Allan Clipperton-Boyer v. RedFlagDeals.com, 2014 HRTO 1796

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allan Clipperton-Boyer Applicant

-and-

RedFlagDeals.com, a division of Yellow Pages Group Corp. Respondent

DECISION

Adjudicator: Mark Hart Date: December 17, 2014 Citation: 2014 HRTO 1796 Indexed as: Clipperton-Boyer v. RedFlagDeals.com

APPEARANCES

Allan Clipperton-Boyer, Applicant Self-represented

RedFlagDeals.com, a division of Yellow Pages Group Corp., Respondent Kiran Patel, Counsel and Yousaf Khan, Student-at-Law

1This is an Application dated March 18, 2013, alleging discrimination with respect to services, goods and facilities because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In brief, the issue in this case relates to an avatar that the applicant uses when he is posting messages to the respondent’s website, which is a “Christ fish” and (except for a very brief period of time) included the words “Jesus Christ, God’s Son, Saviour” underneath. He has been asked by the respondent to stop using this avatar because it is religious in nature and contrary to the respondent’s Forum Rules.

3The hearing in this matter was held on September 29, 2014. I heard evidence from the applicant and from the respondent’s Senior Product Manager. As the applicant was self-represented, I took the lead in questioning him to elicit his evidence.

The RFD Website

4RedFlagDeals.com (“RFD”) is a website that is owned and operated by Yellow Pages Group Corp. The website connects its users to shopping information for a wide range of industries. The website also features online forums whereby users can post comments and participate in online discussions relating to various deals.

5The RFD forums are extremely active, with more than 600,000 users and almost 16 million posts to date. The respondent’s Senior Product Manager testified that there are 2,500 new threads or topics posted each week, and approximately 30,000 to 40,000 posts each week.

6Individuals sign up with the website as users, and can identify themselves by name or pseudonym and may also use “avatars” which can include images and/or text to identify their posts in RFD forums. When signing up as a user, individuals agree to be bound by the respondent’s Terms of Use and Rules (the “Forum Rules”). The Forum Rules apply to all communications by users on the website. The respondent states that the Forum Rules are put in place to enable users to discuss consumer shopping deals in a safe and inclusive online community in which users treat each other with respect. The Forum Rules prohibit potentially controversial content, including religious and political threads. The Forum Rules state that this prohibition applies to all content, whether text, images, audio or video. There was some dispute between the parties as to when a specific “avatar policy” was added to the Forum Rules. In the version of the Forum Rules submitted into evidence at the hearing, a specific avatar policy is included which states that “all standard forum rules apply to avatar content”. In my view, it makes no difference as to when the Forum Rules first included a specific avatar policy, as the general rules already expressly applied to all content.

7The respondent states that the Forum Rules reflect the concern that off-topic postings relating to controversial topics such as politics or religion can lead to personal attacks, angry disputes and discriminatory remarks. Examples of such off-topic threads were submitted into evidence before me. The applicant understands this concern, and does not take issue with the prohibition against political or religious discussions in the message threads. The respondent also submitted into evidence samples of rules from other commercial websites which contain similar prohibitions.

8The Forum Rules are administered and enforced by a group of volunteer moderators who are led by a Community Manager. Only the Community Manager is employed by the respondent, and the volunteer moderators are selected from the website’s user community. Given the volume of posts to the website, the enforcement of the Forum Rules is largely reactive and relies upon complaints or reports by the website’s users. If a complaint or report is made about content posted by a user, the complaint is first reviewed by a volunteer moderator to determine whether the post violates the Forum Rules. If necessary, the issue can be escalated to the Community Manager. The respondent uses an infraction system, whereby infraction points are assessed against a user account based upon the severity of the violation. When a user reaches a certain number of infraction points (between 10 and 14), the account may be placed under moderation, which means that the user’s posts need to be approved before they appear on the site. At 15 or more infraction points, the user’s account is temporarily suspended. If this happens three times, the user’s account will be permanently suspended. In addition, there are certain offences, such as posting nude images or “cookie stuffing”, that result in a permanent suspension without prior warning.

The Applicant

9The applicant has been a user of the RFD website since July 2006. He is a frequent contributor to the site, averaging about 100 posts per month. He states that sometime in late 2007 or in 2008, he started using the Christ fish avatar described above. This avatar appears beside every post made to the website by the applicant.

10On July 11, 2011, the applicant received a private message from the website’s then Community Manager asking him to remove or change his avatar to comply with the Forum Rules, in response to a complaint made by another user. The applicant refused to do so, and asserted his right under the Code not to be subjected to discrimination because of creed. The applicant continued using the avatar and no further action was taken by the respondent.

11In June 2012, the respondent received a number of complaints from users regarding the religious nature of the applicant’s avatar. As a result, on June 21, 2012, the then Community Manager once again asked the applicant to change his avatar on the basis that it was religious in nature and not allowed under the Forum Rules. The applicant once again asserted his rights under the Code. No further action was taken by the respondent.

12On January 29, 2013, another website user sent a private message to the applicant stating that he had reported the applicant’s avatar and had demanded that it be removed. The applicant states that he went to the “support” section of the website and posted a message to the respondent’s management asserting that they could not legally ask him to remove or change his avatar, again with reference to his rights under the Code. The applicant states that he subsequently exchanged private messages with the website’s then Community Manager regarding the Forum Rules and asserting that he would contact the Ontario Human Rights Commission if the respondent continued to bother him about his avatar. The applicant states that the then Community Manager said that he would contact the respondent’s legal counsel, but the applicant never heard anything further. As a result, the applicant filed his Application in March 2013.

13At some point in early 2013, the applicant briefly altered his avatar by removing the English words “Jesus Christ, God’s Son, Saviour” that appeared underneath the Christ fish symbol, although he retained the Greek lettering inside the fish which signifies the same message. A short time later, the applicant restored the English words that had previously appeared in his avatar and continued using his avatar in its original form. No action was taken by the respondent at that time, although the applicant states that his avatar was subsequently removed from the website sometime between June 12, 2014 and October 1, 2014.

Analysis and Decision

14The issue before me is whether the circumstances giving rise to this Application support a violation of the applicant’s rights under s. 1 of the Code, which guarantees the applicant’s right to equal treatment with respect to services, goods and facilities without discrimination because of, among other things, creed.

15In particular, the issue for me to determine is whether the applicant’s use of the Christ fish avatar engages the protection under the Code against discrimination because of creed. As the jurisprudence makes clear, it is not every personal manifestation of an individual’s creed that is capable of engaging the Code’s protection. Rather, the Code’s protection against religious discrimination is circumscribed to cover only certain significant aspects of an individual’s religious beliefs or practices. As stated by the Supreme Court of Canada in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 at para. 69:

… regardless of the position taken by religious officials and in religious texts, provided that an individual demonstrates that he or she sincerely believes that a certain practice or belief is experientially religious in nature in that it is either objectively required by the religion, or that he or she subjectively believes that it is required by the religion, or that he or she sincerely believes that the practice engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith, and as long as that practice has a nexus with religion, it should trigger the protection of s. 3 of the Quebec Charter or that of s. 2(a) of the Canadian Charter, or both, depending on the context.

16While the Amselem decision references the Quebec Charter and the Canadian Charter, it is my view that the Supreme Court’s description of the ambit of the right to be free from religious discrimination applies equally under the Ontario Code. Accordingly, I find that in order the engage the protection of the Ontario Code against discrimination because of creed, an applicant must demonstrate that he or she sincerely believes that a certain practice or belief is experientially religious in nature in that it is either:

a. objectively required by the religion, or b. that he or she subjectively believes that it is required by the religion, or c. that he or she sincerely believes that the practice engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith, and as long as that practice has a nexus with religion.

17The applicant in the instant case self-identifies as a Protestant Christian. He does not assert that his use of the Christ fish avatar is either objectively required by his religion, or that he subjectively believes that it is required by his religion. Rather, when asked why he used this avatar, the applicant’s evidence was that it is an outward display of his faith and beliefs, which he compared to a T-shirt or a tattoo.

18During the course of the hearing, I specifically directed the applicant to the language of the Amselem decision, and asked him how his practice of using this avatar “engenders a personal, subjective connection to the divine or to the subject or object of his … spiritual faith, and … has a nexus with religion”. In response, the applicant stated that that the use of this avatar would bring him “a little spark of faith” and would remind him of his faith. He acknowledged that the use of this avatar would not make him feel profoundly or deeply affected, but stated that “it was a little tweak in my heart” and that it made him feel good and brought him closer to God each day. He states that it was not a flashy or gaudy avatar, but was more of a passive demonstration of his faith and was meant to highlight his beliefs, particularly to other Christians.

19In my view, while I certainly acknowledge and respect the sincerity of the applicant’s feelings about his use of the avatar, I find that it cannot reasonably be said that his use of this avatar engenders the kind of personal, subjective connection to the divine or to the subject or object of the applicant’s spiritual faith that is required to engage the applicant’s rights under the Code. In my view, the applicant’s analogy of his use of the avatar to wearing a religious T-shirt or having a religious tattoo is apt. It is simply a personal and outward display of one’s religious beliefs that may make the person feel good and remind them of their faith, but does not engender any profound or deep connection to the divine.

20In my view, this case is similar to the decision of the Ontario Grievance Settlement Board in Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services) (Barillari Grievance), [2006] O.G.S.B.A. No. 176, which addressed the situation of an employee who handed out holidays gifts to co-workers which consisted of a pen with religious scripture attached and who was directed not to engage in religious conversations or invitations in the workplace. The Board found that the rights to hand out religious gifts or engage in religious conversations or invitations in the workplace are not rights that are protected by the prohibition against discrimination on the basis of religion, citing the Amselem decision: see paras. 95 and 96. In dismissing the grievance, the Board stated that, while the grievor may have extremely deep religious convictions that she could not separate from any aspect of her day-to-day life, and while the ability to hand out religious gifts or engage in religious discussions may be extremely important to her, there was no evidence that this formed any part of her religion or was rooted in any religious belief or practice. Rather, it was nothing more than a deeply held personal desire that she be able to do so.

21In the same way, in my view, the applicant’s use of the Christ fish avatar is not rooted in any religious belief or practice, but is rather a personal desire to outwardly manifest his religious faith. While that may be significant and important to the applicant personally, it is not sufficient to engage the protection of the Code.

22The applicant sought to distinguish the Barillari decision on the basis that the grievor’s conduct in that case was more active in nature, while his use of the avatar is more passive. Whether or not that is so, any distinction between active and passive conduct does not assist the applicant in establishing that his use of the avatar meets the threshold requirement to engage the protection of the Code.

23The applicant also tendered into evidence examples of avatars used by other users which may also be in violation of the Forum Rules. This evidence does not assist the applicant. The applicant had not made any complaints and was not aware of any complaints made about two of the avatars, and was uncertain as to whether he had made a complaint about the third avatar. As previously indicated, there is a high level of postings to the RFD website, such that the enforcement of the Forum Rules is largely reactive to complaints or reports. In the absence of clear evidence that any of these other avatars had been complained about or reported, it is my view that no conclusion can be drawn from their continued use. In any event, any issue of selective enforcement of the Forum Rules would only assist the applicant if he were able to establish through evidence that the respondent was selectively targeting specific users on the basis of their creed. There is no evidence before me to support that the respondent was doing this.

ORDER

24For the foregoing reasons, the Application is dismissed.