6. Establishing discrimination based on creed

To establish prima facie discrimination (discrimination on its face) under the Code, a claimant must show:

  1. They have a characteristic protected from discrimination under the Code
  2. They have experienced negative treatment or an adverse impact within a social area protected by the Code
  3. The protected characteristic was a factor in the negative treatment or adverse impact.[116]

The claimant must show on a “balance of probabilities” (more likely than not) that discrimination took place. Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a credible, non-discriminatory explanation or to justify the conduct within the framework of the exemptions available under the Code (e.g. bona fide requirement defence). If it cannot be justified, discrimination will be found to have occurred.

Discrimination is not always direct and is often hard to detect. The analysis should be flexible and look at all relevant factors in the situation, including circumstantial evidence and the full context and impact on the affected person or group.[117] The contextual factors and relevant considerations may vary slightly based on the type of discrimination claimed (direct, adverse effect, systemic, profiling, etc.), or the ground alleged. For creed, additional factors may include social and historical contexts of inequality, and past and present forms of marginalization, stereotyping and disadvantage based on creed, including on a group basis (as discussed in section 3.2).[118] However, the legal test and threshold for discrimination do not change.

Discrimination does not have to be intentional. The focus is on the effect of a creed-based distinction, preference or exclusion on a person or group.[119] Intent is irrelevant for establishing that discrimination occurred.[120] Language or comments related to creed do not have to be present in the interactions between the parties to show discrimination. However, where such comments have been made, they can be further evidence that a person’s creed was a factor in their treatment.

As well, human rights case law has established that a Code ground need only be one factor, of possibly several, in the decision or treatment for there to be a finding of discrimination.[121]

Example: An employer dismissed an employee who declined to work on Sundays due to his observance of the Christian Sabbath. The employer argued that the employee’s refusal to work Sundays was only one of several reasons why the employee was dismissed. For instance, the employee had several incidents of discipline or poor performance, and had been confrontational with the manager. The employer was found to have breached the Code, since creed need only be a factor in a person’s adverse treatment. It does not need to be the only or main factor.[122]

Discrimination based on creed may occur because someone is:

  • Negatively affected by an organizational requirement, rule or standard that prevents them from practicing their creed (without being accommodated)
  • Pressured or compelled to do or believe something based on creed
  • Treated differentially and unfairly in a social area protected by the Code, at least in part for reasons relating to creed. 

Creed must be a factor in a person's treatment for it to be discrimination based on creed. The Code prohibition on discrimination because of “creed” extends to situations where:

  • The person who is the target of such behaviour is atheist or agnostic[123]
  • Neither the person discriminated against nor the person discriminating follows a creed
  • A person is targeted and treated unequally because of their “perceived creed,” or because of their association with an individual or group with a particular creed (or lack thereof).

Example: Co-workers in a workplace direct derogatory comments about Muslims as “terrorists” towards an employee of Middle-Eastern background who is perceived to be Muslim. Neither the employee who is the target, nor the co-workers making the comments, identify with any creed. The employee complains about his treatment to the employer. The employer does not take any remedial action because neither the complainant nor the co-workers identify as having a creed under the Code. This creates a discriminatory poisoned work environment and could be the basis for a human rights complaint because of perceived creed.

In some cases, such as when someone is seeking accommodation based on creed, it will be necessary for a rights claimant to follow a creed to receive rights protection.

6.1 Discrimination in religious services and functions

The HRTO has made clear that it is not the appropriate forum for challenging a religion’s belief system, teachings, or core forms of worship.[124] Accordingly, “purely religious services” (e.g. forms of worship or tenets of religious belief) have been found not to be covered under the Code.  

Example: A gay man alleged that a priest he had asked for help in dealing with his parents’ views toward “homosexuality” had expressed views to him about “homosexuality” that violate the Code. The HRTO dismissed his claim as not being within its jurisdiction. In concluding that a member of the clergy performing purely religious functions is not covered by the social area of “services” under the Code, the HRTO considered the competing rights of the priest and noted that in the circumstances, the scope of “services” should be interpreted in a way that protects the Charter rights of the priest. The HRTO further found that in making statements about “homosexuality” in accordance with his faith, the priest was exercising rights at the core of freedom of religion – including teaching and disseminating religious beliefs – which were purely connected with his religious role.[125]

However, services offered by religious organizations that are not “purely religious” – and have no clear connection with religion – are subject to the Code.

Example: A religious organization opens a restaurant for the general public. However, it discriminates against members of a different creed by not allowing them to dine at the restaurant.

Conduct within religious services or facilities that is not connected with religious belief may also be challengeable under the Code, unless covered by another Code defence (see section 8 for other Code defences and exemptions for religious organizations, including those relating to membership, employment, programs and services).

Example: A place of worship fails to provide a ramp at its entrance to enable people with disabilities to attend its core worship services. This is unrelated to any religious teaching or requirement. This could be discriminatory under the Code.

[116] Moore v. British Columbia (Education), [2012] 3 S.C.R. 360 [Moore]; Pieters, supra note 34; and R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436 (CanLII) at para. 204.

[117] For example, in R.C., supra note 67, the HRTO comments on the analysis of whether discrimination has occurred: “There is no particular formula; it is a flexible and contextual inquiry that, depending on the case, may involve consideration of factors such as historical disadvantage, correspondence with actual characteristics, impact on other groups and the nature of the interest affected” (at para. 46, citing Quebec v. A., supra note 33 at paras. 418, 531).

[118] Social and historical contexts of inequality are considered in HRTO and court decisions dealing with religion and creed; see e.g. R.C., ibid at paras. 45-48 on social and historical contexts of inequality, and at paras. 49-50 on the unique immediate context – in this case, a school setting involving young school age children.

[119] Freitag HRTO, supra note 107.

[120] R.C., supra note 67 at para. 46, citing Quebec v. A., supra note 33  at paras. 328-330, 335.

[121] Gray v. A&W Food Service of Canada Ltd. (1994), CHRR Doc 94-146 (Ont. Bd. Inq.); Dominion Management v. Velenosi, 1997 CanLII 14482 at para. 1 (Ont. C.A.); Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC) at para. 9; King v. CDI Career Development Institutes Ltd., 2001 CanLII 39086 (SK HRT).

[122] Smith v. Network Technical Services Inc. 2013 HRTO 1880 (CanLII).

[123] Big Msupra note 5 at para. 123; see also R.C., supra note 67 at paras. 32-37.

[124]Tesseris v. Greek Orthodox Church of Canada, 2011 HRTO 775 (CanLII) [Tesseris]; see also Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639 (CanLII).

[125]  Tesserisibid.