Updated policy on creed in Ontario sparks queries from interest groups

Will changes open floodgates for employee demands?
By Liz Bernier
|Canadian HR Reporter|Last Updated: 04/01/2016

The concept of “creed” made headlines recently after the Ontario Human Rights Commission (OHRC) updated its Policy on Preventing Discrimination Based on Creed to reflect issues such as changes to case law and beliefs that don’t fit into the traditional definitions of a religion. 

The first creed policy was written in 1996, according to Renu Mandhane, chief commissioner of the OHRC in Toronto. 

“Ontario has changed a lot in that time. We’ve seen many people who are discriminated against based on their religion, especially many allegations of competing rights and also just a more secular society,” she said. 

The commission decided to update the policy in part to have a more inclusive understanding of what’s protected under creed, she said. This includes diverse religions, of course, but also indigenous spirituality as well as atheism and other non-religious belief systems.

Change with times

The update to the policy is important because as society or social norms evolve, the law has to keep up, said Stuart Rudner, founding partner at Rudner MacDonald in Toronto. 

“It wasn’t that long ago that we were talking about child-care obligations and how that’s recognized as being part of family status, so that has to be accommodated,” he said, adding human rights legislation is sometimes amended but, more often than not, it’s just reinterpreted or applied in new ways. And the new creed policy reflects that, he said. 

“This idea of creed has always been understood to mean religion but there’s nothing anywhere that says that. And, of course, the policy statement from the human rights commission makes clear that although it often refers to religion, it’s not limited to religion,” he said. “It’s not unlike expanding disability to include medical marijuana; it’s not unlike expanding family status to include child-care obligations.”

But with the updated policy, what groups might qualify — and lead to employees looking for accommodation? Animal Justice Canada, for one, has been engaged in the dialogue. 

“In recognition of the fact that we’re becoming an increasingly secular society, and people are saying that they are less concerned with religion than in the past, it’s appropriate that secular beliefs are taking the place of religion, and we should protect those beliefs as well if they’re important to a person,” said Camille Labchuk, executive director of Animal Justice Canada in Cambridge, Mass. 

But ethical veganism isn’t mentioned in the policy and the OHRC said it does not state one way or the other whether ethical veganism is a creed. 

“Importantly, the code doesn’t define creed and we also don’t define creed in the policy, because we think in many ways it has to be a living definition — something that the Human Rights Tribunal of Ontario needs to give flesh to,” said Mandhane. 

“The considerations or hallmarks of a creed, in our opinion, are that it’s sincerely, freely and deeply held; that it’s integrally linked to a person’s identity… it’s a comprehensive and overarching system of belief that governs one’s conduct; that it addresses ultimate questions of human existence, the purpose of life; and has some nexus of connection to an organization or community.” 

Employer impact

There may be human rights cases around non-traditional belief systems, but it hardly means the floodgates will open for employees to claim anything and everything as a “creed,” said Rudner. 

“(The OHRC) starts off by saying the code doesn’t define creed. But they do need to give some criteria based on case law,” he said. 

“It can’t just be any belief, it has to be integrally linked to the person’s identity or self-definition, and it’s got to be a comprehensive or overarching system of beliefs that governs one’s conduct… So it’s got to be broader than just a belief, it’s got to be something that encompasses all or almost all aspects of their life.”

At the same time, the OHRC has made clear that creed is not to be looked at objectively — it’s more of a subjective belief that is sincere and deeply held, said Rudner. 

“I think the point they’re trying to make is it’s not just a trivial belief, it’s not just a belief of convenience. And I think this has been tested a few times over the years where you have someone who wants accommodations — for example, days off for religious reasons — and occasionally employers have challenged the validity (of that),” he said. 

“It’s obviously very difficult because even in a traditional religion, there are varying levels of observance, there are varying levels of interpretation, and if you were to put 10 priests or 10 rabbis in a room and ask them to interpret the obligations, you’d probably get 10 different answers.”

If a belief system checks off all the bullet points in the policy, the tribunal will probably designate it as a creed, said Rudner.

“If it’s a sincerely held belief and it meets all the other criteria set out in the policy, then likely it will qualify as a creed. And if it does, of course, you’re entitled to be free from discrimination and you’re entitled to accommodation.”

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