Court's decision important for Canadian religious freedom

By Iain T. Benson  |  Tuesday, June 29, 2010

Both sides in the Ontario Divisional Court case Heintz v. Christian Horizons are claiming a victory after a May 14 ruling.

The decision involved whether a religious employer could require employees to comply with a Code of Conduct (Lifestyle and Mission Statement or "L/M Statement") that prohibits (amongst other things) same-sex sexual conduct.

The requirement could be a breach of the Ontario Human Rights Code, unless the employer qualifies for a special exemption and the requirement is a bona fide occupational qualification.

The exemption includes (among others) religious organizations that are serving the interests of those identified by "race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability." Religious organizations are permitted to employ those "similarly identified."

Christian Horizons provides residential care to mentally challenged adults in Ontario, operating more than 200 residences as well as respite and retreat facilities.

In 2001, Connie Heintz brought a complaint against the organization to the Ontario Human Rights Commission. She had resigned her position with Christian Horizons the previous year, largely as a result of conflict related to her declaration that she was a lesbian. Heintz had signed a statement of faith and a lifestyle and morality statement when she stared work there in 1995. It expressly forbade homosexual relations.

The Ontario Human Rights Tribunal found that the evangelical employer had breached the Code, and that it did not qualify as a "special exemption" (religious) employer. Some of Christian Horizons' clients are not evangelical Christians and the organization had not satisfied the test to show that a ban on gay or lesbian conduct was objectively related to the job duties in the employer's homes.

Christian Horizons appealed the decision, and it seems now that the Ontario Divisional Court ruling has given Christian Horizons and similar organizations more leeway.

A close reading of the decision suggests the Court has left it open for certain kinds of employers, provided they properly frame the reasons for occupational qualifications, to make discriminations that could be upheld as covered by the freedom of religion.

On the other hand, insistence on such things as sexual conduct rules where these are not properly connected to the job duties cannot be justified simply by a general "religious ethos" claim on behalf of religious employers.

As such, the decision will have to be taken into account in any religious work related situation involving claims of discrimination where an employer seeks to rely on religious liberty as the basis for the job requirement.

The Christian Horizons decision takes courts perilously close to ground that the Supreme Court of Canada warned them against in the 2004 decision of Amselem. Unfortunately, when this sort of decision is issued by the Divisional Court the nuances are likely to be lost in the rhetoric. It should be a warning to everyone concerned with the law in this area to read the decision very carefully before jumping to any sort of conclusion regarding the application of the decision to other fact situations.

When the Christian Horizons case first came before The Ontario Human Rights Tribunal, the Tribunal read the exemption section narrowly and in such a way as to limit it only to religious projects that served only adherents of the particular religion. If a religious project served others who were not members of the religion even its "guiding minds" could not be religious according to the Tribunal.

Second, and in relation to this holding, the Tribunal had accepted a "public/private" distinction by which religious employers (and other "special employers" by implication) would be held by a different standard with respect to religious activity when they entered "the public." Both of these findings were of great concern to many religious groups and organizations. In addition to interventions from the Canadian Council of Christian Charities and the Evangelical Fellowship of Canada, the Assembly of Catholic Bishops of Ontario (ACBO), sought and were granted intervener status.

The ACBO introduced evidence in the form of affidavits. One from professor David Lyon of Queens University, a leading sociologist, set out how important religions are to Canadian society as a whole in terms of their vastly disproportionate contribution to the public good (particularly volunteerism and charitable giving). Another affidavit from Michael Fullan, executive director of Catholic Charities of Toronto, set out how Catholic charities seek to provide services to people whether or not they are Catholics. Both affidavits set out how religious believers and their groups in Canada increasingly feel fearful and excluded by certain kinds of decisions and cultural developments in Canada today.

The interveners apart from EGALE (who argued on behalf of the respondents to the appeal) argued that confining religion to just serving "fellow adherents" or to some sort of "private" sphere misunderstood the necessary involvement of religious believers and their communities within the "public" sphere. Particularly since the decision of the Supreme Court of Canada in the Chamberlain v. Surrey School Board decision in 2002, any notion of "public" or "secular" in Canadian law must now include religions not exclude them—a point completely overlooked in the Tribunal decision.

The Divisional Court had little difficulty finding these holdings by the Tribunal to be incorrect and said, in as strong a language as it seemed able to muster, that this sort of interpretation would be, in fact, an "absurd" result given the important work that religious projects do for those who are not members of their own religion.

In the Court's words:

[65]...If the Tribunal is correct, religious organizations like Christian Horizons or a religious group offering to feed the hungry will be unable to rely on s. 24(1)(a) if they minister to individuals regardless of their religious beliefs. Such an organization could not require even its senior officers, who constitute the organization's directing mind, to be adherents to its religious beliefs. They submit that the Legislature could not have intended to put out of business religious organizations that minister to the disadvantaged as an expression of their religious faith.

[66] We agree with the appellant and Christian intervenors on this point. In the interpretation of statutes, the courts can consider the likely results or effects of different interpretations of the language. It is "a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences" …. If the Tribunal's strict, plain language approach is correct, a religious institution will not be able to rely on s. 24(1)(a) in order to argue that religious adherence is a bona fide qualification, even with respect to those directing a religious missionary or charitable activity, if the activity is offered to those outside the particular faith community. In effect, the religious character of the charitable mission would be rendered impossible if the mission served individuals outside of the faith group.

[67] The Legislature must be taken to have known of the long history of assistance to the disadvantaged offered by religious groups in Canada, which have not imposed a requirement of religious membership or adherence on recipients. Therefore, an interpretation of s. 24(1)(a) that respects this historic role is the better one and consistent with the purpose of the exemption....

As far as this goes it is a ringing endorsement of the public role and rights of religions. The Commission and the intervenor EGALE also failed to succeed in their arguments that a different standard should apply when a religion enters the "public sphere." This "private/public" distinction was rejected by the Divisional Court in the Brockie decision some years ago (involving a printer in downtown Toronto who refused to print certain materials from a gay/lesbian activist organization who succeeded on appeal to the Divisional Court in overturning the same attempt at allowing only "private" religion) but that holding appears to have not (yet) registered within the Human Rights Tribunals.

The Court then turned to evaluate whether the insistence of the employer on the L/M Statement was a bona fide occupational qualification, that being required by the final element of the exemption provision, namely, that "the qualification is a reasonable and bona fide qualification because of the nature of the employment."

In the course of dealing with this the Court referred to the important 1984 Supreme Court decision of Caldwell v. Stuart (involving non-renewal of the teaching contract of a Catholic teacher in a Catholic school who had married a divorced man in a civil ceremony). In the Court's words:

[90] A qualification of religious conformance is one that intuitively would generally not meet the objective criterion. As the Supreme Court of Canada said in Caldwell v. Stuart, supra, at p. 625: "it will be only in rare circumstances that such a factor as religious conformance can pass the test of bona fide qualification" (emphasis added). The qualification, to be valid, must not just flow automatically from the religious ethos of Christian Horizons. It has to be tied directly and clearly to the execution and performance of the task or job in question. A focus that is only on the religious organization and its mission, without regard to how it is manifested in the particular job in issue, would deprive the final element of s. 24(1)(a) of the Code of any meaning.

[91] In Caldwell, supra, a Roman Catholic teacher in a Roman Catholic school was not rehired because she had married a divorced man in a civil ceremony contrary to Church dogma. She filed a complaint of discrimination with the British Columbia Human Rights Commission. One of the defences raised was that this was a case where religion and marital status constituted a BFOQ. The teacher was engaged in educating students in the Catholic faith and expected to assist in their adopting a Catholic way of life. At p. 625, the Court stated as follows:

In the case at bar, the special nature of the school and the unique role played by the teachers in the attaining of the school's legitimate objects are essential to the finding that religious conformance is a bona fide qualification.

[92] In the instant case, the Tribunal, at para. 191, found that the service Christian Horizons provides is not religious education and indoctrination. Rather, unlike the teacher in Caldwell, supra, "the primary role of a support worker is not to help all residents to adopt a Christian way of life, or to carry out a mission of salvation, or to convert residents to the faith beliefs of the organization."

[93] Except for the supervisors (who are called program managers), all of Christian Horizons' employees in its over 180 homes have the same job title, description and function, namely, support workers. Christian Horizons argued that support workers, such as Ms. Heintz, in fact are the "face of the organization" to the individual residents and their family members. A religious ethos infuses the very work that support workers do and, therefore, the Christian ministry and how the work is carried out cannot be distinguished in any meaningful way. Christian Horizons submits that one cannot separate out the religion from the tasks performed by the support worker. Christian Horizons' religious practice includes ministering to the poor and vulnerable. Accordingly, the organization submits that the requirement that its support workers subscribe to the L & M Statement is objectively reasonable. And as the Tribunal pointed out, the religious commitment of Christian Horizons and its support workers has resulted in excellent service.

Then the Court went on to make a centrally important holding:

[105] It may be that from Christian Horizons' perspective, the support worker's job is of a religious nature, and it is therefore necessary that the support worker adhere to all aspects of the L & M Statement. However, from an objective perspective, the support workers are not actively involved in converting the residents to, or instilling in them, a belief in Evangelical Christianity. There is nothing in the nature of the employment itself which would make it a necessary qualification of the job that support workers be prohibited from engaging in a same sex relationship. To some extent, the support workers maintain a general Christian culture in the home by engaging the residents in prayer and bible reading, but support workers are not hired or expected to bring the residents into the Evangelical Christian religion by having them adopt a certain lifestyle. The fact is that the support workers' employment and the tasks they perform are not intended to infuse the residents of the homes that Christian Horizons serves with the lifestyle morals that Christian Horizons demands of its adherents (emphasis added).

The Court suggested that Christian Horizons could have discharged its burden of proving that sexual orientation restrictions were reasonable and bona fide qualifications if it could show that the qualification that its support workers adhere to the L/M Statement by not participating in same sex relationships is reasonable because of the nature of that employment.

It then suggested that the connection, however, had to be proselytizing or teaching.

Concluding thoughts

It is not clear, apart from reference to Caldwell why the teaching and proselytizing aspects of the freedom of religion are singled out in a non-education case such as this case. As it suggested, earlier in its reasons, such analysis would involve "...a close examination of the nature and essential duties of the position of support worker and why adherence to a L/M Statement, including a ban on same sex relationships, is necessary in relation to those duties" (para. 95).

But why limit religious freedom in relation to work to "education" or "spreading the faith" when neither of those were a focus of the employer's operations? They were the focus in Caldwell, but that was a case involving the employment test in relation to a Catholic high school where teaching and proselytising were the essence of the job in question. That is not so with Christian Horizons.

Shouldn't the focus have been on the religious groups' own understanding of how religion relates to the workplace in the context of the sector at issue—in this case religious work in long-term care? Had that been the test and the warning of the Supreme Court in Amselem considered, one could have imagined a rather different outcome. The rote use of Caldwell seems to be erroneous and an undue application of a test applicable elsewhere (Catholic schooling) where it is not appropriate thereby unfairly restricting respect for religious operations in another sector.

So where does this leave religious employers? The answer is not clear. Certainly at the very least an organization will have to show that it has made a searching inquiry of all the job duties of each position in a religious organization to determine whether the conduct and lifestyle restrictions are objectively related to the job duties in question.

Here is the central problem with that approach. Religion is not always fathomable from outside itself. What is important to religions in the establishment of their associations and in the exercise of their associational rights is not always clear or understandable to those outside them. Why should priests in the Catholic Church be male? Why should dietary law preclude the eating of certain foods? Why does a "spiritual openness" or particular religious commitment matter in some forms of religious medical care (consider palliative medicine here)? These are all examples of why courts must be careful not to use the wrong form of measurement to measure religious projects.

Other courts have recognized what the Divisional Court here failed to notice.

The Supreme Court of Canada, in one of its recent decisions touching upon religion has stated that it does not wish to get "inside" religions. In the Court's words:

"[T]he State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, "obligation", precept, "commandment," custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion."

If this is so, then how can a Court determine the manner in which a religion deals with its beliefs regarding what is acceptable and unacceptable sexual conduct for its religious workers without breaching this principle from Amselem? What is morally acceptable or unacceptable for evangelical Christians or conservative members of most religions in relation to such things as gender or sexual conduct (and therefore sexual orientation) will not be so to others and will not be understood, almost by definition, by those outside that community. The difficulty here is that the Court appears to have not respected the associational integrity and diversity of religious belief.

By suggesting that Christian Horizons could have sustained its L/M Statement and conduct restrictions if it made a link to the job duties in relation only to education and spreading the faith, the Court fails to recognize that the job duties themselves cannot be fully comprehended by a non-religious court when, from the religious employer's point of view, the work itself is sacred within a particular religious context (here, evangelical protestant) and requires a certain sacred commitment not measureable by non-religious courts and judges.

That is why Amselem cautioned against unjustifiable entanglement of the courts' with religion. Religious employers in future will have to be even more careful to explain in documents setting out job duties and explaining the nature of the organization and how from the religious perspective in relation to the sector in question every job relates to the "religious mission" of the organization in that sector as understood by the religion. At the moment, the Divisional Court appears to have developed a test that does just what the Supreme Court of Canada cautioned against in Amselem and that, in addition, applied the wrong measure of operations to an employer for whom those measures were not relevant.

Iain T. Benson is Senior Associate Counsel for Miller Thomson LLP. He was counsel for the intervener, the Assembly of Catholic Bishops of Ontario, in the Christian Horizons case.

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