Human Rights Commission (Ont.) et al. v. Christian Horizons, (2010) 264 O.A.C. 82 (DC)

• Judge: Jennings, Lederman and Swinton, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 14, 2010
• Jurisdiction: Ontario
• Citations: (2010), 264 O.A.C. 82 (DC);2010 ONSC 2105

HRC v. Christian Horizons (2010), 264 O.A.C. 82 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MY.081

Ontario Human Rights Commission (the Commission/respondent) v. Connie Heintz (complainant/respondent) and Christian Horizons (respondent/appellant)

(221/08; 2010 ONSC 2105)

Indexed As: Human Rights Commission (Ont.) et al. v. Christian Horizons

Court of Ontario

Superior Court of Justice

Divisional Court

Jennings, Lederman and Swinton, JJ.

May 14, 2010.

Summary:

Christian Horizons, which identified itself as a religious organization, operated residential homes within an evangelical environment for developmentally disabled individuals. Christian Horizons' employee contracts included a Life Style and Morality Statement (L&M Statement) which prohibited inappropriate behaviour, including adultery, pre-marital sex, reading or viewing pornographic material, homosexual relationships, theft, fraud, etc. Four years after signing the L&M Statement, Heintz, an employee, came to an understanding of her sexual orientation and entered into a same sex relationship. Thereafter, Heintz experienced difficulties in the workplace. She launched a discrimination complaint on the basis of sexual orientation and claimed that Christian Horizons permitted the existence of a poisoned workplace. Christian Horizons conceded that it was discriminating against Heintz contrary to s. 5(1) the Human Rights Code (Ont.), but claimed that it was entitled to rely on the special exemption provision in s. 24(1)(a) of the Code. Section 24(1)(a) provided that s. 5(1) was not infringed where a religious organization that was primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employed only, or gave preference in employment to, persons similarly identified if the qualification was a reasonable and bona fide qualification because of the nature of the employment. The Human Rights Tribunal of Ontario found that Christian Horizons was a religious organization, however, while Christian Horizons provided opportunities for Evangelical Christians to live out a religious calling, the totality of the evidence and a plain reading of s. 24(1)(a) led to the conclusion that it was not primarily engaged in serving the interests of Evangelical Christians. Rather, it was serving the interests of people with developmental disabilities, therefore, it could not claim the exemption in s. 24(1)(a) of the Code. In the alternative, the Tribunal found that in adopting the qualification on employment imposed by the L&M Statement, Christian Horizons had not satisfied the bona fide occupational qualification (BFOQ) requirement. Further, the Tribunal found that Christian Horizons had created a poisoned work environment in its treatment of Heintz after it became known that she was lesbian. The court assessed damages and made orders of a systemic nature, including a requirement that Christian Horizons develop and adopt an anti-discrimination and anti-harassment policy and training program and cease from using the L&M Statement as a condition of employment, etc. Christian Horizons appealed.

The Ontario Divisional Court allowed the appeal in part. The court held that the Tribunal erred in its interpretation and application of s. 24(1)(a) when it found that Christian Horizons could not rely on the exemption because of the nature of its activity and the clientele served. Rather, the matter had to be looked at from the perspective of the group. However, the Tribunal applied the correct test for the BFOQ defence, and, given the evidence, it was reasonable for the Tribunal to decide that Christian Horizons had not discharged its burden of showing that the qualification that its support workers adhere to the L&M Statement by not participating in same sex relationships was reasonable and bona fide because of the nature of that employment. As to the poisoned work environment allegation, the court held that the Tribunal correctly concluded that this infringement of the Code was not subject to the s. 24(1)(a) exemption for religious organizations. The Tribunal's conclusions on the poisoned work environment were tenable and reasonable and were not disturbed by the court. The court held, however, that the Tribunal's remedial order was overbroad and varied the order such as to require Christian Horizons to develop a policy and provide training for its employees and managers that targeted discrimination on the basis of sexual orientation. Also, as to the types of prohibited behaviour only the requirement that employees not engage in same sex relationships had to be deleted from the L&M statement as the other forms of behaviour were not in issue in this case.

Civil Rights - Topic 953

Discrimination - Sexual orientation - Homosexuals (incl. same-sex couples) - [See Civil Rights - Topic 998 , Civil Rights - Topic 1161 , Civil Rights - Topic 1184 and first Civil Rights - Topic 1185 ].

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Bona fide or reasonable occupational requirement or qualification - Christian Horizons was a religious organization which operated residential homes within an evangelical environment for developmentally disabled individuals - All employees had to sign a Lifestyle and Morality (L&M) Statement which set out conduct that Christian Horizons deemed to be incompatible with effective Christian counselling ideals, standards and values - Prohibited behaviour included homosexual relationships - Christian Horizons claimed it could rely on s. 24(1)(a) of the Human Rights Code to exempt it from the discrimination provisions of the Code - The Human Rights Tribunal held that Christian Horizons could not rely on the exemption, and even if it could, the Tribunal would have found that Christian Horizons did not meet the final element in s. 24(1)(a) (i.e., the bona fide occupational qualification (BFOQ)) - Christian Horizons appealed - The Ontario Divisional Court held that although the Tribunal erred in its interpretation and application of s. 24(1)(a) respecting whether Christian Horizons qualified for an exemption, the Tribunal applied the correct test for the BFOQ defence, and, given the evidence, it was reasonable for the Tribunal to decide that Christian Horizons had not discharged its burden of showing that the qualification that its support workers adhere to the L&M Statement by not participating in same sex relationships was reasonable and bona fide because of the nature of that employment - See paragraphs 79 to 106.

Civil Rights - Topic 1161

Discrimination - Remedies - General - Christian Horizons was a religious organization which operated residential homes within an evangelical environment for developmentally disabled individuals - All employees were required to sign a broadly worded Lifestyle and Morality (L&M) Statement which set out conduct that Christian Horizons deemed to be incompatible with effective Christian counselling ideals, standards and values - It prohibited, inter alia, adultery, pre-marital sex, reading or viewing pornographic material, theft, fraud, homosexual relationships, etc. - An employee, who realized that she was a lesbian, alleged discrimination on the basis of sexual orientation - The Human Rights Tribunal (Ont.) allowed her claim, assessed damages and imposed several "public interest remedies" on Christian Horizons, including an order that it develop and adopt an anti-discrimination and anti-harassment policy and training program - Christian Horizons appealed - The Ontario Divisional Court held that the order was overreaching - The court varied the order such as to direct Christian Horizons to develop a policy and provide training for its employees and managers that targeted discrimination on the basis of sexual orientation - While the requirement that employees not engage in same sex relationships had to be deleted from the L&M Statement, the prohibition respecting other behaviour was not in issue in this case - The court also deleted other paragraphs of the order which it considered overbroad - See paragraphs 113 to 120.

Civil Rights - Topic 1184

Discrimination - Exemptions or exceptions - General - Nonprofit, charitable, educational, religious organizations, etc. - General (incl. what constitutes) - Christian Horizons was a religious organization which operated residential homes within an evangelical environment for developmentally disabled individuals - All employees were required to sign a Lifestyle and Morality (L&M) Statement which prohibited certain conduct, including homosexual relationships - Four years after signing the L&M Statement, an employee realized that she was a lesbian - She thereafter experienced difficulties in the workplace - She claimed that Christian Horizons permitted the existence of a poisoned workplace - The Human Rights Tribunal (Ont.) found that Christian Horizons infringed the employee's right to be free from discrimination in employment by creating or permitting a poisoned work atmosphere, and by failing to take necessary measures to ensure that she did not have to endure discrimination at work because of her sexual orientation contrary to s. 5 of the Human Rights Code - Christian Horizons appealed, claiming an exemption under s. 24(1)(a) of the Code - The Ontario Divisional Court held that the Tribunal correctly found that this infringement of the Code was not subject to the s. 24(1)(a) exemption for religious organizations - There was evidence to support the Tribunal's findings - The court was not to retry the matter but simply determine whether the Tribunal's decision was reasonable, based on the evidence - As there was evidence in the record to support the Tribunal's conclusions, the decision was tenable and was reasonable - Accordingly, the court rejected this ground of appeal - See paragraphs 107 to 112.

Civil Rights - Topic 1185

Discrimination - Exemptions or exceptions - General - Nonprofit, charitable, educational, religious organizations, etc. - Preferences by - General - Christian Horizons was a religious organization which operated residential homes within an evangelical environment for developmentally disabled individuals - An issue arose as to whether Christian Horizons could rely on the exemption provisions of s. 24(1)(a) of the Human Rights Code to justify discriminating against an employee on the basis of sexual orientation - Section 24(1)(a) provided that the discrimination provision of the Code was not infringed where "(a) a religious ... organization that is primarily engaged in serving the interests of persons identified by their ... creed ... employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification [BFOQ] because of the nature of the employment" - The Human Rights Tribunal held that Christian Horizons could not rely on the exemption because it was not primarily engaged in serving the interests of Evangelical Christians - Rather, it was serving the interests of people with developmental disabilities - Christian Horizons appealed - The Ontario Divisional Court held that the Tribunal erred in its interpretation and application of s. 24(1)(a) when it found that Christian Horizons could not rely on the exemption because of the nature of its activity and the clientele served - Rather, the matter had to be looked at from the perspective of the group - The language and purpose of s. 24(1)(a) required an analysis of the nature of the particular activity engaged in by a religious organization to determine whether it was seen by the group as fundamentally a religious activity - That determination had be followed by an assessment of whether that activity furthered the religious purposes of the organization and its members, thus serving the interests of the members of the religious organization - If the organization fell within the exemption, a BFOQ assessment had to follow - See paragraphs 38 to 78.

Civil Rights - Topic 1185

Discrimination - Exemptions or exceptions - General - Nonprofit, charitable, educational, religious organizations, etc. - Preferences by - General - Section 24(1)(a) of the Ontario Human Rights Code provided that "The right under section 5 [of the Code] to equal treatment with respect to employment is not infringed where, (a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment." - The Ontario Divisional Court, in interpreting this provision examined the legislative history - The court stated that "Thus, the legislative history shows that the Legislature has, over the years, narrowed the exception from the equal employment provision in s. 5 for religious institutions. Nevertheless, there has been a longstanding legislative decision to provide an exception for religious organizations, now if they are primarily engaged in serving the interests of their religious community, where the restriction is reasonable and bona fide because of the nature of the employment" - See paragraphs 47 to 52.

Civil Rights - Topic 1185

Discrimination - Exemptions or exceptions - General - Nonprofit, charitable, educational, religious organizations, etc. - Preferences by - General - Section 24(1)(a) of the Ontario Human Rights Code provided that "The right under section 5 [of the Code] to equal treatment with respect to employment is not infringed where, (a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment" - The Ontario Divisional Court interpreted s. 24(1)(a) - The court rejected an argument that on the plain wording of s. 24(1)(a) the provision was not available to religious organizations that were engaged in "public life" because such organizations were no longer "primarily" serving the interests of their creed (i.e., that the provision was meant to exempt religious organizations from s. 5 of the Code only if the religious organization was serving a particular religious community) - The court noted that the words of s. 24(1)(a) made no reference to a public/private distinction and it was inappropriate to read one in - See paragraphs 42 to 46.

Civil Rights - Topic 1185

Discrimination - Exemptions or exceptions - General - Nonprofit, charitable, educational, religious organizations, etc. - Preferences by - General - Section 24(1)(a) of the Ontario Human Rights Code provided that "The right under section 5 [of the Code] to equal treatment with respect to employment is not infringed where, (a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment" - The Ontario Divisional Court, in interpreting s. 24(1)(a), discussed the purpose of the provision - See paragraphs 57 to 67.

Civil Rights - Topic 1185

Discrimination - Exemptions or exceptions - General - Nonprofit, charitable, educational, religious organizations, etc. - Preferences by - General - Section 24(1)(a) of the Ontario Human Rights Code provided that "The right under section 5 [of the Code] to equal treatment with respect to employment is not infringed where, (a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment." - The Ontario Divisional Court held that there was a genuine ambiguity in the statute especially when the French and English versions were read together, therefore, Charter values could be used as an interpretive principle - See paragraphs 53 to 56 and 68 to 72.

Civil Rights - Topic 1189

Discrimination - Exemptions or exceptions - General - Differentiation on reasonable and bona fide grounds - [See Civil Rights - Topic 998 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - [See Estoppel - Topic 378 ].

Estoppel - Topic 378

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Parties - Heintz complained that she was discriminated against on the basis of sexual orientation by Christian Horizons - Christian Horizons claimed that it could rely on the exemption for religious organizations in s. 24(1)(a) of the Human Rights Code - Christian Horizons raised issue estoppel, claiming that the issue was decided several years earlier in another case before the Tribunal - Christian Horizons argued that the Commission was a party to the earlier proceeding and in this proceeding Heintz was a privy of the Commission, as her interests were the same (i.e., the proceedings involved the same parties) - The Tribunal held that issue estoppel did not apply - Christian Horizons appealed - The Ontario Divisional Court held that the Tribunal did not err - Heintz was an independent party to the current proceedings and was not a party to the earlier proceedings - Therefore, the first element of the test for issue estoppel was not met - Similarly, the test for abuse of process was not met, as it had not been shown that the current proceeding would violate principles of fundamental fairness or be oppressive or vexatious - Further, the court would not interfere with the Tribunal's exercise of its discretion when it concluded that even if Christian Horizons had established the elements for issue estoppel, it would have exercised its discretion to hear the complaint - See paragraphs 32 to 37.

Estoppel - Topic 386

Estoppel by record - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Estoppel - Topic 378 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict) - [See fifth Civil Rights - Topic 1185 ].

Cases Noticed:

Parks v. Christian Horizons (No. 1) (1992), 16 C.H.R.R. D/40 (Ont. H.R.T.), refd to. [para. 6].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

ADGA Group Consultants Inc. v. Lane et al. (2008), 240 O.A.C. 333; 91 O.R.(3d) 649 (Div. Ct.), refd to. [para. 22].

Alemu v. R. (1999), 99 D.T.C. 714 (Tax C.C.), refd to. [para. 26].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 33].

McKenzie Forest Products Inc. v. Human Rights Commission (Ont.) et al. (2000), 131 O.A.C. 165; 48 O.R.(3d) 150 (C.A.), refd to. [para. 35].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 38].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 42].

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, refd to. [para. 45].

Caldwell v. Stuart - see Caldwell v. Catholic Schools of Vancouver Archdiocese.

Caldwell v. Catholic Schools of Vancouver Archdiocese, [1984] 2 S.C.R. 603; 56 N.R. 83, refd to. [para. 58].

Brossard (Town) v. Commission des droits de la personne du Québec and Laurin, [1988] 2 S.C.R. 279; 88 N.R. 321; 18 Q.A.C. 164, refd to. [para. 59].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 69].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 70].

Human Rights Commission (Ont.), Dunlop, Hall and Gray v. Borough of Etobicoke, [1982] 1 S.C.R. 202; 40 N.R. 159, refd to. [para. 80].

Human Rights Commission (Ont.) v. London Monenco Consultants Ltd. et al. (1992), 57 O.A.C. 222 (C.A.), refd to. [para. 103].

Statutes Noticed:

Human Rights Code, R.S.O. 1990, c. H-19, sect. 5(1) [para. 12]; sect. 24(1)(a) [para. 13].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), generally [para. 38].

Counsel:

Barbara Grossman, Adrian Miedema and Christina Hall, for the appellant, Christian Horizons;

Raj Dhir and Anthony D. Griffin, for the respondent, Commission;

Connie Heintz, in person;

William Sammon, for the intervenor, The Canadian Council of Christian Charities;

Iain T. Benson, for the intervenor, Ontario Conference of Catholic Bishops;

Peter Jervis and Tudor Carsten, for the intervenor, The Evangelical Fellowship of Canada;

Cynthia Petersen and Charlene Wiseman, for the intervenor, Egale Canada Inc.

This appeal was heard at Toronto, Ontario, on December 14-16, 2009, before Jennings, Lederman and Swinton, JJ., of the Ontario Divisional Court. The following decision was delivered by the court on May 14, 2010.