Question #1
You have asked me to determine whether s. 5 of the Ontario Human Rights Code Prohibits discrimination on the basis of veganism.
Veganism is not explicitly listed as a protected ground in s. 5 of the code but it is likely that a court would interpret it to be protected under the listed ground of creed.
To determine whether veganism can be included within s. 5 we must engage in statutory interpretation. Using Driedger’s Modern Principle to guide statutory interpretation the words of an Act are to be read in their entire context and in their grammatical and ordinary sense in harmony with the scheme, object, and intention of the Act. Likewise, the Supreme Court in British Columbia Human Rights Tribunal v. Schrenk asserted that since the protections afforded by human rights legislation are fundamental to our society, human rights legislation should be interpreted broadly and liberally to achieve their goals. These must both inform our interpretation.
In the ordinary and grammatical sense creed is defined in two ways: 1) it is a brief authoritative formula or religious belief 2) it is a set of fundamental beliefs and or a guiding principle. Based on the first definition, veganism is not a protected ground under s.5 of the Human Rights Code. Veganism is a secular belief system that does not ascribe itself to a divine superhuman or controlling power and therefore is not a religion. Mr. Adams’ relationship with ethical veganism, however, satisfies the second definition of creed. He views veganism as a “sincerely held belief system” that comprises an essential element of his identity. It is such a guiding force in his life that it guides his democratic decisions (who he votes for and which policies he endorses). His commitment to veganism guides his decisions “on a daily, if not hourly basis”, it is a fundamental system of belief for him.
The human rights Commission has stated that the object of the act is “to promote and advance respect for human rights in Ontario, to protect human rights in Ontario and, recognizing that it is in the public interest to do so and that it is the Commission’s duty to protect the public interest, to identify and promote the elimination of discriminatory practices”. The Code is to be inclusive and provide protections for all.
Based on Driedgers’ Principles as well as the Supreme Court in Schrenk the inclusive definition of creed is more harmonious with the goals of the code and if the intention was for creed to include only religious beliefs’ then they would have used the term religion rather than creed. The more inclusive and broad definition is the second definition it is the appropriate definition to be used when determining if a belief is protected under creed. Therefore, veganism is protected under s.5 of the code.
Question #2
S.15 of the Charter protects equality before and under the law. It does not require that the government combat inequalities but that it just must not discriminate. You have asked me to determine if s.15 can provide the basis to expand s.5 to include veganism and it cannot.
S. 15 applies to government action including legislation, it is the legislative Act of the Ontario Human Rights Commission that is the subject of the Charter scrutiny in the case at hand, therefore, s.15 applies. To be successful in a s.15 claim the claimant must demonstrate that the law has a disproportionate effect on the claimant based on their membership in an enumerated or analogous ground. There is no such effect on vegans.
The first step of a s.15 analysis asks whether a law creates a distinction. A distinction in law can arise from a commission or omission, in this case, the omission of veganism as a protected ground is at issue. The distinction between vegan and non-vegan and is based on an analogous ground. To be considered an analogous ground it must be something that is “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs”. Being a pure vegan is a deeply personal characteristic that is only changeable at unacceptable personal costs. For Mr. Adams’ being a vegan is an essential element of his own identity. If he were forced to change to adopt a diet that included eating the product of animals’ he would be changing a key element in his identity.
The second part of the analysis asks whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping. Not all distinctions and differentiations created by law are discriminatory. In the case at bar, the omission does not create or perpetuate an arbitrary disadvantage or stereotype. There is no historical or present disadvantage to vegans as a group or harmful stereotype available in today’s society. It is undeniable that some vegans do experience microaggressions daily, including things such as people calling their food rabbit food. This does not however rise to the level to be considered a stereotype. In Vriend the omission of sexual orientation as a protected ground would have resulted in continued stereotyping and prejudice as the distinction puts down individuals and strengthens and perpetuates the view that the LGBTQ community is less worthy of protection as individuals. Continued omission of veganism would not serve to continue to reinforce negative stereotypes and prejudices as there are none present at the moment. This is not to say that veganism can never be a protected ground under s. 15 of the Charter one day, but at this time the evidence showing prejudice or stereotype is insufficient.
Question #3
Mr. Adams’s employment was terminated because they could not accommodate his diet, his criticisms undermined the morale of the fire service and their relationship with the municipalities and because he had not complied with the residency requirement of living within 10 km of the firehall which potentially invokes his s.2 or s.6 Charter rights. This response will explore those options and determine whether he can challenge his termination on those grounds.
To establish whether there is any basis to challenge this termination, we must first establish whether the Charter applies to the actions of the Fauteux Fire Service (FFS). The Charter applies to parliament, legislatures and, governments themselves but also to matters within the authority of those entities. In order to be considered government for the purposes of the charter, the government must exercise substantial control or it must be governmental by nature. The fire department, which is a private actor, is contracted by the municipality (which is considered to be governmental in nature). Because its actions are controlled by the municipality through the terms of the contract, and it uses the municipalities building the government retains significant control over their operations. Similarly providing emergency services is a governmental activity, and a fire department is fulfilling that service. The FFS is just a vehicle by which the government has chosen to deliver this service. Because it is governmental in nature and is fulfilling a governmental activity the Charter applies to the actions of the FFS.
Next, it must be established whether Mr. Adams has standing. Because Mr. Adams is directly impacted and is the rights-holder he is entitled to institute proceedings to enforce those rights and possesses private interest standing in this case. Since there is standing the next step would be to analyse of each right to see if the charter applies, and if it has been infringed.
S.2(b) of the Charter protects an individuals’ right to freedom of expression. Not allowing Mr. Adams to publicly express his dissatisfaction with the meals provided infringes on this right. Because this is a negative right one must go through the test in Irwin Toy to determine if it has been infringed.
To determine whether there has been a breach of his s.2(b) freedom the individual must first establish that their claim does constitute expression. The complaints to the media about the lack of accommodation for his vegan lifestyle does fall within the scope of freedom of expression and falls within the 3rd category of broad purposes: individual self-fulfillment. An activity is considered to be expressive if it conveys meaning. In the case at hand, the speech is attempting to convey his criticism towards his employer.
Next we must consider whether the method or location of this expression removes the protection. Mr. Adams was expressing his views in a manner that is protected under s.2 of the Charter. He was using the public media in a non-violent way; this is important as there is an internal limit in the legislation on expressions involving violence or threats.
Having found that the speech is protected under s.2(b) it must be established that the government action has infringed in purpose or effect on that protection. A purpose-based infringement looks at whether the government’s purpose is to restrict the content of expression to single out a particular meaning or to control access by others to the meaning or control the ability of the one conveying the meaning to do so. If the government has done so then it is an infringement on their expression. In this case, the government was seeking to supress the information that might be harmful to the morale of the firefighters and the relationship with the municipality. The infringement is purpose-based as the expression was only suppressed because it provided a criticism of the workplace publicly. Had the expression been positive it is unlikely it would have been supressed. This is, therefore, a violation of his freedom of expression. Because there has been a purpose-based infringement, it is not necessary to assess whether there has been an effects-based infringement but rather proceed to an Oakes test to determine if the infringement can be justified.
The first step of the Oakes test looks to consider if there is a pressing and substantial objective to limit that freedom of expression. In this case, the objective is to preserve the morale of the firefighters and the relationship the FFS has with the municipality. This is both a pressing and substantial objective as the morale of the firefighters can have direct consequences on their ability to perform their job, and the relationship with the municipality can impact public perception of the firefighters. The public perception is extremely important as citizens ought to have confidence in the emergency services in their community.
The next step looks to whether the action is rationally connected to the objective. In this case firing him and asking him to stop talking publicly about his criticism is rationally connected to wanting to preserve the moral and relationship. Media outlets voicing his complaints does not look good for the service and undermines the reputation of the fire department and can result in a lack or reduction of confidence the public and the municipality has in their services.
Was the action was minimally impairing. In this case it is. Mr. Adams is still able to talk to friends and family and make complaints to the FFS directly about his dissatisfaction. He was just limited in not being able to talk to the media and other public forums about the issue.
The final step of the Oakes test asks whether firing him is a proportional response. In this case, firing him is proportional as there were no other means available to stop him from harming the morale of the firefighters and the relationship with the municipality. They had tried to accommodate his dietary needs and were unable to reasonably do so to his satisfaction.
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