What was Vriend v. Alberta (1998)?

Vriend v. Alberta is the 1998 Supreme Court of Canada decision that read sexual orientation into the protected grounds of Alberta's Individual's Rights Protection Act (the predecessor to the Alberta Human Rights Act). The court held that the omission of sexual orientation from the statute violated the section 15 equality guarantee of the Canadian Charter of Rights and Freedoms and could not be justified under section 1. The decision was a watershed for LGBTQ rights in Canada and reshaped the relationship between the courts, legislatures, and minority groups.

Delwin Vriend was a laboratory coordinator at King's College in Edmonton, a private Christian college. He was dismissed in 1991 after disclosing that he was gay. Vriend complained to the Alberta Human Rights Commission, which refused to investigate because sexual orientation was not a protected ground under the IRPA. He sought judicial review and a declaration that the IRPA's omission of sexual orientation violated section 15 of the Charter. The Alberta Court of Queen's Bench agreed; the Alberta Court of Appeal reversed; and the Supreme Court of Canada restored and amplified the trial judgment in an 8-1 decision.

Justice Peter Cory (joined by Justices Charles Gonthier, Frank Iacobucci, Antonio Lamer, Beverley McLachlin, John Major, and Gerard La Forest) found the omission discriminatory. The court applied the Egan v. Canada (1995) recognition of sexual orientation as an analogous ground under section 15. Justice Iacobucci wrote the section 1 analysis (joined by the same justices), finding no pressing and substantial objective for the omission and no rational connection. Justice John Major dissented on remedy, preferring a declaration of unconstitutionality with a suspension to allow legislative response.

The remedy was unprecedented. Rather than strike down the entire statute or suspend the declaration, the court read 'sexual orientation' into the protected grounds, effectively rewriting the Alberta statute. This use of section 24(1) (read together with section 52(1)) was based on the Schachter v. Canada (1992) framework for choosing remedies. Premier Ralph Klein considered invoking the section 33 notwithstanding clause to override the Vriend remedy but ultimately did not. Vriend opened the way to subsequent decisions including M. v. H. (1999, same-sex spousal support), the Civil Marriage Act of 2005, and the federal recognition of gender identity and expression as protected grounds in 2017.