George Tesseris v. Greek Orthodox Church of Canada, 2011 HRTO 775

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Tesseris

Applicant

-and-

Greek Orthodox Church of Canada

Respondent

DECISION

Adjudicator: David A. Wright

Date: April 19, 2011

Citation: 2011 HRTO 775

Indexed as: Tesseris v. Greek Orthodox Church of Canada

WRITTEN SUBMISSIONS

George Tesseris, Applicant ) Self-represented

Greek Orthodox Church ) Father Peter Mentis, of Canada, Respondent ) Representative

INTRODUCTION

1The applicant, who identifies as a gay man, alleges that the respondent Greek Orthodox Church of Canada discriminated against him on the basis of sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). He states that he approached a priest who was blessing his parents’ home for assistance in dealing with his parents’ views toward homosexuality. He says that when he disclosed his sexual orientation, the priest made statements expressing his views on homosexuality that violate the Code.

DECISION

2The actions of a clergyperson performing purely religious functions are not covered by the social area of “services” in the Code. The alleged interaction between the applicant and the priest is not subject to the Code. Accordingly, the Application is dismissed.

BACKGROUND

3This Application was filed on August 3, 2010, and alleges discrimination in goods, services or facilities because of sexual orientation contrary to s. 1 of the Code. By Case Assessment Direction dated September 29, 2010, the Tribunal directed that the respondent was not required to file a response at this time and scheduled a summary hearing, pursuant to Rule 19A of the Tribunal’s Rules of Procedure, on whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The parties were directed to be prepared to address, among other matters, the issue of whether a priest is providing a “service” within the meaning of s. 1 of the Code when he has a discussion with an individual.

ANALYSIS

4Section 1 of the Code reads as follows:

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.

5The principles relevant to the interpretation of the Code were summarized as follows in Whiteley v. Osprey Media Publishing, 2010 HRTO 2152 at para. 16:

It is a general principle of human rights legislation that rights are to be broadly construed and exceptions must be defined narrowly. In interpreting any statute, a court or tribunal must take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Saulnier v. Royal Bank of Canada, 2008 SCC 58 at para. 16; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42.

6The interpretation of the meaning of “services” in light of the purposive and contextual approach to statutory interpretation does not involve merely looking at the words: Gould v. Yukon Order of Pioneers, 1996 CanLII 231 (SCC), [1996] 1 S.C.R. 571; Gay Alliance Toward Equality v. Vancouver Sun, 1979 CanLII 225 (SCC), [1979] 2 S.C.R. 435; Whiteley, supra; Dallaire v. Les Chevaliers de Colomb – Conseil 6452, 2011 HRTO 639; Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595. Moreover, if there is ambiguity about whether “services” includes the interactions in question, it must be resolved in favour of the protection of rights under the Canadian Charter of Rights and Freedoms: Whiteley, supra, at para. 17; Dallaire, supra; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at paras. 61-66.

7In Dallaire, supra, the Tribunal held, referring to the s. 2(a) Charter protection of freedom of religion, that the manifestation of religious belief in an inscription displayed on church property is not a “service” or “facility” within the meaning of s. 1 of the Code. The Tribunal noted that it is not an appropriate use of the Code to challenge a religion’s belief system or teachings and that the meaning of “service” or “facility” is subject to the right of others to exercise their freedom of religion.

8As noted in Reference re Same-Sex Marriage, 2004 SCC 79, at para. 57:

The right to freedom of religion enshrined in s. 2(a) of the Charter encompasses the right to believe and entertain the religious beliefs of one’s choice, the right to declare one’s religious beliefs openly and the right to manifest religious belief by worship, teaching, dissemination and religious practice: Big M Drug Mart, supra, at pp. 336-37. The performance of religious rites is a fundamental aspect of religious practice.

9Teaching, dissemination and religious practice by clergy is clearly at the very core of this right. On the applicant’s version of events, he approached the priest, in the course of performing a religious rite in his parents’ house, to seek his assistance as a member of the Greek Orthodox clergy. In giving a response in accordance with his faith, the priest was exercising rights at the core of his right to freedom of religion and that were purely connected with his religious role. Accordingly, this Application does not fall within the social area of “services” under the Code.

10The Application is outside the Tribunal’s jurisdiction and it is dismissed.