A. INTRODUCTION

On April 28, 2008, the Ontario Human Rights Tribunal released its decision in the case of Heintz v. Christian Horizons ["Christian Horizons"],¹ which, in the words of the Ontario Human Rights Commission, will have a "significant impact for faith-based and other organizations that provide services to the general public."² As such, it is important for such organizations in Ontario to be aware of the decision's facts, reasons, and the potential impact it will have on their hiring policies, as well as on codes of conduct that may already be in place, or may be implemented in the future. The 96-page decision is highly nuanced and complex, and a full analysis of its content is beyond the scope of this Bulletin. The purpose of this Church Law Bulletin is to summarize the decision and its reasons, briefly analyze its impact on organizations, particularly those that are faith-based, and raise some issues that charities may want to consider as a result of the decision. It should be noted that the respondent, Christian Horizons, has filed its Notice of Appeal, and as such, any comments on the lasting impact of the decision may be subject to change, depending on the outcome of that appeal.

B. THE DECISION

The Christian Horizons case was heard by the Ontario Human Rights Tribunal over the course of 40 days of hearings. By way of brief background, the complainant in the case was Connie Heinz, a former employee of the respondent, Christian Horizons. In the words of the adjudicator, "Ms. Heintz is an individual of deep Christian faith. She is also a lesbian. Ms. Heintz came to an understanding of who she was, and her sexual orientation during her tenure as an employee of Christian Horizons."³ Christian Horizons is a religious not-for-profit corporation which identifies itself as an Evangelical Christian ministry, which operates over 180 residential homes across Ontario to provide care and support to approximately 1400 individuals with developmental disabilities. While virtually all of its funding comes from the provincial government, the adjudicator stated that this was not a factor in his decision.

In 1995, prior to commencing her employment with Christian Horizons, Ms. Heintz signed a Lifestyle and Morality Statement, which formed a part of her employment contract, and which stated as follows:

Personal Lifestyle and Morality Standards Expected of Staff

Staff conduct should comply with Christian Horizons' policies where stated, endorse the Christian commitment of the membership and be a positive example for the people we serve. Each staff person teaches by example, therefore, they may not use tobacco or alcoholic beverages or be perceived as endorsing their use, while being observed by our clients. Further, such conduct is strongly discouraged for the health and well-being of the staff. Similarly, we hold life to be sacred and the family model as endorsed by Jesus as fundamental.

While not limiting examples in inappropriate behaviour deemed to be contrary to the teaching of Jesus and His followers as recorded in the New Testament, Christian Horizons does reject conduct such as:

1. extra-marital sexual relationships (adultery)
2. pre-marital sexual relationships (fornication)
3. reading or viewing pornographic material
4. homosexual relationships
5. theft, fraud
6. physical aggression
7. abusive behaviour
8. sexual assault/harassment
9. lying and deceit
10. the use of illicit drugs

as being incompatible with effective Christian counselling ideals, standards and values.

In 1999, some four years after she first signed the Lifestyle and Morality Statement, Ms Heintz "began to develop an awareness of her sexual orientation" and began a same sex relationship.⁴ When confronted by a supervisor, Ms. Heintz did not deny her relationship or her sexual orientation. This encounter "prompted a series of events that ultimately resulted in Ms. Heintz resigning her employment with Christian Horizons in September 2000."⁵ Although Ms. Heintz resigned, representatives of Christian Horizons admitted that she would have been terminated had she not done so. Counsel for Christian Horizons conceded that, on its face, the Lifestyle and Morality Statement discriminated on the basis of sexual orientation. Therefore, the adjudicator held, "in order to avoid a finding that Christian Horizons violated the Human Rights Code by insisting all employees sign and comply with the Lifestyle and Morality Statement", Christian Horizons had to establish that it fell "within the special employment provisions of section 24(1)(a) [of the Ontario Human Rights Code]."

Section 24(1)(a) of the Human Rights Code⁶ [the "Code"] reads as follows:

The right under section 5 to equal treatment with respect to employment is not infringed where,
a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment.

Section 5(1) reads:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

In the words of the adjudicator, "[t]he effect of section 24(1)(a) is to deem certain conduct that would otherwise be a violation of the Code, not to be an infringement in special, limited circumstances. It is an exception to the general rule that no employer may refuse to hire, or give preference in hiring, on the basis of one of the prohibited grounds set out in section 5(1) of the Code."⁷ According to the adjudicator, for Christian Horizons to qualify for this exemption, it had to establish that, on a balance of probabilities:

a. it was a religious organization;
b. it was primarily engaged in serving the interests of persons identified by their creed;
c. it employed or gave preference in employment to persons similarly identified; and
d. the qualification (the restriction in employment to persons similarly identified by creed) was a reasonable and bona fide qualification because of the nature of the employment.

1. Is Christian Horizons a Religious Organization?

In his ruling, the adjudicator had "no difficulty in finding that Christian Horizons is a religious organization", based on the evidence presented in the case, including:

• The fact that Christian Horizons defines itself as an Evangelical Christian ministry (although this was not determinative);
  
• The Doctrinal Statement that formed one of Christian Horizons' "core documents" for 40 years and which was incorporated into the Constitution and By-Laws of the organization;
  
• The fact that at both board of directors meetings and annual general meetings, the proceedings commence with devotionals and prayer; and,
  
• The fact that religious dedication services were held when new programs were opened.

The adjudicator went on to reject the Commission's argument that, since Christian Horizons was essentially a government-funded "social service agency", it was not a religious organization, holding:

In my view, there is no reason why an organization cannot be a religious organization within the meaning of section 24(1)(a) simply because it provides a social service. There is a long and honoured tradition of churches, religious orders and religious organizations providing social services in the community… the mere fact that such an organization does receive public funding, even all its funding, does not preclude finding it to be a religious organization, provided other indicia of that status are established on the evidence.⁸

2. Is Christian Horizons primarily engaged in serving the interests of persons identified by their creed? Does Christian Horizons employ only or give preference in employment to persons similarly identified?

The adjudicator held that, as a result of Christian Horizons' Lifestyle and Morality Statement, as well its articles of faith as expressed in a Doctrinal Statement that all members of the organization were required to adopt and sign, it was clear that Christian Horizons employed only or gave preference to persons "similarly identified" by a common creed. It was also found that Christian Horizons was not primarily engaged in serving the interests of persons who adhere to its Doctrinal Statement and its Lifestyle and Morality Statement, or even in serving the interests of Christians more generally. The adjudicator found that "the primary object and mission of Christian Horizons is to provide care and support for individuals who have developmental disabilities, without regard to their creed" [emphasis in original].⁹ As such, it did not meet the second criteria for the s. 24(1)(a) exemption.

Christian Horizons argued before the adjudicator that s. 24(1)(a) should be interpreted so as to permit "religious organizations, whose primary mission is to do works of charity and mercy…to give preference in employment to adherents of its faith."¹⁰ Otherwise, Christian Horizons argued, "religious organizations which sought to give preference to, or hire only its adherents, would be restricted to serving its small community of co-religionists."¹¹ The adjudicator did not accept these arguments, however, and held:

Such an interpretation would ignore the plain meaning of the statutory language and the policy choice adopted by the Legislature in balancing the competing rights of persons to be free from discrimination in employment, and of persons of common faith to come together to pursue certain activities. In contrast with section 20 of the Quebec Charter, section 24(1)(a) does not relate the distinction, restriction or qualification to the nature of the organization. It provides that the distinction, restriction or qualification must be related to the persons whose interests are primarily served by the organization.¹²

As a result, the adjudicator held that Christian Horizons did not meet the third criteria of s. 24(1)(a), and as such, was not justified in discriminating against Ms. Heintz on the basis of her sexual orientation.

3. Is the qualification (the restriction in employment to persons similarly identified by creed) a reasonable and bona fide qualification because of the nature of employment?

The adjudicator went on to hold that, even if Christian Horizons was found to be primarily engaged in serving the interests of its members, volunteers, employees, and others who adopt its faith beliefs, it still did not meet the final element of s. 24(1)(a), because compliance with the Lifestyle and Morality Statement was not a reasonable or bona fide qualification for employment.

In reaching this conclusion, the adjudicator employed a two part test, which involved both a subjective and objective element. The adjudicator found that Christian Horizons satisfied the subjective element of the test in that it "sincerely and honestly believe[d] the qualification [wa]s necessary for the performance of the employment."¹³ However, Christian Horizons did not satisfy the objective branch of the test, which required it to show that the qualification was not only rationally connected to the nature of employment in a general sense, but also objectively "appropriate" and "reasonably necessary" to the performance of the job.¹⁴ The adjudicator found that the primary role of a support worker (which was Ms. Heintz's position with Christian Horizons) is "not to help all residents to adopt a Christian way of life, or to carry out a mission of salvation, or to convert residents to the faith beliefs of the organization" but to "provide residential care and support to persons who have developmental disabilities."¹⁵ As a result, Christian Horizons was unable to establish that compliance with the Lifestyle and Morality Statement was objectively "appropriate" and "reasonably necessary" in connection with these duties, and thus failed the fourth criteria for the s. 24(1)(a) exemption.

4. "Poisoned Work Environment"

In his decision, the adjudicator also held that, since Christian Horizons did not meet the criteria for the exemption under s. 24(1)(a), its requirement that Ms. Heintz comply with the Lifestyle and Morality Statement as a condition of employment violated her right to be free from discrimination in employment. However, the adjudicator went on to hold, that "[i]ndependent of whether Christian Horizons has met the conditions for the exemption under s. 24(1)(a)", it also "infringed Ms. Heintz's rights under the Code as a result of the work environment and how she was treated once her sexual orientation came to light."¹⁶ Specifically, Christian Horizons violated the Code by:

a. Suggesting Ms. Heintz seek counselling in order to effect her "restoration";
b. Creating or permitting a poisoned work environment in which rumours and discriminatory attitudes were allowed to pervade the workplace, and taking no steps to remedy the harmful effects on Ms. Heintz;
c. Acting on discriminatory views in matters of human resources.¹⁷

The adjudicator noted in his decision that this violation of the Code was not "not subject to a section 24(1)(a) exemption even had the exemption been found to otherwise apply."¹⁸ However, the final order in the decision was predicated on the finding that "section 24(1)(a) of the Code does not apply to [Christian Horizons]."¹⁹

5. Remedies

As a result of Christian Horizons' violations of the Code, the adjudicator awarded the following remedies:

a) $8,000.00 in general damages for the violation resulting from the imposition of the Lifestyle and Morality Statement, which discrimination was said to be "both serious and harmful";

b) $10,000 in general damages for the violation of Ms. Heintz's right to be free from discrimination in a poisoned work environment, and $5,000.000 for "mental anguish caused by actions that were wilful and reckless"; and,

c) Christian Horizons was ordered to pay to Ms. Heintz all wages and benefits she would have received between September 23, 2000 and July 12, 2002 less any monies she earned elsewhere during that period.

The adjudicator also awarded the following "public interest" remedies:

a) The respondent Christian Horizons shall develop and adopt an anti-discrimination and an anti-harassment policy as well as a human rights training program for all employees and managers within six months from the date of the decision.

b) The respondent, Christian Horizons, shall cease and desist from imposing the Lifestyle and Morality Statement as a condition of employment. The effect of this order is stayed for a period of 8 months from the date of this decision, or for such longer period as the Tribunal may direct.

c) Within 30 days of the date of this decision, the respondent, Christian Horizons, must commence a review of its employment policies, in consultation with the Commission, to ensure that such policies comply with the Code.

d) No later than six months from the date of this decision, the respondent, Christian Horizons shall submit a report to the Tribunal outlining the steps it proposes to take to ensure that its employment policies are in compliance with the Code, including a time frame for implementation.

e) At least 30 days prior to the submission of its proposal to the Tribunal the respondent, Christian Horizons, shall provide its proposal to the Commission and Ms. Heintz.

f) The Commission and Ms. Heintz are entitled to make submissions to the Tribunal on the respondent's proposal. The submissions will be provided to the Tribunal within 30 days of receipt of the respondent's proposal.²⁰

C. COMMENTARY

The Christian Horizons decision has been met with a significant degree of controversy since its release. At the outset, it is important to note that, due to the limited jurisdiction of the Ontario Human Rights Tribunal, the decision only applies to organizations in the Province of Ontario, although charities and non-profit corporations across Canada should be aware of this case, as it could be cited as a precedent in other provinces. However, the decision may be limited in its application in other provinces, since much of it is based on a statutory interpretation of the Ontario Human Rights Code, which Code contains different wording than human rights legislation in other provinces. Ontario charities and non-profit corporations, however, can draw some principals from the Christian Horizons decision, as discussed in the following sections:

1. S. 24(1)(a) Exemption

An important question now faced by Ontario charities and non-profit corporations, particularly religious ones, is, "When will an organization be able to rely on the s. 24(1)(a) exemption?" As a result of the decision, the answer to this question is not as clear as one would hope. What the decision does make clear is that a faith-based organization seeking to rely on the exemption as a "religious" organization will need to establish that it truly is "religious". As such, religious charities should ensure that they have clear religious purposes stated in their objects. They should also consider incorporating their Statement of Faith into their governing documents, where applicable.

An organization will also need to show that it is "primarily engaged in serving the interests of persons identified by their creed". This has raised concern by some organizations whose "primary mission is to do works of charity and mercy in the broader community."²¹ The adjudicator stated that when an organization moves from "the realm where the nature and purpose of its activity is to serve the private interests of its community" into serving "the broader public sector", it falls outside of the exemption.²² In other words:

[W]here the organization is primarily engaged in serving the interests of its members or its community of co-religionists, it will be granted freedom to restrict hiring to members of its faith, subject to the qualification being reasonable and bona fide. Where, however, it branches out into the public realm, where the nature and primary purpose of its activity creates a relationship with the broader public, its rights are then limited, and, as pertaining to the social activity of employment, it cannot infringe on the fundamental rights of others.²³

However, the adjudicator did point out that "[t]here may be situations in which an organization's primary purpose, mission, and objects are to serve the interests of persons identified by one of the proscribed grounds in the Code, but it happens to provide the service to a greater number of persons who are not members of the group similarly identified."²⁴ In his decision, the adjudicator provides the example of a Greek cultural centre that has the primary object to promote cultural and arts events in relation to the Greek community. Under these circumstances, the adjudicator held that "the mere fact that more non-Greek individuals frequent the centre's events will not in itself be determinative of whether the organization is primarily engaged in serving the interests of persons identified by race, national origin, or ethnic background."²⁵

Notwithstanding the above, religious organizations may want to consider, where appropriate, expanding their membership base in order to include individuals who may have been served by the organization in some way but who have to date not been offered an opportunity to become a member. For more clarity in this regard, para-church organizations, such as Christian camps, might want to consider creating either a more inclusive definition of voting membership or creating a separate class of non-voting members for persons who participate in or benefit from the organization's activities and who can adhere to the statement of faith of the organization. For example, an opportunity to subscribe as non-voting members might be offered by a Christian camp to parents who desire to send their children to the camp and thereby assist that charity in establishing that it is primarily engaged in serving the interests of its members. Although not determinative in itself, the number of persons served by the organization who are adherents to its articles of faith was recognized by the adjudicator as a factor to be considered in determining whether an organization is "primarily engaged in serving the interests of persons identified by their creed."²⁶

However, where does this leave religious organizations that are not engaged in primarily providing services to co-religionists, but instead are providing assistance to all persons, regardless of creed, as a manifestation of faith? Some of the adjudicators comments in the Christian Horizons decision suggests that those faith based organizations that are engaged in proselytizing or converting those outside of their religion may still qualify for the s. 24(1) exemption, notwithstanding the fact that they may be primarily targeting persons that are not "similarly identified" by creed. In determining that Christian Horizons was not primarily engaged in serving the interests of persons identified by their creed, the Tribunal distinguished Christian Horizons from other religious institutions that qualified for the exemption in previous cases:

...Christian Horizons' witnesses were clear that it does not attempt to proselytize or engage in the religious indoctrination of residents. Unlike the schools in Caldwell and Garrod, Christian Horizons is not a religious institution whose purpose is to "form the hearts and minds" of its residents in the ways of faith of the organization.²⁷

Although these comments, by inference, suggests that an organization whose primary purpose is to proselytize individuals outside of the organization's religion will qualify for the s. 24(1)(a) exemption, this was not made as explicit in the decision as it could have been. However, the logic of what the decision does say by inference in this regard makes sense.

Interestingly, the adjudicator interpreted s. 24(1)(a) as requiring organizations such as Christian Horizons to provide services to persons who are adherents to its faith beliefs.²⁸ However, the language of s. 24(1)(a) requires that organizations be "primarily engaged in serving the interests of persons similarly identified…" [emphasis added]. This raises the question of whether a faith-based organization that exists primarily to assist persons not similarly identified, regardless of creed - such as soup kitchens, humanitarian organizations, etc. - would qualify for the exemption, on the basis that it is engaging in such activities on behalf of, and in order to serve the interests of, its own members and not the interests of the recipients of the services, per se. For example, would a faith-based organization consisting of members who are committed to alleviating poverty as a practical manifestation of their Christian faith not be "primarily engaged in serving the interests of [its members]" by providing food and shelter to the poor, even though the recipients of such services may not be "similarly identified"?

This interpretation of s. 24(1)(a) is consistent, in its result, with the adjudicator's comments discussed above, which suggest that a faith-based organization that is primarily engaged in proselytizing or educating persons who do not adhere to its religion can still meet the criteria of the s. 24(1)(a) exemption. Although such an organization is primarily providing services to non-members, it is doing so on behalf of its membership as a manifestation of their religious beliefs.

Finally, to qualify for the s. 24(1)(a) exemption, an organization must show that its restriction in employment is a reasonable and bona fide qualification related to the nature of the job. If an organization wishes to employ only persons who adhere to a specific statement of faith or code of conduct, it will need to carefully examine whether such requirement is "in fact reasonably necessary or whether the employment could be performed without the discriminatory restrictions."²⁹ The answer to this question will depend on "the objects of the organization, the nature of the services being provided, and the duties of the particular positions". In Christian Horizons, the adjudicator found that:

…Christian Horizons' purpose, and the service it provides, is not religious education and indoctrination. The primary role of a support worker is not to help all residents to adopt a Christian way of life, or to carry out a mission of salvation, or to convert residents to the faith beliefs of the organization. While some residents may come from Christian families and the families chose Christian Horizons because of the Christian home environment, there is no evidence that the persons who receive services from Christian Horizons, as a whole, come from the community of co-religionists, or that they seek placement with the organization to further religious education and formation. As I have discussed above, the mission of Christian Horizons is to provide residential care and support to persons who have developmental disabilities.³⁰

The above quote suggests that an organization which has as its purpose "religious education and indoctrination" and employs persons to "help [others] to adopt a Christian way of life, or to carry out a mission of salvation, or to convert [others] to the faith beliefs of the organization" would meet the fourth criteria under the s. 24(1)(a) exemption. As such, an organization should ensure that its objects, services, and the duties of its employees are carefully defined and relate to the restriction being imposed, such as the requirement that all employees adhere to a statement of faith or a code of conduct.

2. Poisoned Work Environment Issues:

In relation to the adjudicator's comments on a poisoned work environment, charities must be careful to ensure that they do not create or permit an environment in which rumors and discriminatory attitudes are allowed to pervade the workplace. The adjudicator was especially critical of the offer made by a Christian Horizons employee to provide Ms. Heintz with counseling intended to effect her "restoration", calling it "profoundly disrespectful and oppressive."³¹ He also referred to the fact that an investigation by Christian Horizons into allegations that Ms. Heintz was abusive toward residents was "biased and tainted by discrimination."³² In addition, Christian Horizons was rebuked by the adjudicator for allowing rumors and attitudes to "poison" the workplace, to the detriment of Ms. Heintz. As a result, charities need to be proactive to ensure that these sorts of elements that result in creating a negative work environment do not exist, and that all employees are treated with respect and dignity, even in their dismissal.

One aspect of the decision that is particularly unclear relates to the suggestions made by the adjudicator that the Morality and Lifestyle Statement itself, as well as Christian Horizons' theology of sexuality, were themselves causes of the poisoned work environment:

[Christian Horizons'] policy, based on the belief that homosexuality was unnatural and immoral, engendered fear, ignorance, hatred and suspicion. It sent the message to employees that gays and lesbians were not equal members of the workplace community. There was no effective process and no training to respond to or prevent the likely consequences of these beliefs and policies.³³

Earlier in the decision, the adjudicator commented on Christian Horizons' beliefs that a "normal sexuality … is the male/female relationship":

A workplace where the above beliefs form the fundamental, core ethic that all employees are required to live out on a daily basis runs a serious risk of being a poisoned work environment. It may be that…this belief is not a knee jerk reaction and lies at the center of the theology of individuals who identify as Evangelical Christians. But employers in Ontario are not allowed to permit, let alone foster work environments in which these attitudes are acted out.³⁴

As a result of these comments it is uncertain in what circumstances a code of conduct can make value based statements in reference to sexual orientation, if at all. Is it still possible for a code of conduct, worded differently than the one in the Christian Horizons decision, to be acceptable under the Code, if the organization in question otherwise meets the stringent criteria of the s. 24(1)(a) exemption? Or will all codes of conduct or statements of faith that make reference to sexual orientation, no matter how respectfully worded, automatically be deemed as "engender[ing] fear, ignorance, hatred and suspicion" and creating a poisoned work environment? If that is the case, then what would be the extent of this limitation on the s. 24(1)(a) exemption, and what basis would there be to override the statutory exemption with a concept not drawn directly from the Code itself? The adjudicator does not reference specific legal authority in his decision to justify that the existence of a poisoned work environment is a violation of the Code, even where s. 24(1)(a) is found to otherwise apply. It is hoped that these issues will be addressed, and clarified, on appeal.³⁵

In the meantime, the question remains whether organizations in Ontario that fall within the exemption of s. 24(1)(a) of the Code can still implement codes of conduct for their employees that violate s. 5(1) of the Code with respect to sexual orientation. Although the adjudicator's comments might be interpreted as suggesting this approach, it is more likely that organizations can still implement such codes of conduct where the test under s. 24(1)(a), as discussed above, is met. To conclude otherwise would render s. 24(1)(a) essentially meaningless. However, in light of the adjudicator's comments, organizations will need to ensure that their code of conduct's language is respectful and appropriate, and that it is not implemented in a way that creates a poisoned work environment.

D. CONCLUSION

The Christian Horizons decision is a lengthy and complicated ruling involving a number of issues that will be subject to further review by Ontario's Divisional Court of the Superior Court of Justice on appeal. As such, it will be necessary to wait until the decision of the appeal court is available before being able to provide more determinative comments on the issues raised in this Bulletin.

Endnotes:

¹ 2008 HRTO 22
² Ontario Human Rights Commission, Press Release, "Tribunal Rules on Employee Lifestyle and Morality Statement" (25 April 2008), online: http://www.ohrc.on.ca/en/resources/news/heintzvhorizons.
³ Para. 4.
⁴ Paras. 27-28.
⁵ Para. 27.
⁶ R.S.O. 1990, c. H.19.
⁷ Para. 90.
⁸ Para 115.
⁹ Para. 140.
¹⁰ Para. 153.
¹¹ Ibid.
¹² Para. 155.
¹³ Para. 180.
¹⁴ Para. 176.
¹⁵ Para. 191.
¹⁶ Para. 204.
¹⁷ Para. 205.
¹⁸ Para. 244.
¹⁹ Para. 286.
²⁰ Para. 286.
²¹ Para. 153.
²² Para. 159.
²³ Para. 158.
²⁴ Para. 151.
²⁵ Ibid.
²⁶ See para. 151.
²⁷ Para. 144.
²⁸ See, for example, para. 152.
²⁹ Para 161.
³⁰ Para. 191.
³¹ Para. 209.
³² Para. 230.
³³ Para. 256.
³⁴ Para. 236.
³⁵ Among the grounds of appeal listed in Christian Horizons' Notice of Appeal, dated May 8, 2008, are "[t]he Tribunal erred in holding that Christian Horizons did not satisfy the requirements of clause 24(1)(a) of the Human Rights Code and thus was not entitled to the protection of that clause" and "[t]he Tribunal erred in interpreting clause 24(1)(a) of the Human Rights Code in a manner inconsistent with the freedom of conscience and religion guaranteed by subsection 2(a) of the Canadian Charter of Rights and Freedoms."