2. Arguments for not limiting the definition of creed to religion and including secular ethical and moral beliefs

2. 1. Principles of statutory construction and interpretation

Some of the main arguments for not limiting the OHRC policy definition of creed to religion are derived from principles of statutory construction and interpretation. Among those discussed below include:

Presumption against tautology
Presumption of consistency
Avoiding logical absurdities
Equal standing of French and English language version of the Code
Interpretation consistent with the Charter.

2.1.1 Presumption against tautology and of consistent expression

One key aid to considering the statutory interpretation of the meaning of creed in the Code is the “presumption against tautology.” This presumption assumes that the legislature has carefully chosen each word of a statute so it will not be confused with other similar words, or be redundant or superfluous.[240] Similarly, the “presumption of consistent expression” assumes that the legislature uses language carefully and consistently so that identical words in a statute have the same meaning and different words have different meanings.[241]

However, there are some exceptions to these rules, both in the case of the presumption of consistency and the presumption against tautology.[242]

Statutes from other jurisdictions within Canada that deal with similar subject matter can also be considered as an aid to statutory interpretation. [243] For example, in B. v. Ontario (Human Rights Commission), the Supreme Court noted, in the context of interpreting the meaning of the ground of marital status in Ontario: “we agree that statutory language from other jurisdictions may aid in the interpretation process…”[244] The Court was considering the impact of the definition of marital status under Saskatchewan’s human rights legislation, which expressly excluded the particular identity of a person’s spouse from the ground of marital status (while Ontario’s Code does not). The Court said: “the express exclusion of particular identity in the Saskatchewan Code and the absence of that exclusion in the Ontario Code lends itself more easily to the conclusion that the broader meaning of status was, in fact, intended in Ontario.”[245] In other words, the fact that the Saskatchewan Code defined marital status differently than Ontario’s Code weighed in favour of a conclusion that the Ontario Code intended something different.

The Ontario Code prohibits discrimination based on creed, but does not list religion as a prohibited ground. The word “religion” does not appear in the Code. However, the word “religious” is used in sections that deal with statutory defences for special interest organizations (s.18) and special employment (s. 24). In addition to creed, the terms “religion,” “religious belief” or “religious creed,” and “political belief” appear in other Canadian human rights statutes (see Figure 3 below, listing creed-related terms in use around the country, as affirmed in human rights statutes and/or case law).

Figure 3: Creed-related prohibited grounds of discrimination in human rights legislation and case law

Legislation	Prohibited grounds
Canadian Human Rights Act (1977)	religion
British Columbia Human Rights Code (1969)	religion and political belief
Alberta Human Rights Act (1966)	religion and political belief
Saskatchewan Human Rights Code (1979)	religious creed and political belief
Manitoba Human Rights Code (1970)	religion or creed, or religious belief, religious association or religious activity
Ontario Human Rights Code (1962)	creed
Quebec Charter of Human Rights and Freedoms (1975)	religion, political convictions NB: Also affirms freedom of conscience, freedom of religion, [246] and freedom of opinion among other freedoms in Ch.1(3)
Nova Scotia Human Rights Act (1963)	religion, creed, and political belief, affiliation or activity
New Brunswick Human Rights Act (1967)	religion and political belief and activity
Newfoundland Human Rights Act (1969)	religious creed, religion and political opinion
Prince Edward Island Human Rights Act (1968)	religion, creed and political belief
Yukon Human Rights Act (1987)	religion or creed, or religious belief, religious association or religious activity and political belief
Nunavut Human Rights Act (2003)	creed, religion

Note: Dates refer to first year enacted, not to terms in existence at that time.

Research into interpreting such varied terms used across the country found that, much as in Ontario, there are very few definitions in statutes, policies and case law. Exceptions are the definition of religion (drawing on Syndicat Northcrest v. Amselem,[247] and P.E.I.’s definition of “political belief” as referring only to beliefs of parties as defined in their Elections Act. In Wali v. Jace Holdings Ltd.[248], the British Columbia Human Rights Tribunal grappled with the definition of political belief. It suggested that not just any political belief would be covered, but rather beliefs in respect of a system of “social cooperation”. It found that the applicant had experienced discrimination based on his political beliefs, because he was dismissed in part because of his personal political position on the regulation of pharmacy technicians by the College of Pharmacists.[249]

Applying the aids to statutory interpretation discussed above, it may be argued that the terms religion and creed mean different things in Ontario and Canadian human rights law, since:

Creed, instead of religion, appears in the Ontario Code
The terms creed and religion were both known to the Ontario Legislature at the time the Code was drafted, but creed was chosen
Other human rights statutes use religion, religious creed and, even both religion and creed.

2.1.2 Avoiding logical absurdities

The principle of avoiding logical absurdities and absurd consequences when trying to resolve cases of statutory ambiguity may arguably be another relevant aid to statutory interpretation.[250] While some scholars have noted the potential for absurdity, it is by no means clear that this interpretative principle provides much help in interpreting the meaning of creed.

Labchuck (2012) and Szytbel (2012) suggest that one absurdity that may result from confining creed protections to religion is that nearly identical but differently sourced beliefs in ethical veganism will be protected differently.[251] Labchuck provides the example of four different types of ethical vegans:

A Jain follower, who is vegan for religious reasons
A practicing Christian who sees veganism as a religious duty
A Christian who is vegan, but is a vegan for secular moral reasons relating to animal welfare
An atheist who is an ethical vegan for strictly secular moral reasons.

Interpreting creed in a way that excludes secular beliefs, Labchuk argues, would result in the apparent logical absurdity of only extending human rights protection under the Code to the first two, even though they may all be equally committed to the same ethical vegan beliefs (or even members of the same organization).

Legal analysts have highlighted other possible logical absurdities, inconsistencies and exclusions that inevitably result from any effort to universally define, and delimit for the purposes of law, what constitutes a religion.[252] Others have pointed to further logical contradictions in the OHRC’s (1996) Policy definition of creed as excluding “secular, moral or ethical beliefs.” This appears to suggest that both secular and moral or ethical beliefs more generally are excluded from protection. Critics argue that divorcing religious beliefs (which are protected) from “moral or ethical beliefs” or “political beliefs” for that matter (both of which are not protected according to the wording of the policy) is illogical since morals and ethics are often derived from religion, among other potential sources (including secular ones).[253]

2.1.3 Equal standing of French and English language versions of the Code

Another principle of statutory interpretation is the equal standing and regard that must be given to both the English and French language version of the Code in determining its appropriate interpretation. When interpreting a bilingual statute, the first step is to search for the shared meaning of the English and French versions; in this case, “creed” and “la croyance.” Second, it is necessary to determine whether the shared meaning is consistent with Parliament’s intent.[254] If one language version gives better effect to the purpose of the Code, that version should be selected, even if a narrower meaning would be common to both versions.[255]

The French language version of the Ontario Human Rights Code uses “la croyance.” This term is often translated into English as “belief,” rather than more narrowly as “religion,” suggesting the potential for a broader interpretation of creed beyond religion, as affirmed by the HRTO in R.C. v. District School Board of Niagara. [256]

2.1.4 Interpreting the Code consistently with the Charter

Proponents of expanding the definition of creed beyond religion argue that the Code should be interpreted harmoniously with Section 2(a) of the Charter, which includes both freedom of religion and freedom of conscience. The OHRC’s review of the case law on freedom of conscience reveals that although there has been no majority decision where the Supreme Court has defined “freedom of conscience” as distinct from “freedom of religion,” the courts have generally interpreted conscience in ways that encompass conscientiously-held non-religious beliefs, whether grounded in “‘secular morality,”[257] the positions of “atheists, agnostics, sceptics and the unconcerned,”[258] or “profoundly personal beliefs that govern one's perception of oneself, humankind, nature and, in some cases, a higher or different order of being.”[259]

For example, in Roach v Canada (Minister of State for Multiculturalism and Culture), [260] Charles Roach, the claimant, unsuccessfully challenged the requirement that new citizens declare an oath or affirmation of allegiance to the Monarch, on the basis that it would violate his freedom of conscience under section 2(a) of the Charter. In his decision, Linden, JA distinguished between freedom of conscience and freedom of religion:

It seems…that freedom of conscience is broader than freedom of religion. The latter relates more to religious views derived from established religious institutions, whereas the former is aimed at protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organized religious principles. These are serious matters of conscience. Consequently the appellant is not limited to challenging the oath or affirmation on the basis of a belief grounded in religion in order to rely on freedom of conscience under para. 2(a) of the Charter...However, as Madame Justice Wilson indicated, "conscience" and "religion" have related meanings in that they both describe the location of profound moral and ethical beliefs, as distinguished from political or other beliefs which are protected by para 2(b)[freedom of expression]. (Emphasis added; see also Justice Wilson’s concurring decision in R. v Morgentaler[261]).

Given the overlapping objectives of the Charter and the Code, and the fully (versus quasi) constitutional status of the Charter, some argue, citing Human Rights Tribunal of Ontario (HRTO) and court decisions,[262] that interpretations of the Code, particularly in cases of statutory ambiguity, should be made congruent with the interpretations, values and terms of the Charter. This was recently affirmed in an October 9, 2012 HRTO decision in McKenzie v. Isla, where the Vice-chair stated:

The Tribunal has emphasized that ambiguity in the scope of Code rights should be resolved in favour of protecting matters at the core of the rights and freedoms in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (the “Charter”).[263]

Labchuck and Chiodo argue that including secular moral and ethical beliefs under “creed” in the Code is consistent with giving full effect to the more fundamental right to freedom of religion and conscience under Section 2(a) of the Charter.[264]

At the same time, the extent that the aims and purposes of ”equality” jurisprudence under the Code ground of creed are, or should be, consistent with the aims and purposes of liberty jurisprudence under section 2(a) of the Charter remains a contested point. Some scholars caution against “Charter imperialism”[265] and the conflation of these two distinct purposes and analyses in recent court decisions. In Freitag v.Penetanguishene (Town) 2013 HRTO 893 (CanLII), the Tribunal clearly distinguished between Charter and Code protections for religion and creed in its decision.[266]

One could also argue that the Code’s anti-discrimination provisions on the ground of creed bear a closer relationship to, and are therefore best compared and harmonized with, the Charter right under Section 15(1) to “equality before and under the law...without discrimination based on...religion.”[267] Notably absent, in such Charter s.15 provisions, are matters of conscience and belief extending beyond religion, from which one could argue interpretations of the Code should take their cue.[268] The OHRC is not aware of conscience being recognized as an analogous ground.

The OHRC’s 1996 Policy on creed states: “Freedom of religion is the basic principle that informs the right to equal treatment under the Code on the ground of creed” (p.5). In an accompanying endnote, it derives this interpretation from a reading of the Code’s Preamble.[269] Much appears to hinge on how one interprets the purpose of the Code, in particular how one balances the overlapping goals of protecting individual dignity and broader social purposes such as creating a “climate of mutual respect” and advancing “equal rights and opportunities without discrimination.”[270] While the language of the Preamble is clearly central in this consideration, the courts have made it clear that one must also consider how the higher courts have interpreted the purposes of human rights statutes across jurisdictions in the case law.[271]

2.1.5 Liberal and purposive interpretation of the Code

Some legal analysts and scholars argue that including secular ethical and moral beliefs for human rights protection under the Code ground of creed is most consistent with a liberal and purposive reading of the Code, as called for by its ”quasi-constitutional” status.[272] They cite supporting court decisions affirming that:

Human rights legislation should be given a liberal and purposive interpretation, in keeping with its quasi-constitutional status[273]
Perceived ambiguities (such as the scope of the definition of creed) should be resolved in a way that promotes the anti-discriminatory goals of the legislation.[274]

Mindful of the progressive function and mandate of the OHRC,[275] some analysts argue that is entirely within the spirit and mandate of the Code and OHRC to help to “ensure that similar beliefs are granted similar degrees of protection – regardless of whether they are rooted in religion or a secular basis.”[276]

This view finds support in the HRTO’s (2013) decision on whether atheism counts as a creed protected by the Human Rights Code, in which the adjudicator, Associate Chair David Wright, conclusively found in the applicant’s favour that ”a liberal and purposive interpretation of the prohibition on discrimination because of ‘creed’ includes atheism and that discrimination because a person is atheist is prohibited by the Code.”[277]

2.2 Social trends: secularization and the evolving nature of beliefs

“I think there is a strong argument for creed going beyond religion when you’ve got similar beliefs occupying a place of similar importance for non-religious persons.”
– March 2012 Legal Workshop participant

”[T]he distinction [between religious creeds, which receive full Code protection, and secular moral or ethical belief systems, which do not] appears to many observers to be arbitrary, and implies that familiar or favoured creeds are “real” beliefs, while different or new creeds are not beliefs or are only pseudo-beliefs”.[278]

Another main argument for expanding the definition of creed to include secular ethical and moral beliefs concerns transformations in society and belief in the contemporary era. How people make sense and meaning of their lives and the world today has changed significantly in the modern era,[279] particularly since the 1960s. Observers argue that religion is no longer the only, or primary, arbiter of morality and identity, but rather one among many others in the contemporary era. These observers think it is particularly important to equally recognize religious and non-religious bases for belief and moral action in the current social environment of diversifying and individualizing belief systems, declining significance and centrality of religion for, and the growing numbers of people professing deeply held non-religious beliefs (as explored in Background Section III above).

The idea that only religions have a deep social or communal basis, or anchoring in social relations of inequality (thus uniquely meriting protection and remedying under the Code) was also contested. One Legal Workshop participant argued, noting similarities between deeply held secular and religious beliefs and matters of conscience:

If you think about things that overlap but are not identical, you get to those deeply held beliefs that cannot be changed – or only at deeply personal cost. We’re not here to protect the frivolous. We’re here to protect the marginalized, and atheists and pacifists have historically been marginalized in our society.

Others, including some religion studies scholars, argued that distinctions between religious and non-religious beliefs and practices are fast blurring, as exemplified in the increasing individualism and fluidity of religious and non-religious belief, identity and affiliation, and declining importance and significance of stable and enduring forms of community. “Secular beliefs may play a fundamental role in a believer’s life that is nearly indistinguishable from the role religion plays in the lives of others,” Labchuck also argues, pointing to the difficulty of drawing a “hard and fast boundary between religious and other beliefs.” She argues:

Both refer to orienting commitments that help give meaning and direction to life. Secular beliefs may be the ethical and moral equivalent of religious beliefs. They may play an equally or more profound role in the lives of believers than religion plays in the lives of those who attend church but may pay mere lip service to the ideals preached at their place of worship.[280]

“Recognizing that non-religious viewpoints can also constitute comprehensive claims to the truth,” and function in ways very similar to religion, Chiodo further argues, may help “change our perspective on many [secular] worldviews that are incorrectly perceived as neutral”.[281]

While many argued that extending creed protections to non-religious beliefs was simply a sensible or good thing to do given current social trends, others offered a stronger legal onus to do so. Some argued that the principle of interpreting the Code liberally and purposively, in keeping with its quasi-constitutional status, assumes that the courts will interpret human rights organically and progressively in accord with such evolving social trends, values and conceptions within society. [282]

2.2.1 Leaving creed definition open-ended allows us to adapt anti-discrimination legislation to evolving trends in society

“Beginning a court proceeding on the basis of a distinction between legitimate and illegitimate belief is an offensive way to start a court process.”
– January 2012 OHRC Policy Dialogue participant

The OHRC heard many arguments for leaving the definition of creed open-ended – neither continuing to commit to the existing closed definition of creed as religion, nor positively stating what other kinds of (non-religious) beliefs may qualify for human rights protection. People argued that leaving the definition of creed open-ended – but with some threshold criteria as already determined by the courts – will enable rights protections to adapt and evolve in tune with emerging societal developments, patterns of inequality and discrimination, and the evolving and dynamic nature of belief and practice in the modern era. Some argued that not defining creed will also free persons of various minority beliefs and faiths – e.g. practitioners of Aboriginal spirituality – from having to force fit their beliefs and practices into a predefined, and for some, alien, western categorical mold (such as religion).[283]

In his (2012) paper for the January 2012 OHRC Policy Dialogue, “Trying to Put an Ocean in a Paper Cup: An Argument for the Un-definition of Religion,” Howard Kislowicz argues that “because the lived religious experiences of individuals and communities are so diverse” and continually evolving, “a more appropriate response may be to refuse to adopt a comprehensive, a priori definition of religion altogether,” to avoid having the ironic impact of stifling religious freedom in its name.[284]

The same could be said about creed. Kislowicz ultimately argues for “keeping with the common law approach of dealing with cases as they arise”[285], based on contextual analogical reasoning (“if it looks like a duck, walks like a duck and quacks like a duck, it must be a duck”) rather than opting for abstract definition. Reasoning by analogy, he argued, is already an embedded principle in law and thus should not be feared.

2.3 Consistency with domestic and international law and jurisprudence

2.3.1 International human rights law

People arguing for an expanded definition of creed that includes secular ethical and moral beliefs cite domestic and international human rights case law and jurisprudence to support their position. Though not legally binding unless implemented by statute, international human rights laws and instruments set standards for domestic human rights law and policy. They can and have been explicitly cited by domestic courts to guide legal decision making, particularly when there is ambiguity about appropriately interpreting a domestic human rights statute. [286]

Article 18 of the Universal Declaration of Human Rights states:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Bundling together the rights to freedom of thought, conscience, religion and belief in international law – also done in the International Covenant of Civil and Political Rights (ICCPR),1966[287] and the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981,[288] to which Canada is a signatory – can be interpreted to suggest that national legislation (as called for in Article 7 of the Declaration)[289] as well as provincial human rights statutes should extend this same breadth of rights.[290] Also, international human rights law and resolutions show a hesitancy to single out or distinguish between differing kinds of belief systems warranting protection, or to override subjective definitions of these.[291]

The HRTO explicitly affirmed the relevance of international human rights law and jurisprudence, in these respects, in R.C. v. District School Board of Niagara.[292]

In addition to noting such trends in international law, advocates for including non-religious beliefs within the scope of Code protections point to examples in other jurisdictions around the world. For instance, England protects “religion and belief” as prohibited grounds of discrimination in their Equality Act 2010, following the European Convention on Human Rights (ECHR, Article 9, 14) and international law (see section 4.1 below).[293] New Zealand and some U.S. states also extend protections to non-religious belief systems, such as ethical veganism.[294]

2.3.2 Domestic case law

While much Code-based case law continues to equate creed with religion (as discussed earlier), there are notable exceptions to this trend. Various cases have affirmed or left open the possibility that non-religious belief may constitute a creed under the Code. Indeed, overall, the courts appear to be reluctant to offer any final, authoritative, definitive or closed definition of creed. Instead, they prefer a more organic, analogical[295] case-by-case assessment, which has yielded a variety of results (see Creed case law review).

Courts and tribunals have had no difficulty recognizing a wide variety of subjectively defined religious and spiritual beliefs within the meaning of the Code, including Aboriginal spiritual practices,[296] Wiccans,[297] Hutterian Bretheren,[298] Raelians,[299] Falun Gong practitioners, [300] and members of the Worldwide Church of God[301] and Rocky Mountain Mystery School.[302] More importantly, there is nothing in the case law that would prohibit redefining creed more broadly to include secular ethical and moral beliefs. However, there are guidelines around the outer limits of what the courts will recognize under creed (see threshold criteria section below).

Among the notable case law examples where a broader definition of creed is contemplated by decision-makers is R.C. v. District School Board of Niagara,[303] and

Hendrickson Spring Stratford Operations v USWA, Local 8773. In the latter case, the decision-maker held that:

The term ”creed” in the [Human Rights] Code has a wide meaning and can “be taken to include almost any belief system that encompasses a set of particular religious beliefs but, as well, many other philosophical, secular and personal beliefs – the ”isms” (such as are bound up in words like ”environmentalism,” ”conservatism,” “liberalism” or “socialism”).[304]

In Rand v. Sealy Eastern Ltd., the Tribunal also contemplated the possibility of including non-religious beliefs, favourably citing Webster’s New International Dictionary definition of creed as “sometimes a summary of principles or a set of opinions professed or adhered to in science or politics.”[305]

In another formative 1998 decision, Jazairi v Ontario (Human Rights Commission), [306] the Ontario Divisional Court upheld the OHRC’s decision not to refer a complaint to a Board of Inquiry because “political opinions on a single issue” – in this case the claimant’s views on the matter of the Israel-Palestine conflict – did not amount to a creed under the Code. However, the Court acknowledged that there was a diversity of dictionary definitions of creed, some of which included secular belief systems.[307] The Divisional Court stated that although the term creed is capable of including a comprehensive set of principles, its ordinary meaning requires an element of religious belief. However, the Court went on to explicitly not rule out the possibility that a “political perspective, such as communism, made up of a recognizable cohesive belief system or structure,” could amount to a creed, though this question did not need to be decided in this case.[308] The Ontario Court of Appeal upheld the decision. It confirmed the importance of assessing each creed claim on its own facts and noted that whether or not some other political perspective that is made up of a cohesive belief system could amount to a “creed” was not before it. The Court of Appeal commented that it would be a mistake to deal with such important issues in the abstract.[309]

The tendency in several decisions to not rule on the definition of creed, and instead jump to a prima facie discrimination analysis on the assumption that the belief or practice in question could be a creed, may be one indication of the courts’ reluctance to define creed formally.[310]

Religion is more clearly defined in Canadian case law. The leading Supreme Court of Canada decision interpreting what is meant by “religion” is the decision in Amselem The court adopted a broad definition of religion stating:

Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfillment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.[311]

Amselem clearly states that when dealing with religious freedom, only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected under the Quebec or Canadian Charter.[312]

The Court in Amselem went on to note that the content of an individual’s right to freedom of religion under the Charter is expansive and revolves around the notion of personal choice and individual autonomy and freedom. Some argue that, given the courts’ emphasis on personal choice and individual autonomy as the key underlying value and rationale for according rights to religion, there is no reason not to extend such rights to other kinds of beliefs (including beliefs of one), in the name of those very same values. Others further argue that the emphasis in Amselem and later decisions on the individual and subjective nature of religion – which downplay its distinctive communal, associational aspects – have blurred the lines between religion, creed and individual conscience, making the distinction between religious and non-religious convictions “increasingly hard to justify.”[313] Moon argues, “The focus on individual belief raises the question of why religious beliefs should be treated differently from other beliefs[?]”[314]

[240] See Sullivan and Driedger on the Construction of Statutes, 2002, pp. 158-161, citing a number of Supreme Court of Canada decisions. In Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53, the Supreme Court of Canada affirms this “legislative presumption against tautology” citing supporting decisions, stating, at para 38:

...As Professor Sullivan notes, at p. 210 of her text, “It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.” As former Chief Justice Lamer put it in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 28, “It is a well accepted principle of statutory interpretation that no legislative provision should be interpreted so as to render it mere surplusage.” See also Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831, at para. 838.

[241] The “presumption of consistent expression” also holds across statutes, implying that statutes should not be interpreted in a way that makes them inconsistent with one another (for more on considering parallel legislation, across statutes, see endnote 243). Therefore, when two statutes dealing with the same or analogous subject matter use the same or similar words, the courts will generally conclude that the words have the same meaning. Conversely, when different words are used in otherwise similar statutes, it may be presumed that the legislature intended a different meaning or purpose (see Sullivan and Driedger on the Construction of Statutes).

[242] Like the presumption of consistent expression, the “presumption against tautology” may be rebutted by providing a possible meaning for a potentially tautologous word that would not render it superfluous or meaningless, or by submitting reasons for why, in the particular word choice, the legislature may have wished to be redundant or include superfluous words. When the court has reason to believe that the legislature deliberately included tautologous words, the presumption will be more easily rebutted. For example, the court may suggest that the legislature chose to repeat itself to guard against confusion and misapplication of the legislation. Repetition may also have been necessary to make the statute easier to understand for the layperson. See Sullivan and Driedger on the Construction of Statutes.

[243] The relevance of considering parallel legislation in other provinces and territories in attempting to discern and interpret legislative intentions and meanings is affirmed in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2011 SCC 53. In this decision, the Court cites other supporting decisions for this principle, stating at paras. 57 and 58:

[57] The respondent... urges us to consider parallel legislation in the provinces and territories and we agree that this is a useful exercise in this case. Of course, we do not suggest that consulting provincial and territorial legislation is always helpful to the task of discerning federal legislative intent. However, Professor Sullivan confirms that cross-jurisdictional comparison of statutes dealing with the same subject matter may be instructive (pp. 419-20).

[58] The Court has made use of parallel legislation as an interpretative aid in other cases. For example, in Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, Sopinka J. looked at several pieces of comparable provincial legislation to assist him in determining whether the federal legislation allowed the Public Service Staff Relations Board to decide who is an employee under its enabling legislation (pp. 631-32). Another example of this approach is found in Morguard Properties Ltd. v. City of Winnipeg, [1983] 2 S.C.R. 493, where Estey J. relied on a comparative analysis between Manitoba’s legislation, and that of the other provinces, when deciding whether Winnipeg intended to freeze property tax assessments (pp. 504-5).

The courts have shown a particularly strong desire for uniformity across Canadian human rights legislation. As a result, they have seemed to impose a burden on provincial legislatures to strongly signal, through the language used in the statute, their intention to depart from the national approach to human rights legislation. Lamer, C.J., writing for the majority of the Supreme Court of Canada in Berg v. University of British Columbia, [1993] 2 S.C.R. 353 illustrated this by stating at para. 372:

If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature.

As a consequence, it may be argued in some cases, particularly where this has been explicitly signalled by the legislature, that using different words across legislation with a similar purpose shows that the legislature intended for these words to have different meanings, in accord with the “presumption against tautology.”

[244] B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 403 at para. 42.

[245] Ibid.

[246] Amselem, supra note 137, at para. 39 states that when dealing with religious freedom, only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected under the Quebec or Canadian Charter.

[247] Supra note 137.

[248] Wali v. Jace Holdings Ltd. [2012], CHRR Doc. 12-0389, 2012 BCHRT 389.

[249] In this case (ibid.), Tribunal adjudicator Enid Marion noted at para.106:

The Code does not define "political belief," and the Tribunal has not exhaustively commented on its scope. However, in Croxall v. West Fraser Timber Co., 2009 BCHRT 436 [CHRR Doc. 09-2826], the Tribunal noted that:

The ground of political belief is not defined in the Code and the Tribunal has not had many occasions to consider comprehensive legal argument and to develop its definition.

In Prokopetz and Talkkari v. Burnaby Firefighters' Union and City of Burnaby, 2006 BCHRT 462 [CHRR Doc. 06-621], at para. 31 ("Prokopetz") the Tribunal summarized the few cases that raised political belief as a ground and determined two underlying principles. The Tribunal found that political belief under the Code is to be given a liberal definition and that it is not, on one hand, confined to partisan political beliefs nor, on the other, is it unlimited in its definition. (at paras. 19-20)

In finding the applicants claim based on political belief under the B.C. Code justified, the Tribunal further found at paras. 117 and 119:

In my view, the free speech of College members on matters affecting the regulation of their profession falls within the scope of political belief, given the legislative framework under which the College operates and the express regulatory mandate given the College by the government regarding pharmacy technicians. This was a new legislated initiative, that involved the public welfare, and that was being debated within the pharmacy community.

I accept that the expression of Mr. Wali's belief was in respect of a system of "social cooperation", that being the social contract between the government, the College and the public regarding the safe distribution of pharmaceutical medication.

Thrifty admits that Mr. Wali's position before the College was a factor in his termination. Since I have concluded that Mr. Wali's position falls within the scope of political belief under the Code, I find that this aspect of Mr. Wali's complaint is also justified.

[250] Labchuck (2012) draws on the work of Ruth Sullivan, Driedger on the Construction of Statutes [Butterworth Canada Ltd, 3 Ed (1994), Chapter 3: Avoiding Absurd Consequences]. She also points to court justifications for expansive interpretations of a statutory provision to avoid such absurdity. She offers the example of Campbell (G.T.) & Associates Ltd. v Hugh Carson Co.,[1979] 99 DLR (3d) 529 (Ont CA).

[251] See Labchuck (2012) and Szytbel (2012).

[252] See Sztybel (2012) and Kislowicz (2012). In her January 12, 2012 Policy Dialogue keynote address, law professor Winnifred Sullivan talked about the problem of defining religion in law to protect religious freedom, and, in the same act, thereby delimiting such freedoms (through pre-emptive definition).

[253] “While there may be an argument to be made for excluding the term ‘secular,’ one can hardly account for the exclusion of moral or ethical beliefs since religion is only one of the arbiters of morality and ethics,” McCabe et al. (2012). Benson (2012b) similarly draws attention to the logical problem created in any effort to extricate not only morals and ethics, but also politics (excluding from the definition of creed) from properly religious concerns. He argues that politics must encompass morals and ethics.

[254] Ruth Sullivan, Sullivan on the Construction of Statutes, 5^th ed. (Markham: LexisNexis Canada Inc., 2008) at 101 and 102.

[255] R. v. Turpin, [1989] 1 S.C.R. 1296 at paras. 1313 and 1314.

[256] Supra note 8, at para 42. Associate Chair David Wright stated, “I rely upon the French translation of ‘creed’ in the Code, croyance. This reflects a broader understanding of creed that reflects beliefs rather than only identification with a formal set of religious views”.

[257] R v. Morgentaler, [1988] 1 SCR 30 at para 179. See also R. v. Little, 2009 NBCA 53 (CanLII) at para. 6 stating in obiter: “Of course, s.2(a) does more than protect religious beliefs. It makes room for the conscientious objector whose judgment is informed by other sources.”

[258] Alberta v. Hutterian Brethren of Wilson Colony, supra note 235 at para. 90. See also Simoneau v. Tremblay, 2011 QCTDP 1 at paras. 208 and 209

[259] R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713 at para. 759. See Chiodo (2012a); Chiodo (2012b).

[260] [1994] 2 F.C. 406, 1994 CanLII 3453 (FCA).

[261] R. v. Morgentaler, [1988] 1 SCR 30. In this case, the Supreme Court struck down a provision of the Criminal Code that limited the availability of abortions, because it unjustifiably violated s. 7 of the Charter. In her concurring opinion, Wilson J stated:

[I]n a free and democratic society "freedom of conscience and religion" should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. Indeed, as a matter of statutory interpretation, “conscience” and “religion” should not be treated as tautologous if capable of independent, although related, meaning.

[262] Chiodo (2012a) cites Mortillaro v. Ontario (Minister of Transportation), 2011 HRTO 310 (CanLII) at para. 61; Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593. However, as both of these cases relate to congruent interpretation of discrimination analysis under the Code and s.15 of the Charter, they may have little applicability to s. 2(a) of the Charter. Labchuk cites Justice McLachlin’s decision in R. v. Zundel, [1992] 2 S.C.R. 731 which held that when legislation is capable of two equally persuasive interpretations, the court should prefer an interpretation that promotes Charter principles and values over one that does not.

[263] Vice-chair Ken Bhattacharjee in McKenzie v. Isla, 2012 HRTO 1908 (CanLII) cites the following cases as affirming this principle (at para. 33): Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII); Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639 (CanLII); and Whiteley v. Osprey Media Publishing, 2010 HRTO 2152 (CanLII).

[264] See Labchuck (2012) and Chiodo (2012a).

[265] This term was used by a participant during an OHRC consultation event. See Ryder (2012b) for more on debate about the relationship between Charter versus Code discrimination analyses. See also Huang v. 1233065 Ontario, supra note 14 at para. 28 citing a number of decisions dealing with the relationship between the Code and Charter and R. v. Badesha, 2011 ONCJ 284 (CanLII). In the 2010 BC Court of Appeal decision in British Columbia (Ministry of Education) v. Moore, 2010 (CanLII) BCCA 478 at para. 51, Justice Rowles argued in a dissenting opinion (that was subsequently largely followed by the Supreme Court of Canada on appeal) that Charter jurisprudence "should appropriately inform, but not dominate, the statutory analysis.” Justice Rowles quoted Leslie Reaume in support of this point:

”...borrowing from the Charter context to the statutory context is appropriate so long as the exercise enriches the substantive equality analysis, is consistent with the limits of statutory interpretation and advances the purpose and quasi-constitutional status of the enabling statute" (at 375; cited in Ryder, 2012b, p. 12).

[266] Freitag v.Penetanguishene (Town) [2013] HRTO 893.In this (2013) Human Rights of Ontario Tribunal Decision, adjudicator, Leslie Reaume, argues in this respect: “…The Charter and the Code are different statutory instruments and a finding of a breach of section 2(a) of the Charter is not dispositive of the allegations of discrimination before me under the Code” (at para. 27). She further states at para. 42:

“[T]o the extent that observations from these [Charter section 2(a)] cases are imported into a Code analysis, they must be considered in a manner which is consistent with the long-standing interpretive principles which govern an analysis of discrimination under the Code. And although there are obvious linkages between section 2(a) of the Charter and the concept of discrimination, the different interpretive approaches to the Charter and the Code raise the possibility of two different outcomes even where the issues and evidence are similar in nature.”

[267] In Freitag v.Penetanguishene, HRTO adjudicator, Leslie Reaume, further distinguishes between Code and Charter section 15 anti-discirmination legal protections, stating, at para. 41:

Even in the context of section 15 cases, where discrimination is at the core of the analysis, courts have found that there are significant differences in how the Charter and the Code are interpreted: See Ontario (Disability Support Program) v. Tranchemontagne,2010 ONCA 593.

[268] For instance, consider Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75 (CanLII). Writing for the unanimous Court, Stratas J.A. states, at para.19: “The equality jurisprudence under the Charter informs the content of the equality jurisprudence under human rights legislation and vice versa: see e.g., Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at paras. 172-176; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 27; Moore [v. British Columbia (Education), 2012 SCC 61 (CanLII)] at para. 30; [Quebec (Attorney General) v. A., 2013 SCC 5 (CanLII)] at paras. 319 and 328).”

The equality provisions of the Charter in section 15 are:

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

As well, subsection 15(2) signals a broader substantive equality concern with “the amelioration of conditions of disadvantaged individuals or groups.” It says:

15. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[269] In support of its positioning of freedom of religion as the “basic principle that informs the right to equal treatment under the Code on the ground of creed” (p.5), the (1996) Policy states (in endnote #7 of the policy):

This is reflected in the Preamble of the Code which recognizes that the recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace ... [and that has as its aim] the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province.

[270] For instance, Labchuck (2012), in her call for expanding the definition of creed, places relative emphasis on the Code’s goal of protecting individual human dignity. Labchuck describes the spirit, intent and aim of human rights law as “to be maximally protective to human dignity”. Others at the 2012 Policy Dialogue and Legal Workshop offered a more socially situated reading of the Code, stressing the role of human rights law in progressively eliminating “social practices of exclusion.”

[271] The courts have shown a strong desire for uniformity across Canadian human rights legislation. Lamer, C.J., writing for the majority of the Supreme Court of Canada in Berg v. University of British Columbia illustrated this by stating at para. 372:

If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature.

[272] See for instance Labchuck (2012), Chiodo (2012a), McCabe et al. (2012), Benson (2012b), and Szytbel (2012).

[273] Both Labchuck (2012) and Chiodo (2012b) cite Insurance Corp of British Columbia v Heerspink, [1982] 2 SCR 145 in this respect.

[274] According to Labchuck (2012), the Supreme Court approved this concept in Dickason v University of Alberta [1992] 2 SCR 1103 at para. 115.

[275] Chiodo (2012a) and Labchuck (2012) among others point to the Code’s explicit affirmation of the need to progressively interpret and advance the Code’s purposes.

[276] Labchuck (2012).

[277] R.C. v. District School Board of Niagara, supra note 8, at para. 43.

[278] Chiodo, 2012b, p.19.

[279] Charles Taylor has written extensively on the quest for meaning and authenticity in the modern era, as inspired from such diverse sources as religion, spirituality and/or secular humanism (Taylor, 1989).

[280] Labchuck (2012).

[281] Chiodo (2012a). See also Benson (2012).

[282] Sometimes, this need to advance human rights purposes can lead the courts to seek to do so even where the existing letter of the law is limited. In support of this principle, Labchuck cites Ontario (Human Rights Commission) v Simpsons-Sears (“O’Malley”), [1985] 2 SCR 536, where the court implied a duty to accommodate, despite its then absence in the Code.

[283] Although the courts have broadly defined religion and creed to include many non-western religious beliefs and practices, there is a feeling that these must still be characterized as ”religion,” the concept of which, critics argue, was developed primarily with western faith traditions in mind (for example, see Huang, supra note 14).

[284] Kislowicz (2012) draws on the work of American legal scholar Winnifred Fallers Sullivan, in this respect, who made a similar appeal in her January 12, 2012 Policy Dialogue Keynote Speech. David Seljak (2012) similarly cautioned against against overly prescribing rules and definitions and making creed rights too specific, in ways preventing a more capacious, dynamic understanding of religion and creed: “We cannot protect what we cannot see and how we define religion will determine what we do – and do not – see as worthy of protection and promotion” (Seljak, 2012, p. 11).

[285] Kislowicz, 2012, p.31.

[286] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 69-71.

[287] Article 18 of the International Covenant on Civil and Political Rights (ICCPR) includes the following provisions:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

[288] See Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981 at [www2.ohchr.org/english/law/pdf/religion.pdf].

[289] Article 7 of the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981, reads: “The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.”

[290] Article 28 of the International Covenant on Economic and Social Rights (ICESR) and Article 50 of the International Convention on Civil and Political Rights (ICCPR) provide that the provisions of these covenants (including Article 18 of the ICCPR) shall extend to all parts of federal States without any limitations or exceptions. For more on this, see the OHRC’s research paper, Human rights commissions and economic and social rights (www.ohrc.on.ca/en/human-rights-commissions-and-economic-and-social-rights/social-cultural-and-economic-rights-under-international-law).

[291] In Human Rights Committee General Comment No. 22: The right to freedom of thought, conscience and religion, that comments on Article 18 of the International Covenant on Civil and Political Rights, the Committee affirms that

Article 18 includes freedom of thought on all matters, personal convictions and commitment to religion or belief (individually or in community)
Freedom(s) of thought and conscience are protected equally with freedom(s) of religion and belief (at para. 1)
Article 18 protects theistic, non-theistic, atheistic beliefs – including the right not to profess any religion or belief
The terms “belief” and “religion” should be broad
The right in Article 18 should not be limited to traditional religions and should not discriminate against any religion or belief for any reason (including being newly established, or representing religious minorities) (at para. 2)

The Human Rights Committee is a body of 18 independent experts. Signatory States are required to submit reports on how rights are being implemented (usually every four years) and the committee provides comments and suggestions. Article 41 of the ICCPR allows the committee to hear complaints brought against a State party by another State party. The First Optional Protocol allows this committee to hear individual complaints against signatory States.

In a subsection dealing with ”Religious Minorities and New Religious Movements” in another UN Commission on Human Rights (2006) Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, further notes ([A/HRC/4/21], at paras. 43-47), among other things, that:

Belief in a Supreme Being, rituals, set of ethical or social rules are not just common to religions but can also be found in political ideologies
The distinction between sects and new religious movements is complicated because no international human rights instruments provide definitions of the concept[s] of religion, sect or new religious movement
“Sect,” “religions,” “new religious movements” are all terms that need to be further clarified
Defining a religion or belief is extremely complex.

This report taks about similar challenges at the international level in grappling with religious and creed diversity and related definitions. Other points noted in this report relating to the interpretation of the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, 1981, include:

Rosalyn Higgins (member of Human Rights Committee when General comment No. 22 was drafted) opposed the idea of a State deciding what was or was not a genuine religious belief – should be decided by worshipers themselves
Special Rapporteur Amor stated “it is not the business of the State or any other group of community to act as the guardian of people’s consciences and encourage, impose or censure any religious belief or conviction.” (Report by the Special Rapporteur on Religious Intolerance [E/CN/4/1997/91], at para. 99)
Special Rapporteur Riberiro stated that the antiquity of a religion, revealed character and existence of scripture are important but not enough to distinguish between religions, sects and associations (1990)

Another UN General Assembly (2009) Interim Report of the Special Rapporteur on freedom of religion and belief [A/64/159] similarly affirms that that the “contents of a religion or belief should be defined by worshippers themselves.”

[292] Supra note 8. In this (2013) HRTO decision, the HRTO relied on international protections when interpreting the ground of creed under the Ontario Code:

I also rely on the fact that international human rights law includes protections for atheism as part of freedom of religion. As the Supreme Court held in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at para. 70, "the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review". Article 18(1) of the International Covenant· on Civil and Political Rights, which has been ratified by Canada, reads as follows:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. [40]

Although the wording includes "religion or belief', Article 18 in my view has the same purposes as the protection of creed in the Code. Article 2 of the 1993 General Comment on this article by The Office of the High Commissioner for Human Rights, General Comment No. 22, UN Doc. CCPC/C/21/Rev.1/Add/4L makes clear that atheistic beliefs and non-belief are protected in this fundamental international human rights treaty:

Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms "belief' and "religion" are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions (at paras. 40 and 41).

[293] See Donald (2012).

[294] See Labchuck (2012).

[295] See Kislowicz (2012) for more on the strengths of this analogical approach.

[296] See Kelly v. British Columbia (Public Safety and Solicitor General), supra note 11.

[297] Re O.P.S.E.U. and Forer (1985), supra note 12.

[298] Hutterin Brethren, supra note 160.

[299] Chabot c. Conseil scolaire catholique Franco-Nord, 2010 HRTO 2460 [CanLII), Gilbert v. 2093132 Ontario Inc., 2011 HRTO 672 (CanLII).

[300] Huang, supra note 14

[301] Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489.

[302] In this particular grievance arbitration decision, the labour arbitrator did not discuss why participation in the Rocky Mountain Mystery School, an organization that “teaches the ancient practice and knowledge of light and light work in the world” was a creed, instead focusing on whether the employer was required to accommodate the employee’s request for time off to attend a pilgrimage (Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications, [2010] C.L.A.D. No. 298 [QL]). In finding that the employee should have been accommodated, the arbitrator implicitly accepted that the ground of creed was engaged.

[303] Supra note 8.

[304] Hendrickson Spring v. United Steelworkers of America, Local 8773 (Kaiser Grievances), [2005] O.L.A.A. No. 382, 142 L.A.C. (4th) 159.

[305] Rand v. Sealy Eastern Ltd. (1982), 3 C.H.R.R. D/938 (Ont. Bd. Inquiry) at D/942. This was one of the earliest Ontario decisions dealing with creed. Professor Cumming, hearing the complaint of a Sikh man who was denied employment because of his beard and turban, described creed as derived from the Latin “credo” meaning “I believe.” He also looked to the Oxford and Webster Dictionary definitions which were:

Oxford: Creed... “An accepted or professed system of religious belief: the faith of a community or an individual, especially as expressed or capable of expression in a definite formula.”

Webster’s: Creed …Any formula of confession of religious faith; a system of religious belief, especially as expressed or expressible in a definite statement; sometimes, a summary of principles or set of opinions professed or adhered to in science or politics, or the like; as his hopeful creed.”

[306] [1997] CanLII 12445 (ON SC), upheld 1999 CanLII 3744 (ONC CA).

[307] Ibid. at para 39. The Ontario Humanist Society, in their OHRC paper submission (McCabe et al., 2012), cite other similar dictionary definitions and etymologies deriving “creed” more broadly, from the Latin “credo,” meaning “I believe,” without any implication or requisite of a religious basis for such belief.

[308] Ibid. at para 40.

[309] 1999 Jazairi Court of Appeal decision (supra note 306) at para. 28. In a recent decision, the Ontario Superior Court of Justice refused a defendant’s motion to strike a human rights claim in a civil action. The plaintiff alleged that he was dismissed from his employment because he expressed views about the armed conflict in Syria which were inextricably linked to his identity as a Syrian Canadian and a Muslim. The defendant argued that the plaintiff’s claim was in essence one of discrimination based on ”political opinion” and the Code does not cover this. The Superior Court cited the Court of Appeal in Jazairi and found that the Court of Appeal expressly left open the possibility that some other system of political belief could constitute a creed. The Superior Court felt that on the allegations before it, it could not conclude (on a motion to strike) that the views of the plaintiff could not amount to a creed; see Al-Dandachi, supra note 9.

[310] For example, in Sauve v. Ontario (Training, Colleges and Universities), 2009 HRTO 1415 (CanLII), the HRTO found it did not have to decide whether the Metaphysical Church and tarot card reading was a creed: “I find that even if tarot could legally be included in the Code’s definition of creed, the decision to deny the applicant the SEB benefits was not based on tarot card reading; therefore, it is unnecessary for me to make a determination as to whether tarot in the context of this case constitutes a creed under the relevant case law….”(at para. 39). See also Hayes v. Vancouver Police Board and another (No.2), 2010 BCHRT 324 (CanLII) regarding Paganism. In other cases, decision-makers have accepted, with little discussion or analysis, that a belief system is a creed and have instead focused on what practices are protected. For example, in a grievance arbitration decision, the labour Arbitrator did not discuss why participation in the Rocky Mountain Mystery School, an organization that “teaches the ancient practice and knowledge of light and light work in the world” was a creed, instead focusing on whether the employer was required to accommodate the employee’s request for time off to attend a pilgrimage (Communications, Energy and Paperworkers Union of Canada Local 722-M v. Global Communications, [2010] C.L.A.D. No. 298 [QL]). In finding that the employee should have been accommodated, the arbitrator implicitly accepted that the ground of creed was engaged.

[311] Supra note 137 at para. 69.

[312] Ibid.

[313] Chiodo, 2012b, p. 19 argues:

With belief becoming more individualized and less associational, the distinction between religious and non-religious convictions is becoming increasingly hard to justify. Indeed, the distinction appears to many observers to be arbitrary, and implies that familiar or favoured creeds are “real” beliefs, while different or new creeds are not beliefs or are only pseudo-beliefs.

[314] Moon, 2012a.

IV. Defining creed