Sauve v. Ontario (Training, Colleges and Universities), 2009 HRTO 296

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suzanne Sauve

Applicant

-and-

Her Majesty the Queen in the Right of Ontario as represented by the Ministry of Training, Colleges and Universities, Gayle Jones-Smith, Carol Leeming and Kim Dunn

Respondents

INTERIM DECISION

Adjudicator: Andrew M. Diamond

Date: March 13, 2009

Citation: 2009 HRTO 296

Indexed as: Sauve v. Ontario (Training, Colleges and Universities)

INTRODUCTION

1This is an Application filed under s.53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”), alleging discrimination in goods, services and contract on the basis of creed. The parties participated in a mediation session on October 28, 2008. The matter was not resolved at the mediation and a Case Resolution Conference (“CRC”) was scheduled for March 2 and 3, 2009.

2At the CRC the organisational respondent, the Ministry of Training Colleges and Universities (MTCU) and personal respondent Ms. Jones-Smith were represented by counsel. The personal respondent, Ms. Leeming, adopted and relied on the submissions of counsel for MTCU. The personal respondent, Ms. Dunn, relied in part on the submissions of MTCU, but also made her own submissions, and refused to accept one concession that was made by MTCU. The applicant represented herself and was assisted by her husband, who also testified.

3The applicant had applied for business and financial support for a start up business under the Self Employment Benefits Program (“SEB”) administered by MTCU. The individual respondents were involved in the decision making process which resulted in the denial of the applicant’s SEB application.

4At the core of her allegations is the applicant’s belief that her SEB application was denied because her proposed business involved reading tarot cards. It is the applicant’s position that the reading of tarot cards is part of her creed and, if her application was denied because of tarot card reading, she has been discriminated against based on creed.

5The respondents filed a Request for Orders During Proceeding dismissing the Application for lack of jurisdiction on the ground that “tarot cards do not fall under the prohibition against discrimination on the basis of creed”.

6The personal respondents also requested an order to remove them as respondents. However, after having heard two days of evidence on the issue of whether or not tarot cards could form a part of the applicant’s creed, it became clear that the appropriateness of removing any of the respondents could only be decided after the facts of the case were fully canvassed. As a result, and on consent, the request for an order removing the individual respondents did not proceed.

THE LAW AND TAROT

7The parties agree that the appropriate test for determining whether tarot should be considered part of the applicant’s creed is the test established by the Supreme Court of Canada in Syndicat Northcrest v. Amselem 2004 SCC 47, [2004] 2 S.C.R. 551 (“Amselem”). The test of the majority in Amselem was approved and adopted by this Tribunal in Heintz v. Christian Horizons, 2008 HRTO 22.

8Counsel for MTCU submitted that the test was a two part test with the first part having a branch or sub test. The two parts of the test she articulated are:

(i) that the practice in question has a nexus with religion; and

(ii) the applicant “sincerely believes or is sincerely undertaking in order to connect with the Divine or as a function of his or her spiritual faith.”

Counsel argued the first part of the test has two branches. Her submission is that; contained in the first part of the test “is an underlying assumption that there has to be some community or group that adheres to some common beliefs”, and that there must be a “nexus” with the practices or beliefs of that community. Therefore she argues that the first part of the test is that the applicant must establish that she is part of a religious group.

9The relevant portion of Amselem is found at paragraph 39 where the Supreme Court of Canada observed that:

In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

10The respondents do not question the applicant’s sincere belief in tarot cards. However the respondents make several arguments that the applicant has not established the bona fides of her religion.

11All of the respondents, other than Ms. Dunn, concede that the applicant’s tarot card reading for herself satisfies the first part of the test in that there is a nexus between her practice and her sincere belief. Similarly all of the respondents argue that providing tarot readings for third parties, as proposed in the applicant’s business plan, does not demonstrate a sufficient nexus or connection to religion.

12Paradoxically, while admitting there is a nexus between the applicant doing reading for herself and religion, the respondents in fact challenge that there is a “religion with the underlying assumption of community” for the practice to be connected to. However, they call no evidence to challenge the applicant’s evidence on her religion.

13The difficulty I have is that all of the applicant’s evidence focused on her practices and beliefs. However, it appears that the basis of her Application was her proposal to provide tarot card reading to others as part of her business plan resulted in the refusal by the respondents to allow the applicant to participate in the SEB program. This is where the respondents are not prepared to admit that there is a nexus to religion, as the applicant testified that it did not matter if she and the person for whom she was doing the reading shared the same religion or in fact if that person even believed in tarot cards as being a way to connect with the Divine.

DECISION

14I am of the view that this question of nexus between the applicant’s religion and her reading tarot cards for others cannot be determined as a preliminary matter without the benefit of evidence. Rather, the Tribunal requires the full context of the applicant’s proposal to MTCU to make its determination. As a result, I am not, at this stage, prepared to find that the Tribunal does not have jurisdiction to hear the Application.