Oil and Vinegar: Resolving Conflicting Rights under the Charter and Ontario's Human Rights Code

• Author: Janet Epp Buckingham
• Pages: 113-144

113

Chapter 3



Rights under the Charter and Ontario’s

Human Rights Code

Janet Epp Buckingham

A. Introduction

Religion has long been a “hot button issue” in Canadian society

-

tion and raising considerable controversy across the country. In

the context of Canadian human rights law, religion enjoys strong

protection but religious rights invariably compete for recognition

alongside other rights protected under Canadian law. Religious

rights and these other rights, of course, make up our tolerant,

free, and just Canadian social fabric but a little like oil and vin-

   

or a powerfully unpleasant mixture with both the oil or the vin-

egar competing for dominance and drowning out the nuances of

the salad beneath. When religious human rights go head-to-head

with other human rights protected by Canadian law, as claimed

under either the Canadian Charter of Rights and Freedoms1 or

provincial human rights codes or both, the results, like those of

a salad dressing, can be either a harmonious blend pleasing to



mouth. This paper unpacks the current state of the law in Can-

ada with respect to the protection of religious rights when they



1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,

1982, being Schedule B to the Canada Act 1982 (UK) 1982, c 11 [Charter].

Janet Epp Buckingham

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logical, and transparent mechanism exists to resolve disputes or



are minimized, competing groups in society are not left margin-

alized, and one can enjoy “une bonne salade à la canadienne.”

Bon appétit.

Ontario’s Human Rights Code2 provides one mechanism for

   Code, every-

one in Ontario has the right to equal treatment in employment,3

accommodation,4 and services5 without discrimination on the

basis of, inter alia, creed. They also have the right to be free from

harassment in relation to accommodation6 and employment7 on

the basis of, inter alia, creed. Anyone who believes they have

    -



to mediate the dispute, failing which a panel will be assigned to

adjudicate the matter.

HRTO decisions must always recognize the broad protection

for freedom of religion and freedom from discrimination on the

basis of religion as set out in the Charter, which guarantees that

governments will protect religious rights and freedoms. The in-

terpretation of the enumerated ground “creed” under the Code

        

in the Charter. Until recently, it appeared that cases addressing

accommodation of religion under the Charter were converging

with cases under provincial human rights codes that dealt with

accommodation of religion. However, a recent Supreme Court of

Canada decision signals that these two streams of similar cases

are diverging.

2 Human Rights Code, RSO 1990, c H.19 [Code].

3 Ibid, s 5(1).

4 Ibid, s 2(1).

5 Ibid, s 1.

6 Ibid, s 2(2).

7 Ibid, s 5(2).



115

  

rights guaranteed by the Charter and rights protected by the

Code. As many rights are protected under both, there is no single

way that these cases arise. A complaint of discrimination on the

basis of creed can be adjudicated under the Code and then be

challenged on the basis that the decision violates a Charter right,

        -

crimination on another enumerated basis can be challenged on

the basis that it violates religious freedom. The Supreme Court of

Canada has resorted to building a framework for resolving such

  Charter but as the parameters

 

stages.

Complaints of discrimination on the basis of creed have tend-

ed to fall into one of several categories: holy days, religious dress,

and conscientious objection to certain types of work or activities.

Previous board and tribunal decisions have set out some broad

guidelines that provide a maximum scope for religious practices

and observances while protecting the health and safety of others.

This paper will address accommodation of religious practices

under these categories and then examine the resolution of com-

peting rights.

 Code

The term “creed” is used in the Code as the prohibited ground

of discrimination relating to “religion.” The Code was originally

enacted in 1962, predating the Charter by two decades. This

term generally refers to a system of beliefs, thereby avoiding the

concept of a religion of one person. The Ontario Human Rights



Creed is interpreted to mean “religious creed” or “religion.” It is

  -

ing both beliefs and observances or worship. A belief in a God