THE SPECIAL ORGANIZATION EXEMPTION, NARROW AND BROAD.

• Author: Rosen, Zachary

I INTRODUCTION II WHAT'S STRANGE ABOUT SECTION 18? III CAN THE BROAD READING BE JUSTIFIED? IV TIPTOEING TOWARDS RATIONAL CONNECTION V APPLYING RATIONAL CONNECTION VI CONCLUSION I INTRODUCTION

There is something strange about s. 18 of the Ontario Human Rights Code. It provides an exemption to Part 1 of the Code for any "religious, philanthropic, educational, fraternal or social organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination." The exemption states that the Code is not infringed when such an organization restricts membership to the group it exists primarily to serve. Since I will be referring to similar exemptions from other jurisdictions, this type of exemption can be called a special organization exemption. (1)

The problem is not with the existence of this sort of an exemption in the Code. On the contrary, the exemption itself is intuitively very plausible. What is strange is how broadly this kind of exemption has been interpreted. In Ontario, the case usually cited for the authoritative reading of s. 18 is a 1995 decision from the Human Rights Tribunal of Ontario (HRTO) called Martinie v Italian Society of Port Arthur. (2) The Martinie test has three components: (1) whether the entity is a religious, educational, fraternal, or social institution or organization; (2) whether the institution or organization is primarily engaged in serving the interests of persons identified by a prohibited ground; and (3) whether membership or participation in the institution or organization is restricted to those identified by that prohibited ground. (3) The application of s. 18 provides a complete defence; the Code prohibitions simply do not apply to an organization that falls under the s. 18 umbrella.

The latitude afforded by the Martinie test is obvious on its face. Unlike the legal tests that have been adopted for other human rights code exemptions, the test from Martinie is entirely descriptive rather than justificatory. In other words, the test only requires that a respondent organization is the sort of entity described by the plain words of the section. There is no requirement that the organization justify, even minimally, its discriminatory policy. Throughout this paper, I refer to a test that includes a requirement to justify as a narrow version of a special organization exemption, and to the current test as the broad version.

As I noted above, the proposition underlying s. 18 is intuitively plausible. Surely it cannot be prohibited discrimination for a synagogue to admit only Jews or for a campus sorority to admit only women. But explaining why these exemptions should exist is not always so simple. Importantly, the descriptive nature of the test makes it unnecessary even to ask what the exemption is for. For this reason, when difficult cases arrive, the Tribunal is left without the resources to notice them.

One need only imagine a more difficult case to feel some discomfort with the deference that s. 18 shows. For example, while a synagogue must be allowed to admit only Jews into the congregation, what if it offered after-school religious instruction only to Jewish boys? And while a campus sorority must surely be allowed to exclude a male applicant, what about a transgender applicant whom the sorority members view as male? When applied to difficult cases, the broad version of the section becomes troublesome.

In this paper, I consider whether special organization exemptions should require parties relying on the section to show a rational connection between their policy and their legitimate purposes. I focus particularly on s. 18 of the Ontario Code. A requirement to show rational connection would not be very onerous. Consider again the "easy" example of the synagogue which admits only Jewish congregants; one can easily imagine the synagogue saying something like, "We are a religious organization that exists to serve the Jewish community, and to foster religious expression and tradition within that community. Restricting access to our community is rationally connected to those goals." Similarly, the sorority will say, "We are a social club that exists to provide support and community and residence to women on campus, and restricting our membership to women is rationally connected to those goals." These simple examples show that requiring rational connection does not undermine the special organization exemption, at least at first glance. The easy cases will be able to show a rational connection.

This paper proceeds as follows. In Part II, I ask what is unusual about the special organization exemption. To answer this question, I explore the general approach taken to the interpretation of human rights codes, and I investigate the origins of the broad reading of the special organization exemption. I ask whether these sources reveal a compelling justification for the broad reading of the exemption. In Part III, I try and imagine what the most plausible justification for the broad version of the exemption might be. I argue that any such justification will have to identify some differential feature of the special organization exemption. I describe two possible arguments of this kind.

In Part IV, I pick up on somewhat forgotten jurisprudence that hints at a more restrictive vision of s. 18. In at least one case, a majority of the Supreme Court of Canada tiptoed towards imposing a justificatory requirement for special organization exemptions. Finally, in Part V, I apply my proposed test to a hard case. I focus on the case of HS v The Private Academy, (4) in which a private Christian school was allowed to refuse to admit a child because the child's parents were a same-sex couple. I consider whether a requirement to show rational connection would have changed the analysis in that instance, and if so, whether that change is desirable.

II WHAT'S STRANGE ABOUT SECTION 18?

In this paper, I argue that the broad reading of the special organization exemption makes it an outlier in the human rights codes. To see why, it is important to understand how human rights legislation has generally been interpreted. The human rights codes are recognized as "public and fundamental law," (5) which can only be diminished by clear statutory language. (6) The Supreme Court discussed the proper interpretation of human rights codes in OMalley. As McIntyre J explained:

It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment, and give to it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary--and it is for the courts to seek out its purpose and give it effect. (7) This interpretive approach is meant to recognize the importance of the public policy that is advanced by the human rights codes. The Supreme Court has repeatedly emphasized that "human rights legislation has a unique quasi-constitutional nature and ought to be interpreted in a liberal and purposive manner in order to advance the broad policy considerations underlying it." (8) As a result, the positive provisions of the human rights codes are generally interpreted liberally, and their exceptions are limited wherever possible. Another statement of the principle can be found in Ontario (Human Rights Commission) v Etobicoke: under the Code, non-discrimination is the general rule and permitted discrimination is the exception. (9) This interpretive approach is so well-recognized that the Court has described it as "axiomatic." (10)

The directive to interpret the human rights codes liberally necessarily means that exceptions to the codes are construed narrowly. Consider, for example, the approach that has been adopted for s. 14(1) of the Ontario Code. Like s. 18, s. 14 contains an exemption to the general operation of Part I of the Code. The s. 14 exemption is for "special programs" that have the purpose of ameliorating prior disadvantages in particular groups. The text of s. 14 reads as follows:

14(1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I. (11) The scope of this section was at issue in Roberts. (12) There, the impugned program was a government scheme for providing disabled people with money to purchase medical aids. The claimant was a 71-year-old visually impaired man who had applied for aid to purchase an implant. But the government program only made that particular implant available to applicants below the age of 18. Roberts alleged discrimination on the basis of age. Ontario argued that since it was running an ameliorative program, it was exempted from the prohibition on age discrimination under Part 1 of the Code.

The Ontario Court of Appeal held that the exemption did not apply to protect Ontario's program from the claim. Justice Weiler, writing for a majority of the Ontario Court of Appeal, observed that the s. 14 exemption was intended to protect ameliorative programs from attacks by non-disadvantaged persons. The section was not intended to allow the government to distinguish arbitrarily between the disadvantaged persons who were meant to be the beneficiaries of the program--in this case, between a visually impaired young person and a visually impaired elder person. Justice Weiler's solution was to require that the government show a rational connection between its valid purpose and its...