Hoekstra v. First Hamilton Christian Reformed Church, 2010 HRTO 245

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Hoekstra

Applicant

-and-

First Hamilton Christian Reformed Church, Andrew Zantingh and Kim Schat

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: February 2, 2010

Citation: 2010 HRTO 245

Indexed as: Hoekstra v. First Hamilton Christian Reformed Church

APPEARANCES BY

Barbara Hoekstra, Applicant ) On her own behalf

First Hamilton Christian Reformed Church, ) Sean Thomas Jackson, Andrew Zantingh and Kim Schat, Respondents ) Counsel

1This Application was filed on February 18, 2009 under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

2The applicant self-identified as a member of the Christian Reformed Church. She filed a complaint on August 21, 2007 with the Ontario Human Rights Commission alleging that the respondents discriminated against her on the basis of marital status and creed when they rejected her application for a position of Youth Ministries Coordinator with the First Hamilton Christian Reformed Church (the “Hamilton Church”) in June 2006.

3The respondent, Hamilton Church is a religious institution with beliefs founded in the Christian Bible. The Hamilton Church and its members adhere to the principles and policies set out in the Church Order of the Christian Reformed Church in North America.

4The respondent, Andrew Zantingh is the Senior Pastor for the Hamilton Church. The respondent, Kim Schat was the Chair of the ad hoc hiring committee constituted for the purpose of hiring a Youth Ministries’ Coordinator (“Coordinator”) in the summer of 2006.

5A hearing was held on January 25, 2010. In accordance with the expectation that transitional Applications should be resolved in a fair, just and expeditious manner, the parties adopted their written statements and, following minimal clarification in chief, moved directly to cross examination. In addition, the parties were permitted to give their evidence out of order, as issues in dispute arose. I heard from the applicant, her husband, Nicholas Minnigan, Pastor Andrew Zantingh, Richard Hoiting, Nathan Cooper and Justin Cook, Elders in the Hamilton Church, Kim Schat and Carla Hoiting, members of the ad hoc hiring committee, and Brad and Kim Schellingerhoudt, former friends of the applicant.

6The applicant began attending services at the Hamilton Church in the spring of 2005. She asked to meet with Pastor Zantingh to discuss her circumstances. Pastor Zantingh understood that she wished to become a Member of the congregation, while the applicant understood she was not applying formally for membership. In any event, during their conversation, Pastor Zantingh learned that the applicant was in the process of seeking a divorce, and was residing with Nicholas Minnigan, with whom she considered herself “married in God’s eyes.” When Pastor Zantingh took the applicant’s membership request to the Group of Elders responsible for the spiritual administration and well being of the Church (the “Consistory”) on June 5, 2005, he presented the above information. After discussion, her membership was denied. The minutes of the June 8, 2005 Consistory meeting note:

Elder’s decided the follow: “Barbara Hoekstra is asking about membership. MC [motion confirmed] to affirm Andrew’s continuing communication to her regarding changes that must be made to her lifestyle choices. Barbara is a separated women [sic] who is living with another man. Both claim to be Christians. Barbara’s home church (CRC) has attempted discipling but to no avail. Any personal contact or counselling must be attended by 2 consistory members. She is welcome to worship with us at this time. Membership will only be considered once current lifestyle changes have been made.”

7Pastor Zantingh testified that he advised the applicant that her membership could not be considered because of her living situation and that when that situation changed, her membership could be reconsidered. The applicant testified that Pastor Zantingh advised her that she should not rush into joining a new congregation because of her negative experience with her previous congregation and that she should wait about a year before joining the congregation, I do not need to resolve this disputed testimony.

8The issue of whether the denial of membership in the Hamilton Church in 2005 breaches the Code is not an issue before me. The substance of the alleged discrimination is the applicant’s belief that the above comments and the fact that she was living with a man to whom she was not married played a role in the Hamilton Church’s decision not to consider her or hire her for the position of Coordinator in June 2006.

9The applicant testified that she was residing with Nicholas Minnigan in the spring of 2006, while she was separated from her husband. She had three grown daughters living in her home at the time, two of whom had special needs. She had also invited a female friend in need to live with her. Although she and Mr. Minnigan often shared a bedroom, and were physically close, they were not in a conjugal relationship until they were able to marry in December 2006, following the granting of her civil divorce in November 2006. She testified that part of the reason for residing with Mr. Minnigan related to the abusive nature of her relationship of her ex-husband.

10The applicant testified that the basis for her divorce would be consistent with the teachings of the Christian Reformed Church because it was based on the adultery of her ex-husband, which was the only acceptable reason for divorce. When she described herself as “married in God’s eyes” she meant that she had a covenant with Mr. Milligan, a promise to marry him, a promise that was binding and could not be broken.

11The applicant testified that she was shocked when she saw the 2005 minutes in June 2007 which she understood as describing her in a very negative light and which did not encompass the entirety of the above circumstances described above. She accepted that she may not have described all the above circumstances with Pastor Zantingh in their spring 2005 meeting, but she believed that the Pastor should not have made the criticizing comments without having further investigated her circumstances. She also criticized the Elders’ failure to investigate her circumstances before making a judgement about her.

12The applicant is convinced that the above description of her life circumstances and the negative attitude of the Consistory (a group of Elders) must have played a role in the failure to even grant her an interview for the position of Coordinator in June 2006.

13I am satisfied that the applicant testified truthfully and that she faithfully reported what she honestly recollected and believed. The other witnesses all gave their evidence in a direct straightforward manner and I find that they testified truthfully about what they believed had happened. I do not find it necessary to resolve any minor discrepancies between their evidence.

14The respondents’ position is twofold. First, they assert that the applicant’s life circumstances played no role in the decision not to invite her for an interview or in the selection process for a Coordinator position in June 2006. Second, they assert that they were entitled to, although they did not, take into account the applicant’s life circumstances. They rely upon section 24(1) (a) of the Code that provides:

24. (1) The right under section 5 to equal treatment with respect to employment is not infringed where,

(a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment; (emphasis added)

15The applicant’s belief that the ad hoc hiring committee was influenced by her life circumstances was not unreasonable. The five members of the committee were Pastor Zantingh, Kim Schat, Carla Hoiting, Julie Kingman and Joe Boutzma. Pastor Zantingh was aware of her life circumstances. Kim Schat and Carla Hoiting were married to Elders who were aware of the applicant’s life circumstances.

16However, I find that the applicant’s belief was wrong. Pastor Zantingh, Kim Schat and Carla Hoiting, testified that no discussion of the life circumstances of the applicant took place. The committee met to review the five applications submitted and selected the two persons whom they believed would be the best fit. Pastor Zantingh testified that the applicant’s life situation played no role in his assessment of her potential suitability. Kim Schat and Carla Hoiting testified that they were not aware of the applicant’s situation in June 2006 when they reviewed the applications. Their husbands confirmed that, although they were aware of the applicant’s life situation, because they had been involved in meetings with the applicant and Nicholas Minnigan over a lengthy period of time, neither of them spoke to their spouses about the applicant’s circumstances.

17In addition to my previous finding with respect to the credibility of all witnesses, the evidence of the committee that the two persons selected for interviews were more suited to the position is borne out by their prior experience. Two persons were selected for interview: Carmen Cooper and Jessica Brand. Jessica Brand’s resume indicated that she had been an elementary school teacher in Christian schools since 2003 and had done significant work with youth. As a member of the Hamilton Church, she was well known to the committee members. Ms. Cooper’s resume does not demonstrate her qualifications for the position. However, she had been acting as the de facto Coordinator for the Hamilton Church for some time, and this was well known to the committee. In contrast, the applicant, although she worked as the athletic director in a high school for three years in the 1970’s, did not demonstrate any recent work experience with children. Also, she had not done any work with children and youth at the Hamilton Church. Ultimately, Ms. Cooper was offered the position.

18The applicant asserted that the committee’s preference for persons they personally knew was discriminatory. I am not satisfied that this preference created a barrier on the basis of creed or marital status. There was nothing in the applicant’s creed or marital status that prevented her from becoming familiar with the hiring committee; it was merely a question of timing. She had not been with the Hamilton Church long enough for them to know her.

19I am satisfied that that the First Hamilton Church did not select the applicant for an interview because they had two candidates that they viewed as more eligible and suited for the position because of their recent work with youth at the Hamilton Church. I am also satisfied that the applicant’s life situation in the summer of 2006 played no role in the selection process.

20Accordingly, it is unnecessary to determine the application of section 24(1)(a) of the Code.

21The Application is dismissed.