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Is being bathed by a woman a legitimate creed-based requirement? Ontario Human Rights Tribunal requires evidence from Rastafarian

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Last year I blogged about a decision of the Human Rights Tribunal of Ontario that considered the definition and scope of the ground of creed. While the decision laid out a clear analytical framework, the facts of the case were unique and of such specificity that it might have been difficult to see how the framework would be applied to a more traditional scenario dealing with the provision of services. Recently, Tribunal Vice-Chair Mark Hart applied the framework to just such a scenario in his decision in Barker v. St. Elizabeth Health Care, 2016 HRTO 94.

The facts of the case are relatively simple and were described by the Tribunal as follows:

…an allegation that the respondent failed to accommodate the applicant’s needs related to his creed when they sent male personal support workers (“PSW”s) to the applicant’s home commencing sometime in or after January 2014. The applicant states that he is an adherent of the Rastafarian faith, and that Rastafarianism strictly prohibits a man to bathe a Rastaman, or a Rastaman’s Queen (his wife or partner) or a Rastaman’s children, boy or girl.

The Tribunal accepted that Rastafarianism was a creed within the meaning of the Code, and also that the applicant’s personal and deeply-held belief and conviction that he does not want to be bathed by a man was sincerely held. The Tribunal then noted that the question for consideration was a determination as to whether there is sufficient evidence that “the applicant’s belief and conviction has a ‘nexus with religion’ or is ‘rooted in religion’, as required in order to invoke the protection of the Code.”

Specifically, the Tribunal reiterated that to engage the protection of the Code, “an applicant must demonstrate that he or she sincerely believes that a certain practice or belief is experientially religious in nature in that it is either:

  1. objectively required by the religion, or
  2. that he or she subjectively believes that it is required by the religion, or
  3. that he or she sincerely believes that the practice engenders a personal, subjective connection to the divine or to the subject or object of his or her spiritual faith, and as long as that practice has a nexus with religion.”

The Tribunal’s decision notes that Mr. Barker was advised that he would need to give evidence as to how his PSW requirement was related to any tenet of his religion, and would have the opportunity to call witnesses in support of his position.

The Tribunal summarized his evidence:

With regard to the prohibition against a man bathing another man, the applicant testified that he was unable to find this prohibition set out in writing anywhere. However, he states that this was the way he grew up and this was the way that Rastafarians taught him. He states that he first learned this teaching in Jamaica, although he cannot recall when.

When asked if this prohibition is connected to any underlying doctrine or basis in the Rastafarian religion, the applicant responded that he did not know how to answer that question. When pressed about this on cross-examination, the applicant referenced the principle that a Rastaman’s body is his temple and stated that no man could bathe a Rastaman’s temple.

Mr. Barker did not call any fellow Rastafarians to testify, stating the proceeding was too formal, and did not obtain a letter from the Rastafarian church in time for the hearing because they move at a “snail’s pace”.

The Tribunal acknowledged that the Supreme Court of Canada stated in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 SCR 551 that “expert evidence to demonstrate that a claimant’s belief is consistent with the practices and beliefs of other adherents of the faith is not required or necessary”, but said that statement was made in a decision in which a nexus with religion was not in question. The Tribunal wrote that when the nexus to religion is at issue, some objective evidence is required. In the present case, in the absence of such objective evidence, or even any explanation from the applicant as to what “tenet, principle or basis in the Rastafarian faith” informs his belief, the Tribunal found the evidence insufficient to root Mr. Barker’s belief in religion and dismissed his claim.

Had the Tribunal found that Mr. Barker’s belief was rooted in religion, it would have been interesting to see whether the Tribunal would have engaged in a competing rights analysis that sought to balance Mr. Barker’s rights with the rights of the PSW to not be denied work on the basis of his sex. Considering the guidance offered by the Ontario Human Rights Commission’s Policy on Competing Rights, I imagine that the degree of interference on Mr. Barker of having his religious rights violated, particularly in the context of vulnerability and privacy that exists for a patient being bathed by another, would have been seen to be greater than the impact on the PSW of being assigned to another patient.  

For employers, the framework and analysis utilized by Vice-Chair Hart provides assistance on how to address employee claims related to creed, particularly requests for accommodation, and specifically when the nexus between the request and the employee’s religious beliefs is not apparent.

Cory Boyd

About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.