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Volume II, Issue I

September 2005

Queen's Human Rights Bulletin

Religious Discrimination

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Index

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

1) Religious Dress: When does public safety override human rights?

In Dhillen (1999), a tribunal determined that a Sikh motorist wearing a turban should be allowed to take a test for a motorcycle license, because the potential risk incurred by not wearing a helmet affected only his own safety. In Nijjar(1999), however, a tribunal ruled that a Sikh passenger wearing a kirpan should not be allowed a seat on an airplane because the potential for injury affected the safety of other passengers.

2) Holy Days: When can an employee get time off to celebrate holy days?

In O'Malley (1985), the Supreme Court ruled that an employer had failed to accommodate, to the point of undue hardship, a Seventh-day Adventist employee who lost her full-time status when she refused to work on her Sabbath. In Roosma (1995), however, an Ontario Board of Inquiry ruled that the employer was not guilty of religious discrimination when it dismissed two employees adhering to the Worldwide Church of God for missing work during certain holy days because accommodating the employees would have incurred undue hardship.

3) Religious-Based Conduct: To what extent must employers accommodate religious-based conduct?

In Moore (1992), the B.C. Human Rights Council ruled in favour of a Roman Catholic employee who had been fired, without being accommodated, when she refused, on religious grounds, to grant a client medical coverage for an abortion. Similarly, in Kurvits (1991), the Canadian Human Rights Tribunal ruled in favour of an employee whose union wrongfully denied him the right to transfer his union dues to a Baptist church that, for religious reasons, did not comply with the Income Tax Act.

4) Special Interest Organizations: Under what circumstances may an employer fire an employee for religious non-conformity?

In Caldwell (1984), the Supreme Court of Canada ruled in favour of a Catholic High School who fired a teacher upon discovering that she was not Catholic. Similarly, in Schroen (1999), a Board of Adjudication ruled in favour of a Mennonite college that dismissed an accounting clerk upon learning she was not Mennonite.

5) Provision of Services: Do service providers have the right to discriminate based on their personal religious beliefs?

In Fancy (1993), a Board of Inquiry ruled that a School Division had discriminated against religious minorities when it allowed schools to give Bible readings in the mornings and to recite the Lord's prayer at school assemblies. In Brockie (2000), an Ontario Board of Inquiry determined that a Born-again Christian had unjustly discriminated against a gay client when he refused, on religious grounds, to provide him with printing services.

6) Freedom of Expression: When do constitutional rights override human rights?

In Ross (1996), the Supreme Court supported a Board of Inquiry's ruling against a teacher who professed hatred against Jews, explaining that the elimination of religious discrimination overruled the individual's freedom of speech. In Trinity Western University (1998), the Court of Appeal (in a split decision) ruled that the B.C. College of Teachers did not have the right to deny entry to Trinity Western University, whose religiously-based policies were explicitly homophobic.

7) Resources0

Religious Dress: Dhillen (1999)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

Dhillen was a practicing Sikh who wore a turban at all times as required by faith. As such, it was impossible for him to wear a safety helmet. In the early nineties, he applied to take a driving test for a motorcycle license. The B.C. Motor Vehicles Division refused him this service because he refused, on religious grounds, to wear a helmet as required by s. 218 of the Motor Vehicle Act. In 1995, he filed a complaint of discrimination on the ground of religion. A B.C. Human Rights Tribunal ruled in favor of the complainant and ordered the Division to grant Dhillen a driving test. [Dhillen v. British Columbia Ministry of Transportation and Highways (1999), 35 C.H.R.R. D293 (B.C.H.R.T.)]

Questions

Is wearing a turban a bona fide religious requirement ?
Is wearing a helmet a bona fide requirement for riding a motor cycle ?

Ruling

Reasoning.

In its ruling, the Tribunal acknowledged that, for a practicing Sikh, wearing a turban is a bona fide religious requirement, and that, furthermore, it is impossible to wear a helmet over a turban. The Motor Vehicles Division's safety standard requiring that motorcyclists wear helmets therefore constitutes a case of prima facie discrimination. In accordance with the three-part test set forth by the Supreme Court in Meiron (1989), the Tribunal determined that while the standard was directly related to public safety and had been made in good faith, it was not reasonably necessary. To come to this conclusion, the Tribunal considered two factors set forth by the Central Alberta Dairy Pool (1990) case: safety and cost.

Safety

"Where safety is at issue", the Court in Central Alberta Dairy Pool had decided, "both the magnitude of the risk and the identity of those who bear it are relevant considerations". The Tribunal determined the magnitude of risk by comparing baseline risk and marginal risk. Based on statistical analysis, it found that "the baseline risk associated with helmeted motorcycling is serious injury resulting in, among other things, coma, paralysis or death"; but that "the increased risk associated with non-helmeted motorcycle riding by Sikhs who wear turbans" was insignificant. More specifically, the average number of annual motorcycle-related deaths would increase by less than 2 (from 34) and yearly motorcycle-related injuries would increase by between 2 and 13 (from 106). As for the identity of those bearing this marginal risk, the Tribunal found that only Sikhs wearing turbans would be affected. From the point of view of safety, accommodating Sikh motorcyclists does not constitute undue hardship.

Cost

Given that the presence of Sikh's driving motorcycles in B.C. would produce only 13 additional brain injuries per year, the Tribunal ruled that, once again, accommodating this religious group does not constitute undue hardship.

Further information: Policy on Creed and the Accommodation of Religious Observances, s.7.1

Religious Dress: Nijjar (1999)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

Nijjar was a Sikh who regularly wore an 11.5" ceremonial dagger called a kirpan as required by faith. When he traveled by airplane, he wore a 3.5" kirpan in compliance with Transport Canada's "four inch rule". According to this safety standard, passengers carrying blades less than four inches in length would be permitted to board aircraft in Canada. Air companies were not obliged by Transport Canada to enforce this rule. Each airline had ultimate responsibility for the safety of its passengers. In April 1996, a security supervisor denied Nijjar permission to board a Canada 3000 flight because he was wearing his 3.5" kirpan. According to Canada 3000 policy, it was prohibited to carry objects more potentially dangerous than on-board eating utensils. Nijjar filed a complaint with the Canada Human Rights Commission, claiming that he had been the victim of religious discrimination. The Tribunal disagreed with Nijjar, and dismissed his complaint. (Nijjar v. Canada 3000 Airlines Ltd. (1999), 36 C.H.R.R. D/76).

Questions

Does wearing a kirpan constitute a bona fide religious requirement?
Did Nijjar's beliefs prohibit him from complying with the Canada 3000 policy ?
Was the Canada 3000 policy a bona fide requirement ?
Would accommodating Nijjar constitute undue hardship?

Rulings

Reasoning

Expert witnesses testified that Khalsa Sikhism is a bona fide religious order, whose code of conduct (the Rahit) requires that its members wear five religious symbols, including a kirpan.
The Rahit does not prescribe the minimum or maximum size for the kirpan, nor does it specify how sharp or pointed it should be. The Tribunal found that Nijjar's refusal to wear an innocuous kirpan, one that would meet Canada 3000's safety standards, was based a personal preferences, not religious stricture.
The Tribunal found that Canada 3000's policy was rationally connected to the business of flying airplanes; had been adopted in good faith; and was reasonably necessary. It was therefore a bona fide requirement.
Accommodating Nijjar, by implementing the four-inch rule, was found to be unreasonable. While it was not very likely that this accommodation would result in increased injuries occurring on Canada 3000 flights, the potential seriousness of injuries resulting from being stabbed by a kirpan was very high. Moreover, the extremely high risk of being seriously, if not fatally, injured by a kirpan was compared to the non-existent risk of being seriously, if not fatally, injured by on-board cutlery. Finally, it was determined that "it [was] at least equally possible if not more likely that other passengers could be injured if a kirpan was drawn in the course of a fight" (D/98). In light of these findings, accommodating Nijjar would constitute undue hardship.

Further information: Policy on Creed and the Accommodation of Religious Observances, s.7.1

Holy Days: O'Malley (1985)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

In 1975, Theresa O'Malley starting working at a Sears store in Kingston. As a full-time salesperson, she was required to work two Saturdays out of three per month. When, in 1978, she became a member of the Seventh-day Adventist Church, the tenets of her new faith required her to observe the Sabbath. This meant that she could not work from sunset Friday to sunset Saturday. When she spoke to her supervisor about the conflict of requirements, he informed her that if she could not work Saturday shifts, she could no longer work full-time at the store. She accepted part-time work while applying for other full-time positions at Sears for which she did not qualify. Eventually she filed a complaint of discrimination on the ground of religion, and asked to be compensated for lost wages from the date of her demotion to the date of her marriage, several years later. The case went through several judicial levels. A Board of Inquiry dismissed the complaint because the complainant had failed to prove that the respondent had not accommodated her reasonably. This decision was supported by the Divisional Court, who pointed out that the Ontario Human Rights Code contained no "saving clause" obliging an employer to accommodate employees against whom they discriminated on the ground of religion. A Court of Appeal rejected O'Malley's application because the act of discrimination was unintentional. Finally, the Supreme Court of Canada supported O'Malley and ordered Simpson-Sears to compensate O'Malley for lost wages. (O'Malley v. Simpson-Sears Ltd. (1985), 7 C.H.R.R. D/3102 (S.C.C.))

Questions

Was it up to the complainant to prove that the respondent had not reasonably accommodated her?
Did the absence of a "saving clause" discharge the respondent of its duty to accommodate ?
Did it matter that the discrimination was unintentional ?
Did Simpson-Sears establish that it had reasonably accommodated O'Malley ?

Rulings

Reasoning

Justice McIntyre stated that once a case of prima facie adverse effect employment discrimination based on a religious ground was established, it was up to the respondent, not the complainant, to prove that reasonable accommodation steps had been taken.
He demonstrated that although there is no saving clause explicitly stating the duty of the employer to accommodate up to undue hardship, this principle was implicit in the preamble and general intention of the Ontario Human Rights Code. (There is now such a clause).
He insisted that although direct discrimination was different from adverse-affect discrimination, and that the remedies for each type of discrimination were distinct, this did not exempt the employer from its duty to accommodate employees who were adversely affected by neutral employment standards whether intentional or not.
Although regretful that the employer had failed to present evidence establishing the reasonableness of its accommodation, Justice McIntyre concluded that in the absence of contrary evidence, the appeal must succeed.

Further information: Policy on Creed and the Accommodation of Religious Observances, s.7.4

Holy Days: Roosma (1985)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

When Robert Weller and Michael Roosma, two employees of Ford Motor Co. of Canada (Oakville Assembly Plant), became members of the Worldwide Church of God in 1984, they were faced with a conflict between occupational and religious requirements. On the one hand, the collective agreement in effect between Ford and CAW, Local 707 required them to work approximately 21 Friday night shifts per year. On the other hand, the tenets of their creed required them to observe the Sabbath, and therefore not to work from sunset Friday to sunset Sunday. The consequences for not meeting the two contradictory standards were adverse. Failure to adhere to the occupational standard would result in their eventual dismissal from the company, whereas failure to adhere to the religious standard would result in their immediate expulsion from the church. Neither the employer nor the union would relieve them of their duty to work, despite their consistent requests for accommodation. In 1988, after three years of progressive discipline, Weller and Roosma were dismissed from work. Seven years later, an Ontario Board of Inquiry dismissed their complaint of religious discrimination. (Roosma v Ford Motor Co. of Canada No. 4 (1985), 24 C.H.R.R. D/89)

Questions

Did Roosma and Weller sincerely hold the religious belief that they could not work on Friday night shifts ?
Is this a prima facie case of constructive employment discrimination on a religious ground?
Did Ford and CAW accommodate Roosma and Weller to the point of undue hardship?

Rulings

Reasoning

According to the chairman of the Board, Roosma and Weller were "genuine believers and fine workers".
By operating in accordance with a collective agreement which requires every employee to work 21 Friday night shifts a year, both Ford and CAW discriminates adversely against workers who can not work Friday night shifts due to conflicting religious requirements. By failing to accommodate two such workers, and by eventually dismissing them for repeated unauthorized leave, both the employer and the union were guilty of constructive employment discrimination.
Cost, safety, employee morale and disruption of the collective agreement made it impossible to accommodate the complainants. In the 1980's, Ford was in "both a cost and quality crisis". The Oakville Assembly Plant, whose viability was being questioned in newspapers, was under scrutiny by its headquarters in Detroit. In addition to the pressures of having to increase quality while decreasing cost, the plant had very little money allotted for dealing with its high absentee rate on Friday nights (8-10%). The 2-person "absentee allowance" in the tank installation zone was not meant to replace workers on a permanent basis. "Churning" workers from other zones to replace the complainants was unfeasible in terms of quality, incremental cost, and employee morale. Such employees were not always trained to install tanks. While training them would slow down production, not training them could result in serious accidents or technical mistakes which could easily bring the assembly line to a halt, resulting in significant financial loss. A third solution, replacing Roosma and Weller with double backs, was both dangerous and expensive. Employers who work double shifts must be paid overtime wages. They are often overtired, and therefore prone to making mistakes and having accidents. The final possibility of accommodation, assigning the complainants to another position in the plant, would mean that two employees with seniority would have to be bumped from highly sought-after positions. According to the respondent, this type of accommodation would disrupt the collective agreement in an unacceptable way. After weighing the evidence, the Board of Inquiry found that Ford and CAW 707 had discharged their duty to accommodate Roosma and Weller to the point of undue hardship.

Further information: Policy on Creed and the Accommodation of Religious Observances, s.7.4 and s.8.3

Religious Based Conduct: Moore (1992)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

In November 1985, Cecilia Moore, a devout Roman Catholic, began a six month probationary period as an auxiliary financial aid worker for the B.C. Ministry of Social Services. In March, 1985, she rejected a request from a client seeking assistance to have an abortion, based on her interpretation of the ministry's regulations and policies. When, in April 1985, her district supervisor overturned Moore's decision and ordered her to grant the award, she refused on religious grounds; facilitating abortion was contrary to the tenets of Catholicism. Despite warnings, from the district supervisor and her float supervisor, that insubordination would result in the termination of her employment, Moore insisted that she would continue to refuse to authorize coverage for abortion. On May 21,1985, she was informed that she had been dismissed "effective immediately", because she had "not proven suitable for continued employment as a financial assistance worker". The complaint of religious discrimination took a circuitous route. Held in abeyance by the B.C. Council of Human Rights, it went to the Supreme Court in 1986, where it failed to qualify as a Charter case, and then back to the B.C. Council, where it was heard in 1989. In its defense, the Ministry of Social Services argued that accommodating Moore, would mean exempting her from cases involving abortions, sterilization and contraception, and reassigning those cases to the district supervisor, who was not always in the office. Because this disruption would have been "detrimental to service delivery", no attempt at accommodation occurred. (Moore v. British Columbia (Ministry of Social Services) (1992), 17 C.H.R.R. D/426 (B.C.C.H.R.))

Questions

Is this a case of adverse effect discrimination based on religion?
Did the employer establish a defense of accommodation?
Did the complainant bear any responsibility for having accepted the file ?

Rulings

Reasoning

This was clearly a prima facie case of adverse effect discrimination; Cecilia Moore was threatened with disciplinary action and eventually dismissed because of her refusal to fulfill a neutral occupational requirement because it conflicted with her religious beliefs.
The employer based its decision not to accommodate Moore on impressionistic evidence. In order to prove undue hardship, concrete evidence is required.
By accepting a client she clearly could not serve, Moore failed to fulfill her duty as a public servant, which was to provide services to the public without discrimination. She should have exempted herself from the file from the very beginning. Moore's act of discrimination does not affect the ruling about the Ministry's act of discrimination. It does, however, affect the remedy. Moore received only half of the full $2000 charge for hurt feelings.

Further information: Policy on Creed and the Accommodation of Religious Observances, s.6 and 8.3

Belief-based conduct: Kurvits (1991)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

Benno Kurvits, a member of the Baptist Marathon Church, became employed by the Treasury Board in 1982. Soon after being hired, he requested that his union dues be transferred to a charitable organization because the tenets of his faith prohibited him from supporting employee organizations. Although the Collective Agreement between the Treasury Board and the Public Service Alliance of Canada provided for such a religious accommodation, the complainant's request was denied. This is because the Baptist Marathon Church did not meet the requirement of being registered pursuant to the Income Tax Act. This requirement, which was a guard against employees who might create make-believe churches in order to avoid paying union dues, had not foreseen churches such as the Baptist Marathon Church whose religious doctrine prohibited it from becoming associated with, or answerable to, the state. The Employer and the Union refused to make an exception for complainant, on the grounds that such an accommodation would disrupt the collective agreement and cost a lot of money, especially if other employees in similar situations followed suit. (Kurvits v. Canada (The Treasury Board) (1991), 14 C.H.R.R. D/469 (C.H.R.T.)).

Questions

Was this a prima facie case of adverse effect discrimination ?
Were the respondents obligated to prove that the occupational standard was bona fide?
Would accommodation cause undue hardship ?

Rulings

Reasoning

The requirement that the employee's church be registered under the Income Tax Act was reasonable and neutral on its face. However, it had an adverse effect on Kurvits, whose church could not register under the Income Tax Act for bona fide religious reasons. The case was therefore a prima facie case of adverse effect discrimination on the prohibited ground of religion.
In this case, there was no need to prove that the provision was rationally linked to successful employment performance. What mattered here was that the complainant was being discriminated against, and must therefore be accommodated to the point of undue hardship.
Accommodating Kurvits would not likely have an adverse effect on cost (since the majority of churches are registered under the Income Tax Act) or on the collective agreement (because the provision itself did not have to be altered and very few employees were members of religious organizations with this type of prohibition).

Further information: Policy on Creed and the Accommodation of Religious Observances, s.6 and 8.3

Special Interest Organizations: Caldwell (1984)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

Margaret Caldwell, a Roman Catholic, began teaching at St. Thomas Aquinas High School in 1973. After five years of satisfactory service at this roman catholic denominational school, Caldwell was dismissed when administration discovered that she had married a divorced man in a civil ceremony. The cause for dismissal was based on Caldwell's failure to meet three inextricably linked religious and occupational standards. From the perspective of the Catholic Church, Caldwell had knowingly disobeyed two fundamental marital rules: 1) Catholics must marry in a Catholic church and 2) Catholics may not marry divorced people. From the point of view of the Catholic school, Caldwell had disregarded a bona fide occupational requirement according to which Catholic teachers must model Catholicism to their students by living in strict accordance with Church doctrines. Caldwell filed a complaint of discrimination based on marital status, religion and dismissal without probable cause. The case went all the way to the Supreme Court, who ruled in favor of the respondent.(Caldwell v. St. Thomas Aquinas High School (1984), 6 C.H.R.R. D/2643)

Questions

Is a denominational school considered to have special status under human rights law ?
Is religious conformance a bona fide occupational requirement?

Rulings

Reasoning

Section 22 of the B.C. Human Rights Code privileges the human rights of the organization over those of the individual. "... A charitable, philanthropic, educational, fraternal, religious or social organization or corporation", whose goal is to promote the welfare of a group characterized by a common ground for discrimination, has special discretionary powers to grant preferences to members of that group. This means that denominational schools have the right to hire catholic teachers over protestant teachers, and the discretion to hire model catholic teachers (those who accept and practice the rulings of the church" (D/2650 et 51) over unruly ones (those who disregard such rulings).
The goals of the Catholic church are to educate students, through the teaching of non-religious subjects; and to indoctrinate them, through the teaching and modeling of Catholicism. Indoctrination can only be successful if the indoctrinators are credible. Credibility is shattered when the students' role models, the teachers, do not practice what they preach. Catholic teachers must therefore accept and practice the rulings of the church both inside and outside the school. This principle is stated explicitly in the contract of employment. Under section 22 of the Code, religious conformance is therefore a bona fide occupational requirement.

Further information: Policy on Creed and the Accommodation of Religious Observances, s. 8.2

Special Interest Organizations: Schroen (1984)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

On May 1991, Ester Schroen had an interview for a position as an accounting clerk at Steinbach Bible College. The goal of this Mennonite institution, which places emphasis on the Anabaptist Evangelicalism, is "to train college students in nurturing faith relations and for ministry work with an evangelical perspective" (D/4). Both staff and faculty are expected to fulfill this objective by "sharing faith stories, attending regular prayer meetings and talking to the students about the Christian values being promoted at the school" (D/4). Although Schroen had been member of the Mennonite church for the first eighteen years of her life, she had converted to the Mormon faith in the early eighties. On her application form, dated May 28, 1991, she confirmed that she had no objections to the College's Statement of Faith, and during her interview she gave the impression that she understood and supported the college's objectives and requirements. She was hired on June 10 1991, revealed her religious affiliation on June 18th and was dismissed on the basis of religious non-conformity on June 29 1991. During the hearing, Schroen stated that she saw no major differences between the doctrines of Anabaptist evangelicalism and those of the Mormon faith. Upon cross-examination, however, she admitted that she clearly understood these differences, and was aware of Anabaptist doctrines which explicitly denounced the Mormon faith, "including the baptism of the dead, interpretation of the Old and New Testament, and companion books to the Bible"(D/4). She declared that she would have a difficult time distributing and supporting College pamphlets proclaiming that the Mormon faith was a cult. (Schroen v. Steinbach Bible College. (1999), 35 C.H.R.R. D/1 (Man/Bd. Adj.))

Questions

Was this a prima facie case of adverse effect discrimination?
Was religious compliance a bona fide occupational requirement ?
Did Schroen willfully deceive the Steinbach Bible College?

Decisions

Reasoning

In so much as Schroen was dismissed because of her faith, she was a victim of adverse effect discrimination.
The requirement of religious compliance met both the subjective and objective tests which determined its bona fide nature; not only was the requirement made in good faith (subjective test), but also it was reasonable given the objectives of the College to interweave faith, education and services (objective test).
The Board found that "her original application, resume, interview and her Statement of Faith were all calculated to mislead and conceal the fact that she was of the Mormon faith" D/3.

Further information: Policy on Creed and the Accommodation of Religious Observances, s. 8.2

Provision of Services: Fancy (1999)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

In December 1993, a group of parents filed a complaint of religious discrimination against the Saskatchewan Board of Education. They claimed that the Board's policy and practice respecting the recitation of Lord's Prayer and Biblical Passages discriminated against non Christian students, and therefore violated sections 4 and 13 of Saskatchewan Human Rights Code. The Board's position was that this form of religious discrimination was constitutionally excused by s. 137 of the 1901 School Ordinance, which allows public schools to provide religious instruction in the last half hour of the school day, with the exception of the Lord's Prayer, which may be used to open the school day if so directed by the Board. However, according to Board policy and student testimony, the Lord's Prayer was often used to open school assemblies that did not occur at the beginning of the school day; and Biblical readings were often used at times other than the last half hour of school. The Board of Education argued that the Board of Inquiry had no jurisdiction to hear this case, by referring to a precedent set in Cooper v. Canada (1996) where the Supreme Court ruled that the Canadian Human Rights Commission could not rule on the discriminatory nature of its own Act. (Fancy v Saskatoon School Div. No 13 (1999), 35 C.H.R.R. D/9).

Questions

Did the Board of Inquiry have the jurisdiction to hear this case?
Did the recitation of the Lord's Prayer and Biblical passage constitute discrimination ?
Was the Board of Education constitutionally excused from the alleged discrimination ?

Rulings

Reasoning

In Cooper v. Canada (1996), the Supreme Court ruled that a Human Rights Commission was not authorized to establish the discriminatory nature of the very Act under which it operated. Unlike that case, in Fancy v. Saskatoon School Division (1999), the Board of Inquiry was not questioning the validity of provisions from the Saskatchewan Human Rights Code, but rather was simply testing whether the Saskatchewan Act provides an exemption from the Code. Comparing Cooper to Fancy was like comparing apples to oranges. There was no analogical connection between the two.
Reciting the Lord's Prayer and Biblical passages is discriminatory because it privileges the majority of students, who are Christian, while alienating and humiliating the minority, who are not Christian.
The Board of Education would have been constitutionally excused if it had acted in strict accordance with the Ordinance Act, by directing schools to open the school day with the Lord's Prayer and by restricting Biblical readings to the last half hour of the day. Instead of giving direction, however, the Board delegated its constitutional authority to unelected staff who were advised that the Lord's Prayer could be recited both in the classroom (at the beginning of the day) and in the assembly (later in the day) and that the Bible could be cited at the beginning of the day. In doing so, it had committed three constitutional infractions 1) failure to give direction 2) sanctioning the Lord's Prayer at assemblies other than at the beginning of the day 3) sanctioning Biblical Readings in the classroom other than at the end of the day.

Further information: Policy on Creed and the Accommodation of Religious Observances, s.1

Provision of services: Brockie (2000)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts.

In 1999, an Ontario Board of Inquiry found that Born-again Christian Scott Brockie (and Imaging Excellence Inc.) had discriminated against Ray Brillinger (and the Canadian Lesbian and Gay Archives) on the prohibited ground of sexual orientation. At the hearing, Brockie testified that his religious beliefs prohibited him from providing printing services to homosexuals and homosexual organizations. He contended, furthermore, that any remedial order obliging him to provide such services would infringe his rights to freedom of religion as guaranteed by the Canadian Charter of Rights and Freedoms. Finally, he argued that forcing a religious individual to do something contrary to his fundamental beliefs would cause much greater harm than obliging an organization to find an alternative printing service provider. What Brillinger and the Archives experienced was little more than disappointment and inconvenience, in his point of view. The 2000 hearing was called to determine whether a remedial order to provide printing services to Brillinger could be made against Brockie. (Brillinger v. Brockie (No. 3) (2000), 37 C.H.R.R. D/15).

Questions

Is freedom of religion subject to limitations ?
Is there a test to determine the constitutionality of the remedial order?
If so, did the proposed remedy meet the test in this case ?

Rulings

Yes.
Yes
Yes

Reasoning

In determining the legal limits of religious freedoms guaranteed in the Canadian Charter of Rights and Freedoms, the Board relied on two Supreme Court Rulings ( R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 and Ross v New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175) which determined that the freedom of religion is "subject to such limitations as are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others". The right to receive a public service without discrimination on the basis of sexual orientation is one of these fundamental rights and freedoms.
In order to be successful, the remedial order had to pass what is known as the Oakes test. This test, set forth by Chief Justice Dickson in R. v. Oakes (1986), is made up of several measures. First, the body making the remedy must have a substantive objective (one that is both reasonable and justified in a free and democratic society). Second, the proposed remedy must be rationally connected to the objective. Third, the proposed remedy would have to interfere minimally with the constitutional rights of the respondent
The proposed remedy met the Oakes test. The eradication of discrimination on the ground of sexual orientation is both reasonable and justified under the Ontario Human Rights Code. The proposed remedy, obliging Brockie to provide a service that he had previously denied to Brillinger on that very ground, is rationally connected to this objective. Finally, although imposing this remedial order would infringe the religious rights of one individual, it is constitutionally acceptable to do so because refusing services to members of the lesbian and gay community and their organizations would cause "very real harm".

Further information: Policy on Creed and the Accommodation of Religious Observances, s.1

Freedom of Expression: Ross (1996)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

This case involved a school teacher (Malcolm Ross) who, in the name of Christianity, held, published and pronounced anti-Semitic values; a school board (Board of School Trustees, District No. 15), who continued to employ him, and a complainant (David Attis), who claimed that both the teacher and the board discriminated in the provision of educational services. A Board of Inquiry ruled in favour of the complainant, and ordered that the school board a) remove Ross from the classroom for a period of 18 months; b) place Ross in a non-teaching position, should one become available within that 18 month period; c) terminate his employment if, by the end of the 18 month period, he had not been placed in a non-teaching position and d) terminate his non-teaching employment at any time in the future should he pronounce, write, sell or publish anti-Semitic statements. A New Brunswick Court upheld the first three parts of the order, but quashed fourth on the grounds that the Board of Inquiry did not have the jurisdiction to make such an order. A New Brunswick Court of Appeal quashed the remaining parts of the order on the grounds that the remedy (removing Ross from the classroom) did not meet a "pressing and substantial" purpose, given that the complaint arose from his off-duty activities. The Supreme Court of Canada upheld the decision of the original Board of Inquiry while quashing the fourth part of its proposed remedy. (Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.))

Questions

Did Ross and the Board of School Trustees, District No. 15, discriminate under s. 5(1) of the New Brunswick Human Rights Act ?
Did the order made by the Board of Inquiry infringe ss, 2(a) and 2(b) of the Charter of Rights and Freedoms ?

Rulings

Yes
Yes, in part.

Reasoning

School children are unable to distinguish between professional and personal value statements made by their teachers, who are a medium for the transmission of values. Even in the absence of direct evidence, it is reasonable to assume that Ross, whose off-duty anti-Semitic activity had gained a certain notoriety, contributed to the poisoning of the district's educational environment. The School board had a responsibility to provide a discrimination free educational environment for its students. By continuing to employ Ross, the Board of Trustees silently condoned his discriminatory behaviour and contributed to the district's discriminatory environment. Therefore both the teacher and the school board violated s. 5(1) of the Act.
The remedy proposed by the Board of Inquiry partially met the Oakes test (as outlined in previous case). The objective of the order was to eradicate discrimination against Jews in School District 15. This objective was both substantive and pressing, especially in the context of the persecution suffered by Jews throughout history. However, only the first three parts of the proposed remedy, which aimed to remove Ross from the classroom, were rationally connected to this objective. As long as Ross was interacting with students in the classroom, it was reasonable to censor his freedom of expression and of religion because it was impairing his capacity to provide educational services without discrimination. However, once Ross was removed from the classroom, he was free to express himself freely and to practice his religion freely. Because he would no longer be part of the educational environment, he could not poison it with his anti-Semitic propaganda. Therefore, the first three parts of the order interfered minimally with the constitutional rights of the respondent, whereas the last part interfered grievously.

Further information: the Oakes test

Freedom of expression: Trinity Western University (2001)

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Facts

In 1995, the British Columbia College of Teachers ("BCCT") refused accreditation to Trinity Western University ("TWU"), a private institution associated with the Evangelical Free Church of Canada, for the fifth year of its Teacher Training Program. The rejection was based on the mandatory discriminatory act committed by TWU students when they signed a Community Standards Contract signaling their condemnation of the biblically condemned sins of homosexual behavior. Acting under the aegis of s. 4 of the Teaching Profession Act, BCCT determined that graduates of this private institution would not be adequately prepared to provide educational services without discrimination in B.C.'s diverse public school classrooms. TWU complained that BCCT did not have the jurisdiction to refusing accreditation on this grounds, as it was an infringement of their right to freedom of religion and association. The B.C. Supreme Court determined that BCCT had acted wrongfully, and issued an order of mandamus obliging BCCT to accredit TWU. The B.C. Court of appeal upheld this decision. The majority of the Supreme Court of Canada upheld these rulings based on the principles of Administrative law. They chose not to deal with the Charter issue. One dissenting voice, however, did address the issue of freedom of religion. See Dissenting Voice. (Trinity Western University v. British Columbia College of Teachers (2001), 39 C.H.R.R. D/357.2001 SCC 31).

Questions

Was consideration of discriminatory practices within the jurisdiction of the College?
Was correctness the appropriate standard of review?
Was the decision of the college justified?
Was the order of mandamus justified?

Ruling

Reasoning

The School system, through its teaching staff, models civic virtue and responsible citizenship. It is obliged by law to provide a discrimination-free educational environment. Therefore it was within the jurisdiction of the College to consider the discriminatory practices while assessing the suitability of Trinity Western University.
The College had acted inappropriately as a human rights tribunal. It did not have sufficient expertise to interpret and to balance human rights (the right to receive educational services without discrimination) and Charter values (the freedom of religious beliefs). Therefore, a standard of correctness (as opposed to deference) was the appropriate standard of review.
The existence of the Community Standards contract, signed by Trinity students, was not sufficient to support the college's conclusion that Trinity graduates would behave in a discriminatory manner towards future homosexual students. The College made an error when it confounded confirmed religious beliefs (homosexual behavior is a sin) and future homophobic conduct (discrimination against homosexual students).
The order of mandamus was justified because it was unfair for the College to refuse accreditation to Trinity based solely on irrelevant considerations (hypothesized discriminatory conduct).

Further information: the Oakes test

Dissenting Voice in the Trinity Western University case.

Questions

Was consideration of discriminatory practices within the jurisdiction of the College?
Was correctness the appropriate standard of review?
Was the decision of the college justified?
Was the order of mandamus justified?
Did BCCT infringe upon TWU students right to religious freedom?

Ruling and Reasoning of Justice l'Heureux Dube

Yes The school system, through its teaching staff, models civic virtue and responsible citizenship. It is obliged by law to provide a discrimination-free educational environment. Therefore it was within the jurisdiction of the College to consider the discriminatory practices while assessing the suitability of Trinity Western University.
Yes The College had not acted as a human rights tribunal, but as an admissions regulator. It had not tried to balance two different human rights values; rather it had considered only one: "equality. As it was highly qualified to do so, a higher degree of deference should be awarded to the College. Only a finding of "patently unreasonable" should undermine BCCT's decision to refuse accreditation to TWU.
Yes The existence of the Community Standards contract, signed by Trinity students, constituted discriminatory conduct and was a relevant factor for the College to consider in the assessment of the suitability of the applicant University to teach in public schools. The College's concern that the Trinity students would not be sufficiently trained to work within a system where diversity was a core value was not "patently unreasonable".
No The order of mandamus was unjustified because it was fair for the College to refuse accreditation to Trinity based on relevant discriminatory conduct.
No Unlike the majority, who chose not to deal with the constitutional issue, Justice l'Heureux Dube rejected the claim that BCCT had infringed upon the rights of TWU students to freedom of religion. S/He said: "The distinction and differential treatment resulting from the BCCT's decision are not based on [...] religion, but on the act of signing the Community Standards contract performed by TWU students. There is every indication that the BCCT would be as concerned if a private secular institution were to require a discriminatory practice. The impugned decision is neutral with regard to the the claimant's religion. (D/139-40). Furthermore, s/he maintained that "if the religious exemption were allowed to shield TWU graduates from complete scrutiny of their abilities to work and to be perceived to work effectively in diverse classrooms, then an advantage would be conferred on these students as compared with public institution graduates, suggested as the appropriate comparator group by the respondents. Depriving TWU students of such an advantage is not an affront to their human dignity.(D/411)

Resources

Dhillen Nijjar O'Malley Roosma Moore Kurvits Caldwell Schroen Fancy Brockie Ross Trinity Resources

Queen's University

List of Important Faith Dates

University Chaplaincy

Human Rights Office

Harassment/Discrimination Complaint Policy and Procedure

Ontario Human Rights Commission

Religion and Human Rights

Policy on Creed and the Accommodation of Religious Observances

Protecting Religious Rights

Legal Documents

Canadian Charter of Rights and Freedoms

Ontario Human Rights Code

Miscellaneous

Ontario Multifaith Council

Religions in Canada

Religious Discrimination (Canadian Human Rights Reporter)