Date: 20250219

File: 566-02-45130

 

Citation: 2025 FPSLREB 19

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Robert Frankovic

Grievor

 

and

 

TREASURY BOARD

(Department of Transport)

 

Employer

Indexed as

Frankovic v. Treasury Board (Department of Transport)

In the matter of an individual grievance referred to adjudication

Before: Christopher Rootham, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Meghan O’Halloran and Mathieu Delorme, Association of Canadian Financial Officers

For the Employer: Larissa Volinets Schieven, counsel

Decided on the basis of written submissions,
filed July 12, August 27, and September 10 and 24, 2024.

REASONS FOR DECISION

I. Overview

[1] In 2021, the Treasury Board (“the employer”) issued a policy requiring all employees to be vaccinated against COVID-19, subject to accommodation on medical or religious grounds. Robert Frankovic (“the grievor”) requested accommodation based on his creed. The employer denied his request. The grievor grieved that denial and referred the grievance to adjudication.

[2] I have denied the grievance.

[3] The grievor states that taking the COVID-19 vaccine is contrary to his belief system that he calls earth-based spirituality. This case is about two questions: what is the meaning of the term “creed” in the collective agreement applicable to this grievance, and does the grievor’s earth-based spirituality constitute a creed?

[4] I have concluded that the term “creed” in the collective agreement is synonymous with the term “religion”. I have done so for five reasons, which I will expand on in this decision, namely: that is its plain meaning, it is generally used in association with religion, such a definition is consistent with human rights law more broadly, that meaning is consistent with the context of other terms in this collective agreement, and the grievor himself refers to his belief as religious.

[5] I have also concluded that the grievor’s earth-based spirituality is not a religious belief. There is no single definition of religion, and there is no list of necessary or sufficient conditions for a belief to be religious. However, the grievor’s belief is missing two of the most common characteristics of religion: it does not have a Supreme Being or answer fundamental or ultimate questions having to do with deep and imponderable matters, and it is not exercised communally.

[6] Despite being convinced of the sincerity of the grievor’s belief, I have denied the grievance. My reasons follow.

II. General background to the grievance, and the process followed to decide it

[7] The general background to this case is the same as provided by the Federal Public Sector Labour Relations and Employment Board (“the Board”) in Bedirian v. Treasury Board (Department of Foreign Affairs, Trade and Development), 2024 FPSLREB 58 at paras. 5 to 8, and so I will simply repeat it:

[5] On October 6, 2021, the Treasury Board enacted the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (“the Vaccine Policy”). The Vaccine Policy required all employees in the core public administration to be fully vaccinated against COVID-19. Employees who were not fully vaccinated were divided into three categories: partially vaccinated employees (i.e., employees who had received one dose of an authorized vaccine but who had not received a full vaccination series), employees unable to be fully vaccinated, and employees unwilling to be fully vaccinated. The Vaccine Policy defined an employee who was unable to be fully vaccinated as an employee who could not be fully vaccinated “… due to a certified medical contraindication, religion, or any other prohibited ground of discrimination as defined in the Canadian Human Rights Act.” Employees who were unable to be vaccinated were accommodated to the point of undue hardship by teleworking, being assigned alternative duties, mandatory testing for COVID-19, or a combination of those measures.

[6] Employees had until October 29, 2021, to either attest that they had been vaccinated or request accommodation. Employees were given a form to complete to indicate whether they were vaccinated or seeking accommodation. Those employees seeking accommodation on the basis of their religious belief were provided with a blank affidavit in which they could spell out why their religious belief prohibited them from receiving the COVID-19 vaccine. Management was responsible for reviewing the accommodation requests and deciding whether to grant accommodation to applicants on religious grounds. Management could request more information from employees requesting accommodation before making their decisions.

[7] Ultimately, if management decided that an employee had not justified their request for accommodation, the employee was placed on an unpaid leave of absence if they persisted in not being vaccinated.

[8] The employer suspended the Vaccine Policy on June 20, 2022.

 

[8] The process followed to decide this grievance was also the same described in Bedirian, at paras. 9 to 18. In addition, the authorities listed at paragraph 19 of Bedirian were treated as “common authorities” in this grievance, meaning that the parties could rely upon them without providing copies. The parties were free to rely on different authorities, and both of them did. While I have not listed or cited them all, I read them all when preparing these reasons. Finally, the parties also asked me to bifurcate this grievance by determining only whether the grievor was entitled to accommodation and leaving them the opportunity to resolve any dispute over remedy, if necessary, after making that decision.

III. Facts about the grievor

[9] The grievor has been employed continuously with the Department of Transport (more commonly known as Transport Canada) since January 7, 2004. He occupied an FI-02 position until a classification conversion exercise changed his classification to CT-FIN-02 on September 28, 2023.

[10] On October 29, 2021, he submitted a request for accommodation in accordance with the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (“the Vaccine Policy”). As required, he affirmed an affidavit attesting to his beliefs. The substantive text of his affidavit was as follows:

My religious beliefs and spiritual practices revolve around me respecting nature and living a healthy lifestyle and co-existence with nature and its surroundings. I spend a lot of time seeking inner spirit, solace and tranquility at a forest / agricultural property I have in southern Ontario where some of my activities include managing and planting trees. This involves avoiding modern agricultural practices like the use of chemicals developed and promoted by scientists in the agrochemical industry and approved by scientists in Government. Many of these products are later recalled due their detrimental impact on the environment, soil, rivers, eco-system and those who have handled these products.

The Covid-19 Vaccine is not natural and injecting into my body is against my spiritual and religious beliefs. My nature-based spirituality and time spent in nature at my property (and elsewhere) have contributed to me being in a very healthy physical and spiritual state. I regularly surround myself in a natural existence using traditional forms of farming / gardening where the eco system is balanced and where I feel of sense of tranquility and cooperation with nature where I avoid modern day chemical and synthetic health products that many doctors / scientists suggest — which often end up hurting the environment and our health in the long term. By doing this I find my inner spirit, spiritual passion and am living a healthy co-existence with nature and the environment.

My spirituality with nature has been solidified by my visits to many conventional (chemical) farms where you will be hard pressed to find a balanced eco system possessing numerous beautiful creatures like monarch butterflies, dragonflies, bees, hawks (to name a few) all due to the chemical products suggested by our scientists in industry and government (Agriculture & Health Canada departments). This generally accepted modern day “chemical / science “approach has resulted in much of our farming communities having Life-less and Soul-less eco-systems. It is a challenge for me to express the inner spirit peace and tranquility of being in nature where my religious belief and practices in nature involves avoiding the use of government approved chemical products and you are one and co-exist with all living creatures. You need to be there to fully appreciate it! I find much spirituality, solace and good health due to my natural living approach and partnership with nature (Earth based spirituality).

[Sic throughout]

 

[11] The employer denied his request on December 3, 2021. In response, the grievor provided additional information on December 10, 2021, in a two-page letter. That letter (excluding the salutation and date) reads:

…

I would like to provide additional evidence and information related to my religious exemption to the covid vaccine.

My earth based spirituality revolved around me being connected physically and spirituality in nature. This involves respecting nature and all of Earth’s lifeforms, including my body, which involves not altering chemically or genetically the trees, plants that I grow or how I nurture and maintain my own body. I spend a lot of time at my forestry property where I connect to nature by spending a lot of time in the forest, mediating and planting trees and plants, and encouraging a diverse natural eco system. In the forest is where I find most of my spirituality and connect with nature, the earth and myself.

My beliefs surrounding Earth / Nature based spirituality involves me not injecting modern day chemical products which destroy much of the ecosystem and spirit of the land and plants. I apply these believes and principals to my body and physical health i.e. eat healthy and not inject things into my body that alter my immune system or body in any manner.

I have learned and relate these practices from various groups, including some indigenous people and naturalists who live off the land, grow and eat healthy chemical free foods, have strong spirituality with nature and the earth. I have learned much from these people of their spiritual ways with the forest and how healthy one can be physically and spiritually by being connected to the earth and its various life forms.

Injecting something unnatural into my body that alters my immune system is against my earth-based spirituality, just as I won’t inject any chemical product into my trees, plants or ecosystem.

Nature is my inspiration, and my source of meaning and comfort, and where I gain much wisdom from. I, like other Earth based spiritual people find immense spirituality being in nature and by living without products developed by Big Pharma companies, many of which later are proven not to be safe or are experimental. Taking the covid vaccine would be injecting something unnatural into my body altering my immune system and would be an affront to my Earth based spiritually.

My religious belief focuses on the purity of a natural environment, including my body, and how physically and spiritually healthy people can be when they live in harmony with nature. I uphold this symbiotic bond and partnership with nature by excluding the use of modern chemical products, including new mNRA vaccines promoted by Big Pharma companies. I uphold this practice to my own life by growing my own food without the use of chemicals and rejecting injections or many pills created by the Pharmaceutical industry. As stated in my original submission, many of the chemical products developed for agriculture are detrimental to the eco system and consequently detrimental to the inner spirit and spiritualty one feels when walking through a lifeless chemical farm property as opposed to a natural environment (no chemical or unnatural products) where lifeforms and nature spirit are present. These chemicals and other injections of Big Pharma’s products into nature are detrimental to all its lifeforms and life spirits. I apply this to my natural body and immune system, as injecting a vaccine into my body is against my spiritual beliefs.

The current politicians and bureaucrats in charge of the Canadian government should not have the right to force me to inject something unnatural into my body in order for me to keep my job and livelihood. This tramples over my religious beliefs and spirituality with the earth and all its life forms, which include my body.

[Sic throughout]

 

[12] The employer placed the grievor on leave without pay on December 31, 2021. Then on February 24, 2022, the employer wrote to the grievor to say that it reviewed the additional information that he submitted but that it maintained its decision.

[13] The grievor grieved the employer’s denial of his request. The employer denied the grievance, and he referred it to adjudication.

[14] The process for this grievance permitted the grievor to file another affidavit in support of his grievance. In that second affidavit, he summarized the information set out earlier but also expanded upon the nature of his beliefs, stating:

I consider the forest as my church with a feeling of reverence towards nature (Mother Earth). I align myself with nature, honouring nature and doing anything to respect and restore nature. For ex, Picking up garbage (in-organic material) someone dumped near my creek area. I find throwing garbage / unnatural products in the ecosystem as wrong and offensive and do not engage in these practices when I am in nature.

I also have planted and transplanted many tree saplings to areas which were intensively farmed in order rejuvenate the soil and improve the ecosystem (bring back life). I manage trees to encourage healthy growth. I have a reverence for trees. I find by planting trees it brings me closer to my Earth Based spirituality. When in nature surrounded by trees, I find that there is a mystical experience when I am emersed in the forest. Being in the forest feeds my soul.

I strive to improve (rejuvenate) nature by using only organic material and not using chemicals or other inorganic materials when working in the forest or working the land. I consider chemicals as a war against nature.

Nature is diverse and not a monoculture, I live by this motto by not planting just one specific tree in an area, namely I plant a diversity of plants and trees in land I am restoring to nature (forest), which was used as a monoculture conventional farm. Trees are a critical aspect of my Earth Based spirituality and therefore I am against clear cutting of forests. Being amongst the trees allows me to reflect on my ancestors and their spirits in the forest and how they lived off of nature and gave back to the land by planting trees.

My earth-based spirituality invokes an Environmentalist type role in my life, where I manage the life span of plants and trees, for ex, planting seeds (acorns or black walnuts) or transplanting young saplings. Reforestation is one way I connect to my spirituality by improving the health of a degraded land and where I develop a healthier relationship to nature.

I have a sense of connection about human existence while in nature, as it exhibits the life, growth and death / decay through the seasons, making me contemplate my own existence and purpose on this earth.

My inner self (landscape) is connected to this outer landscape of the nature (earth), it gives me a purpose, spiritual fulfillment of being part of a bigger process and world where I do not feel lonely and am less fearful of death. I see this cycle of life in nature i.e. life and death, and how my actions, i.e. planting and managing the forest and land contribute to this cycle of life throughout the seasons.

I connect spiritually and interrelate with this ecological system, by walking in nature or to do physical work in nature, where physical exhaustion leads me to mediate and feel at one with nature. This deep interconnection with nature makes me feel like I am alive here together with all other living things and that I am apart of something greater, and where I reflect how my ancestors interacted with the earth. This is how I receive my nature “communion”.

With over half my life now over, my spirituality connection in nature grows each day and contributes to me contemplating my existence and purpose in life. This has solidified a current life objective of mine of working with and living off the land in a natural way and being a good steward of the land and forest. I feel great spiritual fulfillment and a sense of helping Mother Earth renew herself when I plant trees and where I fertilize them organically, mulch and irrigate during times of drought in the summer, thus helping them to grow. I respect the plants and trees I grow and manage and feel their presence and spirits when I am emerged in living organisms. Watching other organisms live off each other brings me much spiritual fulfillment as I see our roles unfold in Mother Earth amazing playground.

All humans, come from basic understanding — “we all ran naked through the forest”. We all at one time had that relationship with earth-based spirituality. Those of us who have or are re-discovering this earth-based spirituality realize there is no dogma or religious type bible concerning Earth Based spirituality. There are infinite amounts of indigenous / earth-based religions, therefore any generalization of spirituality is difficult. There are no strict regulations or hierarchy other than to have a reference for the earth and all living things, including yourself and one’s body. The shared belief system by the various earth-based spirituality followers can be summarized by the following; Respecting the earth, all its creatures, including yourself and your body. This includes not damaging the earth with the many chemicals available for use in agriculture or forestry industries.

This earth-based spirituality that I believe in considers humans are not separate from nature and that we should have a physical and spiritual relationship with nature. We believe “our church to be in the woods” and where humans are not meant to dominate nature.

Since we believe we are part of nature — we need to be kind towards and take care of Mother Earth and all her elements (water, air, land). i.e. don’t pollute and use it for necessity only. Earth day preservation activities is one way most give back to nature and to help to improve the environment. i.e. composting, cleaning up inorganic material in the landscape and growing food naturally (organically) will reach our overall goal of a healthier planet and healthier self, both physically and spirituality.

This comprehensive belief system that I adhere to includes not damaging or introducing unnatural products into the ecosystem / environment or myself. This includes rejecting the numerous chemicals and unnatural products used in forest management, farming & medicine as they contradict nature’s natural law and systems. Following this natural order is critical to my belief system as I have a reference for the earth, its soil, ecosystem and myself. Violating Mother’s Earth natural system is an afront to my spiritual beliefs, i.e. my earth based spirituality and a threat to Mother Earth herself.

Here are some videos/websites I found recently which talk about earth based spirituality/religions:

…

I believe in the following as core beliefs/values of my earth based spirituality:

· Environmental stewardship: preserving the earth and its ecosystems, aligning with conservationist and environmentalist principles.

· Connection with Earth: the connectivity humans share with the planet, declaring that “all matter, energy, and life are an interconnected unity of which we are an inseparable part” and advocate for living in harmony with nature both locally and globally.

I have attached photographs taken on May 30, 2024, at my forest-farm property which demonstrate my practices in nature, i.e. no chemicals, working with nature i.e., diversity of plants, let things grow (including “weeds”), rejuvenate the eco system/re-forestation of land that was chemically farmed for years (which made it lifeless, a detriment to Mother Earth). I get spirituality from restoring and rejuvenating nature. This is how I receive my nature “communion”.

[Sic throughout]

 

[15] The employer did not file any evidence in this grievance and chose not to cross-examine the grievor.

IV. Employer’s request that the Board not consider the second affidavit

[16] The sincerity of an employee’s belief must be assessed at the time that they made their request to be accommodated, not on the basis of additional information provided for the first time at a hearing; see Bedirian, at para. 60; Wilfrid Laurier University v. United Food and Commercial Workers Union, 2022 CanLII 120371 (ON LA) at para. 84; and Nova Scotia Union of Public & Private Employees, Local 13 v. Halifax Regional Municipality, 2022 CanLII 129860 (NS LA) at para. 134.

[17] Relying on that principle, the employer objects to some of the content of the grievor’s second affidavit, which was prepared and filed for this hearing.

[18] The grievor argues that the duty to accommodate is “evergreen”, meaning that the employer and the Board have a duty to consider new information whenever provided. Therefore, the employer needed to consider the additional information provided during the grievance process which is contained in his second affidavit and, presumably, I need to consider that information too.

[19] The grievor submits that “… courts have also acknowledged the ‘evergreen’ nature of the accommodation process”, but he did not include any references to court decisions in support of that proposition. Instead, he cited a Human Rights Tribunal of Ontario (HRTO) decision, McDonald v. Mid-Huron Roofing, 2009 HRTO 1306. That decision referred to what the grievor calls the evergreen nature of accommodation as something that an employer must do “[t]o meet the procedural part of the duty to accommodate …” and that a “… failure to meet the procedural dimensions of the duty to accommodate — the duty to inquire and assess — is a form of discrimination in itself …” [emphasis added]. The problem is that this is the law in Ontario, but not federally. Unlike in Ontario, there is no separate procedural duty to accommodate in the federal jurisdiction; see Canada (Attorney General) v. Duval, 2019 FCA 290 at para. 25; and Canada (Human Rights Commission) v. Canada (Attorney General), 2014 FCA 131.

[20] The grievor also submits that his second affidavit is consistent with information provided in the grievance process, which makes it admissible because the employer had a duty to consider that information. I have some real concerns about this submission.

[21] First, there is a general principle that statements made during the grievance process are privileged and inadmissible (regardless of whether the statements were made in an effort to settle the grievance). There are a number of exceptions to that principle, such as when the grievance discussions and submissions are necessary to define the scope of the dispute — in this jurisdiction, commonly called a Burchill issue, named after Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.). See the discussion in International Union of Operating Engineers, Local Union No 955 v. North American Mining Ltd., 2014 CanLII 50001 (AB GAA), as one example of the treatment of this issue. The grievor does not aver that this issue at all. I acknowledge that the employer did not specifically object to the affidavit on this basis, but the grievance process’s privileged basis still undermines the grievor’s argument that the affidavit is admissible simply because it contains the same information communicated during the grievance process.

[22] Second, the grievor filed his grievance on December 23, 2021, and seeks relief going back to the beginning of his leave without pay. The basis for the principle that this type of case is decided on the basis of the information provided to the employer at the time it made its decision is that the employer has no duty to accommodate an employee for a secret protected characteristic. Therefore, if I were to treat the grievance submissions made in April 2022 as triggering a finding of discrimination, the remedy would go back only to that date — which is not what the grievor asked for in his grievance.

[23] As I said, I am concerned about the grievor’s submission. Nevertheless, I am admitting most of what the employer objects to despite my concerns. Essentially, I agree with the grievor’s alternative submission that the information that he has provided is not new evidence but is intended to explain the contents of the first affidavit and additional information provided shortly after it.

[24] The employer was particularly concerned about the grievor’s references to the woods being his “church”, to nature as “Mother Earth”, and to a “Creator.” However, I do not believe that the grievor is trying to add new information to his claim. Instead, I believe that the grievor is trying to explain or elaborate on the information that he already provided. The grievor said this in his submissions in this case:

…

… Mr. Frankovic submits that it is inappropriate to apply the concept of higher order through the lens of monotheistic religions who often posses well-defined deity. Mr. Frankovic and earth-based spirituality followers have a more complex and diverse view of divinity. If we were to view his beliefs through the prevalent Judaeo-Christian lens that characterises western societies, Mother Earth would occupy the position of this higher being. The reverence and respect shown by Mr. Frankovic toward the planet is very similar to that of a practicing Catholic revering God and Jesus. However, as there is no real equivalency to a higher being as exists in most religions, it becomes evident as to why the Tribunal has previously stated that not all elements of the OHRC policy are required for a practice or system of belief to be identified as a creed.

…

 

[25] I will be returning to this idea of nontheistic religions later in my decision when deciding whether the grievor’s earth-based spirituality is a creed. However, what I also take from this passage is that the grievor is using the term “Mother Earth” as a metaphor to help explain the way that he views the environment. I understand from his submissions that he does not believe in a deity or literal “Mother Earth” but, instead, he is using the term to help explain his beliefs to people with a theistic view of religion. I have treated his use of the words “church” and “Creator” the same way.

[26] I acknowledge that in his reply submissions, the grievor went further and called Mother Earth and the Creator a force “… responsible for the governance of the universe and life within it”; however, I saw nothing in his evidence suggesting that he holds that belief. His original submissions capture the point more accurately: Mother Earth and the Creator are metaphors, not deities responsible for the governance of the universe and life within it.

[27] The grievor also refers to his ancestors for the first time in his second affidavit. I will admit and consider that evidence for similar reasons as with “Mother Earth”. The grievor is not saying that he is a follower of ancestor worship, or if he is, then he never alleges that he cannot become vaccinated because of his ancestor worship. He is just trying to explain how important the environment is to him.

[28] The employer points out and objects to an inconsistency between the grievor’s submissions and his first affidavit, when they discuss which medical products he uses. To the extent of any inconsistency, I will of course rely on his affidavit and not his written submissions as evidence.

[29] The employer also objected to the photographs of trees, flowers, and other flora that are attached to the grievor’s second affidavit. Having read his affidavit and submissions carefully, I am still not sure why he attached those photographs — whether to convince me of the sincerity of his connection to nature or to allow me to share that connection. Either way, it worked. However, the employer never doubts the sincerity of Mr. Frankovic’s connection to nature. As I will explain in greater detail later, the real issue in this case is whether the grievor’s particular form of earth-based spirituality is a “creed”. Therefore, I have given no weight to those photographs, although I enjoyed viewing them.

[30] Finally, in the passage I quoted earlier from the second affidavit, I excluded a list of websites that the grievor provided. I omitted them because several of them were links to sites no longer available and because they were not reliable sources of information about the grievor’s beliefs (as opposed to earth-based spirituality more generally).

[31] Therefore, I have considered the second affidavit as an elaboration on the information that the grievor provided to the employer in October and December 2021.

V. The meaning of the term “creed”

[32] This grievance alleges a breach of the no-discrimination clause in the collective agreement between the grievor’s bargaining agent (the Association of Canadian Financial Officers; ACFO) and the employer for the FI group (expired November 6, 2022). That clause prohibits discrimination on a number of grounds, including “creed” and “religious affiliation”. The entire clause reads as follows:

Article 46: no discrimination

Article 46 : élimination de la discrimination

46.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practised with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, gender identity and expression, marital status, family status, mental or physical disability, conviction for which a pardon has been granted, membership or activity in the Association.

46.01 Il n’y aura aucune discrimination, ingérence, restriction, coercition, harcèlement, intimidation, ni aucune mesure disciplinaire exercée ou appliquée à l’égard d’un employé-e du fait de son âge, sa race, ses croyances, sa couleur, son origine nationale ou ethnique, sa confession religieuse, son sexe, son orientation sexuelle, son identité sexuelle et l’expression de celle-ci, son état matrimonial, sa situation familiale, son incapacité mentale ou physique, une condamnation pour laquelle il ou elle a été gracié, son adhésion à l’Association ou son activité dans celle-ci.

[Emphasis added]

 

[33] The grievor argues that his earth-based spiritualism is a “creed”. The employer disagrees.

[34] Both parties also disagree over the meaning of the term “creed”, which is undefined in the collective agreement. In essence, the parties’ dispute is over whether, or how much, the term “creed” expands from the term “religion”.

[35] The grievor cites Hendrickson Spring, Stratford Operations v. U.S.W.A., Loc. 8773 (Kaiser), 2005 CanLII 94140 (ON LA), which defines “creed” very broadly, as follows:

…

The term “creed” … has a wide meaning and can be taken to include almost any belief system that encompasses a set of particular religious beliefs but, as well, many other philosophical, secular and personal beliefs — the “-isms” (such as are bound up in words like “environmentalism”, “conservatism” “liberalism” or “socialism”).…

…

 

[36] The employer argues that the reference to “creed” in the collective agreement is a reference to the prohibited ground of discrimination of “religion” in the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA).

[37] I have concluded that the meaning of the term “creed” is synonymous with religion.

A. Meaning of “creed” in the Ontario Human Rights Code

[38] Both parties made lengthy submissions about decisions arising out of Ontario that define the term “creed”. The Ontario Human Rights Code (R.S.O. 1990, c. H.19) prohibits discrimination on the basis of “creed” and says nothing about religion. Therefore, there are a large number of decisions from Ontario interpreting the term “creed”.

[39] These decisions started with R. v. Ontario (Labour Relations Board), [1963] 2 O.R. 376 (HCJ). That case involved the interpretation of the Ontario Labour Relations Act (R.S.O. 1960, c. 202), which stated that a union that discriminates against any person on the basis of “creed” would not be certified under its terms. The current version of that statute (Labour Relations Act (1995, S.O. 1995, c 1, Sch A)) prohibits discrimination on the basis of a ground listed in the Human Rights Code. In that case, a union member objected to his union requiring him to adhere to “Christian social principles”. The Ontario High Court of Justice concluded that this did not amount to discrimination on the basis of creed. In doing so, it said the following about the meaning of that term:

…

It is to be remembered that what the statute prohibits is certification of a trade union if it discriminates against any person because of his creed. The meaning of this is by no means clear. On a strict interpretation it could be taken to mean that a union that forbids membership to persons who adopt a certain creed is not to be certified or it may mean that subscription to a particular creed as a condition of membership is a bar to certification. As I have indicated, I am inclined to the view that either would be discriminatory within the meaning of the statute. The real question is, what is meant by “creed”? The derivation of the word is from the Latin: “credo” — I believe. The Oxford Dictionary gives its earliest meaning as “a professed system of religious belief” or a more general definition “a confession of faith”. Murray’s New English Dictionary gives two appropriate meanings of the words: “a formula of religious belief” or “an accepted or professed system of religious belief”.

Whatever meaning one gives to the word “creed” it must involve a declaration of religious belief. Religious belief, theology and standards of ethical or social conduct are all very different things … Social principles in no sense involve religious beliefs.…

…

 

[40] The High Court of Justice also said some things that are cringeworthy to a modern audience (such as that unions should be upholding Christian ethical or social principals because of their universal appeal, but make sure not to admit Communists). However, the idea that the term “creed” is interwoven with religion remains.

[41] Ontario courts returned to this question in Jazairi v. Ontario (Human Rights Commission) (1997), 146 D.L.R. (4th) 297 (Ont. Div. Ct.) and 1999 CanLII 3744 (ON CA). In that case, a professor alleged that he was discriminated against on the basis of creed in a tenure process because of his views about the Israeli-Palestinian conflict. The Ontario Human Rights Commission (OHRC) dismissed his complaint because it concluded that his views were political, and “creed” does not include political views. Both levels of court agreed.

[42] The Divisional Court interpreted the term “creed” as follows:

…

[34] “Creed” is not defined by the Ontario Human Rights Code. No Ontario board of inquiry has determined whether the definition of “creed” encompasses” political belief”. However, an Ontario Board of Inquiry has referred to Webster’s New International Dictionary where the definition of “creed” includes” “sometimes a summary of principles or a set of opinions professed or adhered to in science or politics, or the like”: Rand v. Sealy Eastern Ltd. (1982), 1982 CanLII 4878 (ON HRT), 3 C.H.R.R. D/938 at D/942 (Ont. Bd.Inq.).

[35] In Black’s Law Dictionary, 6th edition, 1990, “creed” is defined as “confession of articles of faith, formal declaration of religious belief, any formula or confession of religious faith, and a system of religious belief”. Other definitions are as follows:

Creed 1. a set of principles or opinion, esp. as a philosophy of life (his creed is moderation in everything). 2. a. (often the Creed) = Apostles Creed (see Apostle). b. a brief formal summary of Christian doctrine (cf. Nicene Creed, Athanasian Creed). c. the Creed as part of the Mass: The Concise Oxford Dictionary of Current English (8^th ed.) (1990) at p. 272.

Creed 1. A formal statement of religious belief, confession of faith. 2. An authoritative statement of certain articles of Christian faith that are considered essential; for example, the Apostles’ Creed and the Nicene Creed. 3. Any statement or system of belief, principles, or opinions. [Middle English crede, Old English creda, from Latin credo, “I believe.”]: The Houghton Mifflin Canadian Dictionary of the English Language (1982) at p. 311.

Creed — any formula or confession of religious faith a system of religious belief, especially as expressed or expressible in a definite statement; sometimes a summary of principles or set of opinions professed or adhered to in science or politics, or the like: as his hopeful creed: Webster’s New International Dictionary (1977) at p. 13.

Creed — 1. A form of words setting forth authoritatively and concisely the general belief of the Christian Church, or those articles of belief which are regarded as essential; a brief summary of Christian doctrine: usually and properly applied to the three statements of belief known as the Apostles’, Nicene, and Athanasian Creeds (the Creed, without qualification, usually = the Apostles’ Creed); b. A repetition of the creed, as an act of devotion; c. More generally: A formula or religious belief; a confession of faith, esp. one held as authoritative and binding upon the members of a communion; 2. An accepted or professed system of religious belief; the faith of a community or an individual, esp. as expressed or capable of expression in a definite formula; b. A system of belief in general; a set of opinions on any subject e.g. politics or science; c. Belief, faith (in reference to a single fact) rare. The Oxford English Dictionary (2nd ed.) (1989) at p. 1141.

Creed — 1. A brief authoritative formula of religious belief; 2. a set of fundamental beliefs; also: a guiding principle: Webster’s Ninth New Collegiate Dictionary (1991) at p. 305.

Creed — 1. A brief formal summary of Christian doctrine, esp. each of those known as the (Apostles’) Creed, the Athanasian Creed, and the Nicene Creed; 2. A repetition of the Creed as an act of devotion, esp. as part of the Mass; 3. A System of Religious belief; 4. A set of opinions or principles on any subject, esp. a political philosophy; 5. Belief or confidence in; an article of faith: The New Shorter Oxford English Dictionary on Historical Principles (1993) at p. 545.

[36] In Canadian human rights legislation, the terms “creed”, “religion” and “religious belief” are used synonymously and are distinguished from the term “political belief”. In Manitoba, the legislation refers to “religion or creed, or religious, religious association or religious activity” in s. 9(2)(d) and to “political belief, political association or political activity” in s. 9(2)(k). In Newfoundland, “religion” and “religious creed” are distinguished from “political belief”. In Prince Edward Island, “religion” and “creed” are distinguished from “political belief”. (See Manitoba Human Rights Code, S.M. 1987–88, c. 45, C.C.S.M. H175, Newfoundland Human Rights Code, R.S.N. 1990, c. H-14; and P.E.I. Human Rights Act, R.S.P.E.I. 1988, c. H-12.)

[37] The use of clearly different wording by different legislatures can evince a different legislative purpose on behalf of a particular legislature …:

… differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature. [Emphasis added.]

[38] Religious belief is a component of the term “creed” as it appears in human rights and labour legislation: per McRuer C.J.O. in R. v. Ontario Labour Relations Board, Ex parte Trenton Construction Workers Association, Local 52 (1963), 1963 CanLII 117 (ON SC), 39 D.L.R. (2d) 593 (H.C.J.). See also Morra v. Metropolitan Separate School Board (1981), 1981 CanLII 4309 (ON HRT), 3 C.H.R.R. D/1034 (Ont. Bd.Inq.).

[39] It is significant that s. 5(1) of the Code does not enumerate “religion” as a prohibited ground of discrimination. In my view, although the term creed is capable of including a comprehensive set of principles, its ordinary meaning within s. 5(1) requires an element of religious belief.

[40] Even if it can be said that political opinion may constitute creed, there is no evidence that the applicant’s views amount to a creed. I am not prepared to find that the applicant’s political views, no doubt shared by others in society, amount to a creed merely because the applicant is from Iraq. On the facts in this case, the applicant’s submission that political and religious commitments may be so aligned as to constitute “creed” is not established. Whether a political perspective, such as communism, that is made up of a recognizable cohesive belief system or structure may constitute a “creed” is not at issue and is not being determined.

…

[Emphasis in the original]

 

[43] The Ontario Court of Appeal agreed with the result, but was more circumspect in its reasons and cautioned at paragraph 28 as follows: “I think it is a mistake to deal with hypothetical scenarios. Clearly, the personal opinion of the appellant on this single issue of the relationship between the Palestinians and Israel does not amount to a creed.’’

[44] The next attempt at defining the term “creed” that I found illuminating for this case was in R.C. v. District School Board of Niagara, 2013 HRTO 1382. In that case, the HRTO concluded that atheism is a creed, stating:

…

[30] In my view, a purposive interpretation of the prohibition on discrimination because of “creed” in the Code includes a prohibition on discrimination because a person is atheist. To accept the respondent’s submissions would be to find that the Code only protects core beliefs about oneself, humankind and nature linked to one’s self-definition when they accept the existence of a deity or have particular practices. The purpose of prohibiting discrimination because of creed includes ensuring that individuals do not experience discrimination in employment, services and the other social areas in the Code because one rejects one, many or all religions’ beliefs and practices or believes there is no deity.

[31] It is well-established that creed in the Code encompasses, at least, discrimination because of religion: Loomba v. Home Depot Canada, 2010 HRTO 1434 at para. 96; Ataellahi v. Lambton County (EMS), 2011 HRTO 1758 at paras. 6-8. Protection against discrimination because of religion, in my view, must include protection of the applicants’ belief that there is no deity, a profoundly personal belief about the lack of existence of a divine or higher order of being that governs their perception of themselves, humankind and the world. The applicants’ beliefs relate to religion, and engage the purpose of ensuring that people are treated equally regardless of their views and practices on religious matters. It is not necessary in this case to decide whether creed may in some cases encompass core beliefs about fundamental matters other than religion.

[32] In defining what is included within the ground of creed, the Tribunal has often relied on freedom of religion jurisprudence under s. 2(a) of the Canadian Charter of Rights and Freedoms and to Charter values… Because freedom of religion under s. 2(a) of the Charter encompasses both the freedom to practice religion and a requirement of non-discrimination as between religions, this jurisprudence can be particularly useful in dealing with creed claims ….

[33] In R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, the seminal case on freedom of religion, the Supreme Court held that protection of freedom of religion and conscience under the Charter includes both belief and non-belief.…

…

[37] This passage [from Syndicat Northwest v. Amselem, 2004 SCC 47] does not suggest that the Court now requires, contrary to its clear statement in Big M, that a belief system accept the existence of a deity and/or have an organized set of practices to fall within the protection of freedom of religion or against discrimination because of creed. The belief that there is no deity, superhuman or controlling power is equally connected to “spiritual faith, self-definition and spiritual fulfilment” as a belief that one exists. The Court in Amselem notes that religion tends to involve a belief in such a power, and typically involves a particular and comprehensive system and faith and worship, but it does not state that these are requirements for a set of beliefs about the nature of the world and the divine to fall within freedom of religion.…

…

 

[45] The HRTO relied in part on article 18(1) of the International Covenant on Civil and Political Rights, which grants freedom of thought, conscience, and religion. The HRTO went on to say at paragraph 41 that “[a]lthough the wording includes ‘religion or belief’, Article 18 in my view has the same purposes as the protection of creed in the Code.” Finally, the HRTO relied in part on the French translation of “croyance”, which it stated “… reflects a broader understanding of creed that reflects beliefs rather than only identification with a formal set of religious views.”

[46] In 2015, the OHRC published its Policy on preventing discrimination based on creed. That policy set out these five characteristics of a creed:

· Is sincerely, freely, and deeply held.

· Is integrally linked to a person’s identity, self-definition, and fulfilment.

· Is a particular and comprehensive overarching system of belief that governs one’s conduct and practices.

· Addresses ultimate questions of human existence, including ideas about life, purpose, death, and the existence or non-existence of a creator and/or a higher or different order of existence.

· Has some “nexus” or connection to an organization or community that professes a shared system of belief.

 

[47] The HRTO has applied that definition, despite not being bound by it; see, for example, DiRenzo v. Toronto (City), 2024 HRTO 395 at paras. 9 and 10; and Knauff v. Ontario (Natural Resources and Forestry), 2023 HRTO 1729.

[48] Both parties made submissions about the OHRC’s policy. Both parties submitted that the policy does not establish a binding legal test in Ontario and that the Board would not be bound by it even if it did. Nevertheless, both parties made submissions about the meaning of the OHRC’s policy — namely, whether a creed must meet all five characteristics set out in the policy. The employer says that all five characteristics must be met, relying in part on Knauff, which stated that “… a non-religious belief system must still address all five parts of the test.” The grievor says that all five characteristics are relevant (relying on statements by the HRTO to that effect in 13 cases) but that being relevant is not the same thing as being determinative.

[49] In light of the parties’ primary submission that I am not bound by the OHRC’s policy, I have decided not to attempt to interpret it or decide whether each characteristic is a necessary condition according to the terms of that policy. It is not the Board’s role to interpret a non-binding policy promulgated by a different administrative agency at a different level of government about legislation that does not apply to the Board.

[50] The HRTO has summarized its position tersely in Lin v. Toronto Court Services, 2017 HRTO 18, as follows: “‘Creed’ is not defined in the Code. The term includes, but is not limited to, ‘religious creed’ or ‘religion.’ The term may be broader than religion, it is not without limits. Not every belief, opinion, expression, practice or matter of conscience is a creed under the Code.” In other words, in Ontario, a creed is a religious belief or something adjacent to or similar to one.

B. Ontario’s jurisprudence is not dispositive

[51] Despite both parties’ heavy reliance on case law from Ontario, that case law defining the term “creed” in the Ontario Human Rights Code does not conclusively determine the meaning of that same term in this collective agreement. I say that for two reasons.

[52] First, statutory interpretation is different from collective agreement interpretation. Statutory interpretation is about discerning the intention of the legislature by reference to the text, context, and purpose of the statute being interpreted; see Ostiguy v. Allie, 2017 SCC 22 at para. 73; and Bernard v. Canada (Professional Institute of the Public Service), 2019 FCA 236 at para. 7. By contrast, collective agreement interpretation is about discerning the intention of the parties. Arbitrators and adjudicators do so by reading the words of the agreement in their entire context, in their grammatical and ordinary sense, harmoniously with the intention of the parties in making that agreement; see Moniz v. Treasury Board (Department of Foreign Affairs, Trade and Development), 2023 FPSLREB 79 at para. 104.

[53] The approaches to interpreting statutes and collective agreements are similar and will often lead to the same result. Many of the maxims of statutory interpretation are often used to interpret collective agreements, and vice versa. However, the terms in a collective agreement must be considered in that context, which might lead to a different result from statutory interpretation. Thus, in this case, my task is to determine the intention of the parties, not the intention of the Legislature of Ontario.

[54] This is particularly the case because parties to a collective agreement are free to negotiate non-discrimination language that exceeds that set out in legislation: “Human rights legislation sets out a floor beneath which the parties cannot contract out. Parties can contract out of human rights legislation if the effect is to raise and further protect the human rights of the people affected.” (Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 SCR 3 at para. 26)

[55] Second, this collective agreement is worded differently from the Ontario Human Rights Code. The Human Rights Code prohibits discrimination on the basis of creed. This collective agreement prohibits discrimination on the basis of creed and religions affiliation.

[56] The grievor argues that this means that the parties have used the terms “religion” and “creed” as different concepts, meaning that they cannot be synonymous. While the grievor does not put it this way, he is applying the presumption against tautology or that where different words are used, they are intended to have different meanings.

[57] The employer argues that the parties did not use the terms “creed” and “religion” but instead used the terms “creed” and “religious affiliation”. Those two terms, together, comprise religion: creed is the individual, personal manifestation of one’s beliefs, while religious affiliation is the act of belonging to a religious group or community.

[58] I acknowledge that the Board applied the test in Syndicat Northcrest v. Amselem, 2004 SCC 47, in Bedirian. The employer submits that this means that “creed” must be synonymous with religion. However, in Bedirian, the Board was clear that it applied Amselem because “[t]he parties agreed that Amselem should also apply in this case concerning the interpretation of the no-discrimination clause of the collective agreement” (see paragraph 32). For that reason, Bedirian is not a complete answer to this issue.

[59] I will turn to the parties’ competing submissions again shortly; however, for now, it is sufficient for me to note that both parties agree that the collective agreement is worded differently from the Ontario Human Rights Code and that both rely on the way the agreement is worded to support their respective positions. Therefore, I have concluded that the Ontario jurisprudence is not dispositive of this question.

C. The term “creed” is a belief synonymous with a religious belief, broadly defined

[60] I have concluded that the term “creed” is closely related to the term “religion”. However, I also want to emphasize that the term “religion” in this context is very broadly defined. I have reached this conclusion for five reasons.

1. Plain meaning of the term “creed”

[61] First, I turned to the plain meaning of the term “creed”. The New Shorter Oxford English Dictionary defines it as follows:

Creed / kri:d / n. OE [f. as credo] 1 A brief formal summary of Christian doctrine, esp. each of those known as the (Apostles’) Creed, the Athanasian Creed, and the Nicene Creed. OE 2 A repetition of the Creed as an act of devotion, esp. as part of the Mass. LME 3 A system of religious belief. M16 4 A set of opinions or principles on any subject; esp. a political philosophy. E17 5 Belief or confidence in; an article of faith. Rare E19.

[Emphasis added]

 

[62] The online Merriam-Webster Dictionary defines the word “creed” as follows:

creed

1 a brief authoritative formula of religious belief

2 a set of fundamental beliefs

[Emphasis in the original]

 

[63] The French term “croyance” has a similar definition. Le Robert Dico en Ligne defines the term as follows:

Définition de croyance

1. Action, fait de croire une chose vraie, vraisemblable ou possible. - certitude, conviction, foi. La croyance à, en qqch.

2. Ce que l’on croit (surtout en matière religieuse). Croyances religieuses. – conviction.

 

[64] As seen in those definitions, the term “creed” can sometimes have a purely secular connotation, but it is largely associated with a religious belief.

2. The use of the term “creed” in other jurisdictions is in association with religion

[65] Second, Ontario is not the only jurisdiction to use the term “creed”. I found its use in other jurisdictions instructive.

[66] The Saskatchewan Human Rights Code, 2018 (SS 2018, C. s-24.2), at s. 2(1), prohibits discrimination on the basis of both “creed” and “religion” but defines the term “creed” to mean “religious creed”. Saskatchewan’s legislation also has provisions that use the terms “creed” and “religion” next to each other, such as s. 16(10), which permits discrimination by non-profit organizations that are engaged in serving the interests of people by many grounds, including their “… creed, religion …”. Manitoba’s The Human Rights Code (CCSM c H175) prohibits discrimination on the basis of “… religion or creed, or religious belief, religious association or religious activity …” (at s. 9(2)(d)). New Brunswick’s Human Rights Act (RSNB 2011, c 171) prohibits discrimination on the basis of “creed or religion”, at s. 2.1(f). Interestingly, New Brunswick’s statute mentions religion in its preamble and in s. 13(a) outlining its purpose (to prevent discrimination on certain grounds), but not creed. This shows the overlap between the two terms.

[67] The principle of noscitur a sociis is a maxim of statutory interpretation that applies when words are associated with one another (often linked by the words “and” or “or”). A legislature places words near each other, and links them, when the terms are meant to be associated with one another and to share a common meaning: see, for example, 2747‑3174 Québec Inc. v. Quebec (Régie des permis d’alcool), [1996] 3 S.C.R. 919 at para. 195. That those other three provinces use the term “creed” in association with “religion” is an indication that the terms are closely related to one another.

[68] New Brunswick’s Human Rights Act is also instructive in a different way because it separately prohibits discrimination on the basis of “political belief or activity” (see s. 2.1(p)). Manitoba’s The Human Rights Code does the same thing, prohibiting discrimination on the basis of “… political belief, political association or political activity …” (at s. 9(2)(k)). If the grievor is correct, and a creed includes all “isms”, there would be no need to separately prohibit discrimination on the basis of political belief — as just about every political belief can be captured by an “ism” (liberalism, anarchism, etc.). This is another indication that the term “creed” is associated with religious belief and not with other forms of belief.

3. Interpreting “creed” to mean religion brings the term in conformity with human rights law across Canada

[69] Third, an interpretation of creed that is synonymous with a religious belief is consistent with the convergence of human rights law across Canada.

[70] As the Board stated in Bedirian, clause 46.01 is similar to the wording of the CHRA. On reviewing the prohibited grounds of discrimination in the CHRA and clause 46.01, they are the same, except for the use of creed and two other explainable differences: the CHRA prohibits discrimination on the basis of genetic characteristics (which is explained by the CHRA being amended to add that prohibited ground of discrimination shortly before the parties signed this collective agreement; also, the parties’ more recent collective agreement has added this ground), and clause 46.01 prohibits discrimination on the basis of membership in the ACFO (which covers the ground in ss. 186(1)(b) and 186(2)(a)(i) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA) instead of in the CHRA, and since the CHRA could not prohibit discrimination on the basis of membership in a single employee organization). Additionally, clause 46.01 prohibits discrimination on the basis of “mental or physical disability”, while the CHRA lists only “disability”; however, this is a distinction without a difference, as the term “disability” is defined to mean both mental and physical disabilities (see CHRA, s. 25).

[71] The employer argues that this similarity shows that the grounds in clause 46.01 must be synonymous with the grounds in the CHRA. I would not go so far as to say that a non-discrimination clause must follow the CHRA. The parties are free to prohibit more grounds of discrimination than in the CHRA (and have done so in respect of membership or activity in ACFO), as I discussed earlier. However, I agree that there is an overlap between clause 46.01 and the CHRA for two reasons.

[72] First, the overlap is consistent with ss. 226(2)(a) and (b) of the FPSLRA, which give the Board the power to interpret and apply the CHRA and award damages in accordance with ss. 53(2)(e) and 53(3) of that statute. It would be unusual if the parties to a collective agreement strayed too far from the CHRA in a non-discrimination clause in light of that provision giving the Board the power to interpret and apply the CHRA even in the absence of a non-discrimination clause. The main impact of clause 46.01 is that it gives the Board jurisdiction over the dispute. The Board has no stand-alone jurisdiction over the application of the CHRA to federal public servants; see Chamberlain v. Canada (Attorney General), 2015 FC 50. Clause 46.01 gives the Board the power over this dispute under s. 209(1)(a) of the FPSLRA; in other words, by replicating (or nearly replicating) the CHRA in the collective agreement, ACFO and the Treasury Board have ensured that the Board has jurisdiction over this grievance and many other human rights issues raised by federal public servants in this bargaining unit.

[73] Second, an overlap between clause 46.01 and the CHRA brings the interpretation of that clause under the ambit of a broader principle that human rights provisions should be interpreted or applied similarly in all jurisdictions across Canada. As the Supreme Court of Canada put it in University of British Columbia v. Berg, [1993] 2 SCR 353:

…

… If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature.…

…

 

[74] The Supreme Court of Canada said similar things in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27 at para. 46, where it concluded that a handicap in Quebec’s Charter of Human rights and Freedoms (R.S.Q., c. C-12) is the same thing as a disability in other human rights legislation because “… mere differences in terminology do not support a conclusion that there are fundamental differences in the objectives of human rights statutes.”

[75] Human rights legislation across Canada universally prohibits discrimination on the basis of religion and religious belief, whether by using the term “religion” (as in the CHRA), the term “creed” together with “religion” (as in Saskatchewan), or the term “creed” alone (as in Ontario). One of the fundamental objective of human rights statutes is to prohibit discrimination on the basis of religion. That objective extends to clause 46.01 as well.

[76] There is no such consensus about prohibiting discrimination on the basis of political belief or other “isms”. As I have pointed out already, some jurisdictions expressly prohibit discrimination on that basis; as I also pointed out, this shows a lack of consensus about prohibiting discrimination on the basis of belief in an “ism”, as suggested by the grievor.

[77] An interpretation of “creed” that is synonymous with “religion” is consistent with the thrust of human rights law more generally, and the use of the word “creed” does not clearly evince a different purpose in this collective agreement.

4. “Creed” and “religious affiliation” can be different things, both about religion

[78] Fourth, I return to the parties’ argument about whether the use of the term “creed” alongside “religious affiliation” triggers the presumption against tautology such that creed must mean something different from religion. Having considered both parties’ submissions, I agree with the employer that the terms “creed” and “religious affiliation” are not synonymous in a way that triggers that presumption. I agree with the employer that religious affiliation means just that — affiliation with a particular religion. Creed, on the other hand, is about a belief system, not just an affiliation with a religion. A person could be affiliated with a religion without believing in its tenets.

[79] Despite my conclusion, I want to address two alternative arguments made by the employer.

[80] First, the employer argues that terms in a collective agreement should be interpreted in the manner that the parties intended when they negotiated them. The employer relies on the Board’s decision in Public Service Alliance of Canada v. Treasury Board (Department of Fisheries and Oceans), 2024 FPSLREB 129. In that case, the grievor wanted to introduce evidence about a bargaining proposal made in 2021. The Board refused to admit that evidence because the clause at issue was negotiated in 1989 and 2017, so a 2021 proposal says “… nothing about what the parties intended in 1989 or 2017” (see paragraph 10). The employer then states that the term “creed” was added to the collective agreement over 35 years ago and that it should be interpreted according to the case law as it existed at that time instead of according to more modern decisions.

[81] That decision is about the relevance of bargaining evidence. It does not stand for the proposition that a clause in a collective agreement must be interpreted without regard to decisions interpreting similar phrases that post-date the negotiation of that agreement. This is particularly so when dealing with clause 46.01, which replicates the CHRA in most respects. The interpretation of the prohibited grounds of discrimination may evolve over time, to reflect evolving societal understanding of discrimination and its impact. This is just as true for collective agreement language as for statutory language.

[82] I do not agree with the proposition that the parties intended to lock in the meaning of each prohibited ground at the time they first negotiated the collective agreement clause. To give one example, the meaning of “family status” changed dramatically after the Federal Court of Appeal’s decision in Canada (Attorney General) v. Johnstone, 2014 FCA 110. The Board has repeatedly applied Johnstone to the interpretation of “family status” in similar clauses in collective agreements across the federal public sector. The employer’s submission suggests that the Board was wrong to do so and that instead it should have adopted the jurisprudence about “family status” as it existed when those clauses were negotiated in the 1980s and 1990s or should have decided what the parties intended by ignoring Johnstone. I cannot agree that the Board should lock in human rights jurisprudence at the time the parties negotiated a non-discrimination clause.

[83] Second, the employer pointed out that the parties amended clause 46.01 in their latest collective agreement to remove “creed” and “religious affiliation” and replace those terms with “religion”. The employer says that the parties did so to make it clearer that clause 46.01 should be aligned with the CHRA. The grievor responded to say that there was no evidence to support that supposition, and in fact, the 35 years in which they did not do so suggests some other motivation behind the change. In sur-reply, the employer repeated its claim that the change reflected an intention to clarify that the collective agreement aligns with the CHRA.

[84] I have concluded that the change in wording after the grievance was filed is not relevant. As stated in Bendix Home Systems Ltd. v. United Brotherhood of Carpenters & Joiners of America, Local 3054, 1975 CanLII 2149 (ON LA), “It would be impossible and improper to conclude that any article in the new agreement necessarily implies anything about the meaning of any article in the old agreement.” I decline to reach any conclusion about the meaning of “creed” based on its replacement with “religion” in the new collective agreement.

5. The grievor calls his belief a religion

[85] Fifth, the parties refer to this case as being about religion. The employer refers to “religion” and not “creed” in the Vaccine Policy. In his affidavit in support of this grievance, the grievor characterizes his request as “… for accommodation on religious grounds on the basis that I have a sincere religious belief that prevents me from being fully vaccinated.” He seeks damages because of this: “Transport discriminated against me based on my religious beliefs (creed) …”. When he first applied for accommodation, he based that application on his “religious beliefs and spiritual practices”.

[86] The grievor also states that he is seeking damages under ss. 53(2)(e) and 53(3) of the CHRA. If the term creed meant something different from religion in the CHRA, discrimination on the basis of creed could not lead to damages under the CHRA.

[87] For these five reasons, I have concluded that the term “creed” means a belief that is synonymous with religion.

VI. Whether the grievor’s earth-based spiritualism is a creed

[88] Having concluded that the term “creed” means a belief that is synonymous with religion, I must now consider what constitutes a religion.

A. A polythetic definition of “religion”

[89] This is no easy feat. The meaning of “religion” has plagued philosophers and theologians for centuries. In United States v. Seeger, 380 U.S. 163 (1965), the United States Supreme Court dealt with claims by conscientious objectors who were permitted to opt out of compulsory military service because of “religious training and belief”, which was a term defined to mean “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code.” None of the conscientious objectors were members of what we would think of as organized religions. The U.S. Supreme Court identified the difficulty of determining what is, or is not, a “religion”, stating this:

Few would quarrel, we think, with the proposition that in no field of human endeavor has the tool of language proved so inadequate in the communication of ideas as it has in dealing with the fundamental questions of man’s predicament in life, in death, or in final judgment and retribution… Over 250 sects inhabit our land. Some believe in a purely personal God, some in a supernatural deity; others think of religion as a way of life envisioning, as its ultimate goal, the day when all men can live together in perfect understanding and peace. There are those who think of God as the depth of our being; others, such as the Buddhists, strive for a state of lasting rest through self-denial and inner purification; in Hindu philosophy, the Supreme Being is the transcendental reality which is truth, knowledge and bliss… This vast panoply of beliefs reveals the magnitude of the problem which faced the Congress when it set about providing an exemption from armed service. It also emphasizes the care that Congress realized was necessary in the fashioning of an exemption which would be in keeping with its long established policy of not picking and choosing among religious beliefs.

 

[90] In Craig Martin, “Delimiting Religion” (2009) 21 Method and Theory in the Study of Religion 157, Professor Martin points out at page 159 that “[u]ndergraduates perennially get into heated debates over whether or not Buddhism is ‘really’ a religion.” He points out that the debate is really over whether “… Buddhism counts as religion, given this or that definition of the term religion.” Professor Martin and others (such as Ludwig Wittgenstein, Philosophical Investigations (1953), and a large array of books and academic papers since that time) discuss the difficulty of a monothetic definition of religion and propose a polythetic definition instead.

[91] Legal systems are typically based on monothetic definitions: legal definitions are rife with necessary and sufficient conditions to meet a particular definition. However, proponents of a polythetic definition of religion, such as those authors, point out that there is no satisfactory monothetic definition of religion. Instead, religion is best defined by comparing a particular belief to other beliefs that are considered religious and deciding whether this belief belongs in the same family as the one considered religious. For example, a religion could be defined as having some or most of a set of 10 characteristics, but religion A could have characteristics 1-4 and 7-10, while religion B could have characteristics 3-7 and 9.

[92] In Amselem, the Supreme Court of Canada adopted a polythetic definition of religion. It stated:

…

39 In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

…

[Emphasis added]

 

[93] The Supreme Court hedges a great deal in that paragraph: religion typically involves a comprehensive system of faith and worship something and tends to involve the belief in a divine, superhuman, or controlling power and is about the divine or the subject or object of spiritual faith. This hedging is not accidental: the Court is articulating a polythetic definition of religion, even though legal decisions typically cry out for monothetic definitions and require a binary result (is this a religion, yes or no) instead of permitting shades of grey.

[94] Therefore, I am adopting a polythetic approach to whether the grievor’s particular belief is religious in nature.

B. Applying the polythetic definition of “religion” by comparing the grievor’s belief to other beliefs that are religious or non-religious

[95] Applying a polythetic definition can be difficult. I have decided to approach this question by identifying what has, or has not, already been identified as a religion (or creed, in Ontario) by other decision makers and divide them into columns. I can then consider whether the grievor’s form of earth-based spiritualism is more similar to what is found in either of the two columns.

[96] In the following table, I have listed religions and creeds in the first column and non-religious or non-creed beliefs in the second. The citations for each of these entries can be found at Appendix A to this decision. I am particularly indebted to the Ontario Human Rights Commission’s Creed Case Law Review (May 2012) and to the parties for providing a number of more recent examples.

Religions/creeds

Not religion/creed

· Judaism   · Christianity, including the following subsets   ჿ Jehovah’s Witnesses   ჿ Seventh-day Adventist   ჿ Pentecostal   ჿ Hutterian Brethren   ჿ Worldwide Church of God   ჿ Christian Living Church of God   ჿ Christian Churches of God   ჿ Latin Mass (part of Roman Catholicism)   ჿ Eastern Orthodoxy (in various forms)   ჿ Baptist   ჿ “I Am” movement   ჿ Essene   · Islam   · Raelian   · Falun Gong   · Aboriginal spirit practices   · Wicca   · Rastafarianism   · Sikhism   · Hare Krishna   · Church of Scientology   · Atheism

· Reiki (the transfer of universal life force energy to a recipient)   · Judo (specifically, the act of bowing to one’s opponent)   · Political opinions   · Ethical veganism   · Bodily autonomy   · Traditional ways of natural healing   · Holistic-based belief in using only natural products   · Individualism or individual choice, personal autonomy, bodily autonomy   · Academic freedom   · Pastafarianism (which is a satire or parody of other religions)   · MOVE

 

[97] There are two significant and common attributes of beliefs that have been characterized as religious that are missing from the grievor’s belief.

1. The grievor’s earth-based spirituality does not concern itself with a Supreme Being or fundamental questions about deep and imponderable matters

[98] First, the belief systems in the religions column concern themselves with questions having to do with deep and imponderable matters. Often, this manifests itself in some form of Supreme Being. The monotheistic religions of Judaism, Christianity, and Islam are the usual examples of this. Other religions in that column share that characteristic: Raelians believe in the extraterrestrial species of the Elohim, Wicca has the Great Mother and the Horned God, and even Aboriginal spirit practices refer to the Creator. The Supreme Court in Amselem referred to this as a “a divine, superhuman or controlling power.”

[99] As I discussed earlier, the grievor does not believe in a Supreme Being, and his use of “Mother Earth” is a metaphor, not the name of a deity.

[100] I return now to the grievor’s submissions about nontheistic or pantheistic religions. I agree entirely with the grievor that nontheistic or pantheistic belief systems can still fall within the meaning of religion, despite the absence of a Supreme Being in those belief systems.

[101] Courts in the United States have addressed this issue by a process of analogy, looking for some aspect of the belief system that is analogous to or holding “… parallel positions in the lives of their respective holders …” to a Supreme Being (see Seeger, at 854; see also Welsh v. United States, 398 U.S. 333 (1970) at 340; Malnak v. Yogi, 592 F.2d 197 (1979) at 207; and Africa v. Pennsylvania, 662 F.2d 1025 (1981) at 1032).

[102] The most common way to articulate that analogy in the United States jurisprudence is that a religion concerns itself with “… fundamental and ultimate questions having to do with deep and imponderable matters” (see Africa, at 1032; and, more recently, Fallon v. Mercy Catholic Medical Center, 877 F.3d 487 (2017)). As the Court of Appeal for the Third Circuit said in Africa at page 1033:

… Traditional religions consider and attempt to come to terms with what could best be described as “ultimate” questions-questions having to do with, among other things, life and death, right and wrong, and good and evil. Not every tenet of an established theology need focus upon such elemental matters, of course; still, it is difficult to conceive of a religion that does not address these larger concerns.…

 

[103] The Supreme Court of Canada in Amselem was getting at a similar “by analogy” point when it described the point of religion as to “… foster a connection with the divine or with the subject or object of that spiritual faith” [emphasis added].

[104] The decision in Africa involved a very similar belief system to that held by the grievor. The belief system in Africa was the MOVE organization. The claimant in that case believed in the primacy of nature or natural things, for example, “The water’s existence is to be drunk and not poisoned, the air’s presence is to be breathed and not polluted, the food’s purpose is to be eaten and not distorted” (at page 1026). The Court of Appeal for the Third Circuit concluded that this was not a religion in part because it did not concern itself with ultimate questions, stating this at page 1033:

We conclude that the MOVE organization, as described by Africa at the hearing below, does not satisfy the “ultimate” ideas criterion. Save for its preoccupation with living in accord with the dictates of nature, MOVE makes no mention of, much less places any emphasis upon, what might be classified as a fundamental concern. MOVE does not claim to be theistic: indeed it recognizes no Supreme Being and refers to no transcendental or all-controlling force. Moreover, unlike other recognized religions, with which it is to be compared for first amendment purposes, MOVE does not appear to take a position with respect to matters of personal morality, human mortality, or the meaning and purpose of life. The organization, for example, has no functional equivalent of the Ten Commandments, the New Testament Gospels, the Muslim Koran, Hinduism’s Veda, or Transcendental Meditation’s Science of Creative Intelligence. Africa insists that he has discovered a desirable way to conduct his life; he does not contend, however, that his regimen is somehow morally necessary or required. Given this lack of commitment to overarching principles, the MOVE philosophy is not sufficiently analogous to more “traditional” theologies.

[Emphasis added]

 

[105] The grievor’s belief system is similar, in that he has identified a desirable way to live his life that gives him a deep spiritual connection to the Earth. The closest he comes to describing his belief in terms of fundamental and ultimate questions is when he says this: “This earth-based spirituality that I believe in considers humans are not separate from nature and that we should have a physical and spiritual relationship with nature.” That we should have a physical and spiritual relationship with nature is not the same thing as suggesting that such a relationship is morally necessary or required.

[106] The grievor also emphasizes the health benefits (both physical and mental) of his belief system. This is similar to belief systems that have been held not to be religious or a creed in Knauff (ethical veganism); Cassell v. ConnectWell Community Health, 2024 HRTO 1070 (holistic-based belief in using only natural products); and Affleck v. The Attorney General of Ontario, 2021 ONSC 1108 (the health benefits of drinking non-pasteurized milk).

[107] Finally, while I am unaware of any Canadian decisions about whether environmentalism is a religion, the United States District Court for the Northern District of Oklahoma concluded that it was not in Krause v. Tulsa City-County Library Commission, 2017 U.S. Dist. LEXIS 8849. However, in that case, the plaintiff simply asserted that environmentalism is a religion based on environmental protection without providing more information, so I have not given that decision very much weight.

[108] I pause to state that I have read the grievor’s articulation of his belief broadly and liberally. My task is not to dissect his beliefs simply because they are not articulated with the clarity and precision a lawyer or theologian (see Passarella v. Aspirus, Inc., 108 F.4^th 1005 (2024) at 1011). However, even reading the grievor’s evidence broadly and liberally, I do not see his belief system addressing the sort of fundamental questions of right and wrong or the meaning of life that are common in religious beliefs.

2. There is no communal element to the grievor’s earth-based spirituality

[109] Second, the beliefs in the religions column tend to be communal. The Supreme Court of Canada has articulated the communal nature of religion in many cases, including Loyola High School v. Quebec (Attorney General), 2015 SCC 12 at para. 60 (“Religious freedom under the Charter must therefore account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions ….”); Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para. 89 (“Religion is a matter of faith, intermingled with culture. It is individual, yet profoundly communitarian.”); Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 at paras. 73 (setting out the argument that “… freedom of religion has a communal aspect, and that the state cannot act in a way that constrains or destroys the communal dimension of a religion”) and 74 (concluding that “It is true that freedom of religion under s. 2(a) has a communal aspect …”); and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 at para. 64 (“The ability of religious adherents to come together and create cohesive communities of belief and practice is an important aspect of religious freedom ….”). See also Chagai Schlesinger, “The Significance of Conscience in Community: Rethinking the ‘Hands Off Religion’ Doctrine” (2023) 36 Can. J.L. & Juris. 463 at 475 (“Religion is a social phenomenon that is performed collectively and communally… religion is a communal form of developing and practicing normative commitments” [emphasis in the original].).

[110] The United States jurisprudence refers to something it calls the “structural characteristics of religion”: the existence of ceremony, clergy, organization, or formal identifying characteristics of the religion (see Africa, at 1035 and 1036). The United States Supreme Court has also stated that a religion is “shared by an organized group” (see Wisconsin v. Yoder, 406 U.S. 205 (1972) at 405). I am not convinced that requiring a “structural” characteristic of religion as a legal test has been adopted by, or is even appropriate for, the Canadian legal tradition. However, it is another way of expressing the communal nature of religion. Religion is usually practiced in groups. Even people who are engaged in an individual exploration of religion (for example, hermits or meditators) base their beliefs on those shared by a broader community of believers.

[111] As the employer submitted at paragraph 52 of its written submissions, the grievor’s belief system lacks this communal aspect. While he sometimes refers to a collective group when describing his belief (“… we believe we are part of nature” or “… we need to be kind towards and take care of Mother Earth …” [emphasis added in both quotes]), he does not identify this larger community with whom he belongs. The closest he comes is when he states this: “I have learned and relate these practices from various groups, including some indigenous people and naturalists …”. However, having learned from other groups does not mean that one is part of those groups or part of any community of belief.

[112] I want to reiterate that neither of these things (a connection to fundamental questions and a communal aspect) are necessary conditions of a religion. It is conceivable that something could be religious despite being concerned entirely with pragmatic questions or having only a single adherent. However, those are two strong indicators of a religion. Their absence in this case leads me to conclude that the grievor’s belief is not religious and is not a creed as that term is intended in this collective agreement.

[113] I also want to reiterate that my conclusion is about the grievor’s specific form of earth-based spirituality. It is possible that there are other forms of earth-based spirituality that are religions and creeds because they deal with fundamental or ultimate questions having to do with deep and imponderable matters, or have some communal element, or both. Each case must be reviewed on the basis of the particular belief system held by an employee.

VII. The grievor is sincere in his belief

[114] The employer does not dispute the sincerity of the grievor’s wish not to be vaccinated. While the employer characterized its position as not acknowledging the sincerity of the grievor’s part of a comprehensive system of faith and worship, its main position was that the grievor’s belief is not a creed.

[115] I want to state clearly my conclusion that the grievor’s belief is sincere. His evidence was credible. He has demonstrated his deep connection to nature and his understanding that the fact that vaccines are artificially created means that taking them contravenes his belief system. This case is not like Bedirian. The grievor has convinced me that his belief is sincere in the sense of being both credible and part of a comprehensive belief system that he follows consistently.

[116] If his earth-based spiritualism met the definition of a creed, I would have allowed the grievance and remitted the appropriate remedy to the parties for resolution.

[117] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VIII. Order

[118] The grievance is denied.

February 19, 2025.

Christopher Rootham,

a panel of the Federal Public Sector

Labour Relations and Employment Board

 

APPENDIX A

 

Religion

 

Judaism (including all shades of Orthodoxy) - Syndicat Northcrest v. Amselem, 2004 SCC 47

Christianity, including the following subsets:

· Jehovah’s Witnesses - Saumur v. City of Quebec, [1953] 2 S.C.R. 299

 

· Seventh-day Adventist - Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970

 

· Pentecostal - Friesen v. Fisher Bay Seafood Ltd., 2009 BCHRT 1

 

· Hutterian Brethren - Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37

 

· Worldwide Church of God - Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489

 

· Christian Living Church of God - Koroll v. Automodular Corp., 2011 HRTO 774

 

· Christian Churches of God - Derksen v. Myert Corps Inc., 2004 BCHRT 60

 

· Latin Mass (part of Roman Catholicism) - Public Health Sudbury & Districts v. Ontario Nurses’ Association, 2022 CanLII 48440 (ON LA)

 

· Baptist - Kurvits v. Canada (Treasury Board) (1991), 14 C.H.R.R. D/469 (CHRT)

 

· “I Am” movement - United States v. Ballard, 322 U.S. 78 (1944)

 

· Eastern Orthodoxy - British Columbia Rapid Transit Company Limited v. Canadian Union of Public Employees, Local 7000, 2022 CanLII 100817 (BC LA) (Ukrainian Orthodox Church in particular)

 

· Essene - Affleck v. The Attorney General of Ontario, 2021 ONSC 1108

 

Islam - Webber Academy Foundation v. Alberta (Human Rights Commission), 2023 ABCA 194; Qureshi v. G4S Security Services (Canada) Ltd., 2009 HRTO 409

Raelian - Chabot v. Conseil scolaire catholique Franco-Nord, 2010 HRTO 2460; Gilbert v. 2093132 Ontario Inc., 2011 HRTO 672

Falun Gong - Huang v. 1233065 Ontario, 2011 HRTO 825

Aboriginal spirit practices - Kelly v. British Columbia (Ministry of Public Safety and Solicitor General)(No. 3), 2011 BCHRT 183; Ewert v. Canada, 2023 FC 1054; and Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54

Wicca - Humber College v. O.P.S.E.U. (1987), 31 L.A.C. (3d) 266

Atheism - R.C. v. District School Board of Niagara, 2013 HRTO 1382

Rastafarianism - Barker v. St. Elizabeth Health Care, 2016 HRTO 94

Sikhism - Bhinder v. Canadian National Railway (1985), [1985] 2 S.C.R. 561

Hare Krishna - R. v. Harrold, 1971 CanLII 1148 (BC CA)

Scientology - Church of Scientology v. The Queen (No. 6), 1987 CanLII 122 (ON CA)

Not religion

Reiki (transfer of universal life force energy to a recipient) - Young and Young on behalf of Young v. Petres, 2011 BCHRT 38

Judo (specifically, the act of bowing to one’s opponent) - Akiyama v. Judo B.C., 2002 BCHRT 27

Political opinions - Jazairi v. Ontario (Human Rights Commission), 1997 CanLII 12445 (ON SC) and 1999 CanLII 3744 (ON CA)

Ethical veganism - Knauff v. Ontario (Natural Resources and Forestry), 2023 HRTO 1729

Bodily autonomy - Genik v. Municipal Property Assessment Corporation, 2024 HRTO 1056

Traditional ways of natural healing - Patel v. Governing Council of the University of Toronto, 2024 HRTO 584

Holistic-based belief in using only natural products - Cassell v. ConnectWell Community Health, 2024 HRTO 1070

Individualism or individual choice, personal autonomy, bodily autonomy - Cala v. Sheridan College, 2022 HRTO 1016; Murota v. Governing Council of the University of Toronto, 2024 HRTO 602; Brown v. Planet Fitness (Dundas), 2022 HRTO 1178

Academic freedom - Graham v. University of Toronto, 2022 HRTO 999

Pastafarianism (which is a parody of other religions) - Smith v. British Columbia (Human Rights Tribunal), 2021 BCSC 331

Optimizing one’s health - Affleck v. The Attorney General of Ontario, 2021 ONSC 1108

MOVE organization - Africa v. Pennsylvania, 662 F.2d 1025 (1981)