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Canada (Attorney General) v Mossup

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FactsEdit

Mossop is a gay man, and his partner's father died. He applied to take bereavement leave from his job to go to the funeral, but is denied because his partner is neither a "spouse" nor a "common law partner" as they are both required to be of the opposite sex. He makes a claim to the Canadian Human Rights Commission, but refuses to argue sexual orientation as a ground, and instead will only argue family status, stating that all matters to do with homosexuals are not about sexual orientation by definition. The case was dismissed in the lower courts.

IssueEdit

  1. Can a homosexual man claim discrimination against "family status" with his partner under s.3 of the Canadian Human Rights Act?

DecisionEdit

Appeal dismissed.

ReasonsEdit

The court is upset with the appellant who refused to deal with the claim on the ground of sexual orientation, which was new at the time. However, Mossop sticks with family status. The majority says that you cannot interpret "family status" to include Mossop’s situation unless you also discuss the ground of sexual orientation, and as Mossop refuses to do so he cannot be successful.

La Forest concurs, but instead looks to the definitions in the Act and tries to figure out what the government meant to protect under "family status". He determines that this specific field was not intended to be covered.

In the dissent, L'Heureux-Dubé says that "family status" should have a very broad interpretation. She looks to the broader social context of limiting it as the majority does, and further that by looking at the plain meaning given in the statute you are really just taking the majority's opinion of the definition, which is exactly what you try to avoid in human rights issues. She also suggests that when there are overlapping grounds, you should select the one that will succeed and proceed with that one.

RatioEdit

  • Only identified grounds can be pursued in a human rights claim.
  • Definitions in human rights legislation are generally interpreted broadly, but the definition given by Parliament in the statute has a good deal of authority in the court's decision on what falls under the definition and what does not.

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