HUMAN RIGHTS LAW IN B.C.:

RELIGIOUS DISCRIMINATION

Prepared by the
Canadian Human Rights Reporter*

for the
British Columbia Human Rights Commission

March 2001

Note: This memorandum is provided for education and information purposes only. It is not intended to provide legal advice and should not be relied upon in that respect. It should not be relied upon without seeking the advice of a lawyer.

*  Prepared by Susan Joanis, Freelance Writer/Editor and Human Rights Consultant.

TABLE OF CONTENTS

INTRODUCTION

RELEVANT LEGISLATION

EMPLOYEES / SERVICE RECIPIENTS

EMPLOYERS / SERVICE-PROVIDERS

BALANCING FREEDOM OF RELIGION AND FREEDOM OF EXPRESSION

REMEDIES

CONCLUSION

CASE NAME TABLE

APPENDIX

ENDNOTE

INTRODUCTION

Religious discrimination cases are among the best known in Canada's body of human rights case law. They have greatly influenced Canadian human rights jurisprudence. Certain religion cases raised key issues during the early development of Canadian jurisprudence and were therefore used to define major concepts in human rights law — concepts that apply to all types of discrimination. These include the notion of "bona fide occupational requirement", "duty to accommodate", and "assessment of risk".

This summary of B.C. and Canadian case law on religious discrimination is provided by the B.C. Human Rights Commission for researchers, practitioners and members of the public who wish to increase their familiarity with human rights law.

The religion cases raise interesting and challenging questions. They originate from a variety of situations and can involve matters of faith, beliefs, and customs or practices. The ground of religion may be closely tied to other grounds of discrimination, such as ancestry and ethnicity.

The majority of religious discrimination cases arise in the employment sphere over issues of religious dress and the observance of religious holidays. Discrimination cases also arise in the area of public services, particularly educational services. School prayer in public schools and religious intolerance on the part of teachers are both issues that have been dealt with by human rights tribunals and courts. There are also cases dealing with the right of religion-based institutions to employ persons who adhere to specified religious beliefs and practices.

It is noteworthy that in some cases respondents attempt to defend discrimination against another group, most often gay men and lesbians, on the grounds of religious belief. Others have cited their right to freedom of expression in defending their hate speech against Jews and others. Adjudicators are required in these cases to balance conflicting rights.

RELEVANT LEGISLATION

Section 3 of the B.C. Human Rights Code¹ outlines its overall purposes:

Because of the importance of its subject matter, the B.C. Human Rights Code takes precedence over other legislation. Section 4 provides that:

Discrimination based on religion is prohibited in employment, in employment advertising, with respect to union membership and the treatment of union members, and with respect to services, accommodations or facilities that are customarily available to the public. However, it is a defence to a claim of discrimination in employment or services to show that a refusal, limitation, specification or preference was based on a bona fide occupational requirement, or a bona fide justification (see Appendix for text of relevant sections).

In addition, the Code prohibits persons from publishing or displaying any statement, sign, symbol, or emblem that indicates an intention to discriminate, or to expose a person or a group of persons to hatred or contempt because of their religion. Because the law on hate messages is quite extensive now, that subject will be dealt with in a separate memorandum.

The Code also provides an important exemption which permits religious organizations to operate for the benefit of the members of their religious group. The exemption reads:

EMPLOYEES / SERVICE RECIPIENTS

Complaints of religious discrimination are most often initiated by people who feel their rights have been violated, either at work or in attempting to receive a service. Most of these people belong to minority religions, whose different tenets and practices have not always been accepted or even tolerated in various spheres of our society.

Religious Dress

K.S. Bhinder was fired from his job as an electrician with CN Rail for refusing to wear a hard hat. Mr. Bhinder is a member of the Sikh religion, which requires that he wear a turban at all times, thus making it impossible for him to wear a hard hat. The case was decided ultimately by the Supreme Court of Canada. That Court ruled against Mr. Bhinder, saying that since the requirement to wear a hard hat constituted a bona fide occupational requirement, the employer had no duty to accommodate Mr. Bhinder's religious requirements (Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder (1985), 7 C.H.R.R. D/3093). Although the Court recognized that the rule, while neutral on its face, nevertheless discriminated against those of the Sikh religion, it held that the rule was saved because it was a bona fide occupational requirement.

Subsequent rulings of the Supreme Court of Canada, in particular its recent ruling in British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257 ("Meiorin"), indicate that were Mr. Bhinder's case to come before the Court today it would be decided differently. There would be an onus on CN Rail to show that it was impossible for it to accommodate Bhinder without incurring undue hardship.

A review of Dhillon v. British Columbia (Ministry of Transportation and Highways) (1999), 35 C.H.R.R. D/293 (B.C.H.R.T.) shows how much the law has changed since the Bhinder decision. Dhillon also involved a Sikh man and his religious obligation to wear a turban. In this case, wearing a turban prevented Mr. Dhillon from wearing a motorcycle helmet. The Ministry of Transportation, applying the Motor Vehicle Act, R.S.B.C. 1979, c. 288, refused to allow Mr. Dhillon to take the test for a motorcycle licence without a helmet.

The dissenting justices in the Bhinder case had said that the human rights legislation at issue (in that case the Canadian Human Rights Act) should have primacy over the conflicting legislation. In Dhillon, the Tribunal noted the codification of that principle in the B.C. Human Rights Code. The Tribunal cited s. 4 as stating that wherever a provision of the Code conflicts with another enactment, the Code will prevail. As a prelude to its review of the issues, the Tribunal reviewed its analytical framework (at D/294, para. 9):

Human rights statutes must be interpreted liberally and in a manner that advances their fundamental overarching purposes. The purposes of the Code, as set out in s. 3, include the fostering of a society where there are no impediments to full and free participation in the economic, social, political and cultural life of the province, and the elimination of discrimination.

Following the approach set out in Central Alberta Dairy Pool, infra, for assessing risk, the Tribunal went on to (1) evaluate the magnitude of the risk involved in exempting Mr. Dhillon (and other Sikh men who wish to drive motorcycles) from the helmet rule, and (2) ascertain who would bear that risk. The Tribunal found that the increased risk of injury and death is only marginal and that the men not wearing helmets would directly bear that risk. Even factoring in potential medical costs, the Tribunal concluded that, considering the fundamental right at stake (freedom to practice one's religion), the respondent had still not shown that accommodating the complainant would constitute undue hardship. In explaining this conclusion (D/299, para. 52), the Tribunal noted,

. . .the protection of fundamental rights is usually accompanied by costs, either financial or otherwise. There is a cost associated with making buildings wheelchair accessible for persons with disabilities. There is also a cost associated with ensuring that women have equal access to employment opportunities. The present case is not unique in this regard.

However, there are recent cases in which restrictions on religious dress have been upheld. A federal tribunal used a similar analysis to that used in Dhillon, supra, but reached a different conclusion when a Sikh man challenged an airline's rule restricting passengers' right to wear the kirpan, a special ceremonial knife carried by Sikh men for religious reasons. In Nijjar v. Canada 3000 Airlines Ltd. (1999), 36 C.H.R.R. D/76, the Tribunal did not require accommodation as (1) the rule did not prohibit all kirpans, only those with greater potential for injury than the airline's eating utensils, and (2) the risks from eliminating the rule would mostly be borne by other passengers, not the complainant or others in his situation.

Recently the B.C. Human Rights Tribunal ruled in Pannu v. British Columbia (Workers' Compensation Board) (No. 2) (2000), 38 C.H.R.R. D/494, that a Workers' Compensation Board ("WCB") regulation and an employer rule requiring recaust operators in a pulp mill to be clean-shaven in order to wear a self-contained breathing apparatus did not contravene prohibitions against discrimination based on religion.

Darshan Pannu was a recaust operator in a pulp mill operated by Skeena Cellulose. In the recaust area poisonous gases from elsewhere in the mill are burned off in 2,000-degree recaust kilns. Mr. Pannu was in charge of this area. In the event of a poisonous gas leak, he was responsible for shutting down the recaust area equipment, remaining behind while others evacuated.

WCB regulations require that anyone who may be exposed to poisonous gases wear a self-contained breathing apparatus. These regulations also require that any apparatus-wearer be clean-shaven because facial hair prevents the face mask from sealing with the person's face and ensuring that the gas is kept out. Mr. Pannu could not wear a self-contained breathing apparatus because he is a Sikh and wears a beard as a tenet of his faith.

The primary issue in this case was whether the requirements of the WCB and Skeena Cellulose were bona fide and whether WCB or Skeena could have accommodated Mr. Pannu's wearing of a beard without incurring undue hardship.

The Tribunal found that the WCB regulation requiring workers who need to wear self-contained breathing equipment to be clean-shaven was justified. Bearded workers could not use the equipment safely, nor was there different respiratory equipment that would allow bearded workers to remain safely in gas-contaminated areas.

The Tribunal found this was not a case similar to Dhillon. Mr. Dhillon could be exempted from the law requiring motorcycle riders to wear helmets because the increased safety risk caused by not wearing a helmet was borne entirely by himself. In the case of Mr. Pannu, if he passed out from gas exposure, others would have to rescue him. If he became incapacitated before completing the shutdown, the hazard posed by the recaust equipment would not be minimized.

Given that there would be an increase in the magnitude of risk because the emergency procedure would be carried out by less experienced personnel, and that there would be a significant shift in who would bear the risk, the Tribunal determined that accommodating Mr. Pannu would cause an undue hardship to the employer.

In the case of Taylor v. Canada (Attorney General) (1997), 34 C.H.R.R. D/66 (F.C.T.D.); aff'd (2000), 37 C.H.R.R. D/368 (F.C.A.) the issue was a judge's order barring Michael Taylor from wearing a kufi, which is a Muslim religious head covering, in a courtroom. The judge, Whealy J., issued two rulings restricting attendees at the trial of Dudley Laws from wearing head coverings. The judge held that he had the authority and the duty to oversee the demeanour, solemnity and dignity that must prevail in a superior court of law. He stated that in general men must have bare heads and that if women wore head cover, it must not interfere with other members of the public or be flamboyant. He outlined the circumstances under which members of the public could wear religious head coverings in his courtroom as follows (quoted at paras. 8 and 45 of Taylor):

. . .headdress in court will only be permitted if it is an article of faith demanded by [a] well established and recognizable religious community.

There are. . .many self-proclaimed and unrecognized forms of religion or cults claiming to be religious which have occurred not only this year, but throughout history. They come and go. Often, to attract attention and new adherents, bizarre, intrusive or simply impolite attire is worn. These religions may exist and may have limited Charter protection, but the Charter does not guarantee some right to enter and remain in a courtroom where the result is disruptive.

Because of the judge's rulings, Mr. Taylor was asked to leave the court.

Mr. Taylor made a complaint to the Canadian Human Rights Commission alleging that he was discriminated against with respect to access to a public service because of his religion. The Commission declined to deal with the complaint on the grounds that it had no jurisdiction because judges enjoy judicial immunity. Mr. Taylor appealed this decision, and it was upheld by both the Federal Court Trial Division and the Federal Court of Appeal.

Though the Ontario Court of Appeal in its decision on Dudley Laws' appeal criticized Whealy J. for these rulings and for his comments on the religious head covering of some attendees in his courtroom, and though the Canadian Judicial Council also criticized Whealy J. for his approach, the Federal Court of Appeal held that no complaint could be made against the judge. Judges enjoy judicial immunity in order to preserve judicial independence. If judges could be brought to account for their decisions, those decisions might not be based on a dispassionate appreciation of the facts and the law, but rather on consideration of which party would be most likely to bring suit. Judges should be free from actions for damages in order to permit them to perform their duty with complete independence and freedom from fear.

The Court found that the Canadian Human Rights Commission and the Canadian Human Rights Tribunal are not agencies that possess sufficient safeguards to protect judicial independence were they able to call judges before them. Even to afford the Commission the power to investigate whether Whealy J. was acting in a judicial capacity would completely destroy judicial immunity and judicial independence. Further the remedies that a Tribunal can order would be harmful to judicial independence.

The Court therefore upheld the Federal Court Trial Division's ruling and dismissed the appeal.

Some commentators find this case disturbing because it seems to indicate that there is no satisfactory resolution for this kind of discrimination. What is an effective means of ensuring that judges will conduct themselves in their courtrooms in a manner that is respectful of members of different racial and religious communities? (See Shelagh Day, "Inside Page" (2000) 1:5 Human Rights Digest 2.)

Holy Days

Religious discrimination complaints most commonly arise when employees lose their jobs after they refuse — for religious reasons — to work on certain days. This scenario represents the highest number of religious discrimination cases.

The most famous of these dates back to 1985. Virtually every accommodation case since then, regardless of the grounds of discrimination alleged, cites Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd. (1985), 7 C.H.R.R. D/3102 (S.C.C.), commonly known as "O'Malley". The case broke important new ground and established some of the most fundamental principles of human rights law. It created the cornerstones of accommodation law. O'Malley stands for the proposition that adjudicators will concern themselves with the effect of a particular rule, rather than its intent; that if a rule has a discriminatory effect, the employer must take reasonable steps to accommodate, unless accommodation would create undue hardship; and that the onus of showing undue hardship falls to the employer. This was a key point in the O'Malley case since the Court recognized that the respondent's policy of opening for business on Saturdays stemmed from sound business objectives and not from any desire or intent to discriminate against certain employees.

Theresa O'Malley, a long-time employee of the respondent, became a Seventh Day Adventist. After becoming an adherent, she could no longer work between sundown Friday and sundown Saturday (her Sabbath), in accordance with the tenets of her new faith. The respondent's policy required all full-time employees to work during that time period, on a rotating basis. Mrs. O'Malley therefore lost her full-time status, leading to the human rights complaint on religious grounds.

The Court carefully distinguished between cases in which an employer's rule directly discriminated against members of a particular group, and those in which the rule indirectly discriminated, such as in the present instance (D/3106, para. 24774):

No question arises in a case involving direct discrimination. Where a working rule or condition of employment is found to be discriminatory on a prohibited ground and fails to meet any statutory justification test, it is simply struck down. . .In the case of discrimination on the basis of creed resulting from the effect of a condition or rule rationally related to the performance of the job and not on its face discriminatory, a different result follows. The working rule or condition is not struck down, but its effect on the complainant must be considered, and. . .some accommodation must be required from the employer for the benefit of the complainant.

Five years later, in another case arising from termination of employment for not working on a holy day, the Supreme Court of Canada in Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) (1990), 12 C.H.R.R. D/417, outlined the factors relevant to determining whether the accommodation would cause undue hardship (D/438, para. 63):

. . .financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer's operation may influence the assessment of whether a given financial cost is undue, or the ease with which the work force facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations.

In its decision in Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425, a B.C. case involving termination of employment for refusal to work on days designated as holy by the employee's religion, the Supreme Court of Canada made it clear that not only employers, but also unions have a duty to accommodate, and that existence of a collective agreement does not absolve the parties of that duty. Furthermore, since employers and unions may not contract out of human rights, the need to defend against a grievance does not in itself constitute undue hardship. Describing the search for accommodation as a multi-party inquiry, the Court commented that "the complainant must do his or her part as well" (D/439, para. 43).

The Quebec Human Rights Tribunal, following the Supreme Court's ruling in Renaud, supra, found that though the union at the Centre hospitalier Robert-Giffard had made accommodating an employee's religious holy days difficult, this did not excuse the employer for its failure to accommodate him. Neither the threat of a grievance nor the union's intransigence could justify the Centre's refusal to accommodate the employee. The Tribunal found both the employer and the union liable for the discrimination (Québec (Comm. des droits de la personne et des droits de la jeunesse) c. Centre hospitalier Robert-Giffard (1997), 34 C.H.R.R. D/436 (T.D.P.Q.).

Drager v. I.A.M. & A.W. (1994), 20 C.H.R.R. D/119 (B.C.C.H.R.) offers an excellent example of how principles set out by the Supreme Court of Canada in the religion cases have been applied by B.C.'s Council of Human Rights. Daniel Drager was a Seventh Day Adventist, who, like Theresa O'Malley, was required by his religion not to work from sundown Friday to sundown Saturday. While the union suggested alternatives to the occasional times when Mr. Drager would be asked to work on Friday night, the employer insisted that Mr. Drager would have to either obtain a dispensation from his church, make arrangements with other workers to exchange shifts, or move to another city and work in a larger plant where he would be less likely to be asked to work Friday shifts.

The Council found that because the rules in the collective agreement resulted in adverse discrimination against Mr. Drager, both the employer and the union had discriminated against him and both had a duty to accommodate him to the point of undue hardship. Finding that the union had met its duty to accommodate, the Council dismissed the complaint against it. With respect to the employer, however, the Council found that accommodation had not been offered. The employer had rejected the union's suggestions for resolution on the basis that it should not have to incur any expenses in the accommodation process. By way of remedy, the employer was required to pay Mr. Drager $2,000 for the distress of experiencing discrimination; $47,649 for lost wages following termination; $1,195 for lost wages while suspended; and interest on the total dating back almost five years.

In Régionale de Chambly, Comm. scolaire c. Bergevin (1994), 22 C.H.R.R. D/1, the Supreme Court of Canada dealt with the issue of compensation for time that Jewish teachers took off work in order to observe religious holy days. The Court ruled that Jewish teachers were discriminated against by the yearly work schedule. The effect of the school calendar was different for Jewish teachers because they had to take days off work to honour their religious holy days, while the calendar treated the Christian holy days, such as Christmas and Good Friday, as general holidays from work. The effect of the calendar was to discriminate against Jewish teachers. The Court ruled that the School Board should accommodate the Jewish teachers by permitting them to take leave with pay to observe their holy days. In Shapiro v. Peel (Regional Municipality) (No. 2) (1997), 30 C.H.R.R. D/172, an Ontario Board of Inquiry ruled similarly that the municipality should not have required Ms. Shapiro to use vacation time, lieu time or unpaid leave to celebrate Jewish holy days.

The Supreme Court of Canada's unanimous decision in Meiorin, supra, which was handed down September 9, 1999, made a significant change in the law with respect to the duty to accommodate. It did away with the bifurcated test, first established in O'Malley, that made a distinction between the analysis to be applied when the discrimination was direct versus the analysis to be applied when the discrimination was indirect. The Court instituted a new unified approach, which applies now whether the discrimination is direct or adverse effect discrimination. Under the new test, as set out in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), 36 C.H.R.R. D/129 at D/136, para. 20 (S.C.C.) ("Grismer"), in order to justify a rule or policy that is prima facie discriminatory, employers and others must show on the balance of probabilities that:

The principles regarding adverse effect discrimination and the duty to accommodate, set out in O'Malley still apply, that is, the Court recognizes adverse effect discrimination as a prevalent and harmful form of discrimination, and requires employers and service providers to accommodate to the point of undue hardship when such discrimination occurs. The difference is that post-Meiorin employers and service providers have a duty to accommodate no matter what form the discrimination takes. For religion cases, where a work schedule or other rule results in adverse effect discrimination, Meiorin is likely to mean that the rule itself will be subjected to greater scrutiny and that there will be a higher onus on the employer or service provider to justify such a rule. Also greater efforts at accommodation will be expected. Moreover, now a work schedule or other neutral-seeming rule can be struck down, if that is the appropriate remedy for the discrimination it causes.

Belief-based Conduct

In addition to practices that stem from religious affiliation, such as wearing certain types of clothing or not working on certain days, certain specific actions that are grounded in and motivated by religious belief have also generated case law in this area.

Moore v. British Columbia (Ministry of Social Services) (1992), 17 C.H.R.R. D/426 (B.C.C.H.R.) offers an excellent example. Cecilia Moore was fired from her position as a financial aid worker for the Ministry after she refused to grant a client medical coverage for an abortion. In subsequent discussions with her superiors, Ms. Moore made it clear that she would never grant such aid, because of her religiously-based opposition to abortion. While the Council noted that the complainant could and should have disqualified herself from such a file, it ultimately ruled in her favour because of the respondent's complete lack of effort to accommodate the complainant and work out a suitable arrangement.

In Jones v. C.H.E. Pharmacy Inc. (2001), 39 C.H.R.R. D/93 (B.C.H.R.T.), the religion-based conduct at issue was the refusal of an employee to participate in decorating the store where he worked for Christmas. Mr. Jones is a Jehovah's Witness, and, in accordance with his faith, does not participate in the celebration of Christmas. The Tribunal found that the employer knew that Mr. Jones' religious beliefs prevented him from participating in any celebration of Christmas, including decorating the store. Rather than attempting to accommodate those beliefs, the employer gave Jones an ultimatum: decorate or be fired.

In Kurvits v. Canada (Treasury Board) (1991), 14 C.H.R.R. D/469 (C.H.R.T.) Benno Kurvits filed a complaint against both his employer and his union because they automatically deducted union dues from his pay cheque. Mr. Kurvits belonged to the Marathon Baptist Church whose tenets forbade union affiliation. The collective agreement provided that if an employee belonged to a church whose tenets forbade union affiliation, and if that church was a registered charity under the Income Tax Act, that employee was allowed to make a contribution equal to the amount of dues to a charitable organization of his or her choice instead of paying union dues. Mr. Kurvits' church was not registered as a charity under the Income Tax Act and consequently he was denied the right not to pay union dues. The Canadian Human Rights Tribunal found that this refusal to recognize Mr. Kurvits sincere religious beliefs constituted discrimination. Mr. Kurvits could easily have been accommodated. The Tribunal ordered the employer and the union to amend the collective agreement to eliminate the discriminatory effect of the provision regarding dues check-off. In addition, the employer and the union were required to contribute an amount equal to union dues to a charity of Mr. Kurvits' choice, and to pay $500 each for the damage to dignity that the discrimination caused.

EMPLOYERS / SERVICE-PROVIDERS

The Rights of Religious Institutions

Because of the defence of bona fide occupational qualification and the s. 41 exemption cited above, religious institutions and organizations can refuse to employ persons who do not accept their religious belief systems or follow their religious practices. One B.C. case and one Manitoba case serve to illustrate how these bona fide qualification and exemption provisions are applied.

In Caldwell v. St. Thomas Aquinas High School (1984), 6 C.H.R.R. D/2643, the Supreme Court of Canada held that a Catholic school was permitted to terminate Margaret Caldwell's employment after learning that she had married a divorced man in a civil ceremony. The complainant had worked as a teacher in the Catholic school; she filed her complaint after the school did not renew her contract.

The respondent argued that Catholic doctrine plays a fundamental role in all aspects of school life and that the staff members represent important role models for the students of how to live a Catholic life. The school therefore requires, as a matter of policy, that its staff conform to the Catholic Church's rules concerning matters such as marriage. The Court agreed that such conformity constituted a bona fide occupational requirement.

The Court also found that the exemption provision of the legislation (then s. 22, now s. 41) allows religious organizations to give preference to members of the identifiable group which their organization is designed to serve. In this case, the Court found that this provision allowed the Catholic school to give a preference in hiring to Catholic teachers, and in failing to renew Caldwell's employment contract, the school was exercising a preference for the benefit of members of the Catholic community.

A Manitoba Board of Adjudication reached a similar result in Schroen v. Steinbach Bible College (1999), 35 C.H.R.R. D/1. In that case, the school fired its accounting clerk upon learning that she was not a Mennonite. The Board found that the complainant's religious faith reasonably stood as a bona fide occupational requirement. Even though she was not directly teaching students, in her position as a member of the Steinbach College community Ms. Shroen was still expected to interact with them, participate in school functions, invite students to her home and make herself available to talk to them about her faith. Because of the special nature of the school, the Board of Adjudication concluded that adherence to the Mennonite faith was a reasonable requirement for all staff members.

Public Education / Public Services

In the law regarding public education, two themes are evident. On the one hand, there are limits on the role that religion can play in secular public schools; on the other hand, religious differences must be tolerated.

In Saskatchewan, Canada's Constitution Act specifically protects and maintains the provisions of The School Ordinance, O.N.W.T. 1901, c. 29, which deals with matters of religious education in the Saskatchewan school system. The School Ordinance is the law regarding public education that was in effect at the time when Saskatchewan entered confederation. Under the Ordinance, the board of any public school district may direct that the school day open with the Lord's Prayer. Also, religious instruction may occur during the last half-hour of class time.

A group of parents launched a human rights complaint against the Saskatoon School Division, arguing that the restrictions on religious education within the public school system were not being observed. The families brought forward evidence that the Lord's Prayer was being recited at the beginning of assemblies that do not take place at the opening of the school day. Furthermore, some schools were conducting Bible readings at times other than the last half-hour of the day. Students and parents testified to the emotional disruption and confusion this engendered for non-Christian students and the lack of suitable alternatives to participating in such religious instruction and practice.

A Board of Inquiry (Fancy v. Saskatoon School Div. No. 13 (1999), 35 C.H.R.R. D/9) found that since the School Division's actions did not conform to the School Ordinance, the School Division lost the privilege of its protection. It was therefore ordered to cease its policy and practice regarding the Lord's Prayer and Bible readings. It was further encouraged to disregard the "antiquated" provisions of the Ordinance permitting use of the Lord's Prayer for school opening, and instead to adopt a multicultural religious policy.

Issues of religious dress, and tolerance of religious difference, have arisen in school settings, as they have in work settings. In Peel Board of Education v. Ontario (Human Rights Comm.) and Pandori (1991), 14 C.H.R.R. D/403, the Ontario Divisional Court upheld a decision of a Board of Inquiry regarding the wearing of kirpans by Sikh students and teachers in its schools. The Peel Board of Education had instituted a ban on the wearing of kirpans. But the Board of Inquiry found that no violent incident had occurred in any school system because of the wearing of kirpans and it ordered the Peel Board of Education to allow kirpans to be worn, subject to some restrictions.

When services are being offered to the public, human rights law does not allow religious belief to play a part in determining to whom those services will be offered. In Brillinger v. Brockie (No. 3) (2000), 37 C.H.R.R. D/15, an Ontario Board of Inquiry ruled that the owner of a printing company could not refuse printing services to lesbian and gay organizations. His wish to do so stemmed from his religiously-based belief that homosexuality is "detestable".

The Board acknowledged that its ruling would limit the respondent's freedom of religion, guaranteed under the Canadian Charter of Rights and Freedoms. However, it noted that allowing him to deny services to certain clients based on their sexual orientation would undermine the Ontario Human Rights Code's very pressing objective of eliminating discrimination in the province. The Board commented that Mr. Brockie would still be free to hold his religious beliefs; the limitation simply prevents him from translating those beliefs into discriminatory behaviour.

BALANCING FREEDOM OF RELIGION AND FREEDOM OF EXPRESSION

Mr. Brockie had tried to express his beliefs within a relatively small sphere — that is, within the operation of his printing business. In some instances, people have tried to express their discriminatory beliefs on a broader level. Canadian jurisprudence offers examples of such situations.

In Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.), a public school teacher made extensive commentary about Jews during his off-duty time. These statements appeared in books, letters, and media interviews. The School District did not stop Mr. Ross's behaviour; and it continued to employ him. A Jewish parent filed a human rights complaint, alleging that Mr. Ross's activities had created a poisoned environment at the school such that students felt comfortable engaging in anti-Semitic actions and other discriminatory conduct against minority students.

The Board of Inquiry allowed the complaint (15 C.H.R.R. D/339), but the case was appealed up to the Supreme Court of Canada. The Supreme Court agreed with the original decision of the Board of Inquiry. It held that while the Board of Inquiry's order, which required the School District to remove Mr. Ross from his teaching position, infringed upon Ross's Charter rights to freedom of expression and religion, such a measure was justified by the pressing and substantial objective of eliminating discrimination in the provision of educational services to the public. The Court took into consideration the School District's responsibility to maintain a positive school environment and to provide educational services in a way that does not undermine public trust and that supports children's right to education free of discrimination.

In another instance involving anti-Semitic publications, two challenges have been brought against North Shore Free Press Ltd. in British Columbia. These have represented the first tests of B.C.'s rules governing hate speech. In this case, the respondent argued that s. 7 of the Code, which prohibits the publication of statements likely to expose a group identified by religion or race to hatred and contempt, violates the guarantees of freedom of expression in the Charter. In a decision that ultimately allowed the sole impugned newspaper article to withstand scrutiny, the B.C. Tribunal nevertheless upheld the principle that restrictions on hate speech are justified because such speech does not match the core values underlying the right to freedom of expression (Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 7) (1997), 30 C.H.R.R. D/5).

A further challenge to four more articles by the same publisher was successful (Collins v. Abrams (sub nom. Abrams v. North Shore Free Press Ltd.) (1999), 33 C.H.R.R. D/435). This time the Tribunal held that considering the context of anti-Semitism, the articles collectively violated the Code because of the likelihood that they would expose Jews to hatred and contempt.

The consistent thread running through all of these cases lies in the decision-makers' distinction between beliefs and behaviour and between private and public realms. Everyone has the freedom to believe what they wish about any identifiable group of people. Also private religious organizations can favour members of their religion for employment or receipt of services. However, freedom of religion will not usually be a sufficient justification for conduct that discriminates against others in areas of public life to which human rights legislation applies, including employment, public education, and public services.

These distinctions between belief and conduct and between private and public realms lie at the heart of the B.C. Court of Appeal decision in Trinity Western University v. British Columbia College of Teachers (1998), 35 C.H.R.R. D/435. In that case, the College of Teachers had denied Trinity Western University's application for certification for a full teacher-training program. Trinity Western is a private religious university. The College's denial of the certification was based on its concerns that the University's religiously-based attitudes against homosexuality, which were set out in University policy and codes of conduct, would result in discriminatory behaviour among the graduates when they became teachers in public schools. The Court ruled in the University's favour, noting that there was no evidence of actual discriminatory conduct, and stating that the College may not act in anticipation of intolerant behaviour. However, Rowles J.A. dissented in this case, finding that while the College's decision to disallow a complete teacher training program on the Trinity campus infringed the Charter right to freedom of religion of the students, that infringement was justified by the objective of ensuring non-discrimination in the public school system. Leave to appeal to the S.C.C. was granted to the B.C. College of Teachers. The case was heard November 9, 2000².

REMEDIES

Remedies ordered under the Code generally fall into four categories.

Cease and Refrain

Whenever an allegation of discrimination has been proved, the Human Rights Tribunal must order the respondent to cease the discriminatory action and refrain from committing further discriminatory actions in the future.

Lost Wages and Expenses

Human rights tribunals may order respondents to compensate complainants for their losses, as they deem appropriate. This generally involves paying complainants for lost wages or the difference between what they paid and what they would have paid for a particular service, but for the discrimination. In Devron-Hercules Manufacturing Ltd. v. Baichu (1989), 11 C.H.R.R. D/422 at D/426, para. 41 (B.C.C.H.R.), the Council Member notes that such compensation cannot be punitive, only remedial. Please note that decision-makers may also order interest on these expenses (see Mohammad v. Mariposa Stores Ltd. (1990), 14 C.H.R.R. D/215 (B.C.C.H.R.) and Canada (Attorney General) v. Grover (No. 1) (1992), 18 C.H.R.R. D/1 (C.H.R.T.)).

Applying these principles, the B.C. Council of Human Rights made an award of lost wages with interest to Daniel Drager. Also, the B.C. Human Rights Tribunal, in Jones, supra, ordered the respondent to pay Raymond Jones, who was found to have been constructively dismissed because of his religion, $21,243.56 as compensation for lost income, $4,710 as compensation for lost vacation pay, with interest on these amounts.

Compensation for Injury to Dignity

Section 37(2)(d)(iii) of the Code states that the tribunal may order the person who contravened the Code to:

pay to the person discriminated against an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them.

In Drager, supra, the Tribunal ordered the respondent to pay $2,000 as compensation for injury to Mr. Drager's dignity. In Jones, the B.C. Human Rights Tribunal awarded Raymond Jones $3,500 as compensation for injury to his dignity caused by the religion-based discrimination. Mr. Jones had worked at the store for sixteen years, and had long-standing and friendly relationships with his co-workers.

In Ontario boards of inquiry have ordered compensation up to $10,000 for the loss of the right to freedom from discrimination without requiring actual proof of harm to dignity (Moffatt v. Kinark Child and Family Services (No. 5) (1999), 36 C.H.R.R. D/346). These awards recognize the intrinsic harm of discrimination. Since the legislative cap on damage awards for injury to dignity has been removed, such awards may also be made in B.C.

Restorative and Systemic Remedies

Section 37(2)(d)(i) permits the B.C. Human Rights Tribunal to make available to the person discriminated against the right, opportunity or privilege that was denied. This means that the Tribunal can order a person to be reinstated in a job, promoted, transferred, to be offered the next available apartment, or to be provided a service that was denied.

Sections 37(2)(c)(i) and (ii) permit the Tribunal to order the person who contravened the Code to take steps to ameliorate the effects of a discriminatory practice, and/or to adopt and implement a special program to ameliorate the conditions of disadvantaged individuals or groups if there is evidence of a pattern and practice of discrimination.

This means that the Tribunal can order a person who contravened the Code to develop anti-harassment or anti-discrimination policies, or to institute education and information programs for employees regarding their human rights and their legal obligations.

It also means that the B.C. Human Rights Tribunal can, where there is evidence of a pattern and practice of discrimination, as there was, for example, in Canada (Attorney General) v. Moore (No. 1) (1996), 25 C.H.R.R. D351 (C.H.R.T.), order a respondent to institute a series of measures that will address and remedy systemic discrimination.

CONCLUSION

Human rights legislation protects employees or clients of a service from discrimination based on their religion in the same way that it protects persons discriminated against because of sex, or race. It also protects the ability of religious organizations to provide services consistent with their religious beliefs to the members of their group. However, some unique challenges are posed, particularly when persons or organizations discriminate against others and seek to justify this discrimination on religious grounds.

CASE NAME TABLE

Brillinger v. Brockie (No. 3) (2000), 37 C.H.R.R. D/15 (Ont. Bd.Inq.)

British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257 (S.C.C.)

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1999), 36 C.H.R.R. D/129 (S.C.C.)

Caldwell v. St. Thomas Aquinas High School (1984), 6 C.H.R.R. D/2643 (S.C.C.)

Canada (Attorney General) v. Grover (No. 1) (1992), 18 C.H.R.R. D/1 (C.H.R.T.)

Canada (Attorney General) v. Moore (No. 1) (1996), 25 C.H.R.R. D351 (C.H.R.T.)

Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 7) (1997), 30 C.H.R.R. D/5 (B.C.H.R.T.)

Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder (1985), 7 C.H.R.R. D/3093 (S.C.C.)

Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) (1990), 12 C.H.R.R. D/417 (S.C.C.)

Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425 (S.C.C.)

Collins v. Abrams (No. 3) (1999), 33 C.H.R.R. D/435 (B.C.H.R.T.).

Devron-Hercules Manufacturing Ltd. v. Baichu (1989), 11 C.H.R.R. D/422 (B.C.C.H.R.)

Dhillon v. British Columbia (Ministry of Transportation and Highways) (1999), 35 C.H.R.R. D/293 (B.C.H.R.T.)

Drager v. I.A.M. & A.W. (1994), 20 C.H.R.R. D/119 (B.C.C.H.R.)

Fancy v. Saskatoon School Div. No. 13 (1999), 35 C.H.R.R. D/9 (Sask. Bd.Inq.)

Jones v. C.H.E. Pharmacy Inc. (2001), 39 C.H.R.R. D/93 (B.C.H.R.T.)

Kurvits v. Canada (Treasury Board) (1991), 14 C.H.R.R. D/469 (C.H.R.T.).

Lung v. Bicknell (1998), 35 C.H.R.R. D/119 (Sask. Bd.Inq.)

Moffatt v. Kinark Child and Family Services (No. 5) (1999), 36 C.H.R.R. D/346 (Ont. Bd.Inq.)

Mohammad v. Mariposa Stores Ltd. (1990), 14 C.H.R.R. D/215 (B.C.C.H.R.)

Moore v. British Columbia (Ministry of Social Services) (1992), 17 C.H.R.R. D/426 (B.C.C.H.R.)

Nijjar v. Canada 3000 Airlines Ltd. (1999), 36 C.H.R.R. D/76 (C.H.R.T.)

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd. (1985), 7 C.H.R.R. D/3102 (S.C.C.)

Pannu v. British Columbia (Workers' Compensation Board) (No. 2) (2000), 38 C.H.R.R. D/494 (B.C.H.R.T.)

Peel Board of Education v. Ontario (Human Rights Comm.) and Pandori (1991), 14 C.H.R.R. D/403 (Ont. Div.Ct).

Québec (Comm. des droits de la personne et des droits de la jeunesse) c. Centre hospitalier Robert-Giffard (1997), 34 C.H.R.R. D/436 (T.D.P.Q.)

Régionale de Chambly, Comm. scolaire c. Bergevin (1994), 22 C.H.R.R. D/1 (S.C.C.)

Ross v. New Brunswick School Dist. No. 15 (1991), 15 C.H.R.R. D/339 (N.B. Bd.Inq.)

Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.)

Schroen v. Steinbach Bible College (1999), 35 C.H.R.R. D/1 (Man. Bd.Adj.)

Shapiro v. Peel (Regional Municipality) (No. 2) (1997), 30 C.H.R.R. D/172 (Ont. Bd.Inq.)

Taylor v. Canada (Attorney General) (1997), 34 C.H.R.R. D/66 (F.C.T.D.)

Taylor v. Canada (Attorney General) (2000), 37 C.H.R.R. D/368 (F.C.A.)

Trinity Western University v. British Columbia College of Teachers (1998), 35 C.H.R.R. D/435 (B.C.C.A.)

APPENDIX

DISCRIMINATORY PRACTICES PROHIBITED

Discriminatory publication

Discrimination in accommodation, service and facility

Discrimination in employment advertisements

Discrimination in employment

Exemptions

ENDNOTE

¹    R.S.B.C. 1996, c. 210, proclaimed in force April 21, 1997; as amended by R.S.B.C. 1996, c. 210 (Supp.), proclaimed in force January 1, 1997, except for the portion of s. 4 which enacts s. 28.1; S.B.C. 1998, c. 19, s. 1 in force July 24, 1998; S.B.C. 1999, c. 39, ss. 24–30 in force September 30, 1999.

²    Appeal dismissed (2001), 39 C.H.R.R. D/357, 2001 SCC 31.