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In speaking to employers, and particularly to human resources professionals, I often hear how challenging they find it to accommodate their employees’ needs as they relate to creed, both because of the sensitive nature of discussions around religion and the uniqueness of each employee’s genuinely held beliefs. A recent decision by the Ontario Superior Court of Justice (the “Court”), which considers whether creed can refer to a system of political opinion, is likely to further complicate things for employers.
The ground of creed in the Ontario Human Rights Code (the “Code”) is often treated synonymously by employers with religion. In its 1996 Policy on Creed and the Accommodation of Religious Observances, the Ontario Human Rights Commission defined creed as follows:
“Creed is interpreted to mean “religious creed” or “religion”. It is defined as a professed system and confession of faith, including both beliefs and observances or worship. A belief in a God or gods, or a single supreme being or deity is not a requisite.
Religion is broadly accepted by the OHRC to include, for example, non-deistic bodies of faith, such as the spiritual faiths/practices of aboriginal cultures, as well as bona fide newer religions (assessed on a case by case basis).”
On its website, the Commission writes, “The Court of Appeal for Ontario has found that political opinions are generally not considered a creed under the Code .”(Jazairi v. Ontario Human Rights Commission).
In its 1999 decision in Jazairi, the Ontario Court of Appeal found that the complainant’s views relating to the conflict between Palestine and Israel did not amount to a creed. The Court did not, however, conclude that political opinion could never amount to a creed. Rather, the Court of Appeal concluded that it was not being asked to answer the question of whether a political perspective that is made up of a recognizable cohesive belief system or structure might constitute a creed.
Recently, an employer sought to rely on the decision in Jazairi to argue that political opinion falls outside the definition of creed, and therefore outside the scope of the Code. An employee, Mr. Al-Dandachi, participated in a radio interview in which he expressed his views relating to the military conflict in Syria. Less than two weeks after the interview, his employment was terminated. Mr. Al-Dandachi sued his employer for wrongful dismissal and claimed damages for a breach of the Code based on the grounds of place of origin and creed. In his statement of claim, Mr. Al-Dandachi tied his beliefs on the conflict to his being a Syrian-Canadian and a Muslim.
In its decision in Al-Dandachi v. SNC – Lavalin Inc., the Court noted that the Court of Appeal in Jazairi left open the question of whether or not a system of political opinion could amount to creed. The Court considered the nature of Mr. Al-Dandachi’s allegations and found it was unable to conclude that his views and opinions could not amount to a creed.
Although the decision in Al-Dandachi did not conclude that the employee was terminated on the basis of creed, it did indicate that such an interpretation of creed might be possible. It is interesting that this decision arrives at a time when the Commission is in the process of updating its policy relating to creed. While its previous policy states, “Creed does not include secular, moral or ethical beliefs or political convictions,” I wonder if the Commission will use this update to further explore the relationship between creed and political beliefs, and possibly push for a broader interpretation of the ground.