Human Rights Grounds: Creed or Religious Beliefs

The applicant must establish that he holds a sincere religious conviction. The person making this assertion need not prove “the conformity of that belief with established religious doctrine”. ¹

It must be shown that:

1. The applicant has has a practice of belief which is connected to a religion which requires a certain standard of conduct, which is “objectively or subjectively obligatory or customary” or generally engenders a personal connection with the “divine”;
2. It is not necessary that the particular practice or belief is required by “official religious dogma” or conforms to the beliefs of the religion’s officialdom; ²
3. And that such belief be sincerely held.³

The interference must be “non-trivial”.

This also includes the creed of atheism. ⁴

There must also be established, apart from the above, an apparent interference with the observance of the relevant religious practice.⁵

This issue was reviewed recently in a tribunal decision ⁶in which the applicant had applied for a position requiring security clearance. He was asked for his views on Canada’s international involvement and replied that he did not endorse military action due to his religion, being Roman Catholic. He stated his view that war and killing were wrong and for this reason could not support Canada’s war efforts. The tribunal noted that the applicant was asked to elaborate on his answer and declined to do so. No affirmative rebuttal evidence was called.

Liability was found resulting in an award of $5,000. The claim for lost income did not succeed as the applicant did not show that there was an otherwise “serious possibility” that he would have passed the first stage interview. 60% of the applicants fail and of those that do pass the first round, 33% of the remainder of 40% obtain the top secret clearance, a decision which did not lie with the respondent.

A similar fact situation arose due to the request made by the applicant to be given one hour to pray on Friday afternoons as required by his Muslim faith. ⁷

It was argued and rejected that such a requirement ought to have been made known to the employer at the time of the interview for the position.

The religious belief must of course be accommodated by the employer, both procedurally and substantively to the point of undue hardship. ⁸

An example of the employer succeeding in establishing that it procedurally and substantially accommodated an employer’s religious practices was found in a case in which the employee insisted upon his right to preach his Christian religion to fellow and other workers during working hours. The employer terminated and also agreed to reinstate as long as the preaching ceased. The complaint was dismissed.⁹

Freedom of religion may be limited when such a right may cause harm to or interfere with the rights of others. The Supreme Court has clearly recognized that freedom of religion can be limited when a person’s freedom to act in accordance with his or her beliefs may cause harm to or interfere with the rights of others. ¹⁰

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1. Syndicat Northcrest v Amselem SCC
2. See for example Loomba v Home Depot in which the issue was raised of a Sheikh wearing a turban. It need not be an official mandate of the relevant faith.
3. R.C. v District School Board of Niagara 
4. R.C. v Niagara
5. S. L. v. Commission scolaire des Chênes [2012] 1 S.C.R. 235,
6. Cybulski v Canadian Corp of Commissioners
7. Qureshi v G4S Security Services
8. Ontario (Human Rights Commission) v. Simpsons Sears Ltd. (“O’Malley”)1985 SCC; Central Okanagan School District No. 23 v. Renaud 1992 SCC; and Chambly (Commission Scholaire Regionale) c. Bergevin 1994 SCC;  British Columbia (Public Service Employees Relations Commission) v. British Columbia Government Service Employees Union (B.C.G.S.E.U.) (Meirion)  1999 SCC
9. Fiesen v Fisher Bay Seafood
10.   R. v. Big M Drug Mart Ltd.; and Syndicat Northcrest v. Amselem, 2004 SCC