Dec 1, 2014

Case Summary - Vriend

Vriend v. Alberta, [1998] 1 SCR 493

Vriend v. Alberta [1998] 1 S.C.R. 493(CP Vol. 3 p.36)




·App: Delwin Vriend; Resp: Alberta

·The appellant was fired from his employment at Catholic college because of his homosexuality

·He attempted to file a complaint with the Alberta Human Rights Commission but could not do so because the Individual’s Rights Protection Act did not include sexual discrimination as prohibited grounds for discrimination

·The appellant then began legal proceedings arguing that the Act violated s.15 of the Canadian Charter of Rights and Freedoms

·The trial judge declared the Act to be unconstitutional and extended its protection to discrimination on the basis of sexual orientation

·The decision was overturned by the Alberta C.A


1. Did the Alberta Individual’s Rights Protection Act violate s.15 of the Charter?

2. Was this violation justified under s.1 of Charter?


1. Yes 2. No; The appeal was allowed


[We are only interested in this case on the issue of remedies]

·Cory and Iacobucci JJ agreed that using the tools given by s.52 of the Charter and reading in sexual orientation as a prohibited grounds for discrimination into the Act was the best remedy for the Charter violation

·Case law had established that before choosing this remedy, the court must take into consideration the principles of respect for the role of the legislatures and the respect for the Charter

oWith respect to the former, reading in would minimize the inference with the Alberta’s legislature goal as set out in the Act of protecting inherent dignity and inalienable rights

·Striking down the relevant section of the Act would have deprived all Albertans of human rights protection, which would have constituted en excessive intrusion into the legislative scheme

oWith regards to the later principle, reading in sexual orientation was consistent with the purposes of the Charter, while striking down the impugned sections would have been contrary to it

·With respect to remedial precision before adopting a reading in remedy, the expression “sexual orientation” is easily discernible in everyday language

·Budgetary repercussion would not be sufficiently significant in this case to avoid reading in the remedy

·As for the effect of reading in with the thrust of the legislation, it was reasonable to assume that the legislature would have preferred to include sexual orientation in the Act than to have no human rights legislation at all

·Reading in did not interfere with the legislative objective nor with democratic principles

oDemocracy involves more than majority rule and interference is warranted where the interest of minorities has not been considered

·There were also provisions, such as s.33, to allow the legislature to legislature to override the reading in

·Major J dissented on the remedy issue and believed it would have been better to declare the impugned sections of the Act unconstitutional and suspend the declaration of invalidity for one year

·In his view, the legislature’s exclusion of sexual orientation as grounds for discrimination was clearly intentional and it would inappropriate to assume that the legislator would have remedied such under-inclusiveness by extending protection to the excluded group

·Courts should only dictate to amend under-inclusive legislation in the clearest of cases