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7. Forms of creed discrimination

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It is not always possible to slot people’s experiences of creed discrimination into clear categories. Ways people face discrimination often blur together and overlap to a large degree. However, for this policy, it is helpful to describe the different ways creed discrimination can take place. The following sections cover some of the main ways.

7.1. Direct, indirect and subtle discrimination

Discrimination may happen in a direct way when individuals or organizations overtly exclude people belonging to a creed group from employment or services, or withhold benefits that are available to others, or impose extra burdens that are not placed on others, without a legitimate Code defence.

Many creed discrimination complaints allege that a respondent has relied on stereotypes, whether covertly and unconsciously, or because of overt prejudice and antipathy towards another person or group because of their creed affiliation. This is a form of direct discrimination.

Example: A Children's Aid Society and youth service provider decided to terminate a woman's contract to provide a foster home for children. The HRTO found this to be discriminatory, based in part on their “stereotypical view of the applicant’s Christian faith,” which was assumed to undermine her capacity to foster children who are gay.[126]

Discrimination may also happen indirectly. For example, it may be carried out through another person or organization.

Example: A landlord hires a property management company and tells it to ensure Indigenous peoples who appear to follow traditional Indigenous Spirituality do not rent units. This is based on the landlord’s dislike of the smell of burning traditional Indigenous herbs and medicines used in traditional Indigenous creed-related observances, and purported concerns over fire safety. Both the landlord who sets out the discriminatory conditions and the property manager or person who carries out this discrimination can be named together in a human rights claim and held jointly responsible.

More hidden and subtle forms of discrimination can also happen. Most people don’t make discriminatory remarks openly or voice their stereotypical views to explain their behaviour. Subtle discrimination might only be detected when looking at all of the circumstances to see if a pattern of behaviour exists. Individual acts themselves may be ambiguous or explained away. But when viewed as part of a larger picture, they may lead to a conclusion that discrimination because of creed was a factor in a person’s treatment. For example, a departure from usual practice that can’t be explained may support a claim of discrimination.[127] Criteria applied to some people but not others may also be evidence of discrimination, if it can be shown that people and groups protected by the Code were singled out for negative treatment.

The cumulative effect of direct, subtle and indirect discrimination can be profoundly damaging to people who experience it.

Organizations and individuals have a legal obligation under the Code to not discriminate against people based on creed, to take steps to prevent discrimination, and to respond to it when it happens. These obligations apply in situations where discrimination is direct and the result of a person’s internal stereotypes or prejudices. They also apply when discrimination is indirect and may exist within and across institutions because of laws, policies and unconscious practices.

7.2. Harassment

During its consultations, the OHRC heard that overt harassment against people identified by creed, particularly people who are visibly identifiable as members of minority faith communities, is still very much a reality in Ontario.[128]

The Code prohibits harassment based on various grounds including creed, ethnic origin, place of origin, race, colour, ancestry, citizenship, sex, sexual orientation and gender identity and expression. Individuals and communities affiliated by creed can experience harassment on one or more grounds.

In addition to the Code’s explicit protection against harassment in housing and employment, harassment is also prohibited in services and other social areas.[129]

The Code defines harassment as “engaging in a course of vexatious [i.e. annoying or distressing] comment or conduct that is known or ought reasonably to be known to be unwelcome.”[130] The reference to comment or conduct "that is known or ought reasonably to be known to be unwelcome" establishes both a subjective and an objective test for harassment.

The subjective part is the harasser’s own knowledge of how his or her behaviour is being received. The objective component considers, from the point of view of a “reasonable” person, how such behaviour would generally be received. Determining the point of view of a “reasonable” person must take into account the perspective of the person who is harassed. In other words, the HRTO can conclude based on the evidence before it that an individual knew, or should have known, that his or her actions were unwelcome.[131]

Some types of comments or behaviour should be understood to be unwelcome based on the response of the person subjected to the behaviour, even when the person does not explicitly object. An example could be a person walking away in disgust after a co-worker has made derogatory comments about people of a particular religion.[132] A victim does not have to explicitly or directly object to harassment.[133] They may be vulnerable and not speak out because of a threat or fear or because the harasser has some power or authority over them (e.g. a manager or a landlord).

Some conduct or comments relating to creed may not, on their face, be offensive. However, they may still be "unwelcome" from the perspective of a particular person. If similar behaviour is repeated despite indications from the person that it is unwelcome, there may be a violation of the Code.

Harassment because of creed is often based on stereotypes that ascribe particular beliefs, thoughts, behaviours and motivations to people based solely, or in part, on their (actual or perceived) creed.

Example: After 9/11, a Muslim employee of Iranian descent was subjected to name-calling in his workplace, and associated with Osama Bin Laden and Saddam Hussein. He faced discrimination and harassment by being exposed
to what were deemed to be racial slurs.[134]

The experience of creed harassment can differ for men and women, and different ethnic and racial creed communities. People often experience distinctive forms of stereotyping based on the combination of creed, ethnicity, race and gender.

Creed-based harassment can involve:

  • Derogatory language toward individuals or communities affiliated by creed
  • Insults, comments that ridicule, humiliate or demean people because of their creed identity or how they express it
  • Comments or conduct relating to a perception that a person is not conforming with, or poses a threat to, “Canadian way of life”
  • Making negative comments about a person’s commitment to their faith or adherence to their beliefs
  • Jokes related to a person’s creed, including those circulated in writing, by email or social media
  • Spreading rumours about a person’s creed including on the Internet[135]
  • Intrusive comments, questions or insults about a person’s creed or other creed-related practices, dress and personal appearance
  • Threats, unwelcome touching, violence and physical assault.

Harassment is often used to try to get people to conform to dominant group norms, or to punish them for not doing so. It is also used as a bullying tactic to ridicule, ostracize and exercise power over people and to make them feel unwelcome in their environment because of their creed.

Harassment based on creed can happen between members of the same or different creeds. It can also affect people who have no creed (see section 7.4 on Imposing creed messages and compelling creed observances).

Organizations have an obligation to maintain an environment free of harassment targeting people because of their creed, whether or not anyone objects. In employment, the Occupational Health and Safety Act[136] requires employers to establish policies on harassment and violence in the workplace and to review these once a year.

Organizations also have a responsibility to contact the appropriate authorities in situations where harassment may escalate to hate crime[137] or may contravene the Criminal Code in any other way.

7.3 Poisoned environment

While harassment generally involves more than one incident of comment or conduct, in some cases even a single statement or incident, if sufficiently serious or substantial, can create a poisoned environment.[138]

A poisoned environment is a form of discrimination. In employment, tribunals have held that the atmosphere of a workplace is a condition of employment as much as hours of work or rate of pay. A “term or condition of employment” includes the emotional and psychological circumstances of the workplace.[139] While the notion of a poisoned environment has predominantly arisen in employment, it can apply equally where it results in unequal terms and conditions in housing, services, contracts and membership in a vocational association.

Example: A professor has a strong dislike of religion. She often makes disparaging remarks about religion and religious people in the classroom. These include stereotypical comments about students who actively practice a religion, whom she portrays as being incapable of critical, independent thought.

A poisoned environment may happen due to a serious single incident, and/or when unwelcome comment or conduct is ongoing or widespread throughout an organization. This can lead to a hostile or oppressive atmosphere for one or more people from a Code-protected group. While ongoing exposure to harassment can be a factor, a poisoned environment is also based on the nature of the comments or conduct and the impact on an individual or group rather than on the number of times the behaviour happens.[140]

Behaviour need not be directed at any one person to create a poisoned environment. A person can experience it even if not a member of the targeted group.

Example: A Tibetan Canadian woman of Buddhist faith works in a union office where racial slurs, religious bigotry and stereotypical language are common. Although none of these remarks are directed specifically to her or her creed group, she may have a basis to allege that she has been subjected to a racially and religiously poisoned environment.[141]

Examples of situations that may violate the Code by creating a poisoned environment include:

  • A supervisor or landlord saying to an employee or tenant “I don’t know why you people (referring to persons of the Muslim, Hindu or Sikh faiths) don’t go back to where you came from because you don’t belong here.”[142]
  • Comments, signs, caricatures, or cartoons displayed in a service environment such as a store or restaurant, in a work or tenancy situation which show persons of a particular creed in a demeaning way.
  • Graffiti targeting creed groups that is not removed promptly by an employer, a landlord or a service provider.
  • Creed-related remarks, jokes or innuendo about an employee, client, customer or tenant. In addition, creed-related remarks, jokes or innuendo made about other persons or groups may create the sense that similar views are held about the employee, client, customer or tenant.

When a poisoned environment exists, some people face negative terms and conditions of employment, tenancy, education or other services that other people do not experience (for example, having to endure attacks on their dignity and self-respect). This is inequality.

Organizations have a duty to maintain an environment free from discrimination, to be aware that a poisoned environment exists, and to take immediate steps to respond and eliminate it.[143] This is the case even if no one objects, and even if there is widespread participation in the behaviour.[144] Inappropriate comments or conduct poison the environment for people targeted because of their creed – and they are disruptive and can affect everyone’s environment.

A poisoned environment can be caused by the comments or actions of any person, regardless of their position of authority or status. It could involve a co-worker, supervisor, co-tenant, housing provider, member of a board of directors, fellow student, teacher, contractor, client, etc. Whoever is involved, the person in charge has a duty to address it.

Sometimes, comments or conduct outside of the workplace or service setting may have discriminatory effects and consequences inside it.

Example: A New Brunswick school board was found to discriminate because it failed to appropriately address the conduct of a teacher who had become notorious in his community for his off-duty antisemitic writings, statements and comments. Although the teacher's comments and conduct occurred off-duty, and there was no direct evidence establishing an impact upon the school district, the Supreme Court found that his continued employment in a teaching position impaired the educational environment by creating a "poisoned" environment.[145]

Failing to address discrimination and harassment may in itself cause a poisoned environment.[146]

Example: On September 12, 2001, a police detective left a voicemail message for another detective suggesting that he had information that a civilian police employee (a man who identifies as a non-White person of Afghan descent) was involved in the events of 9/11.[147] The message was referred to the Internal Affairs division for investigation and, through the investigation, came to the civilian employee's attention. The incident became widely known in the division as the targeted employee became the object of gossip and suspicion about whether he was involved in 9/11. The employee became very upset as he believed that his employer did not appropriately investigate and respond to the message. He filed a human rights complaint. The HRTO found that although the detective's message was meant to be a “joke,” it still amounted to harassment and a poisoned environment based on ethnic origin, place of origin and perceived creed (Muslim). The HRTO also concluded that although the employer appropriately investigated and disciplined the detective who left the message, it did not do enough to address the gossip and suspicion about the civilian employee that flowed from the event. This was found to have poisoned his work environment.[148]

Managers who know or should know a poisoned atmosphere exists but allow it to continue are essentially condoning discrimination even if they are not directly involved.[149]

7.4 Imposing creed messages and compelling creed observances

The right to be free from discrimination based on creed under the Code includes the right to be free from unwelcome religious or creed-based pressure or coercion in employment, services, housing, contracts and professional or vocational associations.[150] No person or organization can force or pressure another to accept or comply with creed beliefs or take part in creed practices against their choosing.[151] Exerting religious pressure may also be a form of harassment or create a poisoned environment (see 8.2 and 8.3 above). The Charter[152] requires government organizations to be neutral towards religion (i.e. neither favouring nor hindering any particular religion or system of belief over another).[153]

Employers may not place unwelcome “religious pressure” on employees, or make taking part in religious matters a term or condition of employment.[154]

Example: An employer engaged an employee in many discussions about religion, held prayers at business meetings and hosted weekly Bible study groups. The HRTO found the employer discriminated by imposing a religious atmosphere, where the employee felt he had to take part as part of his employment.[155]

The Code prohibits imposing creed-based messages on others, in any of the covered social areas, no matter how convinced a person may be that he or she has a duty to proselytize and share that message.[156]

However, court decisions also suggest that some discussion of religious matters in the workplace is acceptable. People are not prohibited from expressing their genuinely held religious beliefs in the workplace, within the confines of the Code, provided this does not escalate to unwelcome religious pressure. [157]

Example: A supervisor who initiated discussions about religion with an employee, gave the employee a Bible and talked about the comfort of religion in difficult circumstances, was found not to have placed unwelcome religious pressure in the circumstances.[158]

Selectively privileging one creed or religious tradition over another in employment or services has also been found to be a form of religious imposition that violates the equality rights of others.[159]

Example: A public elementary school inclusively designs classroom materials and in-school and extra-curricular activities over the school year to ensure that they are welcoming and reflect the multicultural and multi-faith background of the school community served. This helps to make sure that the school provides an equitable learning environment for all students, neither privileging nor hindering members of any creed or people with no creed.

Requiring the recitation of the Lord’s Prayer in schools and at public meetings has been found to be a form of religious pressure or compulsion that violates the religious freedoms of others.[160] While courts and tribunals have differed in the past on whether using more inclusive, non-sectarian, non-denominational prayers, including those that refer to God, may be discriminatory in some service settings,[161] the Supreme Court of Canada has ruled that even a non-denominational prayer may violate rights to the extent that it favours persons of religious faith over atheists and persons of non-religious faith.[162]

Example: A man who identified as an atheist and who regularly attended local municipal council meetings challenged the city's practice of opening meetings with a prayer. The prayer, which took place in the council chambers where there was a Sacred Heart statue fitted with a red electric votive light and a crucifix on the wall, referred to God and was preceded and followed by councillors making the sign of the cross and saying “in the name of the Father, the Son and the Holy Spirit.” The Quebec Human Rights Tribunal found that the prayer was religious in nature and that it made the man feel isolated, uncomfortable and excluded. The Tribunal’s decision was challenged and ultimately ended up before the Supreme Court of Canada.  The Supreme Court of Canada found that the Tribunal’s conclusion that the prayer was religious in nature (and strongly associated with Catholicism) and resulted in an exclusion based on religion was a reasonable one, saying that "[t]he prayer recited by the municipal council [was] in breach of the state’s duty of neutrality [and] resulted in a distinction, exclusion and preference based on religion – that is, based on [the applicant's] atheism – which, in combination with the circumstances in which the prayer was recited, turned the meetings into a preferential space for people with theistic beliefs."[163] The Court further concluded that "[e]ven if a religious practice engaged in by the state is ‘inclusive’, it may nevertheless exclude non-believers".[164]

However, depending on the context, the Supreme Court ruling in Saguenay (see above example) may not preclude the use of opening statements or invocations at municipal or public meetings that are equally inclusive of people's diverse religious and non-religious beliefs.

Having regulations in place to allow individuals to not take part in activities of religious or creed significance does not necessarily insulate an organization from a potential finding of discrimination, and in some cases may even worsen people's exclusion and discrimination.[165]

Example: A school board regulation required area public schools to open or close each day with religious exercises consisting of reading of the Scriptures or repeating the Lord’s Prayer or other suitable prayers. Even though the regulation allowed for students to be exempted and was wide enough to allow for non-Christian prayers, a court found the regulation was unconstitutional, in part by exerting indirect pressure on students to conform to the majority’s religious practices.[166]

The state’s duty of religious neutrality does not mean that individuals associated with government cannot exercise their religious rights in their personal capacity.

There is no general right to be free from all exposure to religion or creed in services, housing, the workplace, or vocational associations.[167] There is also no general right not to be exposed to views and beliefs that contradict or differ from one’s own. For instance, the Supreme Court has held that in schooling, mere exposure to a diversity of views – and the “cognitive dissonance” that this can create for young persons who are taught something at home that differs from what they may be exposed to in school – is a necessary fact of life in Canada’s multicultural society, that all citizens should be prepared for.[168]

Distinguishing between discriminatory and non-discriminatory forms of religious or creed expression in employment, housing or services will often depend on the circumstances of each situation, and require consideration of the wider organizational, social and historical context.[169]

In education, religious subjects may be engaged inside and outside the classroom, provided these are approached neutrally, and there is no indoctrination.[170]

Example: The Ontario Court of Appeal struck down religious instruction in public schools in Ontario in a case known as Elgin County.[171] To help draw a "line between indoctrination and education," the Court set out the following guidelines for appropriate, non-indoctrinating religious education in (non-Catholic) public schools:

  1. The school may sponsor the study of religion, but may not sponsor the practice of religion.
  2. The school may expose students to all religious views, but may not impose any particular view.
  3. The school's approach to religion is one of instruction, not one of indoctrination.
  4. The function of the school is to educate about all religions, not to convert to any one religion.
  5. The school's approach is academic, not devotional.
  6. The school should study what all people believe, but should not teach a student what to believe.
  7. The school should strive for student awareness of all religions, but should not press for student acceptance of any one religion.
  8. The school should seek to inform the student about various beliefs, but should not seek to conform him or her to any one belief.[172]

While confessional-based schools may be permitted to teach from a religious or creed-based perspective, the Supreme Court of Canada has also affirmed that the state may require certain subjects be taught from a neutral perspective, where this advances legitimate state interests and core values including respect for diversity and equality.[173]

“The state…has a legitimate interest in ensuring that students in all schools are capable, as adults, of conducting themselves with openness and respect as they confront cultural and religious differences. A pluralist, multicultural democracy depends on the capacity of its citizens ‘to engage in thoughtful and inclusive forms of deliberation amidst, and enriched by different religious worldviews and practices.’” – Supreme Court of Canada[174]

Having inclusive policies on creed in place does not guarantee that religious or creed-based pressure will not be found to exist. Actual practices on the ground are of equal importance when considering if the right to equal treatment has been preserved.[175]

7.5 Profiling based on creed and associated race-related grounds

“Profiling”  is a significant human rights issue and form of discrimination that negatively affects people because of their creed and/or race.[176]

Religion or creed-based profiling may be defined as any action taken for safety, security or public protection that relies on stereotypes about a person’s religion or creed – or other ground perceived to be connected with a religion or creed (e.g. race or ethnic origin) – rather than on reasonable suspicion, to single out a person for greater scrutiny or different treatment.

Profiling is based on preconceived ideas about a person’s Code-protected characteristic. Profiling based on creed often intersects with or can be a form of racial profiling. An example is when people are subject to heightened security, scrutiny and surveillance because of their outward appearance or perceived belonging to a certain creed faith, based on stereotypes about people of that creed, or because of their associations with particular ethnic and racial groups.

Profiling based on creed affects Arabs and Muslims particularly. In a 2003 survey, 48% of Canadians reported that they approved of profiling of Arabs and Muslims, despite the fact that their civil liberties would be called into question.[177] As well, in a 2002 survey by the National Council of Canadian Muslims (formerly Council of American-Islamic Relations Canada), a majority (60%) of Canadian Muslims said they experienced bias or discrimination since the 9/11 terrorist attacks.[178]

Anti-Muslim bigotry and prejudice sometimes involve treating all Muslims as collectively guilty (until proven innocent) and responsible for the acts of individuals or groups sharing a religious or ethnic background.[179] Sometimes, non-Muslim people who share ethnic or racial markers associated with the Islamic faith may also encounter religious or racial profiling, due to a perceived co-relation between religion, creed and other race-related grounds such as colour, ethnic origin, place of origin, language and citizenship.

Religion or creed-based profiling is different from criminal profiling. Criminal profiling relies on actual behaviour or on information about suspected criminal activity by someone who meets the description of a specific person or persons.

While most often arising in policing and security services, profiling based on creed can happen in many different situations. Examples are:

  • When receiving or accessing services, such as education, shops, government, community and social services
  • In employment, including in recruitment, hiring, retention, promotion and the day-to-day workplace
  • When travelling or using public transportation
  • When trying to get or live in housing.

Several creed-related profiling cases have arisen in employment. These have involved the discriminatory conduct of co-workers based on intersecting creed and race-related grounds, and management’s failure to respond appropriately.[180]

Example: A Muslim Canadian citizen was subjected to a humiliating RCMP investigation after a co-worker reported him as someone she suspected was involved in the 9/11attacks.[181] A tribunal found that had he not been an Arab Muslim who had immigrated from Saudi Arabia, the co-worker would not have acted the way she did. The tribunal further found that while the employer was not responsible for the report to the RCMP, which was made outside the workplace, the employer was still responsible for discriminatory racial profiling in the workplace because it allowed the suspicions about the employee to continue and did not take any action to address the impact on him. Instead, the employer left the wrongfully suspected employee to fend for himself in a poisoned work environment.

Profiling based on creed can arise in the other contexts, such as when assessing health and safety risks associated with accommodation.

Example: In one case, a school board prohibited a Sikh student from wearing a kirpan[182] because the board claimed, among other things, that the kirpan is a “symbol of violence” and that it sends the message that using force is the way to assert rights and resolve conflict. The Supreme Court of Canada found that the board’s claim was contradicted by the evidence of the symbolic nature of the kirpan, was disrespectful to believers in the Sikh religion, and did not take into account Canadian values based on multiculturalism. Ultimately, the Supreme Court concluded that the risk of the student using the kirpan for violent purposes was low and prohibiting it violated the student’s religious rights.[183]

There will rarely be direct evidence of profiling – it often may have to be proven by inference drawn from circumstantial evidence.[184] The following factors are drawn from the case law on racial profiling. These factors may be relevant when considering whether profiling based on creed was a reason for the alleged adverse treatment:

  • Whether the respondent is aware of, or has a perception of, the person’s creed
  • Statements being made that show the existence of stereotyping or prejudice against someone with a creed (e.g. negative comments)
  • No explanation, or a contradictory or changing explanation, for why someone was subjected to greater scrutiny or different treatment, or the explanation does not accord with common sense[185]
  • Deviations from the normal practice that are hard to explain[186]
  • An unprofessional manner is used or the person is subjected to discourteous treatment (for example, through harsh questioning)[187]
  • The person fits a certain profile[188]
  • Unfounded suspicion or action in the face of a possibly innocent explanation[189]
  • Misinterpreting innocent or ambiguous conduct as incriminating behaviour (e.g. not making eye contact)
  • Overreacting to perceived challenging behaviour where people of a certain creed are perceived as threatening, even where there is no real risk[190]
  • Events would have unfolded quite differently if the complainant were not known or perceived to be of a particular creed [191]
  • Whether the respondent cast its investigative net so widely that a person’s creed was a factor leading to his or her investigation.[192]

People who believe they are being profiled can be expected to find the experience upsetting, and might well react in an angry and verbally aggressive way. A person’s negative reaction in these circumstances requires reasonable tolerance and tact and cannot form the basis for further differential treatment.[193]

7.6 Intersectional forms of discrimination

Discrimination may be unique or distinct when it occurs based on two or more Code grounds. This discrimination can be said to be “intersectional.” The concept of intersectional discrimination recognizes that people’s lives involve multiple overlapping identities, and that marginalization and exclusion based on Code grounds may exist because of how these identities intersect.[194]

Discrimination based on creed can overlap with various other forms of discrimination, including discrimination based on race and race related grounds and gender.

It is the OHRC’s position that where multiple grounds intersect to produce a unique experience of discrimination or harassment, this must be acknowledged to fully address
the impact of the discrimination or harassment.

7.6.1 Race-related grounds and creed

Discrimination based on creed most often intersects with discrimination based on race and race-related Code grounds including ethnicity, colour, ancestry, place of origin and citizenship. [195]

Example: The HRTO ordered a restaurant to pay $100,000 in damages for discrimination, including harassment, reprisal and a poisoned environment involving a combination of creed, colour, ancestry, place of origin and ethnic origin. Three employees, who were Muslim and from Bangladesh, were mocked because they spoke Bengali. They were told to only speak English in the kitchen, threatened with being replaced with “white” staff, refused accommodation to celebrate the holiday of Eid, and pressured to taste-test pork dishes including during the holy month of Ramadan, against their religion.[196] 

Another example is when a person is prevented from observing a practice that has religious or spiritual as well as cultural or ancestral significance and meaning (for more discussion and examples see Section 11 on Indigenous spiritual practices).

7.6.2 Sex and creed

Creed-based discrimination often intersects with the ground of sex. Female religious practitioners have often faced the brunt of discrimination and prejudice based on creed in Ontario. In some cases, this is due in part to their greater visibility, or actual or perceived vulnerability.[197]

Much of the public debate around religious accommodation in public life has centered on what Muslim women should and should not wear. OHRC research and consultation findings suggest that Muslim women who wear the headscarf (hijab) or face veil (niqab) have been particularly susceptible to creed-based discrimination, prejudice and harassment, owing in part to their greater visibility.

Female religious adherents can also sometimes face a double burden and disadvantage, experiencing both sex-based discrimination and marginalization from within the community as well as sex and race-based prejudice and discrimination from without.[198]

Women may face unique forms of discrimination and harassment based on a combination of sex, creed and other (e.g. race-based) stereotypes.

Example: A woman of African descent who practices a traditional African religion and wears traditional African attire to work is harassed by her colleagues. They belittle her cultural identity and spiritual beliefs and practices, and jokingly refer to her “voodoo” powers and perceived "unpredictability" and "volatility," drawing on gender and race-based stereotypes.  

Example: A Hindu woman wears a traditional Indian style of dress to a job interview for a management position in a retail store. An interview panel quickly dismisses her and tells her to leave her “costume” at home next time she applies for a job.

7.6.3 Creed and disability

Creed may also intersect with disability. Some creed observances are physically or mentally demanding in ways that can affect a person's ability to physically or mentally function, particularly where a pre-existing disability may exist.

Where a creed practice affects a person's pre-existing disability, there may be a duty to accommodate to the point of undue hardship, based on the intersecting grounds of creed and disability.

Example: An Orthodox Christian who has diabetes is not able to do some of the more physically demanding tasks of her work as an office cleaner during days that she is fasting. The employer has a duty to accommodate her based on disability and creed up to the point of undue hardship.

Even where a person has no pre-existing disability, where a workplace rule, standard or duty affects their ability to fulfill a sincerely held creed practice (e.g. fasting), there is still a duty to accommodate.[199]

7.6.4 Differences within creed groups

A growing number of creed disputes and discrimination claims are arising between members of the same faith.[200] At times, these conflicts have been shaped by social differences and power dynamics operating within communities, whether based on socio-economic status, creed, gender, ethnic or race-related grounds, and/or sexual orientation or other Code grounds. Sometimes, these have also been shaped by conflicts elsewhere in the world.

Example: An employer was held liable for not adequately addressing discriminatory comments by a worker of Bosnian Serb ethnic origin towards a co-worker, who identified as a Bosnian Muslim. A tribunal found that the Serb
co-worker made threats to kill Muslims in Sarajevo and to harm the employee and his family. He also used the term “Zacklan” which was particularly offensive to the targeted employee because of its violent meaning (decapitation) and its historical and current significance to a person of Bosnian ancestry. The tribunal concluded that the comments were made to the co-worker because of his Bosnian heritage, ancestry, place of origin and religion, and that the employer’s response to the serious threats was inadequate.[201]

Conflicts, discrimination and harassment may also be based on disputes within communities about how a particular creed should be understood and lived out.

Example: A supervisor suggested that a fellow Christian employee wasn't doing her job properly, in part because she was not acting like a “true Christian.” This led to negative consequences for her job and was found to be discriminatory.[202]

Example: A Jewish man alleged creed discrimination against a Jewish organization for failing to certify him as a kosher caterer because he was not “orthodox or shomer Shabbat.” The respondent, the Kashruth Council, was a corporation that certifies products and establishments that comply, in its view, with the laws of kashrut (Jewish dietary laws). The HRTO dismissed his application, ruling that the applicant did not show that the respondent’s refusal was in anyway related to creed. The Council’s policy did not require that a caterer be orthodox or shomer Shabbat. Indeed, the applicant was previously certified although he was not orthodox. There was no evidence the decision was related to the applicant’s creed.[203]

Organizations should be aware of and respect the significant diversity of beliefs and practices within creed groups when inclusively designing for or accommodating people's creed beliefs. An individual approach should be taken that recognizes the unique identity of each person, without relying on preconceived notions, assumptions or stereotypes about people based on creed, or other Code grounds.[204]

7.7 Association

Some people face discrimination because of their association with someone who belongs to a creed community.[205]

Example: The Christian wife of a Jewish man is subjected to antisemtic comments and harassment in the workplace from co-workers, once they learn of her relationship.

Discrimination by association is prohibited under the Code.[206] This could apply to friends, family[207] or others (e.g. someone advocating on behalf of people affiliated by creed).

7.8 Constructive (adverse effect) discrimination

“Constructive” discrimination, also known as “adverse effect” discrimination, arises when a neutral requirement, qualification or factor has an adverse impact on members of a group of persons who are identified by a Code ground. Section 11(1) of the Code explicitly addresses this form of discrimination.[208]

An adverse impact may arise from neutral requirements or identical treatment.[209]

This is one of the most common forms of discrimination experienced by people with a religion or creed.

The emphasis of the analysis is on the adverse “effects” of the requirement, qualification or factor, and not on the intention or motives behind it, which may be neutral and non-discriminatory on their face.

Example: An employer has a rule that male employees must be clean-shaven and keep short hair. Using this rule, the employer refuses to hire a man who identifies as a Rastafarian who does not shave or cut his hair for religious reasons. The rule is not “intended” to exclude Rastafarians from the job, but it has this effect. Unless an employer can show that a change or exception to the rule would be too costly or create a significant health and safety risk which can’t be mitigated by other means, the employer would need to change the rule.

Typically, in the context of creed, constructive discrimination issues arise in the areas of:

  • Scheduling, vacation and break policies
  • Dress codes
  • Health and safety rules or standards
  • Photo and biometric identification (see section 10.4 below for more discussion)
  • Food practices and restrictions.

Constructive or adverse effect discrimination violates the Code unless:

  • The requirement, qualification or factor is reasonable and bona fide in the circumstances,[210] and the person or group cannot be accommodated short of undue hardship, or
  • An exception is provided by law that to discriminate because of such a ground is not an infringement of a right. [211]

For more on the requirements for the duty to accommodate, see section 9.5 below.

7.9 Systemic discrimination

Creed discrimination can result from individual behaviour as well as because of the unintended and often unconscious effects of a discriminatory system. This is known as systemic discrimination. Systemic discrimination can sometimes result from, and is often shaped by, systemic forms of faithism (see section 3.2 for more on faithism).

Systemic discrimination based on creed can be described as patterns of behaviour, policies and practices that are part of the administrative structure or informal “culture” of an organization, institution or sector, which, on purpose or inadvertently, create or perpetuate disadvantage for persons based on their creed.[212]

While systemic discrimination can overlap with and be in part reproduced through individual acts of discrimination, the focus of the systemic discrimination analysis is on the outcome and effects of institutional policies, practices and procedures.

The OHRC has set out three considerations to identify and address systemic discrimination:

  1. Numerical data
  2. Policies, practices and decision-making processes
  3. Organizational culture.

For more on how to assess these elements of systemic discrimination analysis, see the OHRC’s Policy and guidelines on racism and racial discrimination.

Organizational culture refers to informal norms and values that influence organizational activity and the experience of individuals both inside and outside the organization. An organization may have dominant and competing subcultures.[213]

Organizational culture and more informal practices and subjective assessments are particularly prone to inadvertently disadvantaging creed minorities within organizations.

Example: An investment firm has a tradition of celebrating its successes over drinks at a bar. The company regularly organizes “get-togethers” at a local drinking establishment on Thursday evenings to unwind and share latest market trends. These occasions also offer an important informal networking and mentoring opportunity for more junior staff members. Persons of religious faith who do not drink alcohol for creed-related reasons are effectively excluded from benefiting from these informal networking and information-trading opportunities in ways that can significantly limit their career prospects with the firm. The failure to provide other additional, more inclusive opportunities for career networking and mentoring for staff, including for people who do not consume alcohol or cannot meet in places where alcohol is served for religious reasons, could be discriminatory.  

Organizations have a responsibility to make sure that they are not knowingly or unconsciously engaging in systemic discrimination. This takes vigilance and a willingness to monitor and review numerical data, policies, practices and decision-making processes and organizational culture. From a human rights perspective, it is not acceptable for an organization to choose to remain unaware of systemic discrimination or to fail to act when it learns of a problem. For more on measures to combat systemic discrimination, see the OHRC’s Policy on racism and racial discrimination.

7.10 Reprisal

Section 8 of the Code protects people from reprisal or threats of reprisal. A reprisal (“payback”) is an action, or threat, that is intended[214] as retaliation for claiming or enforcing a right under the Code.

Creed group members may try to enforce their Code rights by filing a grievance against an employer (in a unionized workplace), making an internal discrimination complaint to a service provider, housing provider, or to their employer, or making an application at the HRTO. However, there is no strict requirement that someone who alleges reprisal must have already made an official complaint or application under the Code. Also, to claim reprisal, a person does not have to prove that discrimination took place.[215]

Someone will have experienced reprisal based on a Code ground if:

  • An action was taken against, or a threat was made to, the claimant
  • The alleged action or threat was related to the claimant having claimed or tried to enforce a Code right, and
  • The respondent intended to retaliate for the claim or the attempt to enforce the right.[216]

Example: A Toronto restaurant was found to have violated section 8 of the Code by carrying out acts of reprisal in response to complaints of discrimination by three former kitchen staff members. The three ex-staff members – one a head chef, another a sous chef, and another a cook – faced various acts of reprisal after submitting two complaint letters to their employer detailing a host of grievances, including allegations of discrimination based on creed and race-related grounds.[217] The HRTO found that the restaurant manager’s treatment of the applicants worsened after the letters of complaint were submitted: the employer took steps to hire replacement staff (all of whom were white); the head chef was asked to train a new inferior (sous chef) at his usual station, and to work the salad bar (a lower position in the kitchen hierarchy). Ultimately, the HRTO found that the employer “made the workplace intolerable for each of the applicants” and that the manager “precipitated a confrontation” that resulted in the termination of the head chef’s employment, and soon thereafter the other kitchen staff members, amounting to constructive dismissal and reprisal.[218]

The threat of reprisal sometimes contributes to a person’s decision not to assert their rights or complain. For example, during consultations,[219] the OHRC learned that some employees, particularly those who feel economically insecure or vulnerable, do not reveal their creed identity or needs. And they do not request or complain about their lack of creed accommodation, for fear of being marginalized or stigmatized by co-workers or the employer, and/or of being fired or demoted.

To combat discrimination, it is essential for organizations to create an inclusive and welcoming climate where negative practices, attitudes and stereotypes can be challenged and discouraged.[220]

[126] Williams v. Children’s Aid Society of Toronto, 2011 HRTO 265 (CanLII).

[127] See Johnson v. Halifax Regional Police Service (2003), 48 C.H.R.R. D/307 (N.S. Bd.Inq.) [Johnson] at para. 57 for an example where deviations from normal practice supported a finding of race discrimination. See also Pieters v. Peel Law Association, 2010 HRTO 2411 (CanLII).), aff’d. Pieterssupra note 34.

[128] Muslims (including people wrongly perceived as Muslim) and Sikhs were commonly among creed community members to report incidents of overt creed harassment (in particular Muslim women wearing a head covering).

[129] See Haykinsupra note 92 , confirming that harassment in services is prohibited under the Code.

[130] Section 10(1) of the Code. In Murchie v. JB’s Mongolian Grill2006 HRTO 33 (CanLII) at para. 161, the HRTO found that a serious single incident could constitute harassment. However, more often a single incident is treated as a form of discrimination (see section 7.3 on poisoned environment). See for example Romano v. 1577118 Ontario Inc., 2008 HRTO 9 (CanLII) and Haykinsupra note 92.

[131] See Reed v. Cattolica Investments Ltd. (1996), 30 C.H.R.R. D/331. See also, Gregory v. Parkbridge Lifestyle Communities Inc. 2011 HRTO 1535 (CanLII) at paras. 86-87 [Gregory] citing Ghosh v. Domglas Inc. (No. 2) (1992), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paras. 43-48 and Dhanjal v. Air Canada, (1996), 28 C.H.R.R. D/367 at para. 50 (C.H.R.T.), [Dhanjal], aff’d Dhanjal v. Canada (Human Rights Commission), 1997 CanLII 5751 (Fed. Ct.).

[132] See e.g. S.S. v. Taylor, 2012 HRTO 1839 (CanLII) at para. 71.

[133] See e.g. Harriott v. National Money Mart, 2010 HRTO 353 (CanLII) at para. 104.

[134] Dastghib v. Richmond Auto Body Ltd. (No. 2) (2007), 60 C.H.R.R. D/167 (B.C.H.R.T.). The BC Tribunal found that the applicant was discriminated against based on race, colour and religion and noted the particular impact of the name-calling after the events of 9/11: “In my view, the references to Bin Laden and Hussein, in the context of 9/11, and the manner in which these two persons were being portrayed in the media, would lead to an inference that a person was being compared to a mass murderer, a dictator, or a terrorist. Especially in the aftermath of 9/11, such remarks made against a person of Muslim and Middle Eastern origin are extremely insensitive, a racial slur, and thus discriminatory.” (at para. 212)

[135] Perez-Moreno v. Kulczycki, 2013 HRTO 1074 (CanLII).

[136] R.S.O. 1990, c. O.1. s. 32.0.1-32.0.7.

[137] See R. v. Feltmate, 2012 NSSC 319 (CanLII) for an example of a criminal case involving religion/creed. Also see Human rights and creed research and consultation report for further analysis of hate crime trends based on creed.

[138] In Dhanjalsupra note 131, the Canadian Human Rights Tribunal noted that the more serious the conduct, the less need there is for it to be repeated. Conversely, the Tribunal held the less serious the conduct, the greater the need to show its persistence. See also General Motors of Canada Limited v. Johnson, 2013 ONCA 502 (CanLII).

[139] Islam v. Big Inc. 2013 HRTO 2009 (CanLII) at para. 275, [Big Inc.], aff’d. Big Inc. v Islam, 2015 ONSC 2921 (CanLII), quoting Xu v. Quality Meat Packers Ltd., 2013 HRTO 533 (CanLII) at para. 108. See also Smith v. Menzies Chrysler, 2009 HRTO 1936 (CanLII); Dhillon v. F.W. Woolworth Co. (1982), 3 C.H.R.R. D/743 at para 6691 (Ont. Bd. Inq.); Naraine v. Ford Motor Co. of Canada (No. 4) (1996), 27 C.H.R.R. D/230 at para. 50 (Ont. Bd. Inq.), aff’d. Ontario (Human Rights Commission) v. Naraine, 2001 CanLII 21234 (Ont. C.A.), citing Dhillon v F.W. Woolworth Co. (1982), 3 C.H.R.R. D/743 at para. 6691.

[140] See Dhanjalsupra note 131 and 138; Johnson, supra note 127; Moffatt v. Kinark Child and Family Services (1998) 35 C.H.R.R. D/205 (Ont. Bd. Inq.); Kharoud v. Valle-Reyes (2000), C.H.R.R. Doc. 00-144 (B.C.H.R.T.); Dhanjal, supra note 131.

[141] See also Lee v. T.J. Applebee’s Food Conglomeration (1987), 9 C.H.R.R. D/4781 (Ont. Bd. Inq.).

[142] This could also be discrimination on other intersecting race related Code grounds.

[143] See e.g. Vanderputten v Seydaco Packaging Corp., 2012 HRTO 1977 (CanLII) [Vanderputten].

[144] See Smith v. Ontario (Human Rights Commission), (2005), 52 C.H.R.R. D/89 (Ont. Div.Ct.) and Naraine v. Ford Motor Company [1996], 27 C.H.R.R. D/23014 (Ont. Bd. Inq.); aff'd 34 C.H.R.R. D/405 (Ont. Div. Ct.); rev'd (2001), 209 D.L.R. (4th) 465 (Ont. C.A.); leave to appeal refused [2002] S.C.C.A.
No. 69 (QL).

[145] Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825. The Supreme Court of Canada considered Malcolm Ross’ claim that his religious rights were violated by a human rights Board of Inquiry order that prevented him from continuing to teach because of his off-duty antisemitic comments. In addition to finding that Mr. Ross' off-duty comments effectively poisoned the school environment, the Supreme Court also found that the school board had failed to maintain a positive environment and had discriminated in its failure to take a proactive approach to the controversy surrounding Ross.

[146] Vanderputtensupra note 143; McKinnon v. Ontario (Ministry of Correctional Services), [1998] O.H.R.B.I.D. No. 10 [McKinnon].

[147] Specifically, disguising his voice and speaking in an accent supposedly of someone from the Middle East, the detective stated that the man had been taking airline pilot lessons at Buttonville Airport. He also suggested that his locker should be searched for a flying manual in Arabic and stated that he was an "evil Islamic militant." Yousufi v. Toronto Police Services Board, 2009 HRTO 351 (CanLII) [Yousufi].

[148] Ibid.

[149] Ghosh v. Domglass Inc. (1992), 17 C.H.R.R. D/216 (at D/227) at para. 76, as cited in McKinnon v. Ontario (Ministry of Correctional Services), supra note146. For more on corporate liability for actions or inactions of “directing minds” in an organization, see section 12.

[150] Dufoursupra note 7.

[151] The principle was established in the Charter context in Big M, supra note 5.

[152] As the Supreme Court stated in Big Msupra note 5 at para. 123: “[W]hatever else freedom of conscience and religion may mean, it must at the very least mean this: government [and by extension other public organizations governed by the Charter] may not coerce individuals to affirm a specific religious belief or to manifest a specific religious practice for a sectarian purpose.”

[153] S.L. v. Commission scolaire des Chênes, [2012] 1 S.C.R. 235 [S.L.]; Saguenaysupra note 41; Loyolasupra note 8. For more on the duty of neutrality see Section 9.11.6 on secularism and the duty of neutrality.

[154]See Dufour, supra note 7 and Streeter v. HR Technologies, 2009 HRTO 841 (CanLII) [Streeter]. An employer may legitimately require certain religious qualifications for a job if it is a religious organization and can meet the requirements of a defence set in the Code; see sections 8.2 and 8.3.

[155] Streeter, ibid. The HRTO found that the religious discussions and actions went beyond what might be considered “normal” in an office and were an attempt to persuade Mr. Streeter to engage in an issue that had nothing to do with the company’s business or his work.

[156] Dufour, supra note 7.

[157] In Dufour, ibid. and Streetersupra note 154, the Tribunal made a point of noting that not all religious discussions violate the Code.

[158] Lapcevic v. Pablo Neruda Non-Profit Housing Corporation, 2010 HRTO 927 (CanLII). The HRTO found that there was not enough information to establish that the supervisor ought to have known the conduct was unwelcome.

[159] One of the leading Supreme Court of Canada decisions dealing with religious rights, Big M.supra note 5, considered a Charter challenge to the federal Lord’s Day Act which made it illegal for stores to remain open on Sundays, with some exceptions. The Supreme Court found that the purpose of the law was to compel the observance of the Christian Sabbath and that this purpose infringed freedom of religion. The Court also noted that imposing the requirements of the Christian faith creates a hostile climate for, and gives the appearance of discrimination against, non‑Christian Canadians. It also found that compelling a day of rest preferred by one religion was inconsistent with preserving and enhancing the multicultural heritage of Canadians.

[160]For example, in Freitag v. Penetanguishene (Town) (1999), 47 O.R. (3d) 301 (C.A.) [Freitag ONCA] the Court of Appeal for Ontario held that the purpose of opening municipal meetings with the Lord’s Prayer was to impose “a Christian moral tone on the deliberations of Council” and violated the rights of non-Christians. See also Saguenaysupra note 41.

[161] In Allen v. Renfrew (Corp. of the County) 2004 CanLII 13978 (ON S.C.) [Allen v. Renfrew], a "Secular Humanist" challenged Renfrew County Council’s use of a non-sectarian prayer at its monthly meetings. The Ontario Superior Court found that a broadly inclusive and non-denominational prayer, even one that refers to God, while not consistent with the beliefs of some “minority groups,” was not an infringement of religious freedom under the Charter. The Court also rejected the argument that mentioning God in a prayer at a government meeting could be seen as a coercive attempt to compel religious observance. However, this decision predates an HRTO decision finding a similar optionally observed, non-denominational opening prayer contrary to the CodeFreitag HRTO, supra note 107, and Freitag ONCA, supra note 160; See also Saguenay, supra note 41.

[162] Saguenayibid. (see especially paras. 135-140). The Court distinguished Freitag ONCA, supra note 160, and Allen v. Renfrew, supra note 161 (at paras. 138-140).

[163] Saguenay, supra note 41, at para. 120. The Court further stated that this resulted in people with theistic beliefs being able to “participate in municipal democracy in an environment favourable to the expression of their beliefs. Although non‑believers could also participate, the price for doing so was isolation, exclusion and stigmatization. This impaired [the applicant's] right to exercise his freedom of conscience and religion.”

[164] Saguenay, ibid., at para. 137.

[165] For example, see Saguenayibid. at para. 101, where the Supreme Court found that providing the applicant (an atheist) and other persons attending City Council meetings time to physically leave the chamber during the recitation of an opening prayer only further “accentuated” and “highlight[ed] the exclusive effect of the practice.” (See also paras. 122-125). See also Freitag ONCA, supra note 160 at paras. 39-40.

[166] In Zylberberg v. Sudbury Board of Education, the Court of Appeal for Ontario explained that the “standpoint of pupils in the sensitive setting of a public school” must be considered, and that the “peer pressure and the classroom norms to which children are acutely sensitive… are real and pervasive and operate to compel members of religious minorities to conform with majority religious practices.” 1988 CanLII 189 (Ont. CA) at 20-21.

[167] For more on religion in the public sphere, see section 9.11.6.

[168] The Supreme Court stated in S.L., supra note 153 at para. 40:

[T]he suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter.

In reaching this conclusion, the Court quoted, at para. 39, its earlier comments on “cognitive dissonance” from Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710 [Chamberlain] at paras. 65-66. See section 10.5 for further considerations in education.

[169] For example, in R.C., supra note 67 at paras. 46-48, the HRTO considered social and historical relations of power, inequality and disadvantage between creed communities, and the unique circumstances of an elementary school setting.

[170] For example, in R.C.ibid. at para 60, the HRTO stated that “creed-based activities outside the classroom need not be eliminated, so long as participation is optional, no pressure is applied on students to participate, the school is neutral and it makes clear that it is facilitating such optional activities for all creeds, not promoting any particular creed.”

[171]In Canadian Civil Liberties Assn. v. Ontario (Minister of Education), 1990 CanLII 6881 (Ont. CA) [Elgin County], the Court of Appeal for Ontario considered a provincial regulation that made periods of religious education a compulsory part of the public school curriculum. Following an earlier decision in Zylberberg (see supra note 166), the Court held that the purpose and effect of the regulation were to provide for religious indoctrination, which the Canadian Charter does not authorize. However, the Court noted at 344 that a program that teaches about religion and moral values without indoctrination in a particular faith would not breach the Charter. The Supreme Court of Canada approvingly cited Elgin County in S.L.supra note 153 at para. 20

[172] Elgin Countyibid. at 40-41, citing Religion in the Public Schools, (American Association of School Administrators, 1986) at 33 [emphasis added, replicating the Ontario Ministry of Education's “Education About Religion in Ontario Public Elementary Schools”, which quoted the guidelines with emphasis (retrieved September 24, 2010,].

[173] See Loyola, supra note 8.

[174] Loyolasupra note 8 at para. 48 [emphasis in the original], quoting Benjamin L. Berger, “Religious Diversity, Education, and the ‘Crisis’ in State Neutrality” (2014), 29 C.J.L.S. 103 at 115.

[175] For example, in the past, a school board only allowed Christian literature to be distributed to students. It revised its policy to permit the distribution of materials from other religions but in practice only Christian literature continued to be distributed. There was no effort to publicize the new policy or make sure that members of other creeds were aware that they could provide materials. When persons of a non-Christian faith asked to have materials distributed, there would be no follow-up. Discrimination was found to have occurred, despite the existence of the new policy: R.C supra note 67.

[176] There is a wealth of jurisprudence establishing the phenomenon of racial profiling. See, for example, Nassiah v. Peel Regional Police Services Board,  2007 HRTO 14 (CanLII) [Nassiah]; Shaw v. Phipps, 2012 ONCA 155 (CanLII); McKay v. Toronto Police Services Board, 2011 HRTO 499 (CanLII) [McKay]; Pieterssupra note 34 . See also the OHRC’s Policy and guidelines on racism and racial discrimination, available online at:, and the OHRC’s 2003 report, Paying the Price: The human cost of racial profiling, available online at:

[177] “September 11th in Hindsight: Recovery and Resolve” (2002), online: Canadian Broadcasting Corporation retrieved May1, 2003.

[178] Council on American-Islamic Relations Canada. (September 22, 2002). Survey More Than Half of Canadian Muslims Suffered Post-9/11 Bias. Retrieved from See also Reem Bahdi, Olanyi Parsons and Tom Sandborn. (2010). Racial Profiling B,C. Civil Liberties Association Position Paper. In Marcuse, R. (ed.) BCCLA: Racial Profiling. Vancouver: BCCLA, 31 at 35; News Staff. (March 21, 2005). 1 in 6 Canadians victims of Racial Profiling: Poll. Retrieved December 29, 2008 from; Powell, Terry. (March 21, 2005). One in Six Canadians Victims of Racism. Canadian Press. Retrieved December 29, 2008 from; Hanniman, W. (2008). Canadian Muslims, Islamophobia and National Security. Int’l J L, Crime &  Jus 36, 271 at 273-275.

[179] See Esposito, J. and Kalim, I., supra note 56; Poynting, S., and Perry, B., supra note 59; Razack, S., supra note 58; Gottschalk, P and Greenberg, G, supra note 59.

[180] Yousufisupra note 147; Kinexus Bioinformatics Corp. v. Asad, 2008 BCHRT 293 (CanLII) [Kinexus], aff’d. Kinexus Bioinformatics Corporation v. Asad, 2010 BCSC 33 (CanLII). The OHRC also received many reports of racial and creed-based profiling in response to our 2013 Creed Survey.

[181] Kinexusibid.

[182] A kirpan, a religious object, is a stylized representation of a sword (resembling a dagger) worn by Sikh men.

[183] Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256 at 71 [Multani].

[184] Pieters, supra note 34; R. v. Brown (2003), 64 O.R. (3d) 161 (Ont. C.A.). See also, R. v. Richards, 1999 CanLII 1602 (Ont. C.A.); Peart v. Peel Regional Police Services, 2006 CanLII 37566 (Ont. C.A.); R. v. Khan, 2004 CanLII 66305 (Ont. Sup. Ct.) [Khan].

[185] For example, in Khanibid. at para. 65, 68, the police officers’ explanation for why they stopped Mr. Khan and searched his car was found to be inconsistent with the documentary evidence and to defy common sense. The Court concluded that the reasonable inference was that Mr. Khan was stopped because of racial profiling, because he was a young Black male driving an expensive car.

[186] In Johnsonsupra note 127 at para. 57, the Nova Scotia Board of Inquiry held that in deciding whether there is a prima facie case of differential treatment, a board of inquiry must try to establish how events normally unfold in a given situation. Deviations from normal practice and evidence of discourtesy or intransigence are grounds for finding differential treatment.

[187] Johnsonibid. The Board of Inquiry found that the unprofessional way the complainant was treated during a traffic stop was based on the person’s race and that it would be hard to imagine similar treatment of a White driver. See also Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430 (B.C.H.R.T.) at para. 471 [Radek]; Nassiahsupra note 176 at paras. 100-106.

[188] See Radekibid.

[189] For example, see McKaysupra note 176.

[190] R. v. Parks, 1993 CanLII 3383 (Ont. C.A.). See also Adams v. Knoll North America, 2009 HRTO 1381 (CanLII), aff’d. Knoll North America Corp. v. Adams, 2010 ONSC 3005 (CanLII).

[191] The analysis proposed in the context of racial profiling is: “[T]o consider if differential treatment has occurred, the board must necessarily hypothesize about how events would have unfolded if the driver and passenger of the vehicle had been white rather than black. … I find it difficult to imagine that these events would have unfolded the same way if a white driver from Texas had been involved in this stop.” See Johnsonsupra note 127 at paras. 51 and 57.  See also Abbott v. Toronto Police Services Board, 2009 HRTO 1909 (CanLII).

[192] For example, in Maynard v. Toronto Police Services Board, 2012 HRTO 1220 (CanLII) at paras. 175 and 176 [Maynard], the HRTO found that a police officer “cast his investigative net so wide” that race was the predominant factor leading him to investigate a young Black man.  

[193] Maynardibid. at para. 154; Policy and Guidelines on Racism and Racial Discrimination (2005), Ontario Human Rights Commission at 20.

[194] For more on the concept of intersectionality, and its application in case law, see the OHRC's (2001) Discussion Paper, "An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims" (

[195] The OHRC’s review of Human Rights Tribunal of Ontario complaints (“applications”) citing creed as a ground of discrimination found that a majority of creed applications also cited a race-related ground (for more analysis of HRTO creed applications, see the OHRC’s Human rights and creed research and consultation report). See also section 3.3 for further exploration of current trends.

[196] Big Inc., supra note 139.

[197] See, for example, R. v. N.S., [2012] 3 S.C.R.R 726 [N.S.].

[198] For more on intersectional gender and creed dynamics, see for instance Caroline Sweetman's (ed.) Gender, Religion and Spirituality. 1998. UK: Oxfam International.

[199] See section 10.6.1 for more on the duty to accommodate the creed practice of fasting as an example. The duty to accommodate may be limited or not exist where this creates undue hardship, or the rule, standard or task is shown to be a bona fide requirement. See section 9.5.2 for more on bona fide requirements.

[200] For example, in Krall v. Vedic Hindu Cultural Society (2005), 56 C.H.R.R. D/306 (B.C.H.R.T.), a Hindu woman filed a complaint with the B.C. Human Rights Tribunal against a Hindu Temple, after she was asked to leave on one occasion and to worship at the back of the temple because when she prays she goes into a trance, screams, gesticulates and jumps up and down. The Tribunal noted that as a person’s personal interpretation of their faith is protected, the restrictions imposed on the worshipper did constitute discrimination based on religion. However, the Tribunal went on to find that her behaviour was disruptive to other worshipers and frightening for the children. Therefore, the Temple reasonably accommodated her by asking her to worship at the back. See Creed Case Law Review for some recent case law examples. For more on this broader growing trend of intra-religious diversity, and the role of secularization and individualization, see the OHRC's Human rights and creed research and consultation report. For more on the decline of centralized institutional forms of religious authority in the modern period and its implications for contemporary religious diversity, see also Woodhead, L. et al. (2009) Religions in the Modern World (revised 2nd edition): Traditions and TransformationsNew York: Routledge. 

[201] Hadzic v. Pizza Hut, (1999), 37 C.H.R.R. D/252 (B.C.H.R.T.).

[202] McGuire v. Better Image Property Maintenance Inc. (2006), CHRR Doc. 06-744, 2006 BCHRT 544.

[203] Rill v. Kashruth Council of Canada, 2008 HRTO 162 (CanLII). The applicant, who had previously been certified, attempted to re-apply to become a kosher caterer in February 2008 because he understood the Kashruth Council’s policy permitted a non-orthodox caterer to be certified as long as an orthodox mashgiach was present at all times to supervise the cooking process. However, the respondent did not permit him to re-apply.

[204] See section 9.2.

[205] See Ontario’s Human Rights Code, section 12, for more information on discrimination because of association:

[206] Ibid.

[207] See e.g. Knibbssupra note 101, and Petterson, supra note 101.

[208] Section 11(1) of the Code says that discrimination may occur:

Where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member.

[209] Big Inc.supra note 139 at para. 112.

[210] This is set out in section 11(1)(a) of the Code.

[211] This is set out in section 11(1)(b) of the Code. See sections 8 (statutory defences) and 9.8 (limits on duty to accommodate) for more on exceptions provided by law.

[212] In Moore, supra note 116, the Supreme Court of Canada reaffirmed its earlier definition of systemic discrimination set out in its seminal 1987 decision Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 as “practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics” (at p. 1138-1139). The OHRC uses “systemic discrimination” when referring to individual institutions, or a system of institutions, that fall under the jurisdiction of the Code (e.g. the education system).  

[213] For more on building a human rights-based organizational culture, see:

[214] As the HRTO stated in Big Inc.: “Reprisal for the purposes of the Code involves deliberate action. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation of the Code, the applicant must establish that the action was taken with an intent to punish or retaliate”: supra note 139 at para. 186, citing Noble v. York University, 2010 HRTO 878 (CanLII) [Noble], Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (HRTO), Ketola v. Value Propane Inc., 2002 CanLII 46510 (HRTO), and Moffatt v. Kinark Child & Family Services (1998), 35 CHRR D/205.

[215] Noble, ibid. at para. 34.

[216] Noble, ibid. at para. 33.

[217] The letters complained about being “forced to taste pork” and eat other foods during the Muslim holy month of Ramadan; being refused a day off to celebrate the Muslim religious holiday of Eid; and facing threats of being fired and replaced by White staff.

[218]Big Msupra note 5.

[219]See for instance the OHRC’s Summary of human rights and creed survey findings. Focus group feedback from religious minorities, many of whom spoke more specifically for more recent immigrants to Ontario, also revealed this.

[220] See section 13 for some best practices.

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