Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marguerite Dallaire Applicant

-and-

Les Chevaliers de Colomb - Conseil 6452 Respondent

DECISION

Adjudicator: Michelle Flaherty Date: April 5, 2011 Citation: 2011 HRTO 639 Indexed as: Dallaire v. Les Chevaliers de Colomb

APPEARANCES

Marguerite Dallaire, Applicant (Self-represented) The Knights of Columbus - Council 6452, Respondent (Marcel Clément, Representative)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, ("Code") alleging discrimination on the basis of sex and creed in the provision of goods, services and facilities.

2The issue in this Application is whether the Code applies to a monument erected on the grounds of a Catholic church and bearing the following inscription:

Let us pray that all life rests in the hands of God from conception until natural death. [Translation]

3According to the applicant, the reference to life "from conception until natural death" is a statement against abortion. The applicant argues that this inscription is offensive and discriminatory because it denounces, victimizes, and excludes women.

4Following a Case Assessment Direction issued on October 7, 2010, the Application proceeded by way of a summary hearing in accordance with Rules 19A.1 and 19A.2 of the Tribunal's Rules of Procedure.

5The summary hearing was held by telephone conference on February 16, 2011. The Tribunal heard submissions from the applicant and from the respondent's representative.

6For the reasons that follow, the Application is dismissed. I understand from her submissions that the applicant strongly disagrees with the Catholic Church's beliefs regarding abortion and that she feels targeted by the message on the monument. However, the Tribunal has no jurisdiction to scrutinize the content of religious teaching and beliefs, particularly where these are conveyed on the premises of a religious organization.

7The inscription is not a "service" or "facility" within the meaning of section 1 of the Code. Accordingly, the Application is outside the Tribunal's jurisdiction (power to decide) and it is dismissed.

THE FACTS

8The facts giving rise to this Application are straightforward and not in dispute.

9The respondent is a fraternal service organization. Membership is limited to men over the age of 18 who are practicing Catholics. One of the respondent's main purposes is to promote the teachings of the Catholic Church.

10The applicant is a member of the Catholic Church and a member of its parish in L'Orignal. I note that neither the Catholic Church nor the parish is a respondent in this proceeding.

11The applicant explained in her submissions that she is deeply offended by the Catholic Church's teachings on abortion and that she feels that they and the monument in question are discriminatory towards women.

12The respondent donated the inscribed monument to a Catholic church located in L'Orignal. Since 2001, the monument has stood on that church's property, within approximately three meters of the public sidewalk.

13The parties agree that the inscription cannot be read from the sidewalk and that, to read the inscription, a person must enter church property. There is no dispute that the inscription is consistent with the Catholic Church's position on, among other things, abortion, euthanasia, and suicide.

ANALYSIS

Statutory framework

14Section 1 of the Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

15As the issues raised in this Application also engage issues related to freedom of religion, I set out the relevant provision of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 ("Charter"):

2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

Freedom of religion

16In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 ("Big M"), the Supreme Court of Canada described the nature and meaning of freedom of religion under the Charter. It also discussed the various components that form part of that Charter right.

17In Big M, the Court wrote, at paras 94-96:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

18Thus, the right to freedom of religion is two dimensional: it includes a freedom to believe, worship, and practice according to one's choices, as well as a freedom from being directly or indirectly coerced to accept or adopt any beliefs, practices or forms of worship.

19The applicant argues that her right to be free from discrimination under the Code includes the right to be free from religious coercion or constraint, including exposure to religious messaging.

20In considering the applicant's arguments, I am mindful that they relate to only one element of the freedom of religion. As the facts of this case illustrate, the two dimensions of freedom of religion may be closely interrelated. The applicant's assertions must be considered together with the respondent's members' Charter right to disseminate and practice their own beliefs.

21As the Supreme Court of Canada explained in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 ("Amselem"), at para. 61:

In this respect, it should be emphasized that not every action will become summarily unassailable and receive automatic protection under the banner of freedom of religion. No right, including freedom of religion, is absolute [...] This is so because we live in a society of individuals in which we must always take the rights of others into account.

22Importantly, in the Application, the applicant is not asserting a violation of her Charter right to freedom of religion. She is claiming that she has been discriminated against under the Code. I reference the Charter because it is well-established that the Code and the Charter share common objectives and should be interpreted in a congruent manner. See, for example, Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593; Ball v. Ontario (Community and Social Services), 2010 HRTO 360; Mortillaro v. Ontario (Transportation), 2011 HRTO 310. This is specifically the case in the context of freedom of religion. See Amselem.

23Accordingly, in considering whether the issues raised by the applicant fall within the Tribunal's power to decide, and, if so, whether they constitute a violation of the Code, I must be mindful of the principles that have developed under the Charter.

Does the Application relate to a service or facility within the meaning of section 1 of the Code?

24As the Tribunal explained in Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765, the Tribunal must determine whether the allegations in an application implicate a right to equal treatment on the grounds listed in the Code and in relation to the social areas of employment, accommodation, and goods, services, and facilities. If an application does not implicate one of these grounds or social areas, the Code does not apply to the situation and the Tribunal has no jurisdiction to determine the allegations.

25The applicant argues that the monument is a "facility" within the meaning of section 1. She does not argue that it constitutes a "service" for the purposes of the Code.

26It may be that a monument is a "facility" within the ordinary sense of the word. However, the issue before me is whether it is a "facility" for the purposes of the Code. As I explain below, not all existing structures involve the provision of a facility within the meaning of the Code.

27The Tribunal has not had many occasions to consider the meaning of "facility". However, there is a considerable body of Tribunal jurisprudence interpreting the meaning of "service" for the purposes of section 1 of the Code. See, for example, Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595; Cartier v. Nairn, 2009 HRTO 2208; and Whiteley v. Osprey Media Publishing, 2010 HRTO 2152.

28The Tribunal has stated that section 1 of the Code must be interpreted broadly and purposively. However, while some aspects of a respondent's activities may be a "service" within the meaning of section 1, other elements may not meet the definition of "service" and will not be subject to scrutiny under the Code. See Dopelhamer, supra and Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (S.C.C.), [1996] 1 S.C.R. 571.

29Thus, in Zaki, supra, the Tribunal held that while a statutory decision-making process is a "service" for the purposes of the Code, there are elements of that process that are not encompassed by the Code's meaning of "service", such as the decision itself. The Tribunal has repeatedly held that the content, reasons and the result contained in a decision of a statutory decision-maker are not part of the "service" a statutory Tribunal is providing to the public.

30In Whiteley, supra, the Tribunal held that the content of a newspaper editorial is not a "service" within the meaning of s. 1 of the Code. In reaching that conclusion, the Tribunal referenced the Supreme Court of Canada's decision in Gay Alliance Toward Equality v. Vancouver Sun, 1979 CanLII 225 (S.C.C.), [1979] 2 S.C.R. 435 ("GATE"), where the majority of the Supreme Court held that the definition of service was subject to the right of the newspaper to control the content of advertising.

31In Whiteley, supra, the Tribunal noted that this conclusion is strengthened by the Charter, which came into force after GATE was decided, and which guarantees freedom of the press, including editorial opinion.

32There are important similarities between this matter and Whiteley, supra. In both cases, the applicant asserted a right under the Code that engages issues that are at the core of others' Charter rights.

33The freedom from coercion and imposition of religious beliefs is an important part of the freedoms protected under section 2 of the Charter. However, as I consider the applicant's Code-related rights, this element to the right of freedom of religion must not be interpreted in a way that voids the positive dimension of the freedom (the right to hold beliefs, practice and disseminate them) of any meaning.

34The respondent also has rights under section 2 of the Charter which, according to the Supreme Court of Canada in Big M, include the right to express itself and disseminate information consistent with its religious beliefs. In this case, it is significant that the monument in question is located on church property and that the inscription is an expression of religious beliefs.

35The applicant is offended by the inscription on the monument. At the hearing, she explained that she strongly disagrees with the Catholic Church's beliefs regarding abortion. It is clear to me that the applicant is attempting to use the Code as a vehicle to challenge not only the monument but also the Catholic Church's belief system and teachings. In my view, this is not an appropriate use of the Code.

36The meaning of "service" or "facility" under the Code is subject to the right of others to express their own freedom of religion. See GATE. The inscription on the monument is clearly an expression of religious belief. Applying the reasoning from GATE and Whiteley, supra, I conclude that the manifestation of religious belief in an inscription displayed on church property is not a "service" or a "facility" within the meaning of section 1 of the Code.

37This is, of course, not to say that the Code does not apply to religious organizations or even to the dissemination of religious information in certain contexts.

38In this regard, my reasoning is not inconsistent with the decision of the British Columbia Human Rights Tribunal ("BCHRT") in Smith and Chymyshyn v. Knights of Columbus and others, 2005 BCHRT 544. In that case, the BCHRT held that the respondents had breached the British Columbia Human Rights Code, R.S.B.C. 1996 ch. 210, when they refused to rent facilities to the applicants. The applicants were a gay couple and sought to celebrate their wedding in a hall owned by the respondents. The respondents argued that they did not breach the Code and that, in light of their belief system and their own right to freedom of religion under section 2(b) of the Charter, they could refuse to rent the facility for the celebration of a gay marriage. The Tribunal rejected that argument and found that there had been a denial of accommodation on the basis of sexual orientation. The Tribunal concluded that the respondents' rationale for denying the accommodation (because its intended use was in opposition to their core religious beliefs) did not constitute a reasonable justification.

39It may be that a religious organization that rents a hall or building is providing a facility for the purposes of section 1 of the Code. Similarly, religious "facilities" that are not accessible to a person with a disability might be found to fall within the purview of the Code. However, these are not issues I need decide in the matter before me.

40This case is different in that, here, the issue is the content and expression of a religious belief, which is not a service or facility within the meaning of the Code. The fact that some of a religious organizations activities are not "services" or "facilities" for the purposes of the Code does not, however, mean that other aspects of that organization's activities will be immune from scrutiny under the Code.

41This case is also factually different from Streeter v. HR Technologies, 2009 HRTO 841 ("Steeter"). In that matter, the Tribunal found that, during the course of the applicant's employment with the respondent, he was subjected to a religious atmosphere in which he felt he compelled to participate as part of his employment. The Tribunal held that the extent of the religious messaging and pressure was such that it violated the Code.

42The Tribunal wrote (at para. 4):

This Decision should not be taken as meaning that any discussion in the workplace about religious topics or a person's own religious practices or beliefs will constitute a breach of the Code. It is important that people in a workplace, including the employer, be able to express their opinions freely (within the confines of the Code). However, as pointed out in the Dufour case, the employer must be very careful to not put any unwelcome pressure on an employee such that religion or religious adherence becomes a term and condition of employment.

43Streeter arose in the employment context; there was clear nexus between the unwelcome religious pressure and the applicant's status as an employee of the respondent. As such, the issue of whether the religious pressure was a "service" or a "facility" did not arise.

44In any event, the nature of the parties' rights in Streeter is different from those engaged here. In Streeter, the exposure to religious beliefs in the workplace involved a different degree of coercion or constraint for the employee than a monument erected on a church's property does for a member of the public or even a member of the Church. Also, while the employer is free to express religious beliefs, the respondent's rights to display information consistent with religious beliefs on the grounds of a religious institution is more fundamentally at the core of freedom of religion in the Charter.

CONCLUSION

45For all of the above reasons, the Application is dismissed. Interpreting the Code purposively and in light of the Charter, the inscription on the monument erected on church property is an expression of religious belief that is not a "service" or a "facility" within the meaning of section 1 of the Code. The Tribunal has no jurisdiction over the issues raised in the Application.

Dated at Toronto, this 5th day of April, 2011.

"signed by"_____________

Michelle Flaherty Vice-chair