A-53-87
Rosann Cashin (Applicant)
v.
Canadian Broadcasting Corporation (First
Respondent)
and
Sidney N. Lederman, J. Gordon Petrie and
Muriel K. Roy, sitting as a Review Tribunal pur
suant to section 42.1(2) of the Canadian Human
Rights Act, S.C. 1976-77, c. 33 as amended
(Second Respondents)
INDEXED AS: CASHIN v. CANADIAN BROADCASTING CORPORA
TION
Court of Appeal, Heald, Mahoney and Mac-
Guigan JJ.—Halifax, April 27; Ottawa, May 13,
1988.
Human rights — Discrimination on basis of marital status
— CBC refusing to extend employment of journalist married
to prominent public figure on basis of public perception of lack
of objectivity — Act allowing differentiation where bona fide
occupational requirement — Particular spousal identity not
included in concept of marital status — However, differentia
tion on basis of choice of marital surname constitutes dis
crimination — Assumed public perception of bias was subjec
tive standard — "Impressionistic" evidence insufficient.
This is an application to set aside the decision of a Review
Tribunal under the Canadian Human Rights Act and to rein
state that of the adjudicator, who found that the applicant had
been discriminated against by the CBC on the basis of marital
status. The CBC had refused to renew the applicant's contract
after her husband was appointed a director of Petro-Canada, on
the ground that her objectivity as a reporter might be suspect.
The Canadian Human Rights Commission's decision accepting
that the public's perception of objectivity is a bona fide occupa
tional requirement (BFOR), was set aside on the ground that
the requirement of natural justice had not been met (Cashin v.
Canadian Broadcasting Corporation, [1984] 2 F.C. 209
(C.A.)). The CBC argued that the Review Tribunal had the
power to hear the case de novo and reverse the findings of the
adjudicator, as paragraph 42.1(6)(b) of the Canadian Human
Rights Act empowered it to render a decision "that, in its
opinion, the Tribunal appealed from should have rendered". It
also argued that the applicant had not been discriminated
against, as the concept of marital status includes only the broad
categories of "married", "single", "widowed" or "divorced",
but does not include particular spousal identity. Finally, it
submitted that perceived objectivity is a BFOR for journalists
and that the Newfoundland audience might perceive lack of
objectivity in the applicant because she is married to a person
in a prominent public position, even though the evidence before
the adjudicator showed she was, in fact, an objective reporter.
Held, the application should be allowed.
The Canadian Human Rights Act discourages discrimination
against an individual, not in his/her individuality, but as a
group cypher, identified by a group characteristic. Consequent
ly, the identity of a particular spouse cannot be included in the
notion of marital status because it is purely an individual rather
than a group aspect of life. However, since where it is permitted
by provincial legislation, the choice of marital surname by a
woman on marriage is now a necessary incident of marital
status, the apparent policy of the CBC to treat women differ
ently who adopt their husbands' surnames constitutes discrimi
nation on the basis of a group, rather than on account of an
individual, characteristic. The employer is liable, unless it can
establish that it is justified under the exception in paragraph
14(a) for bona fide occupational requirements. In determining
whether perceived objectivity should be a BFOR, the adjudica
tor applied the test of the Supreme Court of Canada in Ontario
Human Rights Commission et al. v. Borough of Etobicoke,
[1982] 1 S.C.R. 202, that mere "impressionistic" evidence is
insufficient. An assumed perception of bias based on what the
public was presumed to know about the reporter is a wholly
subjective standard. The adjudicator found that the applicant
complied with the CBC's journalistic policy regarding objective
reporting, and that the existence of a BFOR was not estab
lished. The fact-trier's view of expert evidence should not be
rejected except on the principle in Stein et al. v. The Ship
"Kathy K", [1976] 2 S.C.R. 802, ie. if there was a palpable or
overriding error.
Per Mahoney J.: The evidence disclosed a number of cases in
which the CBC has employed in prominent news broadcasting
positions persons whom it knew were either married to or
having significant relationships with politicians. This demon
strates that the requirement of perceived objectivity had been
applied to the applicant in an entirely subjective fashion.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss.
2(a), 7, 10, 14, 42.l (1),(6)(b).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R.
84; 40 D.L.R. (4th) 577, reversing Brennan v. The Queen,
[1984] 2 F.C. 799 (C.A.).
DISTINGUISHED:
Fraser v. Public Service Staff Relations Board, [1985] 2
S.C.R. 455; (1985), 63 N.R. 161; 23 D.L.R. (4th) 122;
Derreck v. Strathroy (1985), 8 O.A.C. 206.
CONSIDERED:
Cindy Bossi v. Township of Michipicoten and K.P. Zurby
(1983), 4 C.H.R.R. D/1252; Rosemary Mark v. Porcu
pine Genera! Hospital and Arthur Moyle (1985), 6
C.H.R.R. D/2538; Re Caldwell and Stuart et al. (1982),
132 D.L.R. (3d) 79(B.C.C.A.), aff d in Caldwell et al. v.
Stuart et al., [1984] 2 S.C.R. 603; [1985] I W.W.R.
620; Air Canada v. Bain, [1982] 2 F.C. 341 (1982), 40
N.R. 481 (C.A.); Air Canada v. Carson, [ 1985] 1 F.C.
209 (C.A.); Ontario Human Rights Commission et al. v.
Borough of Etobicoke, [1982] 1 S.C.R. 202; N.V. Boci-
mar S.A. v. Century Insurance Co. of Canada, [1987] 1
S.C.R. 1247; (1987), 76 N.R. 212; Ontario Human
Rights Commission and O'Malley v. Simpsons Sears
Ltd. et al., [1985] 2 S.C.R. 536; 64 N.R. 161; 23 D.L.R.
(4th) 321.
REFERRED TO: _
Lor-Wes Contracting Ltd. v. The Queen, [1986] I F.C.
346; (1985), 60 N.R. 321 (C.A.); Crupi v. Canada
Employment and Immigration Commission, [1986] 3
F.C. 3; (1986), 66 N.R. 93 (C.A.).
COUNSEL:
Ronald A. Pink and Kimberley H. W. Turner
for applicant.
Ian F. Kelly for respondent CBC.
James M. Hendry for Canadian Human
Rights Commission.
SOLICITORS:
Patterson, Kitz, Halifax, for applicant.
Curtis, Dawe, St. John's, Newfoundland, for
respondent CBC.
Canadian Human Rights Commission,
Ottawa, for Canadian Human Rights Com
mission.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: I have had the advantage of
reading the reasons for judgment of my brother
MacGuigan herein and am in entire agreement
with them and with the disposition he proposes of
this application. I wish only to refer to other
instances disclosed by the evidence in which, one
might have thought, some question as to perceived
objectivity would have arisen had that qualifica
tion really been an occupational requirement sus
tainable in law as bona fide.
Perhaps actuated by reluctance to publicly
record the personal relationships of other media
personalities and potential news subjects or
sources, neither the Tribunal nor the Review Tri
bunal referred to that undisputed evidence which,
in my opinion, supports both the conclusion that
the discrimination here was based on her marital
status and not simply on the fact that Rosann
Cashin was married to a particular person and also
the Tribunal's conclusion, reversed by the Review
Tribunal, that the CBC's version of perceived
objectivity did not meet the test established by the
Supreme Court of Canada in Ontario Human
Rights Commission et al. v. Borough of Etobi-
coke, [1982] 1 S.C.R. 202, for a bona fide occupa
tional requirement. I propose to do this by simply
describing situations which the CBC tolerated
without naming the persons concerned but provid
ing references to the record should another court
have occasion to review this judgment. I shall also
refer only to the relationships involving persons
employed by the CBC in news broadcasting and
not to those employed to express opinions nor to
employees of other news organizations. All refer
ences are to the record of the Tribunal, Appendix I
to the Case.
A co-host of a national television news program
is described as the "regular date" of "a key Tory
backroom strategist", in fact, a recent national
director of the party, volume 7, page 1157. A
national affairs reporter is the wife of "a well
known political activist" and leader of a radical
element in the New Democratic Party, volume 3,
page 457. The wife of a radio national affairs
correspondent and Parliamentary bureau chief is
communications director for a Leader of the
Opposition, volume 3, pages 458, 497; volume 8,
page 1323. A reporter/producer for a nationally
televised news program is married to a Prime
Minister's press secretary, volume 3, page 501;
volume 8, page 1329. Prior to that marriage, the
press secretary had a relationship with another
television news reporter, volume 8, page 1334. A
senior television news correspondent has a relation
ship with a Prime Minister's legislative assistant,
volume 3, page 502; volume 8, page 1329.
All of these relationships were well known to the
CBC's management. They demonstrate that the
requirement of perceived objectivity was, in fact,
invoked in the entirely subjective fashion described
by Donna Logan, the senior CBC management
person to testify. Mr. Justice MacGuigan has
quoted the gist of her evidence on the point.
Common to all of those relationships, married or
not, the parties did not share surnames. The mass
of its audience was unlikely to be aware of the
relationship and, therefore, by CBC standards, the
perception of the objectivity of its on air news
personnel was not called into question even though
the job titles of at least some of their partners
suggest an active interest, perhaps duty, to influ
ence the content and presentation of the news.
* * *
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: The applicant, a writer/radio
broadcaster with the first respondent in New-
foundland, was denied continuing employment by
it in September 1981 because of the fact that her
husband, Richard Cashin, a prominent public
figure in Newfoundland, had been appointed to
the Board of Directors of Petro-Canada.
Initially, the Canadian Human Rights Commis
sion ("the Commission") dismissed her complaint
of discrimination under the Canadian Human
Rights Act [S.C. 1976-77, c. 33] ("the Act"), but
following the decision of this Court in Cashin v.
Canadian Broadcasting Corporation, [1984] 2
F.C. 209, her complaint was referred to a single
adjudicator (Susan Ashley) sitting as a Human
Rights Tribunal, who found, in a decision dated
November 25, 1985, that the first respondent's
action constituted discrimination on the basis of
marital status contrary to sections 7 and 10 of the
Act without any redeeming justification as a bona
fide occupational requirement ("BFOR") under
section 14.
These sections of the Act read as follows:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual,
or
(b) in the course of employment, to differentiate adversely in
relation to an employee,
on a prohibited ground of discrimination.
10. It is a discriminatory practice for an employer or an
employee organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, refer
ral, hiring, promotion, training, apprenticeship, transfer or
any other matter relating to employment or prospective
employment,
that deprives or tends to deprive an individual or class of
individuals of any employment opportunities on a prohibited
ground of discrimination.
14. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension, limitation,
specification or preference in relation to any employment is
established by an employer to be based on a bona fide
occupational requirement;
The Adjudicator consequently ordered the first
respondent to make an offer to reinstate the appli
cant to her former or a similar position as soon as
possible, to pay her a sum for lost wages to be
determined by the parties (or, if they could not
agree, to be determined by the Tribunal), and to
pay her the sum of $2500 in respect of hurt
feelings or loss of self-respect as a result of the
discriminatory practice.
The first respondent appealed from that deci
sion, and a Review Tribunal (the second respond
ents), in a decision dated January 23, 1987,
allowed the appeal. The applicant now seeks to
attack the Review Tribunal's decision under sec
tion 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10].
I
The first question that arises is as to the powers of
the Review Tribunal in relation to the initial Tri
bunal. Section 42.1 of the Act is as follows:
42.1 (I) Where a Tribunal that made a decision or order
was composed of fewer than three members, the Commission,
the complainant before the Tribunal or the person against
whom the complaint was made may appeal against the decision
or order by serving a notice in a manner and form prescribed by
order of the Governor in Council ; within thirty days after the
decision or order appealed from was pronounced, on all persons
who received notice from the Tribunal under subsection 40(1).
In Brennan v. The Queen, [ 1984] 2 F.C. 799
(C.A.), at page 819 reversed by Robichaud v.
Canada (Treasury Board), [1987] 2 S.C.R. 84; 40
D.L.R. (4th) 577, on other grounds, Thurlow C. J.
wrote for the majority of this Court:
It is no doubt true that in a situation of this kind where no
evidence in addition to that before the Human Rights Tribunal
was before the Review Tribunal the latter should, in accord
ance with the well-known principles adopted and applied in
Stein et al. v. The Ship "Kathy K" ([1976] 2 S.C.R. 802; 62
D.L.R. (3d) I), accord due respect for the view of the facts
taken by the Human Rights Tribunal and, in particular, for the
advantage of assessing credibility which he had in having seen
and heard the witnesses. But, that said, it was still the duty of
the Review Tribunal to examine the evidence and substitute its
view of the facts if persuaded that there was palpable or
manifest error in the view taken by the Human Rights
Tribunal.
The dissent (at page 841) assumed the same stand
ard without deciding the question.
The first respondent argued that, whether the
Review Tribunal heard additional evidence or not,
its power to render the decision "that, in its opin
ion, the Tribunal appealed from should have ren
dered" [subsection 42.1(6)] enabled it effectively
to conduct a hearing de novo. However, in addition
to the authority of the Robichaud case, such an
interpretation should not, it seems to me, be given
to section 42.1 unless it is the clear intention of
Parliament, since the bias of the law runs strongly
in favour of fact-finding by the tribunal which
heard the witnesses. Parliament's intention, as I
read it, appears in fact to be that the hearing
should be treated as de novo only if the Review
Tribunal receives additional evidence or testimony.
Otherwise, it should be bound by the Kathy K
principle.
The findings of the adjudicator must therefore
stand unless she committed some palpable and
overriding error.
II
The case was argued on the basis that the appli
cant was discriminated against, if at all, not
because she was married per se, but because she
was married to a particular public figure. The
second issue is, therefore, whether spousal identity
is included in the concept of marital status, which
was the alleged ground of discrimination in this
case. Both tribunals were agreed that it is so
included, but their conclusions on this point were
challenged before this Court by the first
respondent.
The first respondent's argument was that one
must look first to the plain, ordinary and natural
meaning of the words used, which in this case, it
argued, is status in the sense of "married or not
married," or in relation to marriage as in the
categories "single", "married", "widowed", or
"divorced".
A number of decisions were cited in support of
this contention, particularly Cindy Bossi v. Town
ship of Michipicoten and K.P. Zurby (1983), 4
C.H.R.R. D/1252, at pages D/1253-1254 (Ontario
Board of Inquiry, Professor Martin L. Friedland),
where the Board held:
The key question in this hearing is the scope of the words
"marital status". It is not defined in the old legislation. Should
it 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 so defines
the words, that is, "the status of being married, single, wid
owed, divorced or separated and includes the status of living
with a person of the opposite sex in a conjugal relationship
outside marriage." [Emphasis added.]
In resisting this approach the intervenor Com
mission also cited a number of decisions, including
a later Ontario Board decision which refused to
follow Bossi: Rosemary Mark v. Porcupine Gener
al Hospital and Arthur Moyle (1985), 6 C.H.R.R.
D/2538 at page D/2541 (Ontario Board of Inquiry,
Professor Peter A. Cumming), where the Board
declared as follows:
21038 In Cindy Bossi v. Township of Michipicoten and K.P.
Zurby ... the female complainant was refused employment as
a clerk in a Township office because her husband was then
employed with the Township police force.
21039 Chairman Friedland seemed to find that the prohibition
against discrimination on the basis of "marital status" under
Section 4 of the Ontario Human Rights Code, R.S.O. 1980 is
confined to the situation where the refusal to employ is simply
because the complainant is married, but does not cover dis
crimination because she is married to a particular person (a
police officer in that case). He was of the view also, obiter, that
the definition of "marital status" given by paragraph 9(g) of
the new Code expressly limits that ground to the first, more
narrow interpretation (Bossi, supra, at D/1254, para. 10914)
With great respect, I cannot agree.
21040 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. If hypothetically,
an employer refuses a black person employment because the
employer holds racially discriminatory views toward the par
ticular individual, but allows some other persons who are black
to work for him, there would be a breach of either the old or
the new Code. Similarly, if 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 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 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 was wrongly decided on this
point. (However, the Board in that case also decided on the
facts that a bona fide occupational qualification defence arose
under subsection 4(6) of the old Code, and on this finding alone
the complainant in Bossi lost in all events.)
21041 There is support for my interpretation in another recent
decision. In Mabel Monk v. C.D.E. Holdings Ltd., Dakota
I.G.A. and Dennis Hillman, (1983) 4 C.H.R.R. D/1381
(Manitoba: Chairman Paul S. Teskey) the female complai
nant's employment was terminated because she was married to
a particular person, someone who was a shareholder of her
corporate employer and was engaged in a legal dispute with
such employer. After a careful review of the authorities, the
Board concluded that the definition of "family status" in
section I (1) of the Manitoba Human Rights Act, C.C.S.M. c.
H 175, includes discrimination because a specific person is the
individual's spouse or child (at D/1384, paras, 11900, 11904).
American cases have also adopted the broader interpretation of
"marital status." See Kraft, Inc. v. State of Minnesota (1979)
284 N.W. 2d 386 (S.C. Minn.); Thompson v. Board of Trus
tees School Dist. (1981) 627 P. 2d 1229 (Sup. Ct. Montana);
cf. Yuhas v. Libby-Owens-Ford Co. (1977) 562 Fed. Rep. 2d
496 (IJ.S.C.A.; 7th Cir.) (all cited in Bossi, at D/1254, para.
10915).
21042 I would base my above interpretation of the meaning of
"marital status" as a prohibited ground on ordinary rules of
general statutory interpretation. However, I could add that it is
a general rule in interpreting human rights legislation, as it is
remedial in purpose, to do so in a liberal manner so as to
effectuate its purpose.
Aside from these cases, the arguments on both
sides are by analogy, and the issue remains open to
this Court, as it was not decided by the Supreme
Court in Caldwell et al. v. Stuart et al., [1984] 2
S.C.R. 603; [1985] 1 W.W.R. 620.
In my opinion, the first respondent has the
stronger case on a literal meaning approach. Mari
tal 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 characteris
tics of the spouse. This is what Seaton J.A. held
for the British Columbia Court of Appeal in Re
Caldwell and Stuart et al. (1982), 132 D.L.R.
(3d) 79 at page 88, upheld by S.C.C., supra, on
other grounds, where a Catholic teacher married a
divorced person in a civil ceremony contrary to the
rules of the Church:
In my view, religion in s. 8(2) means religion of itself and
does not extend to a cause based on religion. Thus the question
for the board within s. 8(2)(a) was whether Mrs. Caldwell was
not re-employed simply because she was Catholic. Similarly,
marital status means marital status of itself and the question
for the board was whether Mrs. Caldwell was not re-employed
simply because she had married.
This Court in Air Canada v. Bain, [1982] 2 F.C.
341; (1982), 40 N.R. 481 also gave a narrow
reading to marital status.
Of course, a court must always take what I have
referred to as a words-in-total-context approach
(Lor-Wes Contracting Ltd. v. The Queen, [1986]
1 F.C. 346, at page 352; (1985), 60 N.R. 321
(C.A.), at page 325; Crupi v. Canada Employment
and Immigration Commission, [1986] 3 F.C. 3, at
page 31; (1986), 66 N.R. 93 (C.A.), at page 109).
On such an approach the applicant has the advan
tage of the "almost constitutional" status of
human rights legislation which the Supreme Court
of Canada reiterated again recently in R. v. Mer-
cure, [1988] 1 S.C.R. 234, at pages 267-268. This
quasi-constitutional status certainly requires, as a
consequence, a broad interpretation of human
rights legislation. As the Court put it in Ontario
Human Rights Commission and O'Malley v.
Simpsons Sears Ltd. et al., [1985] 2 S.C.R. 536,
at page 547; (1986), 64 N.R. 161 at page 173; 23
D.L.R. (4th) 321 at page 329, in discussing the
proper interpretation of a human rights code, "it is
for the courts to seek out its purpose and give it
effect."
The purpose of the Act is set out in paragraph
2(a), as it then was, as follows:_
2. ...
(a) every individual should have an equal opportunity with
other individuals to make for himself or herself the life that
he or she is able and wishes to have, consistent with his or her
duties and obligations as a member of society, without being
hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin, colour,
religion, age, sex or marital status, or conviction for an
offence for which a pardon has been granted or by dis
criminatory employment practices based on physical
handicap;
It is important to note that the principle of
unhindered equal opportunity which is set forth is
not a total guarantee against discrimination in life
but rather one against certain specified forms of
discrimination, all of which are based on group
membership of some kind, whether in natural
groups like race and colour or in freely chosen
groups like marital status. In Air Canada v.
Carson, [1985] 1 F.C. 209 (C.A.), at page 239, I
therefore interpreted this statutory provision as
follows:
As is evidenced by section 2 of the Canadian Human Rights
Act, Parliament has made a fundamental decision to give
preference to individual opportunity over competing social
values. The preference is not absolute ... But the courts must
be zealous to ensure that Parliament's primary intention that
people should for the most part be judged on their own merits
rather than on group characteristics is not eroded by overly
generous exceptions. [Emphasis added.]
In order to allow individual people to be treated as
individuals rather than as members of groups,
Parliament "penalized" certain kinds of group
labelling, relating to membership in certain funda
mental groups. The policy against categorizing
through group characteristics, Parliament believes,
will allow individual people to be taken as they are
individually and not as mere prototypes of the
fundamental groups to which they may belong.
In my view, this understanding also emerges
from this Court's decision in the Robichaud case,
supra, on the issue as to whether sexual harass
ment constituted sexual discrimination. The issue,
as it was there phrased, was: when a discriminator
acts adversely towards only one female, instead of
towards many at random, can this be said to be
discrimination based on the general category of
sex? The Court held that it was, in that the victim
was subject to unwanted attention precisely
because of her individual sex qualities (at page
840):
It was not a random or a general adverse differentiation. It was
rather because of the individuating aspects of Mrs. Robichaud's
sexuality that she was victimized.
In fine, what the Act discourages is discrimina
tion against an individual, not in his/her individu
ality, but as a group cypher, identified by a group
characteristic. Consequently, the identity of a par
ticular 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 inter
mediate position between a broad and a narrow
one.
III
In the case at bar, was there discrimination based
on marital status in the sense just defined? This
was not the basis on which either tribunal decided
the case, nor the basis on which it was primarily
argued before this Court by the parties. Neverthe
less, although the adjudicator adopted the broadest
view of marital status, she also found discrimina
tion based on narrower considerations as well
(Appeal Book, Appendix I, volume 15, page 2541):
[1]t seems on the evidence that Mrs. Cashin was treated
differently than a single person in her situation would have
been treated. The evidence indicates that the problem was the
fact that Rosann Cashin was married to Richard Cashin. If she
had been associated with him in some other relationship than as
spouse, or if they were divorced, presumably there would be no
problem. The evidence shows the following exchange (at page
874):
(Mr. Pink) Q. let's just say that she changes her name
and her voice is pitched in a different
fashion, do you still have a problem?
(Mr. Reynolds) A. If she is still married to Richard Cashin, I
have a problem.
According to the test in Bain, it is exactly this type of situation
where discrimination based on marital status can be said to
exist. A married person is treated differently than an unmar
ried person in the same circumstances would be treated.
Even though, as the first respondent argued, the
passage selected from the proceedings by the
adjudicator, taken in context, can be given a dif
ferent interpretation, there is other evidence as
well which supports her conclusion, particularly in
the testimony of Donna Logan, the Program
Director of Information for CBC radio networks
(A.M. and stereo) (Appeal Book, Appendix I,
volume 8, page 1333):
There has to be a form of control, and I think the thing that
determines what that's going to be is first of all, is the person
well known, is it well known that the couple is married, and
here whether the wife uses the husband's name comes into play
And again (ibid.), volume 9, page 1372):
Now I notice the other party does not have the same surname.
Is that a factor in your view in looking at these relationships?
A. Yes, of course it's a factor. It's one way of a woman
maintaining a separate profile. It's widely recognized in the
business as the reason for doing that.
In Four B Manufacturing Ltd. v. United Gar
ment Workers of America et al., [1980] 1 S.C.R.
1031, at pages 1047-1048, Beetz J. linked with
Indian status "rights so closely associated with
Indian status that they should be regarded as
necessary incidents of status such for instance as
registrability, membership in a band, the right to
participate in the election of Chiefs and Band
Councils, reserve privileges, etc." Similarly, neces
sary incidents of marital status must be linked
with it in such a way as to merit the same protec
tion which the Act extends to marital status itself.
In my view, this Court may take judicial notice
of the fact that most, if not all, of the provinces
have in recent years legitimized for married
women the option of using either their original or
married surnames (though at least one province
requires the continuance of the original surname).
Where it is allowed by law, the choice of a marital
surname by a woman on marriage has emerged as
a necessary incident of marital status.
It became apparent at the hearing before the
adjudicator that there is no written policy estab
lished by the first respondent relating to the
spouses of employees, but it is clear from the
testimony of Donna Logan that the policy that was
thought to exist adversely differentiated against
married women who adopted their husbands' sur
names. In my view this is discrimination based on
a primary incident of marital status. It is discrimi
nation under the aspect of group rather than of
individual. Such adverse differentiation tending to
affect employment opportunities thus exactly con
stitutes a prima facie discriminating practice
under both sections 7 and 10 of the Act, and the
employer is therefore liable, unless it can establish
that it falls within the exception of a bona fide
occupational requirement in paragraph 14(a) of
the Act.
IV
The leading cases under paragraph 14(a) of the
Act are Ontario Human Rights Commission et al.
v. Borough of Etobicoke, [1982] 1 S.C.R. 202;
132 D.L.R. (3d) 14, in the Supreme Court of
Canada and Air Canada v. Carson, supra, in this
Court.
The claim of the first respondent is that it was
legitimate for it to be concerned that the listening
audience in Newfoundland might perceive the
applicant as lacking objectivity in reporting on
resource issues because of the prominent position
held by her husband in that area. It therefore
argued that perceived objectivity is a BFOR for its
journalistic personnel.
The adjudicator upheld the first respondent's
position with respect to the test of good faith
(Appeal Book, Appendix I, volume 15, page 2548):
Applying the Etobicoke and Carson tests to Mrs. Cashin's
case, I have no difficulty in finding that in the subjective sense,
the Respondent imposed their requirement regarding perceived
objectivity, in the words used in Etobicoke, "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". The witnesses called by the Respondent from the CBC
were credible and genuine, and apparently guided by their
desire to have the best possible current affairs programming at
the station.
This finding was accepted by the Review Tribunal
and was not challenged before this Court.
With respect to the objective element of the
Etobicoke test, the adjudicator, following Carson,
examined the necessity of the BFOR and its reason
ableness, as follows (ibid., at page 2549 ff.):
In trying to determine whether the perception of objectivity
is a valid BFOR, we must first examine the requirements and
responsibilities of the job of broadcaster in the CBC. Not only
must the BFOR be a reasonable requirement, but it must be
reasonably necessary to the job.
The Respondent called several witnesses who testified as to
the standards to be met by CBC broadcasters. There is a
disagreement between the Complainant and the Respondent as
to what the test should be: the Complainant argues for the "fair
and balanced" test while the Respondent puts forward "per-
ceived objectivity" as the appropriate standard ....
The CBC policy document entitled "Journalistic Policy"
(Exhibit R-5) sets out the standards and policies to be adhered
to on a broad range of subjects. The manual in several places
deals with the responsibility of journalists in terms of conflict of
interest, fairness, etc ...
All of the Respondent's witnesses from CBC St. John's agree
that Mrs. Cashin's reporting on the Resources Unit met all of
the tests, whether the test is described as "fair and balanced",
"fair and accurate" or by the words used in the Policy Manual.
Up until the time that she actually ceased working at CBC at
the time of the strike in May 1981, they had received no
negative comments about her reporting. On the contrary, she
had received two awards for her reporting .... [A]ll agree that
actual objectivity or fairness is not the issue.
The Respondent goes further. Despite the fact that Mrs.
Cashin had a reputation as a responsible and fair journalist,
apparently meeting the standards set out in the 'Journalistic
Policy', they allege that there is a further requirement that she
be perceived by the public as being objective ...
There are problems with accepting "perceived objectivity" as
a BFOR. One such problem is that "perceived objectivity" is
almost impossible to measure. If there is no objective way for
an employer to determine audience perception, it is impossible
for that same employer to judge whether the perception is
positive or negative. None of the common ways used to gage
audience reaction appear to be successful or adequate ways of
measuring the audience's perception of a reporter's objectivity.
The manual speaks frequently of situations to be avoided by
broadcasters which might affect their credibility or objectivity,
clearly recognizing that objectivity is a factor of special impor
tance not only to the reputation of the reporter but also to the
reputation of the Corporation. (They include a specific section
on "Balance" in the policy.) But the official statement of CBC
policy makes no specific reference to perceived objectivity.
They do, however, require "rigorous standards of accuracy,
fairness, balance and impartiality".
The difficulty in measuring perceived objectivity is impor
tant. If call sheets, interviewee reaction, or ratings do not
indicate that the broadcaster is or may be lacking in objectivity,
then how is the employer to make the judgment call that the
person's objectivity may be questioned? In this case, the CBC
decided that Mrs. Cashin might be perceived by the audience
as lacking objectivity on the basis, not of any evidence, but
rather of a "gut reaction". The Supreme Court of Canada in
Etobicoke has stated that mere "impressionistic" evidence is
insufficient to establish a valid BFOR. 1 am not satisfied in this
case that any other than impressionistic evidence existed. The
Producers became aware of Mr. Cashin's appointment to Petro
Canada and, without making any inquiries as to the nature,
term or conditions of his appointment or indeed without speak
ing to him at all, without speaking to Mrs. Cashin about her
role in light of the appointment, without seeking direction from
CBC management about the policy in handling such a situa
tion, the assumption was made, because of the relationship of
husband and wife which existed between Richard and Rosann
Cashin, not that her objectivity would be jeopardized but that
the public might perceive it to be so.
I am not satisfied that a "perception of objectivity" is, of
itself, a reasonably necessary requirement of a broadcaster's
job. A perception that a reporter lacks objectivity, if it exists,
may be based on factors which have no bearing on the report
er's actual objectivity. For example, we heard evidence that
production factors can make a person look dishonest or
shifty .... An audience's perception of a reporter's lack of
objectivity might also be based on prejudiced attitudes or
stereotyped ideas about a particular class of people. For exam
ple, if it could be proved that audiences in Newfoundland
perceived female reporters to be dishonest or lacking in objec
tivity, 1 am not convinced that that would be sufficient justifi
cation for failing to hire female reporters, in the absence of
evidence that female reporters were in fact dishonest or lacking
in objectivity.
If it can be said that a perception of lack of objectivity exists
without basis, and that the reporter's work has not fallen from
its usual high standard, how can it be said that perception is
reasonably necessary to the performance of the job if the job
performance remains of high standard. Quite simply, the
requirement does not relate to the work, if the work is objective,
fair, accurate and balanced. This leads me to the conclusion
that the perceived objectivity requirement has not met the
objective requirement of the BFOR test.
There may be other factors which could be defined as valid
BFOR's to a broadcaster's job, and in my view, objectivity or
fair and balanced reporting are examples. The Journalistic
Policy talks in various places of being "fair, accurate, thorough,
comprehensive and balanced" (page 1), of the journalistic
principles as being accuracy, integrity, fairness and thorough
ness (pages 6-7), of reporting in a "fair and judicious manner"
(page 8), and of conveying news "with maximum fairness,
accuracy and integrity" (page 16). I have heard no evidence
that Mrs. Cashin has failed to meet the policies set out by the
CBC themselves in their official policy document outlining
journalistic standards.
I find that the Respondent has failed to establish the exist
ence of a BFOR under section 14.
In coming to the opposite conclusion from the
foregoing, viz., that perceived objectivity is a BFOR
in radio broadcasting, the Review Tribunal relied
heavily on Fraser v. Public Service Staff Relations
Board, [1985] 2 S.C.R. 455, at page 470; (1985),
63 N.R. 161, at page 178; 23 D.L.R. (4th) 122, at
page 133, where the Supreme Court held that "a
public servant must not engage, as the appellant
did in the present case, in sustained and highly
visible attacks on major government policies." It
also relied on Derreck v. Strathroy (1985), 8
O.A.C. 206, at page 211 where an Ontario Divi
sional Court held, in the context of a father-
daughter relationship that "a relationship as close
as this gives rise to a reasonable apprehension of
bias." After examining the evidence the Review
Tribunal concluded (Appeal Book, volume 1, page
33):
On the basis of this evidence, we cannot agree with Chair
man Ashley that perception of objectivity is subsumed in a
broadcaster demonstrating actual objectivity. The two do not
necessarily go hand in hand. Whether it be public servants as in
the Fraser case or municipal councillors as in the Derreck case
or whether it be broadcasters with the C.B.C., the standards
that are required in order for them to maintain their integrity
with their ultimate constituency is that they not only be objec
tive but that they appear to be so. We therefore must conclude
that perception of objectivity is a job related quality and one
that is reasonably imposed by the C.B.C.
As I have indicated, it would only be if the
adjudicator made some palpable and overriding
error which affected her assessment of the facts
that the Review Tribunal would be justified in
reversing her findings. In my view it is rather the
Review Tribunal which has made such errors.
The Fraser case is, I believe, to be distinguished
from the case at bar, not only for the reason that
the Review Tribunal itself recognized (at page 28)
"that Mr. Fraser, unlike Mrs. Cashin, put himself
in a compromising position by reason of his own
conduct," but even more because in Fraser the
conduct in question was criticism of the Govern
ment of Canada as employer, and the Court found
that within the particular tradition of the public
service there is a "public interest in both the
actual, and apparent, impartiality of the public
service" (at pages 470 S.C.R.; 178 N.R.; 134
D.L.R.). I think it is impossible to extrapolate
from such facts a rule to cover the very different
situation in the case at bar.
from such facts a rule to cover the very different
situation in the case at bar.
The Review Tribunal may have been right in the
analogy it drew with the Derreck case, but the rule
there laid down relates to a reasonable apprehen
sion of bias, not to an assumed perception of bias
by the public. The former is in my understanding
an objective standard based on reasonableness.
The latter is a subjective test based on a sheer
guess by the employer as to how the public is
reacting or is likely to react.
It is clear from the testimony of Donna Logan
that what the first respondent was concerned
about was not reasonable apprehension of bias, as
judged from its perspective, but the public's sub
jective reaction, based on what it was presumed to
know about the reporter (supra, at page 1328):
A. Well, it depends on how well known the person is,
because the problem arises when it becomes a problem in the
mind of the viewer or the listener, and the question of perceived
objectivity—if it is not well known, if the person involved is not
a frontline player, not actually involved in the stories that are
happening, then we would not have a problem, because we
assume that Mary Lou is a professional and can do her job.
Q. So, it's a question of how prominent and how well known
the situation is?
A. That's correct.
Such a standard appears to me to be a wholly
subjective one, unredeemed by any objective ele
ment. It is, as the saying goes, no way to run a
railroad.
Some confusion may have resulted from the
position taken by counsel for the applicant that
actual objectivity in journalism can be measured
either only after the broadcast, or at least after the
journalist's taping is completed for broadcast. To
my mind this is far too literal an interpretation. As
I see it, an employer must have the right to make
reasonable advance judgments, based on objective
assessments. No such assessments were, on the
evidence, in play here.
Reinforced by the recent warning to appellate
bodies by the Supreme Court in N.V. Bocimar
S.A. v. Century Insurance Co. of Canada, [ 1987]
1 S.C.R. 1247; (1987), 76 N.R. 212 not to reject
the fact-trier's view of expert evidence except on
the Kathy K principle, one is, I believe, left with
the adjudicator's view of the facts, viz., that the
first respondent "has failed to establish the exist
ence of a BFOR under section 14."
For a broadcaster to succeed in such a case it
would need either better evidence, or, more likely,
better standards.
V
In the result I would grant the section 28 applica
tion, set aside the decision of the Review Tribunal,
and reinstate the decision of the adjudicator ren
dered on December 4, 1985, together with the
remedies prescribed therein.
HEALD J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.