Hoekstra v. First Hamilton Christian Reformed Church, 2011 HRTO 2108

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Hoekstra Applicant

-and-

First Hamilton Christian Reformed Church Respondent

A N D B E T W E E N:

Nicholas Minigan Applicant

-and-

First Hamilton Christian Reformed Church Respondent

DECISION

Adjudicator: Ken Bhattacharjee Date: November 22, 2011 Citation: 2011 HRTO 2108 Indexed as: Hoekstra v. First Hamilton Christian Reformed Church

APPEARANCES BY

Barbara Hoekstra and Nicholas Minigan, Applicants ) Self-represented First Hamilton Christian Reformed Church, Respondent ) Sean Jackson and Wade Poziomka, Counsel

INTRODUCTION

1The applicant, Barbara Hoekstra, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 10, 2009 which alleged that First Hamilton Christian Reformed Church (“First Hamilton”) subjected her to reprisal with respect to services.

2Specifically, she alleged that First Hamilton denied her membership because she had filed a human rights complaint against First Hamilton with the Ontario Human Rights Commission (“OHRC”).

3First Hamilton filed a Response on November 6, 2009, which denied the allegation of reprisal. Specifically, First Hamilton denied that it refused to allow Ms. Hoekstra to become a member. Rather, it stated that it deferred granting membership to her until outstanding issues between her and First Hamilton, which were unrelated to her human rights complaint, were resolved.

4The applicant, Nicholas Minigan, who is Ms. Hoekstra’s husband, also filed an Application under s. 34 of the Code on August 10, 2009. Mr. Minigan’s Application alleged that First Hamilton discriminated against him with respect to services because of his relationship with a person identified by a Code ground. Specifically, he alleged that, because Ms. Hoekstra was his wife, First Hamilton also denied him membership.

5First Hamilton filed a Response to Mr. Minigan’s Application on November 6, 2009, which denied the allegation of discrimination. Specifically, First Hamilton denied that it refused to allow Mr. Minigan to become a member. Rather, it stated that it deferred granting membership to him until outstanding issues between him and First Hamilton, which were unrelated to Ms. Hoekstra being his wife, were resolved.

6First Hamilton also stated that it had an absolute defence pursuant to s. 18 of the Code, which provides that the right to equal treatment with respect to services is not infringed where membership in a religious organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

BACKGROUND

7First Hamilton is a Protestant church in Hamilton which believes that the Bible is the authoritative Word of God. First Hamilton is part of the Christian Reformed Church in North America (the “CRCNA”).

8The Tribunal issued an Interim Decision, 2009 HRTO 2087, which ordered that the two Applications be dealt with together.

9The hearing of the Applications took place over two days. At the beginning of the hearing, I ordered that Mr. Minigan’s Application be amended to include the ground of marital status. I then heard the testimony of four witnesses: the applicants, the Senior Pastor of First Hamilton, and a retired Pastor of the CRCNA. I also admitted into evidence a number of documents that were tendered by the parties, including emails, letters, minutes of meetings, and pleadings from other proceedings.

10In their pleadings and evidence, Ms. Hoekstra and Mr. Minigan made a number of serious allegations of misconduct against Ms. Hoekstra’s ex-husband and a church that Ms. Hoekstra previously attended. Neither Ms. Hoekstra’s ex-husband nor her previous church is a respondent to these Applications, and they did not participate in this proceeding in any way. As such, I have not made any findings of fact with respect to the truth of the allegations against them.

11After Ms. Hoekstra and Mr. Minigan closed their case, First Hamilton requested that the Tribunal dismiss their Applications, without hearing First Hamilton’s evidence, on the basis that Ms. Hoekstra and Mr. Minigan failed to establish a prima facie case of reprisal and discrimination.

12For the reasons discussed further in my Decision, I provided Ms. Hoekstra and Mr. Minigan with an opportunity to cross-examine two of First Hamilton’s witnesses, which they undertook, and I then heard oral submissions from the parties on First Hamilton’s motion. I dismissed the Application with written reasons to follow. The following are my reasons.

EVIDENCE

13Prior to attending First Hamilton, Ms. Hoekstra and Mr. Minigan attended Bethel Christian Reformed Church (“Bethel”), which is also part of the CRCNA. Ms. Hoekstra was a longstanding member of Bethel, while Mr. Minigan only attended services for a couple of years and never became a member.

14Up until 2004, Ms. Hoekstra and Mr. Minigan were in relationships with other people, and were not together as a couple. In 2004, Ms. Hoekstra and her husband separated. Ms. Hoekstra alleged that they separated because he acted in a threatening manner towards her, and she found evidence that he was having extramarital affairs. Bethel was involved in reconciliation efforts between Ms. Hoekstra and her husband, which were ultimately unsuccessful. During that same year, Mr. Minigan became a widower when his wife passed away.

15Late in 2004, Ms. Hoekstra and Mr. Minigan became friends and eventually a couple. Mr. Minigan began to stay overnight at her house occasionally, and in March 2005 he moved in permanently. Ms. Hoekstra alleged that she needed Mr. Minigan in her house because Mr. Hoekstra was threatening her. She also alleged that their relationship was in accordance with the Bible because they were “betrothed” to each other. According to Ms. Hoekstra, betrothal is a Biblical and God-sanctioned covenant that leads to a formal marriage.

16The Pastor and elders at Bethel addressed the conduct of Ms. Hoekstra and Mr. Minigan with them because Ms. Hoekstra was still legally married to her husband. Ms. Hoekstra subsequently asked Bethel for an attestation of membership and to be released from the authority of Bethel in order to join another church. In response, Bethel provided Ms. Hoekstra with documentation to the effect that she had resigned her membership.

17Ms. Hoekstra alleged that Bethel discriminated against her on the ground of sex because, among other things, Bethel treated her harshly because of her alleged misconduct, but failed to appropriately deal with her husband’s misconduct, and revoked her membership, but allowed her husband to retain his membership. She filed an Application against Bethel (and other parties) with this Tribunal, which is still pending (File No. 2010-05158-I).

18In the spring of 2005, Ms. Hoekstra and Mr. Minigan began attending services at First Hamilton. Shortly thereafter, she met with the Senior Pastor, Andrew Zantingh, to discuss her interest in becoming a member of First Hamilton. She told Pastor Zantingh, among other things, that she was separated and seeking a divorce from her husband, and that she and Mr. Minigan were living together and were “married in God’s eyes”.

19Pastor Zantingh testified that the nature of relationship between Ms. Hoekstra and Mr. Minigan concerned him because they were living together as an unmarried couple, which is sinful behaviour according to the Christian beliefs of First Hamilton.

20In her testimony, Ms. Hoekstra denied that she and Mr. Minigan were in a sexual relationship prior to being formally married. She stated Pastor Zantingh wrongly assumed that her behaviour was sinful without asking her. Mr. Minigan’s evidence on this point was similar. In response to my questioning, Ms. Hoekstra admitted that she and Mr. Minigan slept in the same bed prior to being legally married, but denied that they were in a sexual relationship.

21Ms. Hoekstra also stated that from the spring of 2005 to August 2008, when she and Mr. Minigan stopped attending services at First Hamilton, Pastor Zantingh and the elders of First Hamilton never asked her or Mr. Minigan if they were in a sexual relationship before they were legally married. I followed up on Ms. Hoekstra’s statement and asked her several times why she did not take the initiative and tell Pastor Zantingh and the elders that she and Mr. Minigan were not in a sexual relationship. Ms. Hoekstra evaded answering my question, and ultimately stated that she never had an opportunity to sit down with them to discuss it. I asked Mr. Minigan the same question, and he responded that First Hamilton never accused him of committing adultery.

22In cross-examination, Ms. Hoekstra maintained that living and sleeping together as an unmarried couple was not sinful behaviour because she and Mr. Minigan were betrothed to each other.

23In cross-examination, Mr. Minigan admitted that he knew that First Hamilton viewed Ms. Hoekstra as being unchaste, and that he was known to be the other party in the alleged unchastity.

24By contrast, in cross-examination, Pastor Zantingh maintained that living and sleeping together as an unmarried couple was, in fact, sinful. He also stated that Ms. Hoekstra had a spiritual view of the issue that she considered to be above First Hamilton’s position on the issue.

25On June 8, 2005, Pastor Zantingh brought her membership request to a meeting of First Hamilton’s consistory (the church elders responsible for administering spiritual matters, including membership). The meeting minutes state:

Barbara Hoekstra is asking about membership. MC to affirm Andrew’s continuing communications to her regarding changes that must be made to her lifestyle choices. Barbara is a separated woman 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.

26Pastor Zantingh then told Ms. Hoekstra that First Hamilton would not consider her for membership at that time. Ms. Hoekstra and Mr. Minigan continued to attend services at First Hamilton. However, Ms. Hoekstra testified that from that point on she felt shunned by the elders, and coldness towards her from most of the congregation.

27The next relevant events occurred in 2006. Dr. Henry Wildeboer, who is a retired Pastor of the CRCNA, had an agreement with First Hamilton to occasionally conduct services. He also coached Pastor Zantingh. First Hamilton paid Dr. Wildeboer for his work. Ms. Hoekstra testified that Dr. Wildeboer encouraged her and her family to keep worshipping, which was a pleasant contrast to the cold reception that she had received from others at First Hamilton.

28In the spring 2006, Ms. Hoekstra applied for a paid job at First Hamilton. First Hamilton did not select her for an interview, and the position was offered to, and accepted by, another candidate.

29In 2006, Ms. Hoekstra and Mr. Minigan also began attending a discipleship program, which was run by First Hamilton’s elders. Ms. Hoekstra testified that the fact that they were attending demonstrated their commitment to becoming members of First Hamilton. None of the parties provided any detailed evidence about what was discussed during the discipleship meetings, but the minutes of an October 11, 2006 consistory meeting stated:

Barb Hoekstra & Nick Minigan

• Barb does not feel the congregation is hospitable to them.

• Their current situation was discussed. Barb is separated but not yet divorced. Barb and Nick are living together and do not feel it is wrong.

• She wants to be a member here.

• They are in need of pastoral care. It was agreed that [two elders] would visit.

30In November 2006, Ms. Hoekstra’s divorce from her husband was finalized, and in December 2006, she entered into a legal marriage with Mr. Minigan.

31In December 2006, First Hamilton and Dr. Wildeboer ended their agreement, and Dr. Wildeboer stopped conducting services. Ms. Hoekstra testified that she was disappointed that he had left

32In early 2007, Ms. Hoekstra and Mr. Minigan met with two elders of First Hamilton, and told them about Ms. Hoekstra’s difficulties with her ex-husband and Bethel. Their issues were raised at a consistory meeting on March 14, 2007.

33In March 2007, Ms. Hoekstra also sent a letter to the Abuse Victim Task Force of the CRCNA, which raised allegations of misconduct against her ex-husband and Bethel. She also made the following comment about her status at First Hamilton: “The church I now attend as a shunned visitor (unwelcome as a member) is entering a time of crisis.”

34In April 2007, Mr. Minigan circulated a letter to the congregation of First Hamilton, which stated that “an injustice exists in this community and I have enclosed documentation of my claim.” [Emphasis added] The enclosed documentation included (1) an excerpt of a credit card statement in the name of Ms. Hoekstra’s ex-husband, which appeared to show a $550 charge from an escort agency; (2) a photograph of a woman in a bikini or underwear with a note that appeared to be addressed to Ms. Hoekstra’s ex-husband; (3) a photograph of a woman and a love letter, which appeared to be addressed to Ms. Hoekstra’s ex-husband; and (4) Ms. Hoekstra’s letter to the Abuse Victim Task Force.

35Mr. Minigan’s letter to the congregation went on to identify Pastor Zantingh, the two elders whom Ms. Hoekstra and Mr. Minigan had met with, and another Pastor as the “[m]embers of your congregation who have knowledge of this situation.”

36Mr. Minigan testified that he circulated the letter because he wanted First Hamilton to investigate the unjust treatment of Ms. Hoekstra by Bethel.

37Pastor Zantingh testified that he was confused by the letter because it appeared to suggest that he and First Hamilton were involved in the alleged injustice against Ms. Hoekstra. In response, First Hamilton’s elders circulated a letter to the congregation, which identified the matter as confidential and the subject of ongoing pastoral concern of both Ms. Hoekstra’s former church and First Hamilton.

38Pastor Zantingh and several elders also met with Ms. Hoekstra and Mr. Minigan. During the meeting, Ms. Hoekstra and Mr. Minigan again asked First Hamilton to investigate her allegations of misconduct against her ex-husband and Bethel. She also made current allegations of abuse against her ex-husband in relation to her daughters.

39In June 2007, Ms. Hoekstra obtained a copy of First Hamilton’s consistory’s June 8, 2005 meeting minutes, which denied her request to become a member. She testified that the minutes revealed to her that Pastor Zantingh had provided false information about the nature of her relationship with Mr. Minigan to the consistory. She subsequently contacted at least one member of the hiring committee for the paid position that she had applied for, and asked for the reasons that she was not granted an interview.

40On June 13, 2007, First Hamilton’s consistory met and discussed, among other things, complaints that they had received from members of the hiring committee about Ms. Hoekstra. The meeting minutes stated that an elder would contact Ms. Hoekstra to set up a meeting to address the unhealthy manner in which she had been interacting with members of the consistory and the congregation, and to ask to repent for this behaviour.

41On July 9, 2007, Ms. Hoekstra delivered an open letter to the consistory, which alleged that First Hamilton had not helped her in her time of need, asked for a fair hearing on this matter, and requested that the consistory call upon Bethel to repent for its misconduct.

42In late August 2007, Ms. Hoekstra filed a complaint with the OHRC, which alleged that First Hamilton, Pastor Zantingh, and a member of the hiring committee had discriminated against her because of her marital status and creed with respect to employment when they rejected her application for the paid job. As a remedy, she requested that the charitable status of First Hamilton be revoked, and/or it be fined. The OHRC did not serve the complaint on First Hamilton at that time.

43On September 19, 2007, First Hamilton’s consistory met and discussed Ms. Hoekstra’s request for a hearing. The meeting minutes state that the elders passed a motion to have a special meeting with her and Mr. Minigan.

44In late September 2007, Ms. Hoekstra and an elder had an email exchange, which discussed Ms. Hoekstra’s request for a hearing. In her emails, Ms. Hoekstra did not mention the fact that she had filed a human rights complaint. In his email, the elder acknowledged that Ms. Hoekstra and Mr. Minigan had experienced hurt, but also stated that their actions had also caused hurt. The elder also stated that he was trying to find a mediator for the meeting with her and Mr. Minigan.

45On October 10, 2007, the consistory met again to discuss the issue. The meeting minutes state that the elders passed a motion to have a meeting with Ms. Hoekstra with a third party mediator.

46In late October 2007, the OHRC served Ms. Hoekstra’s human rights complaint on First Hamilton, and directed it to file a Response with four weeks and attend a mediation on June 12, 2008. The consistory’s meeting minutes indicate that the complaint was first discussed by the consistory on November 14, 2007. The minutes also state the executive of First Hamilton had met with a lawyer to discuss the complaint.

47Between November 2007 and February 2008, First Hamilton’s consistory did not take any steps to implement its October 2007 motion to have a meeting with Ms. Hoekstra with a third party mediator. In cross-examination, Pastor Zantingh’s explanation was that the consistory was trying to figure out how to move forward because Ms. Hoekstra’s initiation of a legal claim had complicated matters and created communication barriers between them.

48On January 12, 2008, Ms. Hoekstra sent the Chair of First Hamilton’s consistory an email, which requested that he address her July 9, 2007 letter. When she did not receive a response, she sent an email to Dr. Wildeboer on January 23, 2008, which stated that she heard that he had experience in dealing with difficult ecclesiastical matters, and asked him if he was able to provide her with advice. She and Mr. Minigan subsequently met with Dr. Wildeboer on February 6, 2008.

49On February 21, 2008, Mr. Minigan emailed a letter to First Hamilton, which made a formal request for membership for him and Ms. Hoekstra. Ms. Hoekstra and Mr. Minigan then sent Dr. Wildeboer an email on March 8, 2008, which attached their membership request, and asked if he would be willing to speak to First Hamilton on their behalf. Ms. Hoekstra and Mr. Minigan subsequently met with Dr. Wildeboer on March 11, 2008.

50Ms. Hoekstra told Dr. Wildeboer that she had filed a human rights complaint against First Hamilton. She also told him about a potential legal claim against Bethel, but that she would not be pursuing it because it was beyond the statute of limitations. Dr. Wildeboer testified that at that time he did not understand that Ms. Hoekstra was referring to two separate legal claims, and he believed that Ms. Hoekstra had said that she would not be pursuing her human rights complaint against First Hamilton.

51Ms. Hoekstra also sent Dr. Wildeboer a personal letter that she had written to God, which expressed the pain that she was experiencing in “this living hell-hole of so-called Christians.” In cross-examination, she confirmed that she was referring to First Hamilton, among others.

52Dr. Wildeboer agreed to speak to First Hamilton on behalf of Ms. Hoekstra and Mr. Minigan with respect to the reconciliation and membership issues between them, and called Pastor Zantingh on the same day. They discussed the aforementioned issues, as well as Ms. Hoekstra’s human rights complaint.

53Later that day, Dr. Wildeboer sent an email to Ms. Hoekstra and Mr. Minigan, which stated:

I spoke with Pastor Andrew and asked why he and the elders are not to speak with you. It is according to advice given to them by their lawyer – and I quote Andrew – in response to the “human rights complaint Barb registered with the Ontario Human Rights Commission.” He understands that the complaint will be heard in June by a mediator and if it is NOT resolved it will go to trial, with the suggestion from you that their “charitable status be revoked.” They heard you clearly and take it rather seriously.

(…)

[B]efore we can move forward in good faith I want to ask you to retract or withdraw the complaint…. That will remove present barriers to communication and it will allow them to welcome you, speak with you, etc. [Emphasis added]

54Dr. Wildeboer then sent an email to First Hamilton’s consistory, which stated:

I have been meeting with Nick Minigan and Barb Hoekstra and sense God working in them. They informed me that Nick requested Council to become a member of First. They are waiting for your response but I informed them that there is a reluctance to “talk” or “speak” with them due to the present legal ramifications.

They assured me that they definitely are not pursuing any legal action and will not. I am asking them to write a note [to] the Ontario Human Rights Commission that they are retracting their complaint and request that the matter be withdrawn from any further action. I asked them to copy you on the note. I believe that they will do so.

(…)

I also ask you to drop them a note to acknowledge their request for membership and that you are aware of the fact that I am meeting with them.

(…)

When the times comes…. they or I can contact you and request a face to face meeting.

55In cross-examination, Pastor Zantingh and Dr. Wildeboer both denied that the request that Ms. Hoekstra withdraw her human rights complaint came from Pastor Zantingh or First Hamilton. Dr. Wildeboer stated that he made the suggestion to both parties, and that Pastor Zantingh was, in fact, reluctant to speak about the complaint with him, and at no time related the complaint to Ms. Hoekstra and Mr. Minigan’s request for membership.

56When I asked Ms. Hoekstra whether she believed that Dr. Wildeboer was lying about this matter, she responded in the negative, and stated that his request for her to withdraw her human rights complaint came about because of a misunderstanding.

57On March 12, 2008, First Hamilton’s consistory met and discussed Ms. Hoekstra and Mr. Minigan’s membership request. The meeting minutes state that the consistory directed the Clerk to send a letter to Ms. Hoekstra and Mr. Minigan thanking them for their request and expressing excitement that they had initiated a connection with Dr. Wildeboer.

58On March 21, 2008, the Clerk of the consistory sent an email to Ms. Hoekstra and Mr. Minigan, which stated that the consistory was content to follow Dr. Wildeboer’s advice, and would move ahead with the membership request at such time as they or Dr. Wildeboer deemed appropriate.

59On March 25, 2008, Ms. Hoekstra and Mr. Minigan sent an email in response, which stated: “We welcome [Dr. Wildeboer’s] continued involvement as your advisor in this matter.” [Emphasis added] The email went on to say that they found it inappropriate for the consistory to delegate the membership interview and recommendation to Dr. Wildeboer.

60On March 28, 2008, the Clerk sent another email to Ms. Hoekstra and Mr. Minigan, which stated that Dr. Wildeboer was not First Hamilton’s advisor, that he was working on behalf of Ms. Hoekstra and Mr. Minigan, and that the consistory was not delegating any member responsibilities to Dr. Wildeboer. Pastor Zantingh testified that Dr. Wildeboer was no longer associated with First Hamilton, and his contact with First Hamilton on behalf of Ms. Hoekstra and Mr. Minigan was unsolicited.

61In an email to Dr. Wildeboer on March 26, 2008 and a conversation with him on March 27, 2008, Ms. Hoekstra told him that when she had indicated that she would not be pursuing a legal action, she was referring to her claim against Bethel, not her human rights complaint against First Hamilton. Dr. Wildeboer then sent Ms. Hoekstra an email on March 28, 2008, which urged her to withdraw her human rights complaint, and stated that he felt “used and manipulated” by her and Mr. Minigan.

62First Hamilton’s consistory considered Ms. Hoekstra and Mr. Minigan’s membership request at their April 9, 2008 meeting. The meeting minutes indicate that the consistory passed a motion to send two elders to interview them. The interview took place on May 26, 2008.

63On June 11, 2008, the consistory met again to discuss Ms. Hoekstra and Mr. Minigan’s membership request. The meeting minutes indicate that the consistory recommended that their request be considered within the context of a process of mediated reconciliation.

64On June 12, 2008, the parties attended a mediation at the OHRC, which did not result in a settlement of Ms. Hoekstra’s human rights complaint.

65On June 26, 2008, Mr. Minigan sent an email to the Clerk of the consistory and one of the elders who interviewed him, which requested a response to his request for membership. On July 9, 2008, the Clerk sent Mr. Minigan an email, which stated that the consistory recommended that their request be considered within the context of a process of mediated reconciliation, and that the elders were currently discussing what exactly the process would be.

66On July 16, 2008, Mr. Minigan sent a further email to the Clerk and the elder, which stated that Ms. Hoekstra’s unresolved complaints against First Hamilton should not be an obstacle to granting him membership. He also stated the consistory’s position may be discriminatory, and he demanded that the consistory stop “persecuting” him because he was Ms. Hoekstra’s husband.

67On August 11, 2008, the Clerk sent Mr. Minigan an email in response, which stated that his request for membership would be considered separately from that of Ms. Hoekstra. He also stated that the consistory did not appreciate Mr. Minigan’s insinuation that the issues raised by Ms. Hoekstra were being held against him, or his assertion of persecution and his demand that it stop.

68On the same day, the Clerk sent a separate email to Ms. Hoekstra, which stated that membership could not be offered to her unless she and First Hamilton were reconciled in Christ because a number of serious issues had been raised by both her and First Hamilton. He also proposed that the consistory initiate the reconciliation process by bringing in a mediator, who was acceptable to both parties, and asked Ms. Hoekstra to inform him if this proposal was acceptable to her.

69Pastor Zantingh testified that the outstanding issues between the parties were the following: (1) Ms. Hoekstra and Mr. Minigan’s insistence that First Hamilton become involved in Ms. Hoekstra’s dispute against Bethel despite First Hamilton’s lack of authority or involvement in the matter; (2) Ms. Hoekstra and Mr. Minigan’s demand that First Hamilton seek discipline against Ms. Hoekstra’s ex-husband despite First Hamilton’s lack of authority to do so; (3) Ms. Hoekstra’s refusal to acknowledge that her view that she and Mr. Minigan were “married in God’s eyes” was contrary to the beliefs of First Hamilton; and (4) Ms. Hoekstra and Mr. Minigan’s unwillingness to submit to the authority of First Hamilton.

70In cross-examination, Pastor Zantingh also stated that he and the consistory felt that Ms. Hoekstra was not always open and transparent with them.

71Ms. Hoekstra testified that Pastor’s Zantingh’s reasons for denying her and Mr. Minigan membership at First Hamilton were pretexts to cover up the reprisal and discrimination against them. She stated that there was no serious impediment to membership because she had stopped asking First Hamilton to involve itself in what she considered to be the misconduct of Bethel and her ex-husband, and she had not engaged in any sinful behaviour that required repentance. Mr. Minigan’s evidence on this point was similar.

72On August 20, 2008, Ms. Hoekstra and Mr. Minigan delivered a letter to the congregation of First Hamilton, which rejected the authenticity of the consistory’s proposal for reconciliation and mediation. They also accused First Hamilton of hypocrisy, arrogance, indifference, and elitism, and identified their actions as “religious terrorism”. They also indicated that they would be leaving First Hamilton.

73At about the same time, Ms. Hoekstra and Mr. Minigan stopped attending services at First Hamilton, and started attended services at another Christian Reformed Church in Burlington. They subsequently filed Applications with this Tribunal against that Church, as well (File No. 2009-04084-I and 2009-04083-I), which were settled.

74On September 29, 2008, the Clerk of the consistory sent Mr. Minigan an email, which was similar to the email that he sent to Ms. Hoekstra on August 11, 2008 proposing a reconciliation process with a mediator. Mr. Minigan sent an email in response, which only stated: “Luke 3: 7-9”. This Biblical passage addresses repentance, and indicates that those who do not repent will burn in Hell.

75On February 2, 2010, this Tribunal dismissed Ms. Hoekstra’s human rights complaint with respect to her unsuccessful application for a paid job at First Hamilton. See Hoekstra v. First Hamilton Christian Reformed Church, 2010 HRTO 245.

ANALYSIS

Applicable Law and Issues

Human Rights Code

76Together, the Applications relate to sections 1, 8, 9, 12 and 18 of the Code, which provide:

1. Every person has a right to equal treatment with respect to services… without discrimination because of… marital status….

2. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

3. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

4. A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.

5. The rights under Part I to equal treatment with respect to services… are not infringed where membership or participation in a religious… organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

Issues

77In this case, the main issues that I am required to determine are as follows:

1. Did First Hamilton refuse to grant Ms. Hoekstra membership as a reprisal for claiming her rights under the Code?

2. Did First Hamilton discriminate against Mr. Minigan because of his marital status and relationship with a person identified by a prohibited ground of discrimination when it refused to grant him membership?

3. If the answer to 1) and/or 2) is yes, does First Hamilton have a defence pursuant to s. 18 of the Code?

Onus

78The onus is on the applicants to establish a prima facie case of reprisal and discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicants’ favour in the absence of an answer from the respondent. See Ontario Human Rights Commission v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not a reprisal and were not discriminatory.

79I was cognizant of the fact that First Hamilton may have had information about the reasons for its actions, including evidence of reprisal and discrimination, which was not accessible to Ms. Hoekstra and Mr. Minigan. For that reason, I provided Ms. Hoekstra and Mr. Minigan with an opportunity to cross-examine Pastor Zantingh and Dr. Wildeboer.

Credibility

80Where there is conflicting evidence between the parties, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

(…) Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility….

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions…. Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. [Emphasis added]

81Accordingly, I have not considered each witness’s evidence in isolation, but rather, in the context of the totality of the evidence. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 SCR 41, at para. 58.

82After Ms. Hoekstra and Mr. Minigan closed their case, it was clear that many of the relevant facts were not in dispute. One key fact that remained in dispute was whether First Hamilton’s position that Ms. Hoekstra and Mr. Minigan had engaged in sinful behaviour by living together prior to being legally married was a pretext for reprisal and discrimination against them.

83This Tribunal does not have expertise in interpreting the Bible used by the Christian Reformed Church (or any other religious text), and it is not this Tribunal’s role to decide whether or not Ms. Hoekstra and Mr. Minigan had engaged in sinful behaviour according to the Church’s beliefs. In Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 SCR 551, the Supreme Court of Canada stated at paras. 50-51:

(…) the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, “obligation”, precept, “commandment”, custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion.

That said, while a court is not qualified to rule on the validity or veracity of any given religious practice or belief, or to choose among various interpretations of belief, it is qualified to inquire into the sincerity of a claimant’s belief, where sincerity is in fact at issue…. It is important to emphasize, however, that sincerity of belief simply implies an honesty of belief….

84Accordingly, I will limit my finding on this issue to whether or not Pastor Zantingh had a sincere belief that Ms. Hoekstra and Mr. Minigan had engaged in sinful behaviour.

85I did not find Ms. Hoekstra and Mr. Minigan’s evidence to be credible with respect to this issue. During the hearing, Ms. Hoekstra expressed outrage that Pastor Zantingh had assumed that her behaviour was sinful without asking her whether she and Mr. Minigan were in a sexual relationship prior to being formally married. However, when I asked her and Mr. Minigan why they did not take the initiative and tell Pastor Zantingh and the elders that they were not in a sexual relationship prior to being legally married, she became evasive, and, ultimately, both she and Mr. Minigan provided illogical answers.

86Specifically, Ms. Hoekstra’s answer that she never had an opportunity to sit down with Pastor Zantingh and the consistory made no sense, given the fact that she knew since at least June 2007 that they had perceived her to be in a sinful sexual relationship, and she had several subsequent communications with the elders about reconciliation and membership, including an in-person meeting in May 2008.

87Mr. Minigan’s answer that Pastor Zantingh and the consistory never accused him of committing adultery also made no sense, given the fact that he also knew since at least June 2007 that they had perceived Ms. Hoekstra to be in a sinful sexual relationship, and his admission in cross-examination that he was known to be the other party in the alleged unchastity.

88For reasons only known to Ms. Hoekstra and Mr. Minigan, they never raised the issue by telephone, letter or email, or in person with Pastor Zantingh and the elders. In my view, their unwillingness to do so supports, at least in part, Pastor Zantingh’s evidence that Ms. Hoekstra was not always open and transparent with him and the consistory.

89By contrast, I found Pastor Zantingh’s evidence to be credible with respect to this issue. After hearing his testimony, which was forthright, internally consistent, and consistent with the documentary evidence (the consistory’s meeting minutes from 2005 to 2008), I do not believe that it was unreasonable for him to assume that Ms. Hoekstra and Mr. Minigan were engaged in a sexual relationship outside of marriage when Ms. Hoekstra told him that she and Mr. Minigan were living together and were “married in God’s eyes.” Accordingly, I have no doubt that Pastor Zantingh had a sincere belief that Ms. Hoekstra and Mr. Minigan had engaged in sinful behaviour according to the Christian Reformed Church’s beliefs.

Did First Hamilton refuse to grant Ms. Hoekstra membership as a reprisal for claiming her rights under the Code?

90In Noble v. York University, 2010 HRTO 878, the Tribunal set out the applicable principles on reprisal at paras. 30-31 and 33-34:

The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation. It protects the integrity of the process before the Tribunal, as well as in other complaint procedures that may be established under human rights policies. An individual need not prove that their rights have in fact been infringed to claim protection of section 8. As the Court has said, “Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.” See: Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), at para. 4.

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON H.R.T.); Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON H.R.T.); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

91Ms. Hoekstra alleged that First Hamilton denied her membership as a reprisal for filing a complaint against First Hamilton with the OHRC. After hearing Ms. Hoekstra and Mr. Minigan’s evidence, including the cross-examination of Pastor Zantingh and Dr. Wildeboer, I am not satisfied that that Ms. Hoekstra established a prima facie case of reprisal.

92First Hamilton received and became aware of Ms. Hoekstra’s human rights complaint in late October 2007. Prior to that, First Hamilton’s consistory had refused to consider Ms. Hoekstra for membership because, in its view, the fact that she and Mr. Minigan had lived together without being legally married was sinful. First Hamilton and Ms. Hoekstra also had conflicts over a number of matters, including Mr. Minigan’s April 2007 open letter on her behalf to the congregation, and Ms. Hoekstra’s request that First Hamilton investigate the alleged misconduct of Bethel and her ex-husband. Furthermore, between late September and mid-October 2007, First Hamilton’s consistory proposed reconciling the outstanding issues between First Hamilton and Ms. Hoekstra with a mediator.

93First Hamilton received Ms. Hoekstra’s formal membership request in February 2008, which was after it received her human rights complaint. The consistory ultimately decided in June 2008 that membership could not be offered to her until the outstanding issues between them were reconciled with a mediator.

94In view of the fact that Ms. Hoekstra continued to maintain that her living arrangements with Mr. Minigan prior to being legally married were not sinful, none of the outstanding issues between her and First Hamilton’s consistory were ever resolved, and First Hamilton’s consistory’s view on Ms. Hoekstra becoming a member was the same before and after it received her human rights complaint, I cannot see how Ms. Hoekstra’s filing of such a complaint resulted in her being denied membership at First Hamilton.

95During the hearing, Ms. Hoekstra attempted to establish that Pastor Zantingh told Dr. Wildeboer that First Hamilton’s consistory would not consider her membership request unless she withdrew her human rights complaint. However, Pastor Zantingh and Dr. Wildeboer both credibly testified that this was not the case, and by the end of the hearing, Ms. Hoekstra conceded that this never happened. It was undisputed that the request came solely from Dr. Wildeboer, who was acting on her, not First Hamilton’s, behalf.

96In these circumstances, I find that there is insufficient evidence to establish a prima facie case of reprisal.

Did First Hamilton discriminate against Mr. Minigan because of his marital status and relationship with a person identified by a prohibited ground of discrimination when it refused to grant him membership?

97After hearing Mr. Minigan and Ms. Hoekstra’s evidence, including the cross-examination of Pastor Zantingh, I am not satisfied that Mr. Minigan established a prima facie case of discrimination.

98Mr. Minigan’s position was that First Hamilton denied him membership because Ms. Hoekstra was his wife, not because of issues of sinful or defiant behaviour. In my view, this position was a bald statement that was not supported by any credible evidence.

99In 2005, First Hamilton’s consistory had refused to consider Ms. Hoekstra for membership because, in its view, the fact that she was living with a man without being legally married was sinful. In view of the fact that Mr. Minigan was the man whom she was living with, I cannot see how he can deny that his behaviour, which he admits he never repented, was also viewed by the consistory as sinful, and presented a barrier to membership.

100In addition, in April 2007, Mr. Minigan circulated a highly inflammatory letter to the entire congregation of First Hamilton, which appeared to suggest that First Hamilton and Pastor Zantingh were involved in alleged injustices against Ms. Hoekstra, including sanctioning her ex-husband’s (alleged) affair with an escort. I accept Pastor Zantingh’s evidence that some members of the congregation read it that way, even if that was not Mr. Minigan’s intention. In any case, the letter was an attack on the leadership of First Hamilton, and I cannot see how Mr. Minigan can deny that it presented a barrier to membership.

101Furthermore, Mr. Minigan continued to attack the leadership of First Hamilton by sending them increasingly confrontational emails and letters, including, ultimately, a Biblical passage that implied that they would burn in Hell if they did not repent.

102In these circumstances, I find that there is insufficient evidence to establish a prima facie case of discrimination based on marital status and a relationship with a person identified by a prohibited ground of discrimination.

103In view of my decision, it is not necessary to consider whether First Hamilton has an absolute defence pursuant to s. 18 of the Code.

ORDER

104The Applications are dismissed.