A human rights case stemming from the first days of the province granting same-sex couples the right to marry is still making its way through the province’s justice system even though the person who launched the complaint has since died.
The latest round in the case came in a Feb. 1 decision of Justice Rosalie McGrath of the Supreme Court of Newfoundland and Labrador General Division. That ruling granted a charitable organization leave to intervene in the case, and set firm dates for the filing of written submissions in the appeal before the court.
The case involves the estate of Desiree Dichmont versus the provincial government and the Human Rights Commission.
McGrath’s decision summarizes the case history.
On Dec. 21, 2004, the Supreme Court of Newfoundland and Labrador declared the common-law definition of marriage to be the voluntary union for life of two persons, effectively granting same-sex couples the ability to marry. On Dec. 23, 2004, the province sent a letter to all marriage commissioners appointed by it advising that they must either provide services to same-sex couples or resign their appointment.
Marriage commissioner Desiree Dichmont submitted her letter of resignation that explained she was unable to marry same-sex couples based upon her religious beliefs.
Dichmont subsequently filed a complaint with the province’s Human Rights Commission claiming discrimination — in regard to employment, or a term or condition of employment — on the basis of religious creed.
McGrath’s decision notes the complaint was initially dismissed by the Human Rights Commission on the basis there was insufficient evidence to set it down for a hearing.
Upon review by the Supreme Court at the time, however, an order was made that the commission refer the complaint to a board of inquiry. Dichmont died after the hearing was held before the board, but before the board’s adjudicator released his decision.
The board of inquiry’s decision was to dismiss Dichmont’s complaint.
An application to appeal the board of inquiry decision was made by Dichmont’s estate, and leave to appeal was granted by the Supreme Court on Nov. 28, 2017.
Dates were set in January to hear the appeal, but were postponed when an application for intervenor status was filed by the Justice Centre for Constitutional Freedoms.
According to its website, the national organization was founded in 2010 as a voice for freedom in Canada’s courtrooms. Its mission “is to defend the constitutional freedoms of Canadians through litigation and education.”
The group has been involved in a number of cases across the country advocating for charter rights and freedoms.
McGrath’s decision states the “Justice Centre defines itself as an independent, non-religious, non-partisan, registered charity that is dedicated to advocating for rights and freedoms. …”
“The Justice Centre acknowledges it does not have a direct interest in the outcome of the appeal. It does not have any members or clients who have similar ongoing litigation or potential litigation before any court in Canada. It also acknowledges it has no direct interest in the outcome of this case for, or against, the estate, including the estate’s request for compensation.
“However, the Justice Centre notes that a direct interest in the outcome is not required in order to be granted intervenor status as this matter raises important charter issues, being issues of public interest.”
McGrath concluded the Justice Centre can make a useful contribution by providing the court with submissions, with no injustice being imposed on the immediate parties.
The intervention granted, however, comes with conditions. The Justice Centre will not be able to adduce evidence, but may file a written brief of no more than 15 pages and may make oral submissions of no more than 20 minutes.
The Justice Centre may not seek costs and will not be liable for costs to any other party.
In order to move the appeal process ahead, McGrath ordered that the Justice Centre must file and serve its written submissions on or before Feb. 8; the province and the commission must file and serve their written submissions on or before Feb. 20; and the Dichmont estate — which has already filed written submissions on the appeal — must file and serve any submissions in reply to the other parties on or before Feb. 27.
