8. Defences and exceptions

The Code includes specific defences and exceptions that allow behaviour that would otherwise be discriminatory. Some of these recognize the associational rights of creed-based groups to give preference in certain circumstances to persons who share the same creed beliefs and practices.^[221]  

In many cases, these defences reflect lawmakers’ efforts to reconcile a conflict between different rights, and/or individual and collective rights.^[222] The Supreme Court of Canada has noted that these types of provisions should be treated not only as rights-limiting provisions,

which require a narrow interpretation, but also as rights-conferring provisions, which require a liberal and purposive interpretation (in a way that reflects the spirit and intent of the Code).^[223]

An organization that wishes to rely on these defences and exceptions, must show it meets all of the requirements of the relevant section.

8.1 Special programs

Section 14 of the Code protects “special programs” that are designed to address the historical disadvantage experienced by people identified by a Code ground. As a result, it is not discriminatory to implement programs designed to help people identified by creed, as long as an organization can show that the program is:

• Designed to relieve hardship or economic disadvantage
• Designed to help the disadvantaged group achieve or try to achieve equal opportunity, or
• Likely to help eliminate discrimination.

For more information about special programs, see the OHRC’s Your guide to special programs and the Human Rights Code.^[224]

8.2 Special interest organizations

Under section 18 of the Code,^[225] religious organizations and other organizations such as charities, schools, social clubs, sororities or fraternities that want to limit membership and involvement to people with a particular religion or creed can do this as long as they primarily serve the interests of people from this group.

Example: Students at a university set up a club that provides social, networking and education opportunities for students of a certain religious background. They restrict their membership to people of this group under section 18 of the Code.

Section 18 of the Code establishes three requirements that will allow an organization to provide a service or facility that would otherwise be regarded as discriminatory under the Code:

1. Is the entity a religious, philanthropic, educational, fraternal or social institution or organization?
2. Is the institution or organization primarily engaged in serving the interests of persons identified by their creed?
3. Is membership or participation in the institution or organization restricted to people identified by that creed?^[226]

Section 18 of the Code does not require that an organization or institution provide its services solely to members of a group identified by creed to qualify for the exemption.^[227] The section states that providing such services must be its “primary” purpose.

Therefore, this provision may allow religious institutions to grant preferences in their admission policies or membership based on religion. The interpretation of this section in the case law balances the public’s right to be treated equally without discrimination against a private organization’s right to limit its membership to an identified group.^[228] Courts and tribunals have also recognized how this type of provision gives effect to religious rights under the Code and Charter, in their associational and communal dimension.

“The diversity of Canadian society is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.”  – Supreme Court of Canada^[229]

“Religious freedom under the Charter must...account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions[.]”  – Supreme Court of Canada[230]

Allocating public funds to private religious or creed-based organizations – such as healthcare, housing or service providers that have a religious history, mission or mandate and qualify as a special interest organization under the Code – may be permissible under the Code, provided that such funding is not allocated in a discriminatory way (for example by only providing funding to one religious group).

8.3 Special employment

Section 24(1)(a) states that a religious, philanthropic, educational, fraternal or social institution or organization that mostly serves the interests of people identified by certain Code grounds including creed can give hiring preference to people from that group or impose a creed-based qualification, as long as the qualification is reasonable and legitimate (bona fide), given the nature of the job.

Example: A religious organization hires people of the same faith to instruct children attending after-school and weekend religious educational programming. A core job requirement is that employees be members of the same creed-based community and have a proficient command of the community’s articles of faith.

To qualify for this exemption under the Code, the religious/creed-based special employer must show that:

1. It is a religious, philanthropic, educational, fraternal or social institution or organization
2. It is primarily engaged in serving the interests of persons identified by their creed, and employs only, or gives preference in employment to, persons similarly identified; and
3. The religious or creed-based qualification is a reasonable and bona fide qualification because of the nature of the employment. ^[231]

Legal decision-makers have shown the importance of keeping in mind the dual (rights limiting and conferring) purposes and balancing function of section 24 when interpreting this provision.^[232]

Step 1: The organization is a religious, philanthropic, educational, fraternal or social institution

To qualify for the special employment exemption under section 24, an organization must be able to show that it is within the class of organizations (religious, philanthropic, educational, fraternal or social) the section applies to.

Before determining if an organization qualifies for the section 24 defence, it may be necessary to first clarify and determine what constitutes the organization for purposes of analysis, particularly in cases where an organization has multiple branches, programs and/or site locations. This may be determined on a case-by-case basis, depending on the facts, context, and corporate and organizational structure. ^[233]

Just because an organization sees itself as religious does not mean that it will necessarily be found to be a religious organization.^[234] Assessing whether an organization is religious may require an objective examination of the organization’s history, purpose, founding principles and by-laws.^[235]

Receiving public funds or providing social services to the public does not preclude an organization from qualifying as a religious organization under this Code defence.^[236]

Step 2a: The organization is primarily engaged in serving the interests of persons similarly identified by their religion or creed

If Step 1 is met, the religious organization must then show it is primarily engaged in serving the interests of persons similarly identified by religion or creed.

Determining whose interests are primarily served by the activity of the organization is not based on who actually uses the service or program, or how an objective outsider or service user may view the organization’s activity. Rather, the test for this step hinges on evaluating how the organization sees the activity it performs, and the activity's relation to the organization's underlying purpose.^[237]

If a religious or creed-based organization serves the general public and does not limit admission to its programs or services to persons based on creed, it may still be found to be primarily serving the interests of persons identified by their religion or creed.^[238]

Example: The Ontario Divisional Court found that a supportive housing service offered by an Evangelical Christian organization to persons with developmental disabilities regardless of faith did primarily serve the interests of persons identified by their creed (namely the religious interests of the organization and its members). This was because the organization viewed providing service to all needy people without discrimination as part of its religious mandate.^[239]

Step 2b: The organization gives preference in employment to persons similarly identified

This part of step 2 requires looking at the nature of the employment requirements and creed-based qualifications set out by the employer.

An organization that does not preferentially hire persons similarly identified by their religion or creed, or has no history or consistent pattern of setting out religious qualifications for a particular job category, may face challenges meeting this second part of the test.

Sometimes, only some employee positions in an organization may require religious qualifications as a bona fide occupational requirement, as discussed further below (e.g. leadership or “directing mind” positions in a religious or creed-based organization, or positions involving direct teaching and propagation of the creed faith).

Example: The Salvation Army is an Evangelical Christian organization and branch of the Salvation Army Church. Its mission is to preach the gospel of Jesus Christ, supply basic human needs, provide personal counselling and undertake the spiritual and moral regeneration and physical rehabilitations of all persons in need who come within the sphere of influence regardless of race, colour, creed, sex, age or sexual orientation. The Salvation Army is engaged in various social service activities, including operating hospitals and caring for individuals with developmental disabilities. Its value statement requires all employees to support Christian values of respect, honesty, integrity, fairness, mercy and compassion. Adherence to lifestyle and morality standards, however, is considered to be a qualification for only some positions, such as youth pastor, but other positions, such as registered nurse, do not have this requirement.^[240]

Step 3: The religious or creed-based qualification is a reasonable and bona fide qualification because of the nature of the employment

The final element of the s. 24(1)(a) test under the Code requires that the religious or creed-based qualification be “reasonable and bona fide” because of the nature of the job.

Courts and tribunals have established a two-part test for determining whether an occupational qualification or requirement is bona fide under section 24(1)(a) of the Code.^[241]

The onus is on the employer to establish that the religious or creed-based qualification, requirement, or standard is:

1. Imposed honestly, in good faith, and in the sincerely held belief that such limitation is necessary to adequately perform the work involved, and not for ulterior reasons that contravene the purpose of the Code.
2. Objectively related to the performance of the employment concerned, in that it is reasonably necessary to assure the effective performance of the job and to accomplish its purpose or goal.

The first part of this test is subjective. It requires assessing the religious employer’s own view of the nature of the employment and religious qualifications. It requires evidence that the organization sincerely believes that the religious or creed-based qualification is necessary to adequately perform the job tasks.

The second part of the test is objective, and narrowly interpreted, because it restricts rights.^[242] It requires considering whether the individual job function, including in relation to the broader goals, activity and services provided by the organization, requires imposing discriminatory job qualifications.^[243] A close examination of the nature of the employees' actual duties, functions and activities is critical.^[244]

Example: A denominational school may prefer to employ teachers of the same denomination or faith. This hiring policy would be permitted if the teacher's faith is related to the professional functions that teachers perform in denominational schools. However, this same defence may not be available when hiring maintenance staff, unless the school could show that belonging to a particular faith is objectively and reasonably necessary to effectively perform the essential duties of the maintenance job.^[245]

The validity of a religious/creed-based standard or qualification cannot and will not simply be inferred from the general religious ethos of an organization and its mission as a whole. Instead, it must be tied directly and clearly to performing the job in question.^[246]

Procedurally, organizations may be required to show that they have engaged in a meaningful process to carefully consider whether the religious qualification is necessary, in light of the organization’s objectives, the nature of the services provided, and the specific

job tasks required.^[247] When assessing if a religious qualification or standard is reasonably needed, it might be relevant to look at the practices of other religious organizations in similar situations.^[248]

Organizations that apply religious qualifications and standards for employees inconsistently (without a valid reason or explanation) may fail to satisfy the objective part of this test.^[249]

Even where an organization qualifies for the section 24 exemption, it is still subject to other aspects of the Code and is responsible for maintaining an otherwise discrimination-free workplace.^[250] The section 24 exemption does not give a free pass for organizations to discriminate in any way, beyond its bona fide creed-based employee job requirements and qualifications.

Employees found to violate a creed-based requirement must still be dealt with in a respectful way that preserves their dignity and respect.^[251]

8.4 Solemnization of marriage by religious officials

Section 18.1^[252] of the Code allows religious officials^[253] to refuse to preside over (or assist in the solemnization of) a marriage in a “sacred place”^[254] or refuse to allow a “sacred place” to be used for a marriage event, if this goes against their religious beliefs or “the doctrines, rites, usages or customs of the religious body to which the person belongs.”

To date, there have been no decisions under the Ontario Code dealing with this provision. However, there has been a decision under similar legislation in British Columbia.

Example: A lesbian couple filed a human rights complaint against a Catholic men’s organization after it refused to allow them to hold their wedding reception in a hall that was owned by the Catholic Church and operated by the Knights of Columbus. The Knights argued that they had a reasonable and bona fide justification for cancelling the contract with the couple, and that they were also entitled to the protection of the statutory defence in s. 41 of the British Columbia Human Rights Code. The BC Tribunal found that the Knights’ refusal was “reasonable and bona fide” because allowing the hall to be used for same-sex marriages would have required the Knights to “indirectly condone” an act that is contrary to their core religious beliefs.^[255]

8.5 Separate school rights preserved

Section 19 of the Code preserves the rights and privileges of separate schools under the Canadian Constitution and Education Act.^[256] These Acts preserve denominational school rights enjoyed at confederation. They effectively mean that public, government-funded Roman Catholic separate schools, and Roman Catholic-based educational and moral instruction in these schools, cannot be held to violate the Code.

Example: A group of parents whose children attended private religious schools challenged the Ontario government’s funding for Roman Catholic Schools but not other religious schools. In Adler v. Ontario^[257] the Supreme Court of Canada rejected the claim that this preferential funding infringed their religious rights and equality rights under sections 2(a) and 15 of the Charter. The Court confirmed that because of section 93 of the Constitution Act, 1867, Ontario is permitted to fund Roman Catholic separate schools. This special status is the product of a historical compromise crucial to Confederation.^[258]

The right to freedom of religion under s. 2(a) of the Charter has also been found to protect the right of confessional schools – including Roman Catholic schools – to teach from a confessional religious perspective.^[259]

Example: The Supreme Court of Canada found that a Quebec government requirement that a private Catholic school teach all aspects of a government mandated “Ethics, Religion, Culture” (ERC) program of study from a neutral, non-confessional perspective, including the teaching of Catholicism, limited freedom of religion more than was necessary. Recognizing the collective aspects of religious freedom – “in this case, the collective manifestation and transmission of Catholic beliefs through a private denominational school” – the Court unanimously held that: “To tell a Catholic school how to explain its faith undermines the liberty of the members of its community who have chosen to give effect to the collective dimension of their religious beliefs by participating in a denominational school.”^[260]

At the same time, the Court affirmed that other aspects of the ERC program dealing with ethics and other religions should be taught from a neutral perspective, in keeping with the program’s objectives of preparing students for living in a plural, democratic society which was described as being constitutional and “of immense public importance”.^[261] The Court affirmed an earlier ruling (S.L) in this respect: “in a multicultural society, it is not a breach of anyone’s freedom of religion to be required to learn (or teach) about the doctrines and ethics of other world religions in a neutral and respectful way.”^[262]

Denominational school rights under section 93 of the Charter, preserved in section 19 of the Code, have been found to include the right to prefer Catholic teachers for employment. ^[263]

Example: In Caldwell v. Stuart,^[264] the Supreme Court of Canada concluded that a Catholic school could terminate the employment of a Catholic teacher who married a divorced man in a civil ceremony contrary to the Church’s rules. The Court accepted that the school had the “right” to preserve the religious basis of the school by employing teachers who accept and practice the teachings of the Church. Therefore, it found the requirement of religious conformity by Catholic teachers to be a legitimate and bona fide job qualification. As well, the school could rely on section 22 of the British Columbia Human Rights Code, which was similar to s. 18 of the Ontario Code, to grant preference to Catholic teachers who accept the practice and teachings of the Church.

However, religion-based employment preferences and qualifications in Catholic schools or school boards may be subject to the test laid out in section 24 of the Code (see section 9.3 above). This requires, among other things, that the religious qualification
be reasonable and bona fide, given the nature of the employment.

While section 19 of the Code enables Roman Catholic separate school boards to preserve the religious basis of their schools, it does not prevent claims of discrimination in policies and conduct within Catholic schools from being heard under the Code or Charter.

Example: A gay Catholic high school student successfully applied to an Ontario court for an injunction restraining the board from preventing him from attending the high school prom with his boyfriend.^[265] In applying the test for an injunction, the Court acknowledged the protections for Catholic schools in s. 93 of the Constitution Act. However, the Court also stated that this does not mean that separate schools are exempt from the Charter. Instead, the Court said that the courts must strike a balance on a case-by-case basis between conduct essential to the proper functioning of a Catholic school and conduct that contravenes Charter rights such as equality under s. 15. In this case, the injunction was granted and Mr. Hall was allowed to attend the prom with his same-sex partner.^[266] The case was ultimately discontinued and never went to a full trial of the Charter and other constitutional issues involved.

---

^[256] Section 19(1) of the Code effectively means that it is not a breach of the Code to have government-funded Roman Catholic separate schools. The Code states:

19. (1) This Act shall not be construed to adversely affect any right or privilege respecting separate schools enjoyed by separate school boards or their supporters under the Constitution Act, 1867 and the Education Act. R.S.O. 1990, c. H.19, s. 19 (1).

Duties of teachers

(2) This Act does not apply to affect the application of the Education Act with respect to the duties of teachers. R.S.O. 1990, c. H.19, s. 19 (2).

Denominational school rights under section 93 of the Constitution preserve and protect denominational schools. This was a fundamental part of the “Confederation compromise.” While there do not appear to be any human rights tribunal decisions to date interpreting section 19 of the Code, several decisions have dealt with aspects of separate school rights under the Charter and provincial human rights law in other jurisdictions.