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IV. Defining creed

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This section looks at arguments for and against expanding the current definition of creed in the updated OHRC policy. It also considers potential outer limits and conditions for qualifying as a creed for human rights protections. This section also looks at the potential impact of an expanded definition of creed for organizations responsible for upholding the Code. Although many of the arguments explored in each section could be immediately rebutted with counter-arguments, these are engaged in separate sections, wherever possible, allowing each perspective to be stated in positive terms. This is done so the reader can assess the strength of arguments on their own merit.

Key questions

  • Should the OHRC define creed in the updated policy? If so, how? 
  • What does the case law, and principles of statutory interpretation, tell us about how creed should be understood?
  • What, if anything, might distinguish a “creed” from other beliefs (e.g. opinions, preferences, etc.) and associated practices?
  • What are some of the practical implications and consequences of an expanded definition of “creed” for those with responsibilities under the Code?

1. Context

1.1 Current OHRC policy definition

Creed is one of the prohibited grounds of discrimination under the Ontario Human Rights Code. The Code does not provide a definition of creed, but in the 1996 OHRC Policy on creed and the accommodation of religious observances, it was defined as follows:

Creed is interpreted to mean “religious creed” or “religion.” It is defined as a professed system and confession of faith, including both beliefs and observances or worship. A belief in a God or gods, or a single supreme being or deity is not a requisite.[220]

The (1996) Policy conceives of religion broadly “to include, for example, non-deistic bodies of faith, such as the spiritual faiths/practices of aboriginal cultures, as well as bona fide newer religions (assessed on a case by case basis)”.[221] Nevertheless, it drew a clear line at religion, explicitly stating that “[c]reed does not include secular, moral or ethical beliefs or political convictions”.[222] The Policy also stated that it “does not extend to religions that incite hatred or violence against other individuals or groups, or to practices and observances that purport to have a religious basis but which contravene international human rights standards or criminal law”.[223]

Since the 1996 Policy, the courts and HRTO have increasingly had to grapple with what legitimately qualifies for human rights protection on the Code ground of creed (as discussed below). Several recent cases have involved non-religious belief systems, including ethical veganism,[224] atheism[225] and political belief.[226] Cases like these, combined with other legal developments and broader social trends (including the growth of non-religious forms of belief and affiliation) have helped to bring the question of how to define creed to the forefront of the current policy update.

1.2 Developments in law

Most HRTO and court decisions based on the Code have interpreted creed to mean religion, as defined in the OHRC’s (1996) policy position.[227] Black's Law Dictionary equates creed with religion when it defines creed as a “confession of articles of faith, formal declaration of religious belief, any formula or confession of religious faith, and a system of religious belief.”[228] Similarly, Tarnopolsky and Pentney's Discrimination and the Law states that creed and religion are “essentially synonymous” terms.[229]

However, there are notable exceptions to this trend. In R.C. v. District School Board of Niagara[230] the HRTO found that protection against discrimination based on creed extends to atheism. The HRTO stated that prohibiting discrimination because of creed includes “ensuring that individuals do not experience discrimination in employment, services and the other social areas in the Code because one rejects one, many or all religions’ beliefs and practices or believes there is no deity.”[231]

Various other cases have left open the possibility that non-religious belief may constitute a creed under the Code (as discussed below). Overall, the courts appear to be reluctant to offer any final, authoritative, definitive or closed definition of creed, preferring a more organic, analogical (“if it looks like a duck, walks like a duck and quacks like a duck, it must be a duck”)[232] case-by-case assessment. This has yielded a variety of results. Courts and tribunals have recognized a wide variety of subjectively defined religious and spiritual beliefs within the meaning of creed under the Code and religion under the Charter, including:

  • Aboriginal spiritual practices,[233]
  • Wiccans,[234]
  • Hutterian Bretheren[235]
  • Raelians[236]
  • Practitioners of Falun Gong[237]
  • Members of the Worldwide Church of God[238]
  • Rocky Mountain Mystery School.[239]

There is nothing in the case law that would prohibit redefining “creed” more broadly and include secular ethical and moral beliefs. Therefore, the question of what should constitute a creed in terms of the right to be free from discrimination under the Ontario Code – in particular with respect to secular, moral or ethical beliefs – remains an open one. In fact, this is a central question being considered in the current creed policy update. At the same time, the courts have offered some guidelines around the outer limits of what they will recognize as meriting protection under the Code ground of creed (as discussed below).

As well, applying principles of statutory interpretation, it can be argued that creed and religion can and do mean different things (for further discussion, see OHRC Case Law Review and Section 3, below).

[220] See the OHRC’s Policy on creed and the accommodation of religious observances, 1996, p. 4.

[221] Ibid, p. 4. The Policy also states that “[t]he existence of religious beliefs and practices are both necessary and sufficient to the meaning of creed, if the beliefs and practices are sincerely held and/or observed”.

[222] Ibid, p. 5..

[223] Ibid, p. 5. The Policy further states in an endnote: “Not only are such groups not protected under the Code, but they may also be subject to provisions of the Criminal Code. Any reports of activities involving such groups should be immediately reported to the police. For example, female genital mutilation is a violation of women's human rights and is not protected on the ground of creed. See the OHRC's Policy on female genital mutilation.

[224] See Ketenci v. Ryerson University, 2012 HRTO 994 (CanLII).

[225] R.C. v. District School Board of Niagara, supra note 8.

[226] Al-Dandachi v. SNC-Lavalin Inc., 2012 ONSC 6534 (CanLII).

[227] See Creed case law review (2012) and Chiodo (2012a) for summary of some decisions in this respect.

[228] 6th edition, 1990.

[229] Tarnopolsky and Pentney, 1985, p. 61.

[230] Supra note 8.

[231] Ibid., at para. 30. In his decision in favour of the atheist applicant, HRTO Associate Chair, David Wright, further stated, at para. 31:

“…Protection against discrimination because of religion, in my view, must include protection of the applicants' belief that there is no deity, a profoundly personal belief about the lack of existence of a divine or higher order of being that governs their perception of themselves, humankind and the world. The applicants' beliefs relate to religion, and engage the purpose of ensuring that people are treated equally regardless of their views and practices on religious matters. It is not necessary in this case to decide whether creed may in some cases encompass core beliefs about fundamental matters other than religion.”

[232] See Kislowicz (2012) for more on the strengths of this analogical approach.

[233] See Kelly v. British Columbia (Public Safety and Solicitor General)supra note 11.

[234] Re O.P.S.E.U. and Forer (1985), supra note 12.

[235] Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567.

[236] Chabot c. Conseil scolaire catholique Franco-Nord, 2010 HRTO 2460 (CanLII).

[237] Huang, supra note 14.

[238] Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.

[239] In this particular grievance arbitration decision, the labour arbitrator did not discuss why participation in the Rocky Mountain Mystery School, an organization that “teaches the ancient practice and knowledge of light and light work in the world” was a creed. Instead, the arbitrator focused on whether the employer was required to accommodate the employee’s request for time off to attend a pilgrimage (Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications, [2010] C.L.A.D. No. 298 (QL). In finding that the employee should have been accommodated, the arbitrator implicitly accepted that the ground of creed was engaged.



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