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3. Issues unique to creed accommodation

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While the notion of accommodation has been most developed in the context of disability, it is not new to creed. There are unique accommodation issues specific to creed that arise, in part due to the unique nature of religion and creed as a form and basis of social difference. Creed practices and observances, particularly those connected to religion, for instance, generally include collective dimensions and expressions, which can grate against the grain of widely accepted accommodation norms and principles (e.g. accommodation calls for an individualized assessment) honed in the context of disability (see Section V. 3.2 below for more in this regard).

This final section highlights accommodation issues and analyses unique to creed, and some of the points of tension and ambiguity that can surround such issues as determining sincerity of belief, the existence of a creed, and/or creed practices meriting human rights protection. It also looks at questions and challenges for accommodating collective expressions of creed.

3.1 Unique dimensions of creed: perspectives from the ground

One distinctive feature of creed as a human rights ground is its potential mutability – that is, its rooting in subjective belief and identity, in ways distinguishing creed from other Code grounds which are less subject to change (if not immutable). In part due to the mutability of creed and religion – its element of conscious choice versus involuntary ascription – some people feel it is fair game for intolerance. Drawing attention more specifically to how the chosen nature of religious belief can lead to resistance among individuals and organizations to accommodate creed, one presenter at the OHRC Policy Dialogue on Creed commented:

Religious accommodation is viewed differently than other types of accommodation. The attitude is that you ‘chose’ to do this, not that you need to do this. Yes—I chose this—but I also need it.[409]

Some take this logic further to argue that religion and creed should not have the same degree of legal protections as other grounds such as gender, race or sexual orientation, precisely because these latter forms of social difference are largely ascribed and involuntary, versus chosen[410] as in the case of creed. It is important to note that arguments that a person can avoid discrimination or intolerance by modifying their behaviours and making different choices has been clearly rejected as a justification for discriminatory behaviour (see most recently the Supreme Court of Canada decision in Quebec (Attorney General) v. A.[411] As well, see the OHRC’s Policy on competing human rights for more on the opposing position, largely upheld by the courts, that there is no such ”hierarchy of rights” in Canada.

Another presenter at the January 2012 Policy Dialogue pointed out how religious/creed beliefs may be more subject to questioning and hostility, and compared to other grounds, may more often conflict with or pose challenges to other peoples’ identities and beliefs. Cautioning against overlooking key differences between religion and disability in the sphere of accommodation, he observed:

In a social context, comparing disability and religion doesn’t always work because some people’s religions overtly challenge other people, for example, their sexual orientation... We also can not ignore the fact that some people hate other people’s religions… Other categories don’t always raise those same issues. It is for instance commonly agreed and accepted that we should make society accessible for people with disabilities. But with religion, it challenges peoples’ beliefs and people don’t always want to make that accommodation.[412]

3.2 Collective creed accommodations: accommodating the needs of the group

Another unique aspect of creed, and religion more specifically, is its collective dimension and potential form of expression.[413] It is a widely accepted human rights principle, particularly in disability contexts, that to achieve equality, accommodation may need to be individualized; that is based on individualized (case-by-case) assessments of individuals’ actual accommodation needs. Creed accommodations can pose challenges to this general principle, where there may be a need to accommodate acts of worship and ritual observances based on “the needs of the group.” One example would be accommodating congregational acts of worship, as recently seen in a Toronto area middle school.[414]

Some argued during consultations that accommodation, by definition, is necessarily individual in nature, and should not be extended to group observances or collective acts of worship (due to the potential to contravene individual rights and needs). However, the analysis above concerning “systemic accommodation” based on the needs of the group shows that accommodation need not be exclusively conceived as dealing only with individual needs. There are many examples, even in the disability context, where an accommodation arrangement may benefit an entire group (for example, calling out transit stops for persons with vision-related disabilities).

There nevertheless remain difficult questions that can arise in the effort to design inclusively in a way that does not privilege or disadvantage any particular member of the faith community. The current creed policy update will need to include guidance for organizations that need to accommodate a collective creed observance.

When faced with the possibility of designing and providing a collective creed accommodation, organizations need to consider points and principles such as:

  • Maintain an environment free of compulsion in matters of religion and belief[415]
  • Equally respect and accommodate differing belief orientations (neither privileging nor disadvantaging, endorsing nor condoning any one over another)
  • Be as inclusive as possible by consulting with as many affected parties as possible when inclusively designing or systemically accommodating the “needs of the group”
  • Consider and balance any competing rights (per the OHRC’s Policy on competing human rights)
  • Be attentive to internal group differences in accommodation needs
  • Consider sector/context-specific factors, laws and policies.

Another question that may arise, and needs to be considered as part of the current policy update, is:

  • To what extent may, or should, accommodation providers regulate, monitor, and/or intervene in the internal practices and collective observances of creed communities, if at all, where these may contradict human rights principles or equality ideals?

Individual creed community members have a right to associate, and collectively worship, with others, generally in a manner that they deem fit, provided that they may freely enter and exit the community in question, in keeping with constitutionally enshrined rights and protections for freedom of religion and freedom of association. Existing jurisprudence generally suggests that organizations should not interfere in the collective faith observances of creed communities. However, where collective observances are accommodated in public space, organizations may need to be mindful of potential competing rights, and consider forms of accommodation that most respect and fulfill the rights of all parties (for more on balancing rights, see the OHRC’s Policy on competing human rights).

The existing Policy on creed, moreover, contains a provision that would in effect nullify legal protections for “religions that incite hatred or violence,” and/or for “practices and observances that purport to have a religious basis but which contravene international human rights standards or criminal law.” The implications of this provision will need to be considered as part of the current policy update.

3.3 Establishing the existence of a creed

In most cases, it will not be necessary or reasonable to question whether a creed exists that gives rise to a duty to accommodate.[416] However, if there is some question, when faced with an accommodation request, a potential accommodation provider may need to assess whether there is a sincerely held belief or practice meriting accommodation under the law.

Though there is no set sequence in terms of whether determining the existence of a creed should happen before or after determining sincerity of belief, the question may need to be asked: Does the rights claimant have a creed that is protected by the Code?

Existing case law makes it clear that the claimant’s subjective or personal understanding of his or her creed is the focus, as opposed to the actual obligations of the faith or what others of the same faith believe or practice. The OHRC’s 1996 Policy affirms this point in many places, for instance stating: “Individuals may [legitimately] seek accommodation for religious practices or observances that do not conform to established dogma, or they may seek to observe a practice that is not shared by all members of the creed”.[417] Though not legally binding on the courts or Human Rights Tribunal of Ontario, how the OHRC decides to define creed in its updated policy will have a bearing on what may be deemed to constitute a creed under the Code. There are also other “objective” criteria that organizations may use when seeking to establish the existence of a creed (e.g. its nexus to a system of belief that is comprehensive, overarching, etc.), as discussed in the section on definition (see in particular Section IV subsection 1.1, but note that the OHRC is still formulating and clarifying potential criteria).

3.4. Observances versus practices

Distinguishing between core and peripheral dimensions of a religion or creed can be further complicated by the fact that, unlike the trend in parts of Europe where a stronger distinction between “observances” and “practices” has been maintained,[418] the Canadian jurisprudence generally holds that a practice may be accommodated even if it is not an “obligation,” “act of worship” or “requirement of the faith.” Given the noted distinction between practices and observances internationally,[419] the OHRC may want to review whether it wishes to retain the existing terminology and use of observances in its existing 1996 policy title (Policy on creed and the accommodation of religious observances). The Policy does not define “observances” or make any notable distinction between observances and practices. One of the few references states that “[creed] is defined as a professed system and confession of faith, including both beliefs and observances or worship” (p.4; emphasis added).

However, the distinction between practices connected to a creed and observances mandated by a creed may not be of much significance, in domestic courts, in light of the subjective approach adopted in Amselem (in which a practice need not be “officially” mandated by a religion to warrant protection under the law).

3.5 Applying Charter analyses in the Code context

There is some support in the case law for more narrowly restricting religious practices meriting legal protection to core religious observances, particularly in the jurisprudence based on Charter sections (1) and 2(a). As noted above, the courts have determined in section 2(a) jurisprudence that “trivial or insubstantial” interference with the right to freedom of religion is interference that does not threaten actual religious beliefs or conduct.[420] Similarly, according to the “Oakes test” under section 1 of the Charter, a limitation on a constitutional right or freedom (such as freedom of religion) may be deemed appropriate “if it can be established that: (i) the legislative objective is pressing and substantial; (ii) there is a rational connection between the legislative means chosen and the objectives sought; and finally (iii) the infringement is a minimal impairment on the right or freedom in question” (Emphasis added).[421]

Legal scholars have noted the higher courts increasingly relying on section 1 limitations in religious rights cases.[422] Some state that this is a result of the highly subjective definition of religion in Amselem, which significantly decreases the potential scope of internal (“objective”) limits on this right. Many argue that the Oakes test for limiting rights under section 1 of the Charter allows wide scope for interpretation, and, at least when applied to religious freedom cases to date, has not exercised the same kind of force for substantive equality as accommodation analysis under statutory human rights legislation. Some analysts argue that in such religious rights cases as Wilson Colony,[423] and R. v. Badesha[424] the courts “have adopted in practice a very weak standard of justification under section 1, so that the right protects only a limited form of liberty”.[425] Both of these decisions appear to suggest that under the Charter, an interference with someone’s religious rights will only be considered substantial if the person would be required to choose between taking part in an activity (e.g. driving a vehicle or motorcycle) and their religion.[426] The apparent absence in such decisions of any requirement for respondents to examine ways of more inclusively designing or achieving legislative purposes[427] in the interests of advancing substantive equality shows the potential drawbacks and tensions of simply importing Charter minimal infringement analyses into creed human rights jurisprudence (see Section IV 2.1.4 for more on Code-Charter relation).

While the Charter analysis has tended to focus on individual liberty and allow for wide scope of interpretation of what constitutes minimal infringement, the human rights approach focuses on goals of equality and equal access to and enjoyment of societal goods, benefits and services, imposing a duty to accommodate limited by undue hardship.[428]

3.6 Religions that incite hatred or violence or contravene international human rights law

One other limitation on creed rights flows from the qualification stated in the 1996 OHRC Policy on Creed:

This policy 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 (p.5).

This point may require further clarification in the updated policy.

In Huang[429] the HRTO rejected the argument that a belief system that is inconsistent with the Charter should be rejected. The HRTO distinguished between excluding the religion altogether and placing limits on the practice of the religion where that causes harm to others (at paras. 31-32):

In other words, Charter values are relevant to determining the scope of religious freedom protected under constitutional or quasi-constitutional statute. It is not, however, appropriate to exclude from the scope of the Code a belief system that, itself, may not be consistent with the Charter.
There is, in my view, a difference between placing limits on the exercise of a religious freedom because it interferes with others’ rights and refusing to recognize a religious movement as a “creed” because some of its beliefs may be inconsistent with the values expressed in the Charter.

3.7 Establishing sincerity of belief

“In terms of on the ground experience, people are often faced with the need for authority confirming that individuals need spiritual accommodation. For example, I recently had a case where a limo company requested that a driver trim his beard. The individual would not do this, but the company pointed to other Sikh drivers who had done so. The company said to bring a letter from a priest and then we will accommodate you. This arises in schools as well, where students who would like to bring a kirpan are still being asked to bring a letter from a priest. We need to make sure that, in the new creed policy, it is clearly about individual spiritual beliefs and sincerity of beliefs. I’m not seeing that on the ground.”
– Balpreet Singh Bopari, presentation at January 2012 Policy Dialogue on Creed

The Supreme Court has confirmed that, in Section 2(a) freedom of religion cases under the Charter, the claimant’s subjective or personal understanding of his or her religion is the focus, not the actual obligations of the faith or what others of the same faith believe or practice. The Court’s stated purpose for adopting this subjective definition of religion revolves around its disinterest in entering into theological debates. Decisions under the Code have also confirmed this subjective approach to creed, and corresponding focus on sincerity of belief.[430]

In assessing the sincerity of a person’s creed belief, organizations may seek to establish that the asserted creed belief “is in good faith, neither fictitious nor capricious, and that it is not an artifice.”[431] It is a generally accepted principle in disability accommodation case law that one should accept the sincerity of the claim and assume good faith, unless there is reason to think otherwise (for example, based on a previous history of false or vexatious claims). Whether, or how and to what extent this default “good faith” standard applies in creed accommodation cases must be examined.

Cases to date indicate that organizations may be within their right to examine the sincerity and credibility of the claimant’s creed claims or accommodation needs.[432] However, in measuring the sincerity of an asserted creed belief or practice, it is not appropriate to assume that if a person has made exceptions to, or has failed to follow, his or her creed beliefs in the past, his or her present beliefs are not valid or sincere. As stated by the Ontario Court of Appeal in R. v. N.S.: “Past perfection is not a prerequisite to the exercise of one’s constitutional right to religious freedom.”[433] This point was reconfirmed in the recent Supreme Court decision in R. v. N.S., where the court held that “strength of belief” is a separate issue from “sincerity of belief.”[434] Also, note that while consistency of practice is one possible criterion of sincerity affirmed in the case law, organizations need to be sensitive to the reality and growing trend in contemporary religious/creed life of eclecticism, individualism and syncretism (as discussed in the background section III. 1.2).[435] Although not a sufficient determinant on its own, sincerity of belief may also be partially confirmed, particularly in cases of lesser known creeds, by establishing the objective existence of a creed and corresponding community of belief, to which the rights claimant evidently subscribes and belongs.

Given the centrality of sincerity of belief as a criterion in affirming the existence of a creed right, the policy update process will need to consider further principles and guidelines for assessing sincerity of belief, as this is often sought by organizations.

3.8 Religious leave

When an employee requests time off to observe a holy day, the employer has an obligation to accommodate the employee. While the need to accommodate time off for religious holidays, Sabbaths and prayers has been repeatedly confirmed, what has been more complex is determining if the employee is entitled to the time off with pay. The extent of the accommodation required is an issue that comes up often. Does the person have to be paid? Until what point? What about unpaid leave?

The OHRC’s 1996 Policy on Creed established the following general principles, based on case law at the time (based primarily on Chambly)[436]:

  1. The employer has a duty to consider and grant requests for religious leave, including paid religious leave, unless to do so will cause undue hardship.
  2. Equality of treatment requires at a minimum that employees receive paid religious days off, to the extent of the number of religious Christian days that are also statutory holidays, namely two days (Christmas and Good Friday).
  3. The number of paid days may be three under some collective agreements which also make Easter Monday a holiday.
  4. Beyond this point (i.e. two or three days), individuals may still seek accommodation. For example, measures might include additional paid leave days such as floating days or compassionate leave days, if such exist under company policy or collective agreements, or through unpaid leave.
  5. The standard for all accommodation requests is undue hardship, which places a specific burden on the employer to produce evidence to the standard of undueness of the hardship and of its effect.[437]

These principles relied significantly on the Supreme Court of Canada decision in Chambly[438] In this case, the Court considered a request by Jewish teachers for access to the special purpose paid-leave provision in their collective agreement that would have allowed them to have Yom Kippur off with pay. They were told they could take the day off, without pay. [439] The Court noted that Christian holy days of Christmas and Good Friday are provided for in the school calendar. Therefore, Christian employees were able to observe their religious holidays with pay. As this was not the case for the Jewish teachers, in the absence of some accommodation by the employer, the effect would be discriminatory.[440] In this case, accommodation through scheduling changes was not an available option as a teacher can only work when schools are open and students are in attendance. Therefore, the employer was required to give paid days off.

Later decision-makers have not accepted that the Chambly decision requires all employers to provide the same number of religious holidays with pay as Christian employees receive. In Ontario (Ministry of Community and Social Services) v. Grievance Settlement Board,[441] the Ontario Court of Appeal considered the grievance of a member of the Worldwide Church of God who required 11 days off per year for religious holidays. The employer’s policy allowed two days off with pay and then allowed employees to fulfill remaining religious obligations through scheduling changes. The employee was presented with a variety of proposals to meet his religious requirements but he rejected them arguing that he was entitled to the 11 days off with pay.

The Court of Appeal found that the employer’s policy appropriately reflected the obligation to accommodate. The scheduling options provided for in the policy were: “a viable means of accommodation for employees requiring extra days off over and above the two paid leave days already provided for. It enabled them to schedule their required hours of work in a way that relieved them from having to choose between losing wages or encroaching on pre-existing earned entitlements [i.e. vacation days] and observing their religious holy days.”

The Court noted that in Chambly[442] the Supreme Court found that it was significant that it would be impossible for a teacher to make up the religious holiday by working an extra day. Therefore, the Court concluded that employers can fulfill their duty to accommodate by offering appropriate scheduling changes, without first having to show that granting a leave of absence with pay would result in undue economic or other hardship.

In Markovic v. Autocom Manufacturing Ltd.,[443] the HRTO considered a situation where the employer did not provide two days off with pay to correspond to the number of Christian religious days that are statutory holidays. Rather, the employer’s policy provided a “menu of options” for accommodation which included making up the time, switching shifts with another employee, working on a secular holiday when the facility is in operation (subject to the Employment Standards Act), adjusting shift schedules, using vacation days and taking an unpaid leave of absence. Mr. Markovic complained that Autocom’s failure to provide him with a paid day off to celebrate Serbian Orthodox Christmas was discriminatory.

The HRTO concluded that by providing a process for employees to arrange for time off for religious observances through options for scheduling changes, without loss of pay, the policy was appropriate and not discriminatory. The HRTO found the circumstances were different than the Supreme Court of Canada’s decision in Chamblywhere scheduling changes were not available due to the nature of the (school) workplace and although the collective agreement allowed for three days of special leave with pay, the employer took the position that they could not be used for religious observances.

However, the HRTO did note in Markovic[444] that there may be individuals for whom none of the scheduling options in the policy would be suitable, and stated that in such cases other accommodations must be explored. The HRTO left open the possibility that in a given circumstance, the outcome might be days off with pay.

This approach of enabling employers, particularly in employment contexts with flexible scheduling options, to fulfill their duty to accommodate through a variety of possible means other than paid leave was also affirmed by the HRTO in Koroll v. Automodular Corp.[445] In these cases, the courts appear to suggest that they will not make a finding of adverse effect discrimination as long as the search for solutions permits time off to observe religious holy days without significant negative employment consequences (such as loss of pay). However, there is considerable scope for differences in determining what constitutes a negative employment consequence (equal to adverse effect discrimination).[446] This will need to be reviewed and further clarified as part of the current policy update.

[409] Balpreet Singh’s January 13, 2012 presentation at the OHRC’s Policy Dialogue on Creed.

[410] In contrast, Meer and Modood, 2010, p. 82 argue, using the specific example of Muslims in Britain, “What this [position] ignores however, is that people do not choose to be or not to be born into a Muslim family. Similarly, no one chooses to be born into a society where to look like a Muslim or to be a Muslim invites suspicion and hostility, and this logically parallels the kinds of racial discrimination directed at other minorities”.

[411] Quebec (Attorney General) v. A. 2013 SCC 5

[412] Nadir Shirazi’s January 13, 2012 presentation at the OHRC’s Policy Dialogue on Creed.

[413] The Supreme Court has recognized the communal and collective aspect of religious rights in several decisions, including Hutterian Brethrensupra note 235, where Justice LeBel wrote in his dissenting judgement at paras. 181-2:

“[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… [and] the maintenance of communities of faith” (Emphasis added; cited in Schutten, 2012).

[414] The school in question, which had a Muslim-majority student population, had arranged for congregational Friday prayers to be held in its school cafeteria, for a combination of reasons having to do with safety and inclusion considerations and efforts to curb school absenteeism.

[415] The courts have recognized a continuum of what may count as “pressure” in school contexts and contexts involving children and young people, who are more impressionable and vulnerable to peer pressure. Religious pressure, in this context, may take more indirect forms.

[416] The duty to accommodate has both a procedural and substantive dimension. While the substantive duty refers to the actual accommodation being requested or provided, which must appropriately accommodate the actual needs of the person in question, the procedural duty to accommodate is equally important. It requires both accommodation seekers and providers to take part in a process to determine what is an appropriate. An organization may fail to meet the duty to accommodate, solely based on its procedural failing to explore the request and related options in good faith, even where a substantive accommodation is found not to be merited. Likewise, an accommodation seeker may have a rights claim dismissed because they failed to play their part in the accommodation process (in keeping with the procedural duty), even if a substantive accommodation may have been merited. For example, see the case of Daginawala v. SCM Supply Chain Management Inc., (2010 HRTO 205 (CanLII)), where the employee did not give sufficient advance notice in a request for a religious leave. In this case, the HRTO found that the applicant did not give enough notice of his need for four hours of unpaid leave to allow the employer to find a replacement. The employee gave approximately 72 hours notice and the employer typically had provided time off in the past when sufficient notice was given.

[417] Page 18 (footnote 20).

[418] This is exemplified in controversial cases in European (including British, Italian, EU) courts where Christian religionists have been told that they do not have a right to wear a cross in workplaces, as part of freedom of religion legal protections, since this is not a required ‘observance’ of the faith (but rather simply a practice connected to the faith) (see Donald, 2012). However, in a recent, potentially precedent setting, Court decision involving a British Airways check-in worker who was prevented from wearing a cross at work, the European Court of Human Rights (ECHR) ruled that the employee’s right to express her religion was unfairly restricted by the airline (for media coverage of this story, see “Cross ban did infringe BA worker's rights, Strasbourg court rules,

[419] In a discussion about “religious symbols,” a (2006) UN Commission on Human Rights Report on Civil and Political Rights Including the Question of Religious Intolerance by the Special Rapporteur on freedom of religion or belief, Asma Jahangir, for instance, highlights a distinction, made by some, between an observance which refers to “prescriptions that are inevitably connected with religion or belief and protects both the right to perform certain acts and the right to refrain from doing certain things,” and practice which refers to manifestations that are “not prescribed, but only authorized by a religion or belief” (E/CN.4/2006/5). While some states extend only protection to the former, the UN’s Human Rights Committee (specifically Rosalind Higgins) has stated that it is neither the Committee’s nor member States responsibility to decide what is and is not a genuine religious belief or manifestation of religion (UN Human Rights Committee discussion on 24 July 1992, Summary Records of the 1166th meeting of the forty-fifth session, at para. 48).

[420] R v. Badesha, supra note 387.

[421] Haboucha, 2010. Section 1 of the Charter, also known as the “reasonable limits clause,” provides for limits on constitutional rights (including freedom of religion and conscience under section 2(a) and religious equality rights under section 15) where these are deemed “reasonable” and “demonstrably justifiable in a free and democratic society.” The exact language for the test determining such reasonable limits was set out in R. v. Oakes. To justify a Charter infringement the government must show:

  1. A pressing and substantial government objective
  2. That the means to achieve that objective is proportional meaning

a. The means must be rationally connected to the objective

b. There must be minimal impairment of rights

c. There must be proportionality between the infringement and objective 
(R. v. Oakessupra note 176).

[422] See for instance Bhabha (2012) and Moon (2012a).

[423] In Hutterian Brethrensupra note 235, the Supreme Court of Canada ruled that “Hutterites who do not believe, for religious reasons, in having their photographs used for identification purposes, must nonetheless comply with a provincial law for reasons related to the public interest in identity in relation to driving licences...The decision was a very narrow majority with three justices of the seven in dissent” (Benson, 2012, p.23). In this case, the Supreme Court held that Hutterian Brethren were still “free” to practice the core tenets of their religion, as a consequence of the court decision. They just would not have (‘justifiably’ in the courts s.1 analysis) equal access to operating vehicles and thus equal mobility, since they would in effect be denied licences as a consequence of their religiously-based conscientious objection to having their picture taken for licensing purposes.

[424] Supra note 387. R. v. Badesha involved a challenge by a Sikh man to an Ontario law that requires helmets when operating a motorcycle. Mr. Badesha argued that he could not wear a helmet because of his strongly held religious beliefs concerning the need to wear a turban. The Court found that the interference with Mr. Badesha’s religious rights as a result of being unable to ride a motorcycle was trivial and insubstantial and therefore section 2(a) of the Charter was not breached. The Court noted that any limit is on the individual’s ability to ride a motorcycle in the fashion that he chooses, not on his right to worship or practice any belief associated with religion. Driving any motor vehicle is a privilege and not a right. The judge also considered an analysis under Section 1 of the Charter and found that the mandatory motorcycle helmet law was justified.

[425] Moon (2012a). For instance, in R. v. Badeshasupra note 387, the court ruled that the complainant retained the liberty to practice his Sikh religion, but that he would “justifiably” not have access to the full range of transportation options as other citizens which was deemed a privilege rather than a right. Part of the argument in this case and Hutterian Brethrensupra note 235, appears to be that they still had other transportation options, and still had the liberty to practice their religion, thus making the infringement less than substantial. Badesha, for instance, could always drive a car (for which a helmet is not required), while the Hutterian Brethren could always take other modes of transportation other than a car, which did not require a drivers licence (see Moon, 2012a for a critique of the weak standard of justification adopted by the courts, in their interpretation of Section 1, in these cases).

[426] “How far do we want to take this kind of analysis – that if disallowed or refused a service, for reasons relating to a Code ground, one can always go somewhere else,” one participant commented in regards to the Badesha (supra note 387) and Hutterian Brethren (supra note 235) decisions at the January 2012 Policy Dialogue, concluding: “I find that kind of analysis disturbing”

[427] For example, some have argued that that the legislative purposes of identification and security in Hutterian Brethren (supra note 235), and health and safety in Badesha (supra note 387) could have fairly easily been met through alternative means (e.g. finger printing in the case of Hutterian Brethren) (see Benson, 2012).

[428] In Hutterian Brethren, supra note 235, the Supreme Court explicitly rejected the relevance of human rights statute-based “reasonable accommodation analysis” in Section 1 Charter analysis of whether a law infringing upon a religious practice is justified. This position was later reflected in the Ontario Court of Justice decision in Badeshasupra note 387 (see Moon, 2012a for further in-depth analysis of Hutterian Brethren). According to McLachlin C.J.’s rationale in Hutterian Brethren: “A law’s constitutionality under s.1 of the Charter is determined not by whether it is responsive to the unique needs of every individual claimant, but rather by whether its infringement of Charter rights is directed at an important objective and is proportionate in its overall impact” (Hutterian Brethren at para. 69; cited in Moon, 2012a). In R. v. Badesha, the Ontario Court of Justice noted that Human Rights Code analyses that involve accommodation and undue hardship are inapplicable in a s. 1 analysis that applies to a claim that a law infringes the Charter.

[429]Huang, supra note 14.

[430] See R.C. v. Niagara District School Boardsupra note 8, for a most recent example. In this case, the HRTO found that the Niagara District School Board’s (2010) policy was discriminatory because it allowed, under certain conditions, the distribution of only “recognized sacred texts of which there is global association and recognition":

There was also discrimination in the attempted restriction of the policy to "recognized sacred texts of which there is global association and recognition" and not secondary materials…The policy was discriminatory because its definition of acceptable materials violated substantive equality by excluding the kinds of materials central to many creeds. The restriction to sacred or foundational texts excludes some creeds and is therefore discriminatory. The requirement that there be "global recognition" may also have the effect of excluding emerging or non-traditional creeds (at para. 68).

[431] Amselem, supra note 137, at para. 52.

[432] Ibid. at para. 53.

[433] R. v. N.S., 2010, supra note 393.

[434] R. v. N.S., 2012, supra note 183.

[435] Research suggests that many people now approach their religion or creed in a highly individualistic and selective way, basing their beliefs and practices more on personal interpretations and experiences than on institutional expressions or requirements of the faith. This personalization of belief has also contributed to a growing pattern of eclectic beliefs and practices – famously dubbed “Sheilaism” by an American sociologist – as people increasingly “cobble together” their beliefs and practices from increasingly diverse sources and traditions, in shifting and context dependent ways. In his article, “Dimorphs and Cobblers: Ways of Being Religious in Canada,” William Closson James cites the increasingly common example of a friend of his whom, as a partner in a Jewish-Christian marriage, attends both the Reformed Synagogue (where he was once Adult Education Co-ordinator) and the United Church (where he sits on the Outreach Committee). The reality of syncretism in beliefs is particularly common among practitioners of various Asian religions, and among formerly colonized peoples, including Aboriginal Peoples in Canada, many of whom have developed syncretic religious forms that may assume situationally alternating versus synthesized forms.Those assessing sincerity of belief by western (Judaeo-Christian) standards of consistency will need to be sensitive to this diversity, so they do not judge others by standards, such as exclusivism, that may be particular to dominant versions of the Abrahamic monotheistic faiths).

[436] Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525.

[437] Ibid. at para. 14.

[438] Ibid.

[439] Ibid. The school board based its argument on in part on its position that paid statutory holidays that coincided with Christmas and Good Friday were not expressly religious in nature but secular, so there was no discrimination involved (since there was no distinction being made, or benefit or holiday being provided, directly based on religion). The Supreme Court refuted this rationale and found this to amount to indirect or constructive (adverse effect) discrimination.

[440] The following analysis in Chambly led to the Court's finding of adverse effect (i.e. constructive) discrimination (at p. 541):

...Christian holy days of Christmas and Good Friday are specifically provided for in the calendar. Yet, members of the Jewish religion must take a day off work in order to celebrate Yom Kippur. It thus inevitably follows that the effect of the calendar is different for Jewish teachers ... [t]hey...must take a day off work while the majority of their colleagues have their religious holy days recognized as holidays from work. In the absence of some accommodation by their employer the Jewish teachers must lose a day's pay to observe their holy day. It follows that the effect of the calendar is to discriminate against members of an identifiable group because of their religious beliefs. The calendar or work schedule is thus discriminatory in its effect.

The Court then examined the nature of the accommodation that would be required to alleviate the adverse effect. It rejected the view that the school board's offer of unpaid leave to the Jewish teachers was sufficient accommodation. Mr. Justice Cory wrote:

If a condition of work existed which denied all Asian teachers one day's pay, it would amount to direct discrimination . . . The loss of one day's pay resulting from direct discrimination would not be tolerated...and would fly in the face of human rights legislation. Similarly adverse effect discrimination resulting in the same loss cannot be tolerated unless the employer takes reasonable steps to accommodate the affected employees. (Ibid. at 542).

The Court concluded religious leave should have been available under the special purpose paid-leave provision in the collective agreement since it did not cause undue hardship to the school board.

[441] 2000 CanLII 16854 (ON CA).

[442] Chambly, supra note 436.

[443] 2008 HRTO 64 (CanLII).

[444] Ibid.

[445] Koroll v. Automodular Corp., 2011 HRTO 774 (CanLII). In this case, a member of the Living Church of God alleged that his employer infringed his rights by not giving him time off with pay to observe High Sabbaths. He also alleged that the employer’s Attendance Recognition Program discriminated against him. Employees with perfect attendance received bonuses, but he was denied bonuses when his attendance was perfect except for the Sabbaths when he was unable to work because of his religious beliefs. The HRTO followed its earlier decision in Markovic and dismissed his claim that he was entitled to paid leave for holy days. However, the Tribunal did find that the employer’s requirement that the applicant attend work on all scheduled days to have perfect attendance and receive bonuses did discriminate based on creed. The respondent did not show that the religious needs could not be accommodated without undue hardship. The HRTO awarded $2,000 for injury to dignity and self-respect and directed the respondent to review its Attendance Management Program to remove the discriminatory effect on employees whose religious beliefs require them to be absent from work.

[446] Some argue from a substantive equality standpoint that requiring non-Christian employees to use overtime or lieu time to observe religious holidays, even if this does not result in a loss of pay, may still amount to an inequity since it imposes an additional burden on non-Christian employees to use “banked time” to satisfy religious needs, in a way not similarly imposed on Christian employees whose religious needs are met by the statutory holiday calendar.


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