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3. Arguments for maintaining the OHRC’s 1996 policy definition of creed as “religion”

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3.1 Equality focus and purpose of human rights legislation

Many of the arguments heard to date by the OHRC in support of maintaining the current definition of creed as “religion” revolve around anxieties about potentially “watering down” the purpose and focus of human rights legislation. Proponents of this view reminded us of the importance of returning to the original purpose of human rights protections when considering the question of definition. For instance, people argued that the main purpose of human rights legislation is to combat discrimination that is based on, and reproduces, social inequality, social exclusion and historical disadvantage faced by vulnerable, marginalized groups in society. One participant at the Legal Workshop commented:

I don’t want to water this down so that people in power who enjoy privilege use this to protect the power they already have. We want to be open, but not to the extent that we take the prohibited grounds to apply to everyone and anyone...If you water down the policy [definition], you put yourself on a slippery slope of having to deal with issues for which Human Rights Codes were not intended. Then, you will no longer have a vehicle to protect and promote the rights of marginalized, vulnerable identifiable groups.[315]

Proponents of this view tended to emphasize the group basis of social disadvantage and stereotyping faced by existing Code-protected groups, as a key condition of their protection under the Code. They argued that the move in recent human rights jurisprudence away from abstract formal analyses of prima facie discrimination –centering on human dignity or comparator group analyses – towards more contextual and purposive understandings of discrimination, mindful of social and historical relations of power and inequality, provides some support for this view.[316]

However, one could argue that not all religious communities currently covered by the Code ground of creed are socially disadvantaged. In fact, as discussed earlier in the background section, some religious communities may have structural advantages and privileges in Ontario society, at least in certain respects. In any case, if the OHRC expands its policy definition of creed, cases brought before the courts and HRTO would still need to meet the test of prima facie discrimination, which may consider past or present social disadvantage and sensitivity to contexts of social inequality.[317]

Some legal scholars emphasize a distinction between the goal of equality rights legislation (for example, protecting against discrimination based on creed under the Code), and the goal of liberty rights legislation (for example, protecting freedom of religion under section 2(a) of the Charter).[318] The former, they argue, addresses social and historic disadvantage and inequality, necessarily assessing broader social dynamics of power and inequity in its effort to prohibit and remedy discrimination and unequal treatment.[319] The latter tends to put more emphasis on the right of individuals to be free from state coercion or interference in matters of religion and conscience,[320] regardless of whether such interference or coercion is based on social inequality or group disadvantage or stereotyping.

While the courts have recognized an equality dimension to freedom of religion under the Charter[321] some legal scholars note the disproportionate weight accorded to the liberty dimension in s. 2(a) jurisprudence.[322] Taking issue with the tendency of the higher courts to conflate and confuse equality rights relating to creed and religion under the Code and s.15 of the Charter with religious freedom rights under s.2(a) of the Charter, Ryder, among others, emphasized the importance of distinguishing between the two overlapping but distinct aims of these laws, advising the OHRC to keep the unique purposes of human rights legislation in view when assessing policy options for defining creed.[323]

3.2 Uniqueness of religion merits distinct protections

Others argue that religion is distinct from other kinds of belief systems, and that to fail to distinguish between, for instance, political and ethical beliefs, conscience and religion, is a categorical error and potentially a legal one, since different kinds of belief warrant different kinds of legal protections (e.g. freedom of expression versus freedom of religion versus freedom of conscience), in accord with their unique status and functioning in the lives of individuals. One participant at the Legal Workshop, warned of the danger of trying to “fit square pegs into round holes”:

A few distinctions may help us. There is a long tradition of protecting religions as collectives, as institutional forces in our society. The new [square] pegs are these new forms of identity – there is an individual autonomy that is different from the collective aspect of religions. That is why they should be seen as differently.

This collective dimension of religion and creed has been discussed in legal decisions.[324] For instance, in 407 ETR Concession Company v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, CAW-Canada, a labour Arbitrator states: “A creed implies some level of association between those of like mind. It contemplates a set of shared beliefs. It implies some professed system of faith.”[325] In his dissenting judgement in Hutterian Brethren,[326] Justice LeBel also emphasized the importance of recognizing the communal and collective aspect of religion:

[Freedom of religion] incorporates a right to establish and maintain a community of faith that shares a common understanding… Religion is about religious beliefs, but also about religious relationships… [This case] raises issues… about the maintenance of communities of faith”.[327]

Chief Justice McLachlin, in her majority decision, and Justice Rosalie Abella also accepted that religious freedom has both individual and collective aspects. However, Chief Justice McLachlin rejected the view that that the community impact transformed the essential claim of the Colony – that of the individual claimants for photo‑free licences – into an assertion of a group right.

The 1996 Policy similarly recognizes this group aspect of religion in speaking about the need to assess and accommodate the “needs of the religious group to which an individual belongs” (see section V subsection 3.2 for further discussion on “the needs of the group”).[328] This is consistent with s. 11 of the Code, dealing with constructive discrimination, which also refers to the needs of the group of which the individual is a member.

Many legal scholars have taken issue with the erasure of this communal dimension of religion in the Charter s. 2(a) freedom of religion jurisprudence, particularly since Amselem.[329] For example, Moon observes:

The particular significance of religious practice to the individual must rest in part on its collective character – that a practice such as residing in a succah connects the individual to a community of believers and is part of a shared system of norms...[R]eligious accommodation may be motivated at least in part by a desire to avoid the marginalization of identity groups [330]

Others pointed to other ways that religion (as opposed to other kinds of beliefs) is unique and distinct in ways meriting special legal consideration and protection of its own particular kind. For instance, some people highlighted the depth and comprehensiveness of religious commitment, and the absolute and transcendent nature of its truth claims, which by definition can pose unique challenges to the authority of the liberal state in ways that are not similar to other kinds of (less encompassing or absolute) beliefs.[331]

3.3 Distinction between rights based on conscience and religion and existing protections irrespective of belief

We also heard from several people that matters of “religion” should be distinguished from matters of ”conscience,” in part for the reasons discussed earlier. Warning about the dangers of conflating these interconnected but distinct phenomena under a single category of “creed,” one participant argued:

We know from the history of religion that there is an inherent group component – identifying with religion means identifying with a group and set of internal permissions that one negotiates...I see conscience as an individual element of religion. I may have a dispute with members of a religious group, and rely on my conscience. Conscience can be the antithesis to a religious belief. I’m increasingly persuaded that the new religions should be under conscience rather than religion.

The same participant went on to explain how two different types of legal rights protections – one, a negative right (freedom from coercion), the other a positive right (implying a duty to accommodate) – may not necessarily apply equally to both kinds of beliefs. He observed:

We have less trouble saying people shouldn’t be coerced with conscience, but it is more complicated with accommodation. Ethical veganism is a good case – it is more about conscience than membership in community, but for accommodation...Should conscience be accommodated the same way as religion? This is an important question, and a hard question.

Some held that the existing 1996 OHRC Policy already extended sufficient (albeit negative, i.e. “freedom from”) rights to persons with non-religious creeds. For instance, this policy states:

It is the OHRC's position that every person has the right to be free from discriminatory or harassing behaviour that is based on religion or which arises because the person who is the target of the behaviour does not share the same faith. This principle extends to situations where the person who is the target of such behaviour has no religious beliefs whatsoever, including atheists and agnostics who may, in these circumstances, benefit from the protection set out in the Code.[332]

This brings within the scope of human rights protection situations where individuals are harassed, or face other discriminatory treatment for not having a particular creed or religious belief (e.g. for being non-religious, atheist, agnostic or secular humanist), and/or where a person of religious faith imposes their faith in some way on a person who does not share that faith, regardless of what their beliefs are.[333] It may not, however, impose on organizations any positive duty to accommodate persons with deeply held non-religious beliefs. Some argue that this restriction of the duty to accommodate is justifiable, since it flows, in large part, from society’s recognition of an unequal (social, institutional, structural) playing field for “minority group” members (thus ruling out accommodations for people not facing such constructive forms of disadvantage). Of course, non-religious creed group members may also face group disadvantage (as explored above).

Noting the distinction between religion and conscience in section 2(a) Charter case law (see section 2.1.4 above), some argued that rather than expanding the scope of creed through policy development, the OHRC should advocate for the Legislature to add “conscience” to the Code, if indeed it believes a broader range of individual beliefs should be included within the scope of its protections. This would enable two separate and distinct streams of jurisprudence (the right to be free from discrimination based on creed and the right to be free from discrimination based on conscience) to be maintained. To not do this, some argued, would be tantamount to mixing apples and oranges under a single confused (“creed”) category, which could lead to decision makers simply overlooking the OHRC’s policy, due to its potential to run against the grain of judicial interpretation.

3.4 Floodgate and impact arguments

The OHRC also often heard “floodgate”-type arguments – if the policy widens the definition of creed, organizations governed by the Code will be flooded and overcome with demands to accommodate all manner of sincerely held beliefs, compromising their ability to function and fulfill their essential purpose.[334] Concerns about potentially having to deal with a flood of creed claims were at times connected to organizational anxieties around having only a “subjective-sincerity” test to hold back such claims.

Others drew attention to the much broader jurisdiction of the Code, as compared to the Charter, and the potential significant impact that bringing matters of individual conscience (currently governed by the Charter which applies only to government) under the Code could have for Ontario organizations. One policy dialogue participant concluded: “Creed analysis under the Code should not be unthinkingly borrowing from the Charter when the impact of the Code is so much greater with employers and citizens than the Charter.”[335]

Some would nevertheless challenge the idea that opening up the definition of creed beyond religion in an OHRC policy will necessarily lead to an avalanche of frivolous claims. There is already ample scope for a multitude of (in some cases frivolous and vexatious) claims based on religion in current law, due to the broad and subjective definition of religion in Amselem.[336] As well, the current policy definition of creed has not prevented claims from being advanced at the HRTO under the ground of creed by people who would not likely fall within the current policy definition.

Furthermore, while OHRC policies are considered persuasive and often given great weight by the HRTO and courts, a change to the policy would not necessarily bind decision makers in individual cases. In any case, from a human rights perspective, withholding current human rights and accommodations based on prospective future challenges (e.g. anticipation of future undue hardship) is not a legally defensible position. Undue hardship analyses in accommodation cases, for instance, must proceed based on current (empirically demonstrable) organizational realities and constraints.

3.5 Legislative intent

Principles of statutory interpretation affirm that the intention of the legislature is a factor in interpreting legislation,[337] as is “[t]he legislative evolution and history of a provision”.[338] The OHRC heard anecdotal evidence based on an oral interview with a leading human rights activist around at the time of the Code’s creation, that only religious creeds were contemplated by Parliament when it introduced creed as a ground of human rights protection in 1962. Others have suggested that the language of “creed” evolved out of the historically dominant Christian lexicon, and assumed religious meaning.[339]

Despite this, the OHRC need not be bound strictly by 1962 interpretations. The Code has since been updated many times since its 1962 enactment, most recently in 2008, and has not been amended to replace “creed” with “religion” or “religious creed”. As well, as noted earlier, human rights legislation has quasi-constitutional status. This means that human rights legislation is given a liberal and purposive interpretation, so it may better fulfill its objectives, with protected rights receiving a broad interpretation. However, as also earlier noted (see supra note 337), any such broad “interpretation of the text of the statute” should also be one “which respects the words chosen by Parliament.”[340]

Further, in responding to general terms and concepts, the approach is organic and flexible. The key provisions of the legislation may be adapted to changing social conditions and also to evolving conceptions of human rights. According to Sullivan and Driedger:

Courts are bound to respect the meaning of words used by the legislature, but given the plastic character of language, especially the general language typically found in human rights codes, this constraint does not prevent the courts from taking a flexible and adaptive approach.

In practice, the Supreme Court of Canada has consistently taken a flexible and adaptive approach to the resolution of issues under human rights legislation. This is evident in the willingness of the court to adopt and develop novel concepts within the framework of these Acts. Although the new concepts may be loosely tied to particular provisions of the Act, the main justification for introducing them is that they accord with and tend to promote the general policies and goals of the Act.[341]

This liberal and purposive approach to interpreting the law is in evidence in the OHRC’s reading of gender identity, pregnancy and breastfeeding into the Code ground of sex, even though the legislation was initially silent on such inter-related grounds and concepts.

Looking at the history of the selection of “creed” as a prohibited ground of discrimination has been of limited assistance, as historical legal and archival research by the OHRC to date has been unable to definitively determine any precise operative definition of creed at the time of the term’s first appearance in the original Code in 1962. When the Human Rights Code was introduced in a bill on December 14, 1961 by the Hon W.K. Warrender, he emphasized that there were no new principles in the bill. The bill, he suggested, simply incorporated into the Human Rights Code various anti-discrimination Acts which the Ontario Legislature had already approved in the past.[342]

The OHRC’s own research into the legislative history of anti-discrimination statutes predating but later shaping the Human Rights Code revealed that in the initial draft of the first general anti-discrimination bill introduced to the Ontario Legislature on March 19, 1943, both “creed” and “religion” were listed alongside “race” as prohibited grounds of discrimination.[343] The bill, however, did not pass second reading on March 23, 1943.[344] When another anti-discrimination bill more narrowly prohibiting discriminatory publications and display (leading to the Racial Discrimination Act) was introduced a year later on March 3, 1944, it passed all three readings.[345] The final version of the Racial Discrimination Act given royal assent March 14th, 1944 prohibited discriminatory publications and displays “for any purpose because of the race or creed of such person or class of persons.” Notably absent in the final draft of this key Act predating the Code was “religion” as an independent ground distinct from “creed.” While it is clear that creed included religion in the Racial Discrimination Act, the reason for moving from religion and creed in the initial draft bill to just creed in the Racial Discrimination Act is not discussed in the archival records researched by the OHRC.[346]


[315] Several participants at the March 2012 OHRC Legal Workshop similarly argued that human rights legislation, as it evolved in Canada, was not intended to protect all manner of individual belief, but rather to advance substantive equality and remedy rights violations that had a group basis to them. They said that persons with grievances extending beyond such purposes can and should appeal to other legal and policy instruments for redress (e.g. anti-bullying legislation, freedom of conscience under the Charter etc.).

[316] In Quebec (Attorney General) v. A, 2013 SCC 5 [“Quebec”], the Supreme Court of Canada (SCC) noted that the purpose of the s. 15 equality provision and anti-discrimination law in general is to “eliminate the exclusionary barriers faced by individuals in the enumerated or analogous groups in gaining meaningful access to what is generally available” (Quebec, at para. 319 citing Andrews v. Law Society of British Columbia, [1989] 1 S.C.R). Writing for the unanimous Court in a recent Federal Court of Appeal decision, Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75 (CanLII), Stratas J.A. affirmed the importance of going beyond formal comparator group analyses in this case and “taking ‘full account of social, political, economic and historical factors concerning the group’” (para. 22, citing Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 at para. 39). The SCC has nevertheless made it clear in Quebec that showing stigma, prejudice, stereotyping or perpeuating historical disadvantage are not freestanding requirements that must be proven to establish discrimination. Similarly, in B. v. Ontario (Human Rights Commission)supra note 244, the Supreme Court found that the claimant did not have to identify himself as a member of a historically disadvantaged group to claim protection from discrimination based on family status (at para. 47). The HRTO confirmed this in Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 (CanLII) [Hendershott].

HRTO decisions, nevertheless, appear to leave open the possibility that in some cases, it may be necessary to further examine to what extent a claim engages the purposes of anti-discrimination law and the principles of substantive equality. In those generally rare cases where the identity of the claimant and/or the subject matter of the claim do not appear to be consistent with the purpose of statutory human rights legislation, it may be useful to consider issues such as prejudice and stereotyping, which may presume a group component. This may help clarify if the allegations “truly create a disadvantage” and raise concerns for substantive equality (Hendershott, ibid. at paras. 45, 49-51 and 55. Tranchemontagne,[2006] SCC 14 at para. 104 cited in McCalla v. Home Depot of Canada, 2012 HRTO 877 [CanLII]). A good example of a case where there appeared to be no obvious connection between the ground of discrimination and the types of substantive discrimination the Code is meant to prevent is Giggey v. York District School Board, 2009 HRTO 2236 (CanLII). The applicant argued that a school board’s refusal to allow him to register his son for kindergarten in the 2009-2010 school year, because his birth certificate showed his date of birth as January 1, 2006, was discriminatory based on the Code ground of “place of origin” because he was born in a different time zone. Had he been born in Ontario, his birth date would have been registered as December 31, 2005 (thus making him eligible to enter kindergarten in 2009-2010). In its decision dismissing the claim, the HRTO stated (at para. 11): “…there must be a connection between the “place” impacted and the purposes of the prohibition. In this case I find there is none. Whether a particular time zone is earlier or later than another results from the rotation of the earth, and choices of human society about time zone boundaries and the placement of the international date line.It in no way engages considerations of stereotyping, social or historical disadvantage, or presumed characteristics.”

[317] In a significant recent decision, Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court of Canada considered the test for discrimination under the British Columbia Human Rights Code. The Court applied the traditional, long-standing test for prima facie discrimination from O’Malley, supra note 282 at para 28. To demonstrate prima facie discrimination under the Code, a claimant must show that:

  1. he or she has a characteristic protected from discrimination under the Code
  2. he or she experienced an adverse impact with respect to the service (employment etc.)
  3. the protected characteristic was a factor in the adverse impact (Moore at para. 33).

The Ontario Court of Appeal adopted a very similar version of the test in Shaw v. Phipps, 2012 ONCA 155 at para. 14.

In the context of the Charter’s anti-discrimination provision (s. 15), Abella J., writing for the majority of the Court on this point in Quebec (supra note 316), reaffirmed the Court’s commitment to the test for discrimination set out in Andrews v. Law Society of British Columbia, [1989] 1 S.CR. 143, which says the claimant’s burden under s. 15 of the Charter is to show that:

  1. the government has made a distinction based on an enumerated or analogous ground and that
  2. the distinction’s impact on the individual or group perpetuates disadvantage.

The court said that disadvantage is caused by a distinction based on a prohibited ground that imposes burdens, obligations or disadvantages on an individual or group not imposed upon others, or that withholds or limits access to opportunities, benefits and advantages available to other members of society.

Given the Supreme Court has very recently articulated two tests for discrimination: one in the Charter context (“Quebec”), and the other in a claim of discrimination under a human rights statute (“Moore”), a question remains about what extent the two tests coalesce and what the test is for discrimination under the Ontario Human Rights Code. In practice, the HRTO’s application of the prima facie test since Tranchemontagne has been somewhat malleable, varying depending on the circumstances of the case. In some decisions, the HRTO has said that an applicant must show that the differential treatment creates disadvantage (see A.N. v. Hamilton-Wentworth District School Board, 2013 HRTO 67 (CanLII) at para. 112 and Addai v. Toronto (City), 2012 HRTO 2252 (CanLII)). The HRTO has also said that in most statutory human rights cases, substantive discrimination can be inferred where there is adverse treatment based on a prohibited ground and where the subject-matter of the claim is connected to the underlying purpose of the Code.

Nevertheless, while a majority of decisions based on the Code have confirmed that the test or threshold for discrimination remains the same for all the grounds, the contextual factors considered can vary depending on the ground. For example, in age cases, appears to have been a heavier emphasis on showing indicators (disadvantage, prejudice, stereotyping) of substantive discrimination and a greater unwillingness to simply infer it from the existence of an age-based distinction. In terms of creed, some decision-makers have noted that not every impact on creed violates rights (e.g. not being able to take part in social or cultural activities related to creed, not being able to wear a particular style of hijab). In the case of social or cultural activities, see Eldary v. Songbirds Montessori School Inc., 2011 HRTO 1026 (CanLII); Hendrickson Spring v. United Steelworkers of America, Local 8773, supra note 304; Assal v. Halifax Condominium Corp. No. 4 (2007), 60 C.H.R.R. D/101 (N.S. Bd. Inq.). In the hijab case, see Audmax Inc. v. Ontario Human Rights Tribunal, 2011 ONSC 315 (CanLII)). It is possible that if the OHRC decides to broaden its policy definition of creed, the courts and Tribunal could place a heavier emphasis on indicators of substantive discrimination.

[318] For instance, legal scholar Bruce Ryder emphasized this distinction in his presentation (“The relationship between religious equality and religious freedom: convergence and divergence”) at the (2012a) Legal Workshop.

[319] Some human rights statutes, such as British Columbia’s, are more explicit in their sensitivity to social patterns of inequality. The stated purposes of the British Columbia Human Rights Code include:

  1. to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;
  2. to promote a climate of understanding and mutual respect where all are equal in dignity and rights;
  3. to prevent discrimination prohibited by this Code;
  4. to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;
  5. to provide a means of redress for those persons who are discriminated against contrary to this Code (Human Rights Code, R.S.B.C. 1996, c. 210, s. 3; emphasis added).

[320] The Supreme Court first addressed the scope of section 2(a) in its landmark decision in R v Big M Drug Mart Ltdsupra note 181. The Court adopted a broad, contextual approach to s. 2(a), emphasizing individual liberty and conscience, taking into account the values underlying both the provision and the Charter generally. As Dickson CJ described the purpose of freedom of religion and freedom of conscience (at para. 123):

The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided inter alia only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.

[321] Section 2(a) jurisprudence reveals internal divisions about the proportionate weight accorded to the liberty and equality dimensions of this fundamental freedom. The first major decision under s. 2(a) of the Charter, Big M Drug Martsupra note 181, recognized both liberty and equality goals and aims under freedom of religion.

[322] Many OHRC paper contributors observe the courts’ one-sided focus on issues of individual liberty and belief in section 2(a) decisions since Big M (see Berger, 2012; Bhabha, 2012; Moon, 2012a; Ryder, 2012a). Bhabha (2012) for instance observes how the courts have tended to only recognize religious accommodation rights claims based on individual interests, while “claims based on group or community rights, on the other hand, have been generally unsuccessful” (see also Berger, 2002 and Berger’s earlier [2012] analysis of the liberal cultural biases in s. 2(a) jurisprudence). According to Berger (2012):

The overwhelming focus on religious freedom rather than religious equality is an artefact of the law’s way of seeing religion. For the law, religion seems to take its core value as an expression of the autonomous will of the individual agent. Any dignity or privilege accorded religion flows from the fundamental place that it holds in the individual’s set of choices around living a good life.

[323] Ryder (2012a). See also Bhabha (2012); Moon (2012a); and Reaume (2012).

[324] This view of religion as having both a collective and an objective dimension is expressed in Justice Bastarache’s dissenting judgement in Amselem (supra note 137). Maintaining that “a religion is a system of beliefs and practices based on certain religious precepts” (para. 135), Justice Bastarache inferred that (1) such precepts are therefore “objectively identifiable, making the limits of religious freedom protections more predictable;” and (2) “by connecting practices to these religious precepts, an individual makes it known that he or she shares a number of precepts with other followers of the religion.” In other words, sharing one’s beliefs and practices with a community is, for Justice Bastarache, an essential element of religion (cited in Kislowicz, 2012).

[325] 2007 CanLII 1857 (ON LA) at para 120. Note, however, that the Arbitrator was not commenting on what constitutes a creed. Rather he was considering whether an employer must accommodate an individual religious conviction that is not required by an individual’s creed. The Arbitrator made the statement while commenting on why he prefers the approach of the minority in Amselem (supra note 137) in the labour relations context. As the Arbitrator was bound by the majority decision in Amselem, the comments are obiter.

[326] Supra note 160.

[327] Ibid. at paras. 181-18;, cited in Schutten, 2012; emphasis added.

[328] At p.7.

[329] Supra note 158.

[330] Moon, 2012a.

[331] Berger (2002) argues:

From the perspective of the adherent, religion cannot be left in the home or on the steps of Parliament. The religious conscience ascribes to life a divine dimension that infuses all aspects of being. The authority of the divine extends to all decisions, actions, times, and places in the life of the devout. Unlike the powers of a liberal state, the religious conscience is profoundly ajurisdictional (p. #).

[332] At p.5.

[333] In Freitag v.Penetanguishene (Town) [2013] HRTO 893, Human Rights of Ontario Tribunal adjudicator, Leslie Reaume, for instance argued in her decision in favour of the applicant: “…The applicant does not have to declare a specific creed or belief system in order to be protected from the imposition of the religious beliefs and observances of others in certain contexts…” (at para. 22).

[334] Bemoaning the growth of “cults and fringe organizations” using “the borrowed legitimacy of the language and terminology of faith and belief to further narrow, illegitimate and, perhaps, even illegal ends” (Landau, 2012, p. 37), Richard Landau, in his (2012) Policy Dialogue paper, said:

If a Canadian founds a religious belief system in 2011 and claims he and his adherents demand the right to suspend work every Thursday, is that a legitimate expression of belief and is the society compelled to accommodate it?

As a broadcasting executive and media producer with experience vetting appropriate religious content for Canadian television, Landau emphasized the practical importance for organizations to have clear guidelines and definitions around creeds and religions meriting societal recognition, accommodation, and, in his particular field, airplay (see Landau, 2012 for his elaboration of criteria).

[335] This is a result of the Code’s broader jurisdiction in Ontario, which covers government actors and actions (as the Charter) and also non-governmental and private sector actors, including all provincially regulated employers, service providers, housing providers, associations, etc.

[336] Supra note 158. Frivolous and vexatious claims, from this perspective, could just as easily be couched under terms of religion as secular ethical or moral beliefs. They can also be filed regardless of what policy the OHRC adopts.

[337] This principle is affirmed in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53. In this case, the Supreme Court considers principles of statutory interpretation, and emphasizes the need for a “careful examination of the text, context and purpose of the provisions” (at para 32). The Court goes on to state, at para 33:

The question is one of statutory inter­pretation and the object is to seek the intent of Parliament by reading the words of the provision in their entire context and according to their gram­matical and ordinary sense, harmoniously with the scheme and object of the Act and the inten­tion of Parliament (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21). In approaching this task in relation to human rights legislation, one must be mindful that it expresses fundamental values and pursues funda­mental goals. It must therefore be interpreted lib­erally and purposively so that the rights enunciated are given their full recognition and effect: see, e.g., R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 497-500. However, what is required is nonetheless an interpretation of the text of the statute which respects the words chosen by Parliament.

[338] Ibid., at para. 43. The Supreme Court elaborates, in this regard:

The legislative evolution and history of a provision may often be important parts of the context to be examined as part of the modern approach to statutory interpretation: Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70, [2005] 3 S.C.R. 425, at para. 28, per Binnie J.; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at p. 528, per L’Heureux-Dubé J.; Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, at paras. 41-53, per Abella J. Legislative evolution consists of the provision’s initial formulation and all subsequent formulations. Legislative history includes material relating to the conception, preparation and passage of the enactment: see Sullivan, at pp. 587-93; P.‑A. Côté, with the collaboration of S. Beaulac and M. Devinat, Interprétation des lois (4th ed. 2009), at pp. 496 and 501‑8 (at para. 43).

[339] People taking this view, from a more historical reading, note how Christian denominations have been differentiated from one another based on their “creeds”; creedal beliefs being central in Christianity to community and faith formation. Much, if not most, historical discrimination and prejudice based on creed in Canada occurred between members of differing Christian creeds.[this last sentence seems inconsistent with the earlier sections talking about treatment of Jews, Aboriginal persons etc.]

[340] Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53 at para. 33.

[341] Sullivan 2002 at p. 377. See p. 374-378 for a discussion of presumed legislative intent when interpreting human rights statutes.

[342] In addition to the 1944 Racial Discrimination Act, the following legislation was mentioned by Hon. Warrender when he introduced the Human Rights Code in 1961:

  • 1951 Fair Employment Practices Act and The Female Employee’s Fair Remuneration Act
  • 1954 The Fair Accommodation Practices Act
  • 1958 Ontario Anti-Discrimination Commission was established (renamed Ontario Human Rights Commission in 1962).

[343] The Hansard (Ontario parliamentary debates) dated March 10, 1943 described the bill introduced by John Glass as a bill to “prevent discrimination against any person because of race, creed or religion.” One clause states that “No person shall be denied the accommodation or facilities of any hotel, restaurant, theatre or other public place because of his race, creed or religion.” Another provision says “No person shall publish or display or cause to be published or displayed, any statement, symbol, emblem or other representation creating or tending to create hatred, ridicule or contempt of or for any person or class of persons because of the color, race, creed or religion of such person or class of persons.”

[344] The Hansard dated March 23, 1943 reported that “Mr. Glass was the only member in the House to raise his voice in favor of the bill.” One reason for the defeat mentioned in the Hansard is that the bill would not “promote unity” and putting the bill through “would be resorting to a policy of force contrary to democratic principles.”

[345] The passing of this bill nevertheless encountered strong opposition from advocates of free speech. After it was introduced as Bill 46 on March 3, 1944 it was amended on March 13 to “protect liberties.” A section was added, which read, “This act shall not be deemed to interfere with the free expression of opinions upon any subject by speech or in writing and shall not confer any protection to or benefit upon enemy aliens.”

[346]In Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53, the Supreme Court of Canada affirmed in its decision the relevance of considering the history of legislation in its interpretation, including excluded proposed provisions. The Court for instance states at para. 44:

We think there is no reason to exclude proposed, but unenacted, provisions to the extent they may shed light on the purpose of the legislation. While great care must be taken in deciding how much, if any, weight to give to these sorts of material, it may provide helpful information about the background and purpose of the legislation, and in some cases, may give direct evidence of legislative intent: Sullivan, at p. 609; Côté, at p. 507; Doré v. Verdun (City), [1997] 2 S.C.R. 862, at para. 37. This Court, in M. v. H., [1999] 2 S.C.R. 3, has held that failed legislative amendments can constitute evidence of Parliamentary purpose: paras. 348-49, per Bastarache J.

Applying the statutory principle of interpretation against tautology to the proposed but excluded first draft general anti-discrimination bill could suggest that “creed” and “religion” were intended to have different meanings, since they co-existed as terms in the same proposed bill. However, this does not shed light on how such terms may have been differently interpreted. Nor does it exclude the possibility of both terms having a religious mooring.


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