Rev. 433, the authors defined “accommodation” at page 435 as follows: Accommodation is the adjustment of a rule, practice, condition or requirement to take into account the specific needs of an individual or group. Accommodation can take many forms, including altering work schedules, changing job duties, altering a building or worksite to make it accessible, providing interpreters or technical aides, or varying tests or eligibility requirements. [ 34 ] The Applicant argues that Ms.

Dichmont should have been accommodated as a result of the change in law in favour of same- sex couples because, according to her religious belief, same-sex relationships and marriages were sinful. The Applicant argued that Ms. Dichmont could have been accommodated had the Government instituted a single point of entry system which required someone to scrutinize marriage applications and, then, provide a list of marriage commissioners that would be agreeable to performing the required ceremony.

Under that scenario the Government would maintain a list of marriage commissioners who would perform same-sex ceremonies and another list of marriage commissioners who would perform opposite-sex ceremonies only. [ 35 ] The Board of Inquiry in this matter held that Ms. Dichmont was a public official, carrying out a public duty prescribed by law. As such, in its opinion, Ms. Dichmont had no right to insist that she be allowed to circumvent that law in the performance of her public duty.

This is a question of law and the applicable standard of review is correctness. [ 36 ] The Applicant argues that the concept of state neutrality does not require individual neutrality as a precondition of participation in civic life. I agree that the individual is not required to be neutral. However, in the performance of the state sanctioned activity, in this case the solemnization of marriages, I believe that the individual must appear neutral.

The individual is, of course, free to think whatever s/he wishes – but that does not translate to the freedom to act in accordance with the individual’s convictions. [ 37 ] If approached for services as a marriage commissioner by a same-sex couple, Ms. Dichmont would not have the luxury of refusing the couple her services because of her strongly held religious belief. If she did so, she would be shedding her mantle of neutrality and discriminating against the same-sex couple on a prohibited ground under the Province’s human rights legislation. She, in her official capacity, is not allowed to discriminate.

The Human Rights Code at

section 6 , being the legislation in force at the time that of alleged violation of the Applicant’s human rights, stated as follows: 6 .

(1) A person shall not deny to or discriminate against a person or class of persons with respect to accommodation, services, facilities or goods to which members of the public customarily have access or which are customarily offered to the public because of the race, religion, religious creed, political opinion, colour or ethnic, national or social origin, sex, sexual orientation, marital status, family status, age, physical disability or mental disability of that person or class of persons. [ 38 ] In December, 2004 the Province, itself, was forced to ensure that the solemnization of marriage was no longer denied to individuals because of their sexual orientation. [ 39 ] The Applicant argues that Ms.

Dichmont was not seeking to use her position as a marriage commissioner to promote her own belief but, rather, was seeking the accommodation of not having to solemnize same-sex marriages. I disagree.

The avoidance of a duty that the law requires you to perform is tantamount to promoting one’s own belief. [ 40 ] The Applicant argues that being required by the state to behave contrary to one’s religious identity is degrading and disrespectful, and the state cannot compel its civil servants to profess a particular belief or non-belief. [ 41 ] First of all, I do not believe that the nature of the relationship between the Applicant and First Respondent was argued before the Board of Inquiry. So, what I have to say on the topic is obiter dicta. But I have some difficulty with the characterization of Ms.

Dichmont as a civil servant – she is not a civil servant, she is a marriage commissioner. There is no employer/employee relationship between the state and Ms. Dichmont. She is an agent of the state for the purpose of solemnizing civil marriages. She receives no compensation from the state – but is allowed to charge her clients – the couples whom she is marrying – a fee for the services that she provides to ​them . I do not believe, for these reasons, that it is appropriate to characterize the relationship between the Government and Ms. Dichmont as that of an employer and an employee.

The relationship is quite a bit different than that – and her position is more analogous to that of a Notary Public or a Commissioner for Oaths. [ 42 ] So this is not a case where Ms. Dichmont is being forced to behave in a degrading or disrespectful manner. She has a choice – perform civil unions for anyone who wishes to avail of her services – be they opposite-sex, same-sex, interracial, disabled, of a religion different than hers or whatever. She is not allowed to discriminate against any of them in contravention of

section 6 of the Human Rights Code . If she cannot perform her function without discriminating, then she cannot continue to be a marriage commissioner. However, she is free to keep her deeply held religious convictions. [ 43 ] The Applicant argued that the Board of Inquiry’s decision requires achieving neutrality through coercion and exclusion – that Ms. Dichmont would be either coerced into changing her religious belief and practice or excluded from employment opportunities. [ 44 ] This characterization is not entirely correct. Ms.

Dichmont could have applied to become a celebrant of marriages in her own church or religious organization. She could have done this without changing her belief about same-sex marriages and, on the assumption

that her church or religious organization held similar beliefs, she never would have had to officiate a same-sex marriage. Discriminationon the basis of sexual preference is condoned by society within a church or religious organization because that is where the freedom topractice one’s religion has the most traction. Ms. Dichmont ought to have sought to solemnize marriages in that setting as a cleric – notas a commissioner of civil marriages. [45] We have, in Canada, a clear separation between religion and state. The state is required to be neutral in its dealings with itscitizens.

However, religious organizations are allowed considerable latitude in keeping with the rights that are recognized as belonging tothem under the Charter. Within the umbrella of the protected right to religious freedom, Ms. Dichmont and her religious organization,have the right to consider same-sex marriage as sinful and to make the choice not to celebrate any same-sex marriages. [46] The state does not have that luxury. In the provision of civil marriages the state is not allowed to be anything but neutral. AndMs.

Dichmont, as a functionary of the state in the provision of civil marriage ceremonies, must provide the services that the state isobliged by law to make available. [47] Given that we live in a secular society and there is a distinct separation between religion and state, clergy perform a dual rolewhen celebrating marriages. [48] They, firstly, legitimize the union of two individuals in accordance with the dictates of their faith.

Secondly, they arerecognized by the state as being persons who, ex officio, are allowed to record the fact that a marriage has taken place because the statehas a legitimate interest in recording that fact for a variety of reasons. In no way does the fact that clergy record marriage particularsresult in the loss of any religious freedom. They remain free to follow the dictates of their religion subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. accommodation [49] In my opinion, the Board of Inquiry was correct in its finding that Ms.

Dichmont was a public official, carrying out a publicduty prescribed by law. It was correct in its finding that she had no right to insist that she be allowed to circumvent that law in theperformance of her public duty. In carrying out her duties as a marriage commissioner, Ms. Dichmont was subject to reasonable limitsprescribed by law – that she provide her services to any couple, opposite-sex or same-sex, who wished to avail of her services as amarriage commissioner appointed by the Government. [50] The Board of Inquiry further held that accommodation was not required for Ms.

Dichmont because the Government hadsatisfied the test set out in British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., (SCC),[1999] 3 S.C.R. 3, a decision of the Supreme Court of Canada. [51] This is a question of mixed fact and law and the applicable standard is palpable and overriding error. I will deal with the issuedespite my reservations about the nature of the relationship, in law, between Ms. Dichmont and the Government. [52] The test in British Columbia (Public Service Employee Relations Commission) v.

B.C.G.E.U., known colloquially as theMeiorin test, has three steps for determining whether a prima facie discriminatory standard is a bona fide occupational requirement. [53] First, the employer must show that it adopted the standard for a purpose rationally connected to the performance of the job.

Thefocus at the first step is not on the validity of the particular standard, but rather on the validity of its more general purpose. [54] Second, the employer must establish that it adopted the particular standard in an honest and good faith belief that it wasnecessary to the fulfilment of that legitimate work-related purpose. [55] Third, the employer must establish that the standard is reasonably necessary to the accomplishment of the legitimate work-related purpose.

To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodateindividual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. [56] Why, then, did the Province adopt the new standard (the requirement to marry same-sex couples)? It adopted the new standardbecause the Pottle v. Canada (Attorney General) decision of this Court forced it to do so. It is a standard imposed by law and, as such,must be assumed to be valid both in terms of its general purpose and as a particular standard.

The amelioration of disadvantaged groupsis a common goal in Canadian society. The Province is no exception. A deficiency in the equal treatment of citizens was noted by theCourt and acted upon by the Province. The new standard, the Board of Inquiry noted, was rationally connected to the performance of therole of marriage commissioner in carrying out the legislative objectives of the Human Rights Code. [57] With respect to the second branch of the test, the Board of Inquiry found that the Province adopted the requirement to marrysame-sex couples in an honest and good faith belief that it was necessary.

It found that all marriage commissioners needed to be subjectto the same requirements, failing which the Province would be in breach of its duty of neutrality. I would add that the Province wouldalso be in breach of its Human Rights Code and the Charter. The Board of Inquiry found that the Province’s duty to accommodate, if oneexists, does not extend so far as to require it to fundamentally alter the conditions of Ms.

Dichmont’s appointment. [58] The Board of Inquiry found that a “single point of entry” system proposed by the Applicant was not workable for severalreasons: firstly, the act of discrimination against same-sex couples would shift from Ms. Dichmont to the Province – because theProvince in a single point of entry system would have to hide the fact that Ms. Dichmont did not provide that service to same-sex couplesbecause they were same-sex couples. The Province would be unable to say, for example, that Ms. Dichmont is available to performmarriage ceremonies for anyone who cared to avail of her services.

This is a logical inference. It is not dependent upon evidence orfindings of fact. It is a correct inference. [59] The Board of Inquiry held that requiring minorities to reveal their differences for the purpose of accommodating those whooppose what makes the minorities different only serves as a subtle and constant reminder of rejection and intolerance. Again, this is alogical inference. It is not dependent upon evidence or findings of fact. It is a correct inference.

[ 60 ] If the parties enjoyed an employer/employee type of relationship, I might be persuaded by Justice Faour’s view that evidence ought to be brought to bear upon the level of hardship that would be imposed upon the Government in instituting a single point of entry system. Logically, such a system would not work in more remote settings where only one marriage commissioner is available to solemnize marriages. So, in a remote community like Burgeo, for example, where only one marriage commissioner is available, if that marriage commissioner, like Ms.

Dichmont, has a religious predilection against performing same-sex marriages, then same-sex couples would be unable to avail themselves of a provincial service that is available to opposite-sex couples wishing to be married in Burgeo. [ 61 ] In such a situation, the Government would be left in the unenviable position of having to bring in a marriage commissioner from elsewhere, as well as having to explain to the same-sex couple that the Government had retained the services of a person in Burgeo who was entitled to discriminate against them because his/her religious rights and freedoms trumped their right to be treated equally before the law.

It is simply not tenable. [ 62 ] The Applicant argued, by analogy, that a factory worker who injured her back moving boxes might be able to continue to move 99% of the boxes but be unable to move 1%. She argued that it is not a fundamental altering of her conditions of her role to accommodate her disability. [ 63 ] Similarly, in relation to Ms. Dichmont, it was argued that it was an error for the Board of Inquiry to draw this conclusion in the absence of evidence as to the conditions of Ms. Dichmont’s role and to presume that marriage commissioners are (

a) obliged to marry every qualified couple and (

b) whether in fact marriage commissioners marry every qualified couple. [ 64 ] This argument misses the point. Of course marriage commissioners are not obliged to marry every qualified couple. And, of course, marriage commissioners do not marry every qualified couple. They may be unavailable for personal reasons. They may be sick. There are a myriad of reasons why a marriage commissioner is unable to solemnize a marriage. [ 65 ] What a marriage commissioner is not allowed to do, though, is refuse to marry a qualified couple because they are a same-sex couple.

Just as a landlord is not allowed to refuse to rent premises to tenants because they belong to a racial minority. [ 66 ] Allowing Ms. Dichmont to pick and choose her clientele based upon whether they were opposite-sex or same-sex is no different than allowing a landlord to rent his/her premises based upon a discriminatory basis. In the case of landlords, the legislation makes provision for discriminatory rental practices if the rental premises form part of the landlord’s own home.

In the case of marriages, the legislation makes allowances for discriminatory marital practices by allowing each religion the freedom to make its own rules concerning who it will and won’t marry. [ 67 ] But a landlord cannot discriminate against a tenant in relation to public accommodation and Ms.

Dichmont cannot discriminate against same-sex couples so long as she is wearing the mantle of a civil marriage commissioner appointed by the Province. [ 68 ] The Applicant cited the Supreme Court’s dicta in Reference re Same-Sex Marriage , 2004 SCC 79 at paragraphs 55-56 in support of the proposition that provinces are duty bound to legislate the solemnization of same-sex marriages in a way that protects the rights of persons like Ms. Dichmont. [ 69 ] I do not agree that the Supreme Court of Canada decision extends that far.

It indicates that the rights of religious officials to refrain from conducting same-sex marriages must be protected. Ms. Dichmont was never a religious official. She was a civil, secular official who entertained religious beliefs and values. The two are not the same. And the Supreme Court of Canada did not, in the Reference re Same-Sex Marriage decision pronounce in any fashion that provincial officials, in their capacity as provincial officials, should receive any protection under the Charter ’s religious freedom guarantees. [ 70 ] In Housen v.

Nikolaisen , 2002 SCC 33 , the Supreme Court of Canada stated that it is trite law that an appellate court should not interfere with a trial judge’s reasons unless there is a palpable and overriding error.

The Supreme Court of Canada decision stated, at paragraph 4, with respect to the role of appellate judges: 4. … Their role is not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge. [ 71 ] The same rule applies to my review of the Board of Inquiry’s decision in this case. [ 72 ] The Board of Inquiry relied upon the decision of the Saskatchewan Court of Queen’s Bench in J. (M.) v.

Nichols , 2009 SKQB 299 at paragraph 74 , where it stated: 74. … a public official has a far greater duty to ensure that s/he respects the law and the rule of law. A marriage commissioner is, to the public, a representative of the state. She or he is expected by the public to enforce, observe and honour the laws binding his or her actions. If a marriage commissioner cannot do that, she or he cannot hold that position. [ 73 ] The Saskatchewan Court of Appeal had occasion to deal with the same issue in Reference re Constitutional Act, 1978 (Saskatchewan) , 2011 SKCA 3 .

The Court stated, at paragraph 97: 97. … Persons who voluntarily choose to assume an office, like that of marriage commissioner, cannot expect to directly shape the office’s intersection with the public so as to make it conform with their personal religious or other beliefs. Any idea of this sort would sit uneasily with the principle of the rule of law to the effect that “the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power”. [ 74 ] These judicial precedents inform the Board of Inquiry’s decision that Ms.

Dichmont could not be allowed to perform her duties as a marriage commissioner in a manner that was discriminatory to same-sex couples and, therefore, that accommodation was not possible.

[ 75 ] The Board of Inquiry in this case was dealing with a human rights complaint under the provincial human rights legislation in force at the time that the complaint was made. The Manitoba Court of Appeal had occasion to deal with the same issue from the perspective of the Charter and came to the same result. In Kisilowsky v. Her Majesty the Queen in Right of the Province of Manitoba , 2018 MBCA 10 Mr. Kisilowsky had made a complaint after the Province of Manitoba had declared that the common law definition of marriage included same-sex partners.

The Province of Manitoba, like Newfoundland and Labrador, requested marriage commissioners to resign their license if they were unable to perform same-sex marriage ceremonies. [ 76 ] The Manitoba Court of Appeal held that the Charter applies to individuals when acting as marriage commissioners. It held, citing Nichols , that a marriage commissioner is required to perform his/her authorized function in a manner that does not breach the Charter rights of others.

The Court held that allowing marriage commissioners to refuse to marry same-sex couples would result in the infringement of the same-sex couples’ Charter rights . [ 77 ] I find, in this case, that the Board of Inquiry was correct in determining that Ms.

Dichmont was obligated to provide marriage solemnization services to any who applied, and that the Province was not obligated to provide any accommodation to her and, therefore, the Board of Inquiry did not commit any palpable and overriding error in that regard. [ 78 ] As a result, the Application is dismissed with costs to the Respondents calculated under Column IV of the Scale of Costs. There shall be no costs for or against the Intervenor. _____________________________ Vikas Khaladkar Justice