The Ontario Divisional Court, on May 14, 2010 released its decision in Ontario Human Rights Commission v. Christian Horizons in which it considered whether a limited exception from discrimination found in section 24(1)(a) of the Ontario Human Rights Code applied.
Subsection 5(1) of the Code confers a right to equality in employment in the following terms:
This right is not infringed if an institution comes within s. 24(1)(a), which reads:Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
The right under section 5 to equal treatment with respect to employment is not infringed where,
(a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment.
As you'd expect, this is a narrow exception that should not apply in many cases, but what does it mean? When does an organization bring itself withing the exception? That's one of the issues that the Divisional Court had to decide. The other being whether the organization allowed a poisoned work environment to exist and a consideration of the scope of remedies awarded by the Tribunal.
Background
In 1995 the complainant, Ms. Heintz, began employment as a support worker at a community living residence operated by the employer. Four years after beginning her employment with the employer, Ms. Heintz "came to an understanding of her sexual orientation and entered into a same sex relationship in October 1999. In April 2000, she advised two co-workers of her relationship and subsequently, in answer to a question put by her supervisor, agreed that she was in a same sex relationship."
Ms. Heintz went on medical leave effective August 28, 2000, and on September 22, 2000, she resigned from her employment.
Christian Horizons conceded that it was discriminating against Ms. Heintz contrary to the Code unless it came within s. 24(1)(a). The Human Rights Board of Inquiry (now Tribunal) concluded that Christian Horizons did not come within section 24(1)(a). Furthermore, "The Tribunal also found that Christian Horizons had created a poisoned work environment in its treatment of Ms. Heintz after it became known that she was lesbian."
Divisional Court
The main issue was whether the Tribunal erred in its interpretation of section 24(1)(a) of the Code.
In order for s. 24(1)(a) to be available the Court determined that the following had to exist:
- Christian Horizons is a “religious organization”;
- Christian Horizons is “primarily engaged in serving the interests of persons identified by” their creed and employs only people who are similarly identified; and
- Religious adherence is a reasonable and bona fide qualification because of the nature of the employment.
While the Tribunal held that the first element was met, it concluded that the second and third were not.
After conducting a thorough, and detailed analysis of the legislation, the applicable principles of interpretation, the Divisional Court concluded the the Tribunal erred when it found that the employer could not rely on the exemption "because of the nature of its activity and the clientele served" (point #2).
The Court held that the Tribunal had ignored the purpose of the exception which was "to confer a right to associate on certain groups so that they can join together to express their views and carry out their joint activities".
The Court further held that the Tribunal's interpretation of section 24(1)(a) was so narrow as to result in an absurd result that could not have been intended by the Legislature. According to the Court:
If the Tribunal’s strict, plain language approach is correct, a religious institution will not be able to rely on s. 24(1)(a) in order to argue that religious adherence is a bona fide qualification, even with respect to those directing a religious missionary or charitable activity, if the activity is offered to those outside the particular faith community. In effect, the religious character of the charitable mission would be rendered impossible if the mission served individuals outside of the faith group.
The nature of the particular activity engaged in by a religious organization must be analyzed to determine whether it "is seen by the group as fundamentally a religious activity". This must be followed by an assessment of whether that activity "furthers the religious purposes of the organization and its members, thus serving the interests of the members of the religious organization".
If the organization falls within the exemption, a Bona Fide Occupational Qualification ("BFOQ") assessment must follow.
Bona Fide Occupational Qualification
The Court went on to consider the so called BFOQ defence.
The Supreme Court of Canada in Ontario (Human Rights Commission) v. Etobicoke (Borough), discussed the BFOQ defence:To be a bona fide occupational qualification and requirement a limitation, such as a mandatory retirement at a fixed age, must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public. [emphasis added]
According to the Divisional Court:
A discriminatory qualification cannot be justified in the absence of a direct and substantial relationship between the qualification and the abilities, qualities or attributes needed to satisfactorily perform the particular job. The Tribunal must consider the employment or job function of providing care and support to people with developmental disabilities and not extraneous or collateral circumstances (see Ontario (Human Rights Commission) v. London Monenco Consultants Limited, [1992] O.J. No. 1599 (C.A.) at para. 21).
In the circumstances, the Divisional Court held that the employer had failed to establish that a BFOQ defence existed in this case given the position of support worker held by Ms. Heintz:
.... from an objective perspective, the support workers are not actively involved in converting the residents to, or instilling in them, a belief in Evangelical Christianity. There is nothing in the nature of the employment itself which would make it a necessary qualification of the job that support workers be prohibited from engaging in a same sex relationship.
The Court found that there was evidence to support the Tribunal's decision on this point.
Poisoned Work Environment
The Court then went on to consider the Tribunal's decision regarding the creation of a poisoned work environment. The Court concluded that "there was evidence to support the Tribunal’s findings." though observing that their role was not to retry the case, merely to "determine whether the Tribunal’s decision was reasonable, based on the evidence."
Remedies
The Court then considered the Tribunal's remedies. It did not interfere with the award of general and special damages, but did intervene and overturn some of the Tribunal's "public interest remedy" which would have required the employer to "develop and adopt an anti-discrimination and anti-harassment policy and a training program." The Court narrowed this to require the employer to "develop a policy and provide training for its employees and managers that targets discrimination on the basis of sexual orientation".
The Court also found the Tribunal's decision to require the employer to cease imposing, as a condition of employment, adherence to a Life Style and Morality Statement to be over-broad. The offending part of the Statement was the requirement that employees not engage in same sex relationships and the Court ordered this deleted.
Finally, the Court found the Tribunal's order which require a review of "all Christian Horizons’ employment policies in consultation with the Commission and, after receiving comments from the Commission and Ms. Heintz, approval by the Tribunal" to be over-reaching in that "the complaint was with respect to discrimination on the basis of sexual orientation". Orders related to this ground, according to the Court, would be reasonable.
Conclusion
This is an interesting and helpful case when considering the analysis of the section 24(1)(a) exemption. As can be seen, each case will have to be assessed on its own merits (right down to a consideration of whether, in the circumstances of the particular employment, a BFOQ exists).
Further, the case is of interest because of the manner in which the Court dealt with the remedies awarded by the Tribunal, particularly the "public interest remedies" which, in some respects, it found to be overly broad having regard to the nature of the case.
