Lionel Barker v. St. Elizabeth Health Care, 2016 HRTO 94

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lionel Barker

Applicant

-and-

St. Elizabeth Health Care

Respondent

DECISION

Adjudicator: Mark Hart

Date: January 20, 2016

Citation: 2016 HRTO 94

Indexed as: Barker v. St. Elizabeth Health Care

APPEARANCES

Lionel Barker, Applicant

Self-represented

St. Elizabeth Health Care, Respondent

Deborah Berlach, Counsel

1This is an Application dated May 16, 2014 and filed with the Tribunal on June 4, 2014 alleging discrimination with respect to the provision of services because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The allegation raised in this Application that is within this Tribunal’s jurisdiction is an allegation that the respondent failed to accommodate the applicant’s needs related to his creed when they sent male personal support workers (“PSW”s) to the applicant’s home commencing sometime in or after January 2014.

3The applicant states that he is an adherent of the Rastafarian faith, and that Rastafarianism strictly prohibits a man to bathe a Rastaman, or a Rastaman’s Queen (his wife or partner) or a Rastaman’s children, boy or girl.

4I accept that Rastafarianism is a creed within the meaning and protection of the Code, and that the applicant has been an adherent of the Rastafarian faith for over 40 years. I also accept the sincerity of the applicant’s personal and deeply-held belief and conviction that he does not want to be bathed by a man. I believe the applicant when he says, in his own words, that he would rather be unclean and dirty than be cleansed by any male.

5The question for me to consider at this stage of the proceeding is whether there is sufficient evidence before me to satisfy me that the applicant’s belief and conviction has a “nexus with religion” or is “rooted in religion”, as required in order to invoke the protection of the Code.

Procedural background

6As stated above, the Application in this matter was filed with the Tribunal on June 4, 2014. The Application was served on the respondent on June 30, 2014, and a Response was filed on August 25, 2014. As both parties agreed to mediation, mediation was conducted by the Tribunal on December 4, 2014 but was not successful in resolving the matter.

7By Case Assessment Direction (“CAD”) dated January 30, 2015, I directed that a one-half day in-person hearing be convened to address the threshold issue of whether the applicant could establish that a requirement for female-only PSWs is a legitimate creed-related requirement, as opposed to a matter of personal preference.

8In this CAD, I stated that, 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 (“Amselem”):

. . . 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.

9I stated that, while the Amselem decision references the Quebec Charter and the Canadian Charter, the Supreme Court’s description of the ambit of the right to be free from religious discrimination applies equally under the Ontario Code. In order to 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.

See Clipperton-Boyer v. RedFlagDeals.com, 2014 HRTO 1796 at paras. 15-16.

10Based on the existing case law, I stated in the CAD that the threshold issue that needed to be determined in order for this matter to fall within this Tribunal’s jurisdiction is whether a female-only PSW requirement is experientially religious in nature in that either: (a) a female-only PSW requirement is objectively required by the Rastafarian religion; or (b) the applicant sincerely believes that a female-only PSW requirement is required by the Rastafarian religion.

11In the CAD, I stated that at the preliminary hearing, the applicant would be expected to testify and give evidence as to how a requirement for female-only PSWs (or alternatively a ban on male PSWs) is related to any tenet of the Rastafarian religion as a basis for any objective requirement of that religion or any subjective belief the applicant may have that this is required by that religion. The applicant also would be subject to cross-examination by the respondent on this point. The applicant further would be allowed to call any other witnesses or tender any documentary evidence to support any belief that he may have regarding the link between a female-only PSW requirement and the Rastafarian religion.

12In the CAD, I directed the applicant to serve on the respondent and file with the Tribunal: a list of the witnesses, including himself, that he intended to call to testify on the threshold issue; a written statement for each witness, including himself, setting out the evidence that he or the witness intended to give regarding any link between a female-only PSW requirement and the Rastafarian religion; and all documents that he intended to rely upon for the purpose of this hearing. This was to be done at least 45 days in advance of the scheduled hearing.

13By Notice of Preliminary Hearing dated February 3, 2015, the preliminary hearing to address the threshold issue was scheduled to proceed in Ottawa on June 26, 2015.

14In advance of the preliminary hearing, the applicant served and filed his material for the preliminary hearing. At the preliminary hearing on June 26, 2015, I heard evidence from the applicant and his spouse and also heard the parties’ submissions on the threshold issue.

Evidence

15Rastafarianism as a religion began in Jamaica in the 1920s and 1930s. Rastafarians worship the late Emperor Haile Selassie I of Ethiopia, under his pre-coronation name Ras (or Prince) Tafari, considering him divine, the Messiah and the champion of the Black race. The religious texts upon which Rastafarianism is based include the Old and New Testaments and The Holy Piby. However, as indicated in the applicant’s evidence before me, much of the belief system of Rastafarianism is not written down but is based on an oral tradition and the teachings of the elders of the faith.

16The applicant testified that, as a child in Jamaica, he was raised in the Catholic faith, but converted to Rastafarianism in his early teens when he was in Kingston, Jamaica.

17The applicant emigrated from Jamaica to Canada in 1972, and settled in the Ottawa area. He states that there is a small community of Rastafarians in the Ottawa area, and that he was active in the Rastafarian community at least until 2004 when he suffered the injury that has left him with a mobility impairment and the need to use a wheelchair. Since that time, he states that it has been difficult for him to get out to community gatherings, although members of the Rastafarian community do sometimes come to his home.

18The applicant testified that in the Ottawa area, the Rastafarian community is not well-established enough to have its own spiritual leaders or elders. He states that there are larger Rastafarian communities in Toronto and Montreal that have elders and regular gathering places.

19With regard to the prohibition against a man bathing another man, the applicant testified that he was unable to find this prohibition set out in writing anywhere. However, he states that this was the way he grew up and this was the way that Rastafarians taught him. He states that he first learned this teaching in Jamaica, although he cannot recall when.

20When asked if this prohibition is connected to any underlying doctrine or basis in the Rastafarian religion, the applicant responded that he did not know how to answer that question. When pressed about this on cross-examination, the applicant referenced the principle that a Rastaman’s body is his temple and stated that no man could bathe a Rastaman’s temple.

21The applicant testified that his Rastafarian friends in the Ottawa area are aware of this prohibition against a man bathing another man, and states that if they were at the hearing, they would support the applicant’s evidence that this is a teaching of the Rastafarian religion. When asked why he did not bring any fellow Rastafarians to the preliminary hearing in order to support his testimony, the applicant stated that they would not want to come to the hearing because the proceeding was too formal and that I needed to understand the “pressure” that Rastafarians are under.

22When asked why he did not get letters to support that the prohibition against a man bathing another man was part of the Rastafarian faith, the applicant stated that he had sent an e-mail to his sister in Jamaica to ask her to get in touch with the Rastafarian church to get them to send a letter of support, but that they move at a “snail’s pace” and he has not yet received any response. He also stated that he had sent an e-mail to someone in the United States seeking a letter of support, but did not receive an answer. He further stated that he tried to contact Rastafarians in Toronto and Montreal, although he cannot say exactly what he did. He believes that he may have sent some e-mails, but he did not try to call anyone in Toronto or Montreal. The applicant’s evidence is that he would expect an elder from Toronto or Montreal to support his assertion that the prohibition against a man bathing another man is part of the Rastafarian faith.

23On cross-examination, the respondent introduced an excerpt from a document on the Government of Canada’s website called “Religions in Canada” which contains a brief description of Rastafarianism. This document contains general information on the religious elements of Rastafarianism, including sacraments and devotional practices and services, as well as information on dietary requirements, dress requirements, and medical and health requirements. This document does not set out any prohibition against a man bathing another man.

24When asked if the applicant had found any information on the internet documenting this prohibition as part of the Rastafarian religion, the applicant stated that he had looked at a lot of information on the internet, but that he was looking for a Biblical source to support his position. He did not provide or point to any information that he had come across where this belief was documented as part of the Rastafarian faith.

25The applicant agreed that as a result of his injury, he went to the doctor and had to be hospitalized, and that he has been treated by male doctors and medical health professionals. He agreed that in order to provide treatment, male doctors and medical health professionals needed to touch and minister to his body, and that he had no difficulty with that as long as they were not bathing him. When asked how he distinguishes between having men touch his body for medical treatment and being bathed by a PSW, the applicant testified that his body was touched by medical doctors for the purpose of “fixing” him and not cleaning him. He testified that it is the cleansing of the body that another man is prohibited from doing. The applicant also took issue with the description of a PSW as a “trained professional”, on the basis of his view that PSWs are untrained and unregulated.

26At the preliminary hearing, I also heard evidence from the applicant’s spouse. She is not Rastafarian, and adheres to the Anglican faith. She states that she married the applicant in Jamaica in 1974 when he was still Catholic, but was aware at that time that he was attending Rastafarian gatherings. She states that she respects her husband’s religion, but that their children were brought up in the Anglican faith. She testified that her husband is a very peaceful and religious person and that he has carried his lifestyle from Jamaica to Canada and practices the teachings he learned in Jamaica.

27The applicant’s spouse testified that in Jamaica, her mother had a cousin who was considered to be an elder in the Rastafarian faith. She states that this cousin would come to her family’s home in Jamaica, and she would discuss Rastafarian beliefs with him. In particular, she was interested in understanding the role of women in the Rastafarian faith, because as a teenager she considered Rastafarian women to be submissive to men. She states that her cousin would tell her about the Rastafarian belief in the traditional role of women in the household, and that women were responsible for doing the bathing as well as other household chores. She states that she interjected and asked why the man could not do this, and was told that no man should bathe another man.

28She states that her cousin put this in the context that a Rastaman’s body is his temple. She states that she felt that this was putting the man higher than the woman, and asked why the man could not bathe the children and do some of the roles of the woman. She states that her cousin differentiated the roles of the man and the woman in the household, and that bathing was part of the woman’s role.

29On cross-examination, the applicant’s spouse agreed that her cousin did not specifically use the term that Rastafarianism “prohibited” a man from bathing another man. She testified that the way her cousin put it was to say, “man don’t bathe man”. She also agreed that she had no specific discussion with her cousin about what was permissible in the context of the provision of health care to a Rastafarian.

Analysis and decision

30As stated above, the issue for me to determine at this stage of the proceeding is whether there is sufficient evidence before me to satisfy me that the applicant’s belief and conviction that he is not to be bathed by a male PSW has a “nexus with religion” or is “rooted in religion”, as required in order to invoke the protection of the Code.

31In Amselem, above, the Supreme Court of Canada stated (at para. 39) that “only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion.” The Supreme Court also stated on at least three separate occasions that the practice or belief at issue must have a “nexus with religion”: see paras. 46, 56 and 69. While these statements were couched in the context of the right to “freedom of religion”, I find that they are equally applicable under the Code in terms of defining the scope of the protection against discrimination because of creed.

32The evidence before me consists of the applicant’s assertion of his belief that the Rastafarian faith prohibits a man, including a male PSW, from bathing a Rastaman. He was unable to provide any written text or documentation to support this assertion. While I appreciate and accept that some religious faiths, including Rastafarianism, rely heavily on oral traditions and teachings, the applicant also failed to provide any evidence or documentation from an elder of the Rastafarian faith to confirm that his personal belief forms part of the Rastafarian religion, whether from Jamaica or from the Rastafarian communities in Toronto or Montreal. Further, the applicant failed to call any evidence or provide any documentation even from his Rastafarian community in Ottawa to confirm that his personal belief forms part of the Rastafarian faith.

33I am cognizant of the Supreme Court’s admonition in Amselem that expert evidence to demonstrate that a claimant’s belief is consistent with the practices and beliefs of other adherents of the faith is not required or necessary, although it may be relevant to an assessment of the sincerity of the claimant’s belief: see para. 54. However, this statement was made in the context of a case where there was no issue as to the practice at issue being “rooted in religion” or having a “nexus with religion” as required by the Supreme Court’s own test. On the facts of Amselem, there was no question that there was a Biblical basis for the claimants’ belief that they required their own succah in order to properly celebrate the Jewish holiday of Succot, despite there being a dispute in the evidence between two Rabbis as to whether this was strictly required by the Jewish faith.

34In my view, where there is an issue as to whether a particular practice or belief is “rooted in religion” or has a “nexus with religion”, there is a need for an applicant to bring forward at least some objective evidence, beyond her or his own say so or subjective belief, to prove a link or connection between the practice or belief and the specific religion at issue. This is not about doubting the sincerity of an applicant’s personal, subjective belief, but is about having some basis in the evidence to support a conclusion that the belief is rooted in religion or has a nexus with religion, as required by Amselem. This is what I find to be lacking in the instant case.

35My conclusion in this regard is supported by the decision of the Federal Court in Bennett v. Canada (Attorney General), 2011 FC 1310, in which it is stated (at para. 8):

The court in Amselem . . . held that courts need not accept that a practice is religious (as opposed to non-religious or secular) just because a claimant says so. To the contrary, Justice Iacobucci suggested that an objective inquiry into it is appropriate “since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion”.

36In the instant case, I have no textual or documentary support for the applicant’s personal belief that no man, including a male PSW, should bathe a Rastaman. Nor do I have any written or oral evidence from a Rastafarian elder or even another adherent to Rastafarianism to support that the applicant’s personal belief is rooted in the Rastafarian religion or has a nexus with the Rastafarian religion.

37Still further, the applicant was unable to explain to me any underlying tenet, principle or basis in the Rastafarian faith which informs or supports his personal belief that no man can bathe a Rastaman, apart from the general tenet that a Rastaman’s body is his temple.

38Not only does the instant case contrast with the situation in Amselem, where there was a Biblical source for the practice or belief at issue despite conflicting interpretations within Judaism, but it also contrasts with the situation in R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, which addressed the issue of whether a witness was entitled to wear a niqab while testifying at a criminal sexual assault trial. While not all Muslim women wear a niqab or agree that this is a requirement of Islam, Muslim women who do choose to wear a niqab are able to point to support for this practice in the Quran, which speaks to the need for women to dress modestly. In contrast, in the instant case, I have insufficient evidence before me to connect the applicant’s belief that no man, including a male PSW, should bathe a Rastaman with any underlying religious text or principle of Rastafarianism.

39With regard to the testimony of the applicant’s spouse, I accept her evidence that her cousin in Jamaica was an elder in the Rastafarian faith and that she engaged him in discussions about the practices and beliefs of Rastafarianism, particularly in the context of the division of household or domestic duties or chores. I further accept that she was told that it was the woman’s responsibility to do the bathing, and that “man don’t bathe man”.

40The difficulty I have with her evidence is that, as she acknowledged, this discussion with her cousin occurred some 40 years ago in the context of the division of domestic or household chores, and did not touch on any situation in the health care context, for example when a Rastaman due to his injuries cannot bathe himself and requires a health care provider like a PSW to bathe him.

41In the absence of any textual or documentary evidence tying the applicant’s belief to the Rastafarian faith and in the absence of any evidence from a Rastafarian elder or even an adherent to support that the applicant’s belief forms part of the Rastafarian religion and in the absence of any ability by the applicant to connect his belief to any underlying principle or tenet of the Rastafarian faith, I find that the evidence before me is insufficient to establish that the applicant’s belief is rooted in religion as opposed to being secular or socially based. As stated in Amselem at para. 39, “only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion.”

42Accordingly, I find that the evidence before me is insufficient to establish that the applicant’s belief is objectively required by the Rastafarian religion or that his subjective belief is either rooted in the Rastafarian religion or has a nexus with the Rastafarian religion.

43As a result, as I have found that the evidence is insufficient to establish that the applicant’s belief falls with the protection under the Code against discrimination because of creed, the Application is dismissed.

ORDER

44For all of the foregoing reasons, the Application is dismissed.