Law Times

September 13, 2010

The premier weekly newspaper for the legal profession in Ontario

Issue link: https://digital.lawtimesnews.com/i/50764

Contents of this Issue

Navigation

Page 8 of 15

Law Times • sepTember 13, 2010 An online resource 1.800.263.3269 Focus On HUMAN RIGHTS LAW Can faith groups impose lifestyle standards? Divisional Court ruling in Christian Horizons offers guidance on sticky human rights issue BY ROBERT TODD Law Times B oth sides have declared victory in a recent Divisional Court case that turned on the ability of faith- based organizations to impose lifestyle and morality restrictions on employees. Adrian Miedema, a partner at Fraser Milner Casgrain LLP who represented the charitable organization Christian Horizons in the case, says faith-based groups are pleased the ruling lets them continue requiring certain employees to meet behavioural requirements. "Obviously, it was a case that was of signifi cance to a lot of diff erent groups," he says. "Th e general impression that comes out of the decision is one of faith- based organizations saying, 'We're really pleased that we can continue to do our good work and serve the public.'" Meanwhile, Anthony Griffi n, an Ontario Human Rights Commission lawyer who argued the case, suggests the commission is happy that the court vindicated the complainant. "She was in the business of helping dress, feed, bath people and take them to their appointments," he says. "No amount of analysis was going to say that a particularly religious adherence was a [bona fi de qualifi cation] for that job." Th e decision in Ontario Human Rights Commission v. Christian Horizons followed a January 2001 complaint by Connie Heintz, who resigned from her job as a support worker at a community living facility run by Christian Hori- zons after revealing she was engaged in a same-sex relationship. Heintz com- plained the organization and one of her supervisors had dis- criminated against her and that she "had been exposed to a poisoned work environment," according to the May 14 Divisional Court ruling of justices John Jennings, Sidney Led- erman, and Katherine Swinton. Th e court noted Heintz was a de- vout Christian who has trained in Christian ministry and counsel- ling and took part in religious activities at Christian Horizons. Complaints against statement prohibiting "homosexual relation- ships" to which all em- ployees had to adhere. Th e tribunal also the supervisor were sub- sequently withdrawn, and the Human Rights Tribunal of On- tario issued its decision in the matter in April 2008. It ruled Christian Horizons wasn't protected by s. 24(1)(a) of the Hu- man Rights Code, which allows organi- zations serving the interests of a defi ned group to give preference to "persons similarly identifi ed if the qualifi cation is a reasonable and bona fi de qualifi cation" because of the nature of the job. While it agreed Christian Horizons is a religious organization, the tribunal found it was primarily active in serving people with developmental disabilities rather than evangelical Christians. It further ruled the organization failed to satisfy the reasonable and bona fi de re- quirement as it didn't make adequate ef- forts to determine whether Heintz could perform the job without the restric- tions set out in a lifestyle and morality The ruling will force many orga- nizations to revisit their hiring policies, says Adrian Miedema. found the organization had created a poisoned work environment for Heintz after learning she was a lesbian. It issued several orders, including $8,000 to Heintz for ap- plication of the discrim- inatory employment policy; $10,000 for the poisoned work envi- ronment; and $5,000 for infl iction of mental anguish. In addition, it ordered Christian Ho- rizons to discontinue its lifestyle and morality statement as a condition of employment; called for the adoption of anti-discrimination and anti-harassment policies; and forced a review of its employment practices and submission of a report to the tribunal. However, the Divisional Court dis- agreed with parts of the tribunal's ruling. It found the tribunal had misinterpret- ed s. 24(1)(a) of the code when it ruled Christian Horizons couldn't rely on the exemption due to the nature of its op- erations. "Christian Horizons is, in fact, primarily engaged in serving the interests of persons identifi ed by their creed, with resultant benefi ts to individuals with de- velopmental disabilities who live in their group homes and the families of those residents," the court wrote. While it upheld the tribunal's awards of general and specifi c damages, the court struck down aspects of the pub- lic interest remedies imposed. It altered the order to require the organization to develop a policy and provide training targeting discrimination based on sexual orientation rather than create a broad anti-discrimination and anti-harassment program. Th e court also deemed it suf- fi cient for the organization to delete the reference to same-sex relationships in its lifestyle and morality statement. As well, the court struck down parts of the order that required a review of employee poli- cies in consultation with the commission and approval by the tribunal. Miedema says the ruling will force many organizations to revisit their hir- ing policies. "Every organization is go- ing to have to look at each job and say, 'Based on the nature of the job and the function of the employee, is it a bona fi de occupational qualifi cation to im- pose faith-based hiring requirements on this employee?' Th is decision pro- vides organizations some insights into what they need to look at in order to do that analysis." For his part, Griffi n notes the deci- sion is in line with principles set out by the Supreme Court of Canada in the 1984 case Caldwell v. Stuart. "You could probably say that in order to be a principal in a Catholic school, you need to be a Catholic," he says. "In order to be a guidance counsellor, you probably need to be a Catholic. You can prob- ably say the same thing about a nurse because the Catholics don't want her handing out condoms. But for the jani- tor, he doesn't need to be Catholic. So I think this case is consistent with prior jurisprudence." LT UN water resolution highlights Canada's poor record: aboriginals A BY ROBERT TODD Law Times United Nations Gen- eral Assembly resolu- tion declaring access to clean water and sanitation a human right may have been targeting developing nations, but First Nations communi- ties in Canada believe the is- sue underscores this country's poor record of providing ad- equate infrastructure to all. Th e resolution was passed in late July with a vote of 122 in favour to none against with 41 abstentions. It calls on "states and international organizations to provide fi nancial resources, build capacity, and transfer technology, particularly to de- veloping countries, in scaling up eff orts to provide safe, clean, accessible, and aff ordable drink- ing water and sanitation for all," according to a UN release. In passing the resolution, the General Assembly noted its "deep concern" that about 884 million people are estimated to be without access to safe drink- ing water, while more than 2.6 billion go without rudimentary sanitation. Connecting the is- sue to the UN's millennium United Kingdom, and the United States. Th e Canadian representative said it was too soon to declare a right to clean water and sanitation due to a lack of "clear international agreement," according to the UN release. First Nations communities resources are in place to hon- our the right to safe drinking water and sanitation." AFN National Chief Shawn Atleo said First Nations have been left to beg for scraps in terms of equipment for safe drinking water and sanitation. "It is time to address the We've seen in the past in other areas that these things can fall on deaf ears from time to time, particularly depending on which government is in power. development goals, the as- sembly noted that 1.5 million children under the age of fi ve die each year due to diseases caused by unclean water and poor sanitation. But for those looking for a sudden impact in Canada, this country was one of those to abstain from voting on the resolution, along with nations such as Australia, Japan, the in Canada view that as a disap- pointment. While the UN res- olution appears to be targeted at developing nations, they believe it can be used to but- tress their own calls for better infrastructure. Th e Assembly of First Nations has called on the government to "respect the resolution and engage in real action with First Na- tions to make sure eff orts and www.lawtimesnews.com long-standing inequity in infrastructure and training to enhance and support safe drinking water systems," Atleo said. "Th e current approach of Canada to focus on regulation will not address these inequi- ties and this is why we are call- ing for a joint eff ort to address underlying problems as the real solution." Toronto lawyer Barry Weintraub, an environmental law practitioner at Rueter Scar- gall Bennett LLP, agrees that the UN resolution can now be used by native groups to lobby gov- ernments on the issue but notes they just may need to be patient for those calls to bear fruit. "We've seen in the past in other areas that these things can fall on deaf ears from time to time, particularly depend- ing on which government is in power," he says. "But over time, it's an important statement of the importance of fresh water, [one] that people that are lack- ing it can point to as something that supports their claim to have clean water." A spokeswoman for Indian and Northern Aff airs Canada said in an e-mail that the gov- ernment believes First Nations "should expect, as do all Ca- nadians, safe, clean drinking See Locals, page 10 PAGE 9

Articles in this issue

Links on this page

Archives of this issue

view archives of Law Times - September 13, 2010