The Bottom Line: CSJ Applicants Successful, Awarded Costs

Two religious organizations – BCM International and Redeemer University – successfully challenged their 2019 Canada Summer Jobs rejections. In both cases the Federal Court held that the government process was unfair to the applicant organizations and that alone would have been sufficient to find in their favour. But the Court went further in the BCM decision and found the denial unreasonable. Because the issue could be decided on procedural grounds, the Court did not make a decision on the various Charter claims.

In terms of a remedy, there was no option to send the applications back for re-assessment. Instead, the Court issued declarations that the government breached its procedural fairness obligations and awarded costs to the applicants.

The Procedure Was Unfair

An administrative decision maker has a duty of fairness. What fairness demands will depend on the facts of specific circumstances. Procedural fairness ensures that decisions are made in a fair and open procedure, knowing what the issue is (e.g. “the case to be met”), with an opportunity for participation – providing evidence, putting forward views – and having it all properly considered by the decision maker.

In both cases, the procedure was unfair. BCM was not given notice of the issues and was not given a chance to provide evidence. It could not have known it was going to be deemed “ineligible because it allegedly discriminates on the basis of prohibited grounds.”

Similarly, Redeemer was not given notice of the case to be met or an opportunity to provide relevant evidence. Nothing in the Minister’s letter shows the Minister believed Redeemer unlawfully discriminated or that the Minister had any issue with Redeemer’s policies. The Court held that the letter “was not … a genuine attempt to seek clarification or further information. […] Sending the letter was simply going through the motions to appear to be fair, not an exercise in fairness itself.”

The BCM Denial Was Unreasonable

For BCM, the Minister never actually assessed whether the project discriminated contrary to applicable laws. In “an after-the-fact attempt at justifying the decision” the government contended that a 2018 BCM summer camp staff application asked employees to divulge their beliefs about sexuality. According to the government, this was sufficient to raise concerns about BCM discriminating.

The Court disagreed. It found there was nothing in the record to show this was the basis for excluding BCM. And if there had been, it would “clearly engage BCM’s Charter interests.”  The decision did not show how BCM purportedly discriminates and it was unreasonable for the Minister to reject its application.

The Charter Claims

Even though the Charter issues weren’t addressed, one of the two judgments made an important comment: just because it wasn’t necessary to make a decision on the Charter questions, the government “should take no comfort from this conclusion.” Why? There was no evidence that they had “made any overt attempt” to consider the organization’s religious freedom, freedom of expression or freedom of association. The Court gave what appears to be a caution to the government, noting that

…should it be established in another case that officials discriminated in administering funding programs against faith-based institutions because of the sincerely held religious beliefs of their community, a finding of a Charter violation may well result. Such institutions must be treated not just with procedural fairness but also with respect for their Charter-protected rights.

This pair of decisions brings great news for religious CSJ applicants. The Court set out how procedural fairness standards apply in the CSJ context to ensure fair and reasonable decisions moving forward. This requires transparency in the decision-making process, an opportunity to provide relevant evidence, and a decision that shows the government actually assessed whether projects discriminate based on applicable laws by clearly indicating how the applicant discriminates.

CSJ Concerns Vindicated

CCCC is pleased to see this positive outcome. After many years of speaking out on CSJ issues through blogs, op-eds, academic papers, meeting with political leaders, and coordinating with other organizations to collectively advocate, CCCC welcomes these court decisions. They affirm the CSJ application process was, in these cases, unfair. The decisions bring a measure of justice and vindication to religious CSJ applicants and sets clear expectations for fairness in the future.

Both decisions are available online: BCM International Canada Inc. v Canada (Employment, Workforce Development and Labour), 2021 FC 687 and Redeemer University College v Canada (Employment, Workforce Development and Labour), 2021 FC 686.

We’ll post more on the decisions and their significance – stay tuned!

The post A Win for Religious Organizations Challenging Canada Summer Job Rejections appeared first on CCCC Blogs.

So what would you say if government officials required you to teach your children that the Easter Bunny was real, and that Santa Claus was too? If you did not confirm these “truths,” the government would remove your children from your home? Sounds crazy, doesn’t it?

As of 2018, Canada now has on its historical, legal record a case where a judge had to rebuke Hamilton’s Children’s Aid Society for removing two young girls from their foster home because the parents refused, based upon their religious beliefs, to say that the Easter Bunny and Santa were real.

Justice A. J. Goodman of the Ontario Superior Court of Justice must have thought it surreal as he read the facts before him. The young couple, Derek and Frances Baars, are Protestants of the Free Reformed community. They do not practice Christmas and Easter as most Canadians do. However, they said that they were willing to have an Easter egg hunt with their two foster girls; they just would not tell them that the Easter Bunny hid the chocolate. They also said they would give Christmas presents, but would not say that Santa came down the chimney with his reindeer on the roof. Their point: they do not, and would not, lie. It is a religious thing. Honesty and integrity form who they are, just as they attend church every Sunday and say prayers at every meal.

​​The social workers, however, argued​ ​that ​the Baars were ​neither supporting the position of the agency nor meeting the needs of the girls. ​In effect, ​they argued that believing in the Easter Bunny ​was a necessity for children.

Justice Goodman recognized that freedom of religion, as understood in Canada, allows individuals to embrace, openly declare, and manifest their beliefs. Citizens are free to live their lives in conformity with their beliefs. The state, on the other hand, is to be neutral on matters of religion. This fundamental right was violated when the social workers insisted that the Baars tell the girls a fictitious creature was real. Incredibly, one of the workers insisted that by making that requirement she was not asking the Baars “to lie or to betray their faith,” but rather was “concerned that the idea of the Easter Bunny would be destroyed for these young children” if the parents insisted that “the Easter Bunny was not real”.

Justice Goodman didn’t buy that characterization. He said he was “more than satisfied that the Society’s actions interfered substantially with the Baars’ religious beliefs.”  He was also mindful that it was not up to the social worker to try to convince the Baars that endorsing the Easter Bunny was not a violation of religious beliefs. To the Baars, it was. The judge noted that the Baars “were constantly promoting the children’s wellbeing, and ensured that they were safe, secure, and happy.” Tragically, when balancing the Easter Bunny against a stable, safe environment for these two children who already had suffered more turmoil than they deserved, “the Society,” said Goodman, “very clearly chose the Easter Bunny.”

Reading through the decision, I could not help but struggle with my emotions. I was tempted to laugh at the sheer stupidity of the case. But my mirth was overshadowed by the sombre realization that two precious young girls were forcibly taken from a couple who loved and cared for them. Taken because the state – in its great wisdom – could not understand the values of a Christian couple who placed truth and integrity above materialism.

The moral of this story is simple. Our government does not understand religion. It cannot comprehend it. It does not respect it. But what it does understand is power: power to do what it wants for whatever reason it desires. For that very reason we can be thankful that we have a system of justice with a Charter and independent judges who take seriously their role in protecting citizens from a wayward state.

While we can applaud this just and well-reasoned judgement, the fact remains that two little girls needlessly suffered the loss of a loving and secure foster home. We can only hope they are now with a family as tender and truthful as they once had. The Baars have also since moved on – to Alberta, apparently – but they still suffer the painful “what ifs”. All because the state demanded they lie about the Easter Bunny. This, in 2018. In the democratic and diverse nation of Canada!

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