the cool homo who fought for his rights: Vriend v. Alberta

Aidan Seto

Vriend v. Alberta, [1998] 1 S.C.R. 493

Background Info

In 1988, Delwin Vriend was offered a permanent full-time position as a laboratory coordinator at a college in Alberta. Throughout Vriend’s career at the college, he maintained good work performance, including positive evaluations, salary increases, and promotions. In 1990, the college’s board of government released a position statement on homosexuality. Shortly after the statement was released, the college president requested that Vriend resign from his position as a laboratory coordinator. The president stated that the reason for Vriend’s departure was due to non-compliance with the college’s policy on homosexual practice. Thus, the reason for Vriend’s dismissal was because the college did not agree and support Vriend’s sexual orientation.

Individual's Rights Protection Act (IRPA)

The Individual’s Rights Protection Act (IPRA) is a ruling in Canada that ensures the equal protection of every Canadian regardless of their race, ethnicity, gender etc. Following Vriend’s departure from the college, he attempted to file a complaint with the Alberta Human Rights Commission. However, Vriend’s complaint was rejected as the commission stated that sexual orientation is not listed under the Individual’s Rights Protection Act.

Section (15) - Canadian charter of rights and freedoms

Vriend argued that the college contradicts s.15 of the Canadian Charter of Rights and Freedoms as discrimination was prevalent regardless of whether or not the law includes protection towards one’s sexual orientation. Referring to s.15 of the Canadian Charter of Rights and Freedoms, the law indicates that “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.”

Section (32) - Canadian Charter of Rights and Freedoms

The college in Alberta cross-appealed by discussing s.32 of the Canadian Charter of Rights and Freedoms. According to s.32 of the Charter, the “Charter is not intended to govern relations between private actors” and “is essentially an instrument for checking the powers of government over the individual.” Thus, applying s.15 of the Charter would not suffice in the context of the respondent (Province of Alberta) and appellant (Vriend).

Analogous Grounds

Analogous grounds recognize that discrimination occurs due to a large range of factors. In the context of anti-discriminatory laws in Canada, the court states “The omission of sexual orientation as a protected ground in the IRPA creates a distinction that is simultaneously drawn along two different lines.” Hence, although sexual orientation is not included in the IPRA, protection for sexual orientation still goes hand in hand with the other factors listed in the IPRA, such as race, ethnicity, and gender. The court went on to state “The exclusion of the ground of sexual orientation, considered in the context of the social reality of discrimination against gays and lesbians, clearly has a disproportionate impact on them as opposed to heterosexuals.” Therefore, the IPRA contradicts s.15 of the Charter in the “denial of the equal benefit and protection of the law on the basis of sexual orientation.”

Oakes Test ("Reasonable Limits" Test)

In certain instances, the court is required to determine whether or not an existing rule in Canadian law can be broken. However, before deciding whether or not the rule can be bent or changed, the court must apply the Oakes test. The Oakes test includes standardized steps to decide whether infringement of constitutional law can be broken or bent. These steps must show the following:

Must possess a clear objective and goal.
Must rationally connect to the pressing objective and substantial goal.
Must demonstrate that the law causes minimal harm to the Charter.
Must demonstrate that the law’s negatives do not outweigh the positives.

If any of these steps are not satisfied, the Oakes test fails, and infringement of the law should be reconsidered. In Vriend v. Alberta’s case, the Oakes test was applied to consider whether or not excluding sexual orientation in the IPRA fails the test. If it fails the test, this indicates that the existing constitutional rule regarding the exclusion of sexual orientation in the IPRA can be bent or broken.

Holding/conclusion

According to the court, the exclusion of sexual orientation in the IPRA fails the Oakes test. Additionally, the absence of sexual orientation in the IPRA implies that “all persons are equal in dignity and rights” except "gay men and lesbians.” Therefore, in the case of Canadian law and the existing laws in the Charter, “such a message, even if it is only implicit, must offend s. 15(1).”