Ontario Board of Inquiry
ONTARIO
CHRR Doc. 82-081
Rosario Morra Complainant
v.
Metropolitan Separate School Board and William Callaghan Respondents
Place: Toronto, Ontario
Before: Ontario Board of Inquriy, Ian A. Hunter
Appearances by: Peter Jacobsen, Counsel for Rosario Morra and the Ontario Human Rights Commission Norman MacL. Rogers, Counsel for the Metropolitan Separate School Board and William Callaghan
RELIGION AND CREED — discriminatory treatment in employment — employment denied — definition of creed — EDUCATION — requirement to support religious education — employee required to be supporter of separate school — INTERPRETATION OF STATUTES — definition of "creed" — DISCRIMINATION — adverse effect discrimination
Summary: The Board of Inquiry rules that no discrimination occurred when Rosario Morra was refused a caretaker's job by the Metropolitan Separate School Board because he was a Roman Catholic but not a separate school supporter with respect to his school taxes. The School Board requires that all staff hired by them be separate school supporters if they are eligible by law to be so. Mr. Morra was eligible by law, by virtue of being a Catholic, but he had not elected to pay his taxes to the separate school system because at the time of enrolling his youngest children in school there was no separate school in his neighbourhood.
The Ontario Human Rights Commission argued on behalf of the complainant that Mr. Morra was discriminated against because of his creed, in that, had he been a Protestant, the School Board's requirement would not apply and he would have been employed by them. The Commission argued that Mr. Morra was a victim of indirect discrimination because an additional requirement was made of him because of his religion and he was refused employment when he did not meet it.
The Board of Inquiry rejects this argument and finds that the School Board's requirement was not imposed because of creed. Mr. Morra was refused employment because of his decision not to direct his taxes to the Separate School Board and this was a free decision he made which had nothing to do with his religion. The School Board's motive was economic, not religious. The Board of Inquiry dismisses the complaint.
1On 15 April 1981 I was appointed a Board of Inquiry by the Honourable Robert Elgie, Minister of Labour, to hear and determine the complaint of Mr. Rosario Morra of Toronto that he had been discriminated against in respect of employment by the Metropolitan Separate School Board and Mr. William Callaghan, the board's coordinator of non-teaching personnel. A hearing was held in Toronto on 30 September 1981.
2At the outset, I should like to record my appreciation to both counsel, not only for their able assistance on the legal issues in what is an important case of first impression, but also for the manner in which they chose to proceed (i.e., by agreed statement of facts) which had the effect of expediting the hearing and clarifying the issues.
3The agreed-to statement of facts, jointly submitted by the parties, was as follows:
On September 9, 1980 the complainant, Mr. Rosario Morra, made a complaint to the Ontario Human Rights Commission against the Metropolitan Separate School Board, their servants and agents and Mr. William Callaghan, coordinator of non-teaching personnel on the grounds that he had been discriminated against on the basis of creed contrary to s. 4(1)(a) and (c) of the Ontario Human Rights Code, R.S.O. 1970, c. 318, as amended.
As of September 8, 1980 the complainant had seven children including eleven-year-old twins and other children aged nineteen, twenty-one, twenty-two, twenty-three and twenty-eight years old. In the eleven years prior to moving to his current location on Barrington Avenue he had sent his children to Separate Schools and was a Separate School supporter. When the family moved to Barrington Avenue in 1967 there was no Separate Elementary School in the vicinity. The St. Bernadette Separate School was built some three years later in 1970. As a result his elementary school aged children had attended Secord Public School for three years prior to there being a Separate School in the vicinity of his home. The children of the complainant did not leave the public school system when the Separate School was built because they wished to continue in the school which was familiar to them, their family, and around which their social life revolved.
The complainant first applied for a position as a caretaker with the Metropolitan Separate School Board in 1969.
In a letter dated May 17, 1971 from Mr. R.B. Zarebelny the non-teaching personnel officer of the Metropolitan Separate School Board, the complainant Mr. Morra was asked to confirm his interest in a job as a caretaker with the school board. Attached to the letter was a copy of the Staff Qualifications as set out in paragraph 6 below. Mr. Morra confirmed his continued interest in the job, in writing to the Metropolitan Separate School Board.
In 1977 the application of Mr. Morra, the complainant, again came to the attention of the Metropolitan Separate School Board. At this time Mr. Morra was told that he was not eligible for full-time employment.
The policy relating to the refusal to hire Mr. Morra emanated from a policy decision made by the Metropolitan Separate School Board in October, 1969. The minutes of this meeting state at p. 1324:
Staff Qualifications
That commencing November 1, 1969,
(a) all teaching personnel shall be Catholics unless otherwise approved by the Board,
(b) all Board personnel hired subsequent to October 31, 1969 shall be required to be Separate School supporters if eligible by law to be a Separate School supporter.
(c) notwithstanding item (b), all staff on the administrative Council shall be Separate School supporters.
Mr. Morra again applied to the Metropolitan Separate School Board in June 1980 and was again refused employment because he was not a Separate School supporter although he was eligible by law to be a Separate School supporter.
On August 25, 1980 Mr. Morra returned to the personnel office and spoke to Mr. William Callaghan, the coordinator of non-teaching personnel and was again told he was refused the job because he was not a Separate School supporter although he was eligible by law to be a Separate School supporter.
It is agreed that the complainant has met all the qualifications for the job of caretaker except for "eligibility" determined on the basis of his failure to be a Separate School supporter. It is further agreed that Mr. Callaghan, from his knowledge of the complainant, would hire the complainant, and states there are no problems with the complainant as a candidate other than his "eligibility."
Of the caretakers currently on staff, the vast majority are both eligible, meaning "Roman Catholic" within the meaning of s. 1(1)(46) of the Education Act, 1974 and supporters of the Separate School system through their taxes. There are, however, some caretakers who are not Roman Catholic and therefore are not eligible under s. 116(3) of the Education Act, 1974 to become Separate School supporters. These caretakers are not required to be Separate School supporters.
It is agreed that the policy as set out in the Staff Qualifications in paragraph 6 above has been in place since November 1, 1969. The reason for this policy is that the Metropolitan Separate School Board is dependent on two sources of revenue, one being the taxes paid to it by its supporters and the other being the grants paid by the Ontario government. In order to meet, in whole or in part, the standards of remuneration paid by the public school boards, the Metropolitan Separate School board requires its employees, if eligible, to elect to pay taxes to it.
The Metropolitan Separate School Board employs some fifteen assessors whose job it is to persuade residents of Metropolitan Toronto who are shown on the assessment roles as being Roman Catholic to support the School Board by transferring their assessment from public school support to Separate School support. It is a matter of public policy as set out in s. 116 of the Education Act that any Roman Catholic who so wishes may help to support, through his taxes, the Separate School Board in the municipality in which he resides.
On the above agreed facts it is therefore agreed that there was a denial of employment and the denial was for the reason as set out in paragraph 8 of this agreed statement of facts.
4The parties also agreed on the precise issue to be determined by this Board of Inquiry: viz. "the sole issue to be determined is whether the refusal of the Respondents to employ the Complainant amounts to a violation, in law, of s. 4(1)(a) and (b) of the Ontario Human Rights Code."
5The relevant sections of the Code are as follows:
4(1) No person shall,
(a) refuse to refer or to recruit any person for employment;
(b) dismiss or refuse to employ or to continue to employ any person;
... because of ... creed ... of such person or employee.
4(7) The provisions of this section relating to limitation or preference in employment because of ... creed ... do not apply to any exclusively religious, philanthropic, educational, fraternal or social organization that is not operated for private profit, or to any organization that is operated primarily to foster the welfare of a religious or ethnic group and that is not operated for private profit where in any such case ... creed ... is a bona fide occupational qualification and requirement.
6The first issue I must decide is whether the Separate School Board refused to hire Mr. Morra because of his "creed." If I conclude that they did, then I must determine whether they are exempted from the application of s. 4 by virtue of s. 4(7) of the Code.
7Was Mr. Morra denied employment because of his creed? The policy of the Separate School Board is clear; it is to restrict hiring of Board personnel to those who, if eligible to be Separate School supporters, are Separate School supporters. Is this tantamount to discrimination because of creed?
8The Education Act (then S.O. 1974, c. 109, s. 116(3); now R.S.O. 1980, c. 129, s. 119) imposes two statutory conditions of eligibility on prospective Separate School supporters: (1) they must be Roman Catholic; and (2) they must be resident on property in a Separate School zone. Mr. Morra met both conditions. The section delineates the exact procedure by which he could have become a Separate School supporter (and, conversely, the procedure by which he may withdraw from Separate School support).
9Clearly the Separate School Board refused to hire Mr. Morra. Equally clearly, they did not refuse to hire him because he was a Roman Catholic, but rather because while eligible to be a Separate School supporter he chose, for whatever reason, not to be one. Mr. Jacobsen points out that if Mr. Morra were a Protestant (for convenience in these reasons I shall counterpoise Protestants to Roman Catholics, recognizing, of course, that the class of "non-Roman Catholics" embraces a wider diversity of religions – and indeed atheists and agnostics as well) he would not have been denied employment; thus he contended that the indirect effect of the Board's policy is to discriminate because of creed. Reducing Mr. Jacoben's argument to a nutshell it is this: because Mr. Morra is a Roman Catholic the Board requires him to be a Separate School supporter. The Board does not impose such a requirement on a Protestant. Therefore, the Board discriminates between prospective employees and the basis for the discrimination is creed. Mr. Jacobsen contended that the Board's actions constituted both "direct" and "indirect" discrimination.
10The crux of the issue depends upon the proper interpretation to be given to the word "creed." Creed is not defined in the Ontario Human Rights Code. I have canvassed several dictionaries and I find the following definitions:
Oxford English Dictionary (1933):
(1) A form of words setting forth authoritatively and concisely the general belief of the Christian church, or those articles of belief which are regarded as essential; a brief summary of Christian doctrine: usually and properly applied to the three statements of belief known as the Apostles', Nicene, and Athanasian Creed.
(2) a repetition of the creed as an act of devotion.
(3) more generally: a formula of religious belief, a confession of faith.
The Shorter Oxford English Dictionary (third edition, 1944).
(1) a brief summary of Christian doctrine; more generally: a confession of faith.
(2) a professed system of religious belief;
The Concise Oxford Dictionary (fifth edition, 1964).
(1) brief formal summary of Christian doctrine; system of religious belief; set of opinions on any subject.
Murray's New English Dictionary.
(1) a formula of religious belief;
(2) an accepted or professed system of religious belief.
Collins Dictionary of the English Language (London and Glasgow, 1979).
(1) a concise formal statement of the essential articles of Christian belief, such as the Apostles' Creed or the Nicene Creed.
(2) any statement or system of beliefs or principles.
11All these dictionary definitions seem to agree on the etymological origins of the word; through the old English (creda) from the Latin credo: I believe. Furthermore, all give a primary definition which includes profession of religious belief.
12Creed was first prohibited as a ground of discrimination in the Racial Discrimination Act of 1944 (S.O. 1944, c. 51) and thenceforth in each subsequent consolidation and revision of the Ontario Human Rights Code. It is hazardous to be dogmatic about legislative intent, but it seems most probable that the original legislative purpose (keeping in mind that the impetus for the Racial Discrimination Act came from wartime revelations about the Nazi holocaust and cases like Re Drummond Wren, (1945) 1945 CanLII 80 (ON HCJ), O.R. 778) was to ensure equal treatment for Roman Catholics, Protestants, and Jews; perhaps also adherents of minority religions and sects.
13In R. v. O.L.R.B., ex parte Trenton Construction Workers Association (1963) 1963 CanLII 117 (ON HCJ), 2 O.R. 376, the Ontario Labour Relations Board had refused to certify a trade union which required members to uphold "Christian and social principles as taught in the Bible" on the basis that the union discriminated against prospective members because of "creed," contrary to s. 10 of the Labour Relations Act (then R.S.O. 1960, c. 202) and s. 4 of the Ontario Human Rights Code (then S.O. 1961–62, c. 93). McRuer C.J. granted an application for certiorari to quash the Board's decision. That section, like the current s. 4 of the Code, proscribed discrimination only when it was "... because of ... creed." McRuer C.J. allowed that the meaning of this phrase "... is by no means clear," but he went on to enunciate a judicial definition binding on this Board of Inquiry. At pp. 389–90, he wrote:
The real question is, what is meant by "creed"? The derivation of the word is from the Latin; "credo" – I believe. The Oxford dictionary gives its earliest meaning as "a professed system of religious belief" or a more general definition "a confession of faith." Murray's New English Dictionary gives two appropriate meanings of the words: "a formula of religious belief" or "an accepted or professed system of religious belief."
Whatever meaning one gives to the word "creed" it must involve a declaration of religious belief. Religious belief, theology and standards of ethical or social conduct are all very different things. A requirement to uphold Christian ethical or social principles as taught in the Bible (whatever these terms may mean) is in no sense a requirement to subscribe to any doctrine or doctrinal belief. Social principles in no sense involve religious beliefs.
14Later in his decision, he wrote:
It is not to be overlooked that the statutes do not prohibit discrimination but only discrimination on certain stated grounds. All trade unions discriminate against members who will not subscribe to certain doctrines or beliefs of trade unionism. In the broad sense these could be called creeds but they are not creeds as I construe the meaning of the word "creed" in the statutes. As I have emphasized, what is prohibited is certification of a trade union that "discriminates against any person because of his creed." This is a restrictive clause and must be interpreted accordingly.
15This is the only judicial authority on the meaning of creed cited to me by either counsel, and the only decision which my own research turned up.
16Applying this definition of creed to the facts of the instant case, I have no hesitation in concluding that the Separate School Board did not discriminate against Mr. Morra because of his "creed" (i.e., his profession of religious beliefs) but because he chose not to direct his tax support to the Separate School system. Creed was a condition precedent to the choice which Mr. Morra had to make, but it was the choice he freely made for reasons having nothing whatsoever to do with religion which excluded him from employment. The motive of the Board was economic, not religious.
17The Board made no inquiry into Mr. Morra's creed. Instead they satisfied themselves that he was eligible to be a Separate School supporter and imposed that as a condition of employment. Had Mr. Morra been a Protestant, or a member of any other religion (and thereby ineligible under the Education Act to be a Separate School supporter) he would have been hired. In my opinion this is conclusive that the Board's direct reason for refusal was not because of Mr. Morra's creed, which is Roman Catholicism.
18I find some support (admittedly inferential) for this conclusion in the decision of Professor Bruce Dunlop in Blatt v. Catholic Children's Aid Society (Report of a Board of Inquiry dated February 21, 1980 1980 CanLII 3907 (ON HRT), 1 C.H.R.R. D/72). That complaint alleged discrimination because of marital status, but the Board drew a distinction between that prohibited ground and "lifestyle." Professor Dunlop's view, with which I respectfully concur, is that the Code "... tacitly recognizes that there is freedom to differ about many other moral issues, and that individuals and organizations are entitled to govern their conduct in accordance with their moral views even though they may not be accepted by the whole of society. If the moral view of the Catholic Children's Aid Society is not a view with which the Code has seen fit to interfere, the freedom to be governed by it must be upheld by a Board deriving its authority from the Code. That is as important a freedom as those the Code explicitly protects. In fact, the recognition of the Catholic Children's Aid Society as a separate organization based on its religious principles is statutory. See the Child Welfare Act, 1978 (Ont.) c. 85."
19This decision illustrates how results, which at first blush may appear discriminatory, on closer examination are found to be occasioned by factors other than those enumerated in the Code. At first blush, Mr. Morra may appear to have been treated differently from a Protestant job applicant because of his creed; the reality, I have concluded, is not to discriminate against Roman Catholics because of their creed, but rather to discriminate against those adherents of that creed who seek employment with the Separate School Board while at the same time choosing to direct their tax dollars to support the public school board.
20After anxious reflection, I have concluded that Mr. Jacobsen's formulation of the "indirect discrimination" argument is flawed. It is true that a Protestant prospective employee is treated differently from a Catholic prospective employee. Because of the Board's policy, the latter would be required to be a Separate School supporter, the former would not. I am satisfied that this is discrimination (an essential element of which involves treating otherwise equally qualified applicants differently) but it is not, even indirectly, because of creed. The direct, obvious reason, as I have already indicated, is because of tax support. The indirect reason originates not with the Metropolitan Separate School Board but with the Legislature of Ontario in the Education Act. The indirect reason is the statutory ineligibility of Protestants to be Separate School supporters. Absent this statutory ineligibility and hypothesize that the school board maintained its policy: then I would conclude that they discriminated against prospective employees and that the indirect reason for that discrimination was creed. But I fail to see how the Separate School Board can incur liability under the Ontario Human Rights Code for failing to impose a legal impossibility (i.e., become Separate School supporters) on Protestant applicants.
21Mr. Jacobsen countered by saying that the crux of the indirect discrimination is to adopt a policy requiring employees to be Separate School supporters with foreknowledge of the statutory ineligibility of Protestants (which, of course, predated the formulation of the Board's November 1, 1969 policy). But I cannot accept that it can be an offence under human rights legislation to give effect to an exclusion required by another provincial statute. The same legislature which enacted the public policy proclaimed in the Human Rights Code also enacted the public policy embodied in the Education Act. A consequence of the latter public policy is that the financial viability of the Separate School system depends upon taxes paid to it by its supporters who, by statute, can only be Roman Catholic. The Separate School Board operates within those realities, but it did not make the legislative scheme and cannot be saddled with liability for seeking to maintain its financial viability within those realities.
22Moreover, I regard this part of the argument as circular, inevitably taking one back to the issue of direct discrimination. To pass the 1969 policy with foreknowledge of the Education Act eligibility requirements is indirect discrimination only if the effect of the policy is that the school board discriminates because of creed. But, as I have already held, the Board is discriminating not because of creed (i.e., a religious basis) but rather because of tax considerations (i.e., an economic basis).
23Mr. Jacobsen cited several Board of Inquiry decisions in which the concept of indirect discrimination has been discussed (Jamie Bone v. Hamilton Tiger Cats Football Club; Professor J. McCamus, Board of Inquiry, August 16, 1979; Malik v. Ministry of Government Services, Board of Inquiry, Professor M. Eberts, February 26, 1981 1981 CanLII 4314 (ON HRT), 2 C.H.R.R. D/374; O'Malley v. Simpsons-Sears, Board of Inquiry. Professor E. Ratushny, May 15, 1980 1980 CanLII 3932 (ON HRT), 2 C.H.R.R. D/267). Without expressing either agreement or disagreement on the issue of indirect discrimination with those decisions, the Commission has failed, on the facts of the instant case, to satisfy me that the Metropolitan Separate School Board or Mr. William Callaghan discriminated against Mr. Morra, either directly or indirectly, because of his creed. Since I am not satisfied that a contravention of s. 4(1)(a) and/or (b) has been made out, it is unnecessary for me to consider whether, in the event of contravention, s. 4(7) would entitle the Separate School Board to an exemption.
24Accordingly, the complaint of Mr. Rosario Morra against the Separate School Board and Mr. William Callaghan is hereby dismissed.