Bermuda Bred Company v Minister of Home Affairs and the Attorney-General

• Jurisdiction: Bermuda
• Judgment Date: 27 November 2015
• Date: 27 November 2015
• Docket Number: Civil Jurisdiction 2015 No 40
• Court: Supreme Court (Bermuda)

[2015] Bda LR 106

In The Supreme Court of Bermuda

Civil Jurisdiction 2015 No 40

In the matter of an application by Bermuda Bred Company

And in the matter of the Human Rights Act 1981

And in the matter of Order 53 of the Rules of the Supreme Court

Between:

Bermuda Bred Company

Applicant

and

The Minister of Home Affairs

1^st Respondent

And

The Attorney-General

2^nd Respondent

Mr P Sanderson for the Applicant

Mr P Perinchief for the Respondents

The following cases were referred to in the judgment:

A and B v Director of Child and Family Services and the Attorney-GeneralBDLR [2015] Bda LR 13

Marshall v Deputy GovernorUNK [2010] UKPC 9

Grape Bay Ltd v Attorney GeneralBDLR [1997] Bda LR 59

Minister of Home Affairs v FisherELR [1980] AC 319

Canadian Odeon Theatres Ltd v Saskatchewan Human Rights Commission and Huck [1985] 3 WWR 717

In Re AminWLR [1983] 3 WLR 258

Canada (Attorney-General) v Davis 2013 FC 40

Ghaidan v Godin-MendozaELR [2004] 2 AC 557

Oliari and others v Italy (Applications Nos 18766/11 and 36030/11) dated 21 July 2015

Conflict of laws — Primacy of Human Rights Act over the Bermuda Immigration and Protection Act — Treatment of same sex partners under Bermuda Immigration and Protection Act — Discrimination

JUDGMENT of Kawaley CJ

1. The Applicant is a company limited by guarantee whose primary object is promoting social justice and non-discrimination. On February 9, 2015, the Applicant issued an Originating Summons against the Respondents seeking the following distilled version of various heads of relief:

• i. relief under the Bermuda Constitution; and

• ii. a declaration that same sex partners are entitled to the same treatment as wives and husbands under the Bermuda Immigration and Protection Act 1956 as read with section 5 of the Human Rights Act 1981;

• iii. a declaration that a proposed Immigration policy change permitting ‘partners’ of work permit holders to reside and seek employment in Bermuda would be unlawful and contrary to section 5 of the Human Rights Act 1981 to the extent that does not equally apply to same sex partners;

• iv. declarations that the Minister's decision to treat same sex couples in a discriminatory way is unreasonable and/or in breach of a legitimate expectation.

2. By Summons dated February 20, 2015, the Respondents sought to strike-out the present proceedings on the grounds that the Applicant lacked the standing to bring the present proceedings. The application was listed for July 9, 2015. On May 11, 2015, the Applicant issued a Summons seeking a direction that the Applicant be granted leave to pursue the present proceedings as an application for judicial review. This Summons was heard on May 21, 2015. It appeared to me that the Applicant had a very strong case on standing and time and costs would be wasted by proceeding with a strike-out application as previously contemplated. On the other hand, I was doubtful as to how arguable it was that the 1956 Act and/or policy made under the 1956 was potentially required to comply with the Human Rights Act 1981. I ordered:

‘1. The Plaintiff is directed to file an application for leave to seek judicial review in the present proceedings.

2. In the first instance, the application shall be dealt with on the papers.

3. The strike-out application is adjourned with liberty to restore…’

3. The Applicant then applied by letter dated June 16, 2015 for its May 11, 2015 Summons together with the Affidavits filed in support of its Originating Summons herein to be treated as an application forleave to seek judicial review. Having regard to the Overriding Objective, I was willing to waive the requirement at this stage at least for the Applicant to file the requisite Notice of Application for Leave Form 86A and to treat the material before the Court as substantially complying with the procedural requirements for seeking leave under Order 53 rule 3.

4. On June 23, 2015, I found that grounds (2) and (3) set out in paragraph 1 above were arguable as against the 1^st Respondent alone but refused leave in respect of ground (4). On July 9, 2015, after hearing a renewed application for leave to pursue ground (4) set out in paragraph (1) above (by which date the ground (2) had fallen away), I granted leave to pursue ground (4) as well.

5. Accordingly, at the effective hearing of the Applicant's Originating Summons, the following relief was sought:

• i. a declaration that same sex partners are entitled to the same treatment as wives and husbands under the Bermuda Immigration and Protection Act 1956 as read with section 5 of the Human Rights Act 1981;

• ii. declarations that the Minister's decision to treat same sex couples in a discriminatory way is unreasonable and/or in breach of a legitimate expectation.

6. However, the first head of relief remained the most clear-cut and the second head of relief the most blurred.

Factual findings

7. The following facts relied upon by the Applicant were not challenged. Bermudians in stable long-term same-sex relationships, whether unmarried or legally married in the United States, have no right to have their foreign same-sex partners residing and working in Bermuda which corresponds to the rights available to heterosexual Bermudians who marry foreign spouses. This makes it emotionally and financially difficult for Bermudians who are gay and/or lesbian by way of sexual orientation and in long-term same-sex relationships with non-Bermudians to live in their own country while sustaining such relationships.

8. In addition, it was common ground that current Immigration policy does permit foreign unmarried partners who are sponsored to reside in Bermuda with their Bermudian partners, irrespective of sexual orientation. There is, however, no policy provision for same sex partners to enjoy the same residential and working benefits accorded to foreign spouses under existing Immigration law or policy.

Legal findings: overview of the key Human Rights Act 1981 provisions

9. The first head of relief primarily relied upon two provisions in the Human Rights Act 1981 (‘the HRA’) which, although enacted on April 8, 1993 with full operative effect from January 1, 1995, were seemingly first considered by this Court earlier this year. Firstly, section 30B provides as follows:

‘Primacy of this Act

30B (1) Where a statutory provision purports to require or authorize conduct that is a contravention of anything in Part II, this Act prevails unless the statutory provision specifically provides that the statutory provision is to have effect notwithstanding this Act.

(2) Subsection (1) does not apply to a statutory provision enacted or made before 1st January 1993 until 1st January 1995.’

10. Section 30B appears designed to give primacy to the HRA over all conflicting statutory provisions which are not explicitly stated as intended to exclude the operation of the HRA. However, it is given real vitality by an even more powerful and closely connected provision, section 291:

‘29. (1) In any proceedings before the Supreme Court under this Act or otherwise it may declare any provision of law to be inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act unless such provision expressly declares that it operates notwithstanding this Act.

(2) The Supreme Court shall not make any declaration under subsection (1) without first hearing the Attorney-General or the Director of Public Prosecutions.’

11. It is surprising that section 29 was seemingly ignored for so long. In A and B v Director of Child and Family services and Attorney-GeneralBDLR[2015] Bda LR 13, Hellman J held that sections 28(1) and 28(3) of the Adoption Act 2006 were inoperative to the extent that they discriminated on the grounds of marital status against same sex or unmarried couples. This was, seemingly, the first recorded instance of section 29 as read with section 30B of the HRA being directly applied.

12. I say that primary reliance was placed on sections 29 and 30B merely because these statutory provisions were fundamental to the Applicant's prayer for relief which, in effect, sought a declaration that provisions of the Bermuda Immigration and Protection Act 1956 (‘BIPA’) were void for inconsistency with the HRA. However, the more substantive provision of the 1981 Act upon which the present claim was based was the prohibition in section 5 on providing services in a manner which is discriminatory, inter alia, on grounds of marital status and sexual orientation. The first key provision in section 5 is the following:

‘(1) No person shall discriminate against any other person due to age or in anyof the ways set out in section 2(2) in the supply of any goods, facilities or services, whether on payment or otherwise, where such person is seeking to obtain or use those goods, facilities or services, by refusing or deliberately omitting to provide him with any of them or to provide him with goods, services or facilities of the like quality, in the like manner and on the like terms in and on which the former normally makes them available to other members of the public.’

13. The second key provision in section 5 is the following:

‘(2) The facilities and services referred to in subsection (1) include, but are not limited to the following namely —

access to and use of any place which members of the public are permitted to enter;

accommodation in a hotel, a temporary boarding house or other similar establishment;

facilities by way of banking or insurance or for grants, loans, credit or finance;

facilities for education, instruction or training;

facilities for entertainment, recreation or refreshment;

facilities for transport or travel;

the services of any business, profession or trade or local or other public authority.’ [emphasis added]

14. Although subsections (3) to (5) of section 5 set out certain exceptions and...