9. The duty to accommodate

Under the Code, employers, unions, housing providers and service providers have a legal duty to accommodate people’s sincerely held creed beliefs and practices to the point of undue hardship, where these have been adversely affected by a requirement, rule or standard.^[267]

The goal of accommodation is to help everyone have equal opportunities, access and benefits. Creed accommodations enable people affiliated by a creed to fully and equally take part and contribute in areas like the workplace, services or in housing, unions or professional associations, when they would otherwise face barriers because of their creed. They help to make sure that people do not have to choose between observing their religion or creed, and being gainfully employed, or equally accessing or benefitting from housing, employment and services. ^[268]

The duty to accommodate stems, in part, from a recognition that the “normal ways of doing things” in organizations and society are often not “neutral” but rather may inadvertently disadvantage, privilege or better meet the needs of some groups relative to others. Instead of giving special privileges or advantages, accommodations help to “level the playing field” by ensuring that all Ontarians are equally included and accommodated.

“[T]he Ontario Human Rights Code is meant to foster a society which will allow diversity to flourish. It is designed to protect and accommodate the needs and interests of those who differ from the dominant majority group. Although the Code does not require that any individual or group accommodate others to the point [where it creates] undue hardship, severe suffering, or disproportionate privation, it does conceive of inconvenience, and some degree of disruption and expense. Insofar as we want to make space within our communities for the comfortable coexistence of those who differ by religion, sex, sexual orientation, race, disability, and family grouping, there will be commensurate costs to be borne by all of us.^[269]

Most accommodations are not difficult or expensive, and do not cause a major burden for the people responsible. Inclusive design up front can often eliminate the need for accommodation, by building diversity and equality considerations into the normal way of doing things (see 10.2.4 for more information).

Where a person has been negatively affected by a requirement, factor or rule based on creed, failure to accommodate may lead to a finding of a breach of the Code.

Example: An employer advised an employee that it would not allow any days off for religious holy days and then terminated his employment for an unauthorized absence on such a day. This was found to have violated the British Columbia Human Rights Code.^[270] There was no evidence that the employer made any effort to accommodate the employee.

9.1 Inclusive design

"Inclusive design" or "universal design" means design with everyone in mind. ^[271] It means being aware of differences that characterize people from Code protected groups when making design choices to avoid creating barriers.

Achieving integration and full participation requires up-front barrier-free inclusive design, as well as removing existing barriers. Inclusive or “universal” design is a preferred approach to removing barriers after they become apparent, or making “one-off” accommodations, which assumes that existing structures are fine or only need slight modifications to make them acceptable. The Supreme Court of Canada has said that standards should be designed to reflect all members of society, to the extent that this is reasonably possible.^[272]

Example: A mental health facility creates a multi-faith prayer/reflection room for persons of diverse faiths to observe their creed beliefs and practices. The room is designed in a way that facilitates and enables the accommodation of diverse creed observances.

Organizations have an obligation to be aware of differences between individuals and groups and to build in conceptions of equality to standards, rules or requirements.^[273] This means designing inclusively for the needs of people of diverse creed faith when developing or changing policies, programs, procedures, standards, requirements or facilities. Along with the expectation to prevent barriers at the design stage through inclusive design, organizations should be aware of systemic barriers in systems and structures that already exist. They should actively identify and seek to remove these existing barriers through inclusive design reviews. New barriers should never be created when designing new structures or revising old ones.

This proactive approach is more effective because it emphasizes accessibility and inclusivity from the start. It also minimizes the need for people to ask for individual accommodations as a result.

Example: A university with a large and religiously diverse student body makes it a policy to avoid scheduling exams on major religious holidays. This saves the university administration significant time and resources that would otherwise have been required to reschedule and monitor alternate exam times and dates for individual students.

Organizations will find that inclusive design, barrier removal and individual accommodations often benefit larger numbers of people.

9.2 Procedural and substantive duty to accommodate

The duty to accommodate has a procedural component (the process) and a substantive component (the accommodation provided). Both are very important.^[274]

The procedural duty involves the considerations, assessments and steps taken to respond to an accommodation need. A failure to give any thought or consideration to an accommodation issue or request, including what steps if any could be taken, may represent a failure to satisfy the “procedural” duty to accommodate.^[275]

Example: An employer rejected an applicant during the recruitment process as soon as it learned that he would need a creed-related accommodation. The HRTO found that it "immediately rebuffed" the request and that this was discriminatory. It confirmed that the employer had a procedural duty to take adequate steps to assess and explore accommodation options. ^[276]

The substantive duty is about the appropriateness or reasonableness of the chosen accommodation as well as the reasons for not providing an accommodation, including proof of undue hardship.^[277]

9.3 Principles

The duty to accommodate is made up of several overlapping and mutually reinforcing principles including respect for dignity, individualization, integration and full participation, inclusive design, and appropriate accommodation.

9.3.1 Respect for dignity

Human dignity involves many factors, including respect for people’s identities, integrity and sense of self-worth. It is harmed when people are marginalized, stigmatized, ignored or devalued. Empowerment, privacy, confidentiality, comfort, autonomy, individuality and self-esteem are all important factors.

Dignity includes considering how accommodation is provided and the person’s own participation in the process. It means not overly questioning a person’s creed beliefs and choices beyond what is minimally required to determine an appropriate accommodation. It also means respecting and valuing the perspectives of people with a creed, even where one's own views differ sharply, and not reducing everything about a person to their creed identity or belief system.

Organizations responsible for providing creed accommodation should carefully consider the different ways people may need accommodation in their workplace, housing environment or when accessing a service to respect people’s dignity.

Example: A trucking company requires a Sikh driver, who cannot wear a hardhat in the truck unloading area due to his turban, to remain in the truck cab upon arrival at the point of delivery. As fumes from the truck present health and safety risks, he is required to turn off the engine upon arrival at the destination, while others unload the truck. As a result, he is exposed to high temperatures while waiting in the cab in the summer and cold temperatures in the winter. The company has a duty to explore accommodations that better respect dignity.

9.3.2 Individualization

There is no set formula for creed accommodation. Each person’s needs are unique and must be considered afresh when an accommodation request is made. What might work for one person may not work for others.

Accommodations may also need to be revisited over time to make sure they continue to meet a person’s needs appropriately.

Example: A hospital offers a Muslim man “kosher” food to fulfill his religious dietary needs, because this had met his needs and the needs of other Muslim patients previously. However, the man now sincerely believes that this is not permissible according to his current understanding of religious law, and requests a “halal” food option. The hospital refuses to comply with the request and the person alleges discrimination for failure to accommodate his sincerely held belief.

While some accommodations may only meet one person’s needs, organizations will find that many of the changes they implement will benefit others as well.

9.3.3 Integration and full participation

Employment, housing, services and facilities should be designed, and may need to be adapted, to accommodate the needs of people affiliated by creed in a way that best promotes their integration and full participation.^[278]

It is well established in human rights law that equality may sometimes require different treatment that does not offend the individual’s dignity. In some circumstances, the best way to ensure the equality of people with a creed may be to exempt them from an activity or duty, or provide separate or specialized services.

Segregated treatment in services, employment or housing is generally less dignified and acceptable, unless it can be shown it’s the best way to achieve equality in the circumstances.^[279]

Example: A school board accommodates students who are not able to take part in school music programming for creed-related reasons by offering students a range of accommodation options. These seek to maximize their participation in programming, while meeting their individual needs. For example:

• A student who is not permitted to blow into an instrument but may otherwise take part in the music program is provided with a percussion instrument (e.g. baseless drum)
• A student who is not permitted to create or perform music but is able to listen to music takes part only in non-performance-based curriculum programming (e.g. music history, theory, critical analysis); alternatively, an individualized program is set up selected from non-performance-related curriculum expectations
• A student who is not permitted to create, perform or listen to music is provided with an accommodation of full withdrawal from music.^[280]

9.4 Appropriate accommodation

Along with designing inclusively and removing barriers, organizations must also respond to individual requests for accommodation. The duty to accommodate requires that the most appropriate accommodation be determined and provided, short of undue hardship.

Accommodation is considered appropriate if it results in equal opportunity to enjoy the same level of benefits and privileges experienced by others, or if it is proposed or adopted to achieve equal opportunity, and meets the individual’s creed-related needs. The most appropriate accommodation is the one that most:

• Respects dignity (including autonomy, comfort, and confidentiality)
• Responds to a person’s individualized needs
• Allows for integration and full participation.

Accommodation is a process and a matter of degree, rather than an all-or-nothing proposition, and can be seen as a continuum. The highest point in the continuum of accommodation must be achieved, short of undue hardship.^[281] At one end of this continuum is full accommodation that most respects the person's dignity and promotes confidentiality. Alternative accommodation (that which would be less than “ideal”) might be next on the continuum when the most appropriate accommodation creates undue hardship. An alternative (or “next-best”) accommodation may also be implemented in the interim while the most appropriate accommodation is being phased in or put in place at a later date when resources have been put aside.

An organization should first identify the most appropriate or ideal accommodation in the circumstances before considering whether it would cause undue hardship. If an accommodation is then shown to cause undue hardship, the next-best accommodation (short of undue hardship) must be sought and put in place.

Example: An employee requires a space in the workplace to perform daily religious prayer observances during the work day. The employer offers use of a closet that is also used for storing garbage. The option does not respect the dignity and health and safety of the accommodation seeker, and would likely contravene the Code.

If there is a choice between two accommodations that respond equally to the person’s needs in an equally dignified way, then the accommodation provider is entitled to select the one that is less expensive or less disruptive to the organization.

In some cases, the most appropriate accommodation may involve changing policies, practices and other requirements so they are more inclusive.

9.5 The legal test

Section 11 of the Code prohibits discrimination that results from requirements, qualifications or factors that may appear neutral but have an adverse effect on people identified by Code grounds.^[282] This is known as “constructive” or “adverse effect” discrimination (see section 7.8 above). Organizations have a duty to accommodate people up to the point of undue hardship, where a person faces adverse effect discrimination based on their creed.

Example: A car dealer operates seven days a week and requires its employees to be available to work weekend hours, which are its busiest and most profitable business days. The requirement adversely affects Christian and Jewish employees with a creed that prohibits work on Sabbath days, which fall on the weekend. The business has a duty to accommodate these employees to the point of undue hardship.

9.5.1 Establishing adverse effect discrimination

A person must first establish a prima facie claim of discrimination before the duty to accommodate is triggered. In the context of creed, this requires showing that a person has been adversely affected by a requirement, qualification or factor in a Code social area, at least in part based on their sincerely held creed belief (see section 9.5.3 for more on "sincerely held belief").^[283]

Not every adverse impact on a person’s creed may be discriminatory under the Code. Interference with creed practices or beliefs that are only marginally significant for, or peripherally connected to, a person's creed may not necessarily receive protection.^[284] Examples include:

• Taking part in volunteer activities at church,^[285] or other social and communal activities connected to a religion or creed^[286]
• Accessing religious and cultural programming^[287]
• Attending a land claim selection meeting^[288]
• Expressing aspects of one’s religious identity in ways that are neither required nor perceived as necessary to “establish a connection with the divine” or the “subject or object of one’s spiritual faith.”^[289]

Objective evidence may be required to show that a requirement, rule or practice actually adversely affects a person based on their sincerely held creed belief.^[290]

Example: A college had previously accommodated a Jewish teacher by scheduling his classes after 1:00 p.m. to enable him to teach a morning computer class at a local Jewish high school. The college withdrew this accommodation after it introduced a new automated scheduling system. The teacher grieved the decision claiming that the college had failed in its duty to accommodate his sincerely held religious belief that he must give back to his community which, he argued, was fulfilled by teaching at a Jewish high school. The grievance board followed the Supreme Court decision in S.L, and noted that while a subjective test is required to determine the existence of a religious belief, “it was necessary to apply an objective test to determine if the religious belief had been infringed.” Noting that there are many ways in which the grievor could fulfill his obligation to give back to his community,” the board held that it was not the requirement to give back that was infringed but the teacher’s particular choice of how to fulfill it. The employer was not required to accommodate this.^[291] 

9.5.2 Bona fide requirement defence

Section 11 of the Code allows an organization to show that the requirement, qualification or factor that results in discrimination is reasonable and bona fide (legitimate). However, to do this, the organization must first show that the needs of the person (including the "needs of the group"^[292] they belong to) cannot be accommodated without creating undue hardship.

The Supreme Court of Canada has set out a framework for examining whether the bona fide requirement defence has been met.^[293] If prima facie discrimination or discrimination on its face is found to exist, a respondent must establish on a balance of probabilities that the standard, factor, requirement or rule:

1. Was adopted for a purpose or goal that is rationally connected to the function being performed (such as a job, being a tenant, or taking part in the service)
2. Was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal, and
3. Is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.^[294]

Ultimately, the person who wants to justify a discriminatory requirement, rule or standard must show that accommodation was incorporated into the standard to the point of undue hardship.^[295] This means the requirement was designed or changed to include as many people as possible, and that any remaining individual needs were accommodated, short of undue hardship.^[296]

Some of the factors to consider during the analysis include:^[297]

• Whether the accommodation provider investigated alternative approaches that do not have a discriminatory effect
• Reasons why viable alternatives were not put in place
• The ability to have differing standards that reflect group or individual differences and capabilities
• Whether the accommodation provider can meet their legitimate objectives in a less discriminatory way
• Whether the standard is properly designed to make sure the desired qualification is met without placing undue burden on the people it applies to
• Whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.

9.5.3 Sincerely held creed belief

Section 11 of the Code protects people from adverse effect discrimination based on their personal religious or creed beliefs, practices or observances, provided they are sincerely held^[298] and connected to a religion or creed.

As per the legal test for the duty to accommodate set out above, organizations have a duty to accommodate people’s sincerely held creed beliefs.

While protection under section 11 of the Code requires that an adversely affected belief or practice be creed-based,^[299] it is not necessary for someone to show that the belief, practice or observance is:

• An “essential” element of the creed^[300]
• Required or recognized as valid by religious officials or “official” creed teachings^[301]
• Consistent with the beliefs, practices or observances of others of the same faith.^[302]

Organizations have a duty to accommodate both obligatory and voluntary expressions of faith, as long as they are sincerely held. It is the creed-based, "religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection.”^[303]

Example: Mr. Amselem and two other fellow Orthodox Jewish condominium owners celebrated the Jewish holiday of Succot by erecting a small enclosed temporary hut (known as a “succah”)^[304] on their condominium unit balcony. When the condo owners association told them to take the succahs down, in part because they violated condo by-laws as stipulated in the declaration of co-ownership, they refused to claiming this violated their religious rights. The association sought an injunction to prohibit the succahs. The Quebec Superior Court granted the injunction in part based on expert testimony from a rabbi that erecting an individual succah is not (objectively speaking) a religious requirement of the faith. The injunction was upheld by the Quebec Court of Appeal. On appeal, the Supreme Court of Canada overturned the decisions and allowed the claimants to retain their succahs on their balconies. The Court said that the proper test to apply in this case is not whether erecting a succah is required by the religion, but rather “whether the appellants sincerely believe that dwelling in or setting up their own individual succah is of religious significance to them, irrespective of whether they subjectively believe that their religion requires them to build their own succah.”^[305]

Sincerity of belief means honesty of belief.^[306] Sincerity of belief should generally be accepted in good faith unless there are evident reasons for believing otherwise. Where warranted, inquiry into a person’s sincerity of belief should be as limited as possible (see section 9.5.3 below).^[307] An inquiry only needs to establish that an asserted creed belief “is in good faith, neither fictitious nor capricious, and that it is not an artifice.”^[308] In many cases, this will be unnecessary or relatively easy to show. However, in other cases, evidence may be required, usually from the person asserting the right, to establish that a person’s claim is sincere.

Where there is reason to question someone's sincerity,^[309] the credibility of a person’s accommodation request is an important factor in establishing sincerity of belief. The consistency of a person’s current practices with their asserted creed accommodation may need to be examined to establish sincerity of belief.^[310] This may require evidence from the accommodation-seeker about their current belief and practice at the time of the accommodation request.^[311]

While inconsistent adherence to a creed practice in the past or present may suggest a lack of sincere belief, it does not necessarily do so. “A sincere believer may occasionally lapse, her beliefs may change over time or her belief may permit exceptions to the practice in particular situations.” ^[312] The context of the inconsistency must be examined. For example, while it may be extremely hard for a person to sacrifice or compromise

their religious or creed-based beliefs, they may have a more compelling need in some contexts that leads them to make that compromise – for instance, the need to keep a job or to maintain access to a service. Sometimes, a departure from usual practice indicates “strength of belief,” which the Supreme Court has said is a separate issue from “sincerity of belief.” ^[313]

Example: An Ontario Court considered whether a Muslim woman who wears a niqab (a veil covering her face, except her eyes) for religious reasons may be required to remove it when testifying about alleged childhood sexual assaults.^[314] The Court rejected her accommodation request to wear the niqab while giving evidence. The judge stated that she had not met the sincerity of belief test because she had removed her niqab for her driver’s licence photo in the past, and admitted that she would do so if required for a security check. The judge estimated that her beliefs were not sufficiently strong to warrant accommodation. On final appeal, the Supreme Court of Canada found that her beliefs were sincerely held. It further held that “strength of belief” is a separate matter from sincerity of belief, and beliefs need only be sincere to receive protection.^[315]

Creed followers commonly have times in the year that they hold to be particularly significant. During such times, they may more intensely practice their creed beliefs, as compared to other times of the year, without this in any way diminishing their sincerity.

Example: A Muslim man stopped shaving his facial hair during the Muslim holy month of Ramadan. He shaved his facial hair at all other times of the year. His employer has a policy that prohibits facial hair for employees. The employer has a duty to accommodate the employees' religious belief and practice. The fact that the employee only grows his beard during Ramadan should not be seen to necessarily indicate insincerity of belief.

Organizations should be careful not to impose their own standards and viewpoints of what authentic or sincere creed adherence looks like.^[316] For example, not all religious or creed traditions require an exclusive commitment. ^[317]

Example: During the summer months, an employee observes Indigenous traditional spiritual practices relating to the land and hunting. The same person is also a member of the Catholic Church. The fact that the employee follows more than one religious or spiritual tradition need not indicate inconsistency or insincerity of belief. An employer may have a duty to accommodate the employee based on both sets of beliefs.

9.6 Information to be provided

Asking for information about a person’s creed beliefs, practices and related accommodation needs has implications for their privacy and dignity. At the same time, organizations must have enough information to allow them to meet their duty to accommodate.

A person seeking accommodation must inform the accommodation provider that they have a creed belief or practice that requires accommodation. The type of information they may generally be expected to provide includes:

• The needs associated with the creed belief or practice
• Whether the person can perform the essential duties or requirements of the job, of being a tenant, or of being a service user, with or without accommodation (this is more likely to be relevant in employment)
• The type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.

When accommodation providers receive an accommodation request, they may need to ask for more information. As a general rule, the accommodation provider should:

• Take requests for accommodation in good faith^[318] (unless there is evidence the request is not genuine) and
• Limit requests for information to those reasonably related to establish legal responsibilities, assess needs, limitations or restrictions, and make the accommodation.

Where more information about a person’s creed belief or practice is needed, the information requested must be the least intrusive of the person’s privacy while still giving the accommodation provider enough information to make an appropriate accommodation. An accommodation provider should be able to explain and clearly justify why the additional information is needed.

In rare cases there may be a reasonable basis to question the adequacy of the information provided or the sincerity of a person’s request for accommodation. In the context of creed, questions usually relate to the need to clearly establish, where there is a reasonable basis to potentially believe otherwise, that a person’s belief or practice requiring accommodation is in fact (1) sincerely held; (2) connected to a creed; and (3) adversely affected by a requirement or rule, including more precisely how.

Sincerity of belief should generally be accepted in good faith unless there are legitimate reasons for believing otherwise. Where warranted, inquiry into a person’s sincerity of belief should be as limited as possible.^[319] It need only establish that an asserted creed belief “is in good faith, neither fictitious nor capricious, and that it is not an artifice.”^[320] In many cases, this will be unnecessary or relatively easy to show. However, in other cases evidence may be required, usually from the person asserting the right, to establish that his

or her claim is sincere. Evidence of consistency of the accommodation seeker’s current practice of his or her creed belief requiring accommodation may help to establish sincerity of belief. However, inconsistent adherence to a belief or practice does not necessarily indicate insincerity of belief (see section 9.5.3).^[321]

It is inappropriate to require expert opinions to show that a practice or belief is mandatory or required,^[322] or that it is sincerely held. However, a person seeking accommodation may choose to refer an accommodation provider to a religious authority figure or expert to support their accommodation request.^[323]

Some objective considerations may also need to be further explored when assessing a creed accommodation request. For a person’s belief or practice to be protected under section 11 of the Code, they must be able to show a connection between their belief or practice and a creed (see section 4.1).^[324]

Example: A court rejected a man’s request for an exemption from the prohibition against producing and possessing marijuana in the Controlled Drugs and Substances Act^[325] based on religious and equality rights under sections 2 and 15 of the Charter.^[326] The man, who was a “Reverend” in the “Church of the Universe,” claimed that smoking seven grams of marijuana per day was connected to his religious belief in cannabis as the "tree of life" as mentioned in the Book of Revelations in the Bible. However, the Court found that the man had no belief in God or the Bible itself; there were no rites, rituals or ceremonies associated with his belief, nor any associated moral or ethical precepts or obligations or ultimate ideas about human existence connected to his practice of smoking marijuana.

The Court ultimately found that while his belief in the benefits of marijuana use was deeply held, his practice of smoking marijuana was connected to "the very secular idea that the cannabis plant has many useful applications or 'fruits' that can and should be employed for the betterment of humanity."^[327] In describing the man’s practice as more of a secular "lifestyle choice" than a religion, the Court stated that while deference must be given to a person’s subjective (sincerely held) views on which religious beliefs or practices they may adopt, "such deference does not extend to the threshold question as to whether a practice or belief has a nexus with an actual religion."^[328]

More information may be required where it is not evident or clear that a belief connects to a creed under the Code,^[329] or how its practice “allow[s] the individual to foster a connection with the divine or with the subject or object of [their] spiritual faith”^[330] or creed. In these rare cases, organizations should limit inquiry to establishing that a belief or practice requiring accommodation is in fact based in a creed, and establishes, in their view, a connection with the divine or subject or object of their spiritual faith or creed.

Finally, organizations may ask an accommodation seeker to show how their ability to follow their sincerely held creed belief has been adversely affected by a policy, standard, rule, qualification or practice in a social area protected by the Code. The person may need to provide information about the nature of their belief or practice to establish an adverse impact and to clarify resulting accommodation needs. Accommodation providers may also ask about the extent that a person’s belief may allow for exceptions.^[331] If the person does not agree to provide legitimately requested information in any of the above respects, and the accommodation provider can show that this information is needed, the person seeking accommodation may be found to not have taken part in the accommodation process and the accommodation provider would likely be relieved of further responsibility.^[332]

9.7 Confidentiality

Keeping information about someone's creed private and confidential can be critical because of privacy laws and legal considerations – and also because of the stigma and stereotypes some people may face because of their creed.

An organization should have a valid reason for collecting and using personal information about someone’s creed. They should keep confidential any information about a person’s creed or related beliefs or practices, as well as any details relating to their creed accommodation arrangement. Not doing so may be discriminatory.

Example: A co-op housing provider receives an accommodation request from a tenant who is unable to fulfill his required three hours of voluntary work on Saturday mornings because Saturday is his Sabbath. The housing provider consults other tenants about how they would feel about such an accommodation, despite the fact that it does not directly affect them, and the tenant’s voluntary hours could easily be fulfilled on an alternative date without creating undue hardship. Sharing the details of the tenant’s accommodation request may breach well-established confidentiality and privacy provisions in law. It could also potentially offend the accommodation seeker’s dignity and injure his self-esteem, particularly where this could expose him to unwanted public attention or potential ridicule or insult.^[333] This could violate the Code.

Organizations should only share information about a person's creed accommodation with people who need the information to make the accommodation, unless the accommodation seeker requests otherwise.

Example: Due to a creed-related observance, a person needs flexible scheduling when attending court. Information to support the accommodation is given only to the court’s accessibility co-ordinator. It may be sufficient for other court staff to know only that they need to provide the person with the accommodation.

It may be necessary to disclose information about a person’s creed-related accommodation needs to others, in some limited and compelling circumstances. This should be done in accordance with privacy laws in a way that maximizes confidentiality in the circumstances.

Example: An employer requests that all staff members refrain from heating products containing pork in a second microwave unit that has been purchased to meet the religious accommodation needs of some of its staff members. No personal information about the accommodated staff is disclosed. While the religious nature of the accommodation and the staff accommodated may eventually be inferred by other staff members, this is unlikely to violate the Code, based on a breach of confidentiality and dignity.

Privacy and confidentiality best practice checklist

• Limit information collected about a person's creed to only relevant information
  
• Maximize privacy and confidentiality of any information about a person’s creed, taking into account the person's wishes. This includes information that directly or indirectly identifies a person’s creed, or related practices and beliefs.
  
• To protect the person’s confidentiality, only share information relating to a person's accommodation with people directly involved in helping to meet the person’s needs.
  
• Keep all information exclusively with designated personnel (such as the human resources person) in a secure filing system.
  
• In some limited cases where a creed accommodation is obvious to others, providing training to other employees, clients or managers may help prevent backlash or resentment. Training can create a more inclusive and welcoming environment by helping others better understand diverse creed accommodation needs. Everyone must work together cooperatively and respectfully to explore and implement appropriate accommodation solutions. 

9.8 Roles and responsibilities

Accommodation is a multi-party process and a shared responsibility.^[334] Everyone must work together cooperatively and respectfully to explore and implement appropriate accommodation solutions.

The person seeking accommodation must:

• Tell the accommodation provider (employer, landlord, service provider, etc.) when they have Code-related needs that require accommodation
  
• As much as possible,^[335] communicate accommodation needs within a reasonable time frame in advance of the required accommodation,^[336] including any required changes to existing agreed-upon accommodation arrangements

• Answer questions or provide information about relevant restrictions or limitations, where appropriate^[337]

• Take part in discussions about possible accommodation solutions

• Cooperate in the accommodation process to the best of their ability

• Meet agreed-upon performance standards and requirements, once accommodation is provided

• Work with the accommodation provider on an ongoing basis to manage the accommodation process.

The accommodation provider must:

• Accept the person’s request for accommodation in good faith (unless there is evidence the request is not genuine)

• Limit requests for information to only what is reasonably necessary to identify the nature and extent of the limitation or restriction, and appropriate accommodation needed^[338]

• Take an active role in making sure that alternative approaches and possible accommodation solutions are investigated,^[339]and canvass various forms of possible accommodation and alternative solutions^[340]
• Keep a record of the accommodation request and action taken

• Make sure that information related to accommodation is kept confidential and shared only with people who need the information to put the accommodation in place

• Implement accommodations in a timely way, to the point of undue hardship

• Cover any appropriate costs related to the accommodation.^[341]

Although the person seeking accommodation has a duty to help secure appropriate accommodation that will meet their needs, they are not responsible for originating a solution. or leading the accommodation process.^[342] The accommodation provider is ultimately responsible for putting in place solutions, with the co-operation of the person seeking accommodation. After accommodation is provided, the person receiving the accommodation is expected to fulfil the essential requirements for a job, tenancy, or taking part in a service.

In employment, unions and professional associations must support accommodation measures even if they interfere with collective agreements, unless to do so would create undue hardship.^[343] They may also need to take a proactive role as partners in the accommodation process, and share joint responsibility with the employer to facilitate accommodation.^[344]

Where an organization contracts out work to a third party (for example, to provide a service or handle employment issues), it should make sure that the third party fulfills its obligations under the Code, including the duty to accommodate.

Example: An organization hires an employment firm to recruit and hire employees. The employment firm fails in its duty to accommodate prospective employees’ sincerely held creed beliefs. Both the organization hiring the employment firm and the contracted employment firm may have breached the Code.^[345]

9.9 Undue hardship

Organizations covered by the Code have a duty to accommodate to the point of undue hardship. Accommodation need not be provided if it causes undue or excessive hardship. However, some degree of hardship is acceptable.

The Code lists only three considerations when assessing whether an accommodation would cause undue hardship:

• Cost

• Outside sources of funding, if any

• Health and safety requirements, if any.

No other considerations can br properly considered. ^[346] For example, business inconvenience, employee morale, third party preferences, etc. are not valid considerations in assessing whether an accommodation causes undue hardship.^[347]

In many cases, it will not be costly to accommodate someone’s creed. Accommodation may simply involve making policies, rules and requirements more flexible. While making these more flexible may involve some administrative inconvenience, inconvenience by itself is not a factor for assessing undue hardship.

To rely on the undue hardship defence, an organization will have to show that an accommodation in fact causes undue hardship.^[348] It is not up to the person with a creed-related need to prove that the accommodation can be put in place without undue hardship.

The evidence required to prove undue hardship must be objective, real, direct, and, in the case of cost, quantifiable. The organization must provide facts, figures and scientific data or opinion to support a claim that the proposed accommodation in fact causes undue hardship. A mere statement, without supporting evidence, that the cost or risk is “too high” based on impressionistic views or stereotypes, will not be sufficient.^[349]

Example: The HRTO found that an employer discriminated when it rejected a job applicant after learning he had religious accommodation needs. The HRTO considered the employer’s argument that the requested accommodation would cause undue hardship. The employer’s claims of challenges posed by the collective agreement (“union problems,” scheduling difficulties and overtime costs) were found to be vague and speculative, with no concrete evidence provided.^[350]

Examples of objective evidence include:

• Financial statements and budgets

• Scientific data, information and data from empirical studies

• Expert opinion

• Detailed information about the activity and the requested accommodation

• Information about the conditions surrounding the activity and their effects on the person or group with a creed.

9.9.1 Costs

• Quantifiable

• Shown to be related to the accommodation, and
  
• So substantial that they would alter the essential nature of the enterprise, or substantially affect its viability.

Example: A small business has four employees, three of whom observe a Sabbath day of rest and cannot work during the company's busiest and most profitable business hours: Friday night and Saturday. The business begins to decline and is approaching bankruptcy. The employer hires another part-time staff member so that it can remain open during this time, and includes as a specific job requirement that the person work the weekend shift. Upon being hired, the new employee requests a religious accommodation for the Friday night and Saturday shift. The employer is unable to provide the accommodation for reasons of undue hardship, as this substantially undermines the continued viability of the business.  

The costs that remain after all costs, benefits, deductions and other factors have been considered will determine undue hardship. All projected costs that can be quantifiedand shown to be related to the proposed accommodation will be taken into account. However, mere speculation (for example, about financial losses that may follow the accommodation of a person with a creed) will not generally be persuasive.

If an accommodation exceeds an organization’s pre-determined accommodation budget, the accommodation provider must look to its global budget, unless to do so would cause undue hardship. The costs of accommodation should be distributed as widely as possible across the operation so that no single complex or division disproportionately assumes the costs of accommodation.^[351]

Where an accommodation would cause undue hardship, the accommodation provider must find the next-best solution. For example, interim accommodation could be provided while the organization establishes a reserve fund to phase in the accommodation that is the most appropriate.

9.9.2 Outside sources of funding

To offset costs, an organization has an obligation to consider any outside sources of funding it can get to make the accommodation. A person seeking accommodation is also expected to avail themselves of any available outside sources of funding to help cover expenses of their accommodation.

Before being able to claim that it would be an undue hardship based on costs to accommodate someone with a creed, an organization would have to show they took advantage of any available government funding or other program to help with such costs.

9.9.3 Health and safety

If an accommodation is likely to cause significant health and safety risks, this could be considered “undue hardship.” Employers, housing providers and service organizations have an obligation to protect the health and safety of all their employees, clients and tenants, including people who observe a creed, as part of doing business safely, and as part of fulfilling their legal requirements of the Occupational Health and Safety Act.^[352] The Code recognizes that the right to be free from discrimination must be balanced with health and safety considerations.

An employer, housing or service provider can determine whether modifying or waiving a health or safety requirement or otherwise providing an accommodation will create a significant risk by considering:

• Is the person seeking accommodation willing to assume the risk in circumstances where the risk is solely to their own health or safety?

• Is changing or waiving a requirement or providing any other type of accommodation reasonably likely to result in a serious risk to the health or safety of other employees, tenants, staff or other service users?

• What other types of risks are assumed within the organization, and what types of risks are tolerated within society as a whole? 

Assessing whether an accommodation would cause undue hardship based on health and safety must reflect an accurate understanding of risk based on objective evidence rather than stereotypical views. Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications.^[353] Organizations should not claim undue hardship based on anticipated hardships caused by proposed accommodations, if these are based only on speculative or unsubstantiated concerns that certain negative consequences “might” or “could” result if the person is accommodated. ^[354]

In evaluating the seriousness or significance of risk, organizations should consider:

• The nature of the risk: what could happen that would be harmful?

• The severity of the risk: how serious would the harm be if it occurred?

• The probability of the risk: how likely is it that the potential harm will actually occur?

• Is it a real risk, or merely hypothetical or speculative?

• Could it happen often?

• The scope of the risk: who will be affected if it occurs?

If the potential harm is minor and not very likely to happen, the risk should not be considered serious. If there is a risk to public safety, consideration will be given to the increased numbers of people potentially affected and the likelihood that a harmful event may happen.

A person with a creed may wish to assume a risk. Where possible, persons with a creed should be allowed to assume risk with dignity, subject to the undue hardship standard. The risk created by modifying or waiving a health and safety requirement must be weighed against the right to equality of the person with a creed.^[355]

Where the risk is so significant it outweighs the benefits of equality, it will be considered an undue hardship. Organizations have an obligation under health and safety legislation not to place people in a situation of direct threat of harm. High probability of substantial harm to anyone may constitute an undue hardship.

Organizations must try to mitigate risks where they exist. The amount of risk that exists after accommodations have been made and precautions have been taken to reduce the risk (short of undue hardship based on cost) will determine whether there is undue hardship. In some cases, it may be undue hardship to attempt to mitigate risk, such as where the risk is imminent and severe.^[356]

9.10 Other limits

The Code specifies that only three factors will be considered when determining if the test for undue hardship has been met (cost, outside sources of funding and health and safety issues). However, in some cases, courts and tribunals have recognized that even where these three factors are not at issue, there is not a limitless right to accommodation.^[357] There may be other narrow circumstances where it may not be possible to accommodate a person’s creed. These are discussed further below.

However, an organization must not jump to the conclusion that accommodation is not possible or required. It must still meet its procedural duty to accommodate by examining issues on a case-by-case basis, and seeking out next-best solutions, such as phased-in or interim accommodation. The onus will be on an organization to show the steps it has taken and the concrete reasons why accommodation is not possible.

9.10.1 Failing to take part in the accommodation process

Everyone involved in the accommodation process has a duty to cooperate to the best of their ability. In some cases, an organization may be deemed to have fulfilled its procedural and substantive duty to accommodate if the person does not take part in the process.

For example, a person may be considered to have not taken part if they refuse to comply with reasonable requests for information necessary to assess and meet their accommodation needs, or where they refuse to take part in developing accommodation solutions. Decision-makers have also found that persons need to make their religious accommodation needs known in a timely way. Failing to do so may result in a finding that the organization did not breach its duty to accommodate.

Example: The HRTO found that an employee who self-identified as a Muslim did not give his employer sufficient notice of his need for four hours of leave to observe a religious holiday. The employer typically had provided time off in the past when sufficient notice was given. In this case, the 72 hours advance notice given by the employee was not enough time for the employer to find a replacement. ^[358]

Before concluding that a person has failed to cooperate in the accommodation process, organizations should consider if there are any creed or other Code-related factors that may prevent the person from taking part. The organization may need to accommodate these factors as well. They should also consider whether there is a need to adjust the accommodation because it is not working.

9.10.2 Balancing competing rights

Human rights based on creed have often been at the centre of competing rights scenarios and conflicts. Public discussions have sometimes wrongly contrasted “religious rights” or “religious accommodation” with “human rights” or “equality rights.” Rights based on religion and creed are equality/human rights.^[359] While claims to these rights may sometimes conflict with other human rights, a robust system of checks and balances is in place in law to balance and protect all of our human rights to the greatest extent possible.

Generally, when a person makes an accommodation request, the organization will be able to provide the accommodation without it affecting the legal rights of other people.

Sometimes, however, a request for accommodation may turn out to be a “competing human rights” situation. This complicates the normal approach to resolving a human rights dispute where only one side claims a human rights violation. In some cases, only one party is making a human rights claim, but the claim conflicts with the human rights of another party or parties.

Organizations and institutions operating in Ontario have a legal duty to take steps to prevent and respond to situations involving competing rights.

Example: An employee who worked the night shift at a fish processing plant had a sincerely held belief that his religious practice required him to “preach, teach, baptise and make disciples.” He insisted on preaching to and trying to convert his co-workers during work hours. Other employees complained, and were moved to the day shift.

After the employee became a supervisor, his religious activities at work became even more concerning in light of his position of authority. His employer repeatedly cautioned him to respect the beliefs of his co-workers and to stop preaching and trying to convert them during his work hours. After he refused to do so, his employment was terminated.

The BC Tribunal found that the employer’s requirement that he not preach during work hours was a bona fide occupational requirement based on the competing rights of the other employees. The employer had a duty to maintain an environment

where every employee of any religious background feels comfortable and respected at work. The Tribunal found the employer’s response was not too heavy-handed, and it did everything it could to the point of undue hardship. The complaint was dismissed.^[360]

The OHRC’s Policy on competing human rights^[361] sets out a framework for analyzing and addressing competing human rights situations. It also provides concrete steps on how organizations can proactively take steps to reduce the potential for human rights conflict and competing rights situations.

Under the Code, organizations have a duty to accommodate people’s Code-related needs. As part of determining what each claim is about, organizations must distinguish between claims that solely affect business operations from claims that affect the rights of other individuals and groups. Claims that affect business operations alone are properly considered within the scope of the duty to accommodate (i.e. whether an accommodation is appropriate or amounts to an undue hardship) and are not competing human rights claims.

Example: A woman claims discrimination when her employer denies her request for modified work hours so that she can attend weekly religious services and observe her Sabbath. Her request does not appear to affect the legal rights of others. Therefore, this situation is not a competing rights claim, but is one involving a request for human rights accommodation.^[362]

Some key principles of a competing rights analysis are highlighted below.^[363]

No hierarchy of rights/no right is absolute

In dealing with competing rights claims, the Supreme Court of Canada has confirmed that there is no hierarchy of Charter rights. All have equal status and no right is more important than the others.^[364] Related to this is the principle that no right is absolute. Every right is inherently limited by the rights and freedom of others.^[365] Therefore, if rights do come into conflict, Charter principles require a “reconciliation” that fully respects the importance of both sets of rights so that each is realized to the greatest extent possible.^[366]

Importance of context

Reconciling competing rights cannot be done in an abstract way. Human rights do not exist in a vacuum and their meaning and content depend on context. While legal decisions have identified several fundamental principles that provide direction in how to deal with competing rights, there are no “bright-line rules.”^[367] Context determines where the line should be drawn between competing rights in a particular case.^[368]

Scoping of rights: determining rights at play and whether they are infringed

When dealing with potentially competing rights, it is first necessary to determine the rights that are being asserted or are engaged. For example, organizations must assess whether an accommodation request connects to a legitimate right, and whether there is an actual impact on the rights of others under the Code or Charter.

In many cases the engagement of the right is obvious. But in other cases it may be less clear that a right is triggered. It may be necessary to conduct a further inquiry and hear evidence to establish that the claim falls within the scope of the right as defined by the courts.^[369]

In the context of religious rights, many apparent rights conflicts have been resolved by simply asking whether the claim actually falls within the scope of the right in the particular context. Proper scoping of the boundaries of each right may sometimes reveal that there is no actual intrusion of one right onto another.

Example: In 2004, the Supreme Court of Canada considered the constitutionality of proposed legislative amendments that would extend the ability to get married to two persons of the same sex.^[370] It was argued that equal access to marriage for same-sex couples would violate the equality or religious rights of people who hold religious beliefs opposed to same-sex marriage. The Court rejected this as being a conflict of rights. It said that recognizing the rights of gay and lesbian people to marry could not, in itself, violate the rights of others.^[371]

Part of the initial scoping analysis, particularly in creed-related cases, involves considering whether there is a legislative exemption for the situation, or whether the matter falls under the jurisdiction of the Code.

Example: A woman who objected to the Catholic Church’s beliefs on abortion was unable to use the Code to challenge an inscription on a monument on Church property.^[372] In interpreting the meaning of a “service” or a “facility” under the Code, the HRTO considered the right of the Catholic Church to express its freedom of religion. The HRTO concluded that “the manifestation of religious belief in an inscription displayed on church property is not a ‘service’ or a ‘facility’” within the meaning of s. 1 of the Code.

When it comes to determining what is protected under creed, the courts have held that the protection of religious beliefs may be broader than the protection of conduct motivated by those beliefs.^[373] This is because acting on beliefs may have more of an adverse or harmful impact on the rights of others.^[374]

At the same time, there must be evidence of an actual adverse impact on the rights of others. This cannot be based on mere speculation or hypothetical views of how recognizing a creed right or granting acreed accommodation might affect others.^[375]

Example: The Supreme Court of Canada considered whether graduates of a private Christian university (Trinity Western), which required its students to abide by certain “community standards” that prohibited “homosexual activity,” should be licensed by the British Columbia College of Teachers to teach in the public school system.^[376] The College of Teachers argued that teaching programs must be offered in an environment that reflects human rights values, and an institution that wants to train teachers for the public school system must show that it will provide a setting that properly prepares future teachers for the diversity of students. The College further argued that it was justifiably concerned about a risk that as teachers, graduates of Trinity Western’s program would discriminate based on sexual orientation. The Supreme Court found that this case could be resolved through “the proper delineation of the rights and values involved.” Properly defining the scope of the rights avoided a true conflict. The Court found that the proper place to draw a line in this case was between the freedom to hold beliefs versus conduct based on those beliefs. There was no concrete evidence that holding beliefs about “homosexuality” would result in actions by graduates of Trinity Western that would be discriminatory.

Sometimes a competing rights conflict may be wrongly assumed to exist based on preconceived notions, assumptions or stereotypes about people identified by a creed, the nature of their beliefs or practices, or their relation to other Code-protected groups. While the human rights grounds most often cited in competing human rights claims include gender, creed, sexual orientation and disability, organizations must be careful not to stereotype, or assume mutually exclusive, conflicting relations between these communities and expressions of identity.^[377]

Assessing extent of rights infringement and balancing appropriately

If two sets of rights are in fact engaged, the organization dealing with the competing rights should look at the extent of the interference with each set of rights. Is the interference with the right significant or is it trivial and insubstantial? Is each right affected at its core (a fundamental aspect of the right) or its periphery? If an interference with one of the rights is found to be trivial, the analysis will end, and that right will generally give way to the other.

Example: A gay man went to a printing shop to order letterhead and business cards for the Gay and Lesbian Archives. The shop owner refused to do the printing on religious grounds. A human rights Board of Inquiry found that the printer had discriminated based on sexual orientation.^[378] The printer appealed to the Divisional Court,^[379] and asked the Court to set aside the decision based on his constitutional right to freedom of religion. In deciding whether the Board’s decision unduly limited this right, the Court noted that the further an activity is from the “core” elements of freedom of religion, the more likely the activity is to impact on others and the less deserving the activity is of protection. The shop owner’s commercial printing services were found to be at the “periphery” of activities protected by freedom of religion. Limits on the exercise of his right were therefore found to be justified to prevent discrimination based on sexual orientation. However, the Court did leave open the possibility of a different result in a different context, for example where the content of the materials being printed might more directly conflict with the core elements of the printer’s beliefs.^[380]

Where both rights are substantially interfered with, organizations should then ask what harm would be caused by limiting each of the rights. In this analysis, context is vital.

Organizations should make every effort to seek out constructive compromises or accommodations to both sets of rights that minimize the infringement and maximize the fulfillment of each party’s rights to the greatest degree possible.^[381] Searching for compromises involves exploring measures that may lessen any potential harm to each set of rights. Questions to ask include:

• Can accommodations and adjustments be made to each set of rights to achieve a “constructive compromise”?

• Is there a solution that allows enjoyment of each right?

• If not, is there is a next-best solution that minimizes any adverse impact?

If it is not possible to find a solution that allows maximum enjoyment of each right, the organization should explore whether there is a next-best solution that minimizes any adverse impact.

Example. The Court of Appeal for Ontario and Supreme Court of Canada considered whether a Muslim woman who wears a niqab (a veil covering her face, except her eyes) for religious reasons may be required to remove it when testifying about alleged childhood sexual assaults.[382] The Courts emphasized the importance of searching for “accommodations” or “constructive compromises” that might allow for reasonable adjustments to both the witness’ freedom of religion and the accused’s right to make full answer and defence, such as using an all-female court staff and a female judge.^[383]

Sometimes the process of considering the competing rights satisfies the parties. At other times, one right may ultimately need to prevail over another in the particular circumstances, despite the best efforts and processes.

When considering potential options for balancing rights, organizations may sometimes need to consider underlying constitutional values and broader societal interests and harms if either right is compromised. Some of these interests that have been recognized in the case law include respect for human dignity, commitment to social justice and equality, accommodating a wide variety of beliefs, negative stereotyping of minorities, gender equality, protecting the best interests of the child, access to justice and public confidence in the justice system.

Example: A majority of Supreme Court of Canada judges concluded that a couple’s decision to refuse a potentially life-saving blood transfusion for their baby on religious grounds was protected by freedom of religion.^[384] Using a process under the Child Welfare Act, the child had been made a temporary ward of the Children’s Aid Society, which had consented to the blood transfusion. In considering the constitutionality of the Child Welfare Act, the  Court balanced the interests of the state in protecting children at risk against the parents’ rights to freedom of religion, using section 1 of the Charter. It found that the state interest outweighed the religious right, and that the infringement of the parents’ Charter right was justified. However, in other cases dealing with parents denying medical treatment for children on religious, moral or cultural grounds, the courts have ruled differently, in different contexts, considering such factors as the age of the child,^[385] and Aboriginal constitutional and treaty rights under section 35 of the Charter..^[386]

Searching for solutions can sometimes be challenging, controversial or dissatisfying to one side or another. In any situation, it is important not to jump to any conclusions. The Code requires organizations to go through a process on a case-by-case basis to search cooperatively for solutions to reconcile competing rights and accommodate individuals and groups, if possible.

A sound process is a key factor in effective dispute resolution: This process should include:

• Engaging all relevant parties as much as possible in the negotiation process, being mindful of and seeking to mitigate any power differentials

• Seeking win-win solutions and compromises that help opposing parties to see and understand the competing rights of people their rights are in conflict with

• Maintaining privacy, confidentiality and respect for all involved, in all phases of the process. 

For more on what makes for a good dispute resolution process, and the relevant steps of analysis, see the OHRC’s 

Policy on competing human rights.^[387]

9.11 Excluded factors

9.11.1 Employee morale

In some cases, accommodating an employee, tenant or service user may generate negative reactions from co-workers, tenants or other service users who are either unaware of the reason for the accommodation or who believe that the person is receiving an undue benefit. Reaction may range from resentment to hostility. The OHRC heard that such backlash and resentment were often major challenges faced by both creed accommodation providers and people requesting or receiving accommodations.

A negative reaction cannot be used to justify a failure to accommodate.^[388] Rather, the organization and person responsible for providing accommodation should make sure that staff are supportive and are helping to foster an environment that is positive for all employees. Providing training can help others better understand creed diversity, and prevent or mitigate backlash and resentment. It is not acceptable to allow discriminatory attitudes to fester into workplace hostilities that poison the environment for workers self-identifying with a particular religion or creed.

Also, people who follow a religion or creed have a right to accommodation with dignity. It is an affront to a person’s dignity if issues of morale and misconception stemming from perceived unfairness are not prevented or dealt with.

9.11.2 Third-party preference

Human rights case law notes that third-party preferences are not a justification for discriminatory acts, and the same rule applies to customer preferences.^[389]

Example: A recreational facility makes sure that several of its open swim classes are available to women only, to accommodate the religious needs and enable the participation of orthodox Jewish, Muslim and old order Mennonite women who live in the area. Some service users object to the accommodation, because they think this is an imposition on “mainstream Canadians” of “foreign values” and “ways of life.” The views and preferences of service users are irrelevant as a factor or justification for withdrawing such an accommodation, unless it can be shown that there is an actual competing right at play that is being infringed.

Example: A Buddhist organization seeks to build a temple. The municipality denies the permit to build the temple because of resident objections to the building’s proposed architecture style. They claim this style does not “fit in” culturally with the surrounding environment. There is no competing right or bona fide requirement claimed under the Code, or basis in municipal law to justify denying the building permit. The organization alleges discrimination based on creed.

9.11.3 Business inconvenience or economic rights

"Business inconvenience" (or “business or economic rights”) is not a defence to failing to meet the duty to accommodate.^[390]

Example: An association of condominium co-owners did not permit several Jewish residents to erect Succahs (temporary hut enclosures) on their balconies.^[391] The association argued that these structures would lessen the economic and aesthetic value of their property and unduly interfere with their property rights. The Court rejected this argument and held that the religious rights and freedoms of the Jewish residents, which would be significantly impaired by a ban on the Succahs, would “clearly outweigh” the unsubstantiated concerns of the other property owners about the decrease in their property value.

If there are demonstrable costs related to decreased productivity, efficiency or effectiveness, they can be taken into account in assessing undue hardship under the cost standard, provided they are quantifiable and can be shown to be related to the proposed accommodation.

9.11.4 Collective agreements or contracts

The courts have determined that collective agreements and contracts must give way to the requirements of human rights law. To allow otherwise would be to permit the parties to contract out of their Code rights under the auspices of a private agreement. Subject to the undue hardship standard, the terms of a collective agreement or other contract arrangement cannot justify discrimination that is prohibited by the Code.

Example: An organization requires all of its employees to sign a term of employment contract that obligates them to work on any day of the week, as needed. The employer uses the terms of this contract to deny creed accommodation requests to employees (for example, time off to observe a religious holiday) where this conflicts with existing work scheduling. This could violate the Code, because the employer did not meet the substantive or procedural duty to accommodate short of undue hardship. Even where an employee has signed such a waiver, neither employers nor employees may contract out of their human rights and responsibilities.

A union may cause or contribute to discrimination by taking part in creating a work rule, such as a provision in a collective agreement, that discriminates.^[392] Unions and employers are jointly responsible for negotiating collective agreements that comply with human rights laws. They should build the concept of equality into collective agreements.^[393]

However, if an employer and a union cannot reach an agreement on how to resolve an accommodation issue, the employer must make the accommodation in spite of the collective agreement. If the union opposes the accommodation, or does not co-operate in the accommodation process, it may be named as a respondent in a human rights application.

Example: A school custodian, who was a Seventh Day Adventist, asked his employer to accommodate him by allowing him to not work Friday afternoons so he could observe his Sabbath. The union opposed changing his shift schedule, since it would have required an exception to the collective agreement. Because the union threatened to file a grievance, the custodian was not accommodated. His employment was eventually terminated when he refused to work a Friday evening shift.

The Supreme Court of Canada confirmed that where the collective agreement has an adverse effect on employees based on creed, the union has a joint and shared responsibility, along with the employer, to search for and provide accommodation to the point of undue hardship.  Both the union and employer were jointly liable for the failure to accommodate.^[394]

Unions will have to meet the same requirements of showing undue hardship related to costs and health and safety. For example, if the disruption to a collective agreement can be shown to create direct financial costs, this can be taken into account under the cost standard.

9.11.5 Perceived unreasonableness of a belief or practice

“For better or for worse, tolerance of divergent beliefs is a hallmark of a democratic society."  – Supreme Court of Canada^[395]

A person’s sincerely held creed belief or practice does not need to meet any test of “reasonableness” or “correctness” to trigger the duty to accommodate.^[396]

The Code duty to accommodate extends to a wide variety of people’s beliefs and practices, provided they are connected to a creed, and subject to limitations as set out in sections 9.9 and 9.10.

“When we ask people to be tolerant of others, we do not ask them to abandon their personal convictions. We merely ask them to respect the rights, values and ways of being of those who may not share those convictions. The belief that others are entitled to equal respect depends, not on the belief that their values are right, but on the belief that they have a claim to equal respect regardless of whether they are right.”  – Supreme Court of Canada^[397]

It is inappropriate for organizations to assess the “reasonableness” or “correctness” of a person’s beliefs or practices when responding to a request for accommodation,^[398] unless there are reasonable grounds to believe that it may promote or incite hatred or violence, or contravene criminal law.^[399] Where a creed accommodation infringes on the rights of others, a competing rights approach should be taken.^[400] This involves assessing the connection between a belief or practice and an actual right, and its impact on the rights of others, if any.

9.11.6 Secularism and the duty of neutrality

The Supreme Court of Canada has affirmed the need for the state and government institutions to remain neutral in regards to religion.^[401] This prohibits them (unless otherwise exempted in law) from imposing, "professing, adopting or favouring one belief to the exclusion of all others,"^[402] whether the belief is religious or non-religious.

“[S]tate neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected.” – Supreme Court of Canada^[403]

The duty of neutrality is based on the right of individuals and communities to be treated equally in public life, regardless  of their religion or creed, as well as fundamental constitutional commitments to multiculturalism, pluralism, freedom and democracy.^[404] It does not require that people “park their religious or creed beliefs at the door” just because they are in a “secular” or “public” space.^[405]

“A secular response that requires witnesses to park their religion at the courtroom door is inconsistent with the jurisprudence and Canadian tradition, and limits freedom of religion where no limit can be justified.”   – Supreme Court of Canada^[406]

“The pursuit of secular values means respecting the right to hold and manifest different religious beliefs. A secular state respects religious differences, it does not seek to extinguish them.”   – Supreme Court of Canada^[407]

“In my view, the Code ensures equality because of creed, but does not ban creed from all public spaces. Indeed, such a policy could be contrary to Code values of diversity and inclusion.”   – Human Rights Tribunal of Ontario^[408]

It is generally preferable for organizations to achieve equality through universal design that recognizes and includes creed diversity rather than through universal exclusion, unless this can be shown to be the best way to achieve equality in the circumstances.

Example: An organization celebrates the Christmas holiday alongside other religious and non-religious holidays and days of significance, equally recognizing (versus equally disregarding) them all.

Organizations must not refuse creed-related accommodations to individual employees, service users or tenants simply because they operate in the secular public sphere.

People have the right to religious and creed accommodation and “changes of procedure” within secular public institutions, under both the Code and Charter.^[409] Not accommodating individuals' religious or creed observances or treating people differently because they have a creed in Code-protected social areas (services, goods and facilities, employment, housing, contracts and vocational associations) may contravene the Code.

Example: A Nova Scotia town had an operating policy not to permit performances that had a religious or political message on its public stage. When a Reverend asked to use the Marina Stage for a presentation called “This Blood is For You” which included the performance of a short drama, gospel songs and preaching the gospel, the request was denied because the performance contained a religious message. As religion was a factor in the decision not to grant the Reverend the use of the town stage, discrimination was found.^[410]

At the same time, the right to equal treatment based on creed and the duty to accommodate does not permit individuals to profess, adopt or favour one belief to the exclusion of others when acting in an official organizational capacity or function.^[411]

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