The Ontario Human Rights Code protects individuals from discrimination in various contexts, including employment, accommodation and the provision of goods and services. While most of the 14 grounds enumerated in the code are self-explanatory, the recent case of a vegan firefighter who has alleged discrimination on the basis of “creed” for the failure to accommodate his diet raises questions about the intended scope of this protected ground, and whether it may be interpreted to accommodate his claim.
The subject of Knauff’s application was a 10-day deployment to William’s Lake, British Columbia, where forest fires had resulted in evacuation of the town. Knauff alleges that over the course of his physically demanding deployment, there were few well-balanced, complete, or non-contaminated meals available to him as a vegan. He describes the failure to accommodate his practice of ethical veganism as being discriminatory on the basis of creed, and describes his practice of veganism as being driven by “ethical, not dietary” factors, and constituting a “belief system” that “extend(s) the philosophy of non-consumption of animal products to all other areas of [his] life” and “goes to the very core of [his] identity.”
What is Creed?
Each province has its own human rights legislation which sets out grounds of protection. While the laws in provinces like B.C. and Alberta protect against discrimination on the basis of religion and political belief, the Ontario Human Rights Code refers instead to protection on the basis of “creed,” a term that it does not define. The Ontario Human Rights Commission’s 1996 Policy on Creed and the Accommodation of Religious Observances explains that the term refers to “a religious creed or religion, a professed system and confession of faith, including both beliefs and observances or worship,” including non-deistic bodies of faith and bona fide “newer religions.” However, in its policy update nearly 20 years later, the OHRC clarified that creed could “also include non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life.”
In assessing whether an individual will be subject to the code’s protections on the basis of creed, the tribunal and courts have established the following three-part test:
a. whether the practice or belief is objectively required by the religion;
b. whether the applicant subjectively believes that it is required by the religion; and
c. whether the applicant 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.
Knauff’s application will not be the first time the tribunal has considered whether the protections afforded by the code apply to non-religious beliefs. Other cases in which the tribunal has conducted an analysis of particular worldviews include a 2011 case in which a practitioner of falun gong alleged discrimination on the basis of creed. In that case, the tribunal relied heavily on expert evidence to conclude that the practice was a “new religion” comprised of a comprehensive system of beliefs, observances, and worship. Similarly, the tribunal concluded in 2013 that protection against discrimination because of religion “[…] must include protection of the applicants’ belief that there is no deity, a profoundly personal belief about the lack of existence of a divine or higher order of being that governs their perception of themselves, humankind, and the world,” thereby agreeing that atheism was subject to the protections afforded under the term “creed.” By contrast, in a case in which an applicant alleged discrimination on the basis of Rastafarianism, the tribunal concluded that he had failed to demonstrate a link between the stated belief and his faith, noting in particular the absence of “textual or documentary evidence” or oral testimony confirming a nexus between the belief in question and the tradition he subscribed to. Specific political beliefs have been found not to constitute “cohesive belief system or structure,” and accordingly, they have been excluded from the practices and beliefs that are subject to protection under the scope of “creed.”
Accommodation: Not Unlimited
The jurisprudence and policy guidelines on creed suggests that while “creed” was initially intended to protect religious minorities, the term could conceivably be expanded to include adherents to any given worldview so long as they meet the three-part test requiring sincere belief. Accordingly, it is our opinion that ethical veganism, as conceptualized by Knauff in his application, could very well be found to constitute creed.
That said the outcome of this application is by no means clear. Even if the tribunal finds that Knauff’s ethical veganism is a creed within the meaning of the code, the ministry’s duty to accommodate is not infinite, but rather, to the point of undue hardship, which is measured by cost (including sources of external funding) as well as health and safety. An employer may be able to demonstrate adequate accommodation if they can show that one of these thresholds has been met, even if they have not conceded to the particular requests of the applicant.
Much will depend, in our view, on the evidence led by the ministry with respect to a) whether they provided adequate vegan meals to Knauff, and b) the financial implications of Knauff’s request for “well-balanced, complete, or non-contaminated meals.” If the ministry can demonstrate that they discharged their duty to accommodate Knauff, then even a finding that ethical veganism constitutes “creed” will not necessarily result in an order for damages or any other remedies that the tribunal could award.
Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.
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