Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 SCR 279

brossard v. québec (comm. des droits de la personne), [1988] 2 S.C.R. 279

 

 

Commission des droits de la personne du Québec                           Appellant

 

v.

 

Town of Brossard        Respondent

 

and

 

Line Laurin                                                                                         Mis en cause

 

indexed as: brossard (town) v. quebec (commission des droits de la personne)

 

File No.: 18270.

 

1986: April 30; 1988: November 10.

 

Present: Beetz, McIntyre, Chouinard*, Lamer, Wilson, Le Dain^* and La Forest JJ.

 

 

 

on appeal from the court of appeal for quebec

 

                   Civil rights ‑‑ Employment ‑‑ Discrimination ‑‑ Civil status ‑‑ Members of the immediate families of full‑time employees and town councillors prohibited from taking employment with the town ‑‑ Whether hiring practice based on civil status and discriminatory under s. 10 of the Quebec Charter of Human Rights and Freedoms ‑‑ If so, whether town's hiring practice justified by s. 20 of the Charter ‑‑ Construction of s. 20 ‑‑ Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12, ss. 10, 16, 20.

 

                   The town of Brossard adopted a hiring policy disqualifying members of the immediate families of full‑time employees and town councillors from taking up employment with the town. The mis en cause complained to the Commission des droits de la personne when her application for summer employment with the town as a lifeguard was not considered, pursuant to the anti‑nepotism policy, because her mother worked as a full‑time typist at the municipal police station. The Commission stated that she had been wronged and recommended that she be immediately granted the position for which she had applied. The town then sought a declaration from the Superior Court that the hiring policy did not constitute wrongful discrimination under s. 10 of the Quebec Charter of Human Rights and Freedoms. The Court dismissed the motion but the Court of Appeal reversed the judgment. This appeal is to determine whether the town's hiring policy constitutes discrimination in employment based on "civil status" contrary to ss. 10 and 16 of the Quebec Charter; and, if so, whether the exclusion of members of the immediate families of full‑time employees and town councillors is deemed non‑discriminatory pursuant to one of the exceptions provided for in s. 20 of the Charter.

 

                   Held: The appeal should be allowed.

 

                   Per Beetz, McIntyre, Lamer and La Forest JJ.:

 

(1) Section 10 of the Charter

 

                   The town's hiring policy represented an exclusion based on the civil status of persons applying for employment with the town. The exclusion was based on filiation, fraternity and sorority, and marital status viewed in relative terms‑‑the hiring policy excluded candidates married to persons already connected to the town‑‑, which are all included in the "civil status" of candidates protected by s. 10 of the Charter. This is true both generally as well as in the particular case of the mis en cause. Furthermore, the candidates' civil status was the operative cause of their exclusion. While in some circumstances the mother‑daughter relationship might be viewed separately from the position occupied by the mother, for the purposes of determining the cause of the mis en cause's exclusion these two factors operated together to form a single, indivisible cause. The civil status of the mis en cause, an appreciation of which required an examination of the mother's situation, caused her exclusion.

 

                   Such an exclusion constitutes discrimination under s. 10 only if, pursuant to the second paragraph of that provision, the exclusion has the effect of nullifying or impairing the candidates' right to full and equal recognition and exercise of their human rights and freedoms. The mis en cause and other candidates excluded by the hiring policy plainly did not enjoy the full and equal recognition and exercise of their right to non‑discrimination in employment established by s. 16. The town's hiring policy was therefore discriminatory under s. 10 of the Charter.

 

(2) Section 20 of the Charter

 

                   (a) Construction

 

                   Section 20 of the Charter provides for two separate statutory exceptions to the anti‑discrimination norm in s. 10 and it is wrong to suggest that there is a connection between them, even for the purposes of interpreting their respective terms. The two exceptions, founded on differing legislative objectives, are deserving of different methods of statutory interpretation. The first branch, which provides that an "exclusion...based on the aptitudes or qualifications required in good faith for an employment...is deemed non‑discriminatory", should be interpreted restrictively since it takes away rights which otherwise benefit from a liberal interpretation. The second branch provides that an "exclusion...justified by the charitable, philanthropic, religious, political or educational nature of a non‑profit institution or of an institution devoted exclusively to the well‑being of an ethnic group, is deemed non‑discriminatory". This exception, while imposing a limitation on the rights of some individuals, also confers rights upon certain groups. It is designed to promote the fundamental right of individuals to freely associate in groups for the purpose of expressing particular views or engaging in particular pursuits. The Court, therefore, rather than adopting a liberal or a restrictive interpretation of the second branch, should give the expressions "non‑profit institution" and "political nature" their ordinary meaning, using the traditional rules of statutory interpretation.

 

                   (b) The First Branch

 

                   In order to be relevant for the purposes of the first branch of s. 20, the "aptitudes or qualifications required in good faith for an employment" must necessarily relate to one of the enumerated grounds in s. 10 since the exception can only be invoked following the determination that a given behaviour amounts to discrimination contrary to s. 10. In this case, the absence of conflict of interest on the part of the person considered for employment was the "aptitude or qualification" which related to civil status, the enumerated ground in s. 10 relevant to the discriminatory hiring policy. A requirement that candidates be free from conflicts of interest encourages impartiality in the hiring of new public servants and promotes impartiality in the performance of public servants' duties after they have been hired.

 

                   For its hiring policy to be deemed non‑discriminatory under the first branch of s. 20, the town had to demonstrate that: (1) the absence of conflict of interest requirement was imposed honestly, in good faith (a subjective test); and (2) the requirement is related in an objective sense to the performance of employment with the town in that it was reasonably necessary to assure the efficient and economic performance of the work (an objective test). A requirement is "reasonably necessary" to assure the performance of a job under the objective test when it satisfies the following two criteria: the aptitude or qualification must be rationally connected to the employment concerned and the rule must be properly designed to ensure that the aptitude or qualification is met without placing an undue burden on those to whom the rule applies.

 

                   The subjective element of the test was met here because the requirement was imposed honestly. The purpose of the hiring policy was to combat nepotism and to promote sound municipal management; it was not to frustrate the objectives of the Charter.

 

                   The objective part of the test was not met. Nevertheless, the aptitude or qualification required of all candidates‑‑an absence of real and potential conflicts of interest and the appearances thereof‑‑was rationally connected to employment with the town, including employment as a lifeguard for which the mis en cause applied. All public servants, from the most powerful mandarin to the most junior clerk, share in a duty to the collectivity whereby the particular interests of the public servant must yield to the general interest of the citizens which make up that collectivity. It is appropriate and indeed necessary to adopt rules of conduct for public servants to inhibit conflicts of interest, of which nepotism is one serious form. Moreover, it should be possible for a government employer to establish rules of conduct designed to combat not only real or potential conflicts of interest but also the appearance of such conflicts.

 

                   In this case, however, the rule was disproportionately stringent in view of the aptitude or qualification which it sought to verify. The hiring policy that the town chose to adopt was a blanket rule allowing for no exceptions and therefore did not sufficiently take into account the degree of likelihood that an abuse of power would take place. For an exclusion of this nature to be justified as an occupational requirement under the first branch of s. 20, the requirement must be tailored to the employment in question so that it can be said to preclude real conflicts of interest, potential conflicts of interest which are reasonably likely to arise, and the appearance of conflicts of interest founded on a reasonable apprehension of bias. The population of the municipality, the number of public servants it employs, the peculiarities of its administrative structure, the nature of the positions occupied in respect of their potential for abuse of power and, to some extent, the nature of the family relationship in question, are all relevant to determining whether the rule is properly designed in respect of the objective test. In this case, the town's hiring policy was not sufficiently tailored to the nature of the positions occupied in respect of the potential for abuse of power. The mother was not in a position to influence the hiring of her daughter and there was no reasonable apprehension that she could have done so. There was also no evidence enabling the Court to evaluate the blanket rule in connection with the size of the municipality and its public service. The first branch of s. 20 did not, therefore, justify the town's discriminatory hiring practice.

 

                   (c) The Second Branch

 

                   The town's discriminatory practice is not saved by the second branch of s. 20. A municipality is not a "non‑profit institution" of a "political nature" as contemplated by this section. Although the use of the expression "non‑profit institution" does not preclude the application of the second branch to municipalities, the words "charitable, philanthropic, religious, political or educational nature" which precede "non‑profit institution" in s. 20 colour the meaning of the latter expression, and support the view that a municipality is not included therein.

 

                   The word "political" can also be interpreted, in other contexts, so as to include municipalities and other government employers. In section 20, however, the word "political" is explained by the other examples of non‑profit institutions given by the legislator and the concept of "vocation" appears to be implicit in each of them. An institution of a political nature would be one with a particular ideological or policy‑oriented vocation and would not include a municipality.

 

                   Further, the second branch of s. 20 is designed to promote the fundamental freedom of individuals to associate in groups for the purpose of expressing particular views or engaging in particular pursuits, and to prevent those individuals from being inhibited in so doing by the anti‑discriminatory norm in s. 10. Therefore, to be protected by the second branch of s. 20, an institution must have, as a primary purpose, the promotion of the interests and welfare of an identifiable group of persons characterized by a common ground under s. 10. The institution itself may fall into one or another of the s. 20 types, but there must always be a connection between the brand of s. 10 discrimination practised by the group and the nature of the institution as well as a congruence between a primary group purpose and the brand of s. 10 discrimination. The underlying policy of the second branch of s. 20 makes it clear that a municipality, like otthe exception. A municipality is not an institution which promotes the interests and welfare of an identifiable group of persons characterized by a factor enumerated in s. 10. The town does not discriminate in order to promote the free association of members of any such identifiable group.

 

                   Given the conclusion that the town is not a non‑profit institution of a political nature which cannot avail itself of the second branch of s. 20, the Court need not inquire as to whether the discriminatory hiring policy is "justified" in the circumstances. However, as a general rule, the distinction, exclusion or preference practised by the non‑profit institution to which the second branch applies must be justified in an objective sense by the particular nature of the institution in question.

 

                   Per Wilson and La Forest JJ.: The town's reason for adopting its anti‑nepotism policy was to enhance both the reality and the public image of itself as an employer who applies completely impartial hiring practices. The town believed that, as a public body accountable to the residents of the town for the proper administration of the town's affairs, it had to be above reproach as far as its hiring practices were concerned. It should hire and be seen to hire purely on the basis of merit and not on the basis of preferential treatment accorded to the relatives of council members or persons already in its employ. This objective of the town was broader than its concern over potential conflicts of interest and the Court must decide whether that broader concern could provide a justification for its anti‑nepotism policy under the first branch of s. 20. The nature of the job applied for and the nature of the job held by any relative, while crucial on the conflict of interest basis of qualification, would not be determinative on this question.

 

                   The nature of the employer is relevant in determining the "qualifications" which may legitimately be attached to an employment under the first branch of s. 20 reedoms. A municipality's anti‑nepotism policy could thus be justified on the ground that it is a "qualification required in good faith" for employment by it because of its status as a public body. The policy, however, was not "reasonably necessary" to ensure the integrity of the town's administration or the appearance of such integrity. While the hiring of relatives may well pose a threat or be perceived as posing a threat to the integrity of the town's administration, the adoption of a total ban was too stringent a measure to avoid such a threat having regard to the importance of the right violated by an anti‑nepotism policy, i.e., the right not to be discriminated against. Since less drastic means were available to the town to achieve its object, its policy was not justified by the first branch of s. 20.

 

Cases Cited

 

By Beetz J.

 

                   Applied: Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Caldwell v. Stuart, [1984] 2 S.C.R. 603; approved: Biscuits Associés du Canada Ltée v. Commission des droits de la personne, [1981] C.A. 521; Cashin v. Canadian Broadcasting Corp. (1988), 86 N.R. 24 (F.C.A.), rev'g (1987), 8 C.H.R.R. D/3699; Mark v. Porcupine General Hospital (1984), 6 C.H.R.R. D/2538; Commission des droits de la personne du Québec v. Québec (Ville de), [1986] R.J.Q. 243; disapproved: Mormina v. Saint‑Léonard (Ville de), J.E. 87‑950; distinguished: Johnson v. Commission des affaires sociales, [1984] C.A. 61; referred to: Commission des droits de la personne v. École de conduite St‑Amour Inc., [1983] C.P. 16; Blanchette v. Cie d'assurance du Canada sur la vie, [1984] C.S. 1240; Aronoff v. Hawryluk (1981), 2 C.H.R.R. D/534; Syndicat national des employés de garage de Québec Inc. (C.S.D.) v. Roy, [1987] D.L.Q. 409; Placements G.P.C. Inc. v. Union des employés de commerce, local 504, [1987] D.L.Q. 93n; Marché Sabrevois Inc. v. Union des employés de commerce, local 500, [1987] D.L.Q. 71n; Commission des droits de la personne du Québec v. Courtier provincial en alimentation (1971) Inc. (1982), 3 C.H.R.R. D/1134; Bosi v. Township of Michipicoten (1983), 4 C.H.R.R. D/1252; Décision C.D.P.‑‑18, [1987] D.L.Q. 155; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183; Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Association A.D.G.Q. v. Commission des écoles catholiques de Montréal, [1980] C.S. 93; Décision C.D.P.‑‑31, [1986] D.L.Q. 462; Ladouceur v. Dollard‑des‑Ormeaux (Ville de), [1987] D.

 

                   Referred to: Caldwell v. Stuart, [1984] 2 S.C.R. 603.

 

Statutes and Regulations Cited

 

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12, ss. 10 [am. 1978, c. 7, s. 112], 16, 20, 82.

 

Cities and Towns Act, R.S.Q., c. C‑19.

 

Civil Code of Lower Canada, arts. 39 et seq., 54, 356.

 

Civil Code of Quebec, art. 572.

 

Code of Civil Procedure, arts. 453 et seq.

 

Human Rights Code, 1981, S.O. 1981, c. 53, ss. 17, 23.

 

Public Service Act, R.S.Q., c. F‑3.1.1, s. 7.

 

Authors Cited

 

Bisson, Alain‑François. "La Charte québécoise des droits et libertés de la personne et le dogme de l'interprétation spécifique des textes constitutionnels" (1986), 17 R.D.U.S. 19.

 

Garant, Patrice. La fonction publique canadienne et québécoise. Québec: Presses de l'Université Laval, 1973.

 

Jèze, Gaston. Les principes généraux du droit administratif, vol. II, 3^e éd. Paris: Michel Giard, 1930.

 

Robert, Paul. Dictionnaire alphabétique et analogique de la langue française, vol. III. Paris: Le Robert, 1981, "institution".

 

                   APPEAL from a judgment of the Quebec Court of Appeal, [1983] C.A. 363, 3 D.L.R. (4th) 228, reversing a judgment of the Superior Court, [1980] R.P. 203, which dismissed respondent's motion for declaratory judgment. Appeal allowed.

 

                   Hélène LeBel, Q.C., and Guy Desautels, for the appellant.

 

                   Clermont Vermette, Q.C., for the respondent.

 

                   The judgment of Beetz, McIntyre, Lamer and La Forest JJ. was delivered by

 

1.                       Beetz J.‑‑The town of Brossard, in a good faith effort to combat nepotism within the local public service, has adopted a hiring policy which disqualifies members of the immediate families of full‑time employees and town councillors from taking up employment with the town. Can the town exclude this class of applicant without practising discrimination in employment, thereby violating one of the rights and freedoms protected by the Quebec Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12?

 

 

I Facts and Proceedings

 

2.                       The facts are not in dispute.

 

3.                       The standard form application for employment with the town of Brossard, in keeping with the respondent's anti‑nepotism hiring policy, bears the following heading:

 

[TRANSLATION]  If you have an immediate relative (father, mother, spouse, child, brother, sister) among the full‑time employees or members of the town council, you may not apply for employment with the town of Brossard.

 

4.                       The mis en cause, Line Laurin, fell prey to the rule. She applied for summer employment with the respondent as a lifeguard and, pursuant to the anti‑nepotism policy, her application was not considered because her mother worked as a full‑time typist at the municipal police station.

 

5.                       Line Laurin complained to the appellant Commission des droits de la personne of the respondent's refusal to consider her application. On May 23, 1978, the appellant's Investigations Branch addressed a letter to Mr. Armand Lussier, the town's director of personnel, informing the town of the results of its investigation. The letter stated that [TRANSLATION] "Miss Laurin has been the victim of a wrong in that she is prohibited from working for the town of Brossard because her mother is a permanent employee of that municipality." The letter contained a demand, presumably a "recommendation" pursuant to s. 82 of the Charter, directing that Line Laurin be immediately granted the position for which she had applied and further requesting the respondent to remove all references and questions relating to its hiring policy from its standard form application.

 

6.                       On November 13, 1979, the town filed a motion for declaratory judgment pursuant to arts. 453 et seq. of the Code of Civil Procedure, naming the Commission and Line Laurin as respondents. In the conclusions to its motion, the town asked the Superior Court to declare, inter alia, the following: that the hiring policy did not constitute wrongful discrimination under s. 10 of the Charter; that the town was justified in not considering the candidacy of Line Laurin; and that the town was justified in maintaining the references to its hiring policy in the standard form application.

 

7.                       On December 20, 1979, Deslongchamps J. of the Superior Court dismissed the town's motion for declaratory judgment: [1980] R.P. 203. The Court of Appeal, in a judgment dated October 18, 1983, allowed the town's appeal, Jacques J.A. dissenting: [1983] C.A. 363. The Commission appeals from that judgment by leave of this Court, Line Laurin named as mis en cause.

 

8.                       Resolution of this appeal requires the Court to address three separate but related questions. First, it must be determined whether the respondent's hiring policy constitutes discrimination in employment based on "civil status" contrary to ss. 10 and 16 of the Charter. I consider this issue in Part II of these reasons and conclude that the hiring policy is indeed discriminatory on this ground. Next the Court must establish whether the exclusion of members of the immediate families of full‑time employees and town councillors is deemed non‑discriminatory pursuant to one of the statutory exceptions to the anti‑discrimination norm. Each of the two distinct exceptions which make up s. 20 of the Charter must be analyzed separately. The first branch of s. 20, which I treat in Part III of these reasons, requires the Court to determine whether the exclusion is based on an aptitude or qualification required in good faith for the employment. I conclude that it is not. In Part IV of these reasons, I examine the second branch of s. 20 to determine whether the respondent can invoke the exception which provides that an exclusion can be justified by the political nature of a non‑profit institution. Here again, I conclude that the discriminatory hiring policy is not saved by the statutory exception.

 

II      The Right to Non‑Discrimination in Employment

 

9.                       At the time of the respondent's motion for declaratory judgment, s. 10 of the Charter provided as follows:

 

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, sexual orientation, civil status, religion, political convictions, language, ethnic or national origin, social conditions or the fact that he is a handicapped person or that he uses any means to palliate his handicap.

 

        Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

 

10.                     The appellant contends that the respondent's hiring policy constitutes an exclusion of certain candidates for employment based on their civil status. According to this argument, the exclusion has the effect of nullifying or impairing these candidates' right to full and equal recognition and exercise of the right to be free from discrimination in employment. Section 16, unchanged since the adoption of the Charter, directs as follows:

 

16. No one may practise discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying‑off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment.

 

11.                     The respondent's answer is two‑fold. First, the respondent contends that the meaning of the expression "civil status" in s. 10 of the Charter is not wide enough to encompass the relationship between Line Laurin and her mother. The respondent argues that "civil status" in s. 10 refers to the status of the complainant without reference to other persons. In the alternative, the respondent argues that even if "civil status" does include filiation, fraternity and sorority, and marital status in a relative sense, the exclusion practised by the town is not based on civil status alone but rather in combination with another factor, namely the position occupied by Line Laurin's mother with the town.

 

12.                     Various meanings of the term "civil status" were examined in the courts below. Deslongchamps J. of the Superior Court studied definitions given in the case law and learned commentary before concluding that this term [TRANSLATION]  "includes `family situation resulting from filiation and marriage'" (p. 208). Accordingly, he decided that the hiring policy was in violation of s. 10.

 

13.                     In the Court of Appeal, Paré J.A., with whom Bernier J.A. concurred, decided that he did not have to express an opinion as to the meaning of "civil status" because, irrespective of the precise definition given, the hiring policy was deemed non‑discriminatory by s. 20 of the Charter. Jacques J.A., dissenting, did examine the meaning of "civil status" in detail, concluding that it refers to [TRANSLATION]  "a series of facts which determines an individual's capacity to render himself liable for obligations and which must be recorded in a register" (p. 366). He was of the view that the meaning of the expression used in s. 10 is the same as "civil status" as that term is employed in Title 2 of Book I of the Civil Code of Lower Canada entitled "Of Acts of Civil Status", relating to birth, marriage and death.

 

14.                     While at first glance the case law which seeks to define "civil status" under s. 10 appears to suffer from considerable incoherence, it is possible to infer a reasonably widespread use of the Civil Code's notion of "civil status" by courts called upon to interpret the same term as it appears in s. 10. In Commission des droits de la personne v. École de conduite St‑Amour Inc., [1983] C.P. 16, for example, it was decided that an employer who chose to lay‑off an unmarried worker instead of a married man was practising an exclusion or preference based on civil status in violation of s. 10 because the act of marriage is one of the formal acts required by the Civil Code. Rightly or wrongly, cohabitation has been held not to be a part of "civil status" under s. 10 because no act of civil status under the Civil Code makes reference to cohabitation outside of marriage: Blanchette v. Cie d'assurance du Canada sur la vie, [1984] C.S. 1240. I only cite these cases to demonstrate that Quebec courts have looked to the formal acts of civil status in the Civil Code for an explanation of "civil status" under s. 10 of the Charter.

 

15.                     Yet the facts actually recorded in the formal "acts of civil status" of an individual are often insufficient in themselves to explain fully that person's civil status. Courts appear to have recognized this problem. In Aronoff v. Hawryluk (1981), 2 C.H.R.R. D/534, Judge Louis Vaillancourt of the Quebec Provincial Court held that being divorced is a form of "civil status" under s. 10 although this fact is not recorded in any act of civil status. The same may be said of legal separation. Being unmarried is unquestionably included in civil status, yet this results not from a fact recorded in an act of civil status but rather an absence of a marriage certificate. Similarly, being a widow or a widower is a form of civil status even though this status is established by the death certificate of another person. The information recorded in the acts of civil status of an individual do not conclusively account for the whole of that person's "civil status" for the purposes of s. 10 of the Charter. "Civil status" under s. 10 includes a range of facts (and not necessarily recorded facts) relating to the three classical elements of civil status‑‑birth, marriage and death‑‑to which arts. 39 et seq. C.C.L.C. refer. These facts are sometimes recorded in a person's own acts of civil status, sometimes recorded in the acts of another person, and sometimes not recorded in any act at all. Other facts, such as interdiction or emancipation, which do not relate to birth, marriage or death but instead to legal capacity may also be included in civil status under s. 10, although this need not be decided in this case.

 

16.                     For the purposes of evaluating the respondent's hiring policy, it must be determined whether filiation as well as fraternity and sorority form part of civil status under s. 10. We also must inquire as to whether marital status is included within the ambit of that term. Our focus is not marital status in absolute terms, such as a prohibition against hiring married men, but marital status in relative terms, since the hiring policy excludes candidates married to persons already connected to the town. While this latter issue does not directly affect Line Laurin, it is relevant to the question as to whether or not the hiring policy, which also excludes candidates whose spouses already work full‑time for the town or who are on the council, is discriminatory.

 

17.                     Filiation is, to my mind, one of the cardinal elements of the notion of civil status in the Civil Code and falls within the scope of "civil status" under s. 10 of the Charter. In most cases, filiation can be established by the acts of civil status. Indeed by the joint operation of arts. 54 and 39 C.C.L.C., the identity of a child's father and mother is recorded in the act of birth. Article 572 of the Civil Code of Quebec, moreover, directs in part that "[p]aternal and maternal filiation are proved by the act of birth, regardless of the circumstances of the child's birth." In other instances, of course, acts of civil status will not fully account for filiation, but filiation nevertheless remains a fact relating to birth, in some cases to marriage, and sometimes even to death, in keeping with the general parameters of civil status under s. 10 which I have described above. Filiation is plainly part of "civil status" under s. 10 of the Charter.

 

18.                     Quebec courts have showed little hesitation in including family relationships in "civil status" under s. 10. Biscuits Associés du Canada Ltée v. Commission des droits de la personne, [1981] C.A. 521, is an example. The Commission took action against an employer when an employee was fired because, contrary to company policy, she was related to other employees. While the Court of Appeal held that there was no evidence of discrimination on the facts of the case, Lajoie J.A. made the following observation at p. 524:

 

        [TRANSLATION]  Suffice it to say that after reading this academic commentary and case law I am persuaded that, for the purposes of the case at bar, the relationship of sorority existing at the relevant time between Mrs. Fernande Martel and her sisters Noëlla and Yvette did in fact result from their civil status. Sorority or fraternity‑‑the fact that two or more children have the same father and the same mother‑‑produces under the law (principally under the Civil Code) ties which confer rights and create duties. As examples I need only mention the rules relating to succession, representation and support.

 

19.                     A recent decision of the Superior Court confirms this interpretation of the term "civil status". In Syndicat national des employés de garage de Québec Inc. (C.S.D.) v. Roy, [1987] D.L.Q. 409, Moisan J. held that a hiring preference granted to family members of company directors constituted wrongful discrimination founded on civil status (at p. 412):

 

        [TRANSLATION]  It is quite clear, and the arbitrators were well aware of this, that paragraphs b and c under the heading "Employees not covered" constitute a preference in favour of members of the family of the three directors of the business; a preference which may affect the transfer, removal or dismissal of the other employees. This preference is based on their civil status as sons or daughters of one or other of the three directors and owners of the business.

 

        There can be no doubt that the status of son or daughter is a part of civil status within the meaning of section 10 of the statute.

 

20.                     Two recent decisions of the Labour Court confirm this view that the bonds created by family relationships are included in "civil status" under s. 10. In Placements G.P.C. Inc. v. Union des employés de commerce, local 504, [1987] D.L.Q. 93n, Burns J. decided that the exclusion of spouses and relatives of the company's principal shareholders from a bargaining unit constituted discrimination based on civil status contrary to s. 10. In Marché Sabrevois Inc. v. Union des employés de commerce, local 500, [1987] D.L.Q. 71n, a similar conclusion was reached in respect of an exclusion of the spouse, children and sister‑in‑law of the company owner from a list of workers prepared for certification purposes.

 

21.                     I am in agreement with the prevailing view in the jurisprudence, explained by Lajoie J.A. in Biscuits Associés, supra, which includes family relationships in "civil status". Like filiation, fraternity and sorority fall within the parameters which I have ascribed to civil status under s. 10. In this respect as well, the respondent's hiring policy represents an exclusion of certain candidates based on their "civil status".

 

22.                     More complicated is the question as to the extent to which spousal identity is included in the expression "civil status". Marriage is plainly relevant to civil status. Discrimination can of course be practised on the basis of marital status in absolute terms. What about marital status in relative terms? Is the identity of a person's spouse relevant to discrimination under s. 10?

 

23.                     The respondent argues that a narrow interpretation should be given to "civil status" in this respect. But as I have observed, to understand the civil status of one person one must often refer to the civil status of another. Being a widow or a widower is just one such example. Filiation, fraternity and sorority, of course, are others. It is difficult to imagine a hiring policy which excludes "all sons and daughters" without specifying whose sons and daughters. It is of course possible to discriminate on the basis of marital status in absolute terms (e.g., "no married men as test pilots"), but it is improbable that an individual could be the object of discrimination in employment based on a blood relationship without making reference at the same time to the person to whom he or she is related.

 

24.                     In Commission des droits de la personne du Québec v. Courtier provincial en alimentation (1971) Inc. (1982), 3 C.H.R.R. D/1134, the Quebec Superior Court decided that spousal identity is relevant to discrimination founded on civil status. An employee was fired by the defendant company because her husband worked for a competitor. Lemieux J. held that this exclusion amounted to discrimination based on civil status contrary to s. 10. After citing doctrinal definitions of the term, Lemieux J. decided in obiter at p. D/1135:

 

        [TRANSLATION]  But were the rights of the mis en cause impaired for reasons relating to her civil status? The Court must conclude that they were. The alleged situation of conflict in which the mis en cause found herself arose out of her marital relationship with René Robert.

 

25.                     An isolated Quebec decision can be cited in support of the respondent's position. In Mormina v. Saint‑Léonard (Ville de), Mtl. Sup. Ct., No. 500‑05‑007908‑856, June 11, 1987 (summarized in J.E. 87‑950), the secretary of the mayor was fired after an election in which the secretary's husband was a supporter of one of the mayor's opponents. Bélanger J. of the Superior Court took "civil status" to include only marital status in absolute terms (at p. 16):

 

        [TRANSLATION]  In the opinion of this Court the facts mentioned have no bearing upon discrimination as contemplated by the Charter. As to the question of civil status, what is relevant under s. 10 of the Charter is not with whom the plaintiff is married but whether she is married, single, divorced or otherwise.

 

26.                     The issue of the extent to which spousal identity is relevant to discrimination in employment has arisen elsewhere in Canada when courts have been called upon to define the expression "marital status" as it appears in federal human rights legislation and provincial legislation outside of Quebec. MacGuigan J. put the question in the following manner recently in Cashin v. Canadian Broadcasting Corp. (1988), 86 N.R. 24 (F.C.A.), at p. 28:

 

        The case was argued on the basis that the applicant was discriminated against, if at all, not because she was married per se, but because she was married to a particular public figure. The ... issue is therefore whether spousal identity is included in the concept of marital status, which was the alleged ground of discrimination in this case.

 

27.                     The decision in Cashin came on the heels of a series of conflicting decisions by various tribunals charged with the administration of human rights statutes. In Bosi v. Township of Michipicoten (1983), 4 C.H.R.R. D/1252, for example, a Board of Inquiry under the former Ontario Human Rights Code decided that the township's refusal to hire a woman as an accounts clerk because her husband was already employed with the township as a police officer was not discrimination on the basis of marital status. Chairperson Martin Friedland observed at p. D/1254:

 

        Should ["marital status"] be confined to the marital status of the spouse refused the position, or should it be extended to include a case such as this where the refusal was to hire a person who was married to a particular person? The former is a more natural meaning of the words "marital status" and I note that the 1981 Act [not in force at that time] so defines the words, that is, "the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage".

 

28.                     Conversely, an Ontario Board of Inquiry decided that marital status can be construed in relative terms in Mark v. Porcupine General Hospital (1984), 6 C.H.R.R. D/2538 in which Bosi was expressly repudiated. Rosemary Mark was hired as a housekeeper in the hospital's maintenance department in which her husband already worked. She was later dismissed, solely because she was married to Mr. Mark in violation of a policy of not hiring a husband and wife in the same department. Chairperson P. A. Cumming explained "marital status" as follows at p. D/2541:

 

        It seems to me the fact the discrimination arises because of the "marital status" of a complainant with respect to a particular person, rather than simply because of the marital status of the complainant, should not matter  . . . .  [I]f an employer discriminates against a person on the basis of her being married to a particular person, even though he does not discriminate against married persons generally, the particular aggrieved person would, in my opinion, be unlawfully discriminated against. The "marital status" (that is, the status of "being married") of the complainant is an essential element, or proximate operative cause, of the refusal of employment. If the complainant in Bossi [sic] had not been married to, but simply known the police officer as a casual acquaintance in that case, she would not have been rejected because of her "marital status". If the Board's reasoning in Bossi [sic] was that, in essence, the complainant was rejected because of a perceived conflict of interest, the fact remains the perceived conflict of interest only arose because of her "marital status." In my opinion, Bossi [sic] was wrongly decided on this point. [Emphasis added.]

 

29.                     In Cashin, supra, a married woman complained that she had been the object of wrongful discrimination based on "marital status" when the C.B.C. fired her because her husband was a notable public figure. The Review Tribunal formed under the Canadian Human Rights Act  adopted a wide construction of the term "marital status":

 

The policy underlying a prohibition of marital status discrimination should be considered in light of the objectives of the C.H.R.A. to prevent employers from treating people differently because of characteristics specified in the Act and to require employers to consider people on the basis of their individual merits. The policy is clearly violated when a person is denied an equal opportunity because he or she is married. It is equally repugnant whether the employer discriminates against married people as a class or because of the person to whom he or she is married. If the marital status is the proximate cause then it is right that the employer bear the burden of justifying its actions.

 

((1987), 8 C.H.R.R. D/3699, at p. D/3703.)

 

30.                     Sitting in appeal from this decision, the Federal Court of Appeal examined Bosi and Mark before arriving at what MacGuigan J. called an "intermediate" interpretation of "marital status". He began by noting, at p. 30, that:

 

Marital status normally does mean no more than status in the sense of "married or not married" and is not considered to include the identity and characteristics of the spouse.

 

31.                     Next, after stressing the importance of the overall policy objectives of the Act to the interpretation of its terms, MacGuigan J. decided at pp. 31‑32:

 

        In fine, what the Act discourages is discrimination against an individual, not in his/her individuality, but as a group cypher, identified by a group characteristic. Consequently, the identity of a particular spouse cannot be included in the notion of marital status because it is a purely individual rather than a group aspect of life. However, it seems to me that a general no‑spouse employment rule, precisely because in its generality it may have the effect of imposing a general or group category, may well fall under marital status. As in Mark or the American cases it follows, it is not a particular spouse that is brought into question, but any spouse of any existing employee. The approach I adopt might perhaps be thought of as an intermediate position between a broad and a narrow one.

 

32.                     On the strength of this definition, MacGuigan J. concluded that Mrs. Cashin, who he said had lost her job as a result of a general policy of the C.B.C. and not only because of the particular person to whom she was married, had been the object of wrongful discrimination based on civil status.

 

33.                     It is sufficient, for the purposes of the case at bar, to limit the meaning of civil status to an exclusion practised against an individual "identified by a group characteristic" to use the expression employed by MacGuigan J. The exclusion established by the respondent's hiring policy can be said to create such a group characteristic: all immediate relatives, including spouses, of full‑time employees and town councillors are excluded from consideration. To paraphrase MacGuigan J. for the purposes of the case at bar, a general no‑relative, no‑spouse employment rule, precisely because in its generality it may have the effect of imposing a general or group category, does fall into civil status. It is not necessary in this instance to decide whether the identity of a particular spouse is included in the notion of marital or civil status and I refrain from so doing. I am inclined, however, to think that in some circumstances the identity of a particular spouse might be included in marital or civil status. Sometimes an employer may exclude an individual because of the identity of his or her spouse without acting on an explicit no‑spouse rule, leaving the court with the sometimes difficult and not always useful task of inferring a "group category". A no‑spouse rule may be applied un‑ evenly by the employer and thereby lose its generality. In Cashin, for example, Mahoney J. remarked that the C.B.C. tolerated the fact that certain employees did have high profile political spouses. Furthermore, an employer may exclude a candidate for employment because of the employer's particular animosity for the spouse of the candidate. Thus the candidate is excluded because of the particular identity of his or her spouse and for no other reason. This might well be discrimination based on marital or civil status but I repeat that it is not necessary to decide this question to dispose of this appeal.

 

34.                     As I noted earlier, the respondent offered an alternative argument in its factum suggesting that the hiring policy does not constitute discrimination based on civil status:

 

        [TRANSLATION]  Had it not been for the mother's permanent position with the town, the candidacy of the mis en cause would have been considered, and yet she would have had the same civil status. The exclusion is therefore not, in truth, based on civil status as such.

 

Put another way, this argument can be said to focus on the operative cause of the exclusion of Line Laurin. The civil status of Line Laurin was not the sole cause of her exclusion, according to this line of reasoning. It is the combination of two factors‑‑Line Laurin's civil status and the position held by her mother‑‑that resulted in the exclusion. Since civil status taken alone did not cause the exclusion, it cannot be said to be the grounds for discrimination.

 

35.                     In my view, there is no merit in this argument. While in some circumstances the mother‑daughter relationship can be viewed separately from the position occupied by the mother, for the purposes of determining the cause of Line Laurin's exclusion these two factors operate together to form a single, indivisible cause. It is the civil status of Line Laurin, an appreciation of which requires an examination of the situation of her mother, which is the cause of her exclusion.

 

36.                     What I have observed to be the ambit of "civil status" under s. 10 represents a partial answer to this submission. As I have said, in many instances the civil status of one person cannot be described without reference to the situation of another. Line Laurin is not excluded because she is a daughter, but because she is the daughter of her mother. One cannot dissociate the civil status of the daughter from the situation of the mother.

 

37.                     Thus, the definition of civil status itself requires an examination of the situation of Line Laurin's mother in the case at bar. Can one dissociate the position from the person who holds the position? Even the respondent is unable to do so in its formulation of this submission: [TRANSLATION]  "Had it not been for the mother's permanent position with the town . . ." (emphasis added). The respondent does not exclude candidates on the sole basis of positions held but on the basis of positions held by immediate relatives of candidates. Line Laurin would have been considered for employment if, for example, an intimate friend rather than her mother had worked at the police station. It is impossible to separate, for the purposes of determining the cause of the exclusion, the position held by the mother from the mother‑daughter relationship as such. Just as marital status was the cause for the dismissal of a housekeeper who lost her job at a hospital because her husband worked in the same department in Mark, supra, civil status alone is the cause for Line Laurin's exclusion in the case at bar.

 

38.                     This conclusion is plain when one considers the inverse of the town's hiring policy. If an employer chose to hire only relatives of current employees, could a candidate who is not so related complain that he or she has been the object of wrongful discrimination on the basis of civil status? My view is that such a complaint would, prima facie, be well‑founded.

 

39.                     Indeed it was so decided in Syndicat national des employés de garage de Québec Inc. (C.S.D.), supra, and again recently by the Commission in Décision C.D.P.‑‑18, [1987] D.L.Q. 155. In the latter case, a collective agreement granted a preference to employees' children for summer employment with Domtar. The Commission concluded as follows, at p. 156:

 

[TRANSLATION] ... the clause...of the collective agreement which binds the employer and its union is discriminatory since it breaches the principle of equality imposed by the Charter by creating a distinction, exclusion or preference based on civil status (family relationships).

 

40.                     Counsel for the respondent cites Johnson v. Commission des affaires sociales, [1984] C.A. 61, and Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183, in support of his argument. An analogy is drawn between the sex/pregnancy distinction invoked to justify the disqualification of pregnant women from unemployment benefits in Bliss and the civil status/position‑of‑the‑mother distinction argued for here. For present purposes I note simply that the improbable distinction in Bliss between discrimination based on sex and discrimination based on pregnancy has been called into question and, even if it were to stand, the case might not be decided in the same manner today given this Court's recent recognition of adverse effect discrimination in Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536. I certainly do not consider Bliss as governing authority for the case at bar, especially given that it is cited by analogy.

 

41.                     In Johnson, a married woman alleged that she had been the victim of wrongful discrimination based on civil status when social aid benefits were refused to her family because her husband was on strike, as provided by s. 8 of the former Social Aid Act, S.Q. 1969, c. 63. Bisson J.A., as he then was, ruled that s. 8 did not violate s. 10 of the Charter (at p. 69):

 

        [TRANSLATION]  However, if appellant has been refused social aid, this refusal is not due to her civil status as a married woman but due to her husband's situation at the time the application for social aid was made.

 

        With respect, therefore, it cannot be said that appellant was refused social aid as a consequence of her civil status.

 

This decision appears to contradict the interpretation I have placed on the term "civil status" on the strength of Biscuits Associés, Mark and Cashin. Yet Johnson may be, in my view, distinguished because of the particular statutory language of the Social Aid Act at issue in that case. Section 8 directed that social aid could not be granted "to a family where an adult has lost his employment [in consequence of a stoppage of work attributable to a labour dispute]" (emphasis added). It is the family, a defined term under s. 1(b) of the Act, and not the married woman, which was the object of the exclusion attacked in Johnson.

 

42.                     My conclusion is that the respondent's hiring policy does represent an exclusion based on the civil status of persons applying for employment with the town. The exclusion is based on filiation, on fraternity and sorority, and on marital status viewed in the manner described above which, as I have observed, are all included in the "civil status" of candidates protected by s. 10 of the Charter. This is true both generally as well as in the particular case of Line Laurin. Furthermore, the candidates' civil status is the operative cause of their exclusion.

 

43.                     Such an exclusion will only constitute discrimination under s. 10 if, pursuant to the second paragraph of that provision, the exclusion has the effect of nullifying or impairing the candidates' right to full and equal recognition and exercise of their human rights and freedoms. Line Laurin and other candidates excluded by the hiring policy plainly do not enjoy full and equal recognition and exercise of their right to non‑discrimination in employment established by s. 16. The respondent's hiring practice is therefore discriminatory under s. 10. Is it justified by one of the exceptions provided for in s. 20 of the Charter? This will be considered in Parts III and IV of these reasons.

 

III     Aptitudes or Qualifications Required in Good Faith for an Employment

 

44.                     Section 20 of the Charter deems non‑discriminatory certain distinctions, exclusions or preferences which would otherwise constitute discrimination under s. 10. At the time of the respondent's motion for declaratory judgment, s. 20 provided as follows:

 

20. A distinction, exclusion or preference based on the aptitudes or qualifications required in good faith for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non‑profit institution or of an institution devoted exclusively to the well‑being of an ethnic group, is deemed non‑discriminatory.

 

45.                     Section 20 provides for two separate statutory exceptions to the anti‑discrimination norm. The first branch of s. 20 is similar to the so‑called "bona fide occupational qualification" exceptions found in other Canadian human rights statutes. The relevant portion of s. 20 read as follows at the time of the dispute:

 

20. A distinction, exclusion or preference based on the aptitudes or qualifications required in good faith for an employment ... is deemed non‑discriminatory.

 

46.                     Both the trial judge and Jacques J.A. of the Court of Appeal addressed the respondent's argument that the hiring policy is justified by the first branch of s. 20. Deslongchamps J. of the Superior Court did not accept the respondent's argument. He briefly alluded to the first branch of the exception in the following terms (at p. 208):

 

        [TRANSLATION]  The Court considers that the distinction, exclusion or preference based on the aptitudes or qualifications required in good faith for an employment, pursuant to s. 20, relates to professional and technical competence. Any other interpretation would amount to allowing indirectly what is directly prohibited by s. 10 of the Charter of Human Rights and Freedoms.

 

        Accordingly, the Court finds that the employment policy as applied by plaintiff, and in particular as applied to respondent Line Laurin, is discriminatory under the Charter of Human Rights and Freedoms having regard to the civil status of applicants for employment.

 

47.                     The majority opinion in the Court of Appeal is based on the second branch of s. 20. Paré J.A. noted the use of the first branch of s. 20 by the trial judge and by Jacques J.A. without expressing an opinion as to whether the respondent's argument was well‑founded in this respect.

 

48.                     Jacques J.A. devoted much of his dissenting opinion to the first branch of s. 20, concluding that the exception did not justify the discriminatory hiring policy. With respect, I disagree with his suggestion that the first and second branches of s. 20 are connected. Referring to the meaning of "aptitudes or qualifications" as that expression appears in the first branch, he noted (at p. 367):

 

        [TRANSLATION]  Moreover, s. 20 itself, when it refers to the "charitable, philanthropic, religious, political or educational" nature of institutions and to "ethnic groups", considerably extends the meaning of the words "aptitudes or qualifications".

 

49.                     The first and second branches of s. 20 represent distinct exceptions to the anti‑discrimination norm founded on differing legislative objectives. It is wrong, in my view, to suggest that there is a connection between them, even for the purposes of interpreting their respective terms. As we shall see, the two exceptions are deserving of different methods of statutory interpretation because of these different legislative objectives.

 

50.                     This said, Jacques J.A.'s comments relating to the first branch of s. 20 are most useful. He endeavoured first to define "aptitudes" and "qualifications" in employment. The term "aptitudes", for Jacques J.A., designates [TRANSLATION] "natural or acquired abilities for performing a task" while "qualifications" implies a wider though connected concept relating to [TRANSLATION]  "mental and intellectual attributes required by the employment". He continued (at p. 367):

 

        [TRANSLATION]  In addition, these two words further signify the legal capacity or juridical condition of a person. This is one of the meanings the dictionaries give them.

 

                          ...

 

        Accordingly, civil status, which defines a person and which indicates his capacity to render himself liable for obligation, is included in the "aptitudes or qualifications" of a person, especially where employment is concerned.

 

51.                     Jacques J.A. turned to a consideration of whether the exclusion based on civil status was, in the circumstances, "required in good faith for an employment" with the respondent. He made two preliminary remarks. First, he observed that the employer in question is a public authority, the administrative structure of which requires [TRANSLATION]  "special rules of conduct for the members of the local public service so as to avoid and inhibit any situation that may encourage an abuse of power, such as a conflict of interest or nepotism". Secondly, he cited the testimony of Mr. Lussier, the respondent's director of personnel, who stated during the hearing at first instance that there was no administrative connection between the recreation department where Line Laurin applied for employment and the police department in which her mother worked as a typist.

 

52.                     In his explanation of the expression "required in good faith", Jacques J.A. noted the following (at p. 368):

 

[TRANSLATION] ... if it appears that the ostensible motive is unreasonable, extravagant or excessive, then the qualification is not "required in good faith" but is merely imposed capriciously, and in such a case the motive is a sham. The evidence need not show an intent to thwart the Charter. Such an intent will be presumed from the fact that the ostensible motive is unreasonable.

 

53.                     Jacques J.A. decided that the rule adopted by the respondent to combat nepotism was too far‑reaching in that it applied invariably, irrespective of the position sought by the candidate and that held by the person already connected with the town (at p. 368):

 

        [TRANSLATION]  Brossard's desire to avoid nepotism and favouritism is entirely laudable.

 

        However, the method used to do so is on its face excessive. It is all‑encompassing and makes no distinction whatever between the various positions that an applicant may hold . . . .

 

Given that the problem of nepotism varies from one political entity to another, Jacques J.A. suggested that the reasonableness of any given measure must be established according to [TRANSLATION]  "the size of the municipality, its population, the number and composition of its staff and its administrative structure". In short, the measures taken to inhibit nepotism must be proportional to the imminence of the risk of such practices in each case.

 

54.                     The parties put little emphasis on the first branch of s. 20 in their submissions before this Court in spite of this dissenting opinion which focusses on the provision in depth. My own view as to the inapplicability of the second branch of s. 20 to municipalities gives the first branch increased importance as it represents the only provision currently in the Charter which government bodies can invoke to justify an otherwise discriminatory anti‑nepotism rule. While I agree with Jacques J.A.'s conclusions as to the first branch, I find it nevertheless useful to examine this exception to the anti‑discrimination norm in some detail.

 

55.                     To determine whether the first branch of s. 20 does justify the respondent's discriminatory hiring policy, the "aptitude or qualification" at issue must be properly described and, secondly, the question as to whether that aptitude or qualification is required in good faith for the employment must be answered.

 

56.                     It has been decided by this Court in Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, and reaffirmed in Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, that bona fide occupational qualification exceptions in human rights legislation should, in principle, be interpreted restrictively since they take away rights which otherwise benefit from a liberal interpretation. This is true for the first branch of s. 20.

 

57.                     It is difficult to define "aptitudes or qualifications" with any degree of precision. Typically, Quebec courts tend to examine the first branch as a whole, as did Deslongchamps J. in the case at bar: [TRANSLATION]  "the distinction, exclusion or preference based on the aptitudes or qualifications required in good faith for an employment, pursuant to s. 20, relates to professional and technical competence" (emphasis added). This said, I do consider that the term "aptitudes or qualifications" is sufficiently wide to encompass a requirement based on civil status in this case.

 

58.                     There will no doubt be cases in which courts will seek to distinguish between "aptitudes" and "qualifications" as did Jacques J.A. in the Court of Appeal. This is, of course, possible since the use of the word "or" by the legislator would encourage a disjunctive interpretation of the two terms. I do not believe it is necessary to do so, however, in this case. For present purposes, I note simply that the term "qualité" in the French version of s. 20 should be given a narrow construction to conform more precisely with the word "qualification" which the legislator uses in the English version. The narrower "qualification" is preferable given the restrictive interpretation of which the first branch of s. 20 is deserving.

 

59.                     It is useful to begin the analysis of the first branch here by an examination of the overall relationship between ss. 10 and 20. The exception provided for in the first branch of s. 20 is only invoked following the determination that a given behaviour amounts to discrimination, contrary to s. 10. The wording of each of the provisions reflects this connection:

 

10....without distinction, exclusion or preference based on... [enumerated grounds].

 

20. A distinction, exclusion or preference based on the aptitudes or qualifications required in good faith for an employment . . . . [Emphasis added.]

 

The "aptitudes or qualifications" must necessarily relate to one of the enumerated grounds in s. 10 to be relevant for the purposes of the first branch of s. 20. Though this may be stating the obvious in light of the necessary connection between ss. 10 and 20, this relationship is often forgotten in the effort to give a comprehensive definition to "aptitudes or qualifications". Physical strength, for example, may be an "aptitude or qualification" in s. 20 relating to "age", which is now a ground in s. 10. Dexterity may be an "aptitude or qualification" in s. 20 relating to "handicap" in s. 10.

 

60.                     The "aptitude or qualification" need not be in itself a ground for discrimination from the list in s. 10, but it must be connected to one such ground, otherwise there would be no reason to deem non‑discriminatory the distinction, exclusion or preference mentioned in s. 20. Once this connection between the "aptitude or qualification" and the enumerated ground in s. 10 has been established, the court or tribunal evaluates whether the aptitude or qualification is required in good faith for the employment.

 

61.                     In the instant case, what is the "aptitude or qualification" which relates to civil status, the enumerated ground in s. 10 relevant to the discriminatory hiring policy? The fact that a candidate for employment with the town has no member of his or her immediate family already employed with the town or on council inhibits real or potential conflicts between the interests of the town and those of the candidate. This absence of conflict of interest on the part of the person considered for employment is, in turn, an "aptitude or qualification" under s. 20. The town adopted this no‑spouse, no‑immediate relative policy to encourage impartiality and the appearance of impartiality in the hiring of new public servants and in the performance of their duties after they have been hired. As was observed in obiter by Chairperson Friedland in Bosi, supra, at p. D/1254, (whom I cite notwithstanding our disagreement on another point):

 

        Moreover, assuming that "marital status" is to be given a wide meaning, there would still not be improper discrimination in this case. Section 4(6) of the Act provides that the provisions "relating to any discrimination, limitation, specification or preference for a position or employment based on age, sex, or marital status do not apply where age, sex or marital status is a bona fide occupational qualification and requirement for the position or employment." The absence of a potential conflict of interests should be considered a "bona fide occupational qualification and requirement". [Emphasis added.]

 

62.                     Candidates are required to be free from conflict of interest for two reasons. Firstly, the town established the no‑spouse, no immediate‑relative rule to encourage impartiality in the hiring of new public servants. A public servant who secures the hiring of a relative rather than the most meritorious candidate commits an abuse of power and places his or her interest and that of the family‑member candidate in conflict with the interests of the town. Secondly, the town's anti‑nepotism rule is designed to promote impartiality in the performance of public servants' duties after they have been hired. Both of these objectives relate to the necessity that the town, as a publicly accountable body, have a civil service free from conflict of interest.

 

63.                     At first glance, the conflict of interest at issue would be a conflict between the interests of the town and those of current full‑time employees or town councillors, and therefore not, strictly speaking, an "aptitude or qualification" of candidates for employment. However, the better view is that interests of current employees and candidates largely coincide since they are members of the same immediate family. Moreover, the absence of conflict of interest is relevant to the candidate as a future employee as well.

 

64.                     The presence of this "aptitude or qualification" is assured by the respondent's hiring policy which, as we have seen, constitutes discrimination based on civil status under s. 10 both generally and in the specific case of Line Laurin. It is not necessary to inquire further as to the precise meaning of "aptitudes or qualifications". We can proceed with an evaluation of the bona fides of this requirement with respect to employment with the respondent town.

 

65.                     Are the absence of real or potential conflicts of interest and the appearances thereof "required in good faith for an employment" with the town? The answer to this question depends, of course, on the rigour of the test implicit in this expression as it figured in the first branch of s. 20 at the time of this dispute.

 

66.                     In Etobicoke, supra, McIntyre J. explained the meaning of a similar term in the former Ontario Human Rights Code, and I find his explanation most useful to an understanding of the first branch of s. 20 (at p. 208):

 

To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

 

67.                     For its hiring policy to be deemed non‑discriminatory, the respondent must demonstrate the following: (1) that the absence of conflict of interest requirement was imposed honestly, in good faith (a subjective test), and (2) that the requirement is related in an objective sense to the performance of employment with the town in that it is reasonably necessary to assure the efficient and economic performance of the work (an objective test).

 

68.                     The evidence submitted before the Superior Court shows that the requirement was imposed honestly and thereby meets the subjective element of the test. According to the uncontradicted testimony of the town's director of personnel, the purpose of the hiring policy is to combat nepotism, to promote sound municipal management and is not to frustrate the objectives of the Charter:

 

[TRANSLATION]  ... obviously a municipality is under public scrutiny, the property and the funds administered by municipal employees is money that does not belong to them. I think, therefore, that all appearance of nepotism or favouritism must be avoided; so of course if a town official takes it upon himself to hire people related to him or . . . .

 

MR. VERMETTE:

 

Q. Yes?

 

A. . . . it will certainly be looked upon poorly by the citizens. I think there is a clear danger of nepotism there. There is also a danger of favouritism in that, of course, high‑ranking civil servants in particular who have family members working for them will be likely to give those family members the better jobs and so on, and this will cause favouritism and will also make other people jealous . . . .

 

69.                     The respondent must also demonstrate that the aptitude or qualification is related in an objective sense to the performance of the employment concerned. McIntyre J. suggested in Etobicoke that the purpose of the objective test is to determine whether the employment requirement is "reasonably necessary" to assure the performance of the job. In the case at bar, I believe that this "reasonable necessity" can be examined on the basis of the following two questions:

 

(1)     Is the aptitude or qualification rationally connected to the employment concerned? This allows us to determine whether the employer's purpose in establishing the requirement is appropriate in an objective sense to the job in question. In Etobicoke, for example, physical strength evaluated as a function of age was rationally connected to the work of being a fireman.

 

(2)     Is the rule properly designed to ensure that the aptitude or qualification is met without placing an undue burden on those to whom the rule applies? This allows us to inquire as to the reasonableness of the means the employer chooses to test for the presence of the requirement for the employment in question. The sixty‑year mandatory requirement age in Etobicoke was disproportionately stringent, for example, in respect of its objective which was to ensure that all firemen have the necessary physical strength for the job.

 

70.                     In answer to the first question, I believe that the aptitude or qualification required of all candidates‑‑an absence of real and potential conflicts of interest and the appearances thereof‑‑is rationally connected to employment with the town.

 

71.                     Every post in the public service is coloured by the particular identity of the employer. The town of Brossard, like all government employers, enjoys legal personality through a convenient fiction of positive law. But the town is in fact a collectivity made up of its citizens. The management of the collectivity should reflect the common interest of all the town's citizens‑‑this is a cornerstone principle of government in a liberal society. In his important treatise Les principes généraux du droit administratif (3^e éd. 1930), vol. II, at p. 1, Professor Gaston Jèze said simply [TRANSLATION]  "the mission of the public service is to satisfy the needs of the general interest."

 

72.                     It is in the common interest to manage the affairs of the town efficiently and in a manner which does not favour the particular interests of one citizen over another. This is true both in the hiring of public servants and, thereafter, in the performance of their duties. Indeed the particular interests of the public servant must yield to the general interest of the collectivity, this general interest being, in theory, the public servant's sole master in the execution of his or her duties. All public servants, from the most powerful mandarin to the most junior clerk, share in this duty to the collectivity. I think it may fairly be said that all public servants may be subject, to a greater or lesser degree, to rules of conduct which recognize this higher duty. Even a lifeguard at a municipal swimming pool shares in this obligation of honesty and impartiality owed to the people he or she serves.

 

73.                     Jacques J.A. alluded to this when he observed that the administrative structure of the town requires rules of conduct for its public servants to preclude abuses of power. Professor Patrice Garant explains that this paramount general interest can justify a rule of law designed to prevent public servants from, for example, falling into situations of conflict of interest:

 

        [TRANSLATION]  Anyone who accepts the idea that the general interest should take priority over that of the individual must agree that the law should endeavour to eliminate situations in which public officials may be tempted to prefer the latter to the former. It is certainly conceivable that a public official serve his own interests without neglecting the general interest, but the risk is too great. The integrity of a public official must be complete or otherwise it will fall prey to all manner of compromises and concessions.

 

(La fonction publique canadienne et québécoise (1973), at p. 283.)

 

74.                     It is appropriate and indeed necessary to adopt rules of conduct for public servants to inhibit conflicts of interest, of which nepotism is one serious form. General rules of administrative law have been developed in all Canadian jurisdictions to this end, as well as specific rules of public law, such as the Quebec Public Service Act, R.S.Q., c. F‑3.1.1, adopted in 1983, which includes at s. 7 a specific direction for public servants to avoid conflicts of interest, and rules in municipal law, such as the Quebec Cities and Towns Act, R.S.Q., c. C‑19, which, in Division V, has like rules on the qualification and disqualification for municipal office. A public servant may abuse the power which has been entrusted to him or her when his or her interests conflict with those of the public body which he or she serves. Hiring on the basis of family relations rather than merit is one such abuse of power. Giving preferential treatment to a family member who is already employed by the public authority is another. In both these instances, there is a conflict between the interests of the town and those of the prospective or existing public servant. In both these cases, there is a violation, in a manner of speaking, of the higher duty owed to the collectivity. The town's anti‑nepotism rule is designed to prevent such abuses of power. I have no hesitation in finding a rational connection between the requirement of an absence of real or potential conflicts of interest and the employment with the town, including the position of lifeguard for which Line Laurin applied.

 

75.                     This said, the purpose of the hiring policy of the respondent goes beyond combatting real or potential conflicts of interest. The town's director of personnel testified that [TRANSLATION]  ". . . a municipality is under public scrutiny ... I think, therefore, that all appearance of nepotism or favouritism must be avoided . . ." (emphasis added).

 

76.                     It should be possible, in my view, for a government employer to establish rules of conduct designed to combat not only real or potential conflicts of interest but also the appearance of such conflicts. Dickson C.J. noted the importance of this appearance in Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455, at p. 470, albeit in a very different context:

 

... there is a powerful reason for this general requirement of loyalty, namely the public interest in both the actual, and apparent, impartiality of the public service.

 

77.                     This is not to say that all rules designed to combat real and potential conflicts of interest or the appearances thereof in government will be justified as occupational requirements. The special nature of work in the public service means only that the purpose of such rules is rationally connected to public service employment. The rule must still be properly designed to ensure that the aptitude or qualification is met without placing an undue burden on employees or candidates for employment.

 

78.                     In answer to the second question which I have posed to evaluate the respondent's hiring policy, I believe that the rule is disproportionately stringent in view of the aptitude or qualification which it seeks to verify.

 

79.                     The hiring policy the respondent has chosen to adopt is a blanket rule which, on its face, allows for no exceptions. As soon as it has been determined that a candidate is a member of the immediate family of a full‑time employee or town councillor, that candidate is excluded. The rule is unforgiving: it excludes candidates irrespective of the job for which they apply and irrespective of the position which their immediate family member occupies. It does not take into account the degree of likelihood that an abuse of power will take place. This is a maladroit technique of assuring an absence of real or potential conflicts of interest and even the appearances thereof. Line Laurin has provided us with a case in point. Given the position of lifeguard for which she applied and the position of typist at the police station which her mother occupied, there was no real conflict of interest, no reasonable potential for conflict of interest and no reasonable apprehension of bias which would give rise to a justifiable appearance of conflict of interest. Applied to Line Laurin, the hiring policy is, as the saying goes, "like killing a fly with a sledge‑hammer".

 

80.                     In support of this conclusion, I again cite the testimony of Mr. Lussier, the town's director of personnel. On examination by lawyers for the Commission and the town following the filing of the motion for declaratory judgment, Mr. Lussier explained that there was no administrative connection between the recreation department where Line Laurin applied for a job and the police department where her mother worked as a typist. The following exchange was cited by Jacques J.A. in the Court of Appeal:

 

[TRANSLATION]  MR. SENAY [for the Commission]:

 

        Q. From the administrative standpoint there is no connection?

 

        A. From the administrative standpoint there is no direct connection, no.

 

        Q. Fine. And I understand that in any case Mrs. Laurin occupies a position which could be described as subordinate?

 

        A. Yes, that's right.

 

                          ...

 

THE COURT:

 

        Q. As director of personnel, as an administrator, do you see any incompatibility between the two positions in terms of the policy of sound administration you mentioned earlier‑‑between these two positions in two different departments?

 

        A. Well, I would say, maybe it is indirect, as you yourself pointed out, from the point of view of function maybe not, but from the point of view of the people . . . .

 

        Q. Right.

 

        A. ...there is an interrelationship . . . .

 

        Q. You don't see any major problem from the functional point of view, except that it still means there are two people employed by the town of Brossard who are related?

 

        A. Yes.

 

Furthermore, Mr. Lussier testified that the position which Mrs. Laurin occupied would not have enabled her to influence the consideration of her daughter's application for employment.

 

81.                     For an exclusion of this nature to be valid under the first branch, it must be tailored to the employment in question so that it can be said to preclude real conflicts of interest, potential conflicts of interest which are reasonably likely to arise and the appearance of conflicts of interest founded on a reasonable apprehension of bias. Where there is no opportunity for an abuse of power in the hiring process, there is no possibility of partiality in hiring. Where there is no possibility of partiality in the hiring of a candidate who is a relative of a current employee or town councillor, then it would be inappropriate for that candidate to be disqualified by the anti‑nepotism rule. Similarly, where there is no opportunity for a conflict of interest in the performance of the new public servant's duties, the exclusion would also be inappropriate. In applying the objective test in Etobicoke in this context, courts and tribunals have examined whether the exclusionary rule has been properly tailored to the employment in question. In Bosi, supra, for example, Chairperson Friedland decided in obiter that the exclusionary rule was properly tailored to the employment in question (at p. D/1254):

 

The absence of a potential conflict of interests should be considered a "bona fide occupational qualification and requirement".

 

        There was a substantial potential conflict of interest in this case, about which Mr. Zurby was properly concerned. The Township office handled much of the administrative work of the police force, a sensible arrangement, in my opinion. If Mrs. Bosi was appointed to the position of accounts clerk she would be processing her husband's expense claims. Moreover, she would have access to the Police Commission documents because the typing in the township office was shared from time‑to‑time by all staff persons. The Police Commission documents included such sensitive items as disciplinary matters and salary negotiations, and Mrs. Bosi's husband played an important role in salary negotiations on behalf of the Police Association. It would be unreasonable not to be concerned about substantial conflicts of interest.

 

82.                     Conversely, in Mark, supra, Chairperson Cumming decided that, given the nature of the housekeeping job at issue, the absence of conflict of interest was not a "B.F.O.Q." (at p. D/2542):

 

        Even though Mr. and Mrs. Mark would come into contact often while working, and even though Mr. Mark would occasionally supervise Mrs. Mark, I think that given the jobs they were performing, it was not, on an objective test basis, a "reasonable and bona fide qualification" to stipulate that a husband and his wife could not work together as members of a maintenance and housekeeping department in a hospital. There was no definite and certain concern, such as the potential conflict of interest in Bossi [sic] to exempt the discrimination, once the husband and wife were employees in the same department. Perhaps this point is seen more clearly if one imagines hypothetically that a male maintenance worker had met a female housekeeper on the job in the hospital, they had fallen in love and then been married. There would seem to be no justification for terminating the employment of one of the spouses in that situation, and I do not think Mr. Moyle would have done so.

 

83.                     As I have said, it is possible that a rule designed to inhibit conflicts of interest by limiting the harmful effects of nepotism in the hiring of new public servants and thereafter in the performance of their duties could be properly tailored to deem an otherwise discriminatory municipal hiring practice non‑discriminatory. I agree with Jacques J.A. that the problems of conflicts of interest and nepotism vary considerably from one government employer to another and that the rules adopted to prevent such conflicts should be proportionate to the risk that such conflicts may, in fact, arise. As I have noted, Jacques J.A. indicates that the population of the municipality, the number of public servants it employs and any peculiarities of its administrative structure are relevant to determining whether the rule is properly designed in respect of the objective test. I would add to these criteria the nature of the positions occupied in respect of their potential for abuse of power and, to some extent, the nature of the family relationship in question. (Here the town did take these latter considerations into account by limiting the scope of its policy to candidates who had members of their immediate families among full‑time municipal employees or on council.) By way of example, Jacques J.A. noted that the risk of conflict of interest is negligible as between two brothers who work as labourers for the federal government at opposite ends of the country but much more significant if the manager of a small town is the spouse of the mayor.

 

84.                     I have observed that the respondent's hiring policy has not been sufficiently tailored to account for the nature of the positions occupied in respect of the potential for abuse of power. Line Laurin's mother was not in a position to influence the hiring of her daughter nor was there a reasonable apprehension that she could have done so. Nor is there any evidence before the Court which enables us to evaluate the blanket rule in connection with the size of the municipality and its public service which, according to Mr. Lussier's testimony, were 45,000 inhabitants and 202 full‑time and 94 part‑time employees respectively at the relevant time. Line Laurin's case is only one example of the possible exorbitant effects of the rule.

 

85.                     I note parenthetically that s. 20 was amended in 1982, at which time the expression "required in good faith for an employment" was modified to read "required for an employment". While it is the former version which applies to this appeal, my conclusions in respect of the objective test would not be different if the new version did apply. In my view, the purpose of the amendment in 1982 was to reinforce this objective test which was already implicit in the former version of the first branch of s. 20.

 

86.                     The first branch of s. 20 does not, therefore, justify the respondent's discriminatory hiring practice because the aptitude or qualification it purports to verify is not "required in good faith for" the "employment". The respondent also argued, however, that the second branch of s. 20 can be invoked to deem the hiring policy non‑discriminatory. I shall now consider the applicability of the second branch to the case at bar.

 

 

 

IV      Exclusions Justified by the Political Nature of a Non‑Profit Institution

 

87.                     Section 20 of the Charter provides for a second exception which I refer to in these reasons as the second branch of the rule:

 

20. A distinction, exclusion or preference ... justified by the charitable, philanthropic, religious, political or educational nature of a non‑profit institution or of an institution devoted exclusively to the well‑being of an ethnic group, is deemed non‑discriminatory.

 

88.                     The respondent argues that the exclusionary hiring policy is justified by the political nature of the town as non‑profit institution and is therefore deemed non‑discriminatory. Two questions arise here with respect to the second branch of s. 20. The first relates to the applicability of the provision in the case at bar. Is the town a "non‑profit institution" which may be said to have a political nature? The second question relates to the justification of the exclusion. If the town is an institution that can invoke the exception provided for in the second branch, is the hiring policy justified by the "political nature" of the town?

 

89.                     The decisions in the courts below provide us with little guidance as to the meaning and operation of the second branch of s. 20.

 

90.                     Deslongchamps J. did not refer to the second branch in his reasons for judgment. In the Court of Appeal, Jacques J.A.'s dissenting reasons are limited to the first branch of s. 20. Writing for the majority, Paré J.A. applied the second branch, concluding that the hiring policy was justified by the political nature of the town and was accordingly deemed non‑discriminatory. He began his analysis by correctly recognizing that the two branches of s. 20 amount to distinct exceptions to the anti‑discriminatory norm in s. 10 of the Charter. He decided that the second branch applied to the town without, however, giving any explanation for his reasons (at p. 369):

 

        [TRANSLATION]  The appellant is undoubtedly one of the non‑profit institutions of a political nature contemplated by s. 20.

 

91.                     Paré J.A. focussed on whether the hiring policy was justified by the political nature of the town as the question central to the resolution of the appeal. He cited the testimony of the town's director of personnel to the effect that the policy was adopted to promote the efficient administration of the town by combatting nepotism and the appearance thereof and concluded (at p. 369):

 

        [TRANSLATION]  This approach to the question seems completely logical to me and in my view the reasons given provide the necessary justification for the contested restriction under s. 20 of this statute. Indeed, any attempt to exclude the possibility of undue influence by municipal councillors in the choice of new employees would seem to me to be most commendable. Similarly, I would applaud any measure designed to limit the undue influence that existing employees may try to exert on those selecting new recruits. The very fact of the political nature of the appellant municipality justifies such a measure.

 

92.                     Paré J.A. then noted the sufficiency of this "justification" of the policy while at the same time avoiding any judicial measure of its proportionality or its reasonableness (at pp. 369‑70):

 

        [TRANSLATION]  Having found that such justification exists, I do not feel it is incumbent on this Court to determine the extent of the effectiveness of the measure in respect of its objectives; nor do I feel that it is the role of the Court to substitute its findings for those of the administration of the municipality as to the advisability of the contested measure.

 

Accordingly, he concluded that the hiring policy is deemed non‑discriminatory.

 

93.                     The parties in their written arguments invoke different methods for the interpretation of the second branch of s. 20. Counsel for the Commission cites the general rule for the interpretation of statutory provisions which limit fundamental rights conferred by human rights legislation: [TRANSLATION]  "any departure from the fundamental freedoms guaranteed and protected by the Charter of Human Rights and Freedoms must ... be interpreted restrictively." Conversely, counsel for the town contends that the second branch of s. 20 of the Charter is not an exception but rather an [TRANSLATION]  "integral statement for determining the scope and ambit of the statute which is the Charter, and it must be given its full effect."

 

94.                     While jurisprudence decided in connection with the second branch of s. 20 is sparse, what little is available tends to confirm the restrictive interpretation approach argued for by the Commission.

 

95.                     In Association A.D.G.Q. v. Commission des écoles catholiques de Montréal, [1980] C.S. 93, an organization devoted to the promotion of homosexual rights complained that the refusal by the Montreal Catholic School Commission to rent the organization a school building for a weekend congress amounted to discrimination based on sexual orientation contrary to ss. 10 and 12  of the Charter . The Catholic School Commission invoked the s. 20 exception, arguing that the exclusion was justified by the "religious or educational nature" of the Commission, a "non‑profit institution". Marc Beauregard J., as he then was, held that the Association A.D.G.Q. had been the object of wrongful discrimination which was not justified by s. 20. As to the interpretation of this provision, he noted the following (at pp. 94‑95):

 

        [TRANSLATION]  It should however be noted that s. 20 of the Charter is an exception: it must therefore be interpreted restrictively and the burden of proof as to its application rests with respondent.

 

        Interpreted restrictively, s. 20 of the Charter does not direct that s. 10 of that statute does not apply to non‑profit institutions of a religious or educational nature. It provides that the exclusion invoked by the non‑profit institution must be "justified" by the religious or educational nature of that institution.

 

        If s. 20 of the Charter is to be interpreted restrictively, it also follows that justification of the exclusion must be objective, that is, based not on a more or less capricious discretion exercised by the institution but on facts which make the exclusion a logical and rational consequence of the religious or educational nature of the institution.

 

This statement of principle has received wide approval doctrinally and appears to have been adopted by the Commission for the purposes of administrative rulings involving this s. 20 exception: see, e.g., Décision C.D.P.‑‑31, [1986] D.L.Q. 462, at p. 464.

 

96.                     On close analysis, however, Association A.D.G.Q. does not in itself provide the key to the interpretation of the second branch of s. 20 in the case at bar. Beauregard J. did not invoke the restrictive construction approach to interpret "religious nature" or "non‑profit institution" but merely to infer an objective test from the word "justified". Furthermore, he did not view s. 20 from the point of view of the collective rights it seeks to promote, i.e., freedom of religion and freedom of association, on which I will elaborate below. While Association A.D.G.Q. may well have been rightly decided in the result, I am of the view, with respect, that it is inaccurate as to the method of interpretation appropriate to the second branch.

 

97.                     To say that the very nature of the second branch of s. 20 lends itself to one of either a restrictive or liberal interpretation oversimplifies the provision and is not, in my view, particularly helpful in discovering its meaning.

 

98.                     The second branch of s. 20 is of the same order as s. 22 of the former British Columbia Human Rights Code considered by this Court in Caldwell v. Stuart, [1984] 2 S.C.R. 603, a case to which both parties allude in argument. The rule under consideration in Caldwell read as follows:

 

        22.  Where a charitable, philanthropic, educational, fraternal, religious or social organization or corporation that is not operated for profit has as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterized by a common race, religion, age, sex, marital status, political belief, colour, ancestry or place of origin, that organization or group shall not be considered as contravening this Act because it is granting a preference to members of the identifiable group or class of persons.

 

99.                     In Caldwell, McIntyre J. explained that s. 22 of the B.C. Code should not be construed narrowly because it not only limited rights but conferred and protected rights too (at p. 626):

 

        It seems evident to me that the Legislature of British Columbia, recognizing the historically acquired position of the denominational school and the desirability of preserving it, in enacting a Human Rights Code which goes far to eliminate differences and distinctions in society, included s. 22 as a protection for the denominational school or other institution in like case. It is therefore my opinion that the courts should not in construing s. 22 consider it merely as a limiting section deserving of a narrow construction. This section, while indeed imposing a limitation on rights in cases where it applies, also confers and protects rights. I agree with Seaton J.A. in the Court of Appeal where he expressed this thought in these words:

 

        This is the only section in the Act that specifically preserves the right to associate. Without it the denominational schools that have always been accepted as a right of each denomination in a free society, would be eliminated. In a negative sense s. 22 is a limitation on the rights referred to in other parts of the Code. But in another sense it is a protection of the right to associate. Other sections ban religious discrimination; this section permits the promotion of the religion. [Emphasis added.]

 

100.                   The better view is that like s. 22 of the B.C. Code, the second branch of s. 20 has a dual purpose: when it applies, it at once confers rights upon some persons and imposes a limitation on the rights of others. That it limits an individual's right to be free from discrimination is plain. It is also designed, however, to allow certain non‑profit institutions to create distinctions, exclusions or preferences which would otherwise violate the Charter if those distinctions, exclusions or preferences are justified by the charitable, philanthropic, religious, political or educational nature of the institution in question. In this sense, s. 20 confers rights upon certain groups. In my view, this branch of s. 20 was designed to promote the fundamental right of individuals to freely associate in groups for the purpose of expressing particular views or engaging in particular pursuits. Its effect is to establish the primacy of the rights of the group over the rights of the individual in specified circumstances. Rather than adopting a liberal or a restrictive interpretation of the second branch, I shall therefore endeavour to give the expressions "non‑profit institution" and "political nature" their ordinary meaning, using the traditional rules of statutory interpretation.

 

101.                   The appellant argues that a municipality is not a "non‑profit institution" as that term is used in s. 20 of the Charter. It is inappropriate, according to this argument, to consider a municipality in terms of its vocation for profit. "Non‑profit" institutions are private organizations which are formed to promote specific goals rather than to generate profits. By way of illustration, counsel for the appellant cites company law and municipal law statutes which use the same or similar terms in other contexts.

 

102.                   The respondent contests this limited definition and the analogy with statutory definitions which, it is argued, are only designed for limited purposes. According to the respondent, the legislator's choice of the word "institution" rather than "organization", which appears in similar provisions in some other jurisdictions, illustrates that the second branch applies to governments as well as private groups or associations. The respondent also argues that there is nothing inherent in the expression "non‑profit" institution which would exclude municipalities since the latter, of course, are not formed for the purposes of generating a profit.

 

103.                   It is of course true that the ordinary meaning of the word institution is very broad and includes branches of government as well as other organizations. In the Dictionnaire alphabétique et analogique de la langue française (1981), vol. III, editor Paul Robert cites Henri Capitant's definition from Vocabulaire juridique:

 

        [TRANSLATION]  An institution may take the form of an artificial person under public law (e.g. the State, Parliament) or under private law (e.g. an association), or the form of a group without legal personality, or that of a foundation or a legal regime such as tutorship, prescription, bankruptcy or expropriation for public purposes.

 

104.                   The use of the expression "non‑profit institutions" in s. 20 does not, in and of itself, preclude the application of the second branch of s. 20 to municipalities. While it is quite likely that, in the context of the provision as a whole, the term's primary meaning is limited to so‑called private organizations, it cannot be said that the legislator has given sufficient direction to exclude the wider scope of the term's dictionary definition. Nevertheless, the meaning which I attribute to the words "charitable, philanthropic, religious, political or educational nature" which precede "non‑profit institution" in s. 20 colours the meaning of the latter expression, and encourages the view that a municipality is not included therein.

 

105.                   The appellant argues that a municipality cannot be a "non‑profit institution" of a "political nature" because the word political must be given a restricted meaning in the context of s. 20 relating to partisanship. Conversely, the respondent argues that "political" should be interpreted in the fullest meaning of the word so as to include municipalities and other government employers:

 

        [TRANSLATION]  A town is an institution or political corporation governed by public law within the meaning of Art. 356 of the Civil Code of Lower Canada, a law of general application. It is political in nature. This nature, pursuant to s. 20 of the Charter, justifies the adoption by the town of certain exclusionary measures in the public interest.

 

106.                   The respondent's argument is based on a wide interpretation of the word "political", founded upon the literal meaning and etymological roots of the adjective which can be traced to the Greek, "of the city‑state".

 

107.                   Counsel cites the first paragraph of art. 356 C.C.L.C., by way of illustration, to substantiate the view that "political" in s. 20 would include municipalities:

 

        356. Secular corporations are further divided into political and civil; those that are political are governed by the public law, and only fall within the control of the civil law in their relations, in certain respects, to individual members of society.

 

108.                   The town is undoubtedly a "political corporation" pursuant to art. 356 C.C.L.C. I would suggest, however, that this observation is not useful for determining the meaning of the word "political" in s. 20 of the Charter. Article 356 C.C.L.C. has a specific and limited purpose: it is designed to distinguish between those corporations governed by public law and those which fall "within the control" of the civil law. (It also allows for instances in which political corporations are governed by civil law.) The fact that the town is a "political corporation" under art. 356 C.C.L.C. has no bearing on whether it is an "institution" of a "political nature" in the context of s. 20. The second branch of s. 20 of the Charter has a different purpose which in no way relates to the potential application of law to public as opposed to private corporations. That the town is a "political corporation" under art. 356 C.C.L.C. lends no more credence to the argument that it can invoke the second branch of s. 20 than does the double meaning of the dictionary definition of the word "political".

 

109.                   It is unquestionably true that the "political" nature of the town, taking that expression in the broadest sense, was the motivating factor for adopting the hiring policy. As I observed in the portion of these reasons pertaining to the first branch of s. 20, the overriding importance of the common interest of the collectivity may be invoked in an effort to justify a hiring policy designed to inhibit nepotism because it can be rationally linked to the "aptitudes or qualifications" required for any position in the public service. The relevance of this factor under the first branch of s. 20, however, does not mean it is relevant under the separate exception provided for by the second branch of this provision. This second branch, as we shall see, serves a different purpose in permitting otherwise wrongful discrimination than does the first.

 

110.                   Nonetheless, Quebec courts have in some instances adopted the wider interpretation of the word "political" suggested by the respondent. The decision of the majority of the Court of Appeal in this case is, of course, the leading example for our purposes. Unfortunately, as I have pointed out, Paré J.A. did not give any reasons for his chosen construction. One senses from his judgment that the laudable goal of the rule‑‑to combat nepotism‑‑was Paré J.A.'s real reason for allowing the town to avail itself of this exception in s. 20. This policy justification taken alone is, needless to say, insufficient in law to permit the application of the second branch of s. 20. The reasoning of the other decisions is only marginally more explicit.

 

111.                   In Ladouceur v. Dollard‑des‑Ormeaux (Ville de), Mtl. Sup. Ct., No. 500‑05‑003330‑865, November 13, 1986 (summarized in [1987] D.L.Q. 95), the defendant municipality adopted a by‑law requiring the signature of either an architect or an engineer on all construction plans submitted for approval. A technician, who was thereby disqualified from signing such plans, brought an action against the municipality, alleging wrongful discrimination based on "social condition" under s. 10. Durand J. of the Superior Court held that there was no discrimination but that if there had been discrimination, it would constitute a distinction, exclusion or preference justified by the political nature of the municipality (at pp. 13‑14):

 

        [TRANSLATION]  Our Court of Appeal recently held [in the case at bar] that a municipality is an institution contemplated by this provision. Even if section 5‑9‑1 discriminated on the basis of social condition, which we do not believe it does, it would be valid and secure from attack because its purpose is the improvement of the municipality and the welfare of its citizens, and it creates a "preference ... justified by the ... political ... nature" of the defendant‑applicant.

 

(See also Commission des droits de la personne du Québec v. Ville de Lachine, [1984] C.S. 361, at p. 364.)

 

112.                   While it is true, of course, that in other contexts the word "political" can enjoy the broader meaning attributed to it by counsel for the town, I am not convinced that this is the case for the term as it is used in s. 20. The interpretation of the term in context, together with an effort to infer from the legislative text the purpose of the exception provided for by the second branch of s. 20, demonstrate that a more narrow meaning is appropriate here.

 

113.                   Although the appellant does not express it as such, the conclusion that "political" is limited to partisanship is founded upon a well‑known rule of statutory interpretation noscitur a sociis. The word "political" is explained by the other examples of non‑profit institutions given by the legislator in s. 20: ". . . charitable, philanthropic, religious, political or educational nature of a non‑profit institution". The concept of "vocation" appears to be implicit in each of the words "charitable", "philanthropic", "religious", "political" and "educational". An institution such as a church, for example, would be permitted to discriminate in hiring on the basis of religious conviction when that discrimination is justified by its religious nature. In this sense, an institution of a political nature would be one with a particular ideological or policy‑oriented vocation, such as a political party.

 

114.                   This was the view of Rioux J. of the Superior Court in Commission des droits de la personne du Québec v. Québec (Ville de), [1986] R.J.Q. 243. In this case, Quebec City, which paid a higher salary to male prison guards than their female counterparts, tried to avail itself of the exception in the second branch of s. 20. Rioux J. did not accept that a municipality could be an institution with a "political nature" (at p. 250):

 

        [TRANSLATION]  The question thus arises as to what makes a non‑profit institution "political". Taken in a very broad sense, this expression may cover political authorities. It is however hard to imagine that a government would be allowed to discriminate by virtue of its mere existence, especially given that s. 54 of the Charter makes the latter binding on the Crown. Judging solely from the context of s. 20 ("the charitable, philanthropic, religious, political or educational nature"), the political nature of an institution more properly relates to the exercise of democratic principles. The exception at issue thus applies to institutions which are part of the democratic process: accordingly, a political party would be justified in hiring persons who share its ideology rather than hiring political opponents. This interpretation is all the more justified in that the Charter itself, in its treatment of political rights in ss. 21 and 22, refers to the right of any person to submit petitions to the National Assembly, the right to be a candidate in an election and the right to vote.

 

        In any case, the fact that the city of Quebec is, to use its own questionable expression, an "incorporated body politic" does not place it in the category of "non‑profit institutions of a political nature". The institutions designated by the expression in the Charter are quite different from municipal corporations. [Emphasis added.]

 

115.                   In "La Charte québécoise des droits et libertés de la personne et le dogme de l'interprétation spécifique des textes constitutionnels" (1986), 17 R.D.U.S. 19, Professor Alain‑François Bisson suggests that this approach is useful in interpreting the Charter generally, and specifically in respect of s. 20 (at pp. 25‑26, footnotes omitted):

 

        [TRANSLATION]  7. However, interpreting the chosen terms in the Charter is not simply a matter of defining isolated words. The (mere) presumption that legislation is coherent suggests that the context should be examined and logical arguments used for the purposes of interpretation.

 

        8. The proximity of words, as well as the connections that may be made between various provisions of the Charter, may indicate its meaning and scope.... If a municipality claims to be a non‑profit institution of a political nature and to benefit from the exception contained in s. 20, the response to its claim will be that "judging solely from the context of s. 20 (`the charitable, philanthropic, religious, political or educational nature'), the political nature of an institution more properly relates to the exercise of democratic principles"; that in any case this is confirmed by what the legislator means by "political rights" in ss. 21 and 22. In the final analysis, each section "must be interpreted in relation to the provisions of the statute as a whole". These are all routine applications of the noscitur a sociis argument.

 

116.                   Interpreting the word "political" in its context is, I believe, crucial to understanding the ambit of the exception provided for in the second branch of s. 20. In this sense, the noscitur a sociis argument suggested by the Commission is most useful. However, this submission is incomplete in that it does not identify the full extent of the group rights which s. 20 seeks to protect.

 

117.                   As I noted earlier, I believe the second branch of s. 20 is designed to promote the fundamental freedom of individuals to associate in groups, for the purpose of expressing particular views or engaging in particular pursuits, and for those individuals not to be inhibited, in so doing, by the anti‑discriminatory norm. There are of course restrictions to this statutory permission to discriminate. First, the group must constitute a "non‑profit institution". Second, the institution must have a "charitable, philanthropic, religious, political or educational nature" which justifies the distinction, exclusion or preference practised.

 

118.                   A Catholic school might invoke the second branch of s. 20 to justify a preference given to Catholics in its hiring policy for teachers. The school constitutes a "non‑profit institution" of a "religious" or "educational nature". The section 20 protection is extended to the school in order to allow Catholics to freely associate to promote Catholic values and beliefs. The school would still be required to show that the preference was justified by its "religious" or "educational" nature.

 

119.                   Other examples may serve to clarify the underlying policy of the second branch of s. 20. The Liberal Party of Quebec might invoke s. 20 to justify the hiring of like‑minded people as support staff to work at a Party convention. The Party constitutes a non‑profit institution of a "political" nature. Section 20 protection is extended to the Party in order to allow Liberals to freely associate to promote Liberal ideology.

 

120.                   A group of wealthy benefactors incorporate a non‑profit company and buy an apartment building with the intention of providing low‑rent accommodation to senior citizens. This would, prima facie, constitute discrimination on the basis of age pursuant to the current version of s. 10. The company might invoke the second branch of s. 20 to justify its refusal to rent low cost apartments to prospective tenants under 65 years of age. The company constitutes a non‑profit institution of a "charitable" or "philanthropic" nature. Section 20 protection is extended to the company in order to allow individuals the freedom to associate for the purposes of advancing the well‑being of the elderly.

 

121.                   In these and other examples I give in these reasons, I am not arguing that the exclusions would in themselves be justified. This is another issue to be examined on another day. The examples I cite are intended to illustrate the applicability of the second branch of s. 20.

 

122.                   The purpose of this exception in s. 20 relates to the right of members of designated groups to associate and s. 20 protection must, therefore, be limited to those groups. The town is not such a group. It cannot be said to be exercising any form of freedom of association in its discriminatory hiring practice.

 

123.                   McIntyre J. alluded to this purpose when he analysed s. 22 of the B.C. Human Rights Code in Caldwell, supra, in the passage I have cited at p. 323 of these reasons. He quoted Seaton J.A. who in turn said the B.C. provision amounted to a "protection of the right to associate".

 

124.                   The policy which underlies s. 22 of the former B.C. Code and the second branch of s. 20 of the Quebec Charter is, in my view, one and the same, in spite of the difference between the wording of the two provisions. Both rules were established to promote the fundamental freedom of individuals to associate in groups for certain specified purposes. Section 22 of the B.C. Code was the only provision of that statute which specifically preserved the right to associate, whereas the Quebec Charter includes a general protection of the "freedom to associate" at s. 3. This does not undermine the similarity between the B.C. rule and the Quebec rule. The second branch of s. 20, like the rule in Caldwell, strikes a specific balance between the freedom to associate and the right to be free from discrimination. For both provisions, the competent legislator has acted upon a policy decision to recognize the primacy of certain groups based on the particular views those groups espouse or the particular pursuits in which those groups are engaged. Consequently, McIntyre J.'s appreciation of the policy objective of s. 22 of the B.C. Code is relevant, mutatis mutandis, for s. 20 of the Quebec Charter. McIntyre J. pointed to the right of association of specified groups. A municipality is not such a group.

 

125.                   The remaining words of the second branch of s. 20 reinforce this view of the limited purpose of the statutory exception:

 

        20. A distinction, exclusion or preference ... justified by the charitable, philanthropic, religious, political or educational nature of a non‑profit institution or of an institution devoted exclusively to the well‑being of an ethnic group, is deemed non‑discriminatory. [Emphasis added.]

 

The policy reasons for protecting the non‑profit institutions in the first part of the sentence are the same as those for the protection of the institutions devoted to the well‑being of ethnic groups. The group vocation of these institutions explains why they are deserving of protection.

 

126.                   I have said that s. 20 is designed to allow individuals the freedom to associate in groups for the purpose of expressing particular views or engaging in particular pursuits. How does one determine which of these groups are protected? In the B.C. Code, considered in Caldwell, the legislator is explicit: the organization protected by s. 22 must have had "as a primary purpose the promotion of the interests and welfare of an identifiable group or class of persons characterized by a common race, religion, age, sex, marital status, political belief, colour, ancestry or place of origin". I am of the view that this pre‑condition is implicit in s. 20 given that it is specifically designed to counter the s. 10 guarantee in a group context. One Quebec decision endeavours to explain the second branch of s. 20 in this important respect. In Commission des droits de la personne du Québec v. Québec (Ville de), supra, Rioux J. of the Superior Court noted (at pp. 249‑50):

 

        [TRANSLATION]  It is understandable that an institution devoted to, for example, the protection or promotion of a social, political, ethnic or religious group, may, in its hiring practices, favour persons who belong to that group: but this does not mean that the exception permits the employer to engage in all conceivable types of discrimination. Accordingly, it may be said that an institution seeking to protect visible racial minorities may favour the hiring of members of those visible racial minorities, but that does not mean the institution is thereby authorized to pay a different salary to one member of its staff as a consequence of his sex or age. The exceptions provided for in s. 20 must be connected exclusively with the nature of the institution which is allowed to engage in a very specific form of discrimination. [Emphasis added.]

 

127.                   It is possible to overstate the connection between the brand of s. 10 discrimination practised by group (i.e., political, religious, sexual orientation, etc.) and the factor which binds members of the group together (i.e., the s. 20 "nature" of the non‑profit institution). The "exclusive" relationship between these two factors to which Rioux J. refers should not be interpreted as a requirement that there be a direct relationship. If this were the case, the words "charitable", "philanthropic" and "educational" would have no meaning because they cannot be directly linked to a prohibited ground of discrimination enumerated in s. 10. The appellant makes just such an error of overstatement in its factum:

 

[TRANSLATION]  ... in the context of the Charter of Rights , the protection given to the "political nature" of certain institutions must be understood and interpreted in light of the prohibition against discrimination based on "political beliefs".

 

128.                   It is easy enough to give examples of discriminatory practices which, at first glance, are not directly founded upon the "type" of s. 20 institution which practises them. It is more difficult to discover, from these examples, what the ambit of s. 20 protection should logically be.

 

129.                   A recent Quebec case illustrates that there need not be a direct relationship between the brand of discrimination and the factor which binds members of the institution together. In Décision C.D.P.‑‑31, supra, a non‑profit institution devoted to the promotion of women's rights did not allow the complainant to purchase a ticket to a cultural event organized to celebrate International Women's Day because he was a man. The complainant, an avowed feminist, alleged that the exclusion was discrimination on the basis of sex. The women's group contended that the event was organized for women only in keeping with the objectives of the organization which were [TRANSLATION] "to promote the expression of ideas, views and analyses of an educational, social, cultural, political and economic nature which contribute to the advancement of the status of women in our society". The Commission des droits de la personne, noting at p. 464 that [TRANSLATION]  "[t]he applicant's right comes into conflict here with the freedom of association of the mis en cause", held that the discrimination on the grounds of sex was justified by the "political or educational nature" of the non‑profit institution under s. 20. In Décision C.D.P.‑‑31, there is no direct link between the nature of the institution (political or educational) and the brand of discrimination practised (sex).

 

130.                   While there need not be a direct or exclusive relationship between these factors, I am of the view that there must always be a connection between the brand of discrimination practised and the nature of the institution. As I have said, s. 20 protects the right to associate freely in groups for the purpose of expressing particular views or for engaging in particular pursuits. Section 20 has, however, a limited legislative purpose: it is intended as an answer for "distinctions, exclusions or preferences" which would otherwise be discriminatory under s. 10. It is logical that s. 20 protection only be extended to groups for which the mere fact of associating results in discrimination founded on a s. 10 ground. The institution must have, as a primary purpose, the promotion of the interests and welfare of an identifiable group of persons characterized by a common ground under s. 10: race, colour, sex, pregnancy, sexual orientation, civil status, age, religion, political convictions, language, ethnic or national origin, social condition, or handicap, to cite the enumerated grounds of the amended provision. The institution itself may fall into one or another of the s. 20 types but there must always be a congruence between a primary group purpose and the s. 10 ground of discrimination practised. For example, the "political or educational" institution in Décision C.D.P.‑‑31 has, as a primary purpose, the promotion of the interests and welfare of an identifiable group of persons characterized by their sex. A similar connection is evident for the example I cited of a group of benefactors buying an apartment building for senior citizens only. The non‑profit housing company, a "charitable" institution, promotes the interests and welfare of an identifiable group of persons characterized by their advancing age. Whether these exclusions are "justified" is, as I have said, a question separate from the applicability of the second branch. But in each of these cases, and indeed in every case rter protects the freedom of association of a non‑profit institution which promotes the interests and welfare of an identifiable group of persons characterized by a factor enumerated in s. 10.

 

131.                   An examination of similar exceptions in other Canadian human rights statutes confirms this view of the underlying policy of the second branch of s. 20. In provinces where such exceptions exist, each provision is worded differently and has a slightly differing scope. In some statutes, the bona fide occupational requirement exception is combined with the group rights exception. The nature of the group rights exception does vary considerably from province to province but the essence of the protection afforded groups and the reason for this protection remain the same.

 

132.                   In Ontario, for example, ss. 17 and 23 of the Human Rights Code, 1981, S.O. 1981, c. 53, allow for a similar exception based on the same policy justification. Section 17 states:

 

        17. The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, is not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified. [Emphasis added.]

 

133.                   By characterizing the underlying policy of the second branch of s. 20 in this manner, I have also indirectly set the parameters within which the exception can apply. A municipality is not, for example, an institution which promotes the interests and welfare of an identifiable group of persons characterized by a factor enumerated in s. 10. The town does not discriminate in order to promote the free association of members of any such identifiable group.

 

134.                   I am not unaware that, on the basis of my interpretation, other non‑profit institutions will also be precluded from invoking this exception. A university, for example, which one would ordinarily think of as a non‑profit institution of an educational nature, cannot cite the second branch of s. 20 to justify discriminatory distinctions, exclusions or preferences unless the university has a primary purpose such as the ones described above.

 

135.                   Furthermore, one of the consequences of this view is that a government, be it municipal or provincial, can only invoke the first branch of s. 20 and not the second to justify otherwise discriminatory government policies, such as a policy to combat nepotism. Because of the terms of the first branch are limited to the field of employment, the Charter renders government powerless to combat nepotism in fields other than employment where the danger of nepotism is equally serious, such as the granting of subsidies, bids for tender, and sale and purchase of government assets. I consider this to be an unfortunate but unavoidable consequence of the language used by the legislator in s. 20.

 

136.                   Given my conclusion that the town is not a non‑profit institution of a political nature which cannot avail itself of the second branch of s. 20, the Court need not inquire as to whether the discriminatory hiring policy is "justified" in the circumstances.

 

137.                   It would be useful nonetheless to examine the nature of the justification required under the second branch in general to clarify the ambit of the exception. Ironically, a Superior Court case which adopts the majority finding of the Court of Appeal in the case at bar as to the application of the second branch, calls into question Paré J.A.'s uncritical evaluation of the justification in that case. In Commission des droits de la personne du Québec v. Ville de Lachine, supra, at p. 364, Brossard J. noted that:

 

        [TRANSLATION]  While it is true that in Ville de Brossard v. Commission des droits de la personne du Québec the Court of Appeal confirmed that a municipal corporation was one of the non‑profit institutions of a political nature contemplated by the exclusion in s. 20, the Court does not feel that this case applies in the manner suggested by counsel for the respondent. Not only has this decision been the subject of an application for leave to appeal to the Supreme Court of Canada, but more importantly we do not feel that the opinion of Paré J.A., concurred in by Bernier J.A., with Jacques J.A. dissenting, goes so far as to justify a discriminatory decision made by such a political institution in a manner which is arbitrary. Even though discriminatory, the decision must be justified and to be so it must be logical and objective at the time it was taken. We feel that the limit set by this judgment of the Court of Appeal means only that it is not the role of the Court to weigh the effectiveness of the decision nor to substitute its own findings as to the advisability of the disputed decision for those of the municipal administration. [Emphasis in original.]

 

138.                   I would agree that, as a general rule, the distinction, exclusion or preference practised by the non‑profit institution to which the second branch applies must be justified in an objective sense by the particular nature of the institution in question.

 

V       Conclusions

 

139.                   For these reasons, I would allow the appeal, set aside the judgment of the Court of Appeal, restore the judgment of the Superior Court and dismiss the respondent's motion for declaratory judgment, with costs in all courts.

 

                   The reasons of Wilson and La Forest JJ. were delivered by

 

140.                   Wilson J.‑‑My colleague, Justice Beetz, has set out in his reasons for judgment (which I have had the benefit of reading) both the facts and the history of this matter and it is not necessary for me to repeat them here. He has found, after an extensive analysis of the relevant legislation and authorities, that Line Laurin was discriminated against by the town under s. 10 of the Quebec Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C‑12, on the basis of her "civil status" and that such discrimination could not be justified under s. 20.

 

141.                   I have no disagreement with my colleague with respect to either his result or his reasons. My object in writing is to deal with an aspect of the town's submission on the issue of justification which, with respect, I do not feel has been directly addressed by my colleague.

 

142.                   According to the evidence given on behalf of the town, the town adopted the no‑spouse, no‑immediate relative "qualification" for employment for the purpose of enhancing both the reality and the public image of itself as an employer who has adopted and who applies completely impartial hiring practices, i.e., hiring practices which are based exclusively on merit and not at all on preferential treatment accorded to the relatives of persons already on its staff. By this means the town sought to ward off any allegation or suspicion that applicant X got the job because she was related to Y rather than because she was the best‑qualified applicant for it. The town's director of personnel in uncontradicted testimony stressed that the town as [TRANSLATION]  "a municipality is under public scrutiny" and that the hiring policy was designed to prevent [TRANSLATION]  "all appearance of nepotism or favouritism". As I understood the town's position it was fundamental to its submission that its anti‑nepotism policy was justifiable under the first part of s. 20 that it was not just any employer, it was a public body accountable as such to the residents of the town for the proper administration of the town's affairs including the adoption and application of impartial hiring policies and practices.

 

143.                   My colleague has dealt with this submission solely on the basis that the town's anti‑nepotism policy was a policy designed to avoid conflicts of interest in the hiring of employees and in the performance by employees of their duties once hired or the appearance of such conflicts of interest.

 

144.                   It is my view that to analyze the town's interest in its hiring policies solely in terms of the avoidance of conflicts of interest is to analyze it too narrowly. As already mentioned, I completely agree with my colleague that the anti‑nepotism policy represents overkill if the sole purpose was to avoid conflicts of interest or even the reasonable apprehension of such because it applied across the board without exception whether or not there was any actual conflict or potential for conflict involved. Accordingly, I seek to address the town's submission on the broader basis of its claim to enhance the reality and the public image of itself as an employer who has adopted and applies impartial hiring practices and to pose as the relevant question under the first part of s. 20 the following: does the word "qualifications" in s. 20 have a broader meaning having regard to the nature of the employer? Can a municipality prescribe as a qualification for employment something that might not be a legitimate qualification in the case of a private employer? Can it impose an "exclusion" within the meaning of s. 20 based on the fact that it is a public body and accountable as such for all aspects of its administration? Or, putting it in more colloquial terms, is a municipality justified in adopting hiring practices which will ensure that it is, and that it is seen to be, "squeaky clean" in the way it hires its staff? As I understand it, the town adopted its anti‑nepotism policy precisely for this purpose.

 

145.                   I quite agree with my colleague that if the real objective of the town in adopting its policy was to prevent existing employees from hiring their own relatives or from influencing those who do the hiring to hire their relatives, then this objective would be correctly analyzed in terms of the prevention of conflicts of interest. But I am persuaded that the Town's objective was much broader than that and I think therefore that we must look at that broader objective and decide whether it could provide a justification for the anti‑nepotism policy under the first part of s. 20.

 

146.                   What are "qualifications" for a job and can they have regard to the special nature of the employer? If the second branch of s. 20 were not there, could a Roman Catholic school require its teachers to be Roman Catholics and exclude all others regardless of their "qualifications" for the job? In other words, could their identity as Roman Catholics be itself a "qualification" for employment by a Roman Catholic school? Would such "qualification" be justified in the case of a Roman Catholic school even although it would be blatant discrimination on the grounds of religion in the case of another employer? I believe that in light of this Court's decision in Caldwell v. Stuart, [1984] 2 S.C.R. 603, such a qualification could be justified to the extent that it is rationally connected to the goals and objectives of the institution.

 

147.                   Coming closer to home, could a municipality which felt under an obligation as a public body to hire members of minorities as opposed to having a totally white Anglo‑Saxon or French‑Canadian police force make the applicant's race or national origin a "qualification" within the meaning of s. 20? I believe that it could if it bona fide believed that the adoption of such a policy was required in order to satisfy its obligation to properly police its particular constituency.

 

148.                   While I readily acknowledge that these are not perfect analogies to what we have in this case, they do highlight the difficulty of the issue and bring into focus the fact that the nature of the employer can be relevant in determining the qualifications which may legitimately be attached to an employment.

 

149.                   I believe that the town's most persuasive argument by way of justification of its anti‑nepotism policy is premised on a broader interpretation of the word "qualifications" in s. 20 to take account of the town's status as a public body. I agree with my colleague that the town does not fall within the second branch of s. 20 because of the application of the ejusdem generis rule. However, as my colleague points out, that does not preclude the town's status as a public body from being considered under the first branch of the section. The question then is: is the town's policy justified on the ground that a no‑spouse, no‑immediate relative rule is a "qualification required in good faith" for employment by it because of its status as a public body? The nature of the job applied for and the nature of the job held by any relative, while crucial on the conflict of interest basis of justification, would not be determinative on this question. The issue would be the basis of justification of the policy itself and not the justification of any particular application of it. Relevant factors might include the size of the population of the municipality, the number of public servants it employs, its hiring policies in the past and the public perception of such policies.

 

150.                   There seems to be no doubt on the evidence that the anti‑nepotism policy was adopted in good faith by the town to prevent vacancies in its administration from being filled by the relatives of council members or existing staff. The subjective test in s. 20 is, in my view, clearly met. The question then is: was the policy "reasonably necessary" to ensure the integrity of the town's administration or the appearance of such integrity? Unfortunately, there is little, if anything, on the record to assist us in assessing the extent to which the hiring of relatives poses a threat to the integrity of public administration or is perceived as doing so.

 

151.                   I inject here to emphasize that we are not considering whether the hiring of relatives interferes with the performance of the job or reduces the quality of that performance. We may assume that the relatives are the best qualified applicants. We are considering rather whether the hiring of relatives, regardless of their qualifications in the narrower sense, poses a threat to the integrity of the town's administration either in reality or in the public perception.

 

152.                   It seems to me that the hiring of relatives may well pose a threat or be perceived as a threat to the integrity of the town's administration. The town is, after all, expected as a public body to acquire the best people it can for its staff. It should unquestionably be engaging in impartial hiring practices. If there is no anti‑nepotism policy and a relative of one council member is hired by the town, every other member of council is apt to think that his or her relative should be hired too. The other applicants, moreover, are apt to feel aggrieved and conclude that under the town's hiring policy "it's not what you know but who you know that counts". The extent of the threat such a hiring practice poses is obviously a matter of degree and should be established by evidence. Were the hiring of relatives to become common practice it could obviously constitute a serious threat. This being so, is it "reasonably necessary" in this case to ban the hiring of relatives entirely or would it adequately serve the purpose if a watchful eye were kept on the situation and discretion exercised in order to keep the hiring of relatives (assuming their ability to do the job concerned) within reasonable proportions?

 

153.                   It seems to me that, having regard to the nature of the right which is violated by an anti‑nepotism policy, i.e., the right under s. 10 not to be discriminated against, the adoption of a total ban is not "reasonably necessary" in order to avoid a threat to the integrity of the town's administration. The town can avoid the threat by the less drastic means I have suggested.

 

154.                   What about the appearance of integrity? Is a total ban required in order to ensure that? I think not. Obviously, if the hiring of relatives becomes the rule rather than the exception, the perception of "packing" the administration will undermine the public's confidence in the integrity of its senior public officials. But again I think it is a question of degree and of evidence and that a total ban has not been shown to be required in this case. I do not for a moment disagree that an abundance of caution should be exercised by municipalities in order to avoid the appearance of preferential treatment being accorded to the relatives of council members and existing staff. But I think that a total ban goes too far here. The value designed to be protected by anti‑discrimination legislation, namely that people be dealt with as individuals and on merit, seems to me to be too important and too fundamental to be overborne by a rigid policy of anti‑nepotism if less drastic means are available to protect the integrity of the town's administration and the appearance of such integrity. I think less drastic means are available and could and should have been employed in this case.

 

155.                   For these reasons as well as those of my colleague I would allow the appeal.

 

                   Appeal allowed with costs.

 

                   Solicitors for the appellant: Rivest, Castiglio, Castiglio, LeBel & Schmidt, Montréal.

 

                   Solicitors for the respondent: Vermette, Dunton, Caron, Rainville & Toupin, Montréal.