Ontario Board of Inquiry

Kelly Parks and Holly MacIntyre Complainants

v.

Christian Horizons, Lorraine Duran, and Isobel Hudson Respondents

Date of Decision: December 2, 1991

Before: Ontario Board of Inquiry, Errol P. Mendes

Comm. Decision No.: 431

Appearances by: Allan D'Silva, Counsel for the Complainants Norman Keith, Counsel for the Respondents

BONA FIDE OCCUPATIONAL QUALIFICATION — marital status of employee — application of Etobicoke test — EXEMPTIONS — marital status for employment in religious organization — MARITAL STATUS — employment denied on basis of common-law relationship — DISCRIMINATION — mixed motivation

Summary: The Board of Inquiry finds that Christian Horizons discriminated against Kelly Parks and Holly MacIntyre when it refused to continue to employ them because of their marital status.

Christian Horizons is a non-denominational Evangelical Christian organization which runs group homes in Ontario for persons with physical and mental disabilities. Both Ms. Parks and Ms. MacIntyre were hired by Christian Horizons as staff assistants to help with the care of the residents. They were not informed when they were hired that it was the policy of Christian Horizons not to employ persons who lived in common-law relationships. In both cases, supervisory staff of Christian Horizons learned some time after the women were hired that they were living in common-law relationships and their employment was terminated.

The Board of Inquiry finds that Ms. Parks and Ms. MacIntyre were discriminated against because of their marital status.

Having made this finding, however, the Board of Inquiry must consider whether Christian Horizons is allowed to discriminate in this way because of the exemption provided in s. 23(a) of the Ontario Human Rights Code. This section provides that a religious organization primarily serving the interests of persons identified by their religion and who employs, or gives preference to, only persons similarly identified does not discriminate. The qualification is a reasonable and bona fide qualification because of the nature of the employment.

In this case the Board of Inquiry finds that Christian Horizons is an organization which qualifies for an exemption because, while it accepts handicapped persons regardless of their religion, its priority is to provide homes where handicapped children can be cared for in a non-institutional setting within a Christian, if not an overtly Evangelical Christian, environment.

The Board of Inquiry finds, however, that leading a lifestyle in accordance with Evangelical Christian doctrinal principles, in particular not living in a common-law relationship, does not amount to a reasonable and bona fide qualification because of the nature of the employment.

Bona fide qualification must meet two tests: a subjective test and an objective test. The subjective test requires that the requirement be imposed in good faith and in the sincerely held belief that such a limitation is imposed in the interests of the adequate performance of the job. In this case the Board of Inquiry finds that Christian Horizons did not meet this test because it did not make the requirement consistently, did not inquire of the complainants when they were hired whether they could live in accordance with the employer's lifestyle requirements and did not make it a condition of their contract of employment. In the case of one of the complainants, her supervisor was aware that she was living in a common-law relationship and did not indicate that there was any problem. Consistency in the application of such a lifestyle policy from the beginning of the employment period is a basic principle of the rule of law in the employment context.

The Board of Inquiry also finds that Christian Horizons' lifestyle requirement will not meet the objective branch of the test for a bona fide occupational qualification unless: 1) their hiring procedures show a preference for those whose lifestyles are compatible with Evangelical Christian doctrinal principles, and, 2) one of the primary functions of the Christian Horizons group homes is to foster an Evangelical Christian environment, and 3) all employees of Christian Horizons group homes are essential personnel to fostering an Evangelical Christian environment. The Board of Inquiry indicates that there could exist a valid religious conformance occupational qualification for many of the administrative positions.

The Board of Inquiry finds that the complainants were discriminated against contrary to the Ontario Human Rights Code and will proceed to hear evidence in order to determine remedies.

Cases Cited

Aquilina v. Pokoj (1991), 1991 CanLII 13174 (ON HRT), 14 C.H.R.R. D/230 (Ont. Bd.Inq.): 33

Blainey v. Ontario Hockey Assn. (1986), 1986 CanLII 145 (ON CA), 54 O.R. (2d) 513, 1986 CanLII 6547 (ON CA), 7 C.H.R.R. D/3529 (C.A.): 36

Blatt v. Catholic Children's Aid Society (1980), 1980 CanLII 3907 (ON HRT), 1 C.H.R.R. D/72: 32

Boehm v. National System of Baking Ltd. (1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd.Inq.): 33

Brossard (Ville) c. Québec (Comm. des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279, 10 C.H.R.R. D/5515: 38, 40, 61

Caldwell v. St. Thomas Aquinas High School, 1984 CanLII 128 (SCC), [1984] 2 S.C.R. 603, 6 C.H.R.R. D/2643: 41, 63

Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) (1990), 1990 CanLII 76 (SCC), 72 D.L.R. (4th) 417, 12 C.H.R.R. D/417 (S.C.C.): 62

Fu v. Ontario (Government Protection Service) (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.): 56

Garrod v. Rhema Christian School (1991), 1991 CanLII 13172 (ON HRT), 15 C.H.R.R. D/477: 40, 59, 65

Gore v. Ottawa Separate School Board (December 17, 1971), (Ont. Bd.Inq., Tarnopolsky) [unreported]: 64

Head and Commissioners of the O.P.P. (Re) (1981), 1981 CanLII 1865 (ON CA), 40 O.R. (2d) 84 (Ont. C.A.): 34

Hendry v. Ontario (Liquor Control Board) (1980), 1980 CanLII 3901 (ON HRT), 1 C.H.R.R. D/160 (Ont. Bd.Inq.): 33

Iancu v. Simcoe (County) Board of Education (1983), 1983 CanLII 4720 (ON HRT), 4 C.H.R.R. D/1203 (Ont. Bd.Inq.): 33

Korda v. PK and JP Enterprises Ltd. (1990), 1990 CanLII 12458 (BC HRT), 12 C.H.R.R. D/201 (B.C.H.R.C.): 35

Large v. Stratford (City) Police Dept. (1990), 1990 CanLII 12516 (ON HRT), 14 C.H.R.R. D/138 (Ont. Bd.Inq.): 54

Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781: 36, 54, 61

Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, 2 C.H.R.R. D/468: 36

Shaw v. Levac Supply Ltd. (1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36: 31, 56

Winnipeg School Div. No. 1 v. Craton (1985), 1985 CanLII 48 (SCC), 21 D.L.R. (4th) 1, 6 C.H.R.R. D/3014 (S.C.C.): 36

Legislation Cited

Canada

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 29: 63

Constitution Act, 1867, (U.K.), 30 & 31 Vict., c. 3, s. 93: 63

British Columbia

Human Rights Code, R.S.B.C. 1979, c. 186, s. 22: 39

Ontario

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

s. 4: 35

s. 4(1): 1, 27

s. 8: 1, 27, 35

s. 9(1)(g): 27, 32

s. 17: 39

s. 23: 39

s. 23(1)(a): 27, 37, 43, 49, 52, 57

Québec

Charte des droits et libertés de la personne, L.R.Q., c. C-12, s. 20: 38

Authorities Cited

Keene, Judith, Human Rights in Ontario (Toronto: Carswell, 1983): 72

PART 1: THE COMPLAINTS

1The complainants, Kelly Parks and Holly MacIntyre, both allege that the respondents, Christian Horizons, discriminated against them in respect of employment on the grounds of marital status, contrary to ss. 4(1) and 8 of the Human Rights Code, 1981, S.O. 1981, c. 53, as amended (hereinafter referred to as the "Code"). In addition, Kelly Parks joined Lorraine Duran as a respondent and Holly MacIntyre joined Isobel Hudson as a respondent in their respective complaints. The position of these individual respondents in Christian Horizons at the relevant times will be described in the outline of the facts in evidence below.

2On May 28, 1991, I was appointed to hear and decide the above-mentioned complaints. The initial hearing of the complaints took place over nine days in August, September and October 1991. The Board of Inquiry and both counsel agreed that the Board would decide on the question of liability first and then hear further arguments as to remedies to be awarded in favour of the two complainants, if any. Therefore this decision of the Board will address primarily the issue of liability.

PART 2: THE FACTS

The Complaint of Holly MacIntyre

3Ms. MacIntyre's complaint was dealt with first before the Board. I will therefore commence with the findings of fact as regards her complaint.

4Ms. MacIntyre was a single mother when she applied for a position at the Christian Horizons group home for persons of physical and mental disabilities in Kingston. Christian Horizons is an organization founded and run by primarily Evangelical Christian individuals and groups to provide deinstitutionalized care for the physical[ly] and mentally disabled, in a Christian environment.

5Ms. MacIntyre learned about the position from what is termed a "jobgram" sent to her from St. Lawrence College where she had just finished a health care aide program. The complainant does not recall the jobgram (which is a form of employment advertisement) stating that an employee had to be an Evangelical Christian and would not be permitted to live in a common-law relationship. She was interviewed on two occasions and subsequently hired by Brian Wilson, the Residence Director of the Kingston group home on April 1, 1988, under the Social Service Employment Program (hereinafter ("S.S.E.P.") of the Ontario government for an eleven-month contract, as a night staff assistant. Essentially the position required working an 11 p.m. to 9 a.m. shift and would involve housekeeping, security checks and checking in on the residents, waking them up and preparing them for work in the sheltered workshops. There were six adults in the home at the relevant times.

6Ms. MacIntyre's salary was 80 percent funded by the provincial government under the S.S.E.P. program. The main purpose of the program, as stated by counsel for the respondents, is to provide employment-training opportunities to single mothers to help them develop skills in a particular field and therefore increase the likelihood of obtaining a permanent job in the chosen field.

7In the two interviews that Ms. MacIntyre had with Mr. Wilson, there was no mention at any time of the requirement that all employees of Christian Horizons had to adopt a moral and sexual lifestyle that would not be in conflict with the Evangelical Christian doctrinal principles of Christian Horizons. The policy manual of Christian Horizons, a document which runs to hundreds of pages, includes a policy (05-08-01) which states that " . . . Sexual relationships outside of marriage or co-habitation between people of both sexes may be grounds for dismissal as it fails, by example, to endorse the Biblical principles taught by Christ and the apostles."

8The employment contract that Ms. MacIntyre signed did not specify any condition of employment that would require adhering to the moral and sexual lifestyle required by the Evangelical Christian doctrinal principles enunciated by Christian Horizons in its membership pamphlet and in its policy manual.

9In May 1988, approximately one month after she started working with Christian Horizons, the complainant started living in a common-law relationship with her boyfriend. The Director of the Christian Horizons group home in Kingston, Mr. Wilson, became familiar with the common-law relationship and even asked the complainant in casual conversation if the boyfriend paid the rent. Mr. Wilson, from the evidence, seems to have given no indication that he regarded the complainant's common-law relationship as an impediment to the continued employment of the complainant or a detriment to the emotional or spiritual development of the residents in the group home.

10Much evidence taking up many days of the hearings was proffered by counsel for both the complainants and the respondents concerning the ability of the residents to understand the nature of Ms. MacIntyre's common-law relationship and how that could or could not impact on the emotional and spiritual development of the residents. This would lead to complex, if not impossible, determinations of fact that would attempt to determine the cognitive and spiritual requirements of six individuals with diverse and complex handicaps, both physical and mental. For reasons that I will discuss in applying the law to the findings of fact, I do not have to make any factual determinations of the cognitive abilities of the residents to understand the meaning of a common-law relationship nor to how this would impact on their spiritual development. It must also be noted that no formal religious activities in the group home took place during the night shift worked by Ms. MacIntyre, and that any opportunity for Ms. MacIntyre to show hostility or opposition, even if she wanted to do so, to the Evangelical Christian doctrinal principles of Christian Horizons in front of the residents during their normal waking hours was very minimal.

11When the eleven-month contract of employment funded by the S.S.E.P. came to an end, Mr. Wilson offered and Ms. MacIntyre accepted a relief position in the same group home, working mostly the night shift again and undertaking mostly the same duties, but now being paid relief wages. However, Mr. Wilson also informed the complainant that a full-time position was coming open and that she would be first in line for the position if she applied for it. I might add that this turn of events is probably exactly what the Evangelical Christian program was designed to achieve. Counsel for the respondents, however, point to two handwritten notes by Ms. MacIntyre scripted around this time. These notes indicated that she wanted some day work as a matter of personal preference and that she wanted to spend more time with her son. The respondents claim these notes were an indication that she may not have been serious about a full-time night position.

12It also seems that from an evaluation of Ms. MacIntyre done by Mr. Wilson around this period, that he found her job performance satisfactory. During this period, Mr. Wilson was fully aware of the common-law relationship of Ms. MacIntyre. Indeed, a senior counsellor at the relevant time, Ms. Sue Lines gave evidence that five of the thirteen employees, including the complainant and she, herself, had common-law relationships and that these were probably known to Mr. Wilson. Ms. Lines, who also took part in the hiring process for new staff, testified that she never informed applicants they had to be Christians and could not be living in a common-law relationship.

13Encouraged to apply for the full-time night position by the Director, Ms. MacIntyre did so, but this time was interviewed on April 5, 1989, not by Mr. Wilson, but by the individual respondent, Ms. Isobel Hudson. Ms. Hudson had returned to the group home to replace Mr. Wilson as Director. What follows is a precise [sic] of the evidence of Holly MacIntyre as to what transpired at this interview and related subsequent events. At this interview, Barry Crawford, the Regional Director of Christian Horizons was also present. Ms. Hudson asked a series of questions which did not include any which were directed to her common-law relationship. She was not offered the job at this first interview. She had a second interview on April 12, 1989, when Ms. Hudson asked the complainant to come to her office and there offered her only relief work, instead of the full-time night position. The complainant refused the relief position, saying she was only interested in the full-time night position. Ms. MacIntyre went home and later the same day called Ms. Hudson to ask why she was not being offered the full-time night position. The respondent replied that she had a policy from head office which prohibited her from hiring anyone who she knew was in a common-law relationship. The respondent asserted that the previous Residence Director, Brian Wilson, had not known about the policy on common-law relationships. Approximately two months later, the complainant called Isobel Hudson again and inquired if the relief position was still available. The respondent made statements that implied that as long as the complainant was still living with her boyfriend, she could not be considered even for the relief position.

14The summary of these crucial events by counsel for the respondents are not substantially contradictory, as the following precise [sic] will disclose: It is asserted that Ms. Hudson together with Barry Crawford, the Regional Manager decided that Ms. MacIntyre was not the best candidate for the job. Three factors were considered: 1. the lack of formal education for the position; 2. the interest in not working nights; 3. her inability to fully participate in the spiritual ministry of Christian Horizons (i.e. her inability to combine Christian faith and works, and her pre-marital sexual relationship with her boyfriend). Ms. Hudson gave uncontradicted evidence, according to respondent's counsel, that if the first and second points were the only factors considered, they would not have offered the position to Ms. MacIntyre.

15However, Ms. Hudson offered the complainant a continuing part-time relief position, like the one she currently held, because she felt that there had been inconsistencies in the manner in which Brian Wilson had been treating Ms. MacIntyre as regards the policies of Christian Horizons. There was also a hope that Ms. MacIntyre would grow in her religious beliefs and become more suitable for employment with Christian Horizons. Ms. MacIntyre declined the offer, became very upset and refused to give thirty days' notice in accordance with her contract. Counsel for the respondents then claim that Ms. MacIntyre voluntarily quit her employment and did not use the employee grievance procedures set out in the Christian Horizons policy manual. Finally, the respondent's account continues by stating that in early June 1989, the complainant approached Ms. Hudson to see if a part-time relief position was available. In view of her earlier rejection of the same position, the past reasons for not offering her the full-time position, and the fact that she was now approaching as a new applicant who did not meet any of the normal hiring criteria of Christian Horizons in the policy manual, she was not offered a position.

16This respondent's corroboration of much of the complainant's allegation that she was denied the full-time position and later the part-time position, at least in part because of her common-law relationship with her boyfriend, will be crucial in making the decision as to liability. It must be stated that the Board does not place much weight on the inference drawn by the respondents from the handwritten notes of the complainant requesting more day work. It was in the interest of the complainant to be committed to the full-time night position, as she testified she was, because it would allow her to spend more time with her son during the day.

17Finally, a great deal of evidence was heard as to whether all Christian denominations took from Biblical scriptures the imperative to engage in intimate sexual activity only in marriage, which would a priori prohibit common-law relationships and pre-marital sex. A United Church theologian, Reverend Robert Wallace, called as an expert witness by the Commission, seemed to indicate that his view of Christianity would affirm the value of committed sexual relationships outside marriage. The Evangelical Christian theologians (including Reverend Reese, the founder of Christian Horizons) and a Roman Catholic theologian called by the respondents, after quoting many passages from Biblical scriptures, indicated that Christian scriptures are quite clear that any sexual relations outside marriage is immoral and offends against God's word. The nature of such evidence proved conclusively that despite any literature that may indicate otherwise (there was much contested evidence as to whether literature such as the Christian Horizons application form for membership would be understood by laypersons to welcome all Christian denominations and potential employees of any Christian faith into its mission), Christian Horizons, in its organization, is fundamentally oriented towards Evangelical Christianity. Moreover, towards the end of the hearing, counsel for the respondents consistently characterized Christian Horizons as an Evangelical Christian organization. This issue will be further dealt with in the application of the Code to the finding of fact.

The Complaint of Kelly Parks

18In early spring of 1988, Ms. Parks was about to graduate from a Development Services Workers Program at Cambrian College in Sudbury, and she began looking for employment. She obtained information that a position was open at the Christian Horizons group home in Sudbury through a friend, Paul Ham, who was employed at the same home and had been so for over two years. Ms. Parks had delivered a letter of application dated April 1, 1988, and a résumé to the individual respondent, Lorraine Duran, the Director of the home. This was followed by another letter seeking employment, dated May 12, 1988. In addition to filling out the standard Christian Horizons employment application forms and obtaining a personal reference from her fiancé's mother, Ms. Parks had an interview with Ms. Duran. At this interview, Ms. Duran asked about the complainant's educational background, her ability to work with the children in the home, and also asked her if she was a good Christian. Finally, she asked her if she would have any problem saying prayers at mealtime with the children. Ms. Parks replied that she was a good Christian, that she had a good "aspect" about her religion and that she had no problem saying prayers with the children. The respondents asserted that Ms. Duran also informed Ms. Parks of employee involvement at bedtime and taking the residents to church on Sunday. It is clear that Ms. Duran did take care to inform the complainant of the Christian "environment" of the group home. Indeed, Ms. Parks even informed Ms. Duran that she was a Roman Catholic. However, the complainant insists that at no time was she informed at the interview or at any time prior to the start of her employment with Christian Horizons, that there were policies concerning common-law relationships. Moreover, the complainant insisted, even at the hearings, that she saw nothing inconsistent between being a good Christian and having a common-law relationship. This Board of Inquiry accepts this belief as bona fide.

19Ms. Parks began her employment in July 1988 as a part-time residential counsellor working both the day and the night shifts. There was some evidence that Ms. Duran had indicated to the complainant that her part-time position would turn into a full-time position later on in the fall of 1988. There was nothing either in the standard employment application forms or the employment contract of Christian Horizons signed by Ms. Parks that drew the complainant's attention to any policies of Christian Horizons concerning common-law relationships.

20Ms. Parks described her duties, in essence, as meeting the physical, emotional and health needs of the seven severely developmentally handicapped children in the Christian Horizons group home in Sudbury. Ms. Parks testified she was living with her boyfriend at the time she began her employment with Christian Horizons and that Ms. Duran became aware of this four months after she began her employment.

21On October 26, 1988, there occurred a staff meeting presided over by Ms. Duran. The events that transpired during this meeting are critical to the issue of liability on the part of the respondents. The conduct of the employees and their lifestyle[s] were the main issues raised in this staff meeting. Ms. Duran asserted that there had been problems with loud music being played in the home and disturbing the residents, problems with staff going drinking and dancing in a local club, problems with off-duty staff returning to the home and disrupting the working staff, and the use of foul language. Finally, according to the complainant's own description of what transpired, "the issue of pre-marital sex as an inappropriate sexual lifestyle" was raised by Ms. Duran. Again, according to the respondent's own description, " . . . Mrs. Duran said that Christian Horizons was a Christian organization and that if we were not following Biblical standards that maybe the staff should consider how they were spending their life. No individual was mentioned by name at that meeting."

22What happened after this acrimonious meeting is again critical to the issue of liability and for this purpose it is sufficient to quote respondents' counsel's own description of what transpired:

After the staff meeting, when Parks admits she was upset, she went and spoke with Mrs. Duran. Parks told Mrs. Duran that she was living with a man outside marriage and Mrs. Duran's response was "I had no idea." Mrs. Duran went on to discuss the issue in a ”˜nice and compassionate' manner with Parks. Parks testified that she was given an ultimatum of either leaving her boyfriend or no longer being welcome as staff. Mrs. Duran's letter to Don Janzen denies that any such ultimatum was given; she told Parks to sleep on it and to consider what type of organization Christian Horizons is. Both Parks and Mrs. Duran agreed in their testimony that the words "dismissed, fired or resigned" were never used by Mrs. Duran in that conversation.

23The respondents go on to assert that Ms. Duran would not have dismissed Parks if she had not resigned and she would have spoken to a higher official, Ed Sider, the Programs Director, to obtain further direction. The respondents assert that within a day or two of the staff meeting Ms. Parks came into Ms. Duran's office and stated that she was resigning and that she would be leaving Christian Horizons, and gave Ms. Duran a letter of resignation. The respondents further assert that upon receipt of the letter of resignation, Ms. Duran arranged with Ms. Parks the length of time she would need to look for another job and agreed that the one month's notice required under the contract of employment was satisfactory. Finally, Christian Horizons asserts that the complainant did not use the right she knew she had under her contract of employment to appeal to the Executive Director of Christian Horizons and to use the internal grievance procedures of Christian Horizons.

24A major divergence between the version of the critical events told by the respondents and the complainant is that Ms. Parks claims that in her meeting with Ms. Duran two days after the October 26, 1988, staff meeting, she specifically asked if Ms. Duran was giving her a choice between moving out of her apartment with her boyfriend or no longer being welcome as a staff member. Ms. Parks claims Ms. Duran answered this question in the affirmative, which led to Ms. Parks deciding to resign and initiate a human rights complaint. It was not contested by the respondents so that Ms. Duran gave Ms. Parks a good letter of reference, indicating that Ms. Duran had no problems with the complainant's competence or ability to perform well as a residential counsellor.

25This Board of Inquiry makes a finding of fact based primarily on the version of events as described by the respondents that Christian Horizons, through an official acting in the course of her employment, namely Ms. Duran, created an environment which made it quite clear to Ms. Parks that she had no future in the organization unless she gave up her common-law relationship. Ms. Parks felt so outraged by such a choice that she may have, with a degree of haste, resigned from the organization without having taken recourse to the internal grievance procedures or the right of appeal to the Executive Director. However, as I shall discuss below, this does not affect the potential liability of the respondent, Christian Horizons.

26In the hearing of the Kelly Parks complaint, there was also much evidence concerning the ability of each of the seven residents of the group home in Sudbury to partake cognitively and spiritually in the various religious activities of the home and there was even expert evidence given on the capacity of such developmentally handicapped children for spiritual growth and ability to understand what a common-law relationship entails. Even if it were possible to make findings of fact on this evidence, this Board of Inquiry has concluded, after much deliberation, that such evidence cannot and should not be central to determining the question of liability in this case, for reasons that will be discussed when applying the law to the finding of fact in this case.

PART 3: THE LAW AS APPLIED TO THE FACTS

A. The Statutory Prohibition of Discrimination on the Grounds of Marital Status

27The statutory provisions of the Ontario Human Rights Code that have allegedly been infringed by the respondents are ss. 4(1) and 8 as interpreted in the light of s. 9(1)(g). The respondents deny they have infringed the above sections and furthermore claim that if they have, they would be covered by the special employment exception in s. 23(1)(a). Finally, there is also the issue of who are the proper respondents in these complaints, as will be discussed below.

28According to s. 4(1) "Every person has the right to equal treatment with respect to employment without discrimination because of . . . marital status . . ." Section 8 provides that "No person shall infringe or do, directly or indirectly, anything that infringes a right under this part." Section 9(1)(g) provides that "”˜marital status' means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage."

29The Human Rights Commission acting on behalf of the two complainants has discharged its civil burden of proof based on the findings of fact above, that as regards both the Kelly Parks complaint and the Holly McIntyre complaint that direct discrimination on the basis of marital status took place, resulting in an infringement of ss. 4 and 6 of the Ontario Human Rights Code.

B. The Proper Parties

30Well into the proceedings in these two complaints, on September 20, 1991, counsel for the Commission, after hearing the testimony of Isobel Hudson requested that she be released as a[n] individual respondent in the MacIntyre complaint. Counsel's reason for the request was that the individual respondent's evidence confirmed that at all relevant times "she acted in conjunction with people who were her superiors in making decisions and it seems at all times she was following what she thought was the organization's policies and rules." Counsel for the Commission and the respondents subsequently were unable to work out a mutually satisfactory agreement for such a release, with the result that Ms. Hudson remains an individual respondent.

31This Board has come to the conclusion that there was no evidence provided that either Isobel Hudson or Lorraine Duran were not acting in the course of their duties while employed by Christian Horizons. For this reason I am dismissing the complaints against the two individual respondents, Lorraine Duran and Isobel Hudson. I have decided they are not proper parties to the two complaints. This finding, however, should not be regarded as a precedent for the exoneration of all employees in a supervisory position from liability under the Ontario Human Rights Code if they discriminate in the employment context on prohibited grounds while implementing corporate policies. As one Ontario Board of Inquiry stated in Shaw v. Levac Supply Ltd.(1990), 1990 CanLII 12451 (ON HRT), 14 C.H.R.R. D/36 [at D/66, para. 266]:

In my opinion, a person who, whether as employer or supervisor, has the authority and duty to prevent wrongful conduct in the workplace, which conduct happens to constitute an infringement of the Code, and without lawful excuse fails to do so, thereby indirectly infringes the right in question.

C. Ancillary Issues Related to the Statutory Prohibition Against Discrimination on the Grounds of Marital Status

32Counsel for the respondents raised the argument that if there was any discrimination against the two complainants, it was discrimination on the basis of sexual lifestyle, which counsel alleged is lawful, in contrast to discrimination on the basis of marital status, which results in prohibited discrimination. Counsel cited the decision in Blatt v. Catholic Children's Aid Society(1980), 1980 CanLII 3907 (ON HRT), 1 C.H.R.R. D/72. I find this argument untenable because shortly after the Blatt decision the Ontario Human Rights Code was amended to include in the definition of marital status now found in s. 9(1)(g), "the status of living with a person of the opposite sex in a conjugal relationship outside marriage." Such a relationship is more commonly known as a common-law relationship. Being in such a relationship was a material cause of the direct discrimination suffered by both complainants.

33In both complaints, marital status was a proximate cause of the discrimination. In the case of Holly MacIntyre, even if the refusal to hire for the full-time night position on the grounds of marital status was only one factor in the decision-making process, that is sufficient to ground liability against Christian Horizons under the Ontario Human Rights Code, see Hendry v. Liquor Control Board of Ontario (1980), 1980 CanLII 3901 (ON HRT), 1 C.H.R.R. D/160 (Ont. Bd.Inq.); Iancu v. Simcoe County Board of Education (1983), 1983 CanLII 4720 (ON HRT), 4 C.H.R.R. D/1203 (Ont. Bd.Inq.); Boehm v. National System of Baking Ltd.(1987), 1987 CanLII 8515 (ON HRT), 8 C.H.R.R. D/4110 (Ont. Bd.Inq.); Aquilina v. Pokoj, unreported decision of Jan. 8, 1991 (Ont. Bd.Inq.) [now reported 1991 CanLII 13174 (ON HRT), 14 C.H.R.R. D/230].

34Counsel for the respondents also argued that:

. . . It is trite law that if an employee voluntarily resigns from her employment for whatever reason, then there is no cause of action known in law, including a violation of the Code, to allege illegal conduct on the part of the employer.

It was asserted that even the raising of the question of the employee's resignation, by a representative of the employer, is not sufficient to invalidate a resignation. The case of Re Head and Commissioners of the O.P.P. (1981), 1981 CanLII 1865 (ON CA), 40 O.R. (2d) 84 (Ont. C.A.), which counsel accepted did not involve interpreting the Ontario Human Rights Code, was cited as the main authority for this proposition.

35This contention is important, not just for the determination of liability in this case, but because it is an important human right and employment issue generally which must be clearly addressed. I base my rejection of this argument by respondents' counsel on the clear wording and purposive interpretation of ss. 4 and 8 of the Code. In the case of Holly MacIntyre, Christian Horizons' refusal to consider Holly MacIntyre for the full-time night position, based in part on her marital status, caused the complainant sufficient distress that she felt compelled to resign. To deny a complainant any avenue of recourse because she resigned in such an environment would be to allow employers the scope of constructing a poisonous and/or an abusive work environment that undermines the rights in s. 4 and their reinforcement in s. 8 of the Code. This would be an unacceptable interpretation of ss. 4 and 8 of the Code. The Board of Inquiry in Korda v. PK and JP Enterprises Ltd.(1990), 1990 CanLII 12458 (BC HRT), 12 C.H.R.R. D/201 (B.C.H.R.C.) concluded that the issue was whether the conduct of prohibited discrimination was a significant factor in the complainant's decision to leave her employment. The Board stated [at D/203, para. 21]:

It is now well accepted in human rights case law that where there is more than one apparent reason for the termination of an employment relationship and, where one of the reasons is a prohibited ground, the prohibited ground need not be the "sole" or "primary" reason for the termination of the employment.

Of course, such an interpretation must be subject to a rule of reason. If an employee were to resign on the slightest hint of discrimination in employment on the basis of the prohibited grounds in s. 4, the outcome may be different. If there are no objective grounds for believing that the employer or an official of the employer acting in the course of his or her duties, is discriminating or intends to discriminate on the prohibited grounds, a precipitous resignation may well insulate an employer from liability under the Code. This was not the situation with either of the complainants' work environment[s]. In the case of Holly MacIntyre, the respondents have conceded that one of the reasons the complainant could not qualify for the full-time night position and later the same relief position that she held was because of her marital status. In such a situation, the employee, knowing that the employer is practising discrimination on a prohibited ground, he or she [sic] does not have to wait for an official dismissal before seeking their remedies under the Ontario Human Rights Code. Likewise in the Kelly Parks complaint, on the balance of probabilities, it has been proved that the complainant was given the choice of ceasing to co-habit with her boyfriend or face a very uncertain future with Christian Horizons.

36It is for substantially the same reasons that Christian Horizons cannot be insulated from liability merely because both complaints did not take up the grievance procedures or the right of appeal to the Executive Director of Christian Horizons as stipulated in their employment contract. To force employees to exhaust internal grievance procedures and rights of appeal where the clearly expressed and written policies of the employer violate the rights of the employee under the Ontario Human Rights Code, would be to undermine the exclusive and comprehensive scheme of human rights enforcement under the Code, see Board of Governors of Seneca v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181 [2 C.H.R.R. D/468]; Blainey v. Ontario Hockey Assn. (1986), 1986 CanLII 145 (ON CA), 54 O.R. (2d) 513 [1986 CanLII 6547 (ON CA), 7 C.H.R.R. D/3529] (C.A.). Moreover, parties are not competent to contract out of the provisions of the Ontario Human Rights Code and any contract purporting to do so would be void as being contrary to public policy, see Ontario Human Rights Commission v. Borough of Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 [3 C.H.R.R. D/781] (hereinafter "the Etobicoke decision"); Re Winnipeg School Division No. 1 and Craton (1985), 1985 CanLII 48 (SCC), 21 D.L.R. (4th) 1 [6 C.H.R.R. D/3014] (S.C.C.).

D. The Exception for Special Employment Under Section 23(1)(a) of the Ontario Human Rights Code

37Section 23(1)(a) found in Part II of the Ontario Human Rights Code creates a statutory exception to the rights set out in s. 4 of the same Code. Section 23(1)(a) states:

The right under section 4 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, ethnic origin, creed, sex, age, marital status or handicap employees 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.

38This critical exempting section must be interpreted in a purposive manner. The Supreme Court of Canada had to interpret an almost equivalent section in the Quebec Charter of Human Rights and Freedoms, [R.S.Q. 1977, c. C-12], s. 20, which states:

A distinction, exclusion or preference based on the aptitudes or qualifications required for an employment, or justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or of an institution devoted exclusively to the well-being of an ethnic group, is deemed non-discriminatory.

Justice Beetz in a critical passage of the judgment in Ville de Brossard v. Comm. des droits de la personne du Québec, 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279 [10 C.H.R.R. D/5515], makes the following purposive interpretation of s. 20 at 324 [D/5544, para. 41041]:

. . . the second branch of section 20 has a dual purpose: when it applies, it at once confers rights upon some persons and imposes a limitation on the rights of others. That it limits an individual's right to be free from discrimination is plain. It is also designed, however, to allow certain non-profit institutions to create distinctions, exclusions or preferences . . . justified by the charitable, philanthropic, religious, political or educational nature of the institution in question. In this sense, s. 20 confers rights upon certain groups. In my view, this branch of s. 20 was designed to promote the fundamental right of individuals to freely associate in groups for the purpose of expressing particular views or engaging in particular pursuits. Its effect is to establish the primacy of the rights of the group over the rights of the individual in specified circumstances. Rather than adopting a liberal or a restrictive interpretation of the second branch, I shall endeavour to give the expressions "non-profit institution" and "political nature" their ordinary meaning, using the traditional rules of statutory interpretation.

39Mr. Justice Beetz also decided that the same policy underlay the equivalent section in British Columbia, namely s. 22 of the British Columbia Human Rights Code (at p. 332 [D/5550]), as well as ss. 17 and 23 of the Ontario Human Rights Code (at p. 336 [D/5553]).

40After reviewing alternative suggestions for the interpretation of s. 23(1)(a) of the Code, the Ontario Board of Inquiry, in a decision handed down after the close of the oral argument in this case, in Garrod v. Rhema Christian School, unreported, October 14, 1991 [now reported 1991 CanLII 13172 (ON HRT), 15 C.H.R.R. D/477] (hereinafter "the Garrod decision"), decided to follow the approach of the Supreme Court of Canada in the Brossard decision, supra (at pp. 71—77).

41It becomes clear from examining the jurisprudence discussed above and relating them to the facts of the two complaints before me that this Board is faced with one of the most complex adjudicative tasks in the human rights context. The task involves finding the balance of justice between two competing sets of individual and group rights. The Supreme Court of Canada in the landmark Catholic Separate School Board decision in Caldwell v. St. Thomas Aquinas High School, 1984 CanLII 128 (SCC), [1984] 2 S.C.R. 603 [6 C.H.R.R. D/2543], realized that in such a situation of equally valid competing rights, if each is to be accepted with no modification or limitation, then they are fundamentally incompatible (at pp. 625—26). In the Caldwell case, the Court characterized the conflict as being between the right of the individual to be free from discrimination in employment and the right of a religious group to carry on its activities in the operation of its denominational school according to its religious beliefs and practices (at p. 606).

42While it is clear that I must follow the mandate of the Supreme Court of Canada in Brossard, supra, in applying the "ordinary meaning" of the "group rights" exception in s. 23(1)(a), I have not found any of the Board of Inquiry or Supreme Court of Canada jurisprudence helpful in determining an overall approach to resolving such fundamental conflicts between individual and group rights in cases such as the two complaints before me. Even if I apply the ordinary meaning of the words in s. 23(1)(a), I will still require an overall interpretive model to make my final adjudication. Taking into account the jurisprudence discussed above, I have evolved the following interpretive model. Where a statutory or constitutional framework creates two sets of equal but competing individual and group rights, the adjudicative task is to find the balance of justice. This means that each right must be given effect, but only to the extent that one right does not overwhelm and destroy the other. As in so many other spheres of legal conflict, finding an equilibrium between competing rights is a fundamental requirement of justice. If the ordinary meaning of the group right exception in s. 23(1)(a) afford[s] me a choice to reach this result, I will do so.

43Section 23(1)(a) of the Code requires four elements to be proved in this case and as counsel for the respondents stated, the evidential onus of proof of the application of the section lies with the party that asserts a non-infringement of the Code based on the provisions of the section. The four elements are as follows:

1. A religious, philanthropic, educational, fraternal or social institution or organization;

2. that is primarily engaged in the [sic] serving the interests of persons identified by race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or handicap;

3. employs only or gives preference in employment to persons similarly identified;

4. if the qualification is a reasonable and bona fide qualification because of the nature of the employment.

44I shall now apply the ordinary meaning of the four elements in turn to Christian Horizons' claim that they are covered by the special employment exemption in s. 23(1)(a).

1) Is Christian Horizons a Religious Organization?

45I accept much of the characterization of Christian Horizons proffered by counsel for the respondents. In oral arguments Christian Horizons was described as a trans-denominational Evangelical Christian organization that was set up by Rev. James Reese, an ordained Baptist minister in 1965, to serve the needs of the developmentally handicapped, their parents, legal guardians and families. Christian Horizons operates sixty group homes in Ontario and is a non-profit, non-share corporation, incorporated pursuant to the laws of Ontario and is a registered charity pursuant to the Income Tax Act of Canada. Rev.Reese testified that his experience with his own handicapped brother and later his own son led him to join with others in the establishment of an Evangelical fellowship in the form of an organization that could minister to the developmentally handicapped and their families. The first group home was set up in Waterloo, Ontario in 1976, primarily financed by donations and charitable contributions from the Evangelical Christian community. Subsequently, after proving its competence to administer to the needs of the developmentally handicapped in a de-institutionalized setting, primarily funded by the Ministry of Community and Social Services of Ontario, Christian Horizons opened up numerous other group homes, including the ones in Sudbury and Kingston, from which the two complaints in this case have originated. The best description of Christian Horizons is that used by an expert witness of the respondents, Brian Stiller, a leading Evangelical Christian theologian, an ordained minister with the Pentecostal Assemblies of Canada and Executive Director of the Evangelical Fellowship of Canada, in describing another Christian organization, Youth for Christ. He described that organization in which he was involved as a "para-church." Such a "para-church" is basically an arm of the Evangelical Christian faith which goes out to work in the community which today is predominantly pluralistic, liberal, secular and democratic. Such an organization does work which "expresses the heart of the gospel but in a way that is not proselytizing for a particular church." Mr. Stiller stated that operating as such a para-church gives an organization freedom to operate in the community trans-denominationally and without being owned by a denomination.

46Christian Horizons articulates its Evangelical Christian orientation most clearly in its myriad of policies, including the most relevant one for the two complaints in this case, policy 05-08-01, in a Program Reference Manual which is provided to all the group homes and to each regional office of COMSOC and to the Minister at Queen's Park in Toronto.

2) Whose Interests are Christian Horizons Primarily Engaged in Serving?

47Counsel for the Human Rights Commission argued that Christian Horizons was primarily engaged in serving the interests of the residents of the group homes. He claimed that several documents and policies of Christian Horizons pointed to the inescapable conclusion that the residents were not identified by creed but rather by handicap. In particular, counsel pointed out that in Christian Horizons' proposals to COMSOC to establish the Kingston and Sudbury group homes, Christian Horizons expressly stated that there would be a full acceptance of a client's (or client's family's) colour, race or creed and adding that while the approach is Christian, the client's individuality would be honoured. The Kingston group home proposal expressly stated that all applicants would be accepted without racial, religious or other unrelated information and that each client is encouraged to attend community worship according to their own choice and even this is not mandatory. In giving evidence, Rev. Reese confirmed that the clients were the "uppermost" interests that Christian Horizons were serving, followed by the parents or guardians who had placed their trust in Christian Horizons and that "God, who we serve, is right up there too." Counsel for the Commission claimed that such statements confirmed that Christian Horizons was not serving handicapped identified by their creed and that there was no evidence that the parents or guardians were of any particular set of beliefs. He also concluded that God did not have any bearing on the interests being served.

48Another witness, Rev. Shantz, the Director of Stewardship and Minister at Large, testified that many parents and guardians with children in the Christian Horizons group homes, or on the waiting list to place their children in Christian Horizons' group homes, express that one of their primary concerns is the quality of care. He offered as an example parents who were Chinese Buddhists and who had placed their daughter in a Christian Horizons group home. The same witness testified that the parents and guardians of children in Christian Horizons group homes came from a very broad base of Christian denominations and were not concentrated in the Evangelical Christian community. Finally, counsel for the Commission reminded the Board that in response to a question from the Board, Rev. Reese, the founder of Christian Horizons, had admitted that neither he nor the other founders of Christian Horizons intended to limit the client base to those who were Christians. They knew there were many Christians who are seeking this kind of care, but they wanted to be broader and open, as is indicated in the Christian Horizons policy manual, to people of all backgrounds.

49Faced with this compelling evidence that would seem to deny the benefit of the special employment exception in s. 23(1)(a) to a para-church organization like Christian Horizons, that by its very raison d'être cannot limit its client base to Christians, counsel for the respondents came up with the assertion that " . . . It is the interests of parents of the handicapped, who hold to Evangelical Christian religious beliefs, that Christian Horizons is primarily engaged in serving." The weight of evidence, particularly of Rev. Shantz, one of the respondents' own witnesses, does not support the respondents' contention in this regard.

50A critical stage in this decision is now reached. If I agree with the assertion of counsel for the Commission that Christian Horizons is primarily serving the interests of the developmentally handicapped without discrimination as to creed, then Christian Horizons under the third element of s. 23(1)(a) can only discriminate in employment as regards to persons similarly identified. This means that Christian Horizons is permitted to hire or show preference in employment only as regards developmentally handicapped individuals! This is clearly an absurd result and would rob Christian Horizons of the protection of s. 23(1)(a) even as regards the highest policy-making and executive positions in the organization.

51In the course of oral arguments, I stressed to counsel for the Commission that such a ruling could threaten the continued existence of Christian Horizons, if I were to accept completely his argument concerning the interests Christian Horizons was primarily engaged in serving.

52I cannot so rule. As the former COMSOC Minister, the Honourable John Sweeny, testified in these hearings, Christian Horizons has been of tremendous assistance to parents and guardians of developmentally handicapped individuals since the former government began its five-year plan of de-institutionalizing the care of the handicapped in Ontario. The Christian Horizons group homes are a vital part of the "mosaic" of options open to parents and guardians that wish to place their children in a non-institutional setting that combines a high quality of care within a Christian, if not an overtly Evangelical Christian, environment. In the days of evidence when counsel for the respondents attempted to establish the Evangelical Christian nature of the entire operations of Christian Horizons, one thing started becoming clear[;] [a]s regards its founding personnel and its present policy-making and executive functions and offices, Christian Horizons is definitely Evangelical Christian in orientation. It also attempts to recruit primarily an Evangelical Christian membership as evidenced by the membership application pamphlet which, by its mission statement, objectives, doctrinal statement and its clear reference to "Evangelical Fellowship" and "Trans-denominational Evangelical Ministry," clearly seek to attract a fellowship of Evangelical Christians. This organization, essentially Evangelical Christian in its orientation, policy-making and membership, then goes out into the community to establish group homes for residents and parents and guardians, not limited by creed, and employs staff for such homes who are again not necessarily Evangelical Christians. With such a characterization this Board concludes that Christian Horizons is primarily serving two sets of interests. The first is the Evangelical Christian interests of its founding and present executive personnel and membership. Second, Christian Horizons is also primarily serving the interests of the residents of the group homes and their parents or guardians, whom the evidence suggests largely belong to a broad range of Christian denominations and include some non-Christians. For these reasons Christian Horizons passes the second element of the s. 23(1)(a) exemption. Like the Board in the Garrod decision cited above, I have little difficulty equating the Evangelical Christian tenets of Christian Horizons as a "creed" for the purposes of this second element of the s. 23(1)(a) exemption.

3) Can Christian Horizons Employ or Give Preference in Employment to Persons Similarly Identified as Evangelical Christians or Leading a Lifestyle in Accordance with Evangelical Christian Doctrinal Principles?

53As will be apparent in the discussion of the last element of s. 23(1)(a), Christian Horizons can only discriminate as regards Evangelical Christian lifestyle if it satisfies the conditions in the last element of s. 23(1)(a), commonly known as the BFOQ test.

4) Does Leading a Lifestyle in Accordance with Evangelical Christian Doctrinal Principles, in Particular those Enunciated in Christian Horizons Policy 05-08-01, Amount to a Reasonable and Bona Fide Qualification Because of the Nature of the Employment by Christian Horizons of Holly MacIntyre and Kelly Parks (the BFOQ Test)?

54The Supreme Court of Canada in the Etobicoke decision, cited above, established a subjective and an objective element for the BFOQ test, which has come to be termed the Etobicoke test. Both the subjective and the objective elements must be proven, according to the ordinary civil law standard of proof, by the party asserting the exception in s. 23(1)(a). The subjective element of the Etobicoke test requires that the qualification must be imposed honestly, in good faith and in the sincerely held belief that such a limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which would defeat the purpose of the Code (Etobicoke at p. 208). However, an Ontario Board of Inquiry has added that where a policy or a qualification is imposed without the employer addressing the rational basis for the policy, or where the policy is applied inconsistently, the policy or qualification will not satisfy the subjective branch of the Etobicoke test, see Large v. City of Stratford, Stratford Police Dept. and Board of Commissioners, Ontario Board of Inquiry, unreported decision of November 21, 1990 [now reported 1990 CanLII 12516 (ON HRT), 14 C.H.R.R. D/138].

55The Board does not question whether the Christian Horizons policy 05-08-01 dealing with common-law relationships is imposed honestly and in good faith. Nor does it doubt that Christian Horizons has a subjective belief that living up to the doctrinal principles of Evangelical Christianity should be imposed on all staff at the group homes for adequate performance of employment duties, conducted within what the Christian Horizons subjectively feels is an Evangelical Christian environment at the group homes. The Board accepts the subjective bona fide belief of Christian Horizons that they can reconcile this imposition of Evangelical Christian lifestyle on all staff at their group homes even though the residents and their parents or guardians come from a broad range of Christian denominations and include non-Christians.

56However, in both the Holly MacIntyre and Kelly Parks complaints, the Board has concluded that Christian Horizons has clearly failed to show that it applied the policy dealing with common-law relationship and extra-marital sex consistently. The findings of facts in both complaints establish this beyond any doubt. In the case of Holly MacIntyre the Residence Director who hired her, Brian Wilson, actually condoned her common-law relationship and actively encouraged her to apply for the full-time night position despite knowledge of her common-law relationship. Isobel Hudson confirmed that this inconsistency had taken place and further entrenched the inconsistency when she offered Holly MacIntyre the opportunity to continue in her part-time relief position because, to quote counsel for the respondents factum, "she felt that there had been inconsistencies in the manner in which Brian Wilson had been treating MacIntyre and the policies of Christian Horizons." It is clear that under human rights jurisprudence, under the organic theory of corporate law, an officer as important as a Residence Director of a Christian Horizons group home can be designated as the "directing mind" of the corporation and his actions can be attributed to Christian Horizons, see Fu v. Ontario Government Protection Service (1985), 1985 CanLII 5209 (ON HRT), 6 C.H.R.R. D/2797 (Ont. Bd.Inq.); Shaw v. Levac Supply Ltd., supra.

57Moreover, for Christian Horizons to avoid future liability in this area it must be consistent in the application of its policies concerning lifestyle requirements, if they satisfy the objective part of the Etobicoke test, from the very beginning of the employment period. Such lifestyle requirements must be clearly indicated or referred to in the employment contracts, and if at all possible, confirmed in the application and interview process leading to employment. Finally, to ensure insulation from liability in the future, Christian Horizons would be well-advised in new employee job orientation programs and updating sessions to confirm the necessity of such lifestyle requirements. Evidence was introduced that, subsequent to the complaints in this case, Christian Horizons introduced new employment contracts which make clear reference to lifestyle requirements. It is not sufficient to satisfy the subjective element of the Etobicoke test for such lifestyle requirements to be inserted in policy or program manuals that are not made reference to in employment interviews, or are not made required reading for new staff. I would liken consistency in the application of such lifestyle policies from the beginning of the employment period almost as the most basic principles of the rule of law in an employment context. Because the sudden imposition of such lifestyle requirements has the potential to severely disrupt the professional and private lives of individual employees and result in emotional pain and suffering, the subjective part of the Etobicoke test must require a high degree of consistency in the application of such lifestyle requirements. If organizations which may qualify for the s. 23(1)(a) exemption could suddenly impose such requirements without prior consistency, the Ontario Human Rights Code would allow the rule of arbitrary discretion over employees in such organizations rather than the rule of law. Arbitrary discretion can never amount to a bona fide qualification because of the special nature of the employment. To decide otherwise would be to allow the group rights protected under s. 23(1)(a) to completely overwhelm the individual right to employment without being discriminated [against] on prohibited grounds. The balance of justice between individual and group rights mandates against this result.

58Applying the above criteria of consistency to the Kelly Parks complaint, again the Board concludes that Christian Horizons has failed the subjective element of the Etobicoke test. At the interview with Lorraine Duran which led to her employment with Christian Horizons, Ms. Parks was only asked if she was a good Christian and if she would have any problems with taking part in the religious activities at the group home. Ms. Parks also insists she sees no conflict between her common-law relationship and her religion. There was no reference to lifestyle requirements in her employment contract and no immediate and real effort was made to acquaint her with the lifestyle policies in the policy manual. Counsel for the respondents even introduced evidence that a staff retreat put on by Christian Horizons, which had an Evangelical Christian orientation and which Ms. Parks may have attended, could have been the occasion that she may have learned that her lifestyle was incompatible with Christian Horizons policies. A much greater effort at consistency is required by the first part of the Etobicoke test. Finally the sudden manner in which the lifestyle requirements were brought up by Lorraine Duran at the October 26, 1988, staff meeting demonstrates the need for consistency in the BFOQ test under s. 23(1)(a) of the Code. Such arbitrary decisions, to bring up the lifestyle requirements after the employment period has commenced, even without identifying individuals, can unsettle employees and cause emotional distress that can precipitate hasty resignations. This is essentially what I have concluded occurred with Ms. Parks. Therefore Christian Horizons cannot be exempted from liability as regards her complaint.

59This conclusion can be distinguished from the finding in Garrod v. Rhema Christian School, supra, where the Board of Inquiry felt it did not need to decide on the subjective element of the BFOQ test, because counsel for the Commission had conceded that the respondents had met the test. Moreover, the Board concluded there was factual evidence that the respondents had been consistent in their application of the marital status qualification in the context of a predominantly privately funded non-denominational Christian school serving the Christian community in the Peterborough area.

THE OBJECTIVE ELEMENT OF THE BFOQ ETOBICOKE TEST

60Because the respondent, Christian Horizons, has failed to satisfy the subjective element of the BFOQ Etobicoke test, I will only apply this objective of the test to the complaints in a way that should give guidance to the respondent as to how it may avoid future liability under the Ontario Human Rights Code.

61In the Etobicoke decision, supra, the Supreme Court of Canada held that this objective test was (at p. 208 [D/783, para. 6894]):

. . . related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public.

In the Brossard decision, supra, that followed, the Supreme Court, per Mr. Justice Beetz, posited two questions which would determine whether the objective reasonable necessity of the qualification would be satisfied in any given situation (at pp. 311—12 [D/5535, para. 41011]):

(1) Is the aptitude or qualification rationally connected to the employment concerned . . .

(2) Is the rule properly designed to ensure that the aptitude or qualification is met without placing an undue burden on those to whom the rule applies . . .

62In Central Alberta Dairy Pool v. Alberta (Human Rights Commission)(1990), 1990 CanLII 76 (SCC), 72 D.L.R. (4th) 417 [12 C.H.R.R. D/417], the Supreme Court, per Madame Justice Wilson, added that in cases of direct discrimination a qualification will not be bona fide if a reasonable alternative exists to burdening members of a protected group. Madame Justice Wilson emphasized that justification of a rule manifesting a group stereotype depends on the validity of the generalization and/or the impossibility of making individual assessments. She illustrates this fundamental principle with three very significant cases for the purposes of the two complaints in this case (at pp. 433—34 [D/433, paras. 47—48]):

In Etobicoke, this court found that the employer had not adduced sufficient evidence to support its generalization with respect to the abilities of fire-fighters over the age of 60. In the recent case of Saskatchewan (Human Rights Commission) v. Saskatoon (City) (1989), 1989 CanLII 18 (SCC), 65 D.L.R. (4th) 481, [1989] 2 S.C.R. 1297, [1990] 1 W.W.R. 481, this court revisited the rule of mandatory retirement considered by it in Etobicoke . . . In sum the court accepted that the evidence adduced by the employer supported both the generalization about the effect of age on ability and the inadequacy of individualized assessments. Thus the court affirmed the tribunal's decision that under the circumstances a BFOQ had been established.

Another example from this court's jurisprudence is Caldwell v. Stuart(1984), 1984 CanLII 128 (SCC), 15 D.L.R. (4th) 1 . . . in which adherence to the tenets of the Roman Catholic faith was held to constitute a BFOQ for a Roman Catholic teacher in a Roman Catholic School. In effect, this court validated the generalization that the creation of an appropriate spiritual atmosphere in a Roman Catholic School required of all Catholic teachers that they demonstrate religious conformance themselves.

63Counsel for the Human Rights Commission argued that the Caldwell decision, supra, and others dealing with Catholic Separate Schools that upheld the right of such employers to dismiss teachers for denominational cause, including dismissal on grounds of marital status, was inapplicable to the two complaints in this case for several reasons. First, it was argued that Catholic Separate Schools had a special constitutional status under s. 93 of the Constitution Act, 1867 and s. 29 of the Canadian Charter of Rights and Freedoms. Second, the teaching of Catholic doctrine and observance of standards by the teachers form part of the contract of employment of teachers, as religious training occupies the principal place in the curriculum and therefore the hiring procedures are designed to give effect to these religious conformance goals of the schools, see Caldwell.

64Third, it was pointed out that even with respect to the Catholic Separate Schools, denominational cause BFOQ would not extend automatically to non-teachers, see Gore v. Ottawa Separate School Board, unreported decision of December 17, 1971 (Ont. Bd.Inq.)

65The Board of Inquiry in the recent Garrod decision, supra, seemed to have applied the concept of a denominational cause BFOQ evolved in the Catholic Separate School cases to a non-denominational Christian School, set up to serve the Christian community in the Peterborough area and financed mostly by funds from that community. The Board stated (at p. 90 [D/499, para. 141]):

Ultimately, however, I find that on a balance of probabilities, the respondents have made out their section 23(a) claim for a B.F.O.Q. for their proscription of common-law relationships for their teachers under the more general rubric of the need for religious conformance in their school.

66There is no discussion by the Board in Garrod, supra, as to why the denominational cause BFOQ adhered to in the Catholic Separate School cases should be applied to other religious schools. It is the duty of this Board, however, to explain why it concludes that the denominational cause BFOQ evolved in such cases is only partially applicable to an Evangelical Christian organization like Christian Horizons.

67First, as described in the findings of fact in both complaints there was no hiring procedure that explicitly made clear that only those whose lifestyles are compatible with Evangelical Christian doctrinal principles were qualified to staff the group homes of Christian Horizons.

68Second, the evidence did not disclose that the principal function of the group homes was to promote an Evangelical Christian environment. At most, the evidence disclosed a minimal attempt to anchor the various mealtimes, bedtime and Sunday church attendance in a Christian ethos. Such a general ethos could, however, include Christian perspective that would affirm and recognize the value of committed sexual relationships outside marriage, as the testimony of Rev. Robert Wallace indicated.

69My conclusion as regards the application of the objective part of the Etobicoke BFOQ test as applied to the two complaints in this case, based on the findings of fact and examination of all relevant jurisprudence is as follows:

Unless and until Christian Horizons can prove on the balance of probabilities that:

1. their hiring procedures show a preference for those whose lifestyles are compatible with Evangelical Christian doctrinal principles and;

2. one of the primary functions of the Christian Horizons group homes is to foster an Evangelical Christian environment; and

3. that all employees of Christian Horizons group homes from the Residence Director to the housekeeper, if any, are all essential personnel as regards the fostering of an Evangelical Christian environment in the group homes, regardless of the time of their work shifts and interaction with the residents of the group homes,

the respondent will fail, as they have in the two complaints in this case, both elements of the objective part of the Etobicoke BFOQ test. It must be added, however, that because the evidence presented demonstrated to me that the administration of Christian Horizons and its membership is primarily Evangelical Christian in nature, therefore, there could exist a valid religious conformance BFOQ with many, if not most, of the positions in the administration and membership organizations of Christian Horizons.

70This Board concludes that if the individual right of equality in employment and the group right of religious association, especially in the context of an Evangelical Christian organization like Christian Horizons, are each given their due weight, the complex balance of justice between individual and group rights can be struck under the Ontario Human Rights Code.

E. Evidentiary Issues

71Throughout the lengthy hearings of these two complaints, both counsel vigorously contested what they considered hearsay and opinion evidence being presented to the Board. For the benefit of future Boards I wish to set down my ruling on such evidence which seemed satisfactory to both counsel. Early in the hearings, this Board laid down the following evidentiary rules:

(a) Opinion evidence should not be preferred to expert evidence. Likewise uncorroborated hearsay evidence should not be preferred to direct sworn testimony.

(b) However, opinion evidence and hearsay evidence will be admitted on condition such evidence is not being used to establish the crucial and central issues without the benefit of expert evidence or direct sworn testimony.

72Such a ruling is in the opinion of the Board in keeping with the informal nature of a board of inquiry hearing, past practice [see J. Keene, Human Rights in Ontario (Toronto: Carswell, 1983) 293—94], and the integrity of the quasi-judicial proceedings before a board of inquiry under the Ontario Human Rights Code.

F. Order

73This Board, with the consent of all the parties involved, has postponed the hearing and determination of remedies until the question of liability was decided. The Board will reconvene shortly to hear oral arguments on the issue of remedies.