NOTE: The referenced Exhibits are not included.

ONTARIO HUMAN RIGHTS COMMISSION SUBMISSION
for August 20, 1999

COMPLAINANT: WAYNE A. COPPIN
RESPONDENT: CITY OF KINGSTON SOCIAL SERVICES OFFICE
FILE NO: 21061999CWOS-493PQN
STAFF: CHERRIE WOODS

TABLE OF CONTENTS
I NATURE OF THE COMPLAINT
1. Summary of complaint
2. The facts

II THE ISSUES
3. Summary of issues
4. Section 1 (service, creed)
5. Section 11 (accomodation)
6. Section 14 (special programs)
7. Section 34 (decision to not deal with complaint)
8. Section 47 (primacy of the Code)

III THE LAW AND ARGUMENT
1. OW is a service covered under the Code)
2. The Complainant's Christian beliefs are a matter of "creed"
3. There is no defence under s.11(1)(a) or (b) or 14

IV REMEDY SOUGHT
1. Specific damages
2. OW exemption

PART I- NATURE OF THE COMPLAINT

1. Summary of the Complaint

The City of Kingston cancelled the Complainant's social assistance because the complainant believes that the requirement to sign the Ontario Works participation agreement is discriminatory on the basis of creed. The Complainant refuses to sign the participation agreement form. The Complainant believes that he has suffered harassment by the City of Kingston Social Services because of his Christian beliefs.

2. The Facts

The Complainant is a Christian with sincere and deeply held Christian religious beliefs. The City of Kingston Social Services has been aware of the Complainant's Christian beliefs since 1996.

The Complainant is currently in receipt of general assistance benefits under the Ontario Works Act, 1997, SO 1997 c. 25, Schedule A (OWA)

The Complainant has met or exceeded all OWA requirements. These requirements include (but are not limited to): search for self-sufficient employment, job-specific study, skills training and upgrading, job search, voluntary employment, reports and all requests for supporting documentation.

The Complainant, although in full compliance with all requirements of the OWA participation agreement demanded to date, has refused to affix a signature to the participation agreement form. The Complainant has orally expressed the religious grounds supporting the refusal to sign to the current worker assigned the file as well as to the previous two workers assigned the case file.

The Complainant learned (serendipitously) on April 28, 1999 that benefits were being terminated, effective May 1, 1999 for failure to sign the participation agreement form (Exhibit 1). The Complainant pointed out orally that this was illegal under the OWA. The Complainant's May 1999 benefits were then restored.

The Complainant next received a letter dated May 3, 1999 (Exhibit 2 ) indicating:

"Effective May 31, 1999 your assistance will be CANCELLED. This
decision was made under REGULATIONS 18 and 20 of the Ontario Works Act
and Regulations."

The Complainant requested an Internal Review in a letter dated May 13, 1999 (Exhibit 3) as provided for under the OWA.

The decision to cancel the Complainant's application for assistance was confirmed upon completion of an Internal review. This decision is documented in a letter dated May 27, 1999 (Exhibit 4).

The Complainant has filed an Appeal with the Social Benefits Tribunal. The
receipt of the Appeal has been acknowledged in a letter dated June 7, 1999
(Exhibit 5). This letter also confirms an order that Kingston Social Services provide the Complainant with interim assistance pending the outcome of the Social Benefits Tribunal (SBT) appeal hearing.

PART II- THE ISSUES

3. Summary of the Issues

The Complainant contends that The City of Kingston Social Services administrators erred in interpreting the regulation such that its application offends the Human Rights Code RSO 1990, c. H-19, ss.1, 9 and 11 and fails to take into account s.47(2) of the Code.

4. Section 1 (service, creed)

Section 1 of the Human Rights Code RSO 1990, c. H-19 (Code) states:

"Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, marital status, family status or handicap."

Section 9 states:

"No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part."

The Complainant contends that:

1. Social assistance (in this case delivered under the OWA) is a "service" and thus covered under the Code.
 2. The Complainant's Christian beliefs are a matter of "creed".

5. Section 11 (accomodation)

Section 11 states:

"11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

 (A) the requirement, qualification or factor is reasonable and bona
fide in the circumstances; or

 (B) it is declared in this Act, other than in section 17, that to
discriminate because of such ground is not an infringement of a right.

 (2) The Commission, the board of inquiry or a court shall not find that a
requirement, qualification or factor is reasonable and bona fide in the
circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any."

The Complainant contends that s.11(b) can be disposed of briefly: there is no relevant defence set out in the Code.

The Complainant contends that s.11(a) is also not problematic. The onus on the respondent to establish that a practice is "reasonable and bona fide"  is quite substantial and are generally canvassed in Human Rights in  Ontario p. 200-215.

But even if it were not, the requirement of accommodation has not remotely been met in this case.

The jurisprudence on "bona fide" can be summarized most briefly. The Supreme Court of Canada has interpreted the term as denoting both an honest subjective belief that an impugned requirement is appropriate, and a substantial element of objective reasonableness.

The definition of "reasonable" is more complicated. In essence, the Respondent must show that the practice is substantially connected to the operation of the OW program, if not actually necessary. The Supreme Court of Canada has confirmed that there must be objectively verifiable evidence, linked to actual requirements, to satisfy this test.

The real problem from the point of view of the OWA Administrator is that the requirement cannot, per s.11(2), be found to be "reasonable and bona fide", without evidence that "the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any." The relevant question here is "why would waiving the signing requirement create undue hardship?".

6. Section 14 (special programs)

Section 14 states:

"(1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under part I."

The Complainant contends that courts have consistently refused to find that social assistance programs fit under the exception provided by section 15(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 (the Charter), s.15, which is similarly worded.

7. Section 34 (decision to not deal with complaint)

Section 34 states:

"(1)(b) Where it appears to the Commission that the subject matter of the
complaint is trivial, frivolous, vexatious or made in bad faith, the Commission may, in its discretion, decide not to deal with the complaint."

The Complainant contends that the complaint is very meritorious given the
controversy surrounding Ontario Works and the requirement that participants engage in compulsory slave labour. All major Christian sects in this province have opposed the Ontario Works program, invariably citing the humiliating and coercive demands placed upon the recipients of social assistance.

The Complainant's beliefs expressed in this complaint are sincerely held and profoundly felt. The complaint is not motivated by political circumstances or agenda. The fate of the Complainant's immortal soul is not a trivial or frivolous matter. In light of the known grave consequences to the Complainant, the refusal to sign the Ontario Works form cannot reasonably be interpreted as vexatious.

Since the Complainant's religious convictions have been well known to Kingston Social Services for at least three years, this complaint cannot reasonably be interpreted as being made fraudulently or in bad faith.

7. Section 47 (primacy of the Code)

Section 47 of the Code states:

"(1) This Act binds the Crown and every agency of the Crown.
 (2) Where a provision in an Act or regulation purports to require or
authorize conduct that is in contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act."

Section 47(2) of the Code is clearly framed as an override clause for application when an Act or regulation appears to require or authorize discriminatory conduct.

The Complainant contends that Section 47(2) obliges the Administrator to proceed as if the offending provision were not in the regulation.

III. THE LAW AND ARGUMENT

1. Social assistance (in this case delivered under the OWA) is a
"service" and thus covered under the Code.

There has been no Ontario decision which specifically establishes that social assistance is a "service", however, there is a very good argument that it is included. SARB M-02-21-31 (Nov. 7, 1994; Cardinal) [CRO# SA/D-1925] implicitly makes this finding. The treatment of welfare for human rights purposes in other jurisdictions has not been uniform, however this is not surprising given that most human rights legislation in other Canadian jurisdictions, unlike the Ontario legislation, qualifies the term "service" with the phrase "available to the public". The Ontario legislation has a much broader scope.

Even under narrower legislative provisions than the one found in the Ontario Code, British Columbia Boards of Inquiry and the Saskatchewan Court of Appeal have found that welfare benefits constitute a service for the purpose of human rights legislation.

The British Columbia Human Rights Act, SBC 1984, c.22, s.3 states:

"No person shall

 (A) deny to a person or class of persons any accomodation, service or
facility customarily available to the public, or

 (B) discriminate against a person or class of persons any
accomodation, service or facility customarily available to the public, ..."

The BC cases are BC Human Rights Coalition v BC Ministry of Human
Resources, (1987) 8 CHRR D/4275 (BC Bd. Of Inq.), and Chipperfield v BC Soc. Services (No. 3) (1998) 33 CHRR D/340.

The Saskatchewan Human Rights Code SS 1989, c. 23 as amended states at
s.12(1):

"No person, directly or indirectly, alone or with another, by himself or by the interposition of another, shall:

 (A) deny to any person or class of persons the accomodation, services
or facilities to which the public is customarily admitted or which are offered to the public;

 (B) discriminate against any person or class of persons the
accommodation, services or facilities to which the public is customarily admitted or which are offered to the public; ..."

The Saskatchewan Court of Appeal found that welfare is a service protected by that province's human rights legislation in Chambers v Saskatchewan Department of Social Services (1987), 8 CHRR D/413; 8 CHRR D/4240 (Sask. QB); 9 CHRR D/5181 (Sask. CA) [CRO MSJ # 220]. It overturned a decision of the Queen's Bench confirming a Board of Inquiry ruling. The Board of Inquiry had held that welfare was not available to the public and therefore not a protected "service".

There are also some relevant rulings in the context of other social legislation.

The Canadian Human Rights Act RSC 1985, c. H-6 s.5 states:

"It is discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public

 (A) to deny, or to deny access to, any such good, service, facility or
accommodation to any individual, or

 (B) to differentiate adversely in relation to any individual on a
prohibited ground of discrimination."

A Canadian Human Rights Tribunal has held that unemployment insurance is a
service under the Canadian Human Rights Act, Corlis v CEIC (1987), 8 CHRR,
D/4146 (Can).

In Druken v CEIC (1987), 8 CHRR, D/4379 (FCA) [CRO MSJ # 119] the Federal
Court of Appeal noted at p. D/5361 (para 40143):

"While they were raised in the Attorney General's factum, arguments that the provision of unemployment insurance benefits is not a service customarily available to the general public... were not pursued. ... [T]he applicant appears to have found persuasive the dictum expressed in Singh (Re) ... in which it was said by Hugessan J., delivering the judgement of this court, at p. 12:

 "It is indeed arguable that the qualifying words in section 5 provision
of ... services ... customarily available to the general public can only serve a limiting role in the context of services rendered by private persons or bodies; that, by definition, services rendered by public servants at public expense are services to the public and therefore fall within the ambit of section 5 ...'"

An Ontario Board of Inquiry in Roberts v Ministry of Health (1989), 1 CHRR, D/6353 (Ont) that financial assistance under the Assistive Devices Program was a service for the purpose of the Code. The decision went on to find that there was a defence under s.14, but was later reversed on appeal on that point.

Human Rights in Ontario, (J. Keene; Toronto: Carswell, 1992, 2d ed), pages 15-29 examines the scope of "services, goods and facilities". As noted therein, services relate to the offering or provision of something. The Oxford English Dictionary definition of "service" includes "benefit conferred on or exertion made on behalf of someone".

The list contained on page 26 of Human Rights in Ontario indicates that boards and courts have found such things as education, insurance and foster care to be services.

Various human rights tribunals have relied on a quote by the Federal Court of Appeal in interpreting the term "services". In Canada(Attorney General) v Rosin (1991) FC 391 Mr. Justice Linden states at 398:

 "In order for a service to be publicly available, it is not required that all members of the public have access to it. It is enough for a segment of the public to be able to avail themselves of the service or facility. Requiring that certain qualifications or conditions be met does not rob an activity of its public character. The cases have shown that public' means that which is not private', leaving outside the scope of the legislation very few activities indeed."

2. The Complainant's Christian beliefs are a matter of "creed".

Creed is not defined in the Code, but there is no doubt that Christianity does qualify.

Relevant jurisprudence is abstracted at pages 62-73 of Human Rights in Ontario.

The cases noted make it clear that it is immaterial, in human rights law, that the Complainant could be described as unusually observant of his religious obligations. Courts and tribunals have interpreted religious obligations very subjectively, to encompass situations in which the individual feels required to do more than some proponents of the same religion might deem necessary.

The Complainant has been consistent in actively opposing any requirement that conflicts with his sincere and profoundly held Christian beliefs. Indeed, the action which has necessitated this complaint is entirely consistent with the position of every major religion in Canada.

There is no logical inconsistency in the Claimant's position.

3. There is no defence under s.11(1)(a) or (b) or 14.

s.11(b) can be disposed of briefly: there is no relevant defence set out in the Code.

s.11(a) is also not problematic. The onus on the respondent to establish that a practice is "reasonable and bona fide" is quite substantial and are generally canvassed in Human Rights in Ontario p. 200-215. But even if it were not, the requirement of accomodation has not remotely been met in this case.

The jurisprudence on "bona fide" can be summarized most briefly. The Supreme Court of Canada has interpreted the term as denoting both an honest subjective belief that an impugned requirement is appropriate, and a substantial element of objective reasonableness.

The definition of "reasonable" is more complicated. In essence, the Respondent must show that the practice is substantially connected to the operation of the OW program, if not actually necessary. The Supreme Court of Canada has confirmed that there must be objectively verifiable evidence, linked to actual requirements, to satisfy this test.

The real problem from the point of view of the OWA Administrator is that the requirement cannot, per s.11(2), be found to be "reasonable and bona fide", without evidence that "the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any." The relevant question here is "why would waiving the signing requirement create undue hardship?".

s.14: the defence would be that OW is exempt from scrutiny as a "special
program".

While it might be argued that OW is a "program designed to relieve hardship or economic disadvantage", it is notable that lower courts have refused to find that social assistance programs fit under the exception provided by section 15(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 (the Charter), s.15, which is similarly worded.

Even it were established that OW was a s.14 program, the restriction in this case would arguably not be justified. A case in which an exclusionary government program was successfully challenged despite acceptance as a s.14 program is Roberts v Ministry of Health (1989), 1 CHRR, D/6353 (Ont), aff'd (1991), 14 CHRR, D/1 (Ont. Div. Ct) rev'd Aug. 16, 1994: (1994) 19 OR (3d) 387 (Ont. CA) [CRO MSJ # 363]. Mr. Roberts had been denied funding for a prosthetic device under the Assistive Devices Program. The program was limited to those under 23 years of age. Mr. Roberts was 73 years old. A board of inquiry found that the age restriction did prima facie constitute discrimination under s.1 of the Human Rights Code. However, the board held that "special programs" which are protected by s.14 do not have to incorporate all disadvantaged groups equally within their terms of reference. The Divisional Court upheld this decision, but Mr. Roberts succeeded in the Court of Appeal.

The board held that the special program clause at issue was much broader than many affirmative action clauses in other jurisdictions. The board interpreted the section as providing a four part disjunctive standard, and held that, if a program fell into one of the parts, that there was no need to look at the objectives of the program or at its efficacy in achieving those objectives.

The Divisional Court upheld this decision in a terse ruling. However, in the Court of Appeal decision, Weiler JA, for herself and Houlden JA, held that the Divisional Court erred in law in construing s.14 as having as its only purpose the exemption of special programs from the application of the Code. Finlayson JA dissented.

The majority of the Court of Appeal held that s.14 was designed to protect
affirmative action programs and has two purposes: "to assist disadvantaged
persons to achieve or attempt to achieve equal opportunity (reduce disadvantage) and to contribute to the elimination of the infringement of rights under Part I (eliminate disadvantage)" (at 398). Later in the decision, Weiler JA referred to the "dual purpose" of s.14 as "protection of affirmative action programs and promotion of substantive equality" (at 400).

In regard to the extent to which special programs can be reviewed, the Ministry of Health had successfully argued in the tribunals that, once the criteria of bona fides and design were met, a special program was protected from any further review.

However, the majority of the Court of Appeal disagreed with this approach. Weiler JA specifically noted that to interpret the provision as exempting special programs from review in all circumstances would not be in accord with the promotion of substantive equality. Thus:

"... exclusion of an individual from a program designed to respond to needs that individual does not have, does not constitute reviewable discrimination. This case does not involve a challenge to the ... ADP program by a member from a historically privileged group or from a disadvantaged person whose disability the program was not designed to benefit. Consequently, the exemptive purpose of s.14(1) is not invoked... We are concerned in this case with a discriminatory refusal of assistance to a person with the specific disability that special program was designed to assist." (at 401)

The Court went on to reject the Ministry's second argument against review; that, pursuant to s.14(5), special programs undertaken by the Crown are exempt from review. The Court pointed out that this provision only prevented the Commission from inquiring into and making a declaratory order in respect of the Crown's special programs, a process which it may undertake in respect of private sector programs. There was no prohibition against the Commission appointing a board of inquiry in respect of a Crown special program.

Once the reviewability of the program was established, the next question was against what norms the review should be done. In respect of this issue, the parties and the Court were without guidance from the legislation. In respect of discrimination on the ground of age in the provision of services, the Code provides no defence save one, s.15, which allows for preferential treatment for those aged 65 and over.

There is no mention in the decision of any one of the appellants or interveners having taking the position that, (as with discrimination on the basis of creed in this case) there being no relevant exception, the program should be considered to violate the Code once a prima facie case of age discrimination had been proven.

The Court adverts only to two competing arguments: by the appellants that "there must be a rational connection between the enumerated ground of discrimination and the purpose of a special program in order for the discrimination to be tolerated", and by the respondent Ministry that "only the program need be rational; the ground of discrimination need not be" (at 404). Weiler JA accepted the appellant's position. The evidence showed, and the respondent conceded, that there was no rational connection between the age restriction in the Assistive Devices Program and the disadvantage the program seeks to alleviate. The Court issued an order striking out the age restriction, and allowing the matter to be remitted to the board of inquiry in respect of any other remedies requested.

Mavis Baker v. Minister of Citizenship and Immigration (1999) SCC 25823 and the implications for this complaint:

The Court found that administrative decision- makers must act in accordance with values articulated in international human rights treaties that Canada has ratified and that the immigration officer failed to consider the "special importance [of] protections for children and childhood" recognized in these treaties. While a two person minority decision rejected the majority's use of international human rights
treaties because it would, indirectly, give force and effect within the domestic legal system to international obligations without incorporation by parliament or legislatures, both the majority and minority decisions emphasized that international law will be "a critical influence on the interpretation of the scope of the rights included in the Charter [of Rights and Freedoms.]"

Professor Craig Scott, international law expert and lawyer for the Charter
Committee on Poverty Issues in the case, has noted that: "One way or the other, decision-makers will have to give greater consideration to the values and principles of international human rights law, either through the vehicle of the Charter or through their independent effect on statutory interpretation."

"While the Court has limited its discussion in this case to children's rights, it seems to me that the Court is very judiciously giving the government a chance to get its house in order in incorporating international human rights into decision-making - not just in immigration matters but in all areas touched on in international human rights," Professor Scott said.

The pending Social Benefits Tribunal hearing and the implications for this
complaint:

Preliminary statistics released as a result of a FIPPA request to the SBT by HALCO on behalf of the Steering Committee on Social Assistance reveal the following for the period June 1, 1998 (the day in which the SBT came into existence) and April 30, 1999:

	The SBT received 4975 appeals, of which 3071 (61%) were ODSP appeals.

	The SBT closed 1882 files. Of these 766 were closed after a hearing and a
decision was rendered. In other words, 1116 (59% of all files closed) were
closed without a hearing. No additional information was provided as to the
reason why these files were closed.

	Of the 766 cases which proceeded to decision, 322 (42%) were ODSP
appeals. Thus ODSP appeals were significantly more likely to be resolved
without hearing than OW appeals during the same period.

	Of these 766, only 257 (33%) of all appeals (ODSP & OW) were granted.
Of the 322 ODSP decisions rendered, 148 (45%) were granted and the
Director's decision rescinded. The remaining 444 OW decisions therefore
had a success rate of only 25%.

	Although the success rate in OW appeals was 25%, the success rate in cases
submitted by clinics to the CRO has been 60%. This suggests that the
success rate for unrepresented appellants is actually lower than 25%

The SBT, in their letter dated July 14, 1999, has indicated that:

"Section 67(2) of the Ontario Works Act, 1997, states that the Tribunal shall not inquire into or make a decision concerning:

(a) the constitutional validity of a provision of an Act or regulation, or
(b) the legislative authority for a regulation made under an Act"

Clearly point (a) above does not need to be addressed unless this complaint ends up before a Court.

However, point (b) above seems (in the Complainant's layman opinion) to be sufficiently vague in its wording to justify a potential willful failure by the SBT to properly consider arguments which rely upon the Human Rights Code.

In light of point (b) above, the Complainant is prepared to argue:

I. The administrator erred in interpreting the regulation such that its application offends the Human Rights Code RSO 1990, c. H-19, ss.1, 9 and 11, and fails to take into account s.47(2) of the Code. In spite of the OWA, 1997 S.67(2), it is clear that anti-discrimination legislation enjoys special status as public policy. This has been upheld most recently (and dramatically) in Mavis Baker v. Minister of Citizenship and Immigration (1999) where the Supreme Court found that administrative decision- makers must act in accordance with values articulated in international human rights treaties that Canada has ratified. Previous Supreme Court decisions have approved the use of human rights legislation as an aid to the interpretation of other legislation. It also appears that human rights legislation is expected to prevail when legislation (or an instrument such as a trust document or a collective agreement) is silent on a point or conflicts with human rights legislation.

Section 47 of the Code states:

(1) This Act binds the Crown and every agency of the Crown.
(2) Where a provision in an Act or regulation purports to require or authorize conduct that is in contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

Section 47(2) of the Code is clearly framed as an override clause for application when an Act or regulation appears to require or authorize discriminatory conduct.

While there is some jurisprudence on the paramountcy of the Code generally, there has been only one [reported] human rights board of inquiry that discusses s.47:

"O'Neill and Coles v Ministry of Transportation (1994) 27 CHRR D/405: involved a regulatory requirement that a man submit a Safety Standards certificate when adding his partner of the same sex to registered ownership of a vehicle, per the requirements of OR 744/82, s.2(1). The Ministry refused to apply the exception (s.2(2)) that requirement could be waived for spouses. The Regulation adverted (s.2(5)) to the Family Law Act re definition of "spouse".

"The Board held that the Ministry's action was discriminatory without
recourse to s.15 of the Charter, (despite the Divisional Court ruling in Clinton v Ontario Blue Cross (1994) 21 CHRR D/342. The Board's reasoning on this point was not clearly stated, but evidently s.25 of the Code (which had been at issue in Clinton) was not called into play, since this was not an insurance matter."

The Board went on to find at 13:

"By virtue of s.47(2) of the Code, it is no defence that the Ministry... action was authorized or even required by s.2 of Regulation 744/82."

In regard to the award, the Board stated, at 14:

"Commission counsel also suggested that I declare that s.2(5) of Regulation 628/90... was contrary to the... Code. I agree with the respondent's counsel that I do not have jurisdiction to make a general declaration that a law conflicts with either the ... Code or the Charter..."

However, the Board ordered the Ministry to cease applying the impugned
regulation to same-sex couples, under the Code's general award power (s.41(1)).

Although the Canadian Human Rights Act has no paramountcy clause, the
following federal jurisprudence is interesting:

Dickson, CJ in dissent on another point in Bhinder v Canadian National Railway (1985) 2 SCR 561, seemed to contemplate that the Act would take precedence over an employment policy mandated by another federal statute. At D/3100, he concluded that:

"... if the policy of an employer is discriminatory under the Act, it will not be rendered non-discriminatory simply by reason of there being a statutory requirement mandating that policy. In effect, the tribunal held that federal legislation is inoperative to the extent that it conflicts with the Canadian Human Rights Act."

Tribunals and courts have construed the federal legislation almost as if a
paramountcy clause existed. The Tribunal in Druken v CEIC (1987), 8 CHRR
D/4379 found that certain provisions of the Unemployment Insurance Act were discriminatory because they denied unemployment insurance to women who were employed by their husbands. The Tribunal ordered that CEIC cease to apply the offending provisions. The Tribunal's authority to make the order was challenged, on the ground that the Human Rights Act was not paramount over other Acts of Parliament, and that the Tribunal had no jurisdiction to make an order that effectively rendered legislation inoperative. The Tribunal's decision was upheld by the Federal Court of Appeal at (1988), 9 CHRR D/5359. The Court found that the offending provisions of the Unemployment Insurance Act were repealed "by implication upon the Human Rights Act coming into force", and held that the Tribunal's power, under s.41 of the Act, to make an order "to prevent the same or
a similar practice from occurring in the future", justified the order.

The Federal Court of Appeal in Druken considered the Supreme Court of Canada judgement in Winnipeg School Division No. 1 v. Craton (1985). The Federal Court of Appeal stated at D/5363:

"The rule appears to be that when human rights legislation and other
legislation cannot stand together, a subsequent inconsistent enactment, unless clearly stated to create an exception to it, is not to be construed as repealing the subsisting human rights legislation. On the other hand, when human rights legislation is the subsequent enactment, it does repeal by implication the other inconsistent legislation."

The Court agreed that a tribunal had no power to make a general declaration of invalidity, but distinguished such a declaration from an order not to apply specific legislative provisions.

IV. REMEDY SOUGHT

The Complainant has incurred the following direct costs resulting from this complaint:

Photocopying $5.98
Ribbon/Paper $28.73
Courier $10.33

It is estimated that 60 hours have been spent in research and preparation of this document.

Other costs are much more difficult to quantify. For example, the OWA has
decreed interim assistance payments are overpayments, applied to future assistance payments, if the Complainant's fundamental human rights are not upheld.

The damage done to the Complainant's health is even more difficult to quantify.

Increased costs have left less available income for basic sustenance. The
psychological damage resulting from the humiliation and stress, including the necessity for public appearances and media exposure, has been considerable and horrific. It could literally be years before the Complainant fully recovers physically and psychologically from the ordeal.

Objectively quantifying the damage done to the Complainant as a result of
systemic and repeated failures to accommodate sincere and deeply held Christian convictions simply cannot be done.

The Complainant's request is modest and reasonable. The Commission is respectfully asked to reaffirm the right to be free from discrimination and harassment on the basis of creed by ordering an exemption from the requirement to sign the Ontario Works participation agreement. This specific accomodation results in no hardship to any of the parties involved in this complaint.

Since the Complainant's voluntary efforts have to date exceeded the explicit de facto requirements of the City of Kingston Social Services, the Commission is also respectfully requested to instruct Kingston Social Services to accommodate the Christian beliefs of the Complainant and cease all (and future) coercive demands upon the Complainant, including any future assignment of so called "workfare employment placements".

Further, the Complainant respectfully requests that the Commission make a general declaration that workfare is discriminatory. Alternatively, the Complainant respectfully requests that the Commission order an inquiry into the OWA and workfare.