Janssen v. Ontario (Milk Marketing Board), 1990 CanLII 12505

Janssen v. Ontario (Milk Marketing Board)

1990-09-23

Ontario Board of Inquiry

Gilbert Janssen Complainant

v.

Ontario Milk Marketing Board Respondent

Date of Decision: September 23, 1990

Before: Ontario Board of Inquiry, Constance B. Backhouse

Bd. Decision No.: 395

Appearances by: Anthony D. Griffin, Counsel for the Ontario Human Rights Commission Kenneth Vaughan, Counsel for the Complainant David Wakely, Angela Rae, and Robert A. Wilson, Counsel for the Respondent

RELIGION AND CREED — REASONABLE ACCOMMODATION — BUSINESS NECESSITY — fee for alternate arrangement — hardship imposed by accommodation

Summary: The Board of Inquiry finds that the policy of the Ontario Milk Marketing Board to assess special transportation charges to dairy farmers who do not wish to ship milk on Sundays violates s. 10 of the Ontario Human Rights Code.

Gilbert Janssen is one of the ninety-six Ontario dairy farmers who are designated "no Sunday shippers." The Ontario Milk Marketing Board has a rule that milk must be shipped every second day for the sake of freshness and quality. This means that every second week the shipping day falls on Sundays. Some dairy farmers who object to shipping milk on Sundays for religious reasons have been designated "no Sunday shippers." They have alternate shipping days on Mondays or Saturdays but they must pay an extra fee for these special transportation arrangements.

The Board finds that Mr. Janssen's religious convictions are sincerely held and his practices are protected by the Ontario Human Rights Code. It also rules that the Ontario Milk Marketing Board discriminates against Mr. Janssen and the other "no Sunday shippers."

The Ontario Milk Marketing Board argues that it is a cooperative of dairy farmers and that if the "no Sunday shippers" are not charged the cost of the special transportation arrangements, then all dairy farmers will bear the burden of the extra cost.

The Board finds that this is not an undue hardship. It orders the Ontario Milk Marketing Board to cease the practice of assessing extra costs to the "no Sunday shippers."

Cases Cited

O'Malley v. Simpsons-Sears Ltd. (1986), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102: 23

R. v. Big M Drug Mart Ltd., [1985] 1 S.C. 295: 27

Singh v. Workmen's Compensation Board Hospital (1981), 1981 CanLII 4326 (ON HRT), 2 C.H.R.R. D/459: 20

Legislation Cited

Ontario

Human Rights Code, 1981, S.O. 1981, c. 53: 1

s. 10: 14

s. 23(1)(a): 4

s. 33(1)(d): 4

Authorities Cited

Oxford English Dictionary: 21

Concise Oxford Dictionary: 29

1On July 6, 1990, I was appointed to serve as a Board of Inquiry by the Minister of Citizenship pursuant to the Ontario Human Rights Code, S.O. 1981, c. 53 to hear the complaint made by Gilbert Janssen against the Ontario Milk Marketing Board, Her Majesty the Queen in Right of Ontario, the Ministry of Agriculture and Food, Mr. K. G. McKinnan and Mr. H. Parker, dated December 18, 1984. The complainant alleged that his right to contract without discrimination and his right to equal treatment with respect to services had been infringed because of his creed.

Preliminary Issues

2Prior to the commencement of the hearing, Suzanne Harrington, counsel for Her Majesty the Queen in Right of Ontario, the Ministry of Agriculture and Food, wrote to notify the Board that she would not be appearing at the Inquiry. She stated that there were no allegations against her Ministry in the complaint, and that she had been advised by counsel for the other parties that they were not raising any issues of concern to the Ministry. Upon agreement from the counsel in attendance at the hearing, I removed Her Majesty the Queen in Right of Ontario, Ministry of Agriculture and Food from the list of respondents.

3At the outset of the hearing, Mr. Griffin, counsel for the Ontario Human Rights Commission, informed me that the Ontario Milk Marketing Board had agreed to assume full responsibility for the actions of its employees, K. C. McKinnan and H. Parker. Accordingly he requested that the names of these individuals also be struck from the list of respondents. With the agreement of all the parties, this too was effected.

4Mr. Wakely, counsel for the Ontario Milk Marketing Board, argued as a preliminary point that the Board of Inquiry should decide not to proceed with the hearing of this complaint. Although he did not seek a Board ruling at the outset, he requested me to consider these arguments as the hearing progressed. The legislative scheme set up to supervise the affairs of the Ontario Milk Marketing Board gave authority to the Farm Products Appeal Tribunal to review its activities, and the rulings of the Tribunal could subsequently be appealed to Divisional Court. Mr. Wakely submitted that s. 33(1)(a) of the Code envisaged that in certain situations, human rights complaints were more appropriately dealt with under other statutes. This, he argued, was one of those cases. Secondly, Mr. Wakely argued that the acts that Gilbert Janssen complained of began in 1981, but no human rights complaint was made until 1984. The delay had caused economic prejudice to his client, and he submitted that under s. 33(1)(d), the Board should decline to hear the case.

5Mr. Griffin argued that s. 33 operated exclusively with respect to the Commission, outlining stipulations for the exercise of its discretion in determining whether to deal with a complaint. In this situation, the Commission had exercised its discretion to seek a hearing, and the Chair of a Board of Inquiry could not reverse that decision. With this argument I am in agreement. Section 33 operates at an earlier point in time, well prior to the appointment of a human rights board of inquiry. In my opinion, in this case questions of delay and the appropriateness of forum to determine certain outstanding issues between the parties are matters which are better resolved within the scope of the decision, and not anterior to it.

The Facts

6Gilbert Janssen is a dairy farmer who resides in Chesley, Ontario. His dairy farming business, and that of the 9300 other dairy farmers in Ontario is governed to a large extent by the Ontario Milk Marketing Board (OMMB), a non-profit dairy farming organization which operates as a compulsory marketing cooperative. The officers of the OMMB, all dairy farmers themselves, are elected by the Ontario dairy farmers with a view to promoting the production and marketing of raw milk. All of the milk produced on the farms is purchased by the OMMB, transported via 400 milk trucks operated by 125 milk transporters, and sold to provincial milk processors. The finances of the enterprise are structured in the form of a pool. The OMMB receives the monies from the sale of the milk, pays out all expenses, and then distributes the retained earnings proportionately to its members. Decisions of the OMMB may be reviewed by the Farm Products Appeal Tribunal.

7In 1981, the OMMB established a "two-day pickup" rule, which stipulated that milk transporters must pick up milk from each dairy farm at least every second day. Prior to this, pickup was more sporadic, with some farmers allowed to go three days before pickup. The move to a two-day rule was an attempt to upgrade the freshness and quality of milk. One consequence of the new rule was that once every two weeks, the scheduled pickup falls on a Sunday.

8Gilbert Janssen is a member of the Free Presbyterian Church of Scotland. Since 1981, when he describes himself as having been "born again," he has been a full communion member of the church, entitled to take communion twice a year. He attends church for prayer meetings on Wednesday evenings, church service twice on Sunday, and Bible study on Sunday evening. Mr. Janssen testified that he believed that he should not work on Sundays.

Our commandments command us that we ought not to do any extra work on the Lord's day. Six days thou shalt labour. We must labour those six days, and the seventh day is the day of the Lord thy God. Thou shalt do no work, neither thy son, nor thy daughter, nor thy maidservant, nor an ox, nor an ass, nor a stranger that is within thy gates.

9Gilbert Janssen described his typical Sunday as follows. He and his wife and children get up around 6:00 a.m., and then spend about two and one-half hours milking and feeding the cows. If any of the animals are sick, they are attended to medically. The milk is collected in a refrigerated holding tank, where it remains until it is pumped into a milk truck for transport. Questioned as to whether the milking, feeding, and medical treatment of cows on Sunday contravened his religious principles, Gilbert Janssen explained that this was work of "mercy and necessity." "We must be kind to the animals . . . it is our duty to look after animals as God commands us to do," he stated. Mr. Janssen also noted that the feed would be prepared the day before, so that no unnecessary work was entailed.

10All meals served in the Janssen household on Sunday have been prepared the night before. Dishes are left in the sink until Monday. Mr. Janssen noted that when his children were small, dishes were washed even on Sunday for health reasons. Now they are grown, he considers dish-washing on Sundays improper. The rest of the day is devoted to church service, prayer, and Bible reading. The radio may not be turned on, no sports or games are played, and no other work of any kind is done.

11When the OMMB implemented its "two-day pickup" rule it recognized that Sunday shipping would create problems for some of its members. It therefore devised an option for dairy farmers to elect to become "no Sunday shippers." These individuals were offered special Saturday and Monday pickups every second week, allowing them to avoid Sunday shipping while honouring the new two-day rule. It was the decision of the OMMB that the "no Sunday shippers" should bear the full cost of these extra pickups. The transportation experts on staff at the OMMB set the rate at $40 a shipment initially, and eventually increased it to $44.80, resulting in extra costs of approximately $2400 a year for Gilbert Janssen. Along with Mr. Janssen, some ninety-six other dairy farmers in the southern area of the province opted for the "no Sunday shipper" designation.

12On March 30, 1983, Gilbert Janssen made a formal complaint to the OMMB, arguing that there was no scientific justification for the two-day pickup rule, and that the assessed costs were too high. The OMMB rejected the complaint. Gilbert Janssen appealed this decision to the Farm Products Appeal Tribunal. The Tribunal's ruling of October 27, 1983, made no reference to the validity of the two-day rule itself. On the remaining issue, the matter of the assessment of cost, the Farm Products Appeal Tribunal concluded that it had not been convinced that the extra charge was unreasonably high.

13On December 18, 1985, Gilbert Janssen filed a complaint with the Ontario Human Rights Commission, challenging the two-day pickup rule and the cost assessed by the OMMB for the extra shipments. At the hearing, however, the validity of the two-day rule itself was not argued. Both Mr. Griffin and Mr. Vaughan (the latter, counsel for the complainant) stated that they were not presently disputing the two-day rule, and were contesting the extra charge only.

14It was the position of Mr. Griffin and Mr. Vaughan that Gilbert Janssen was precluded from shipping his milk on Sunday because of creed. The OMMB's two-day pickup rule, a policy neutral on its face, resulted in a disparate impact upon those dairy farmers who did not wish to ship milk on Sundays. In order to comply with the rule, they had to elect special shipments every second Saturday and Monday, and pay the costs attendant on this service. This, they argued, was a violation of s. 10 of the Code:

10. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 16, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Commission, a board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

15Mr. Wakely did not dispute that the OMMB's two-day pickup rule, with its extra charges for "no Sunday shippers" had a disparate impact on Gilbert Janssen because of his creed. He argued, however, that his client had complied with its obligations under the Code by offering the extra pickup services for "no Sunday shippers." To force the OMMB to underwrite and subsidize the cost of providing this extra service would constitute "undue hardship." Furthermore, Mr. Wakely stated that the current charge had not been adjusted to account fully for the rate of inflation, and the OMMB was actually assuming some of the cost of the extra shipments itself. Mr. Wakely claimed that in an attempt to settle this matter and to accommodate Mr. Janssen, the OMMB had offered in September 1987 to reduce the charge to $35, and in May 1988 still lower to $32. Neither of these offers had been accepted by the complainant or the Commission.

The Dimensions of Creed

16Gilbert Janssen testified that his refusal to work on Sunday was a matter of religious principle. In his evidence, Mr. Janssen also freely admitted that there had been no specific directives from his church about shipping milk on Sunday. "The Church had never mentioned [it] one way nor the other," he stated, while conceding that other members of his church — although none of them full communion members — did permit Sunday shipment of their milk.

17In response counsel for the OMMB argued that Gilbert Janssen's decision not to ship milk on Sunday "did not fall within protected activity on the basis of creed under the Code." While his church required observance of the sabbath, Ms. Rae argued that no one from the church had ever expressed disapproval of Sunday shipping. Furthermore, she noted that Gilbert Janssen was already doing the milking. The milk was sitting in the refrigerated holding tank. A milk transporter could pull the truck right up to the holding tank, connect the hose, and pump out the milk without any assistance from Gilbert Janssen or his family. The transporter might observe the sabbath on a Saturday, and prefer to work on Sunday, she pointed out.

18Gilbert Janssen replied that once the milk was removed from his holding tank, he was required to clean and disinfect the tank. This work could not wait until Monday, he noted, since the cows would have to be milked Sunday evening and the milk stored immediately in the holding tank. Asked by counsel for the OMMB whether the disinfection would not constitute "necessary work" like milking cows and washing dishes when young children were in the home, Gilbert Janssen assented. However, Gilbert Janssen insisted that the basic problem remained. He could not countenance allowing a milk transporter to do work on his property on a Sunday. "[T]he King James Bible is the only infallible word of God," he insisted. "The Bible forbids me that I should let anyone, a stranger, into my gates to do any work [on the sabbath]."

19Ms. Rae's objection to classifying Gilbert Janssen's refusal to ship milk on Monday as a decision falling within the concept of "creed" appeared to be two-fold. First, she suggested that the decision was a personal one, not an edict of the organized church. Second, she argued that Gilbert Janssen was misinterpreting his religion. Disinfecting the tank was "necessary" work, like milking cows, and should therefore be permitted. As for the "stranger within the gates" theory, she argued that this amounted to an imposition of Mr. Janssen's religion upon another person.

20It is my view that Gilbert Janssen's refusal to ship milk on Sunday is indeed encompassed within the concept of "creed" under the Code. Somewhat similar issues were raised in Singh v. Workmen's Compensation Board Hospital (1981), 1981 CanLII 4326 (ON HRT), 2 C.H.R.R. D/459 (Zemans), where the board held that the wearing of an eight-inch kirpan fell within the definition of "creed" despite evidence that there was some inconsistency with respect to this in Sikh practice, and nothing in Sikh writings which stipulated the length of an individual's kirpan.

21The Oxford English Dictionary defines "creed" as "an accepted or professed system of religious belief: the faith of a community or an individual, especially as expressed or capable of expression in a definite formula." There is nothing within this definition which requires that religious principles be formulated from officials of a church, or proclaimed by edict through religious hierarchy. That Gilbert Janssen derived his beliefs about the sabbath from his experience of being "born again" and his personal interpretation of the religious sources to which he subscribes, should not disqualify him from claiming protection under the term "creed." The religious beliefs of an individual, developed through personal interpretation of religious experience and faith, are equally entitled to protection as the more formalized precepts of organized religion.

22Furthermore, the accuracy and correctness of Gilbert Janssen's religious interpretations do not appear to me to be properly a matter for this board. It would be highly inappropriate for a human rights board of inquiry to purport to judge the validity of the spiritual and religious perspectives of complainants. The prospect of a lay tribunal attempting to sort out intimate debates about religious doctrine and practices, buttressed by intricate testimony from competing religious "experts," is most alarming, and well beyond the scope of what was contemplated by the Code. The focus of the Code is upon protecting individuals who wish to practise their religion freely. Our task is to ascertain that the beliefs are sincerely held, and fall within the rubric of the category of religion, very broadly defined. In the present case, it is more than sufficient to conclude that Gilbert Janssen's refusal to ship milk on Sunday, or to allow a milk transporter to pump milk from his tank on Sunday are based upon his religious concept of the sabbath, and that those beliefs are honestly, sincerely held.

Reasonable Accommodation and Undue Hardship

23The two-day pickup rule promulgated by the OMMB, neutral on its face, had a disparate impact upon Gilbert Janssen and the ninety-six other dairy farmers who elected to become "no Sunday shippers." Their creed necessitated special Saturday and Monday pickups of milk. In such a situation, the Code shifts the onus to the respondent to prove that "the needs of the group of which the person is a member cannot be accommodated without undue hardship." The Supreme Court of Canada in O'Malley v. Simpsons-Sears Ltd. (1986), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 described the different treatment of direct and constructive discrimination at D/3107, para. 24777:

Where direct discrimination is shown the employer must justify the rule, if such a step is possible under the enactment in question, or it is struck down. Where there is adverse effect discrimination on account of creed the offending order or rule will not necessarily be struck down. It will survive in most cases because its discriminatory effect is limited to one person or to one group, and it is the effect upon them rather than upon the general workforce which must be considered. In such case there is no question of justification raised because the rule, if rationally connected to the employment, needs no justification; what is required is some measure of accommodation.

24In this hearing, there was no debate over the two-day pickup rule itself. The debate was over the degree to which the OMMB should have to accommodate the "no Sunday shippers." The policy of the OMMB was to relieve those who declined to ship on Sunday by providing extra shipping services on Saturday and Monday, but to allocate the extra costs attendant upon the special pickups to the "no Sunday shippers" themselves. Counsel for the Commission and the complainant argued that these costs should be absorbed by the OMMB, while counsel for the OMMB maintained that to spread these expenses throughout the dairy farming community would constitute "undue hardship."

25Extensive evidence was produced regarding the rate-setting of the charges assessed to the "no Sunday shippers." The OMMB claimed that the rates were justifiable, having been set initially by their own transportation experts on staff, reviewed by external consultants, and upheld by the Farm Products Appeal Tribunal. Counsel for the complainant and the Commission cross-examined the OMMB experts on this matter extensively, attempting to show that erroneous assumptions had been incorporated into the costing structure. Their attack on the rate structure, however, was not premised on any alleged human rights violation in the cost determination. In my opinion, the question of the mathematical accuracy of the rates charged is not a human rights matter. It is an economic assessment, open to challenge within the statutory regime which governs the OMMB, and subject to review at the level of Divisional Court. Questions of quantum must be raised in that setting. The only question which is left to be determined in this forum is whether the allocating of the charge at all violated the Ontario Human Rights Code.

26Counsel for the OMMB argued that the nature of the OMMB itself should be taken into account in deciding what constitutes "undue hardship." This was completely distinct from an employer-employee situation, he claimed, where a large corporation or government department could comfortably shoulder the amount involved, presumably passing the costs on to the wider community in the form of higher prices or increased taxation. Forcing the OMMB to absorb the cost of the special shipments would mean requiring some members of the marketing cooperative to subsidize the religious principles of their neighbouring members. As for passing the cost onto the consumer, counsel noted that the price of milk was not set unilaterally, and was subject to extensive regulatory control.

27While the nature and identity of the respondent is one factor which should be taken into consideration, the larger question is how to balance the Code's protection of freedom of religion against the costs associated with accommodating religious needs. The Supreme Court of Canada articulated the meaning and importance of freedom in the context of the Charter in R. v. Big M Drug Mart Ltd., [1985] 1 S.C. 295 at pp. 336–7, where Dickson J. stated:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct . . . The essence of the concept of freedom of religion is the right to entertain such religious beliefs as the person chooses, the right to declare religious beliefs openly and without fear of hindrance and reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint . . . Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.

28Requiring dairy farmers to pay extra because their milk cannot be shipped in regular Sunday pickups due to their religious creed can be classified as an "indirect form of control" which "determine[s] or limit[s] alternative courses of conduct available to others." If an analogy can be drawn to the field of disability, it would be like constructing a ramp which would enable physically-disabled persons to enter a theatre and then charging only people in wheelchairs a surcharge upon entry.

29Balancing "undue hardship" against the importance of freedom of religion is a difficult equation, and neither courts nor tribunals have had a great deal of experience in interpreting the specific meaning of the phrase. The Concise Oxford Dictionary defines "hardship" as "severe suffering or privation" and "undue" as "excessive, disproportionate." The overall OMMB transportation costs range in the neighbourhoods of $45–50 million per year. Gilbert Janssen is currently paying approximately $2400 per annum in extra shipping fees. If the extra costs of all the current "no Sunday shippers" were absorbed into the OMMB's transportation rates, OMMB officials estimated that this would increase the transportation fee between one and two cents per hectolitre.

30The prospect of making an order which will increase the expenses of dairy farmers who ship on the regular schedule is obviously something which must be done with great caution. However the Ontario Human Rights Code is meant to foster a society which will allow diversity to flourish. It is designed to protect and accommodate the needs and interests of those who differ from the dominant majority group. Although the Code does not require that any individual or group accommodate others to the point of undue hardship, severe suffering, or disproportionate privation, it does conceive of inconvenience, and some degree of disruption and expense. Insofar as we want to make space within our communities for the comfortable co-existence of those who differ by religion, sex, sexual orientation, race, disability, and family grouping, there will be commensurate costs to be borne by all of us.

31Spreading the "no Sunday shipping" costs amongst the community of dairy farmers is one step towards reasonable accommodation which will not create undue hardship as envisaged by the Code. Optimally, the costs should be spread still further to all consumers of milk, but this is a matter which will require further review within the regulatory framework of the OMMB. It is the order of this Board that the OMMB cease charging "no Sunday shippers" extra transportation fees. The complainant did not seek general damages in this case. In my view, given the changing membership of the cooperative marketing board over the nine year period under consideration, this is not a case in which it is appropriate to assess damages retroactively. The order should operate only prospectively, into the future.

Order

32The Ontario Milk Marketing Board is found to be in violation of s. 10 of the Ontario Human Rights Code, 1981 in its practice of assessing special transportation charges to dairy farmers who do not wish to ship milk on Sundays. It is ordered to cease allocating such charges to Gilbert Janssen, the complainant, and to other Ontario dairy farmers who elect not to ship milk on Sundays. This order operates prospectively, not retroactively, and accordingly no compensatory payments are awarded to the complainant.