Court File and Parties

Court File No.: 221/08 Date: 2008-12-22 Superior Court of Justice - Ontario (Divisional Court)

Re: Ontario Human Rights Commission, Commission (Respondent) and Connie Heintz, Complainant (Respondent) v. Christian Horizons, Respondent (Appellant)

Before: Justice David Aston

Counsel: Anthony D. Griffin, for the Ontario Human Rights Commission Peter Jervis, for the proposed Intervener, The Evangelical Fellowship of Canada Cynthia Petersen, for the proposed Intervener, Egale Canada Inc. Iain Benson/Frank Perruccio, for the proposed Intervener, Ontario Conference of Catholic Bishops William Sammon, for the proposed Intervener, Canadian Council of Christian Charities

Heard at Toronto: December 17, 2008

Endorsement

Aston J.

[1] There are four motions before the court seeking intervener status in this pending appeal to the Divisional Court. Christian Horizons is appealing a decision of the Human Rights Tribunal of Ontario which found that it had infringed the rights of one of its employees, Connie Heintz, under s.5 of the Ontario Human Rights Code. The Tribunal’s decision turned on whether Christian Horizons could bring itself within the exemption in clause 24.1(a) of the Code which provides as follows:

24.1 The right under section 5 to equal treatment with respect to employment is not infringed where,

(a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status, same-sex partnership status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment;

[2] The appeal has been perfected but no responding documents have been filed and no date for hearing has been fixed as yet. The self represented complainant did not appear on these motions, nor file any material.

Egale Canada Inc.

[3] Egale Canada Inc. (“Egale”) is an organization that seeks to advance equality rights for lesbian, gay, bisexual and trans-identified people across Canada. It has developed extensive expertise in matters involving equality rights on their behalf through research, consultations, publications and litigation. For the past fifteen years, Egale has been granted leave to intervene (either as an added party or as a friend of the court) in twenty-two human rights cases and Charter cases before Canadian courts and tribunals, including ten cases before the Supreme Court of Canada. It has a history of working co-operatively with parties as an intervener, to ensure that its submissions were not duplicative and it undertakes to do so in this case.

[4] The statutory provision at issue in this appeal, s.24.1(a) of the Ontario Human Rights Code, has potential application to a wide variety of employers and could adversely affect equality rights of a great many employees. The court will be called upon to reconcile a conflict between freedom from discrimination and the equality rights of employees on one hand and, on the other hand, freedom of religion, freedom of expression and freedom of association for employers. This case is not just a private dispute between litigants. It has significant public importance.

[5] Egale will take a position on the appeal consistent with the complainant and the Ontario Human Rights Commission, but has its own distinct perspective of the legal issues. I am well satisfied that Egale has a legitimate interest in the legal issues raised on this appeal and, more importantly, that it can provide valuable assistance to the court by way of argument. Egale does not seek to adduce any evidence and is asking to be added as an intervener under Rule 13.02 as a friend of the court. Subject to the terms and conditions below, Egale’s motion is granted.

Canadian Council of Christian Charities

[6] The Canadian Council of Christian Charities (“CCCC”) also seeks leave to intervene under Rule 13.02 as a friend of the court. It does not seek to add to the appeal record. However, CCCC does seek to formally add a Charter issue to the issues on appeal.

[7] In Parks v. Christian Horizons (No. 1)(1992), 16 C.H.R.R. D/40, the Ontario Human Rights Tribunal found that Christian Horizons had the benefit of the exemption in s.24.1(a) of the Code. When faced with the complaint of Connie Heintz, Christian Horizons was apparently content to rely on that decision and did not raise any Charter issue before the Tribunal. However, in the instant case, the Tribunal refused to follow the Parks decision and interpreted s.24.1(a) of the Code differently. The threshold issue on this appeal is going to be which interpretation of s.24.1(a) ought to prevail; the interpretation in Parks or the interpretation in this case.

[8] As an exercise in statutory interpretation, this appeal will need to consider a contextual analysis that will likely engage consideration of Charter values. I am satisfied that all four proposed interveners may have a useful contribution to make in that regard.

[9] Whether or not this appeal will also engage the question of the constitutional validity of s.24.1(a) of the Code is a decision that will have to be made by the panel hearing the appeal.

[10] The CCCC has served Notice of a Constitutional Question on both the federal and provincial Attorneys General, questioning the constitutional validity of both s.24.1(a) and 41.1(a) of the Ontario Human Rights Code. Using s.52 of the Charter, CCCC seeks to strike out the words “primarily engaged in serving the interests of persons identified by their … creed…” from s.24.1(a) and to strike down s.41.1(a) of the Code in its entirety.

[11] In this regard, the CCCC seeks a remedy that is well beyond what the appellant itself seeks as a remedy, or has placed in issue with the Notice of Appeal. The appellant, Christian Horizons, does seek to strike out the same provisions in s.24.1(a) of the Human Rights Code, though this remedy was not raised with the Tribunal. However, it does not otherwise challenge the constitutional validity of the Code. In relation to s.41.1(a), the appellant simply states “the Tribunal erred in imposing an over-broad remedy” in its articulated grounds for appeal.

[12] The CCCC is an association of charities within the Christian community. It was founded in 1972 to foster good stewardship practices by Christian charities, to enable them to more effectively conduct their Christian work. It has become an umbrella organization for a large number of members, Christian Horizons being one of them. Over the last two decades it has been involved in many legal issues on behalf of the Christian community as a whole. It has been a party or an intervener in the past, including specifically in the Parks case. CCCC’s involvement in that case went beyond its role as an intervener. In Parks, the Ontario Human Rights Tribunal provided guidelines to Christian Horizons on the specifics of doctrinal or “Lifestyle Statements” employees would sign as a condition of employment with Christian Horizons. In response to the guidelines, the CCCC helped establish standards for other charities and Christian organizations.

[13] I am well satisfied that the CCCC have identified a specific perspective that may assist the court in its interpretation of s.24.1(a). Furthermore, if the panel hearing this appeal is prepared to entertain Charter challenges not raised with the Tribunal itself, the CCCC may have to take the lead for those grounds of appeal. It served the Notice of Constitutional Question, though the appellant itself did not.

[14] Subject to the terms and conditions below, the CCCC is granted Intervener status as a friend of the court pursuant to Rule 13.02.

Ontario College of Catholic Bishops

[15] Unlike Egale and the CCCC, the Ontario College of Catholic Bishops (“OCCB”) seeks to file additional evidence as part of the appeal record. Its request for intervener status should therefore be considered under Rule 13.01; as an added party rather than as a friend of the court. The three affidavits that OCCB seeks to put before the appeal panel are contained in its Motion Record.

[16] The OCCB seeks to advance the Roman Catholic religion in Ontario through pastoral activities and projects which do not distinguish between the public that is served and whether or not those members of the public are adherents of the Roman Catholic faith. The “special employment” provision in s.24.1(1) of the Code has direct implications for Roman Catholics in Ontario. The OCCB’s position on the appeal will support Christian Horizons, but it also offers a different perspective: that a purposive interpretation of the legislation requires recognition of the “public benefit” which religion provides.

[17] I am satisfied that the OCCB meets the criteria set out in Rule 13.01(1). It has an interest in the subject matter of the proceeding and may be adversely affected by the decision in the proceeding. It offers another perspective on the legal issues on the appeal.

[18] On a motion for leave to intervene as an added party, the court must also consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding. It seems to me the affidavit of David Lyon, sworn November 28, 2008, that is part of the OCCB’s Motion Record, is essential to the perspective that the OCCB will bring to the court in its submissions. However, the other two affidavits included in OCCB’s Motion Record are problematic because they are in large part argumentative and because there are questions about admissibility and potential prejudice. Most of the admissible factual assertions in those affidavits simply go to the issue of whether the OCCB has an interest in the proceeding and why it should be an intervener rather than to the merits of the appeal or the relief sought on appeal. The evidence the OCCB seeks to file on the appeal needs to be curtailed somewhat.

[19] I am satisfied that the OCCB may provide valuable assistance to the court in advancing the perspectives outlined in paragraphs 17 through 21 of the OCCB factum. Leave is granted to the OCCB to intervene as an added party and to file as part of the Appeal Record, the affidavit of David Lyon sworn November 28, 2008 and a further affidavit not more than two pages in length should it choose to do so.

The Evangelical Fellowship of Canada

[20] The Evangelical Fellowship of Canada (“EFC”) also seeks to supplement the Appeal Record with new evidence. Unlike the OCCB, the EFC does not provide a copy of the affidavit evidence it wishes to add to the record. Counsel advises that he needs until the third week of January, 2009, to deliver his affidavit material. It is suggested that, rather than reviewing proposed affidavit material now, the court could put a limit on the number of affidavits, the number of pages, and the issues that are to be addressed and then the court could perhaps reserve the right to review the material for compliance at a later date. I am not prepared to engage in that kind of process in this case.

[21] It is important to note that Christian Horizons adduced expert evidence at the hearing before the Tribunal from the Reverend Dr. Stiller. The Tribunal accepted Dr. Stiller’s qualification as an expert in Evangelical Christianity. Dr. Stiller had been the president of EFC for twelve years. I fail to see the need to expand on the evidence that was already presented at the Tribunal, or that could have been presented, through Dr. Stiller.

[22] EFC is a national association of Evangelical Christian Protestant churches and associations. It is a large interdenominational organization. It describes its unique perspective on this appeal in terms of its focus on “activism” in the service of others, such as missions to serve the poor, the needy, the homeless the sick and the weak.

[23] I am satisfied that EFC, its members and affiliates have an interest in the appeal and could be adversely affected if the decision under appeal is allowed to stand. EFC has extensive experience as an intervener in court proceedings, understands its role, and may be able to make a useful contribution to the appeal. Leave to file affidavit material is denied, but EFC is granted Intervener status as a friend of the court.

Christian Horizons

[24] Christian Horizons supported the proposed interventions by CCCC, OCCB and EFC and took no position with respect to the proposed intervention of Egale. Christian Horizons also submitted that there should be no costs of the motion to intervene and no subsequent costs for or against the interveners on appeal. Christian Horizons did ask for permission to file a supplementary or reply factum after receiving the factum of Egale, in order to address any additional issues or arguments raised by Egale as Intervener.

[25] I wish to emphasize again in this endorsement that the appellant did not serve any notice of constitutional question with respect to s.24.1(a) of the Code and does not even refer to s.41.1(a) in its Notice of Appeal. Whether the panel hearing the appeal allows the parties or the Interveners to raise constitutional issues for the first time on the appeal is an open issue.

Terms and Conditions

[26] The OCCB is added as a party to the appeal and is entitled to supplement the Appeal Record within the next twenty days with the Affidavit of Dr. Lyon and a further affidavit not more than two pages in length. The other three moving parties are granted intervener status as friends of the court.

[27] The CCCC, OCCB and EFC shall serve and file their facta within the next twenty-five days. The responding facta of the OHRC and the respondent Connie Heintz shall be served and filed within twenty days thereafter. The factum of Egale shall be served and filed within ten days after that. The appellant Christian Horizons shall have a further ten days to serve and file a supplementary or responding factum, limited to any issues raised by Egale.

[28] The facta of the interveners shall be limited to twenty-five pages or less.

[29] Subject to the discretion of the panel hearing the appeal, oral submissions by the interveners shall be limited to forty minutes or less.

[30] Intervener status is granted on the basis that none of the interveners are seeking costs of this motion or on the appeal itself.

Aston J.

Date: December 22, 2008