Court decisions such as “O’Malley” have established that organizations governed by the Code have a duty to accommodate individuals’ creed observances up to the point of undue hardship, regardless of whether established organizational norms, standards, rules or requirements adversely affect creed adherents’ ability to follow the tenets of their creed by design, intent or simply effect. The courts have also affirmed that the claimant has the onus to first establish a prima facie claim of discrimination, before the onus shifts to the respondent to show that it has taken steps to accommodate to the point of undue hardship.
The duty to accommodate creed rights arises in contexts of “constructive discrimination,” also known as “adverse effect discrimination.” Under the heading of “constructive discrimination,” section 11(1) of the Code states:
A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances (emphasis added);
Section 11(2) immediately qualifies this “bona fide requirement” (BFR) defence for adverse effect discrimination by stating:
The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any (emphasis added).
For a requirement to be found reasonable and bona fide, the organization will have to show that it has accommodated creed observances to the point of undue hardship.
There nevertheless remain some questions and tensions in creed accommodation analyses. This section explores some of those tensions.
2.1 Prima facie discrimination and appropriateness analysis
Before assessing whether a creed accommodation is required and whether such accommodation would constitute an undue hardship for an organization, prima facie discrimination must first exist.
Courts have affirmed that people seeking accommodation must first establish that they have a prima facie claim of discrimination, and must show that:
- They have a characteristic protected from discrimination under the Code
- They experienced an adverse impact with respect to a service, employment etc.
- The protected characteristic was a factor in the adverse impact. 
Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. For example, an organization can argue that it accommodated the needs of the person to the point of undue hardship. In Ontario, the Code states that the factors in assessing undue hardship are cost, outside sources of funding (if any) and health and safety.
Leaving aside the issue of undue hardship, is it always “appropriate” for a service with a transient public, such as a restaurant or bus service, to accommodate the potential wide variety of creed observances of its service-using public? Is undue hardship the only potential line of defence for not accommodating a bona fide creed observance, where an adverse impact can be shown? Or might there be another preliminary point of analysis having to do with the “appropriateness” of creed accommodations in particular service contexts, considering the essential nature of the service being offered?
For example, might it be defensibly argued that owing to the transient nature of the service clients, in specific contexts, it is reasonable and not discriminatory to not accommodate service users’ creed observances (depending on what they are), also in part because of the potential ability of service users to fulfill their creed observances elsewhere (in not unduly burdensome ways)?
If this is the case, it may help to develop guidelines outlining potential circumstances where this “appropriateness analysis” may arise, and the ingredients of such an analysis. This is something that may need to be considered in the policy update.
However, existing prima facie discrimination and undue hardship analyses may already provide sufficient tools to respond to these scenarios.
For example, with claims under section 2(a) of the Charter, the courts have determined that even where religious rights are triggered, not everything that interferes with them will constitute discrimination or an infringement of a right under the Charter. The Supreme Court has affirmed, in section 2(a) cases, that an interference with a religious right must go beyond the “trivial and insubstantial.” “Trivial or insubstantial” interference is interference that does not threaten actual religious beliefs or conduct. While analyses of discrimination and human rights protections flowing from the Code are distinct from the Charter, decisions based on the Code have also distinguished between core and peripheral dimensions of rights meriting protection.
Some examples explored in the Creed case law review of decisions under the Charter and/or Code where a practice connected to a religion or creed was deemed not to warrant legal protection or a duty to accommodate include:
- Volunteer activities at church, in this case relating to staffing a fundraising day camp (HRTO held not protected under the Code in Eldary v. Songbirds Montessori School Inc.)
- Social and community activities connected to religion (Hendrickson)
- Installation of a satellite dish, against condominium bylaws, to receive international religious and cultural programming (deemed not to be a right sufficiently connected to creed in Assal v. Halifax Condominium Corp. No. 4)
- Giving out religion-based gifts (pens with religious inscriptions)
- Special leave to attend land claim selection meetings as a part of ancestral and religious duties.
As part of assessing whether a right is infringed and warrants protection, organizations may need to look at the extent to which a person’s belief may allow for exceptions. The case of Saadi v. Audmax is particularly interesting on this point, as the Court distinguished between what was required by the faith (in this case relating to religious attire) and the rights claimant’s subjective ”style” preferences.
2.2. Critiques of “accommodation” discourse and framework
“People don’t want to be accommodated or tolerated, but respected.” – January 2012 Policy Dialogue participant
Accommodation may be perceived as entailing the “granting of an exception” to a person or a group of persons upon whom a universal (facially neutral) rule would otherwise have a discriminatory effect on grounds prohibited by the Charter and/or Code. This notion of accommodation has been critiqued by advocates of a deeper equality for failing to go far enough – for not challenging the ”privileged norm” disadvantaging minorities in the first place, and instead only granting individuals an ”exception” to it. Scholars contrast “accommodation”/“tolerance” approaches versus more radically pluralist “equality” approaches as competing frameworks for thinking about religious diversity in Canada.
For example, Lori Beaman highlights the implicit hierarchies of belonging and “normalcy” that a discourse of “tolerance” and “accommodation” inevitably creates, “wherein majorities confer benefits on minorities” and unilaterally determine the limits (reasonableness) of this tolerance. “My worry” she explains, “is that these terms fix us in place in a way that does not ever quite reach equality. They don’t force a rethinking of structural inequality in a way that laying bare difference and a requirement to achieve substantive equality may facilitate”.
The term accommodation itself carries a power dynamic. We are discussing a policy that is trying to give people the freedom to be fully themselves, but discussed in a framework of power imbalance. I don’t have a solution, just observation, but I get a trigger every time I hear the word ‘accommodation.’” – January 2012 Policy Dialogue participant
2.3 Continuum of accommodation: from systemic to individual
There is nevertheless room and precedent within existing human rights law for a fuller and more transformative concept of accommodation that moves beyond exceptions towards scrutinizing the norm. Subsection 11(2) of the Code explicitly calls for inclusive design based on the “needs of the group” as the most appropriate first response to constructive discrimination, unless this creates undue hardship. Supreme Court of Canada jurisprudence also supports this.
In a 2012 article, “Accommodation in the 21st Century”, published by the Canadian Human Rights Commission, Brodsky, Day and Peters trace the legal evolution of a more proactive (versus “after the fact”), systemic (versus individual) and transformative (versus based on exceptions) approach to addressing constructive discrimination back to the landmark (1999) Supreme Court of Canada decision in British Columbia (Public Service Employee Relations Commission) v BCGSEU ("Meiorin"). Before Meiorin, respondents were only required to make individual adjustments or exceptions to the rule in cases of adverse effect discrimination. There was no onus to justify the universal rule or standard. Recognizing the ways this approach was obstructing and undermining “the promise of substantive equality” in society called for under human rights legislation, Justice McLachlin (as she then was), writing for a unanimous Court, quoted the following passage with approval:
The difficulty with this paradigm is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, able-bodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves “normal” to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are “accommodated.”
Accommodation, conceived this way, appears to be rooted in the formal model of equality. As a formula, different treatment for “different” people is merely the ﬂip side of like treatment for likes. Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed. Accommodation seems to mean that we do not change procedures or services, we simply “accommodate” those who do not quite ﬁt. We make some concessions to those who are “different”, rather than abandoning the idea of “normal” and working for genuine inclusiveness.
In this way, accommodation seems to allow formal equality to be the dominant paradigm, as long as some adjustments can be made, sometimes, to deal with unequal effects. Accommodation, conceived of in this way does not challenge deep-seated beliefs about the intrinsic superiority of such characteristics as mobility and sightedness. In short, accommodation is assimilationist. Its goal is to try to make “different” people ﬁt into existing systems.
She went on to state: “The right to be free from discrimination is reduced to a question of whether the ’mainstream‘ can afford to confer proper treatment on those adversely affected, within the conﬁnes of its existing formal standard. If it cannot, the ediﬁce of systemic discrimination receives the law’s approval. This cannot be right.”
The Supreme Court set out a new analysis for justifying a bona fide requirement (or BFR), requiring respondents to review and inclusively redesign adversely impacting rules, qualifications or standards short of undue hardship. The Court pushed organizations to “build conceptions of equality into workplace standards” (and by extension services) themselves. In this way, the focus of accommodation, at the outset, was quite radically shifted, from the individual adversely affected to the standard having the adverse impact. To recap this legal implication of Meiorin: once a prima facie case of (adverse effect) discrimination has been successfully made out, organizations have a legal responsibility to explore a range of possible accommodation arrangements, including the possibility of beginning with what some have called “systemic accommodation” (changing the standard for all). Only after this systemic accommodation has been shown to create undue hardship can an organization move on to examine possible individual accommodation arrangements short of undue hardship.
OHRC policies and guidelines also recommend that organizations design their programs, services and workplaces inclusively. Like systemic accommodation, the human rights ideal of “inclusive design” can force organizations to scrutinize and redesign established ways of doing things (status quo norms, rules and standards). Inclusive design need not be (indeed ideally is not) complaint-driven, or dependent on accommodation requests or claims of prima facie (adverse-effect) discrimination.
2.4 Accommodation and competing rights
There is often a need to consider the rights of others in creed accommodations (the rights of other Code protected groups, or general interests of society in public order, health, safety, democracy, etc.). Rights can and often do come into competition with one another, particularly on the ground of creed, as is explored in the OHRC’s Policy on competing human rights and The shadow of the law: Surveying the case law dealing with competing rights claims. The recognition in human rights law at all levels that the right to hold beliefs is broader than the right to act on those beliefs (religious or otherwise) is in large part in recognition of the potential impact of actions on others.
Some of the more difficult contemporary competing rights cases have involved creed-based conscientious objections to providing services (e.g. abortion, same-sex marriage, women’s haircut) and/or to performing job functions while on the job (e.g. patient referral for abortion, serving alcohol, putting out a Christmas display). For how to best handle and think through such scenarios, the OHRC directs readers to the OHRC’s Policy on competing human rights, which outlines a framework for dealing with them. The policy affirms several key principles, including:
- There is no hierarchy of rights
- No right is absolute
- Context is critical
- Rights have core and peripheral dimensions, and rights balancing will tilt towards upholding rights that are infringed at their core
- Search for “constructive compromises”, “accommodations” and measures to minimize potential harm to each right.
 Supra note 282.
 R.S.O. 1990, c. H.19, s. 11 (1). Part 1 of the Code (Freedom from Discrimination) outlines the prohibited grounds of discrimination and the social areas (services and facilities, housing, contracts, employment, vocational associations) where discrimination based on these grounds is prohibited.
 Moore v. British Columbia (Education) 2012, supra note 317.
 Hutterian Brethren, supra note 235. In its recent decision in R. v. Badesha, 2011 ONCJ 284 (CanLII) [“Badesha”], the Ontario Court of Justice noted that the degree of interference that must be shown before the impact on religious rights is found to be more than “trivial” or “insubstantial” may vary depending on the precise circumstances.
 Eldary v. Songbirds Montessori School Inc., 2011 HRTO 1026 (CanLII). In this HRTO decision, managing a children’s day camp put on by the claimant’s church as a fundraiser was found not to be religious in nature nor was it found to be required as a tenet of her faith. The fact that the activities were at her church were not sufficient to find that they were covered by the ground of creed.
 Hendrickson Spring, supra note 304.
 Assal v. Halifax Condominium Corp. No. 4 (2007), 60 C.H.R.R. D/101 (N.S. Bd. Inq.). In this case, the Nova Scotia Board of Inquiry rejected a claim that a condominium was required to accommodate a request to install a satellite dish, contrary to its bylaws, to receive Muslim religious and cultural programming from international sources. The Board stated that being able to establish discrimination requires something more than being able to draw some connection to religion. Unlike in Amselem (supra note 137), there was nothing to suggest that accessing the satellite service was a religious practice, belief, requirement or custom, or was part of the tenets of the family’s faith or culture. While the complainant wanted access to the technology to allow his family greater exposure to their culture, language and religion, there was nothing to suggest that its absence would in any way compromise the practice of their faith.
 Hendrickson Spring, supra note 304, was cited in this decision that found that giving out religion-based gifts (e.g. pens with religious inscriptions ) in the workplace is not a protected right, even though the ability to do so was extremely important to the grievor. There was no evidence that this activity formed any part of her religion as a Born-again Christian (Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services) (Barillari Grievance),  O.G.S.B.A. No. 176, 155 L.A.C. (4th) 292).
 Whitehouse v. Yukon , 48 C.H.R.R. D/497 (Y.T.Bd.Adj.). In this decision, a Yukon Board of Adjudication did not accept that a First Nations man was entitled to special leave to attend land claim selection meetings because of his ancestral and religious duties.
 R v.N.S., 2010 ONCA 670 at paras. 69.
 Saadi v. Audmax, 2009 HRTO 1627 (CanLII).
 In Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 (CanLII), the Ontario Divisional Court, on judicial review, disagreed with the HRTO’s conclusion in Saadi v. Audmax that the employer’s application of a dress code policy discriminated against the applicant based on the intersecting grounds of sex and creed. The Divisional Court found that the HRTO should have considered whether Ms. Saadi could have complied with the dress code without compromising her religious beliefs around appropriate religious attire. It stated (at para. 86):
There was nothing about Ms. Saadi’s religion that required her to wear the particular form of hijab she was wearing on the day in question. If it was possible for her to wear a religiously acceptable form of hijab that was fully consistent with the dress code (as indeed she had done every day for six weeks), her religious rights were not affected. All that was affected was her sense of style, which apparently was in conflict with that of her employer.
 See Beaman (2012). Lorne Sossin (2009) highlights similar tensions in the legal regime and discourse governing religion in Canadian workplaces. Rival frameworks evident include, on the one hand, a narrative of pluralism, inclusion and mutual recognition, and on the other hand, a narrative of “exceptionalism” that envisions “Canada as a majority Christian society in which other religious minorities are tolerated within a framework of deviation from the norm” (p. 485).
 Beaman, 2012, p.16. Drawing attention to the origins and reverberations of “accommodation” discourse in labour law and employment contexts of employer/employee power imbalance, Beaman, 2012, p.16-17 views the discourse and practice of accommodation as insufficiently advancing or fulfilling the objectives and promise of substantive equality as a central Canadian constitutional value. However, she notes the relative recency, and hence transformability, of the now legally and discursively dominant accommodation concept.
 Ibid., p.17.
 Under the heading of ”constructive discrimination,” Section 11(2) of the Code states:
The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any (cited in OHRC Policy on Creed, 1996, p. 8).
The 1996 Policy on Creed suggests this “inclusive design” component of accommodation analysis where it states: “Accommodation may modify a rule or make an exception to all or part of it for the person requesting accommodation” (p. 7).
 British Columbia (Public Service Employee Relations Commission) v BCGSEU,  3 S.C.R. 3 ("Meiorin").
 Ibid. at para. 41 citing Day, Shelagh, and Gwen Brodsky. “The Duty to Accommodate: Who Will Benefit?” (1996), 75 Can. Bar Rev. 433.
 Ibid. at para. 42.
For adverse effect discrimination, the main defense is “bona fide requirements,” as mentioned in Section 11 of the Code: “a rule, requirement etc. which has a discriminatory effect is allowed where it can be shown to be reasonable and bona fide.” According to the Supreme Court of Canada, to be considered a bona fide (which means “good faith” or “genuine” or “legitimate”) occupational requirement, an employer must show that the standard, factor, requirement or rule:
- was adopted for a purpose or goal that is rationally connected to the function being performed
- was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal
- is reasonably necessary to accomplish its purpose or goal, because it is impossible to accommodate person(s) adversely effected without undue hardship.
This last point was introduced in Meiorin (supra note 401) and is essential since it requires that employers design their standards, rules and requirements from the outset in a way that considers the diversity of people within the organization – and seeks to accommodate and enable this diversity, up to the point of undue hardship.
 Meiorin, supra note 401 at para. 68.
 Commenting on the “profound changes in the legal conception of accommodation” ushered in by the Meiorin decision, Melina Buckley and Alision Brewin observe:
Before this decision, employers had only to consider accommodation of an individual by assisting those who did not ﬁt the existing standard. Now the duty is two-fold. First, an employer must consider whether the standard itself can be changed so as to be more inclusive and promote substantive equality in the workplace. Second, if this is not possible or if the standard is fully justiﬁable under the new higher legal threshold, then substantial eﬀorts toward individual accommodation are still required (Buckley and Brewin, 2004, p. 22; cited in Brodsky et al., 2012, p. 10, emphasis added).
 Karen Schucher describes the idea of ”systemic accommodation" in her commentary on the new approach to adverse effect discrimination advanced in Meiorin: “This broader approach expands the concept of accommodation to require systemic change to workplace standards. This systemic change extends both to a recognition of the distinctive realities among groups and individuals, as well as to more individually focused remedies and exceptions. Systemic accommodation effectively requires transformation of workplace standards…” (Schucher, 2000, pp. 9-10; cited in Broskey et al., 2012, p.10).
 International human rights law makes an important distinction – also affirmed in domestic case law – between the ìnternal dimension of one`s belief or conviction (forum internum), which “has absolute protection with no limitations,” which is distinct from “external manifestations” that can be limited “for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” [UNDHR, Section 29(2); See UN General Assembly (2012) Interim Report of the Special Rapporteur on freedom of religion or belief [A/67/303] (at paras. 17-21) for more on this distinction].