Ontario Public School Boards' Association v. Attorney General of Ontario

Ontario Public School Boards' Association v. Attorney General of Ontario Collection Decisions of the Court of Appeal Date 1999-06-29 Docket numbers C28039 Judges McMurtry, Roy; Brooke, John Watson; Abella, Rosalie Silberman; Goudge, Stephen Thomas; Borins, Stephen Subject Civil Decision Content DATE: 19990629 DOCKET: C28039 COURT OF APPEAL FOR ONTARIO McMURTRY C.J.O., BROOKE, ABELLA, GOUDGE and BORINS JJ.A. BETWEEN: ) ) Michael A. Hines, ONTARIO PUBLIC SCHOOL BOARDS’ ) Brian A. Kelsey and ASSOCIATION, THE METROPOLITAN ) Elizabeth Shilton TORONTO SCHOOL BOARD, ) for the appellant WELLINGTON COUNTY BOARD ) Ontario Public School Board’s OF EDUCATION, THE ONTARIO ) Association SECONDARY SCHOOL TEACHERS’ ) FEDERATION, ELIZABETH ) Brian A. Kelsey and SANDALS, JOLEENE KEMP, DAVID ) Erik K. Gillespie EDWARDS, and ROBERT CHURCHILL ) for the appellant ) Metropolitan Toronto Applicants (Appellants) ) School Board ) - and - ) Maurice A. Green and ) Susan Ursel ATTORNEY GENERAL OF ONTARIO ) for the appellants ) Ontario Secondary School Respondent (Respondent in Appeal)) Teachers’ Federation, ) Edwards and Churchill - and - ) ) Michael A. Hines ASSOCIATION FRANCAIS DES ) for the appellants Sandals/Kemp CONSEILS SCOLAIRE DE L’ONTARIO ) ) Robert E. Charney, Intervenor ) Michel Y. Hélie and ) Janet E. Minor ) for the respondent ) ) John C. Murray and ) Paul S. Rouleau ) for the intervenor ) ) Heard: November 16, 17, 18 ) and 19, 1998 On appeal from the judgment of A.G. Campbell J., dated August 4, 1997. ABELLA J.A. : [1] This appeal relates to a provision in the Fewer School Boards Act, 1997, S.O. 1997, c.3 which limits eligibility for election as a trustee of a school board. The appellants were unsuccessful before Campbell J. in arguing that the provision barring the spouse of a district school board employee from election to a school board or school authority violates s. 15 of the Charter of Rights and Freedoms. They also submitted that a provision similarly barring school board employees is contrary to s. 93(1) of the Constitution Act, 1867. Campbell J.’s judgment is now reported at (1997), 151 D.L.R. (4th) 346. [2] The provision under review by Campbell J. was repealed, but was replaced in the Education Quality Improvement Act, S.O. 1997, c. 31 (the “EQIA” – Bill 160) with a provision so similar that the parties agreed that the appeal would be with respect to the new provision. The parties also agreed that their appeal would be heard with the appeal relating to the constitutionality of the EQIA. The court’s decision in that appeal was released separately. [3] 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. [4] The repealed provision was s. 333 of the Education Act, R.S.O. 1990, c. 17, as amended by s. 7 of the Fewer School Boards Act. The following parts relate to the spousal prohibition: 333.(1) A person is qualified to be elected as a member of a district school board or school authority if the person is qualified to vote for members of that district school board or that school authority and is resident in its area of jurisdiction. … (4) Despite subsection (1), a person is not qualified to be elected or to act as a member of a district school board or school authority if the person is, (a) an employee of a district school board or school authority; (b) an employee of an existing board within the meaning of section 327; (c) the spouse of a person mentioned in clause (a) or (b). [5] With the introduction of the EQIA, s. 333 was repealed and replaced by s. 219, the relevant parts of which state: 219.(1) A person is qualified to be elected as a member of a district school board or school authority if the person is qualified to vote for members of that district school board or that school authority and is resident in its area of jurisdiction. … (4) Despite subsection (1), a person is not qualified to be elected or to act as a member of a district school board or school authority if the person is, (a) an employee of a district school board or school authority; (b) the spouse of a person mentioned in clause (a); [Emphasis added.] [6] The references in this judgment will be to the new section, s. 219(4)(b). [7] Campbell J. dismissed the application for a declaration that the section violated s.15 of the Charter for the following reasons: a) There is no prohibition in s. 219(4)(b) against “spouses” generally, only against spouses of school board or school authority employees, a group which is neither historically disadvantaged nor an analogous ground. b) The distinction is not based on a spousal category such as common law or unmarried spousal status. c) There is no evidence of this prohibition having an adverse impact on women. d) The prohibition is narrowly- focused, objective and capable of neutral application. e) Spouses form part of an integrated economic unit, and have mutual support obligations. Citing the pre-Charter case of Re Moll and Fisher (1979), 23 O.R. (2d) 609 (Div. Ct.) at p. 621, Campbell J. concluded that this economic interdependency placed spouses in a position whereby: “Their family purse is in conflict with their public duty.” f) The prohibition eliminates the possibility of conflicts of interest arising from the collective bargaining and other financial responsibilities of school trustees. This makes the spousal prohibition less an aspect of stereotyping or stigmatization than of the realities of a trustee’s work. [8] In essence, Campbell J. was of the view that the spousal prohibition did not engage the enumerated or analogous groups contemplated by s. 15 and that in any event, the spousal exclusion was less a reflection of discrimination and more an attempt to avoid inevitable and endemic conflict of interest problems. [9] It is worth repeating, however, Campbell J.’s observation at p. 369 that: There is some conflict of evidence over the seriousness of the problem. The individual applicants stress the infrequency with which they personally have been faced with the problem. The evidence on the impact of conflict is anecdotal and there are no comprehensive provincial statistics. … [10] Campbell J.’s analysis preceded, and was therefore undertaken without the benefit of the Supreme Court of Canada’s judgment in Law v. Canada (Minister of Employment and Immigration) (1999), 170 D.L.R. (4th) 1. In this decision, released March 25, 1999, Iacobucci J. reformulated the analysis to be applied in s. 15(1) cases. Iacobucci J. acknowledges that the approach in Law essentially reflects a synthesis and refinement of the Supreme Court’s equality jurisprudence, not a reversal of its principles. I propose therefore to undertake the s. 15(1) analysis in this appeal based on the approach outlined in Law, but am of the view that the pre-Law jurisprudence would have yielded the same result. [11] Before Law, different approaches to the actual interpretation of s. 15(1) were enunciated by members of the Supreme Court: see, for example, Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Egan v. Canada, [1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; Benner v. The Secretary State of Canada, [1997] 3 S.C.R. 389; and Vriend v. Alberta, [1998] 1 S.C.R. 493. [12] Throughout the development of the equality jurisprudence, however, the underlying principles first articulated in Andrews have remained unchanged. The guiding principle was that the purpose of s. 15(1) was to provide a remedy for discrimination, and the analysis therefore was a method for assessing whether differences in treatment resulted in an inappropriately disadvantaging impact on the claimant because of group membership. This is not to suggest that differences in treatment are impermissible; it may in fact be that the remedy for discrimination requires taking those differences into account and accommodating them. [13] The issue, therefore, is not simply whether there is differential treatment, but whether that differential treatment has a discriminatory impact, that is, whether the treatment disadvantages the individual because of characteristics arbitrarily or stereotypically attributed to the individuals in his or her group. [14] Iacobucci J. integrated these principles with the s. 15(1) jurisprudence which has evolved since Andrews, and concluded in Law at pp. 37-8 that the following guidelines are points of reference for an analysis under s. 15(1): General Approach (1) It is inappropriate to attempt to confine analysis under s. 15(1) of the Charter to a fixed and limited formula. A purposive and contextual approach to discrimination analysis is to be preferred, in order to permit the realization of the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach. (2) The approach adopted and regularly applied by this Court to the interpretation of s. 15(1) focuses upon three central issues: (a) whether a law imposes differential treatment between the claimant and others, in purpose or effect; (b) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and (c) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee. The first issue is concerned with the question of whether the law causes differential treatment. The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1). (3) Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries: A. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? B. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? and C. Does the differential treatment discriminate by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration? [15] These inquiries are directed at determining whether the distinction infringes the purpose of the equality rights guaranteed in s. 15(1), a purpose Iacobucci J. defines in p.23 as follows: … to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. Legislation which effects differential treatment between individual or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more enumerated or analogous grounds, and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s.15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society. [16] In this case, the preliminary task is the proper description of the group. Although the legislation refers to spouses of school board or school authority employees, this does not mean that the category for the purposes of a s. 15(1) analysis is to be so narrowly characterized . The people excluded from eligibility for election are spouses. Their claim is based not on their technical membership in a group called “spouses of an employee of a district school board or school authority”, but rather on the fact of their spousal or marital relationship. [17] Applying the approach in Law, the questions to be addressed are whether the law disqualifying employees’ spouses from election to school boards imposes differential treatment, whether the differential treatment is based on an enumerated or analogous ground, and whether the effect or purpose of the law is discriminatory. [18] The impugned law clearly draws a distinction between spouses of board employees and anyone else who is resident in the area of the district school board and qualified to vote for members of that board. Only the former are disqualified from election. [19] This difference in treatment is based on being a spouse. Being a spouse is a function of marital status, a category the Supreme Court of Canada found in Miron v. Trudel to be an analogous ground to the grounds of discrimination enumerated in s.15(1). [20] In its analysis in Miron v. Trudel, the Supreme Court said, at p. 496, that there were several possible indicators of an analogous ground, including such considerations as whether the distinction is made on the basis of personal characteristics, whether the targeted group has suffered historical disadvantage, or whether the group constitutes a “discrete and insular minority.” [21] These are, however, merely indicators. While the presence of any one of these indicators may signal an analogous ground, it is not the case that all - or even any - of them must be present to find an analogous ground. As McLachlin J. said, at p. 496: All of these may be valid indicators in the inclusionary sense that their presence may signal an analogous ground. But the converse proposition – that any or all of them must be present to find an analogous ground – is invalid. As Wilson J. recognized in Turpin (at p. 1333), they are but “analytical tools” which may be “of assistance”. For example, analogous grounds cannot be confined to historically disadvantaged groups; if the Charter is to remain relevant to future generations, it must retain a capacity to recognize new grounds of discrimination. Nor is it essential that the analogous ground target a discrete and insular minority; this is belied by the inclusion of sex as a ground enumerated in s. 15(1). … All of these and more may be indicators of analogous grounds, but the unifying principle is larger: the avoidance of stereotypical reasoning and the creation of legal distinctions which violate the dignity and freedom of the individual, on the basis of some preconceived perception about the attributed characteristics of a group rather than the true capacity, worth or circumstances of the individual. [Emphasis added.] [22] As for “marital status” specifically being an analogous ground, McLachlin J. stated, at p. 497: … [D]iscrimination on the basis of marital status touches the essential dignity and worth of the individual in the same way as other recognized grounds of discrimination violative of fundamental human rights norms. Specifically, it touches the individual’s freedom to live life with the mate of one’s choice in the fashion of one’s choice. This is a matter of defining importance to individuals. [Emphasis added.] [23] The key, then, to the conclusion that “marital status” is an analogous ground is found in the fundamental right of individuals to choose to have - or not to have - a spousal relationship. This choice ought not to result in individuals being treated in an exclusionary way based on irrelevant, stereotypical characteristics attributed to this choice, rather than on their actual ability. The human rights principle prohibiting arbitrary treatment was confirmed by McLachlin J. in Miron v. Trudel at pp.495-6: … Logic suggests that in determining whether a particular group of characteristic is an analogous ground, the fundamental consideration is whether the characteristic may serve as an irrelevant basis of exclusion and a denial of essential human dignity in the human rights tradition. In other words, may it serve as a basis for unequal treatment based on stereotypical attributes ascribed to the group, rather than on the true worth and ability or circumstances of the individual? An affirmative answer to this question indicates that the characteristic may be used in a manner which is violative of human dignity and freedom. [24] In the case before us, individuals are being disadvantaged because they are spouses, and are therefore being disadvantaged based on their marital status, an analogous ground. [25] The effect of the disqualification based on marital status is to withhold a benefit from spouses of board employees; namely, the right to seek election to district school boards. This right is a benefit denied in a manner which reflects and perpetuates an assumption that spouses, unlike others in society, are incapable of independent decision-making. There is no doubt that the interests of spouses are in many ways inter-related, but a blanket exclusion of all spouses reflects the unrealistic view that spouses always share in common all interests and opinions with their partners. It thereby attributes a stereotypical quality to spouses, namely, that their decision-making abilities are in a state of perpetual conflict with their capacity to decide issues of a public nature. [26] The distinction based on marital status is accordingly discriminatory since it arbitrarily disadvantages, based on personal and presumed group characteristics, individuals who are spouses, by restricting their right to public office and thereby restricting their right to participate in the democratic process: see also Brossard (Town) v. Quebec (Commission des Droits de la Personne), [1988] 2 S.C.R. 279 and Cashin v. C.B.C. (1988), 86 N.R. 24 (Fed. C.A.). [27] Accordingly, s. 219(4)(b) violates s. 15(1) of the Charter. [28] Having so found, the analysis proceeds to whether the spousal prohibition can be justified as a “reasonable limit in a free and democratic society” under s. 1 of the Charter. [29] The first step in the s. 1 analysis is to determine whether the infringing limitation has a pressing and substantial objective: Vriend at 555-56; Rosenberg v. Canada (A.G.) (1998), 38 O.R. (3d) 577 (C.A.) at p. 584. The stated objective of the exclusion in s.219(4)(b) is to reduce the possibility of conflicts of interest. But as Campbell J. observed, at p. 369, the evidence of spousal conflicts in this case is “anecdotal”, and he himself questioned whether the problem was a serious one. [30] There is, in fact, no evidence that spousal conflicts of interest represent a problem at all, let alone a pressing or substantial one. A district school board, like any workplace, undoubtedly has a variety of employees performing a variety of jobs, but there is no evidence before us about what the range of employee categories is in this case, or, for that matter, what range of work those employees perform. There is, therefore, no way to assess how being an employee’s spouse relates to the potential for conflict, let alone to assess whether that potential justifies the outright exclusion of all spouses of all employees. [31] No comprehensive provincial statistics about conflicts of interest on school boards were presented to the court, and those statistics which were available were not separated as to the kinds of conflicts raised. For example, the respondent cites the example of the York Region Roman Catholic Separate School Board where 8 of 18 trustees declared conflicts on the basis that they were teachers or spouses of teachers, but the record does not disclose how many of those conflicts were those of spouses. [32] In fact, none of the evidence led by the respondent reveals whether conflicts declared by members of school boards were based on spousal relationships, or on their employment, a business interest, or any other reason. Nor does the evidence reveal whether spouses of board employees declare conflicts more than other trustees. [33] The spousal disqualification does not, as a result, represent any pressing or substantial solution given that there is no factual foundation for concluding that spousal conflicts represent any real problem. [34] Moreover, there is already legislation to deal with conflicts of interest. The Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50 states that trustees attending a meeting who have a direct or indirect pecuniary interest in a matter under consideration, are obliged to disclose their interest and refrain from participating in the discussion or vote. Pursuant to s. 7 of that Act, the remaining trustees are deemed to constitute a quorum despite any other general or special Act, permitting the school board to continue its decision-making duties. To the extent that there may be a problem arising from potential conflicts, there is a statutory solution in place. [35] Since there is no reliable evidence of how often spouses declare conflicts of interest, or whether such conflicts in anyway interfere with the ability of district school boards to function effectively, there is no evidentiary foundation for concluding that the prevention of conflicts of interest is a sufficiently pressing and substantial objective to justify the total exclusion of spouses of school board or school authority employees from eligibility for election to district school boards. The violation of s. 15 is therefore not saved by s. 1. [36] Although it is not necessary to undertake any further s. 1 analysis given this conclusion, in my view the reasons for concluding that the spousal prohibition does not have a pressing and substantial objective can also be used to reach the following conclusions with respect to the proportionality aspect of the s. 1 analysis: A. There is no evidence to demonstrate that the spousal prohibition will necessarily solve, or even contribute to the solution of the problem the exclusion purports to address. B. There are alternatives available such as amendments to the Municipal Conflict of Interest Act which would less drastically impair the Charter right (minimal impairment); C. The harmful effects of a blanket restriction on the right of individuals to participate in the democratic process because of their marital status outweighs any statutory benefits of the prohibition (balancing of benefits and burden). [37] I do not, however, agree with the submission of the appellants that s. 219(4)(a) infringed s. 93(1) of the Constitution Act, 1867. Section 219(4)(a) states: (4) Despite subsection (1), a person is not qualified to be elected or to act as a member of a district school board authority if the person is, (a) an employee of a district school board or school authority; … [38] In my view, Campbell J. was correct in concluding that s. 219(4)(a) does not prejudicially affect denominational aspects of education, or non-denominational aspects of separate school education that are necessary to give protection to the core denominational values. [39] Accordingly, the appeal with respect to s. 219(4)(a) is dismissed. The appeal with respect to s. 219(4)(b) is allowed; the dismissal of the application is set aside; and the application for a declaration that s. 219(4)(b) is unconstitutional is granted. There will be no costs of this appeal. Released: June 29, 1999 BROOKE J.A. (DISSENTING): [40] I have had the opportunity to consider the judgment of my colleague. With respect, I cannot agree. In my opinion, Campbell J. was right and, essentially for the reasons he gave, I would dismiss this appeal. [41] The relevant provisions of the legislation are set out in my colleague’s judgment. BACKGROUND [42] When political decisions must be made, a conflict of interest is a serious matter. Even the appearance of a conflict of interest can be enough to damage public confidence in political bodies. [43] From the material filed by the parties, it is clear that the problem that confronted the Legislature, and gave rise to this legislation, was how best to deal with the fact that certain elected school board trustees were regularly disqualified by reason of the same conflict of interest and so prevented from participating in important matters. Because of the number of such trustees, the boards were handicapped and were seen as functioning in critical areas as a smaller body than was desirable. [44] The trustees who were disqualified were teachers or other employees of a school board, not necessarily the board to which they had been elected, and their spouses. The problem had nothing to do with gender, the integrity of the trustees, or their ability to vote honestly, but rather with a principle that is and was respected, simply, that persons with a conflict of interest should not participate and vote. [45] The trustees were required to declare their conflicts and were disqualified pursuant to the Municipal Conflict of Interest Act, R.S.O. 1990, c.M.50. That Act provides that, where the economic interest of an employee is affected, if a trustee, he or she must withdraw and not vote. It also provides that, where the economic interest of an employee is affected, there is a deemed conflict of interest in her or his spouse, and such person, if a trustee, must withdraw and not vote. The provisions of that Act are not attacked in these proceedings. Nor is the fact that, at law, such a spouse would appear to have a conflict of interest. The provision of that Act to the effect that the remainder of the trustees, after those who were so disqualified from participating and voting, would constitute the board for the purpose of a decision, did not resolve the problem. [46] These provisions of the Municipal Conflict of Interest Act no doubt proceed on the accepted value that employees and their spouses are mutually dependent irrespective of the resources of either. They are, in fact, and are seen to be, an economic unit. That value underlies the decision of the Divisional Court in Re Moll and Fisher et al. (1979), 23 O.R. (2d) 609, where questions of similar conflicts of interest were resolved. Significantly, the value is not doubted today and underlies the continuing obligations of spouses to one another (see the recent judgment of the Supreme Court of Canada in Bracklow v. Bracklow (1999), 169 D.L.R. (4th) 577). But, while these provisions of the Municipal Conflict of Interest Act were important and needed, they did not offer a solution to the problems that the Legislature sought to resolve in passing the legislation in question. [47] It appears that the Legislature had a good deal of information about these conflict-of-interest problems when the matter arose. To begin with, it had the judgment in Re Moll and Fisher delivered in the spring of 1979 where Robins J. stated at p.621: “The importance of the issue raised by this application is underscored by the fact that some 200 elected school trustees in Ontario, we are told, are spouses of teachers. The consequences of this type of conflict of interest should be made manifest.” The issue of the qualification of teachers to serve as trustees had been considered by the Municipal Conflict of Interest Consultation Committee (“the Committee”). The Committee delivered its report in 1991. It reported to the Legislature that “at any given time, fifty percent of school board members may be required to withdraw from decision-making due to conflicts of interest” related to their employment, or a family member’s employment, with a school board. [48] The Legislature also had before it a letter to the then Minister of Municipal Affairs from the Ontario Separate School Trustees’ Association (“the Association”) written in June 1992. Speaking with the authority of and on behalf of a number of school boards, the letter acknowledged that the principal area of conflict for trustees under the Municipal Conflict of Interest Act is in the area of collective bargaining. The letter states that: “This is because many trustees are themselves employees of school boards, or are related to employees of school boards.” Collective bargaining accounted for approximately 80 percent of a school board’s budget. I think it is clear this would include salaries, benefits, pensions, job security, working conditions; matters which would impact heavily on the board’s work and its budget but would also impact heavily on the economic interest of the employee and her or his family. [49] The letter also stated that the “experience of the association is that the results of teacher negotiations in one area of the province eventually migrate to other areas of the province. This is true not only for teachers but for other board employees”. [50] The Association referred to passages in the report of the Committee, with which it agreed, and said: “What these excerpts reveal is the essence of the problem for school boards — it is not only the reality but also the appearance of conflict which impairs the legitimacy of board decisions.” [51] The information was updated and the Legislature had before it the minutes of school board meetings from the year 1997. The minutes showed, for example, that at the York Region Roman Catholic Separate School Board (“the York Board”), 8 of 18 trustees (44%) were disqualified by reason of a conflict of interest as teachers or the spouses of teachers or employees. The individuals are named and the relationship of each set out. These trustees were precluded from participating in meetings and voting on matters relating to salaries and benefits that accounted for 73% of the budget. [52] Similarly, at Dufferin Peel Roman Catholic Separate School Board (“the Dufferin Board”), one-third of the trustees are teachers or spouses of teachers. A chart shows the 12-month history of conflicts as recorded in that Board’s minutes and the deponent states that, in all cases, the conflicts related to employee compensation and collective bargaining. There were 21 trustees on that board; 7 were teachers or spouses of teachers. [53] At London, all three members of the French language section are teachers or spouses of teachers. At Halton, one-third of the trustees have family members employed by the Board, two of whom are spouses. [54] The material does not, in every case, attempt a statistical analysis as between spouses of employees and such employees. But it is clear from the judgment, the report referred to, and the updated reports, that there were a number of each. However, the breakdown is clear in the York Region and in the Dufferin example, and a reasonable inference could be drawn that there were a number of trustees who were employees of boards and a number who were spouses of employees of boards in the various districts. In addition of course, the numbers of each group would vary from year to year in the future. They are a group from which, because of their interest, there would undoubtedly be many candidates. There was sufficient information before the Legislature to identify the problem, and determine that it was real and important. Spouses of employees and employees, because of the conflict of interest, predictably would be disqualified from carrying out important duties and obligations of a trustee. To permit them to stand for election simply meant that, if elected, the other trustees would have to carry the load of decision making and all of the work in the related important areas. In the circumstances this would be unfair to the remaining trustees, impair the work of the board and so, unfair to the public. Accordingly, the Legislature accepted one of the alternatives recommended by the Committee in its report and disqualified both the employees and their spouses from standing for election as trustees. THE S.15 QUESTION [55] If spouses of employees and employees have very similar or identical conflicts of interest, and accordingly are similarly treated, being disqualified from participating in related work of the school board, should spouses of employees and employees be treated differently for the purposes of this legislation because of the Charter? In other words if spouses of employees and employees are identified as a group which, because of the same conflicts of interest, is the root of the problem this legislation is intended to deal with should they be treated similarly – equally or does the Charter require unequal treatment? [56] The judgment of my colleague sets out some of the principles to consider and the general approach to take when a violation of s.15 of the Charter is alleged. Those principles, derived from Mr. Justice Iacobucci’s judgment in Law v. Canada (Minister of Employment and Immigration) (1999), 170 D.L.R. (4th) 1 (S.C.C.), need not be repeated here. [57] However, the passages that focus on the purpose of s.15 and the need for a purposive and contextual analysis are also important. As to the purpose, Iacobucci J. concluded that the protection and promotion of human dignity is the core of the section. Human dignity is harmed by unfair treatment premised on personal traits or circumstances, which do not relate to individual needs, capacities or merits. Significantly, he said at pp. 26-27: Equality analysis under the Charter is concerned with the perspective of a person in circumstances similar to those of the claimant, who is informed of and rationally takes into account the various contextual factors which determine whether an impugned law infringes human dignity, as that concept is understood for the purpose of s. 15(1). [58] While he did not have the advantage of the three-step approach suggested by Iacobucci J., in my opinion, Campbell J.’s judgment is a careful, purposive and contextual analysis. [59] Before Campbell J., the claimants sought a finding that the disqualification of employees, and spouses of employees, both violated s.15 of the Charter. Having analyzed the whole of the section as it then stood, and the background, Campbell J. dismissed the claims. There is no appeal with respect to the disqualification of employees of a school board from standing for election, but only as to spouses of such employees. [60] In my view, it is not enough to consider s.219(4)(b) alone. Rather, to understand the purpose of the legislation, paragraph (b) should be examined in the context of the whole section. The section must be considered with reference to the way in which the law and the legislative scheme evolved to deal with conflicts of interest and the integrity and effectiveness of public tribunals. It is unrealistic to proceed in any other way. [61] This was, broadly speaking, the approach taken by Campbell J. He began his analysis by saying, at p. 368: “To determine the constitutionality of the provision it is necessary first to know its purpose”. In Law, Iacobucci J. underscored the importance of the purpose of the impugned law in determining whether it violates s.15. From his reasons, I think Campbell J.’s approach accords in many respects with the approach taken by the majority in Law. [62] Campbell J. found the underlying purpose of this kind of prohibition was set out in the 1991 Committee report: The intent of these prohibitions is to ensure accountability and impartiality in decision-making on matters affecting the operation of the council, school board, or local board. It embodies the rule that no person can serve as both master and servant. A substantial number of individuals in the educational field, primarily teachers, hold office on school boards, and the majority of matters considered by school boards relate to educational programs and policies, and labour-related issues which are usually consistent across the province. [63] He pointed to the public perception of the conflict problem as reflected by the 1991 report: Representations to the Committee have indicated that at any given time, fifty percent of school board members may be required to withdraw from decision-making due to conflicts of interest of this nature. Therefore, decisions on these issues are always made by the same remaining members. Concern is largely centred on the fact that many members are not involved in the decision- making process on a continuing basis, and therefore are not adequately fulfilling their representative role. [64] He also referred to the concern of the boards as recorded in their letter to the Minister: As politicians we value our credibility. If the decisions of school boards are seen as illegitimate, then our effectiveness would be impaired to the detriment of all of society. [65] He relied on the decision of Robins J., as he then was, in Re Moll and Fisher, supra. In that case, two men who were the spouses of two teachers were elected members of a school board. They voted on a proposed collective agreement with the board’s teachers and were involved in collective agreement policy. They appealed from the judgment of a single judge finding each in breach of the Municipal Conflict of Interest Act, and from their consequent disqualification from the board for a period of time. Robins J. said at p.612: Public office is a trust conferred by public authority for public purpose. And the Act, by its broad proscription, enjoins holders of public offices within its ambit from any participation in matters in which their economic self-interest may be in conflict with their public duty. The public’s confidence in its elected representatives demands no less. [66] Campbell J. rejected the claim that the disqualification from standing for election to a school board of employees, in pursuance of the goal of preventing conflict of interest and increasing confidence in elected representatives, violated a Charter right. [67] As to spouses, he said: So far as spouses are concerned, there is no prohibition against spouses generally. It is only a narrow category of spouse that is excluded. There is no discrimination on the basis of a spousal category such as common law or unmarried spousal status. There is no evidence that the spousal prohibition adversely affects woman [sic] disproportionately from its affect on men. There is nothing new about spousal and other familial conflict of interest prohibitions. They are all very fact-specific and they all have to be decided on their particular facts. The prohibition here is more purposive and narrowly focused than the prohibitions in Brossard (Ville) v. Laurin (Commission des Droits de la Personne), [1988] 2 S.C.R. 279, 53 D.L.R. (4th) 609, per Beetz J. at p. 315. The prohibition here is objective, general, and capable of consistent neutral application, unlike the application of the prohibition in Cashin v. Canadian Broadcasting Corp. (1988), 86 N.R. 24 (F.C.A.). Spouses are an economic unit with mutual legal duties of economic support. In respect of the kinds of issues dealt with by school boards and the interdependency of financial decisions such as collective bargaining settlements throughout the entire educational system I adopt what was said by Robins J. in Moll at p. 621: Clearly, it is inimical to the public interest that an elected official having a voice in bargaining on behalf of the public should, at the same time, be in a position to advance his private economic interest. In essence, the applicants have placed themselves on both sides of the bargaining table. Their family purse is in conflict with their public duty. The extension of the conflict prohibition to spouses does nothing more than recognize the nature of the spousal relationship and its impact on the particular economic and collective bargaining realities of the work of school trustees. As with the other prohibition just dealt with, I cannot in the spousal prohibition find any of the badges of discrimination such as distinction based on an irrelevant personal characteristic, stereotyping, stigmatization, historical disadvantage, or any diminution of the recognition of anyone’s value as a human being. To paraphrase Jones again, spouses of school board employees are a heterogeneous group with disparate characteristics and they are not historically disadvantaged. They do not belong to groups or classes enumerated in s.15 groups which can be considered analogous to the enumerated groups. [68] I agree with substantially all of the above. [69] My colleague notes that the judgment of Robins J. in Re Moll and Fisher, supra, was delivered before the passage of the Charter. I assume this does not suggest it is other than a reliable authority. It is an important decision and, in many respects, important in this case. I note it was referred to by Sopinka J. in Old St. Boniface Residents Assn. v. Winnipeg (City) (1990), 75 D.L.R. (4th) 385 (S.C.C.). On its facts, I think it is correct on each of the issues that also arise in this case. The statements of Robins J. and Campbell J. respecting spousal relationships and mutual dependence, as reflecting the economic interest of each spouse in the economic interest of the other, correspond with those recently expressed by the Supreme Court of Canada in Bracklow, supra. [70] I turn then to the three-step approach to evaluating s.15(1) claims that was outlined by Iacobucci J. in Law. [71] Step one. I agree that s.219(4) draws a formal distinction between the claimant and others on the basis of a personal characteristic which is that they are the spouse of a person specified in part (a) of the section. [72] Step two. Is the claimant subject to differential treatment based on one or more of the enumerated grounds or an analogous ground? The law continues to evolve in this area. After considering the judgment of the Supreme Court of Canada in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] S.C.J. No. 24, released May 20, 1999, I agree that the claimants are subject to differential treatment based on marital status, which is an analogous ground. In that case, McLachlin J. settled the question of what constitutes an analogous ground and that an analogous ground does not vary from case to case depending on context. The views of L’Heureux–Dubé J., if to the contrary, are rejected. While it is not specifically considered, it appears that the approach of Gonthier J. which is referred to as the “relevancy test” is also rejected notwithstanding that it was the approach of the majority in Egan v. Canada, [1995] 2 S.C.R. 513. (See also Iacobucci J. in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358 at 391-2). If that test were acceptable, then, in my opinion, spousal status would not constitute an analogous ground in this case. The characteristic was relevant to the purpose of legislation. I think this was essentially the route taken by Campbell J. but, on the basis of Corbiere, he erred in doing so. [73] Step three. Discrimination. Does the differential treatment discriminate by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects a stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration? [74] As to this, my colleague states, in paragraph [25]: The effect of the disqualification based on marital status is to withhold a benefit to spouses of board employees; namely, the right to seek election to district school boards. This right is a benefit denied in a manner which reflects and perpetuates an assumption that spouses, unlike others in society, are incapable of independent decision making. There is no doubt that the interests of spouses are in many ways inter-related, but a blanket exclusion of all spouses reflects the unrealistic view that spouses always share in common all interests and opinions with their partners. It thereby attributes a stereotypical quality to spouses, namely, that their decision-making abilities are in a state of perpetual conflict with their capacity to decide issues of a public nature. [Emphasis added.] [75] This conclusion is fundamental to the decision. With great respect, I cannot agree with this conclusion. To say this law reflects such an assumption is to say that it reflects such an assumption by the Legislature. There is no basis for this statement. The purpose of the legislation was to deal with the problem created by conflicts of interest. The effect of the legislation was confined to only those persons who had an identified conflict of interest. Neither the purpose nor the effect of the legislation was discriminatory. There is no stereotypical view that spouses do not have the capacity to decide related public issues where there is a conflict of interest. The view is that no one has the capacity to do so. [76] In my opinion, the distinction, in this case based on spousal status, is not discriminatory. The human dignity of the claimants has not been harmed by any unfair treatment of the kind or quality referred to Iacobucci J. The case fails at step three. [77] Like my colleagues, I am concerned about the significance of the disqualification of board employees and their spouses and the loss of the right to stand for election to this public office. No doubt members of the Legislature were too. No one would be more acutely aware of the significance of the disqualification than our elected representatives. But also, no one would be more acutely aware of the significance of a conflict of interest. [78] In the circumstances, the appellants have failed to satisfy their onus to show that the Legislature violated their rights as guaranteed by s.15 of the Charter. [79] In the result, I would dismiss the appeal. [80] In the event that I am wrong, the issue depends on an analysis of whether the spousal disqualification can be justified under s.1 of the Charter. [81] I have a different view of the evidence than my colleagues who say that there is no evidence that spousal conflicts represent a problem, let alone a pressing and substantial problem. [82] In my view, there is evidence that spousal conflict of interest represented a problem. The spouses of employees were part of a group, together with employees, that had been identified as having the same or very similar interests and thus the conflict of interest that caused a pressing problem. The problem was not created by one part of the group or the other, but by all of the persons who had the same conflict of interest – the whole group. [83] Was there evidence that the conflict of interest of the persons in the group so identified represented a problem? The report of the Committee to the Legislature stated that, in 1991, up to 50 percent of school board trustees were employees of boards or the spouses of employees who had to disqualify themselves from participating in or voting on matters that created a conflict. The appellant challenges the evidential value of the report because neither the original nor the reports it apparently relied upon were produced. [84] However, I regard the letter from the Association as very significant. Its value as evidence is not challenged. The letter is important as it was written “with the authority of, and on behalf of Association francaise [sic] des conseils scolaires de l’Ontario, Association franco-ontarienne des conseils d’ecoles [sic] catholiques, Ontario Public School Boards’ Association, and Ontario Separate School Trustees’ Association.” This is obviously a group of associations, each of which operates across the province and represents a very large percentage of school boards in the province. In my view, the letter is strong proof of the problem created by conflicts of interest of trustees who are themselves employees of a board or spouses of employees. The letter also shows that the problem is significant, as it relates to matters that constitute about 80% of school boards’ budgets and affect the efficiency and integrity of a board. The Association is obviously aware of the report of the Committee and does not quarrel with its finding that up to 50% of trustees are employees or spouses of employees. [85] Further, the updating material, while a sampling, provides information that supports the identification of the problem and its cause. The York Board reports that 44% of members are employees or spouses of employees, and the Dufferin Board and the others, 30%. [86] Do spouses of employees form a part of the group that represents the problem? Re Moll and Fisher records that there were 200 spouses of employees who were at that time elected school board trustees. The letter from the Association reveals trustees who were related to employees as part of the problem. The Committee report is to the same effect. Finally, the update reports all show spouses of employees and employees as making up 30% to 44% of their board. [87] Moreover, in both the reports of the York Board and the Dufferin Board, the information is specific. The trustees who are spouses of employees are named, as are the trustees who are employees. There is a record of the votes on which each was disqualified and why. The employees and spouses of employees, as a group, were disqualified on matters that would affect the economic interest of employees. It is, in my respectful opinion, unrealistic to suggest that the conflict of interest in the material is other than that with which we are concerned. That is what Re Moll and Fisher was about and prompted Robins J. to say at p.621: The importance of the issue raised by this application is underscored by the fact that some 200 elected school trustees in Ontario, we are told, are spouses of teachers. The consequences of this type of conflict of interest should be made manifest. [88] That is what the report of the Committee and the letter from the Association were about. That is what the updating material makes clear. [89] The onus on this issue is on the respondent and the proof required is of a higher degree than with respect to the s.15(1) issue. I find this evidence persuasive and, in my view, it satisfies that onus. I think the decision of the Legislature was reasonable . [90] I would dismiss the appeal.