01/10/2018 13:00 EST | Updated 01/12/2018 11:44 EST

Winnipeg men trying to get their 1974 marriage registered dealt setback

WINNIPEG — Two Manitoba men who have been fighting for almost 44 years to have their wedding formally recognized have been dealt another setback.

Rich North's complaint to the province's human rights commission was dismissed this week. An adjudicator said the Manitoba Vital Statistics Agency was not discriminating against North and his partner Chris Vogel when it refused to register their marriage.

Robert Dawson said in his written decision that the agency was respecting a binding court decision from 1974.

North and Vogel were married on Feb. 11 of that year. A Unitarian minister in Winnipeg agreed to proclaim the banns of marriage for them, even though same-sex marriage would not be legal in Canada for another 31 years.

The provincial vital statistics agency refused to register the union. The couple appealed, but a judge declared the marriage a nullity.

A photo of the Winnipeg men on their wedding day is on display at the Canadian Museum of Human Rights, which chronicles their decades-long struggle for recognition and equality for the LGBTQ community in one of its exhibits.

Same-sex marriage became legal in Manitoba in 2004 and across Canada in 2005, but North and Vogel have still been unable to have their marriage registered.

North launched a complaint in 2015 with the human rights commission, which decided the case warranted a hearing before an adjudicator appointed by the province.

Dawson wrote that he accepted the statistic agency's submission that "the sexual orientation of the complainant was not, and is not, a factor in its rejection of his application for registration.

"In other words, the respondent has refused to register a marriage that a court has ruled to be a nullity, and it is incidental that the affected party is a homosexual man."

Dawson said it's not up to him to overrule a judge's decision, but he suggested a special act of Parliament could be a solution.

"Without such intervention, a bizarre and embarrassing irony will persist," he wrote. "It is neither fair nor just that the law refuses to recognize the 1974 marriage of a homosexual couple whose long-standing activism and advocacy have made it possible for same-sex couples of today to take for granted their right to marry."

Vogel said in an interview that he was disappointed, but not surprised, by the decision.

"We've been a number of rounds and they've always said no, so this is not new," he said.

But he added he's confident that one day he and North will prevail.

"It's just so obvious what they're doing is wrong."

Keeping up the fight is about principles as well as practicalities, Vogel said.

"It turns out in emergencies and so on, it can be quite critical," he said. "We're getting old and that's when these kinds of things come into play."

Vogel is 70 and North is 66.

The next step is to take the case to Manitoba Court of Queen's Bench for a judicial review of Dawson's decision.

The Manitoba Human Rights Commission made submissions along with North in the adjudication hearing, where its role was to represent the public interest, said executive director Isha Khan.

She said the commission was disappointed and had been hoping Dawson would agree with its position that the Manitoba Vital Statistics Agency has the authority and discretion to register the marriage.

"Same-sex marriage is absolutely recognized in law in Canada and has been for many, many years," said Khan. "We know that this couple's marriage ought to be recognized."

— By Lauren Krugel in Calgary