The media reports on the recent decision of the Ontario Divisional Court in Heintz v Christian Horizons are, understandably, a little confusing. Christian Horizons and other Christian ministries are reporting a win. However, Egale (Equality for Gays and Lesbians Everywhere) is also reporting a win. People have been asking me whether this is a win, loss or a draw for Christian ministries. I think it’s a win, but it’s not a simple win, so let’s begin at the beginning and then take a brief look at the Divisional Court decision (which might yet be appealed to the Court of Appeal by either Christian Horizons, Connie Heintz or the Ontario Human Rights Commission at some time within the next 30 days).
In the fall of 2000 Connie Heintz left her employment with Christian Horizons (CH) after 5 years as a community living support worker providing care and support, in a group home environment, for individuals with developmental disabilities. Ms. Heintz self-identifies as a Christian, who shortly before she left CH entered into a same-sex relationship in violation of the morality and lifestyle statement she had agreed to prior to accepting employment with the Christian ministry.
In January 2001, Ms. Heintz filed a complaint with the Ontario Human Rights Commission alleging that she had been discriminated against on the basis of her sexual orientation. A hearing by the Ontario Human Rights Tribunal (OHRT) commenced on April 3, 2006 and concluded after 40 days (intermittent) on May 29, 2007. The decision of the OHRT was issued April 15, 2008.
On December 14, 15 and 16, 2009, the Ontario Superior Court of Justice, Divisional Court, heard the appeal of the OHRT decision. Submissions were presented to the court by counsel for: Christian Horizons; the Canadian Council of Christian Charities; the Ontario Conference of Catholic Bishops; The Evangelical Fellowship of Canada; the Ontario Human Rights Commission; and, Egale Canada Inc. Ms. Heintz was present but did not address the court.
The Divisional Court released its decision late on the afternoon of Friday, May 14, 2010.
The decision is divided into 4 issues, preceded by a background introduction. Key to note from the introduction is the preliminary decision of the court not to permit argument on the issue of a constitutional challenge to section 24(1)(a) of the Ontario Human Rights Code. Section 24(1)(a) reads:
The right under section 5 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; [emphasis added]
Section 5 says:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
These sections are the crux of the legal component of the dispute. Section 24(1)(a) covers ground similar to that provided for in the human rights legislation of other provinces, but the wording is slightly different from province to province. Briefly, the provision makes an exception to human rights legislation which otherwise forbids discrimination in employment. For religious charities (among others), they are permitted to selectively hire and retain staff who share their beliefs. At issue in this case was whether such organizations can maintain that standard and serve people other than those who share their beliefs.
The constitutional challenge was intended to ensure the Ontario provision’s consistency with interpretation of the Supreme Court of Canada in regard to the other provinces.
This proposed argument was, however, rejected for the technical legal reason that a constitutional challenge must be presented at the initial trial or hearing, in this case before the OHRT. This was not done because, quite reasonably, CH felt the matters in issue had been previously decided in 1992 in the Parks v Christian Horizons decisions of the Divisional Court and the predecessor tribunal to the OHRT. That case dealt with workers living in a common law relationship in violation of the lifestyle and morality expectations.
Issue 1: Did the Tribunal err in its Interpretation of S. 24(1)(a)?
The Divisional Court determined that the standard of review for this component of the OHRT decision was whether the OHRT made a ‘correct’ decision based on the law. The court determined that the OHRT did not make a correct decision on this point and proceeded to outline the correct decision which is substituted for that of the OHRT. In layman’s terms, this simply means that the OHRT’s decision had to be the right one (in appeals, higher courts demand a higher or lower standard of ‘correctness’ from the court which heard the initial trial depending on the issue. More on this point below).
The assessment of the purpose of an organization identified in s. 24(1)(a) is subjective, i.e. to be decided by the organization. In this case, CH is an organization where co-religionists have associated for a common action which would not exist without their association. Their association is based on a common statement of faith and common agreement to the values and actions of that faith (lifestyle and morality policy).
Issue 2: Was the Tribunal’s decision rejecting the reasonable and bona fide occupational defence reasonable?
The Court determined that the standard of review for this component of the OHRT decision (dealing with the last 15 words of s. 24(1)(a) above) was whether the OHRT’s conclusions were reasonable based on the evidence before the OHRT (not whether the OHRT was correct in its interpretation of the law as under issue 1). This is a different standard than correctness of application of the law, leaving greater leeway for interpretation (or in my opinion, misinterpretation) of the law by the OHRT, and it’s not clear why the court shifted the standard of review. This framing of the question by the court resulted in considering the specific job Ms. Heintz was performing to assess whether or not the responsibilities of that job could be performed by someone in a same-sex relationship.
This point of assessment ignores the significance of the faith-based nature of the organization, including the relationships between the person doing that job and her co-workers in a religious organization where everyone had agreed to a common statement of faith and had common expectations in regard to the resulting values and behaviour associated with that faith (lifestyle and morality policy) as a group of co-religionists. In this regard, I think the Divisional Court has erred. The Supreme Court of Canada has previously disagreed with the approach taken by the Divisional Court on this point. In the SCC’s 2009 decision in Alberta v Hutterian Brethren, Chief Justice McLachlin affirmed earlier decisions of the court in Trinity Western University (2001) and Amselem (2004) that established that the courts are not to enquire into the non-harmful practices of a religious person or group of co-religionists once it is established that those practices, or behavioural expectations, have a connection to the sincerely held beliefs of the individual or group. At the heart of the issue in Trinity Western was a similar lifestyle and morality policy.
The Divisional Court determined that for the “qualification, to be valid, [it] 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.” On this basis, the court decided that CH had not properly “considered whether the prohibition on same-sex relationships was necessary for the effective performance of the job” and accordingly it was reasonable (not necessarily correct) for the OHRT to conclude that there was discrimination on the basis of sexual orientation.
Issue 3: Was there evidence to support the finding that Christian Horizons permitted the existence of a poisoned workplace?
The OHRT concluded that CH’s offer of counseling for Ms. Heintz to sort out whether she was going through a personal crisis or sincerely a lesbian, along with certain other actions alleged of CH staff, constituted discrimination and created a “poisoned work environment.” The Divisional Court stated that negative treatment of someone on a prohibited ground under s. 5 was not subject to the s. 24(1)(a) exemption.
Issue 4: Was the remedy reasonable?
The Divisional Court replaced most of the remedial order of the OHRT with its own thoughts, particularly noting that several of the “public interest remedies” imposed by the OHRT were “overreaching” the jurisdiction of the OHRT. The decision on remedies is outlined below:
- General and Special damages in the amount of $23,000 for discrimination in employment and poisoned work environment
- CH is to develop a policy and provide training for its staff that targets discrimination on the basis of sexual orientation
- The reference to same-sex relationships is to be struck from CH’s lifestyle and morality policy (based on the OHRT’s conclusions that CH had not given proper consideration to whether this was required for the performance of the job. I would submit that it must be removed, but may be re-inserted should CH review the performance requirements for all staff positions and conclude that not engaging in a same-sex relationship is required for the performance of the job. As noted above, I also submit that the court made an incorrect decision on this point and may itself have engaged in a remedy not available to it as this is inconsistent with the Supreme Court of Canada’s decision in Amselem.)
All of the remaining portions of the remedial order of the OHRT were “deleted” by the court and are of no force or effect. Accordingly, the OHRT, the Ontario Human Rights Commission and Connie Heintz do not retain jurisdiction to require anything further of CH or to review their policies, etc. as the OHRT had required in its order.
Apart from the dispute on Issue 2 – where, I think the court’s conclusion is in error – and the resulting conclusion on striking same-sex relationships (at least initially) from the lifestyle and morality statement of CH, the decision represents a significant win for religious ministries that are engaged in serving non co-religionists. This means that CH or other religious ministries may require that employees acknowledge their agreement with an organizational statement of faith. They may also require agreement with a code of conduct based on that faith. This is a significant affirmation of the right of people to form charities to do good works from a faith perspective.
The decision is also instructive as to how religious ministries may avoid similar disputes in the future. There is clear recognition that religious organizations may be selective in their hiring practices to ensure the environment of co-religionists working together.
What appears to be required of religious organizations is a review and description of each position to verify that the lifestyle expectations of that faith community are required for the performance of the job. (As noted above, I disagree with the court’s conclusion on this point. At the same time, it is generally a good practice to have job descriptions and to verify the importance of the shared faith and practice of staff in those descriptions.) However, the court’s reasoning is not simple to follow and I will consult further with others.
In the context of Canadian litigious society we must be mindful that one can make oneself secure from challenge, but one cannot make oneself challenge proof.