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By Jim Coggins LAWYERS are poring over a May 14 legal decision, endeavoring to understand its implications for Christian charities. In the Heintz v. Christian Horizons case, the Superior Court of Ontario's Divisional Court upheld the principle that religious charities can require their employees to share the charities' beliefs. However, the court also ruled that the charity in question had no right to fire the employee who initiated the case. The court decision overturned much of a 2008 Ontario Human Rights Tribunal (OHRT) decision. The case had been brought to the OHRT by Connie Heintz, who left the faith-based ministry Christian Horizons (CH) in 2000. CH employs some 2,500 people to provide housing, care and support to more than 1,400 developmentally disabled individuals in over 180 residential homes across Ontario. The organization required its employees to sign a Statement of Faith as well as a Lifestyle and Morality Policy. The lifestyle policy required employees to abstain from extra-marital affairs, pre-marital sex, homosexual relationships, pornography and the endorsement of alcohol or tobacco, among other things. Heintz signed the documents when she was hired in 1995 -- but later entered a lesbian relationship. The OHRT ruled in 2008 that because CH was serving the general public and not just Christians, it could not hire only Christians or require its employees to sign the lifestyle agreement. CH appealed that ruling to the Divisional Court. Because this case would set a precedent for other Canadian social and outreach ministries, a number of Christian agencies joined in the appeal: The Evangelical Fellowship of Canada (EFC), the Canadian Council of Christian Charities (CCCC) and the Ontario Conference of Catholic Bishops. In a news release, Don Hutchinson, EFC's general legal counsel, called the Divisional Court's decision "a significant victory for faith-based charities across Canada" since they "may largely continue to require employee compliance with both statements of faith, and lifestyle and morality policies." A news release from the CCCC stated the court decision is also significant because it overturned another part of the OHRT ruling. The latter had required CH to provide human rights training for all employees, and to review all of its employment policies in consultation with the OHRT and the complainant to make sure they guard against discrimination and harassment. Again, the CCCC stated this ruling would have set a precedent that other charities would have had to follow. However, the court also ruled that CH had no clear justification for requiring Ms. Heintz to adhere to a faith or lifestyle commitment. This is because she was a support worker performing chores such as bathing and feeding people and not, in the court's words, "actively involved in converting the residents to, or instilling in them, a belief in Evangelical Christianity." This is why the National Post called the decision "murky," since it "cleared up the general principle of the rights of faith-based charities . . . but clarified little about how that should work in practice." Cynthia Petersen, a lawyer for the gay rights group Egale, told the National Post this aspect of the decision represented a victory for gay rights. She suggested that in Christian charities, Christian faith and practice are only required for "people in the top ranks, who set the tone for the group." |
However, John Pellowe, CCCC's chief executive officer, told CC.com this aspect of the decision is puzzling since the judges recognized that "the entire ethos of Christianity permeated the work" of Christian Horizons, and this is what "led to such good quality service." Adrian Miedema, a lawyer for CH, told the National Post the court recognized that "Christian Horizons . . . would not be doing this work of assisting people . . . but for the religious calling of those involved." Pellowe told CC.com it was not immediately clear whether the court was saying that Ms. Heintz's faith or only her sexuality was irrelevant to her duties. If the court was saying sexual practice is not connected to Christian faith, that would be what EFC lawyer Peter Jervis called defining faith according to "secular criteria," Pellowe suggested. Another irony in the decision, Pellowe said, is its focus on the lifestyle policy. CH created its lifestyle policy as a result of an earlier 1992 OHRT decision in the case of a lesbian couple who had worked at the charity. In that case, the OHRT ruled that CH could require faith and lifestyle commitments from its employees -- but only if it spelled out those commitments at the time of hiring. While Christian Horizons receives almost all of its annual $63 million funding from the Ontario government (a fact mentioned frequently in public discussion), none of the parties in the case considered that relevant. Pellowe stated that this is because the case involves fundamental human rights, and those rights are applicable in all situations -- and not just when employees are paid by government. The Divisional Court decision is also not definitive for a couple of other reasons, Pellowe suggested. The first is that, while it sets a precedent that will be considered by courts and human rights tribunals across Canada, it is technically based on Ontario Human Rights legislation -- which contains specific protections for religious rights that might not be spelled out in the same way in other human rights codes. The other reason is that the three main parties in the case, Connie Heintz, CH and the OHRT, may appeal the decision to the Supreme Court of Canada. If that happens, the Divisional Court decision would be held in abeyance until the Supreme Court made its decision. Pellowe added that the court decision did not address a fundamental issue: "the balancing of competing rights" in the Canadian Charter of Rights and Freedoms. That issue, he suggested, will have to be decided in some future court case. In the meantime, Pellowe told the National Post, "We have a team of lawyers" looking at the current decision and "trying to figure it out." Once the appeal period has passed, the CCCC will be issuing guidelines for charities to follow in abiding by the decision. Don Hutchinson has issued a detailed statement on the EFC blog Activate, explaining many of the technicalities and implications of the Divisional Court decision. See earlier stories: • Ontario bishops intervene in Christian Horizons case: http://www.canadianchristianity.com/nationalupdates/090122ontario.html. • On the (un)Christian horizon: http://www.canadianchristianity.com/bc/bccn/0608/11horizon.html. • Human rights tribunal forces Christian organization to ditch morality code http://www.canadianchristianity.com/nationalupdates/080508rights.html. • "Religious Orientation" before the Ontario Courts: http://www.evangelicalfellowship.ca/NetCommunity/Page.aspx?pid=7091. May 20/2010 | ||
