Ruling (.pdf) - International Center for Law and Religion Studies

More documents

Recommendations

Info

57. The first step in assessing whether the employer hassuccessfully established a BFOR defence is to identify thegeneral purpose of the impugned standard and determinewhether it is rationally connected to the performance of the job.The initial task is to determine what the impugned standard isgenerally designed to achieve. The ability to work safely andefficiently is the purpose most often mentioned in the cases butthere may well be other reasons for imposing particularstandards in the workplace (….)59. The focus at the first step is not on the validity of theparticular standard that is at issue, but rather on the validity ofits more general purpose. This inquiry is necessarily moregeneral than determining whether there is a rational connectionbetween the performance of the job and the particular standardthat has been selected, as may have been the case on theconventional approach. The distinction is important. If there isno rational relationship between the general purpose of thestandard and the tasks properly required of the employee, thenthere is of course no need to continue to assess the legitimacyof the particular standard itself. Without a legitimate generalpurpose underlying it, the standard cannot be a BFOR. In myview, it is helpful to keep the two levels of inquiry distinct.(emphasis added)2008 HRTO 22 (CanLII)[176] The above quoted passages demonstrate that the objective element of the bonafide and reasonable test consistently used in special employment cases is morestringent, requires greater scrutiny, and involves a more detailed analysis than the firststep of the unified approach proposed in Meiorin. Not only must the qualification berationally connected to the nature of employment in a general sense, but it must beobjectively “appropriate” and “reasonably necessary” to the performance of the job.[177] In every case in which a court or tribunal has considered a special employmentprovision, and was called upon to consider whether a qualification was “bona fide andreasonable”, it has had reference to the two part test articulated in Etobicoke. In myview there is no basis for adopting a less stringent objective test.[178] Further, the interpretation of the words “nature of the employment” suggestedby Christian Horizons is inconsistent with the jurisprudence. Again, in each specialemployment case, the inquiry was whether the qualification was reasonably necessary52
given the activity and objects of the organization, the nature of the job and the essentialjob duties. I agree that the words “nature of the employment” may provide for a broaderconsideration than examining only the individual job duties, but there is no support forthe interpretation that the focus is solely, or primarily on the nature of the organization.(See also Garrod and Parks)[179] In regards to the subjective branch of the test, I accept that Christian Horizonshas established that it has an honest and good faith belief that the qualification isnecessary for the performance of the job of support worker. The Directors andmembers hold a sincere belief that Christian Horizons is a community of “EvangelicalChristians” and that the nature of the employment is religious ministry. The organizationis structured in that way, the job duties are described in that way and the service isdelivered in that way. Mr. Alemu testified that:2008 HRTO 22 (CanLII)When we ask people to come and join the ministry ofChristian Horizons, it's not just that they could do a job butthat they become part of the body. In that sense, we are --we are a group of Christians who are doing ministry togetherand in order to do ministry together, it's not just the activitiesthat you do, but it's the unity of the spirit and the unity of thebody and you can't -- you can't disassociate my personal lifefrom the ministry that I do if it is to be called an EvangelicalChristian ministry.And so we expect everyone to adhere to and live out, andthis is -- this isn't that we are better in the services that wedo, but this is our community and our community is that notyou live out just in words, but in deeds the truth of thescripture as we understand them.[180] I find that Christian Horizons satisfies the subjective element of the test in that itsincerely and honestly believes the qualification is necessary for the performance of theemployment.[181] I also accept that, in some respects, there may be a rational connectionbetween the qualification and the nature of the employment. As I have said, ChristianHorizons has structured the organization and the employment as Christian ministry. Butthe objective branch of the test requires a respondent to do more than merely establish53
Page 1 and 2:
HUMAN RIGHTS TRIBUNAL OF ONTARIO___
Page 3 and 4:
TABLE OF CONTENTSOVERVIEW .........
Page 5 and 6: I) OVERVIEW[1] In March 1995, the c
Page 7 and 8: Code which provides a framework and
Page 9 and 10: [19] The length of the hearing and
Page 12 and 13: [31] Rev. Reese testified that, aft
Page 14 and 15: objects and purposes essentially re
Page 16 and 17: meet the needs of individuals who w
Page 18 and 19: support services to the residents,
Page 20 and 21: organization. Each retreat involved
Page 22 and 23: Heintz was given a Letter of Employ
Page 24 and 25: Ms. Dorothy Girling, Ms. Heintz’s
Page 26 and 27: with pay pending the investigation
Page 28 and 29: ancestry, place of origin, colour,
Page 30 and 31: such a defence should not be read i
Page 32 and 33: all help it can to its members to a
Page 34 and 35: Analysis and Application of the Fac
Page 36 and 37: [117] On the basis of the evidence
Page 38 and 39: [124] Rev. Dr. Brent Hawkes, the Co
Page 40 and 41: doctrine, unjustifiably entangle th
Page 42 and 43: Christian Horizon urges me to adopt
Page 44 and 45: persons, individuals identified by
Page 46 and 47: the residents, they were not able t
Page 48 and 49: noted above, that families came fro
Page 50 and 51: would otherwise be discriminatory,
Page 52 and 53: confronted about being in a same se
Page 54 and 55: whole. Section 24(2) imposes a duty
Page 58 and 59: a rational connection between the q
Page 60 and 61: If individuals in Canada were permi
Page 62 and 63: the faith beliefs of the organizati
Page 64: And so they have gay and lesbian st
Page 67 and 68: discriminatory views of managers or
Page 69 and 70: Horizons’ management from the poi
Page 71 and 72: • On this and suspicious abuse al
Page 73 and 74: Christian Horizons relied on the di
Page 75 and 76: we're committed to as God's way in
Page 77 and 78: obligations placed on all employers
Page 79 and 80: Inc. (No. 4) (1990), 12 C.H.R.R. D/
Page 81 and 82: late in 1999. She testified that wh
Page 83 and 84: Heintz. None of her concerns about
Page 85 and 86: [268] Ms. Heintz testified about he
Page 87 and 88: take steps to justify why gays and
Page 89 and 90: for over 40 years. It has grown fro
Page 91 and 92: 1. the respondent, Christian Horizo
Page 93 and 94: ADDENDUM TO FINAL DECISION[1] This
Page 95 and 96: Horizons appealed that decision, an
show all

Ruling (.pdf) - International Center for Law and Religion Studies

Create successful ePaper yourself

Delete template?

Save as template?