Human Rights Tribunal of Ontario
B E T W E E N:
Mohamed Chaarani Applicant
-and-
Islamic Society of Guelph and Muhammad Sharif Respondents
INTERIM DECISION
Adjudicator: Laurie Letheren Date: September 7, 2016 Citation: 2016 HRTO 1178 Indexed as: Chaarani v. Islamic Society of Guelph
WRITTEN SUBMISSIONS
Mohamed Chaarani, Applicant Self-represented
Islamic Society of Guelph and Muhammad Sharif, Respondents Donald Kidd, Counsel
Introduction
1This Application alleges discrimination with respect to membership in a vocational association because of race contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The applicant alleges, among other things, that the respondents revoked his membership from the Islamic Society of Guelph and excluded him from his mosque because he was not an Uzbek Muslim.
3The respondents have filed a Request for Order During Proceedings (Request) to dismiss the Application on the basis that the Application has no reasonable prospect of success because the applicant his indicated that he experienced discrimination by being excluded from membership in a vocational association and the Islamic Society of Guelph is not a vocational association.
4In addition, the respondents request the Application be dismissed on the basis that the Islamic Society of Guelph, is a special interest group that is protected by section 18 of the Code from a finding that it has breached the applicant's Code rights. Section 18 of the Code, states:
Rights … are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or 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.
Section 18 Special Interest Group
5The respondents submit that the Islamic Society of Guelph is a religious institution that restricts its membership to those who identify as members of the Muslim faith and as such it is exempt from the application of the Code under section 18 of the Code.
6The respondents submit that the only limitation for membership in the Islamic Society of Guelph is adherence to the Muslim faith.
7The applicant alleges that he adheres to the Muslim faith and it does not appear that the respondents dispute this allegation. The applicant alleges that he was excluded from membership in the Islamic Society of Guelph because of his race.
8Section 18 does not exempt all activity of a special interest group from application of the Code. The proper interpretation of section 24 (now section 18) was expressed by the Divisional Court in Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at paragraph 73:
The language and purpose of the provision require an analysis of the nature of the particular activity engaged in by a religious organization to determine whether it is seen by the group as fundamentally a religious activity. This must be followed by an assessment of whether that activity furthers the religious purposes of the organization and its members, thus serving the interests of the members of the religious organization.
9The issue of whether section 18 exempts the respondents from Code application in this Application is a complex legal issue that will be best determined with the benefit of a full evidentiary record. It is not an appropriate case for dismissal under the summary hearing process.
Respondent is not a Vocational Association
10The respondents claim that the Islamic Society of Guelph is not a vocational association and therefore the Application has no reasonable prospect of success.
11As it appears that the applicant is making allegations that would be better framed as discrimination in the receipt of services, the applicant may in future wish to make a Request for Order During Proceedings (Request) to Amend the Application to include the social area of discrimination "goods, services and facilities". In the alternative, the Tribunal could raise the issue of this amendment on its own.
12As a result, it does not appear that it is appropriate to order a summary hearing to address the issue of whether the Application has a reasonable prospect of success.
ORDER
13The Application will proceed through the Tribunal process.
14Within 10 days of the date of this Interim Decision, the respondents shall notify the Tribunal whether they wish to engage in mediation.
15I am not seized.
Dated at Toronto, this 7th day of September, 2016.
"Signed By"
__________________________________
Laurie Letheren Vice-chair