Recent judgment leaves door open on question of whether political opinion is a creed
It is often said discrimination is illegal, but in reality this is too simplistic a proposition. Human rights legislation, such as the Ontario Human Rights Code, does not make discrimination per se illegal. Rather, it prohibits defined categories of discrimination (known as prohibited grounds). Many are familiar with some of the prohibited grounds of discrimination such as disability and gender. Other grounds are less well known, with one of the least familiar being “creed.”
The meaning of creed was reviewed by the Ontario Court of Appeal in Jazairi v. Ontario (Human Rights Commission), where a university professor who was an Arab Muslim claimed he was denied a promotion because of his views on the Israeli-Palestinian conflict. The court found discrimination against an employee on the grounds of the mere expression of a political opinion does not constitute a prohibited ground of discrimination under the code.
“Even if it can be said that political opinion may constitute creed, there is no evidence that the applicant's views amount to a creed. I am not prepared to find that the applicant's political views, no doubt shared by others in society, amount to a creed merely because the applicant is from Iraq. On the facts in this case, the applicant's submission that political and religious commitments may be so aligned as to constitute ‘creed’ is not established. Whether a political perspective, such as communism, that is made up of a recognizable cohesive belief system or structure may constitute a ‘creed’ is not at issue and is not being determined,” said the court
This decision was not particularly helpful as a guide for future situations, because it only held what creed was not, with no attempt made to define what creed actually was. Since that time and until very recently there appear not to have been any cases decided in Ontario courts involving the distinction between discrimination based on creed (illegal) and discrimination based on mere political opinion (permissible).
Is political belief a component of creed?
In November 2012, creed received judicial consideration in the Ontario Superior Court of Justice in Al-Dandachi v. SNC-Lavalin Inc. SNC-Lavalin had been sued for wrongful dismissal, but the former employee’s claim also included the following allegations:
“The plaintiff states that he believes in peace, unity, tolerance and the absence of compulsion within religion as aspects of his sincerely held religious beliefs as a Muslim. The plaintiff states that it is a fundamental aspect of his faith that there should be no compulsion in religion and, as such, as part of his Muslim faith, he believes that there should be a separation between religion and the state.
“The plaintiff opposes the armed conflict in Syria as a Syrian Canadian and Muslim who believes in peace, unity, tolerance and the absence of compulsion in religion, because he views the armed conflict as a movement by religious extremists who seek to lead Syria towards religious extremism. As a Muslim and as a Syrian Canadian whose identity is tied to Syria, the plaintiff has strong views opposing religious extremism and religious control over Syria.”
The employee’s claim went on to allege his termination of employment arose as a consequence of a radio interview in which he expressed his views concerning the military conflict in Syria. He claimed his termination constituted illegal discrimination, contrary to the code. SNC-Lavalin brought a preliminary motion to strike these allegations from the claim on the basis the plaintiff’s characterization of his beliefs was merely an expression of his political views, not protected in the code. Due to court procedural rules, SNC-Lavalin was not permitted at this stage of the lawsuit to contest whether the alleged reason for termination was accurately stated.
The judge dismissed SNC-Lavalin’s motion, commenting on the earlier Court of Appeal decision: “The Court of Appeal expressly left open the question whether or not some other system of political opinion could amount to a creed. I am unable to conclude that the views and opinions of the plaintiff could not amount to a creed. That issue, in my respectful view, cannot be determined on a pleadings motion, especially having regard to the allegations contained in the amended statement of claim.”
Caution to employers
It has been a long-held axiom the right to terminate employment is the prerogative of the employer. And while the SNC-Lavalin case did not determine the reason for termination alleged by the employee would actually constitute discrimination on the basis of creed, there is a caution to employers.
The Jazairi and SNC-Lavalin decisions both leave open the potential that political belief may fall within the definition of creed as interpreted under human rights legislation. In so doing, the decisions are examples of legislated protections increasingly restricting the ambit of the exercise of an employer’s discretion to terminate employment.
Is political belief a component of creed? The answer is not yet clear. What is clear is courts are prepared to entertain the concept. As such, employers are well-advised to carefully consider whether a particular decision to terminate employment might be vulnerable to this evolving genre of legal challenge.
For more information see:
•Jazairi v. Ontario (Human Rights Commission), 1999 CarswellOnt 2045 (Ont. C.A.).
•Al-Dandachi v. SNC-Lavalin Inc., 2012 CarswellOnt 14471 (Ont. S.C.J.).
