Boreal

Teach Your Children Well

The First Accommodation

The Constitution of 1982 may boast that “Canada is founded upon principles that recognize the supremacy of God”, and the first freedom guaranteed under the Canadian Charter of Rights and Freedoms may be religion, but, perhaps surprisingly, it was not the Constitution or the Charter on which the Supreme Court based its watershed decision giving revealed truths (immutable facts communicated to a mortal by a god) precedence over man-made laws.

The precedent setting case was one alleging discrimination in the workplace.

The decision in Ontario Human Rights Commission and Theresa O'Malley vs. Simpsons-Sears Limited is cited by the Consultation Commission on Accommodation Practices Related to Cultural Difference, better known as the Bouchard-Taylor Commission on Reasonable Accommodations, as the watershed ruling which opened the floodgates to religious “accommodation” in Canadian law.

O'Malley vs. Simpsons-Sears was not a Charter challenge but a challenge under the Ontario Human Rights Code.

The Supreme Court of Canada had to decide whether the retailer, Simpson-Sears was guilty of discrimination based on creed contrary to Ontario Human Rights Code R.S.O. 1980, c. 340, s. 4(1)(g).

O'Malley vs. Simpsons-Sears was also the first significant victory for the Ontario Human Rights Commission (OHRC).

The OHRC, which continues to champion religious rights is both revered and reviled. To those who would see religious belief and traditions given the force of law, it is a godsend; to writer George Jonas, it is the Ontario Medieval Rights Commission intent on turning back the clock on human rights, especially those of women. His views being prejudice perhaps by the OHRC's attempt at doing for Muslims what it did for Christians and Jews beginning with Ontario Human Rights Commission and Theresa O'Malley vs. Simpsons-Sears.

Ms. O'Malley had joined Simpsons-Sears in 1971. As a condition of full-time employment she was required to work Friday evenings on a rotating basis, and two Saturdays out of three.

In 1978, Ms. O'Malley became a member of the Seventh-day Adventist Church. Seventh-day Adventists must strictly observe the Sabbath from sundown Friday to sundown Saturday.

As a result of her newfound-faith, Ms. O'Malley could no longer work on Friday evenings and Saturdays, the busiest time of the week for most retailers, and Simpsons-Sears was no exception.

To accommodate her religious beliefs Simpsons-Sears offered her part-time employment and told her that if a permanent position became available which did not require her to work on Friday evenings and Saturdays, and for which she was qualified, she would be considered for the job.

The Federal Court of Appeal considered this more than a sufficient attempt to accommodate Ms. O'Malley religious beliefs.

The Court, cognizant that Simpsons-Sear could not completely satisfy Ms. O'Malley’s demands without discriminating against employees who did not share her beliefs and would find their working conditions adversely affected, accepted Simpson-Sears’ sensible fairness argument that “An employment rule, honestly made for sound economic and business reasons and equally applicable to all” was not discriminatory.

Not so, said the Supreme Court of Canada in overturning the Federal Court ruling.

The Supreme Court of Canada in its decision in favour of the Ontario Human Rights Commission and Ms O'Malley wrote that “… the Court of Appeal, having decided that intentional discrimination had to be shown, did not consider the question of accommodation”.

The fact that Simpson-Sears, in everything it did to be accommodating to Ms. O’Malley, had tried to be fair to all its employees and not discriminate did not matter. It had a duty, according to the Supreme Court of Canada, to accommodate the religious beliefs of Ms. O’Malley even if in seeking to accommodate those beliefs it discriminated against those who did not share them.

This concept of “reasonable accommodation” in the workplace of one group at the expense of another, the Supreme Court of Canada extended to the educational sector in 2006.

The Supreme Court, in Multani v. Commission scolaire Marguerite-Bourgeoys ruled that children could bring concealed weapons to school i.e. a dagger (the kirpan), if it was a religious requirement.

They could do this even if it placed both armed and unarmed children at considerable risk during normal schoolyard confrontations and gave an advantage to the children carrying concealed weapons.

The deliberate discrimination in Canadian law in favour of those who believe in a higher god-given law — for all intent and purpose the meaning of reasonable accommodation — is now understood to apply everywhere in Canadian society from "labour relations, public and private-sector suppliers of goods and services, lawmakers, and regulatory authorities."*

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* Report to the Québec Minister of Education on Integration and Reasonable Accommodation in the Schools (2007).